Judicial review and statutory appeal

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Implementation and enforcement of environmental rights in the Democratic Republic of Congo

Owing to the predominantly public law character of the administration of environmental affairs, nature conservation and management and pollution control are primarily entrusted to administrative (public) bodies. For example, Ministers share the responsibilities in the DRC (the Ministry of Environment is the main player; Ministry of Tourism; Ministry ofUrbanism; Ministry of Mines; … ) at National, Provincial and Local levels109 and other bodies, such as the Congolese Ins titute for the Conservation of Nature110 (Institut Congolais pour la Conservation de la Nature [ICCN]) and the National Centre of Information on Environment are also involved.111 Important powers are conferred on the Ministry of Environment.112 The Ministry has, for example, the mission to promote and coordinate the activities pertaining to the environment, nature conservation, and to take initiatives and appropriate measures to fulfil this mission.
Thus, for environmental legislation to be effectively implemented, important powers have been given to administrative bodies in the DRC. It is therefore obvious that the success of the implementation of environmental legislation, which contains provisions on environmental rights, depends largely on the discretionary powers conferred upon these administrative bodies and their ability to exercise these powers in the public interest and with respect for the principle of legality of administrative (environmental) action.

Powers of administrative bodies

Various powers are recognized to administrative bodies through the regulatory environmental framework. These powers are sometimes extensive powers. They may include the powers to legislate and authorise specific performance as well as the powers to execute or enforce legislation.

Extensive powers

Public bodies and officials (usually ministers) are granted extensive powers of management over natural resources like water113 and mines Powers to legislate and to authorise specific performance Most statutes delegate the legislative function to public bodies and officials. They perform a limited legislative function because they adopt subordinate legislation in the form of regulations, statutory directives, permits or licensing requirements, abatement notices and other measures. Amongst the regulations adopted as subordinate legislation, one may refer to the Ministerial By-law115 on the Forestry Transaction Procedure and the Ministerial By- law116 on Measures Pertaining to Forestry Exploitation. The exercise of certain environmental activities is subject to the permit or licensing requirements such as the forestry exploitation permit/licence;117 the hunting permit118 and the personal authorization of prospecting permits subject to the requirements defined by the Ordinance law119 on General Legislation on Mines and Hydrocarbon.

The principle of legality

The exercise of administrative actions is subjected to the principle of legality.123 All administrative actions or decisions must comply with the law, but may in the event of unlawfulness be challenged or subjected to internal administrative review or appeal through an administrative process. Judicial review by the courts usually constitutes the final resort for legal redress. It has been stated that the principle of administrative legality, which underlies the exercise of all administrative powers entails that the administration is bound by the law to promote the public interest and to recognize and
protect individual rights and liberties.124
In this context, administrative bodies and their officials, despite their discretionary powers, can never override the fundamental right of a person to a clear and healthy environment and such related rights as the rights to access to information and to lawful and fair administrative action, unless special circumstances exist in terms of the Constitution (limitations of the rights).125 The Supreme Court of Justice must declare whether the urgent measures justifying the limitation of the rights are consistent with the Constitution as a whole. 126

