5: Climate Change Litigation in Civil Law African Countries: An Assessment of Barriers and Potentialities in Cameroon

Climate change litigation is growing around the world in general and in common law African countries in particular, but there is no ‘trend’ of climate cases in civil law African countries. This chapter presents the causes that limit the development of climate change litigation in civil law African countries – but it also highlights the civil society organizations that aim to further climate justice.

The chapter focuses on Cameroon in the Congo Basin. It shows the legal obstacles that prevent the development of climate litigation and the potentialities that exist. From the research it appears that access to justice is restricted in Cameroon, as standing is conditional and so only some legal entities can bring environmental cases. However, civil society organizations are doing important work on the ground to protect the environment and contribute to climate justice through advocacy and monitoring of natural resources management. Even though climate litigation could be brought by entities like decentralized public collectives, the monitoring and advocacy work done by civil society organizations to enhance climate justice in Cameroon should not be overlooked.

Introduction

It seems like a long time ago that there were only a handful of climate lawsuits. Since the first climate lawsuits were filed in the United States in 1990,2 a myriad of litigation has emerged at the national, regional and global levels. According to the Grantham Research Institute on Climate Change and the Environment, as of May 2021 the databases on climate litigation around the world contained 1,841 cases that were either in progress or had already been decided.3 This shows the exponential development of the phenomenon through which civil society organizations, public law legal entities and private individuals are trying to establish the responsibility of states and companies in the oil and energy industry in general on the causes and effects of climate change.4

However, this phenomenon does not develop in the same way in different geographical areas. While the United States alone has 1,387 climate-related cases,5 the African continent has only ten recognized climate cases, according to the databases of the Sabin Center for Climate Change Law and the Grantham Research Institute. One is pending before the East African Court of Justice6 at the sub-regional level, and nine have been tried or are pending in various countries such as South Africa,7 Nigeria,8 Kenya9 or Uganda.10 Yet Africa is one of the most vulnerable regions in the world to climate change. One would have expected climate litigation to proliferate considerably there, but this is not the case according to the definition of climate litigation that Global North scholars are using.11 Recent work, including this volume, has sought to track and understand the contribution of climate litigation in Africa and other regions in the Global South.

One point of analysis that reminds underexplored, and which this chapter seeks to address, is the extent to which the litigation recorded to date on the continent has taken place only in countries with common law legal systems, influenced to some extent by English law. Indeed, at the time of writing, no African country with a civil law system appears to have registered a climate case; this means that no challenges to climate (or environmental) policy have arisen, but also that climate change has not come up as an issue in court disputes that focus on other matters. The reason for this is not that environmental protection and climate action in civil law countries is already so good that there is no cause for citizens to be concerned; it is also not because members of society are apathetic and do not engage with these issues. So in view of this, it is reasonable to wonder about the causes of the absence of climate disputes in African countries with a civil law system. This chapter intends to show the legal obstacles that prevent the development of climate litigation in countries with the civil law system and the potentialities that exist by focusing on Cameroon. It also shows what civil society actors can do given the means available to them.

African civil law countries have a dynamic and effective environmental civil society. In Cameroon, for example, non-governmental organizations (NGOs) opposed the exploitation of the Ebo forest, whose classification process as a national park was initiated in 2006 because of the importance of the space and the resources found there for the communities and its biodiversity (rare apes).12 One of their arguments was based on the impact of the exploitation of this forest on Cameroon’s international commitments regarding climate and biodiversity. In a letter to the prime minister, they argued that the reclassification process to allow the Ebo forest’s exploitation could undermine Cameroon’s leadership role in the Congo Basin at the 26th Conference of Parties of the United Nations Framework Convention on Climate Change.13 Their lobbying led to the withdrawal of one of the decrees classifying the forest and to the temporary suspension of the classification process for the second forest management unit.14 A climate change dispute that in another context might have resulted in litigation was resolved through civil society activism and political campaigning.15

The landscape of climate justice work in African civil law countries has its own distinct character. As we explore in the first two sections of this chapter, civil society organizations (CSOs) have limited access to environmental judges and have prioritized means of action other than litigation in the field of climate change. This is not necessarily a bad thing, as litigation should be the strategy of last resort. It certainly does not mean that there is no engagement with climate justice issues, or that CSOs and activists do not have their own well-developed strategies. But, as we shall explore in the final part of the chapter, there are also some opportunities for developing this activism into climate change litigation.

Cameroonian law and restricted access to justice

Under foreign domination between 1884 (Germany, France and United Kingdom) and 1959, Cameroon has a legal system that is based on both the common law and the civil law systems on the one hand, and on customary law on the other.16 However, since the reunification of the former western Cameroon under common law and the former eastern Cameroon under civil law in 1961 and the unification of the country in 1972, the country has produced an abundance of legislation that has given common law and customary law less influence, thus showing that Cameroon is increasingly governed by civil law, particularly in environmental matters.17 There are many Acts, decrees or orders that organize the management of environment and natural resources in Cameroon. However, contrary to African countries where climate litigation has developed, the Cameroonian legal framework limits the access of CSOs and even individuals to the courts in environmental matters. This is brought about by the restrictive conditions for the admissibility of cases, notably concerning the standing and the capacity to act of CSOs and the priority given to legal entities by environmental law for conflicts before the judge to the detriment of natural persons.

