International Environmental Law and Policy in Africa

365 Pages·2003·11.231 MB·English

by  Beatrice Chaytor, Kevin R. Gray (auth.)

INTERNATIONAL ENVIRONMENTAL LAW AND POLICY IN AFRICA
ENVIRONMENT & POLICY
VOLUME 36
The titles published in this series are listed at the end of this volume.
International Environmental
Law and Policy in Africa
by
Beatrice Chaytor
Programme Director,
Foundation for International Environmental Law and Development,
London, u.K.
and
Kevin R. Gray
Fellow in Public International Law,
British Institute of International and Comparative Law,
London, u.K.
Springer Science+Business Media, LLC
A C.LP. Catalogue record for this book is available from the Library of Congress.
ISBN 978-90-481-6287-1 ISBN 978-94-017-0135-8 (eBook)
DOI 10.1007/978-94-017-0135-8
Printed on acid-free paper
All Rights Reserved
© 2003 Springer Science+Business Media New York
Originally published by Kluwer Academic Publishers in 2003.
Softcover reprint of the hardcover 1s t edition 2003
No part of this work may be reproduced, stored in a retrieval system, or transmitted
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TABLE OF CONTENTS
Foreword VII
Charles Okidi
Introduction XI
Beatrice Chaytor and Kevin R. Gray
Multilateral Environmental Agreements (MEAs) in Africa
Dryland Degradation - Africa's Main Environmental Challenge
Elisabeth Corell
Reconciling Basel and Bamako: The Future of Hazardous Waste Management in 31
Africa
Beatrice Chaytor and Mita Manek
CITES and the African Elephant 49
Michael Kidd and Michael Cowling
The United Nations Climate Change Regime and Africa 60
Kevin Gray and Joyeeta Gupta
Natural Resource Sector Management in Africa
Biotechnology and the Commercialisation of Biodiversity in Africa 83
Rachel Wynberg
Environmental Regulation of the Oil and Gas Industry in Nigeria 103
Kent Nnadozie
Policing Industrial Pollution in Nigeria 131
Ali Ahmad
Tanzanian Forest Law 151
Jon Lovett
Common Features and Trends of Fisheries Legislation in Africa 181
Antonio Tavares
Setting up Institutions to Manage Transboundary Natural Resources: Lake 203
Kariba, a case in point
Cecil Machena
v
VI
Development of Law and Policy Instruments
African Environmental Governance: Opportunities at the Regional, Subregional 217
and National Levels
Carl Bruch
The Evolution and Structure of Popular Participation in Environmental Decision- 251
Making: the case of Ghana
Kofi Kufuor
Legal and Regulatory Framework for Environmental Impact Assessment in 267
African Countries
Mohammed Bekhechi
The Use of Market Based Economic Instruments for Sustainable Development in 297
Africa: a case study of the SADC Region
Pendo Maro Susswein
Effectiveness of the Environmental Impact Assessment Process in Managing 327
Tourism Development in the Seychelles
Rolph Payet
List of Abbreviations 351
List of Conventions 357
FOREWORD
C.O.OKIDl1
I welcome the opportunity to prepare a Foreword to the book on Environmental
Policy and Law in Africa, edited by Kevin R. Gray and Beatrice Chaytor. It is a
pleasure to do that because the book is a contribution to the cause of capacity
building for development and implementation of environmental law in Africa, a
goal towards which I have had an undivided focus over the last two decades.
There is still some belief in and outside Africa that for developing countries in
general, and Africa in particular, development and implementation of
environmental law is not a priority. This belief prevails strongly in many quarters
of the industrialised countries. In fact, the view is held either out of blatant
ignorance or by some renegade industrialists who fail to appreciate Michael
Royston's 1979 thesis that Pollution Prevention Pays.2 That group, for obvious
reasons, must have their correspondent counterparts in Africa to provide hope that
industries rejected as derelict in the West or inoperable due to rigorous
environmental regulation, can find homes to which they can escape and dump
their polluting industries.
Moreover, the group forgets or is unaware that the environmental agenda,
which is organised around the pre-Stockholm Declaration narrow scope of
pollution control and management of urban squalor, was firmly rejected by
developing countries. Not only were the concepts leading to a narrow approach
but it was bound to lead to strengthened command and control legal mechanisms
with very little or no consideration for dynamic management and development
consideration.
The fast action by the Secretary General of the United Nations Conference on
Human Environment in constituting the Founex experts that packaged the
management and development concepts on the road to Stockholm saved the
Conference. It is arguable, therefore that the Brundtland Commission, and its
compelling direction of the Rio Conference, built on the agenda of the developing
countries. None of the African countries has rejected the pursuit of the general
objective of sustainable development, which became the organizing concept and
main theme of Agenda 21 and Rio Principles. The World Summit on Sustainable
Development (WSSD) scheduled for Johannesburg in August 2002 should
properly be on the agenda of the developing countries. What has happened in
1 The views expressed herein are those of the author.
2 (Oxford: Pergamon Press; 1979).
vii
viii
Africa may be register only on a small scale but its impacts are nevertheless
dramatic. Out of the 53 African country members of the OAU, about thirty have
already adopted framework environmental legislation, albeit at different levels of
sophistication. These countries are discretely endeavouring to establish apex
institutions and to bring in line the sectoral and functional agencies. It is also well
known that the countries are struggling in the face of limited human and
institutional capacity to streamline the institutional arrangements for efficient
implementation. The Rio Conference left an expectation that the rich countries
would promote availability of resources to support implementation of Agenda 21.
One may assume that the WSSD process will take stocks of the extent to which
that objective has actually been realized.
A decisive lesson is obtainable from the pilot project on Environmental Law
and Institutions in Africa that has been implemented systematically in seven
