Symposium on Climate (Im)Mobility and the African Court’s Climate Advisory Opinion: Addressing Climate Adaptation and Displacements – The Role of Legal Empowerment in Eastern Africa

[Dr Wambua Kituku is the executive director of Kituo Cha Sheria (KITUO), Kenya’s oldest legal empowerment civil society organization (CSO). KITUO is a member of the Global Strategic Litigation Council. He holds a PhD in environmental law from the University of Nairobi and is a licensed attorney.]

Introduction

The recent report of the Intergovernmental Panel on Climate Change confirms that global warming has increased by 1.1C above the pre-industrial level, primarily due to anthropogenic greenhouse gas (GHG) emissions, which now are at their highest in the last two million years. Oceans are increasingly warming with polar glaciers melting on an unprecedented scale causing sea-level rise on average 3.7mm per year (between 2006- 2018), from 1.3mm (between 1901 – 1971). The consequences of global warming are now evident, with frequent and increasingly cataclysmic heatwaves, droughts and floods. 

Even though the global picture of the crisis is grim, the regional assessments reveal uneven distribution of impacts with disproportionate consequences increasingly borne by vulnerable communities and geographies. Africa is estimated to have lost agricultural productivity by 34% since 1961, due to climate change more than any other region. With rising temperatures, there is increasing water stress, biodiversity loss and increasing as well as widening prevalence of diseases such as malaria, cholera, malnutrition and dengue. Economic impacts are significant, with GDP growth across Africa expected to be affected by frequent disruptions to key economic activities such as agriculture, energy production, transportation and tourism among others.

One area that has not received adequate coverage is the growing challenge of climate displacements. This term refers to forced or involuntary movement of individuals or communities from their habitual places of residence, primarily due to sudden or progressive impacts of climate change. One key reason why such displacements evade scrutiny from a climate change perspective is that they tend to be subsumed under the broader and more common concepts of environmental migration or disaster displacement. Yet the issue is of much significance, considering that out of the 14.56M total internal displacements in sub-Saharan Africa, 2.9M are categorized as disaster displacements, with some linked to climate change. 

For vulnerable populations, adaptation and building resilience are critical. Yet, climate action efforts tend to overlook or underemphasize adaptation given the preponderance of mitigation actions in global commitments to address climate change. This post presents a simple argument: empowering vulnerable communities with legal tools to demand adaptation actions from governments and the international community presents a viable and durable solution to addressing climate change-induced displacements. 

Climate Crisis in Africa: Status of Adaptation and Resilience

Globally, Africa has a notable share of countries that are considered highly vulnerable to climate change impacts, with 14 out of the 20 ranked at highest at risk coming from the continent. Yet Africa only contributes 3.8% of GHG gases globally, with per capita emissions pegged at 0.8 metric tons compared to 3.9 tons globally. Adaptation is vital to Africa in terms of building resilience of the populations and institutions to manage and withstand the impacts of climate change, while also delivering sustainable development benefits. According to the UNFCCC, only 23 (or 40%) African countries had developed and submitted National Adaptation Plans (NAPs), indicating lack of clear frameworks for guiding adaptation actions. The estimated cost of adaptation interventions for Africa is $52- 70 billion per year, yet the current adaptation finance available for the continent is estimated at $14.8 billion per year. The foregoing points to adaptation injustice which undermines Africa’s capacity to address its own development challenges.

Climate Displacements in Eastern Africa

According to UNHCR & The World Bank, Eastern and Horn of Africa region was hosting 29 million displaced persons, out of which 7.9M (or 27%) were refugees and asylum seekers while the rest were internally-displaced persons (IDPs) and returnees. Besides conflict, environmental disasters (frequent droughts and floods) contributed to displacements in the region. Both Ethiopia (5M) and Somalia (5M) host the largest populations of IDPs, while Uganda (1.6M) and Kenya (0.8M) host the largest populations of refugees. Climate change-induced food insecurity is now a major cause of internal displacements. With increased frequency, extreme weather events are said to exacerbate the already complex and interconnected factors driving migration in the region and likely to escalate into the future.

Legal Obligations on Adaptation Measures for Climate-displaced Persons

Across the region, refugees and internally displaced persons (IDPs) experience higher poverty rates, face greater barriers to basic services, and are more exposed to rights violations. These conditions have strengthened calls for host countries to adopt more inclusive policies that support self-reliance and enable refugees and IDPs to participate more fully in local economies and wider society. Kenya offers an important example of this shift. The Refugees Act (Cap 173) at section 28 recognises refugees’ right to access requisite documents, employment and basic services, while the government’s refugee policy, the Shirika Plan for Refugees and Host Communities March 2025, promotes self-reliance and inclusion thus signalling an important move away from traditional encampment approaches.

