Risk Travels: How African Courts Borrow From Each Other — and Why Fossil Litigation Has Become Structural

Courts, communities, legislation, and regulations in Africa have together and mutually intensified scrutiny of fossil fuels projects in Africa.

Courts have become more progressive.

Across Africa, courts are stepping into a new, more assertive role — something you can clearly see in the landmark cases of the past few years. In South Africa, the Thabametsi judgment (2017) forced regulators to consider climate impacts before approving a coal plant. In Kenya, the courts went even further: the Lamu Coal Plant judgment (2019 & 2021) didn’t just question the environmental impact assessment — it challenged the entire approval process as incompatible with constitutional environmental rights. And in Nigeria, the revival of Gbemre v. Shell reaffirmed that gas flaring violates fundamental rights.

Beyond these three heavyweights, the trend is spreading. Uganda’s High Court has pressed for transparency in oil licensing, Zambia’s courts are tightening oversight of mining pollution, and Senegal’s administrative courts are scrutinising offshore gas EIAs more seriously. Ten years ago, these kinds of rulings would have been outliers. Now they’re becoming the norm.

Fossil litigation has become increasingly constitutional and structural.

What used to be procedural fights over EIA paperwork are now constitutional battles about rights, justice, and the state’s duty to protect people. South Africa’s Deadly Air judgment (2022) declared that Mpumalanga’s air pollution violates constitutional rights — a decision with massive implications for coal-heavy regions. Kenya regularly treats environmental disputes as constitutional questions under Articles 42 and 70, which is how the Lamu case was able to reach such sweeping conclusions.

Elsewhere, Uganda’s EACOP challenges are grounded almost entirely in rights to life, health, and property. Ghanaian courts have seen petitions attacking mining pollution via constitutional provisions. Senegal’s coastal communities are now framing offshore gas issues around socioeconomic rights tied to fisheries. Once a fossil project enters constitutional terrain, it becomes a long-term structural risk — not a technical compliance matter.

Communities have become more aware and better equipped.

This shift in litigation isn’t happening in a vacuum — communities themselves are becoming more organised and better supported. The EACOP coalition is the prime example: Ugandan and Tanzanian groups coordinating across borders, filing multiple cases, and engaging international mechanisms. In Kenya, the Lamu petitioners brought technical experts, heritage specialists, and climate evidence — something unheard of in Kenyan environmental litigation 15 years ago.

The pattern repeats elsewhere. Senegal’s fishing communities, backed by NGOs, are challenging offshore gas projects. Zambian communities affected by mining are increasingly turning to the courts to enforce environmental licence conditions. People now understand both their rights and the legal pathways available to defend them — and that makes litigation far more potent.

Liabilities on fossil projects are widening.

The legal risks fossil developers face today are no longer one-dimensional. In Kenya’s Lamu case, liability extended to cultural heritage, pollution risk, and climate impacts. South Africa’s Deadly Air ruling opened a new front: state liability for failing to address harmful air quality. Nigeria’s gas-flaring cases, including Gbemre and more recent Niger Delta judgments, add human-rights liability on top of environmental compliance.

Across the continent, courts are widening the perimeter of what counts as harm. Ghana’s water pollution disputes tie mining impacts to constitutional duties. Ugandan oil cases raise questions about long-term displacement and community protection. Senegal’s offshore gas disputes revolve around livelihoods, marine ecosystems, and economic rights. The result? Fossil projects now face a broader risk landscape than at any point in Africa’s legal history.

Courts are borrowing from each other.

One of the most fascinating trends is how quickly ideas now travel across jurisdictions. Kenyan judges frequently cite South Africa’s climate jurisprudence, including Thabametsi. Ugandan litigants explicitly reference Kenyan participation and rights cases in EACOP filings. Even Nigerian judgments have noted comparative reasoning from East Africa when addressing environmental rights.

This cross-referencing isn’t limited to the big three. Ghanaian scholars draw on South African precedent in mining rights cases. Senegal’s administrative courts increasingly rely on rights-based interpretations that echo East African decisions. Once a principle succeeds in Nairobi or Pretoria, it can appear in Kampala or Accra within months. Fossil investors can no longer assume a ruling is “contained” within one country — legal risk now moves across borders.

Regulations and courts are increasingly becoming self-reinforcing.

Recent energy and environmental reforms across the continent are giving courts stronger legal frameworks — and courts, in turn, are pushing regulators to enforce them properly. In South Africa, the removal of licensing caps for embedded generation (2021–2022) has strengthened the legal basis for private renewables, and courts have reinforced transparency requirements for major energy decisions.

Kenya’s climate law, updated grid codes, and public participation rules give judges clear standards to enforce — as seen in the Lamu rulings. Nigeria’s Electricity Act 2023 empowers state-level regulation and gives courts a clearer handle on rights and responsibilities in the energy sector. In Senegal, new renewable energy laws have led courts to scrutinise fossil EIAs more seriously. Zambia’s mining and environmental reforms have also enabled firmer judicial oversight.

It’s a loop: reforms empower courts; courts reinforce reforms — and both jointly tilt the landscape toward renewables.