Monavale Vlei (Ramsar Site – Wetland of International Importance).
The Monavale Vlei is an important wetland area within the city along Fenella Drive. It is managed by the Conservation Society of Monavale (COSMO.) The Committee was informed by COSMO that the Government had plans to build 1200 cluster houses in the Monavale wetland area.
University of Zimbabwe Wetlands
The Committee was informed by Harare Wetlands Trust that the former UZ Vice-Chancellor had intentions to construct a car wash and service station next to a stream called Marimba River as a personal venture. BirdLife Zimbabwe and Harare Wetlands Trust challenged the decision and the construction of the service station was stopped. EMA objected to the development but the City Council did not and registered the development. Concerns were raised as to the model of restoration to be adopted for the wetland and who would meet the cost of restoring that very important wetland site. The Committee was also informed by Harare Wetlands Trust that there were earlier plans to build offices, clinics, and a shopping mall along Upper East Road a proposal that was objected by the University students and staff leading the developer to withdraw.
Borrowdale Wetlands (Ramsar Site)
The Committee learnt that Borrowdale wetlands form part of Mt Pleasant wetlands and these wetland sites depicted the practical legal issues on wetlands. It was alleged by Zimbabwe Lawyers for Human Rights during the tour that the Ministry of Environment had initiated some written formalities at some point to remove Borrowdale wetlands as a wetland area. An EIA was issued to develop the Borrowdale wetlands in November 2017 and the City Council issued a development permit on the basis of the EIA that was issued. Zimbabwe Lawyers for Human Rights opined that the EIA certificate on Borrowdale wetlands must be revoked and that EMA consistently assesses, monitor the developments on the site and ensure that the environmental protection order is respected by the developer. It was submitted by Zimbabwe Lawyers for Human Rights that an interim interdict was lodged pending the final verdict on the Borrowdale wetland wrangle.
Gunhill Vlei Wetland
The Committee observed that trenches had been dug up to drain the wetland area. The Committee witnessed wetland encroachment with several houses being built on the dry stream bed. On another stand, there was a fence and skywalk over a stream with plans to construct a building. On other planned properties, walls of neighbouring stands were built after diverting the course of the stream. Furthermore, agricultural activities were destroying the ecosystem services, for example, SEDCO had set up a demonstration site for its seeds on the wetland.
New Life Ministries Church on a Wetland
The Committee witnessed a church being built in a wetland in Eastlea. The Committee was informed that the land belonged to an unnamed individual who had bought the land as a residential stand and later sold it to the church without following the due processes. The Committee was informed that the church is being constructed without any development permit from the City Council and that an EIA was authorised by the incumbent Minister of Environment, Tourism and Hospitality Industry. The development that was taking place would set precedence on other developments that would take place elsewhere if it was not stopped forthwith.
Mazowe Catchment Council
There were stands being built across, downstream and upstream of the tributary called Muvhinzi that flows into Mazowe River. The Committee was informed that Harare City Council was responsible for issuing stands in the Shawasha Hills formerly Glenwin Farm.
Borrowdale Brooke Wetlands
The Committee witnessed sewage pumps that broke down in 2008 still discharging raw sewage into Brooke River completely polluting the wetland ecosystem services.
Gazetting of Harare Wetlands Map
During the presentations by Zimbabwe Lawyers for Human Rights, the issue of an urgent finalisation of the re-gazetting of Harare Wetlands Map was raised. The obtaining situation was that planning authorities have the power to determine whether or not an area is a wetland. Therefore, it was argued by Zimbabwe Lawyers for Human Rights that such state of affairs allowed evasion of protective laws through claims that an area targeted for development is not a wetland.
Conflict of interest in the issuance of EIAs
The Committee learnt that the EIA Reports are prepared by consultants who are licenced by EMA. However, the fee for the consultants is paid by the project developer, leading to a conflict of interest for the consultants. Consultants who gain a reputation for issuing negative reports are unlikely to receive further engagements by developers. Accordingly, consultants lean towards producing reports which allow development on wetlands and often fail to consult adequately with stakeholders, even though the Environmental Management Act requires the Director-General to ensure that the consultations have taken place.
Payment fee for EIA Inspection
It was explained that EMA currently charges a total of $300 for anyone wishing to view an EIA report and does not allow any photographs or copies to be made of the document. The amount charged implied a direct violation of the environmental rights and access to information as guaranteed in the Constitution. The Committee viewed the inspection fee as a revenue generation exercise rather than a means by which concerned citizens may exercise their rights to protect the environment. The Committee observed that the right of inspection is crucial for those wishing to challenge improperly granted certificates but that right is subject to the payment of a prescribed fee.