Yet climate change related-disruptions to livelihoods in host countries present a serious challenge to the very inclusion of refugees. This notwithstanding, involvement of refugees in climate actions, particularly adaptation, has been limited in most countries, despite apparent legal obligations under the UNFCCC (Article 7.9 (b) of Paris Agreement and Decision 5/CP.17) on involvement of vulnerable groups by States in such processes. It is noteworthy that the ICJ in its historic Advisory Opinion on Climate Change held that under international law, State parties had legally binding obligations to undertake adaptation planning actions (paras 211, 213 and 256). The ICJ also underscored a standard of due diligence to be used to assess state parties’ fulfilment of their adaptation obligations, which includes adopting measures capable of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change (para 258). It has been argued that the import of the ICJ Opinion is to obligate State parties to integrate human rights considerations and particular attention to vulnerable people, including refugees in adaptation planning and implementation.

Failure to include refugees as vulnerable persons in national adaptation planning and local-level implementation increases their vulnerability to disasters by exposing them to repeated displacement and associated harms while undermining their self-reliance capacity. It has been noted that for instance, Kenya missed an important opportunity to engage with refugees during the development of its recent National Adaptation Plan. It is instructive that the Inter American Court of Human Rights (IACtHR) in its Advisory Opinion on Climate Emergency and Human Rights underscored “the essential nature of climate adaptation measures for protection of human rights within the context of climate emergency” (para 384). Hence it can be argued that undertaking adaptation planning and implementation in a way that aggravates vulnerability of refugees to climate-related harms undermines the said State obligation.

Legal Empowerment and Adaptation Justice for Climate-displaced Persons

Legal empowerment entails giving people the power to understand, use and shape the law. Legal empowerment is pursued through such initiatives as legal education (literacy), strengthening state justice systems, legal support for citizens and promotion of citizen participation in lawmaking and development initiatives. By going beyond limits of law, legal empowerment interrogates how rights are defined and decisions made, thus opening space for radical and transformative vision of justice and pathways for communities to shape the rules and institutions that affect their daily lives.

From the foregoing, legal empowerment presents a vital tool for refugees and IDPs affected by climate displacements to seek greater protection from climate-related vulnerabilities through effective adaptation and resilience-building actions by host governments through various ways. First, it is important to foster awareness and understanding by refugees and IDPs on the climate change phenomenon, and the legal obligations imposed on governments and international community to provide support and their protection, particularly those enunciated by the ICJ Advisory Opinion of 2025 and IACtHR Advisory Opinion of 2025. This awareness should also focus on a range of institutions as duty bearers who have a role to play in this regard.

Second, policymakers and implementers also need targeted awareness on why refugees should be included as vulnerable communities in adaptation planning and action. This awareness should address two related points: displacement is often protracted rather than temporary, and displaced people face distinct climate-related vulnerabilities that require deliberate planning. Even where policymakers view displacement as a short-term situation, the lived reality of many refugees calls for their meaningful involvement in long-term processes such as National Adaptation Plans.

Third, providing requisite legal assistance to refugees to access basic services and adaptation support programmes is critical. Pursuant to adopted NAPs, governments have mobilised financial resources internally and externally to support adaptation interventions. Due to the exclusion of refugees in NAP processes, these plans tend to be blind to refugee concerns. It is therefore necessary to enable refugees to make representations to authorities at both national and local levels, calling to attention the need to extend adaptation support to these vulnerable groups. Where such calls go unheeded, supporting refugees to take legal action through courts of law (domestic and international) should be contemplated. 

In this regard, Kituo cha Sheria supported climate-displaced persons in Kenya to petition the High Court seeking to hold the government accountable for failing to take measures to protect the vulnerable from rising waters of Lake Baringo in the Rift Valley region. It is anticipated that the suit will provide opportunity for the Court to clarify on Kenyan government’s obligations on ensuring adaptation measures are consistent with applicable human rights frameworks. In the same vein, Kituo cha Sheria has teamed up with other like-minded civil society organizations and sought to be enjoined as interested parties in Request for Advisory Opinion No.001 of 2025 before the African Court of Human and Peoples Rights, instituted by the Pan African Lawyers Union, on obligations of states with respect to the climate crisis. Representing concerns of vulnerable displaced persons in this matter, Kituo cha Sheria hopes that the African Court will interpret the African Charter on Human and Peoples Rights and other regional frameworks along the same lines the Advisory Opinions of ICJ and IACtHR, thus strengthening legal foundations for holding states accountable in relation to ensuring appropriate and protective adaptation measures.

Conclusion

This post has discussed the context of climate adaptation and displacement in Eastern Africa. Legal obligations arising from international law on adaptation planning and implementation for climate displaced persons have been outlined, with reference to recent Advisory opinions issued by the ICJ and IACtHR. The post argues for use of legal empowerment to enable climate displaced persons to engage with the law and legal institutions, in order to enforce the aforesaid legal obligations with a view to ensuring resultant adaptation measures take into account their vulnerabilities and priorities. Ongoing cases before the Kenya’s High Court and the African Court afford civil society actors to test the promise of legal empowerment in advancing adaptation justice for climate displaced persons.

Photo attribution: Photo by Vlad Hilitanu on Unsplash