Intergenerational Equity for Climate Justice in Africa: The Role of Activism and Climate Litigation

Africa is bearing the brunt of the climate crisis despite its minimal contribution to it. The continent is heating up slightly faster than the rest of the world, placing children in 98% of African countries at high or extremely high risk from climate impacts. Prolonged droughts in the Horn of Africa and southern Africa, along with intensifying cyclones and floods are devastating communities and threatening the survival of current and future generations. Addressing these challenges requires adopting a human rights and justice-based approach to development and climate action across the region.

Climate justice demands equitable solutions to the climate crisis, ensuring fairness in mitigation and adaptation measures, particularly as climate change disproportionately affects vulnerable communities. One significant pathway toward achieving fairness is through intergenerational equity, an international environmental law principle requiring that environmental and economic development decisions today should not compromise the ability of future generations to meet their own needs.

Who are the 'future generations'?

The definition of 'future generations' varies. Some define them as today's children, while others consider them as 'those that come into existence after all those now living have ceased to exist' (Weston 2023). The Maastricht Principles on the Human Rights of Future Generations define 'future generations' as those 'generations that do not yet exist but will exist and who will inherit the Earth.' For this post, future generations encompass today's children and their descendants extending into the future.

This post explores intergenerational equity as a tool for safeguarding climate justice for future generations in Africa, highlighting legal frameworks, youth activism, and the role that climate litigation can play in enhancing intergenerational equity in climate decision-making.

Why is intergenerational equity key in realising climate justice?

Our planet is heating at an alarming rate, significantly impacting current and future human life. Africa is disproportionately bearing the brunt of the climate crisis, with vulnerable groups, particularly children, being disproportionately impacted. Floods, cyclones, prolonged droughts, and extreme weather conditions continue to threaten the full realisation of human rights for Africa's children and their descendants.

Research indicates that one billion children globally are at extremely high risk from the impacts of climate change, a clear threat to their survival. According to UNICEF's Children's Climate Risk Index, children in Africa are extraordinarily vulnerable, with 39 out of 49 African countries classified as high or extremely high risk regarding exposure and vulnerability to cyclones, water scarcity, diseases, droughts, river and coastal floods, among other climate impacts.

Future generations have little to no influence over current climate decision-making, yet they stand to bear the worst impacts of a climate crisis they did not cause.

The IPCC's Second Assessment Report (1995) highlighted the critical importance of intergenerational equity in present-day climate change decision-making. It emphasised that climate change will likely impose costs on future generations who cannot currently influence today's climate policies affecting their well-being. Further, the report argues that due to the intertemporal aspects of climate change policies, it might not be possible to compensate future generations if the economic analytical tools, such as discounting, that inform policies do not consider intergenerational equity, since mitigation costs often come earlier than the benefits of avoided damages. This then places a moral and, increasingly, a legal obligation on present generations to ensure a liveable, healthy, and sustainable planet for future generations.

Further, according to the Maastricht Principles on the Human Rights of Future Generations, international human rights law applies to all persons, with no generational limitations. Consequently, States and duty bearers must safeguard the rights to survival, life, and a clean, healthy, and sustainable environment, as recognised under international human rights law (Article 6 of the CRC, Article 3 of the UDHR, and Article 24 of the African Charter on Human and People's Rights respectively). Therefore, States bear a moral and legal obligation to ensure that climate mitigation and adaptation measures—and their urgency—do not deprive today's children and their descendants of a liveable, healthy, and sustainable planet.

The rise of intergenerational equity in Africa's pursuit of climate justice

At the international level, the 1972 Stockholm Declaration (principles 1 and 2) and 1987 Brundtland Report laid the groundwork for the recognition and development of intergenerational equity as a principle of international environmental law. Since then, intergenerational equity has been incorporated as a key principle in subsequent international environmental and climate change instruments including the 1992 Rio Declaration and the 1994 UNFCCC (Article 3 (1)).

Regionally, Article 24 of the 1981 Africa Charter on Human and People's Rights provides for the protection of the right to a healthy environment 'for all peoples', arguably extending protections to future generations. Additionally, the 2003 Revised African Convention for the Conservation of Nature and Natural Resources obligates State Parties, under Article IV, to implement all measures necessary to achieve the objectives of the Convention in the interest of present and future generations.

At the national level, various African countries have incorporated intergenerational equity into the preamble or substantive provisions of their Constitutions:

• Kenya's 2010 Constitution refers to intergenerational equity in its preamble and establishes sustainable development as a core principle in public decision-making (Article 10). Article 42 recognises every person's right to a clean and healthy environment, explicitly for the benefit of present and future generations. Article 70 empowers individuals to seek legal redress for infringements upon this right, providing a key foundation for climate litigation.
• Article 73 of the Zimbabwean Constitution guarantees the 'right to an environment that is not harmful to their health or well-being; and to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting economic and social development'.
• Section 24 of South Africa's Constitution similarly guarantees the right to an environment as articulated in Article 73 of the Zimbabwean Constitution.

In recent years, African youth are increasingly at the forefront of climate action, demanding liveable futures and resisting development that continuously threatens them in various parts of the continent, such as Uganda (against the EACOP), Nigeria (against Shell in the Niger Delta), and South Africa (against the drilling and seismic surveys in the West Coast and coal power plants). Beyond activism, African youth are also using courtrooms to demand liveable futures, exemplified by South Africa's #CancelCoal case, the country's first youth-led climate litigation.

