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Patricia Kameri-Mbote, Alexander Paterson, Oliver C. Ruppel, Bibobra Bello Orubebe, Emmanuel D. Kam Yogo (ed.)

Law | Environment | Africa

Publication of the 5th Symposium | 4th Scientific Conference | 2018 of the Association of Environmental Law Lecturers from African Universities in cooperation with the Climate Policy and Energy Security Programme for Sub-Saharan Africa of the Konrad-Adenauer-Stiftung and UN Environment

1. Edition 2019, ISBN print: 978-3-8487-5287-4, ISBN online: 978-3-8452-9460-5, https://doi.org/10.5771/9783845294605

Series: Recht und Verfassung in Afrika - Law and Constitution in Africa, vol. 38

CC-BY-NC-ND

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Recht und Verfassung in Afrika | 38 Law and Constitution in Africa Law | Environment | Africa Kameri-Mbote | Paterson | Ruppel | Orubebe | Kam Yogo (eds.) Nomos [africa] Publication of the 5th Symposium | 4th Scientific Conference | 2018 of the Association of Environmental Law Lecturers from African Universities in cooperation with the Climate Policy and Energy Security Programme for Sub-Saharan Africa of the Konrad- Adenauer-Stiftung and UN Environment Herausgeber/Editorial Board: Hartmut Hamann, Professor of Law, Freie University Berlin & Hamann Rechtsanwälte, Stuttgart | Ulrich Karpen, Professor of Law, University of Hamburg | Oliver C. Ruppel, Professor of Law, University of Stellenbosch | Hans-Peter Schneider, Professor of Law, University of Hannover Wissenschaftlicher Beirat/Scientific Advisory Council: Laurie Ackermann, Justice (Emeritus), Constitutional Court of South Africa, Johannesburg | Jean-Marie Breton, Professor of Law (Emeritus), Honorary Dean, University of French West Indies and Guyana | Philipp Dann, Professor of Law, Humboldt University Berlin | Gerhard Erasmus, Professor of Law (Emeritus), Associate, Trade Law Centre, Stellenbosch | Norbert Kersting, Professor of Political Sciences, University of Muenster | Salvatore Mancuso, Professor of Law, Chair Centre for Comparative Law in Africa, University of Cape Town | Yvonne Mokgoro, Justice, South African Law Reform and Development Commission, Pretoria | Lourens du Plessis, Professor of Law, Northwest University, Potchefstroom | Werner Scholtz, Professor of Law, University of the Western Cape, Bellville | Nico Steytler, Professor of Law, Int. Association of Centers for Federal Studies, Bellville | Hennie A. Strydom, Professor of Law, University of Johannesburg | Christoph Vedder, Professor of Law, University of Augsburg | Gerhard Werle, Professor of Law, Humboldt University Berlin | Johann van der Westhuizen, Justice, Constitutional Court of South Africa, Johannesburg | Reinhard Zimmermann, Professor of Law, Managing Director of the Max Planck Institute for Comparative and International Private Law, Hamburg Recht und Verfassung in Afrika – Band/Volume 38 Law and Constitution in Africa BUT_Kameri-Mbote_5287-4.indd 2 22.11.18 11:55 Patricia Kameri-Mbote | Alexander Paterson Oliver C. Ruppel | Bibobra Bello Orubebe Emmanuel D. Kam Yogo (eds.) Law | Environment | Africa Publication of the 5th Symposium | 4th Scientific Conference | 2018 of the Association of Environmental Law Lecturers from African Universities in cooperation with the Climate Policy and Energy Security Programme for Sub-Saharan Africa of the Konrad- Adenauer-Stiftung and UN Environment Nomos BUT_Kameri-Mbote_5287-4.indd 3 22.11.18 11:55 The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de ISBN 978-3-8487-5287-4 (Print) 978-3-8452-9460-5(ePDF) British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN 978-3-8487-5287-4 (Print) 978-3-8452-9460-5 (ePDF) Library of Congress Cataloging-in-Publication Data Kameri-Mbote, Patricia / Paterson, Alexander / Ruppel, Oliver C. / Orubebe, Bibobra Bello / Kam Yogo, Emmanuel D. Law | Environment | Africa Publication of the 5th Symposium | 4th Scientific Conference | 2018 of the Association of Environmental Law Lecturers from African Universities in cooperation with the Climate Policy and Energy Security Programme for Sub-Saharan Africa of the Konrad- Adenauer-Stiftung and UN Environment Patricia Kameri-Mbote / Alexander Paterson / Oliver C. Ruppel / Bibobra Bello Orubebe / Emmanuel D. Kam Yogo (eds.) 724 p. Includes bibliographic references and index. ISBN 978-3-8487-5287-4 (Print) 978-3-8452-9460-5 (ePDF) 1st Edition 2019 © Nomos Verlagsgesellschaft, Baden-Baden, Germany 2019. Printed and bound in Germany. This work is subject to copyright. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Under § 54 of the German Copyright Law where copies are made for other than private use a fee is payable to “Verwertungs gesellschaft Wort”, Munich. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Nomos or the editors. Disclaimer The contents of the articles, including any errors or omissions are solely the responsibility of the authors. Opinions expressed by the different authors, do not necessarily reflect those of the editors or of the Konrad-Adenauer-Stiftung. The editors did their best to acknowledge the usage of copyright protected material. In case any copyright violation should be detected, please contact the editors and any such error or omission will be rectified in a reprint or 2nd edition. BUT_Kameri-Mbote_5287-4.indd 4 22.11.18 11:55 5 Table of contents Foreword 9 Preface 11 Acknowledgements 13 The editors 15 The contributors 17 Chapter 1: Law, environment, Africa: introducing the imperatives, parameters and trends 21 Alexander Paterson PART I: CLIMATE CHANGE AND ENERGY Chapter 2: Climate change legislative development on the African continent 33 Olivia Rumble Chapter 3: Nigeria’s commitments under the climate change Paris Agreement: legislative and regulatory imperatives towards ensuring sustainable development 61 Oluwatoyin Adejonwo-Osho Chapter 4: Bridging the gap between climate change and energy policy options: what next for Nigeria? 