2.2 ENVIRONMENTAL LAW

The phrase "environmental law" is a combination of the words "environment" and "law": In its modern conception, "environment" is treated as including the physical surroundings that are common to all of us, including air, space, waters, land, plants and life¹.

In simple terms, "law" may be defined as a set of enforceable rules and principles regulating behavior of individuals in the society. Environmental law therefore constitutes enforceable rules and principles regulating the activities of persons, natural or legal, which have impact on any of the media mentioned above as forming part of the environment. In Tanzania, the main sources of environmental law are the common law and statutory law in the form of principal legislation and subsidiary legislation.

2.2.1 The Common Law

"Common law" refers to binding rules and principles of laws developed by the courts over time, as opposed to laws enacted by Parliament. The common law rules that are applicable in Tanzania are those developed by the Tanzanian courts, both colonial and post-colonial, as well as those that were in force in England on 22 July 1920². The most important common law principles that are relevant to environment are the torts of negligence, nuisance and the rule in Rylands v. Fletcher. These torts are covered by any standard book on the law of tort. If a common law tort is committed by a member of the business community in Tanzania, that business may face a private prosecution for the tortious act. Environmental torts have been defined more extensively in the common law of other countries. However, where these rules have evolved in commonwealth countries, they may be argued to apply in Tanzania, as "persuasive authority" to the courts. For example, the courts of India and Australia have extensively defined common law environmental torts. Therefore, even where no specific precedent exists in the Tanzanian context (and some already do), it is fair to say that these developed environmental common law rules may very well bind individuals and businesses in the future.

2.2.2 Principal Legislation

Due to the limitations of the common law and its methodology, Parliaments have also enacted statutory laws to deal with various aspects of environmental protection. All laws enacted by the Parliament in Tanzania are known as principal legislation. The National Environmental Action Plan (NEAP) and the NCSSD note that there are over 50 principal laws which relate to environmental issues³. Many of the laws are outmoded, most are not understood or currently enforced and overlap in terms of functional authority⁴. Further, most of the existing laws are penal in nature. However, these laws fail to induce compliance because the ex ante value of the penalties prescribed is far below the cost of compliance. The NCSSD notes that there is a need to develop and implement new, integrated, enforceable and effective laws that are based upon sound social, ecological, economic and scientific principles⁵. As discussed, the enactment of the long-awaited environmental protection act and/or environmental policy act will go a long way towards meeting these goals. In the meantime, businesses and individuals actions are governed by the 50 plus pieces of environmentally-related legislation.

1. S. Ball and S. Bell, Environmental Law, Blackstone Press Ltd., (1991), p.2.
2. By virtue of the Judicature and Application of Laws Ordinance, Cap. 453.
3. See NCSSD p. 42, para. 5.2.6.
4. As noted in the NEAP, p. 42, p. 5.2.6.
5. NCSSD, Appendix 2.