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23 Nov 2021

Dr. Markus Burianski, Mark Clarke, Dr. Federico Parise Kuhnle & Gwen Wackwitz, White & Case

Climate change litigation in African jurisdictions will inevitably increase, say White & Case lawyers

"Climate change litigation in Africa: Current status and future developments", 9 Nov 2021

The success of rights-based litigation in Europe is likely to influence the future of climate change-related disputes in Africa as well, particularly in light of the precedents established by the SERAC and Gbemre cases.

The growing number of African nations that are seeking to introduce specific climate change legislation could further boost this development.

Human rights will likely continue to be intrinsic to future cases, considering the increasing acceptance of the impacts of climate change on health, livelihoods, access to clean water and other fundamental rights. Moreover, if the public trust doctrine gains traction in other large common law jurisdictions such as the US or the UK, it could also become an argument for plaintiffs in African common-law jurisdictions such as Nigeria, Ghana or Kenya.

In any event, as the world's attention becomes increasingly focused on climate change mitigation and adaptation strategies, climate change-related litigation concerning economic activity or detrimental effects in African countries will inevitably increase.

This could take many forms. Claims could be brought in courts outside the African continent in relation to operations of multinational corporations within the continent, whether those corporations are incorporated within Africa or elsewhere. Equally, claims could be brought in African national courts in relation to the physical impacts of climate change on the continent. Rights-based claims could be brought against governments or corporations in African countries, based on national or transnational conventions and treaties protecting the rights of the relevant country's citizens.

Recent developments in climate change-related litigation in Europe have provided precedents for each of these categories of claims. So any business with material levels of GHG emissions should be aware of the risks of lawsuits and potential liability. Therefore, it is imperative that all such businesses carefully consider their climate strategies.