Conditional capacity and standing of civil society organizations

Capacity and standing are conditions for the admissibility of legal action. Standing refers to the advantage that the plaintiff would obtain if the judge recognized the validity of his claim.18 It is concrete, particularized, actual or imminent. Capacity refers to the legal title conferring on an individual the power to ask the judge to examine his claim.19

In Cameroon, natural or legal persons have an interest in acting in environmental matters.20 Indeed, constitutional law states that ‘Everyone has the right to a healthy environment. The protection of the environment is a duty for all. The State ensures the defense and promotion of the environment’.21 By this provision, constitutional law confers on individuals and legal persons a right to a healthy environment while conferring them the capacity and the standing in the exercise of their constitutional duty of environmental protection.22 However, the capacity and standing to act in environmental matters is conditional, in particular for CSOs. Under the Law on the Environment,23 CSOs must first be approved to exercise the rights recognized for civil parties with regard to the facts constituting an infringement of the provisions of the law and causing direct or indirect damage to the collective interests that they aim to defend.24 Thus, the admissibility of legal action by an association in environmental matters is conditional on the holding of an approval granted by the ministry in charge of the environment, the Ministry of the Environment, Nature Protection and Sustainable Development (Ministère de l'Environnement, de la Protection de la nature et du Developpement Durable, MINEPDED).

This is what happened in the case of the Association Club HSE (Hygiène Sécurité Environnement) v State of Cameroon (Ministry of the Environment, Nature Protection and Sustainable Development) and Gaz du Cameroun.25 In this case, the administrative judge declared the applicant association’s action inadmissible for lack of standing and capacity, basing his decision on article 8(1) and (2) of the Environment Act.26 The HSE club association sought the cancelation of a decision of the MINEPDED that led to the issuance of a certificate of environmental conformity for the construction of a gas pipeline in Douala by Gaz du Cameroun.27 According to the plaintiff, MINEPDED had violated, among other things, the rules prescribed by Decree No. 2013/0171/PM of 14 February 2013 establishing the modalities for conducting environmental and social impact studies, particularly those relating to public consultations and public participation28 prior to a project.29 However, the administrative judge considered that, not having the status of a public body and not being accredited, the HSE association could not meet the capacity and standing requirements to request the annulment of the administrative act that confers the certificate of environmental conformity on a third party, all the more so as it did not bring proof of the personal prejudice resulting from the act in question.30

This discussion highlights the legal rule and its application. But it also raises questions about the extent to which climate litigation in African civil law countries is being recognized. Association Club HSE was brought to challenge the potential local environmental problems arising from the proposed gas pipeline, and none of the parties raised climate change as a factor that should be considered in the public consultation or the decision making. However, this is a challenge to the fossil fuel infrastructure, and could be framed as a climate case; but no one has thought to do this. The problems mentioned are more related to the environmental consequences of the project.31 It would of course be an unsuccessful climate change case as the litigation failed and the pipeline was built,32 as well as laying down an unhelpful rule for other climate cases.

Under these conditions, it is difficult to see the development in Cameroon of successful strategically-brought climate cases such as Save Lamu in Kenya, in which the plaintiff, a CSO, sought the cancellation of an authorization for the realization of a project because of the failure to respect public participation procedures.33 In countries such as South Africa where climate actions have been identified, CSOs have greater scope to act based in the first instance on the Constitution. Section 38 of the South African Constitution mentions that ‘anyone listed in this section has the right to approach a competent court alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights’.34 Furthermore concerning environmental law, section 32(1) of the National Environmental Management Act in South Africa allows any person or group of persons to take legal action in the event of a breach or threatened breach of any provision of the Act or any other statutory instrument relating to the protection of the environment or the use of natural resources.35 They may act in their own interest, in the interest of environmental protection or in the context of group actions.

This restriction undoubtedly explains why the majority of cases in environmental matters or concerning given natural resources are brought by the administration in charge of their management, as is the case in forestry and wildlife matters in Cameroon, where the Ministry of Forests and Wildlife (Ministère des Forêts et de La Faune, MINFOF) has the authority to initiate public action and acts as a civil party in the trial.36 Between 2016 and 2018, 319 court cases in which MINFOF was a party were listed in these matters.37 This does not mean that there cannot be cases between private individuals in forestry or wildlife matters, but they fall under the radar due to the absence of a database tracking them. Unlike countries such as Gabon, where the standing and capacity to act of associations and CSOs in general are recognized without conditions,38 in Cameroon approval considerably limits their access to judges.

Apart from approval, a reading of article 8(2) of the law on the environment also highlights the obligation of associations to contribute to the actions of public and para-public bodies. In fact, according to this article, only approved associations contributing to the actions of these institutions are entitled to exercise the rights recognized for a civil party concerning environmental offences. However, this obligation is an additional condition that limits even more the access of associations to environmental judges.

Thus, it appears that the activism shown by CSOs elsewhere in the world in environmental or climate matters is difficult to achieve in Cameroon because of procedural barriers related to the capacity and standing to act as defined by the law on the environment. However, this is not the only legal barrier in Cameroon. In environmental law, there is a clear prioritization of legal persons, to the detriment of natural persons, for referral to courts in environmental matters.

Prioritization of legal entities for referral to courts in environmental matters

According to article 8(2) of the Law on the Environment, the entities that are entitled to exercise the rights of the civil party in environmental matters are the grassroots communities and approved associations that contribute to the actions of public and para-public bodies. While it is not difficult to know what associations refer to, it is more complex to determine the entity to which the legislator refers when designating grassroots communities. Indeed, the law on the environment does not define such an entity, but makes it an essential actor in the implementation of the national environmental policy alongside decentralized territorial authorities and environmental protection associations.39 Apart from the law on the environment, it is difficult to find any mention of such entities. So, there is clearly some recognition that there should be a broader range of actors that can exercise rights in this context. What is less clear is exactly who these entities are. Does it include, for example, the peasant forest committees set up within the legal framework of forest protection and that participate and are the spokespersons of the population during the process of classifying a forest?40 What differentiates a grassroots community from a simple community? What are its constitutive elements? What is its legal personality? These are some questions raised by the mention of a grassroots community, which can lead to the inadmissibility of legal actions brought by communities.