CHAPTER 1: SCOPE OF THE STUDY AND THE INTERNATIONAL AND NATIONAL CONTEXT OF THE RIGHT TO ENVIRONMENT 
1.1 Scope of the study
1.1.1 Research problem
1.1.2 Study objectives
1.1.3 Research methodology
1.1.4 Division of work
1.2 International context of the right to environment
1.2.1 International environmental law
1.2.2 Recognition of and relationship between human rights and the environment
1.3 National context and constitutionalisation of environmental rights
1.3.1 The concept of ‘environment’
1.3.2 Scope and sources of environmental law
1.3.3 Introduction of the right to environment in the Constitution
1.4 Interpretation of environmental rights
1.4.1 Environmental rights as procedural rights
1.4.2 Environmental rights as rights of future generations
1.4.3 Environmental rights as a human right to the environment
1.4.4 Rights of the environment
1.5 Conclusion
CHAPTER 2: ENVIRONMENTAL RIGHTS IN THE CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF CONGO OF 2003 AND IN THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA OF 1996 
2.1 Environmental rights in the Democratic Republic of Congo
2.1.1 Environmental rights prior to the transitional Constitution of 2003
2.1.1.1 The Colonial Charter
2.1.1.2 The Fundamental Law
2.1.1.3 The Constitution of 1964
2.1.1.4 The Constitution of 1967
2.1.2 Environmental rights under the Constitution of 2003
2.1.2.1 Political context of the incorporation of an environmental clause in the Constitution
2.1.2.2 Environmental rights and duties
2.2 Environmental rights in South Africa
2.2.1 Environmental rights before the Interim Constitution of 1993
2.2.2 Environmental rights in the 1993 and 1996 Constitutions
2.3 Conclusion
CHAPTER 3: IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL RIGHTS IN THE DEMOCRATIC REPUBLIC OF CONGO AND IN THE REPUBLIC OF SOUTH AFRICA 
3.1 Regulatory framework for environmental management in the Democratic Republic of Congo
3.1.1 General background
3.2 Implementation and enforcement of environmental rights in the Democratic Republic of Congo
3.2.1 Powers of administrative boies
3.2.1.1 Extensive powers
3.2.1.2 Powers to legislate and to authorise specific performance
3.2.1.3Powers to execute
3.2.2 The principle of legality
3.2.3 Administrative control and remedies
3.2.3.1 Administrative regulations
3.2.3.2 Internal administrative control on environmental affairs
3.2.3.3 Administrative tribunals
3.2.4 Judicial control over administrative environmental actions and remedies
3.2.4.1 Organization and structure of the judicial system of the Democratic Republic of Congo
3.2.4.2 Legal standing and other requirements of the employment of legal remedies aimed at controlling administrative actions
3.2.4.3The interdict and mandamus
3.2.4.4 Judicial review and statutory appeal
3.2.4.5Statutory criminal sanctions
3.2.5 Other mechanisms of protection and promotion of environmental rights in the Democratic Republic of Congo
3.2.5.1The Ministry of Human Rights
3.2.5.2 The National Observer of Human Rights
3.3 Conclusion
3.4 Regulatory framework for environmental management in the Republic of South Africa
3.4.1 General background
3.5 Implementation and enforcement of environmental rights in the Republic of South Africa
3.5.1 Powers of administrative bodies
3.5.1.1Extensive powers
3.5.1.2 Powers to legislate and to authorise specific performance
3.5.1.3 Power to execute
3.5.2 The principle of legality
3.5.3 Administrative control and remedies
3.5.3.1 Administrative regulation
3.5.3.2 Internal administrative control
3.5.3.3 Administrative tribunals and environmental tribunals
3.5.4 Judicial control and remedies
3.5.4.1 Organization and structure of the South African judicial system
3.5.4.2 Legal standing and other requirements for the employment of legal remedies aimed at controlling administrative environmental actions
3.5.4.3 The interdict and mandamus
3.5.4.4 Judicial review and statutory appeal
3.5.4.5 Statutory criminal sanctions
3.5.5 Other mechanisms of protection and promotion of environmental rights in the Republic of South Africa
3.6 Conclusion
CHAPTER 4: CHALLENGES AND RECOMMENDATIONS 
4.1 Challenges and recommendations for the Democratic Republic of Congo
4.2 Challenges and recommendations for the Republic of South Africa
4.3 Concluding remarks
BIBLIOGRAPHY

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THE RIGHT TO ENVIRONMENT IN ARTICLE 54 OF THE TRANSITIONAL CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF CONGO OF 2003: A COMPARATIVE ANALYSIS BETWEEN THE DEMOCRATIC REPUBLIC OF CONGO AND THE REPUBLIC OF SOUTH AFRICA