Disaster Displacement and Its Linkage to Climate Change Litigation in Africa

It has been observed that the scholarship on African responses to climate change law lags behind the reality. This are however some recent efforts to address this gap in the literature. Some recent work has carefully sketched the national development of framework laws in Kenya and Uganda and, taking a pan-African albeit Anglophone perspective, has also addressed the ways in which such national laws might work with and influence each other. This gap is replicated in another corner of climate change scholarship, the literature on climate change litigation. This is unfortunate since action by civil society through national judiciaries often has real impact. For instance, the impact of the provisions in Kenya’s climate change legislation were significantly strengthened by the purposive interpretation given those provisions in Kenya’s most celebrated instance of climate change litigation, the Save Lamu matter. And courts are recognized to play a role in multi-level climate change governance, in part by providing a platform for transnational climate change litigation. Concerned to address these gaps, this article explores the material and conceptual linkages between disaster displacement and climate change with particular attention to litigation and to legal support structures. This article assumes a certain degree of familiarity with climate change litigation and its literature. It proceeds to explore and present a specific cross-cutting perspective, for which there is only modest treatment in the existing literature. This is the linkage of disaster displacement litigation (and legal responses) to climate change litigation. The article outlines and briefly examines a short but intense period of litigation regarding a disaster-induced displacement in South Africa which has not been widely discussed or attended to anywhere in the scholarly literature. Beyond demonstrating the gap between local institutional preparedness and the evident level of risk from disasters at all scales including those associated with climate change, the case study investigated here shows the importance of thinking about the local with the global, particularly with respect to the linkage between displacement and climate change.