Alongside youth-led advocacy, campaigning, and activism, climate litigation can play a crucial role in promoting intergenerational equity for climate justice by influencing change in policies, holding governments and corporations accountable, raising public awareness, influencing public opinion, and enriching jurisprudence. For instance, the case against the East Africa Crude Oil Pipeline, supported by the #StopEACOP campaign, exemplifies strategic litigation combined with advocacy and public campaigning efforts.

"African countries have incorporated intergenerational equity into their constitutions, providing a foundation for legal actions aimed at protecting present and future generations."

The role of climate litigation in promoting intergenerational equity

Lawsuits have challenged courts to support intergenerational equity through progressive interpretation of locus standi and human rights obligations. Notable examples include:

• Centre for Oil Pollution Watch v. NNPC (Nigeria): The Supreme Court of Nigeria expanded the rule of standing, allowing the appellants' case against NNPC over oil spillage in the Acha community in Abia State. The case had previously been dismissed both by the High Court and Court of Appeal, following NNPC's argument that the organisation lacked standing to sue since it had not directly suffered any injury from the spillage. The Supreme Court overturned these decisions, holding that 'public spirited individuals and organisations can bring an action in courts against relevant public authorities and private entities to demand their compliance with relevant laws and to ensure the remediation, restoration and protection of the environment.'
  
  The Court further emphasised the importance of public interest litigation in safeguarding the rights of vulnerable members of society who may lack the financial capacity to bring such suits themselves. It highlighted the important role of this type of litigation in holding duty bearers accountable for safeguarding the right to a clean and healthy environment, as well as ensuring the sustainable management of resources for present and future generations. This judgment paves the way for subsequent climate litigation in Nigeria. Moreover, in making this judgment, the Court recognised and underscored the need for stronger measures to protect the environment for the benefit of present and future generations.

• Eco-Sud v. The Minister of Environment (Mauritius): The Supreme Court of Mauritius overturned a decision by the Environment and Land Use Appeal Tribunal, which had dismissed the applicant's appeal on the ground that the applicant lacked locus standi to challenge the issuance of an Environmental Impact Assessment Licence. This more liberal interpretation of locus standi paves the way for public interest climate litigation in Mauritius, which adopted its Climate Change Act in 2020.
• Mbabazi v. Attorney General (Uganda): In Uganda, the public trust doctrine, as a basis for intergenerational equity, was invoked by the plaintiffs in the case of Mbabazi and Others v. The Attorney General and National Environmental Management Authority. The case was filed by Ugandan minors, represented through their next of kin, against the Ugandan government. The plaintiffs acted on their own behalf as well as on behalf of current and unborn children in Uganda, challenging the government's failure to implement adequate adaptation measures against climate change impacts that disproportionately affect younger generations. They argued that by failing to address climate change impacts, the Ugandan government breached the public trust doctrine. The plaintiffs cited Articles 39 and 237 of Uganda's Constitution, which require the State to protect natural resources from degradation for the benefit of current and future generations. Although the Court ordered the plaintiffs to explore an out-of-court mediation process, this case illustrates the various grounds available to safeguard intergenerational equity in climate litigation.

Furthermore, South Africa has seen increased climate litigation cases with intergenerational equity as a key argument, notably:

• Green Connection NPC and Natural Justice v Minister of Forestry, Fisheries and the Environment and others is a 2024 case filed in South Africa, where the appellants appealed against the issuance of oil and gas drilling licences in the West Coast, citing violation of section 24 of South Africa's Constitution which guarantees the right to a clean and healthy environment for present and future generations.

• In African Climate Alliance & Others v Minister of Mineral Resources & Energy and Others, the applicant moved to court to challenge the South African government's decision to license the construction of a 1500-megawatt coal-fired power plant. The High Court held that the decision of the ministry to licence a new coal power plant was unconstitutional for violating the State obligation to safeguard the right to a clean and healthy environment for present and future generations.

  
Conclusion

Africa's future generations are extremely vulnerable to the climate crisis they did not cause. Immediate action is necessary to avoid passing down an unliveable planet. The growing recognition of intergenerational equity as a core element of climate justice presents an opportunity to advocate for sustainable development and climate policies that protect future generations' human rights.

Alongside public campaigns, policy advocacy and youth activism, climate litigation plays a crucial and ongoing role in safeguarding intergenerational equity in Africa.

Author:

Emmaqulate Kemunto Morang'a is an environmental and climate justice professional and an Advocate of the High Court of Kenya. She is the Founder of the Climate Change Lawyers Café (CCLC), a pan-African platform dedicated to enhancing the role of lawyers in utilising the law for just climate action through dialogue, experience-sharing, and mentorship.

Emmaqulate previously served as an Environmental Justice Legal Fellow at Natural Justice and worked in Campaigns and Advocacy at the Kenya Civil Society Platform on Oil and Gas. Currently, she is the Africa Regional Campaigner at ActionAid International, leading efforts to implement the federation's climate justice campaign across the continent. Emmaqulate is also a member of the International Expert Group (Kenya) of BIICL's Global Toolbox on Corporate Climate Litigation.