Moreover, the reference to grassroots communities raises the question of the Law’s conformity with the Constitution. Indeed, in its preamble, the Constitution gives every person, natural or legal, the duty to protect the environment.41 On reading it, it does not appear that this duty was to be exercised through other entities, given that the preamble grants everyone the right to a healthy environment. Therefore, since everyone has this right, they are also expected to act to protect the environment. However, the law on the environment obliges individuals to turn to grassroots communities and approved associations to exercise the rights recognized for the civil party. In order to respect constitutional law (that is superior to the law on the environment in terms of the hierarchy of norms) one would have expected that the right to take legal action would also be mentioned as an individual right of any natural person beyond the other entities likely to bring a case before an environmental judge. On reading this provision, the legislator seems to have considered that civil action in environmental matters could be better exercised only by persons grouped in communities and not in an individualized manner. This interpretation limits the access of natural persons to environmental judges. It thus goes against the spirit of the preamble of the Constitution, which seems to give to each person, physical or moral, the duty to act by themselves for the protection of the environment.

Thus, given the conditional capacity and standing of CSOs and the prioritization of legal entities over natural persons for referral to environmental judges, environmental protection actors face considerable constraints that discourage pursuing litigation as a sole strategy for climate justice. As discussed above, there may be more instances of climate litigation in Cameroon that have been recognized (depending on which definition and framing one uses). However, given the poor prospects of such cases, it is clear why environmental justice in general and climate justice in particular is sought by other kinds of political engagement.

Civil society actions for environmental and climate justice in Cameroon

In the context of this chapter, we understand environmental justice as depending on a set of actions carried out by different actors in favour of environmental protection. In terms of climate change, we are talking about actions that contribute to the fight against climate change, such as the reduction of greenhouse gas (GHG) emissions, adaptation to the effects observed or even the capacity building of institutions for adaptation or mitigation actions. As we shall now explore, in general CSOs in Cameroon carry out awareness-raising actions and technical, financial and/or material support to local communities and indigenous populations as well as to law enforcement agencies. Finally, they also carry out advocacy and the monitoring of legality in the exploitation and management of natural resources.

Awareness-raising actions and sharing knowledge

In Cameroon, different groups of actors are not always aware of their rights in terms of natural resource management. This is the case for indigenous populations and local communities whose rights in relation to logging, for example, are not always effectively controlled. This is why organizations such as the Center for Environment and Development (CED) have developed various guides in this regard.42 In addition, organizations such as the Service d’Appui aux Initiatives Locales de Développement (SAILD), in partnership with the Friedrich Ebert Foundation, initiated training for journalists on international climate negotiations in the run-up to COP 26.43 This training aimed to provide journalists with the basis for a good understanding of the stakes in the climate negotiations at the international, regional and national levels in order to allow for better media coverage.44 Finally, as part of the awareness and knowledge-sharing actions, we should also mention the CI4CA organization, which initiated the building of a bridge between the traditional knowledge of indigenous populations and students in order to highlight the impact of climate change on forest communities and encourage them to protect the environment.45

Technical, financial and/or material support to local communities and law enforcement agencies

As an example of such support, the Forests and Rural Development Association (Forêts et Developpement Rural, FODER) supports communities by providing improved stoves to women living along the Benue National Park. After noticing that the traditional fireplaces used by women in these areas expose them to various health problems, due to smoke and harmful particles, and that they contribute to the abusive cutting of firewood, this organization has set up an improved earthen fireplace that uses wood rationally and produces less smoke.46 Other organizations such as the Field Legality Advisory Group (FLAG), with support from the World Resources Institute, supports natural resource law enforcement agencies. This is the case with training for forestry administration on the Open Timber Portal (OTP).47 This is a platform that promotes transparency and legality in the marketing of timber through the provision of various kinds of information, including legal documents regarding exploitation by companies, or CSO denunciations of the illegal operations of a given company. This information is useful to government officials who can easily carry out their powers.

Advocacy

Some organizations are also involved in advocacy on environmental and climate issues. This is, for example, the case with SAILD, which organized a workshop to prepare the advocacy of civil society for its participation in the COP15 of the United Nations Convention to Combat Desertification, which was held in May 2022 in Côte d’Ivoire48 – in particular promoting agroecology as a solution to desertification. An other organization, Green Development Advocates (GDA), has mobilized civil society to strengthen the development and implementation of actions to combat climate change in Cameroon.49 Among other things, it is asking the government to integrate the consideration of climate change in the realization of environmental and social impact studies.

Monitor the legality of the exploitation and management of natural resources

For more than 20 years, Cameroonian CSOs have been involved in monitoring the legality of the exploitation and management of natural resources through a mechanism called ‘independent monitoring’. Defined as a set of activities to monitor the management of natural resources and the environment conducted by third parties,50 independent monitoring first developed in the forestry sector. The first experience of independent forest monitoring was in Cambodia and was undertaken by Global Witness, which was responsible for ensuring accurate and timely reporting of forest offences.51 Despite the positive results of the increased documentation of significant forest crimes and exposure of weak government action, including collusion with illegal logging, the Cambodian government was increasingly reluctant to work with Global Witness.52 This led to the suspension of the independent observation project in that country. However, this experience was appreciated by donors who wanted independent monitoring to be implemented in Cameroon in the 2000s.53 This choice was justified by the context of structural adjustment in the country; it had resources, such as forests, the exploitation of which was supposed to bring in revenue, but this was considerably undermined by corruption.54 Thus, Global Witness and other organizations such as Resources Extraction Monitoring and the AGRECO-CEW consortium have succeeded each other from 2000 to 2012 as independent monitors of the legality and exploitation of forests in Cameroon, governed by a memorandum of understanding signed with the administration in charge of forests.55

Since then, non-mandated independent forest monitoring has developed as no organization has a mandate from the forest administration in Cameroon. In practice, independent monitors, whether acting on a mandate or not, analyse official documentation related to forests and visit logging sites or timber transport routes to identify potential problems.56 They publish reports on the facts observed and recommend solutions. In addition, they follow up on observed forestry infractions. In Cameroon, for example, mandated independent monitoring has led to the sanctioning of the Hazim forestry company in 2000 and a fine of nearly €4 million in 2002, the highlighting of the most common illegalities in the sector57 and even the cancellation of forest titles.58

As for independent, non-mandated or so-called external observation, FODER reports have led to seizures of timber, temporary suspensions of logging permits, legal proceedings against companies for unauthorized logging, and even sanctions against agents of the MINFOF.59 Others, such as FLAG, have highlighted several of MINFOF’s shortcomings in the management of forestry and wildlife litigation, such as the non-respect for procedural rules for the settlement of forestry disputes, while quantifying the volume of forestry and wildlife litigation in Cameroon.60 This shows the importance of independent monitoring in the quest for the sustainable management and exploitation of natural resources in Cameroon.

