Governance in Africa: Development of Laws and Regulations
In April 2001, at the request of the Association of Environmental Lawyers, an environmental law NGO in Monrovia, ELI reviewed and commented on the draft Environmental Protection and Management Law of the Republic of Liberia. To strengthen the on-the-ground applicability of the law and to build connections between public interest environmental lawyers in the region, ELI solicited the assistance of environmental lawyers from some of ELI’s partner organizations in Africa to review the draft law. ELI also provided copies of other framework environmental laws from Africa and around the world to assist the Association and the government of Liberia in developing an effective framework environmental law.
In 2003-2004, Tanzania developed a new framework law governing environmental protection. In 2003, ELI was asked to review an early draft of the statute and to provide comments. ELI gathered comments from scholars across Africa and provided its own comments on the statute which together reflected past U.S. and African experience with similar statutes. These comments were warmly received and hopefully will assist in the adoption of a strong framework law in the near future.
Ethiopia’s Environmental Protection Agency and the Commission on Environmental Law of IUCN —the World Conservation Union requested ELI’s assistance in peer reviewing and finalizing Ethiopia’s draft framework environmental law. With IUCN, ELI coordinated the review process, which involved soliciting comments from environmental lawyers throughout the region, synthesizing the comments, and adding its own perspectives. The project drew on the staff and institutional expertise of ELI and its African partners in drafting and implementing framework environmental laws around the world. Following the peer review process, ELI presented the IUCN/ELI comments at a workshop of interested governmental and non-governmental representatives and provided an opportunity for participants to discuss and offer feedback on the draft framework environmental law. This workshop was held in Addis Ababa on August 16-18, 1999. The EPA incorporated the various comments into draft laws, which were passed by the Council of Ministers in 2004.
Promoting Principles of Environmental Protection and Sustainable Development in Kenya’s New Constitution
In 1998, a landmark review of Kenya’s constitution was undertaken. The Constitution of Kenya Review Commission, which had the mandate to revise the Kenyan constitution, held public hearings throughout the country to ensure that the process included the voices and priorities of Kenyan experts and citizens. During this review process, eminent Kenyan environmental scholar Professor Charles O. Okidi prepared a detailed memorandum addressing how matters related to environment, natural resources, and sustainable development could be entrenched in the constitution. At Professor Okidi’s invitation, ELI reviewed a draft of the memorandum and provided supplemental analysis and commentary, drawing upon the Institute’s past research on environmental constitutional provisions in Africa and elsewhere. Professor Okidi’s presentation to the Commission, as well as his memorandum on Environment, Natural Resources, and Sustainable Development in Kenya’s Constitution-Making, were well received.
In recent years, the international community has started to explore ways in which natural resource certification may be used to address human rights issues and armed conflict. For example, the international effort to develop a certification scheme for diamonds is aimed at preventing the flow of “conflict diamonds” that fueled armed conflicts in Sierra Leone, Angola, and the Democratic Republic of the Congo. Certification schemes also appear to provide opportunities to improve the governance aspects of natural resource management, for instance by promoting a clear chain of custody that hinders corruption.
In 2003, ELI released a research report entitled “Harnessing Consumer Power: Using Certification Systems to Promote Good Governance,” which examines the state of knowledge on how certification of natural resources can promote environmental and social sustainability, improve governance, and prevent, mitigate, or even end armed conflict. The report also considers the legal aspects of certification, particularly how certification systems can be made more enforceable and effective. Because certification continues to rapidly evolve, the report focuses on concepts and analyses that look forward to potential ways in which natural resource certification may be expanded to address conflict, promote good governance, and advance human rights throughout Africa and around the world.
Air pollution resulting from industrial processes, motor vehicle emissions, and even domestic coal and wood fires persists as a major environmental problem in South Africa. The air legislation of the Apartheid era, dating back to the 1960s, focused primarily on end-of-pipe regulation rather than broader environmental concerns, and it lacked meaningful air quality standards. ELI discussed these issues with members of a high-level delegation from South Africa’s Department of Environmental Affairs and Tourism (DEAT) visiting Washington, DC in January 2002. Then, at the request of the Department, ELI reviewed and commented on a proposed National Air Quality Management Bill being developed by DEAT. Particular emphasis was placed on cross-cutting issues such as the importance of substantive standards and the need for transparency, public participation, and accountability of government and private sector actors. ELI submitted its final comments to DEAT in February 2002, and the law was passed in 2004.
Many African nations, including South Africa, are tackling lead pollution that results from use of leaded gasoline. As part of a study tour organized by the U.S. Environmental Protection Agency in September of 2003, ELI addressed a visiting South African delegation of government officials, industry representatives, and civil society advocates on the legal ramifications of phasing out leaded gasoline. Participants discussed both the U.S. experience of phasing out leaded gasoline and the international legal regimes that presently apply to lead and could apply to other additives, such as MTBE.
The Niger Delta contains a wealth of biodiversity as well as a majority of Nigeria’s oil fields. For the last fifty years, exploitation of the region’s oil has caused considerable damage to ecosystem components that have little or no value in international trade but are critical to the health and survival of local communities. In 2003, ELI helped create a MacArthur Foundation-sponsored report entitled “Natural Resource Valuation and Damage Assessment in Nigeria: A Case Study of the Niger Delta.” The report examines the value discrepancies of certain species between the international market and local households in the Niger Delta and uses that data as a launching point for discussing Nigerian law and the improvements that can be made to better compensate damage to natural resources. ELI contributed by providing a comparative analysis of Nigerian law to that of the U.S., which is among the most comprehensive in its natural resource damage assessment and resource valuation, shaping the latter half of the report and ultimately leading to specific policy recommendations for the Nigerian government.