National Environmental Council
Zimbabwe Lawyers for Human Rights made submissions that decisions of the Minister and the Environmental Management Board should be informed by the advice from the National Environmental Council. However, the National Environmental Council has not been constituted and operationalised since the enactment of the Act. Accordingly, policy directives made by the Minister without such advice are ultra vires the Act.
Reports to be laid before Parliament
The Zimbabwe Lawyers for Human Rights presented that Ministerial directions should form part of annual reports which the Board is required to submit to the Minister and which the Minister is obliged to lay before Parliament. The Minister is also obliged to submit annual reports to Parliament. As a result, there has been no compliance with any aspect of this process before.
National Environmental Plan
The Environmental Management Act specifically stipulates that the preparation and implementation of Regional and Master Plans, in terms of the Regional, Town and Country Planning Act, must pay regard to the National Environmental Plan. It further espouses that no project shall be implemented otherwise than in compliance with a National Environmental Plan. However, National Environmental Plans have not yet been reviewed or developed as required by the Act. The law requires that National Environmental Plans be reviewed at least once every ten years from the date fixed by the Minister bringing the plan into effect. The Ministry of Environment, Tourism and Hospitality Industry has not complied with the provision since 2012, ten years after the enactment of the Act.
Harmonisation laws relating to wetlands
The Committee observed that both the Environmental Management Act and the Water Act require different permits and permission for essentially the same activity while the Zimbabwe National Water Authority Act, duplicates the provisions of the other two acts. While the Environmental Management Act prevails over other legislation which conflicts with its provisions, it is unreasonable to require a developer or other party to seek multiple permits for the same activity.
Measures to Protect and Preserve Wetlands
During the oral evidence session, the Minister of Environment, Tourism and Hospitality Industry explained to the Committee the measures the Ministry had put in place to protect and preserve wetlands. These included the re-gazetting of wetlands map of Harare and Chitungwiza, identification and declaration of wetlands of international importance, the development of a National Wetlands Utilisation Guidelines for both rural and urban wetlands. In addition, EMA issued tickets and served orders to stop all construction activities in wetlands, the Ministry engaged and strengthened wetland management policy through coordination with other Ministries and departments and had established a national task force to deal with wetlands management and the setting up of one-stop-shop for approval of layout plans.
The Committee was informed that the Ministry had started the operationalisation of the Environmental Councilto bring wetlands protection and preservation to the forefront in order to unify efforts in introducing measures and coordinating activities by Ministries. The Minister informed the Committee of its intention to develop the National Environmental Action Plan as well as carrying ecological assessment for stakeholders to know the status of the land they want to buy or develop.
Challenges to Ineffective Policy Measures
The Minister spelt out the challenges attributed to ineffective policy measures. She explained that the majority of wetland areas in Harare were sold before the enactment of the Environmental Management Act on the 17thof March 2003. Another challenge was that, under the new Constitution, the right of property ownership is protected more than environmental rights. The Minister pointed out that wetlands were intruded by land barons and the established illegal settlements are at law regarded as shelter and human rights issues then come into play.
Interventions by the Ministry
The Minister stressed the need to strengthen and improve coordination of the Ministry of Local Government, Public works and National Housing, Local Authorities and the Ministry of Environment, Tourism and Hospitality Industry. She saw it best to harmonise wetland laws under Zimbabwe National Water Authority, Local Government and Environmental Management Agency. The Minister informed the Committee that Gazetted wetlands are to be declared state lands under the Ministry of Environment, Tourism and Hospitality Industry.
She explained that wetlands would be converted into protected parks, botanic gardens or would be expropriated under private ownership by developing a funding mechanism.
City of Harare
The city of Harare submitted that the only challenge regarding wetlands management is the lack of a wetland planning framework. There is a lack of agreement on the criterion that determines areas that fit into the definition of wetlands within the local planning area of the City of Harare. It explained that to avoid personal discretion and build consensus on wetlands identification and protection, a scientific study has to be carried out. The Council opines that the study can help resolve conflict relating to town planning zoning and privately owned land on wetlands. The findings of the study would also be used to guide developments and approvals for developments on wetlands.
ANALYSIS OF THE KEY ISSUES
Problems with the Law
Ecologically Sustainable Development
The manner in which section 73(1) of the Constitution of Zimbabwe has been phrased is problematic. The section provides for the right-
(b)To have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that- ii) promote conservation; and iii) secure ecologically sustainable development and use of natural resources while promoting economic and social development.