In light of the emergence of new issues, independent monitoring actors are adapting monitoring to the specificities of given sectors. This is how the independent monitoring of mines developed,61 and is developing for wildlife62 and REDD+.63 FLAG contributed to the development of a REDD+ observation methodology in the Democratic Republic of Congo.64 It resulted in the definition of scopes of application for independent monitoring of REDD (reducing emissions from deforestation and forest degradation) including the legality of REDD+ projects, social and environmental safeguards, grievance redress and benefit distribution mechanisms, as well as the development of a methodology, several diagnostic matrices and checklists comprised of indicators to evaluate performance.65

Transparency International has also developed a guide to independent monitoring of REDD+ governance for civil society organizations.66 This guide aims to provide the latter with an overview of the main steps and considerations in the design and implementation of independent observation systems for REDD+ governance.67 It is also envisaged to extend the independent monitoring to nationally determined contributions in order to monitor their implementation.68

The actions of civil society organizations in Cameroon are therefore considerable despite the obstacles to the development of judicial activism. This makes it possible to envisage ways of achieving climate justice – for instance by ensuring proper safeguards are in place, and that carbon reduction projects are run ethically and fairly – that are not limited to litigation.

The possibilities of developing climate litigation in Cameroon

So far, this chapter has examined both the procedural constraints that limit climate cases in an African civil law country, but also highlighted how well-developed civil society environmental protection work is in this context. Finally, it is necessary to consider what role these might play in growing a climate justice movement using more litigation. Given the legal context in Cameroon, the development of climate litigation requires looking beyond associations to other actors and examining the type of litigation that can be conducted. However, this can only really take place if civil society actions in terms of independent monitoring of climate change issues are intensified.

Identification of claimants and type of litigation

In Cameroon, the judicial organization is based on three jurisdictional branches – judicial, administrative and jurisdictions not attached to a specific order.69 Within the judicial branch, there are courts, such as the courts of first instance and higher courts, that deal with civil and criminal cases.70 In the administrative branch, there are jurisdictions such as the administrative courts, which hear in first instance appeals for annulment on the grounds of excess of power, actions for compensation for damage caused by an administrative act, or contractual disputes, with the exception of those concluded even implicitly under private law.71 Finally, in the branch of jurisdictions not attached to the judiciary or the administration, we find the Constitutional Council and the High Court of Justice.72

In other countries, climate litigation is characterized by the seeking of the annulment of administrative acts that are taken without consideration of the climatic risks.73 So it is possible to envisage, in Cameroon also, the development of climate litigation before the administrative courts. This might challenge the legality of specific administrative acts or seek compensation for damage caused by an administrative act that contributes to amplifying the harmful consequences of climate change, and be undertaken by actors other than associations, such as natural persons with an interest in acting, that is those directly impacted by the contested administrative act.

Moreover, given the jurisdiction of administrative courts in Cameroon, applications for the annulment of decisions for excess of power can be initiated, as in the case of Commune de Grande Synthe v France.74 In this case, the Commune de Grande Synthe brought proceedings in relation to the inaction kept by the President of the Republic and other governmental authorities on its request for appropriate measures to curb the growth of GHG emissions on the national territory.75 It was argued that this silence implicitly constituted a rejection of the request. This was based on Cameroon’s vulnerability to climate change due to its immediate proximity to the coast and the physical characteristics of its territory.76

In Cameroon, cities are decentralized territorial authorities that enjoy administrative and financial autonomy.77 So, the chief executive of a city is empowered to represent the interests of this entity before the law.78 Thus, a city that is particularly vulnerable to climate change can validly bring before the administrative judge a request for the annulment of an act of the central administration for excess of power. The same applies to the region, which is the second largest decentralized territorial authority in Cameroon.79

In addition to the administrative judge, the courts of the judicial branch may also be utilized by individuals. Indeed, the latter generally attempt to establish the responsibility of companies in environmental matters. That was the case in Atangana v Paterson Zochonis, in which the plaintiff complained of the nauseating odours emitted by the hide processing company near his home, making his house uninhabitable.80 Olfactory nuisances are sanctioned by the framework law on the environment in article 61,81 and the company was ordered to pay in damages a sum of CFAF 8,500,000.82 So, the civil liability of companies can effectively be engaged in Cameroon in environmental matters by natural persons who are able to demonstrate their interest and capacity to act, where there is also a causal link between the act reproached and the damage caused to the defendant. Therefore, cases like that of Mr Lliuya against the German company RWE could potentially see the light of day in Cameroon. In this case, Lliuya brought an action before the District Court of Essen in Germany to hold RWE responsible for the risk of flooding due to the rise in the level of Lake Palcacocha, which contributed to damage to his home.83 The court considered that the specific cause of this situation was RWE’s GHG emissions, based on provisions relating to neighbourhood disturbance in Germany.84

Although interesting and possible in principle, given that Cameroon’s environmental litigation already includes cases arising in nuisance, as in the Atangana case mentioned above, this may not be enough. It would be difficult to see this type of case develop in Cameroon because of the need for advanced scientific expertise to prove the connection between the defendant’s conduct and the harm. In this context it could be easier to frame a case on the environmental consequences of companies’ exploitation and mention alternatively the link between the exploitation and climate change and its consequences. In Cameroon, cases like this could target carbon major companies listed in Richard Heede’s research on GHG emissions among those companies already registered in Cameroon. For example, CIMENCAM is a cement industry company that is the local subsidiary of the Lafarge Holcim group mentioned in the report.85