African countries from 1995 to 200l,and with funding from The Dutch
Government. Through the methodology operationalising the concept of capacity
building and broadly based public participation, the African project coUntries
have demonstrated a commitment to development and implementation of
environmental law. Built on national motivation and drive, the project has
confIrmed that African countries need opportunities, information and resources to
support human and institutional capacity building. With these forms of support,
development and implementation of environmental law in Africa, will doubtlessly
match their aspiration commonplace in conference diplomacy.
Public officials as well as the civil society organisations have shown keenness
to participate actively in development and implementation of legal norms in such
highly technical areas as biodiversity, biotechnology, climate change, protection
of ozone layer, in addition to the traditional fIelds of environmental law. There is
also widespread interest in procedural rights in the environmental fIeld and these
are increasingly linked to the quest for democratic governance. Use of judicial
mechanisms to address environmental ills in Africa has caught some western
industrialists by surprise as was in the Titanium case in Kenya.3 The
industrialists found that the old and tired slogans such as the argument that
environmental enforcement will hamper development just do not sell well any
more. More examples could be cited from other African countries, particularly
from Uganda, South Africa and Tanzania. With increased awareness, information
and resources, a critical mass of environmental experts may be built in each
African country and their cooperation with the civil society organizations will
lead to effective environmental management in Africa.
It is in the context of information for capacity building, that the present
volume on environmental law and policy in Africa is a timely contribution. First,
the range of topics is diverse, and we have submitted that no fIeld of
environmental law is beyond the interest of African environmental law experts.
Secondly, the background of the authors is wide. About half of the thirteen
3 Rodgers Muema Nzioka & 2 othersv. Tiomin Kenya Ltd in the High Court of Kenya at Mombasa,
Civil case No. 97 of 2001.
ix
authors are Africans. The non-Africans are people with significant experience
and dedication to the study of environmental management in Africa. This brings
together diverse background and comparative perspectives from which African
and non-African readers can extrapolate principles applicable to the continent.
But each of the papers examines how the issues relate to Africa.
This book should symbolically encourage more students of environmental law
to contribute to the pool of information, which will, in turn, support its
development, understanding and implementation in the continent. These
initiatives will continue to systematically explode the myth that African countries
have no interest in environmental law.
Prof. C.O. Okidi 25th April, 2002
Nairobi, Kenya
INTRODUCTION
A few years ago, we discussed the possibility of a publication that would examine
the nature and content of environmental law and policy in Africa. It appeared
that other developing country regions, such as Latin America and Asia, were
given more scholarly attention in this field, perhaps attributable to their levels of
development. Analysis of environmental law and policy in individual African
countries existed in journal articles and through project case studies, but a
comprehensive look at African environmental law and policy was systematised in
few scholarly works.Our primary interest in the book was to uncover, mainly
through the contributions of African environmental legal specialists, how
international environmental law commitments were being implemented in
individual countries. The response to our call for contributions was quite
enthusiastic. We were impressed with the number of authors who had first hand
experience, governmental or otherwise, with implementation. Moreover, they
provided empirical insight into the difficulty of meeting international obligations
and identifying where environmental management registered on the list of
government priorities. This book is divided into 3 sections. Section 1 examines
how Multilateral Environmental Agreements (MEAs) are implemented in African
countries. Section 2 deals with the challenges facing African environmental
authorities in managing the continent's natural resource sectors. In Section 3
developments of specific legal and policy instruments are assessed in meeting
environmental protection needs.
The chapters in the first section of the book provide observations on the
multilateral environmental agreement (MEA) negotiation processes and the extent
to which African countries are making an impact. There appears to be contrasting
experiences with each MEA. For instance, the limited participation of the
African Group in the Climate Change regime stands in marked contrast to the
influence of African States evident in the development of the Desertification
Convention and the Bamako Convention. A basic premise of the book is that
African countries will increasingly have to meet more complex international
commitments. Treaty obligations will become more inter-related, thereby
engaging Africa further into the environmental community. Kevin Gray and
Joyeeta Gupta discuss the fledgling Climate Change regime where African
countries are not currently subject to emission reduction targets. However, this is
expected to change as the treaty matures. African countries will be seen to make
such commitments to reduce energy consumption and greenhouse gas production
in order to take advantage of the economic opportunities arising from
participating in the climate change regime. Moreover, African economic
development will require a degree of long-term sustainability that participation in
the treaty can help foster. Another MEA with few specific commitments is the
Desertification Convention. Here, implementation of the Convention's objectives
is a matter of pure survival. However, implementation appears to be greatly
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