No provision was made for the fact that some areas may not be amenable to sustainable development and that in these areas, economic development ought never to take place.
b)Alignment with the Constitution
Since there can be no sustainable development on wetlands, the Environmental Management Act should be amended. This would provide for an absolute prohibition on construction on wetlands, other than in the case of overriding public necessity when another constitutional right would be infringed if the development did not proceed. This would also advance the constitutional right to clean water and obligations to protect biodiversity.
c) Wetlands Identification: Definition versus Mapped Geographical Areas
A central problem with the Environmental Management Act lies in the means by which wetlands are identified. Following the Ramsar Convention, the Act attempts to identify wetlands through the following definition:
Wetland means any area of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, and includes riparian land adjacent to the wetland.
The definition would be workable if it were accompanied by provisions setting out how and who determines whether a particular area falls within the definition, and thus constitutes a wetland. Hence, to avoid this problem, it is imperative that mapped geographical areas are held to be wetlands as a matter of law rather than fact or science. It will then be clear that the law pertaining to wetlands applies to these areas, regardless of any contrary opinion as to the topography of the area in question.
d) EIA Certificate before Development Permit
One means by which the legislation probably intended to partially address the problem is through section 97(5) of the Environmental Management Act. The section requires that;
A licencing authority shall not issue a licence under any enactment with respect to a [development] project…unless the Director-General has issued a [EIA] certificate…”
In terms of this section, a developer is required to obtain an EIA Certificate through EMA before approaching the licencing authority (the City of Harare) for a development permit.
EMA can then use the expertise of the Agency to determine whether or not the area is a wetland or not before the developer proceeds further.
e) EIA Certificates by Default
The Act provides that the Director-General must issue or refuse an EIA Certificate within 60 days of receiving an EIA Report, failing which the project is to be deemed approved. Approval by default does nothing to protect the environment as required by section 73 of the Constitution. The converse should apply, that the project is deemed refused.
f) Appeals to the Minister
The Act requires the Minister to make his or her determination with due expedition but no specific timeframe is set. Furthermore, in order to appeal the Minister’s decision to the Administrative Court, a record of the proceedings by which the determination was reached, or the reason for the decision, must be submitted to the Court. Yet the Act places no obligation upon the Minister to produce the record as a matter of course, presenting would-be appellants with considerable difficulty.
g) Private Ownership of Wetlands
In some jurisdictions, where land use has been subjected to so many restrictive regulations as to make the land owner’s use of the property impossible, the courts have treated this as tantamount to unlawful expropriation and have set aside regulations on this basis. This argument has been raised on behalf of developers, who have claimed that a prohibition of building on wetlands prevents them from using the land for the purpose for which it was purchased. Department of Works officials has raised similar arguments holding that the Local Authorities would be subjected to punitive legal action if they denied a building permit to a developer who had bought land at the time the land was designated residential by the Municipality. The officials state that once the land has been designated as residential, they are legally obliged to grant a development permit.
The Environmental Management Act
a) Power and Discretion of the Minister
It was submitted that at the heart of the problem is the amount of power and discretion vested in the Minister of Environment, Tourism and Hospitality Industry and the insufficient constraints on possible improper executive action. A Minister more concerned with allowing developments may utilise his or her discretion to the detriment of the environment. Thus, the extent of the power vested in the Minister in the Environmental Management Act is a double-edged sword.
b) The National Environmental Council
The delay of the operationalisation of the National Environmental Council has a severe and adverse effect on the governance of EMA and the protection of wetlands. All Ministerial decision-making ought to be informed by expert advice from the Council which is currently not operational.
c) Appeals of EIA Certificate
Where the grant of an EIA Certificate has been allowed or refused, the appeal lies with the Minister who alone determines the issue. Although the Minister’s decision may itself be appealed, this presents practical difficulties for those seeking to protect wetlands from developers.
d) Hearings by and Jurisdiction of the Board
In practice, the Board only allows persons, whose actions are being investigated to make submissions, losing the benefit of submissions from often well-informed stakeholders on the issue in question. The Environmental Management Act is also vague on the outcome of these hearings. It seems that the Board may only make “recommendations” and even this is only implicit. Furthermore, the Board has no punitive jurisdiction and thus appears to only have the power to recommend prosecutions of violators of environmental protections. The Act makes no provision for the imposition of penalties by the Board or any officer of the Agency. The regulations provide that the Agency, through its authorised officers, may issue a “spot fine” (ticket) to any offender who contravenes the Regulations. This is a purely judicial function under the Constitution.
Domestication of Multilateral Environmental Agreements Affecting Wetland Protection
Zimbabwe is a party to several international treaties and conventions which have a bearing on the protection of wetlands. Of prime importance is the Ramsar Convention on Wetlands. However, international treaties such as the Ramsar Convention and the Convention on Biological Diversity, through binding to the State, do not form part of the law of Zimbabwe, unless they have been incorporated into the law through an Act of Parliament. Even where these conventions do not form a binding component of Zimbabwe’s municipal law, the constitutional rights given above must be interpreted and applied in conformity with these conventions and treaties.