It would be more obvious to look for ways to develop climate litigation from the most prolific environmental litigation within the country, that is forestry and wildlife litigation. Indeed, one could argue that, as argued in the literature, any litigation and activism relating to forestry is part of the African model of climate litigation.86 Indeed, between 2016 and 2018, 1,036 cases were recorded in forestry and wildlife matters, including 319 cases in court and 717 cases monitored by MINFOF.87 These cases are being brought by the forestry administration against illegal loggers. First of all, because deforestation contributes to climate change, any legal challenges to logging have the potential to demonstrate a legal challenge to activities that contribute to climate change. So there may already be a category of climate cases in Cameroon arising from this. But also, this indicates a potential on which to build. For example, MINFOF could be supported in legal proceedings involving illegal forest exploitation by a company or a person in order to highlight the consequences of this act on carbon sequestration by the forest as extending carbon retention in harvested wood products. This is considered as a mitigation option by the Intergovernmental Panel on Climate Change.88 Given the existing problem of deforestation, and the beginnings of litigation about logging, this is the most likely area in which Cameroonian climate litigation might start to develop.

Though access to justice is conditional for CSOs in Cameroon, slight opportunities may have opened following the judgment of the Court of First Instance of Batibo in FEDEV v China Road and Bridge Corpn.89 In this case, the Foundation for Environment and Development (FEDEV) – an NGO located in Bamenda in Cameroon – brought an action against the respondent because it polluted land along the road it was building.90 The judge intimated that FEDEV had no locus standi based on section 8(1) and (2) of the environmental law.91 He argued that the applicant ought to have liaised up with a grassroots organization proximate to the community directly affected by the environmental nuisance.92 However, the court was reminded that in addressing its mind to section 8, it should focus on the words ‘common good’, which should be examined alongside public interest.93 In the court’s opinion, any individual or association can bring an action in court on behalf of the public at large if ‘public interest’ is affected.94 Therefore, the judge recognized the locus standi of FEDEV. From this case, it appears that CSOs could in future base their arguments on the public interest to avoid the obstacle of approval by the minister in charge of the environment.

Strengthening of civil society actions in terms of independent monitoring of climate change issues

Civil society organizations that monitor play an informative role. They highlight governance problems or indications of illegalities in the natural resource sector. As mentioned earlier, these actions have so far contributed to several changes in the natural resource management sector. But it is not just the case that civil society activities replace formal litigation processes in civil law countries. The reports produced by these organizations can be used as evidence in legal proceedings. In the case of mandated independent monitoring, for example, a report can be cited as evidence because the organization has a collaborative framework with MINFOF. Continuing the example of illegal logging activities referred to above, such a framework would give the CSO access to the logging titles of loggers.

The potential problem with this is that the integrity of the evidence from an independent, non-mandated observation may be questionable, given that CSOs do not always have access to sites. For example, an unauthorized independent observation report highlighting illegal logging and its impact on the climate could be challenged by the perpetrator on the basis that the evidence was not collected with an official mandate. However, in other situations, the productions of independent observers could support claimants’ arguments. These could, for example, be reports or analysis notes presenting the administration’s failures in the implementation of climate change adaptation measures. It is therefore necessary for CSOs to take an even greater interest in monitoring climate change aspects. For this purpose, training on climate change is essential, as well as the support of donors for the financing of monitoring actions.

Conclusion

The development of climate litigation in Cameroon faces many obstacles, due to limited access to the courts. Apart from the interest and capacity to act of CSOs conditioned by the approval and participation in the activities of public or semi-public bodies, environmental law gives priority to legal entities as entities likely to bring environmental matters before the judge. Despite this context, civil society actors carry out various types of activities to contribute to the protection of the environment and the fight against climate change. This includes advocacy, awareness raising, but also the monitoring of legality in the management of natural resources, especially forestry. Moreover, some openings seem to be possible for the development of climate litigation, such as actions brought by public authorities or civil liability actions initiated by individuals. It may also be that more indirect litigation around the protection of these natural resources becomes – or becomes recognized – as a more typical model of climate litigation in Cameroon.

Either way, in this architecture, the role of CSOs continues to be crucial in that the information they obtain during their investigations can be used as evidence to support given arguments. In such a context, the fight for climate justice appears to be more easily achievable through the actions already implemented by CSOs on the ground.

1

The author thanks the editors of this book for their comments that helped improve this chapter. The ideas in this chapter are the responsibility of the author and do not reflect those of the Field Legality Advisory Group (FLAG).

2

Among the first cases City of Los Angeles v National Highway Transportation Safety Administration et al, 912 F2d 478 (DC Circ. Court of Appeal) 1990.

3

J Setzer and C Higham (2022), Global Trends in Climate Change Litigation: 2021 Snapshot Policy Report, 2022, p. 10.

4

C Cournil and L Varison (eds), Les procès climatiques. Entre le national et l’international (Editions A Pedone 2018) 20.

5

Setzer and Higham (n 3), 10.

6

East African Court of Justice, Center for Food and Adequate Living Rights v Tanzania and Uganda, 2020.

7

High Court of South Africa Gauteng Division, Pretoria, South Durban Community Environmental alliance v Minister of Environment, Forestry and Fisheries, Founding Affidavit, 2021; High Court of South Africa Gauteng Division, Pretoria, SDCEA & Groundwork v Minister of Forestry, Fisheries and the Environment, Founding Affidavit, 2021; High Court of South Africa, Western Cape Division, Cape Town, Philippi Horticultural Area Food & Farming Campaign v MEC for Local Government, Environmental Affairs and Development Planning: Western Cape, Judgement, Case No. 16779/17; High Court of South Africa Gauteng Division, Pretoria, The Trustees for the time being of Groundwork Trust v The Minister of Environmental Affairs, Case No. 54087/17, 2017; High Court of South Africa Gauteng Division, Pretoria, The Trustees for the time being of Groundwork Trust v The Minister of Environmental Affairs et al, Case No. 61561/17, 2017; High Court of South Africa Gauteng Division, Pretoria, Earthlife Africa Johannesburg v Minister of Environmental Affairs, Judgement, Case No. 65662/16, 8 March 2017.

