Opinion article by Prof Narnia Bohler-Muller, Research Theme Leader: Flourishing Life, University of the Free State
On 1 October, at the Universidad Iberoamericana in Mexico City, a group of Latin American jurists presented a Model Ecocide Law. It is the work of 74 experts from 14 countries, for any legislature to adapt and enact. One of its authors, Rodrigo Lledó of
Stop Ecocide International, told Agence France-Presse: “We are champions at passing beautiful laws that are then not enforced.”
A South African reader should feel the sting of that sentence. We, too, are champions of the beautiful law. Section 24 of our Constitution promises everyone an environment that is not harmful to their health or well-being: a promise not of survival only, but of flourishing. In Deadly Air the High Court declared that the poisoned air of the Mpumalanga Highveld breaches that right, and in 2025 the Supreme Court of Appeal dismissed the minister’s appeal. This August the Constitutional Court set aside Shell’s right to explore off the Wild Coast.
Ecocide names the gravest destruction of the natural world. The prevailing definition, drafted in 2021 by an independent panel of jurists, covers unlawful or wanton acts committed in the knowledge that they are substantially likely to cause severe and either widespread or long-term damage to the environment. In September 2024 Vanuatu, Fiji and Samoa proposed that it be added to the Rome Statute as a fifth international crime.
The Latin American text builds on that definition. It gives heightened protection to those who report and testify. And, where the perpetrators cannot be identified, the duty to stop the destruction and repair the damage rests with the state.
No South African voice
Africa has joined the fray. In April Mauritius wrote ecocide into its Environment Act, with penalties of up to 10 years’ imprisonment and a power to order restoration. The Democratic Republic of the Congo, the first African state to back the campaign at the International Criminal Court, has an ecocide bill before its parliament.
Ecocide is now on the continent’s agenda. In July 2025 the African Ministerial Conference on the Environment, meeting in Nairobi, considered a Congolese proposal to recognise the massive destruction of ecosystems as the crime of ecocide, and established an ad hoc committee to examine the matter. That committee is to report to the conference’s next ordinary session.
What I cannot find is a South African voice. We were there: our Deputy Minister addressed the Nairobi session. Her published statement speaks of climate, drought, biodiversity and pollution, but says nothing of the Congolese proposal. I can find no statement since. For a state that has made international legal accountability so visible a part of its foreign policy, the silence is conspicuous.
South Africa has three things to contribute. The first is an account of what ecocide destroys. The definition speaks of damage to the environment. But on an ubuntu understanding, air, water and soil are not scenery against which human lives are lived. They are the shared conditions in which persons become persons. The African Charter has recognised since 1981 that peoples, and not only individuals, have a right to a satisfactory environment favourable to their development. To destroy those conditions is to deny flourishing, to the living and to those not yet born. Ecocide is flourishing denied.
The second is experience of the gap between right and remedy. A justiciable right and a courageous judiciary are not enough where the harm is slow, cumulative and administratively tolerated. The Latin American text refuses to let the state shelter behind an unidentified culprit: where no one can be held to account, the state must itself stop the harm and repair it. Our own Constitution asks no less. Section 7(2) binds the state to respect, protect, promote and fulfil the rights in the Bill of Rights.
The third is a question about the definition. Ecocide, as drafted, reaches acts that are unlawful or wanton. Much of the damage done to the Highveld is neither unlawful, since it proceeds under licence, postponement and exemption, nor easily shown to be wanton, since that word invites a weighing of environmental damage against anticipated social and economic benefit. We know how that weighing goes when the benefit is called development and the cost is borne by people with the least power to refuse it. Even Shell lost on the Wild Coast because its right was unlawfully granted, not because the harm was too grave to permit. A crime that catches the spectacular catastrophe and misses the licensed one will leave most of our dead uncounted.
South Africans should offer their research and experience
The Latin American law was built through public consultation, expert working sessions and two days of collective drafting. Africa already has its forum. The ad hoc committee is where the continent will decide whether mass environmental destruction is to be called a crime, and on what definition. South African jurists, universities and public interest lawyers should be offering it their research and their experience, and our government should be heard in it.
A criminal statute will not make the air of eMalahleni breathable. Lledó is right that the world is not short of beautiful laws. The question for South Africa is whether we are willing to help write the next one, and to insist, from what we have learnt at such cost, that this time it be enforceable, and that it guard the conditions of a flourishing life.
Prof Bohler-Muller is Professor and Research Theme Leader of the Flourishing Life Research Theme, University of the Free State. She writes in her personal capacity.