8

Federal High Court of Nigeria, Jonah Gbemre v Shell Petroleum Development Co. of Nigeria Ltd, FHC/B/CS/53/05, 14 November 2005.

9

National Environmental Tribunal, Save Lamu v National Environmental Management Authority and Amu Power Co. Ltd, No. 196, 2016.

10

High Court of Uganda Holden, Mbabazi v The Attorney General and National Environmental Management Authority, Civil Suit No. 283 of 2012, 28 August 2015.

11

Several renowned jurists, noting this situation, have also identified possible avenues of litigation on the continent, such as the fuel-based electrical energy sector, the exploitation of oil resources or the phenomenon of land-grabbing. Others think that an adjustment of the ‘lens’ through which we view climate litigation helps reveal notable case law developments in the Global South including Africa. LJ Kotzé and A Du Plessis, `Putting Africa on the Stand: A bird’s eye view of climate litigation on the continent` (2020) 50(3) Environmental Law 615–63; J Peel and J Lin, ‘Transnational Climate Litigation: The Contribution of The Global South’ (2019) 11(4) The American Journal of International Law 701; K Bouwer and T-L Field, ‘The Emergence of Climate Litigation in Africa’ (2021) 15(2) Carbon & Climate Law Review 123–8.

12

E Abwe et al, ‘Recours pour la suspension du processus de classement de deux unités forestières d’aménagement dans la forêt d’Ebo et l’initiation d’un processus plus inclusif de planification de l’utilisation des terres’, Letter, 28 April 2020, https://www.globalwildlife.org/wp-content/uploads/2020/04/French_version_Letter_GoC_Ebo_Forest.pdf, accessed 3 September 2022.

13

Abwe (n 12), 1.

14

Congo Basin Forest Partnership (CBFP), ‘Cameroon cancels logging plan that threatened rare apes-reuters’, CPBF, https://pfbc-cbfp.org/news-partner/apes-reuters.html, accessed 3 September 2022.

15

However, the Prime Minister finally proceeded to the classification of a part of the Ebo’o Forest through the decree n° 2023/01630/PM of the 27th April 2023. Even though he added a new article mentioning that studies will be conducted to identify activities to protect the climate, this decree is contested by civil society in Cameroon.

16

JM Tchakoua, ‘La question environnementale dans le système juridique du Cameroun’ in O Ruppel and E Kam Yogo (eds), Environmental Law and Policy in Cameroon. Towards Making Africa the Three of Life (PUCAC 2018) 108.

17

Tchakoua (n 16), 112.

18

S Guinchard and T Debard, Lexique des termes juridiques 2017–2018 (Dalloz 2017) 25th edn 1051.

19

Guinchard and Debard (n 18), 1530.

20

Preamble of Law No. 96/06 of 18 January 1996 revising the Constitution of 2 June 1972, amended and supplemented by Law No. 2008/001 of 14 April 2008.

21

Preamble of Law No. 96/06.

22

A Nyetam Tamga, ‘Les tendances de la jurisprudence administrative camerounaise en matière d’environnement’ (2020) 5 Revue Africaine de Droit de l’Environnement 185.

23

Section 8(2) of Law No. 96/12 of 5 August 1996, establishing a framework law on environmental management in Cameroon (hereinafter referred to as the Law on the environment).

24

Article 8(2), Law No. 96/12: ‘the grassroots communities and the approved associations contributing to any action of the public and semi-public organisms having for object the protection of the environment, can exercise the rights recognized to the civil party as regards the facts constituting an infringement of the provisions of the present law and its texts of application, and causing a direct or indirect damage to the collective interests which they have for object to defend’.

25

Administrative Court of Douala, Affaire Association club HSE v Etat du Cameroun (MINEPDED) et Gaz du Cameroun, Annulation du certificat de conformité environnementale, 26 mai 2016 referenced by Nyetam Tamga (n 22), 185.

26

Nyetam Tamga (n 22), 185.

27

Nyetam Tamga (n 22).

28

Article 20(2) and (3), Decree No. 2013/0171/PM of 14 February 2013, establishing the modalities for conducting environmental and social impact studies. It states that: ‘(2) The public consultation consists of meetings during the study, in the localities affected by the project. (3) The public hearing is intended to publicize the study, to record any objections and to allow the population to express its opinion on the conclusions of the study’.

29

Nyetam Tamga (n 22), 186.

30

Nyetam Tamga (n 22).

31

Investir au Cameroun (2014), Un Collectif demande au Parlement camerounais d’empêcher la construction d’un gazodu de 17 km à Douala, https://www.investiraucameroun.com/energie/2205-5334-un-collectif-demande-au-parlement-camerounais-d-empecher-la-construction-d-un-gazoduc-de-17-km-a-douala, accessed on 2 May 2023.

32

In December 2016, Gaz du Cameroun announced the completion of Phase II and III of the Bonaberi pipeline extension programme where a total of 15 km of gas pipeline was laid, including spur lines and metering points. Cf. Gaz du Cameroun, Bonaberi-Pipeline Extension Case Study, https://www.gazducameroun.com/case-studies/bonaberi-pipeline-extension-case-study/, accessed on 30 April 2023.

33

National Environmental Tribunal, Save Lamu v National Environmental Management Authority and Amu Power Co. Ltd, No. 196, 2016.

34

Constitution of South Africa 1996.

35

‘Any person or group of persons may seek appropriate relief in respect of any breach or threatened breach of any provision of this Act. Including a principle contained in chapter 1, or any other statutory provision concerned with the protection of the environment or the use of natural resources (a) in that person’s or group of person’s own inters; (b) in the interest of, or on behalf of, a person who is, for practical reasons, unable to institute such proceedings; (c) in the interest of or on behalf of a group or class of persons whose interests are affected; (d) in the public interest; and (e) in the interest of protecting the environment’.

36

Article 147, Law No. 94–01 of 20 January 1994 on the regime of forests, wildlife and fisheries. ‘In the absence of a settlement or in the event of non-execution of the settlement, and after prior notice to the offender, public action is initiated within seventy-two (72) hours at the request of the administrations in charge of forests, wildlife and fisheries, as the case may be, which are parties to the proceedings’.

37

N Horline, D Owona and M Feudjeu, Sommier des infractions forestières et fauniques au Cameroun: Le reflet de la gestion du contentieux forestier et faunique, Note d’analyse (2021), p. 13.

38

Article 14, Law No. 007/2014 on the protection of the environment in the Gabonese Republic. This article states ‘The associations for the defense of the environment, independently of the citizens concerned by certain projects or certain measures, can take legal action against any decision likely to harm the environment. They can also constitute civil party before the repressive jurisdictions’.

39

Article 3 of the framework law on the environment states: ‘The President of the Republic defines national environmental policy. Its implementation is the responsibility of the Government, which applies it in concert with the decentralized territorial authorities, the grassroots communities and the environmental protection associations’.

40

Procedures for the classification of forests in the permanent forest estate of the Republic of Cameroon, November 1999.

41

Law No. 96/06 of 18 January 1996 revising the Constitution of 2 June 1972, amended and supplemented by Law No. 2008/001 of 14 April 2008.

42

F Same et al, Guide simplifié d’observation externe des forêts à l’usage des communautés, Guide, https://cedcameroun.org/?project=guide-simplifie-dobservationexterne-des-forets-a-lusagedes-communautes, accessed 1 November 2022.

43

SAILD, ‘Journalists Trained on International Climate Negotiations’’, SAILD, 29 October 2021, https://www.saild.org/en/les-journalistes-a-lecole-des-negociations-internationales-sur-le-climat/, accessed 1 November 2022.

44

SAILD (n 43).

45

CI4CA, ‘Programme scolaire Green Classes’, Facebook watch, https://m.facebook.com/ci4ca/videos/472839994119704/?locale=ne_NP, accessed 1 November 2022.

46

FODER, ‘Des foyers améliorés pour faciliter la vie des femmes riveraines du Parc National de la Benoué-Région du Nord Cameroun’ FODER, 6 June 2022, https://forest4dev.org/des-foyers-ameliores-pour-faciliter-la-vie-des-femmes-riveraines-du-parc-nationale-de-la-benoue-region-du-nord-cameroun/, accessed 1 November 2022.

47

FLAG, ‘Exploitation forestière illégale: Les étudiants et enseignants de l’ENEF se forment à l’utilisation des plateformes OTP, Forest Watcher et Atlas forestier interactif du Cameroun’, LinkedIn, 2022, https://www.linkedin.com/posts/flag-cameroon_formation-activity-6981469691772817408-i4td?utm_source=share&utm_medium=member_desktop, accessed 1 November 2022.

48

SAILD, ‘Cameroon’s Civil Society Prepares Its Advocacy Against Desertification’’, SAILD, 30 March, 2022, https://www.saild.org/en/la-societe-civile-du-cameroun-prepare-son-plaidoyer-contre-la-desertification/, accessed 1 November 2022,

49

GDA, ‘Atelier de mobilisation des organisations et réseaux de la société civile pour renforcer l’élaboration et la mise en oeuvre des actions de lutte contre le changement climatique au Cameroun_Communiqué final’, GDA, 5 November 2021, https://gdacameroon.org/atelier-de-mobilisation-des-organisations-et-reseaux-de-la-societe-civile-pour-renforcer-lelaboration-et-la-mise-en-oeuvre-des-actions-de-lutte-contre-le-changement-climatique-au-cameroun-_/, accessed 1 November 2022.

50

Plateforme africaine d’Observation indépendante, Flyer, https://pa-oi.org/wp-content/uploads/simple-file-list/Finale-version-Plaquette-PA-OI1.pdf, accessed 4 October 2022.

51

Marie Vallée et al, ‘Independent forest monitoring in the Congo Basin: Taking stock and thinking ahead’, Working Paper, March 2022, p. 4.

52

Vallée (n 51).

53

Vallée (n 51).

54

Cameroon ranked last in Transparency International’s Corruption Perceptions Index in 1998. Cf. Transparency International, The Transparency International Corruption Perceptions Index 1999- Framework Document (October 1999), p. 23.

55

Vallée (n 51), 4.

56

Vallée (n 51), 8.

57

These included non-payment of taxes, geographic relocation of logging titles, logging under the guise of fictitious development projects, off-limit logging, and timber laundering using transport and processing documents. Some of these illegalities are still visible today, notably the geographic relocation of forest titles. Cf. Clarisse Fombana, Problématique de l’attribution des titres forestiers au Cameroun: la délocalisation géographique des ventes de coupe, Présentation de l’organisation SAILD, Forum sur la Gouvernance forestière, République du Congo, 2022, https://cidt.org.uk/wp-content/uploads/2022/06/Session-7B-PPT3-Problematique-de-lexploitation-forestiere-illegale-dans-les-forets-du-domaine-nationale-cas-de-la-delocalisation-geographique-des-ventes-de-coupe-Clarisse-Fombaba.pdf; REM, Evolution du contrôle et des sanctions de l’exploitation forestière illégale au Cameroun, Rapport, Bilan mars 2005-décembre 2009, p. 2.

58

The AGRECO-CEW consortium allowed the cancellation of 15 Timber Recovery Permits (TRP) and Timber Removal Permits (TRP) following a mission to ensure the effective termination of activities in these small forest titles. Cf. AGRECO-CEW (2012) Rapport technique No. 5 du 1er janvier au 30 juin 2012, Observateur indépendant au contrôle et au suivi des infractions forestières au Cameroun, Report, p. 12.

59

Vallée (n 51), 14.

60

Law No. 94/01 of 20 January 1994 on the regime of forests, fauna and fisheries stipulates in its art. 147 that in the absence of a transaction and a prior formal notice to the offender, the Ministry of Forests and Fauna shall initiate public action within 72 hours. However, when analysing the Ministry’s list of forest and wildlife infractions, which contains the cases in court and the litigation pending at the Ministry for a given period, FLAG found several cases that had already been the subject of a formal notice but that were not followed by legal action after the 72-hour deadline. For more information see Horline, Owona and Feudjeu (n 37), 21.

61

FODER, ‘’Les comités de veille citoyenne dans la gestion des ressources minières se partagent les expériences’’, FODER, 2022, https://forest4dev.org/les-comites-de-veille-citoyenne-cvc-dans-la-gestion-des-ressources-minieres-se-partagent-les-experiences/, accessed 4 October 2022.

62

FLAG has developed an approach for independent monitoring of illegal wildlife exploitation activities by communities bordering protected areas. It consists of training communities living near protected areas on simplified monitoring techniques and methods while relying on their experience and knowledge of the area to promote better wildlife monitoring and contribute to the fight against poaching. Cf. FLAG, ‘Surveillance faunique: FLAG aux côtés des riverains de la Réserve de Biosphère du Dja (Sud Cameroun)’, Facebook, https://web.facebook.com/OngFLAG/?_rdc=1&_rdr, accessed 4 October 2022.

63

The role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries.

64

EU REDD Facility, Independent Monitoring in the forest sector: moving beyond law enforcement, Policy Brief (2021), p. 6.

65

EU REDD Facility (n 64).

66

Transparency International, Observation indépendante de la gouvernance de la REDD+. Guide à destination des organisations de la société civile, Guide (2019), p. 2.

67

Transparency International (n 54).

68

EU REDD Facility (n 64), 10.

69

YR Kalieu Elongo, ‘Organisation judiciaire du Cameroun’ in Issa Sayegh Joseph (ed), Répertoire quinquennal OHADA 2006–2010, vol. 1 (Association pour l’Unification du Droit en Afrique 2010) 96.

70

Law No. 2006/015 of 29 December 2006 on judicial organization.

71

Article 2(3), Law No. 2006/022 of 29 December 2006 fixing the organization and functioning of the administrative courts: ‘Administrative litigation includes: a) appeals for annulment on the grounds of excess of power and, in non-criminal matters, incidental appeals for assessment of legality. The following constitute abuse of power within the meaning of this article – the violation of a legal or regulatory provision; – the misuse of power. b) actions for compensation for damage caused by an administrative act; c) disputes concerning contracts (with the exception of those concluded even implicitly under private law) or public service concessions; d) disputes concerning the public domain; e) disputes concerning law enforcement operations.

72

Elongo (n 69), 96.

73

For example Earthlife Africa Johannesburg v Minister of Environmental Affairs, p. 3.

74

Conseil d’Etat, Commune de Grande Synthe et autre c/ France, No. 427301, November 2020.

75

Conseil d’Etat, Commune de Grande Synthe et autre c/ France, p. 1.

76

Conseil d’Etat, Commune de Grande Synthe et autre c/ France, p. 4.

77

Article 8, Law No. 2019/024 of 24 December 2019 on the general code of decentralized territorial authorities.

78

Article 13(2), Law No. 2019/024 of 24 December 2019 on the general code of decentralized territorial authorities: ‘The Head of the Executive represents the Territorial Collectivity in civil life and in justice’.

79

Article 2(1), Law No. 2019/024 of 24 December 2019 on the General Code of decentralized territorial authorities: ‘The Territorial Authorities of the Republic are the Regions and the Cities’.

80

P Oumba, ‘L’encadrement du contentieux civil environnemental au Cameroun et en République Démocratique du Congo’ (2020) 5 Revue Africaine de Droit de l’Environnement 131.

81

It states that: ‘(1) The emission of noise and odours which are likely to be injurious to human health, constitute an excessive nuisance to the neighbourhood or harm the environment shall be prohibited. (2) The persons responsible for such emissions shall take all necessary steps to suppress, prevent or limit their spread unnecessarily or through lack of precaution. (3) Where warranted by the urgency of the situation, municipalities shall take all enforceable measures to to stop the disturbance. In case of necessity, they may request the assistance of the public force’.

82

Oumba (n 80), 135.

83

District Court Essen, Saul Ananias Luciano Lliuya v RWE AG, 2 O 285/15, 15 December 2016, p. 2.

84

Saul Ananias Luciano Lliuya, p. 5.

85

R Heede, Carbon Majors: Accounting for carbon and methane emissions 1854–2010. Methods & Results Report (2014), p. 9.

86

See, for example, Bouwer and Field (n 11), 123–8.

87

Horline, Owona and Feudjeu (n 37), 13.

88

GJ Nabuurs et al, ‘Forestry’ in B Metz et al (eds), Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2007) 543.

89

Batibo Court of First Instance, FEDEV v China Road and Bridge Corpn, Judgment No CFB/004/09 (unreported). Cf. FJ Achu, ‘The Law in Cameroon and the Vexing Problems of Ground Water Pollution’ (2019) 2(4) Scholars International Journal of Law, Crime and Justice 106.

90

MC Monoji, ‘The Judiciary and Compliance and Enforcement of Corporate Environmental Governance in Cameroon: A Critical Appraisal’ (2022) 1(2) Justice and Law Bulletin 43.

91

Achu (n 89), 106.

92

Achu (n 89).

93

Monoji (n 90), 44.

94

Achu (n 89), 106.

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