83 Morakinyo Adedayo Ayoade Chapter 5: Climate change, human security and the humanitarian crisis in the Lake Chad Basin region: selected legal and developmental aspects with a special focus on water governance 105 Oliver C. Ruppel & Mark B. Funteh Chapter 6: Forests, forest rights, benefit-sharing and climate change implications under Cameroonian law 137 Christopher F. Tamasang Chapter 7: Indigenous peoples and climate change in Cameroon 165 Daniel Armel Owona Mbarga Table of contents 6 Chapter 8: REDD+ and benefit sharing: an examination of the legal framework in Uganda 175 Hadijah Yahyah Chapter 9: Regulatory preparedness for non-motorised transport in Nairobi 201 Edna Odhiambo PART II: NATURAL RESOURCES GOVERNANCE Chapter 10: Wildlife conservation and community property rights in Kenya 223 Patricia Kameri-Mbote Chapter 11: Criminal law protection of wildlife reserves in Cameroon 247 Marie Ngo Nonga Chapter 12: Harnessing oil as natural resource wealth: a focus on the legal frameworks of Nigeria and Uganda 267 Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara Chapter 13: Access and benefit sharing: beyond the Nagoya Protocol and its ideals 293 Andrew Muma Chapter 14: Ecosystem services: legal issues on Nigeria’s wetlands 315 Erimma Gloria Orie Chapter 15: The role of the Environment and Land Court in governing natural resources in Kenya 335 Collins Odote Chapter 16: Public participation in environmental decision-making in Cameroon – myth or reality? 357 Jean-Claude Ashukem Chapter 17: Utilising Kenya’s marine resources for national development 375 Kariuki Muigua Chapter 18: The Environmental Management Act (2017) and natural resource regulation in Malawi: opportunities for and limitations to effective enforcement 393 Gift Dorothy Makanje Table of contents 7 PART III: WATER GOVERNANCE, MANAGEMENT AND USE Chapter 19: Pollution of water in South Africa by untreated sewage: addressing the governance issues 413 Michael Kidd Chapter 20: Kenya’s Water Act (2016): real devolution or simply the ‘same script, different cast’ 429 Elizabeth Gachenga Chapter 21: Improving the legal protection of strategic water source areas: a South African perspective 453 Amanda Mkhonza Chapter 22: Institutional and legal challenges to realising clean and safe water for all in Uganda 479 Phiona Muhwezi Mpanga Chapter 23: The conflict between privatisation and the realisation of the right to water in Kenya 497 Nerima Akinyi Were Chapter 24: Policy, regulatory and institutional frameworks relevant to Ethiopian water governance 519 Mekete Bekele Tekle Chapter 25: Water resources management and environmental sustainability in west and central Africa 545 Joseph Magloire Ngang Chapter 26: Water security and environmental justice in Nigeria and South Africa: achievable concord or discordant alliance? 561 Irekpitan Okukpon Chapter 27: The Lake Chad Basin Water Charter: strengths and weaknesses 587 Emmanuel D. Kam Yogo Table of contents 8 PART IV: REGULATING SOCIAL AND ENVIRONMENTAL IMPACTS Chapter 28: Making the case for gender and environmental considerations in the regulatory framework relating to the Uganda-Tanzania crude oil pipeline project 607 Godard Busingye Chapter 29: Integrating climate change in the environmental impact assessment process: challenges and prospects in Nigeria 627 Bibobra Bello Orubebe Chapter 30: The Environmental Management Act (2011): a basis for the growth of an environmental ethos and good environmental governance in Zambia? 647 Pamela Towela Sambo Chapter 31: Regulating environmental impacts associated with mining in Uganda 665 Emmanuel Kasimbazi Chapter 32: An analysis of environmental impacts of timber exploitation on indigenous communities’ land in Cameroon 697 Esther Effundem Njieassam 9 Foreword One of the great privileges in being an academic is in learning new ways of approaching issues. Another is in collaborating with colleagues from our own and other countries. As Chair of the IUCN Academy of Environmental Law (the Academy), I have been privileged to meet and become friends with many of the contributors to this book. They have introduced me to many aspects of the interactions of law and the environment in Africa and, as this edited collection amply demonstrates, there is so much more for all of us to learn. Our mission in the Academy is to advance understanding of, and capacity to research and teach environmental law across the world. Our annual colloquia and our open access, peer reviewed, eJournal along with our many edited collections on aspects of environmental law and on line teaching materials include contributions from African colleagues. Through these contributions, our colleagues have introduced many Academy members to the rich scholarship of African environmental lawyers. We have also learnt of the gaps in African literature and of the need to develop materials with which to educate the next generation of African environmental lawyers. The substantive volume that is ‘Law | Environment | Africa’ provides a rich contribution to this body of scholarship and a contribution that extends beyond the continent of Africa. The volume addresses a range of issues which are common to every legal system. Questions such as how innovative new legislation actually is in practice, what the role of law is in developing a cultural of environmental respect and what the best policy, regulatory or governance frameworks might look like, arise across the globe. The areas of focus – climate change, natural resource governance, water governance and social and environmental impacts are pertinent to all corners of the globe. While the impacts of climate change, for example, may vary across the continents, common lessons are evident from the experiences of all countries. Contributions in this collection which address climate change demonstrate, for example, the required legislative changes if ambitious targets to reduce greenhouse gases while continuing development are to be met. The potential severity of climate change impacts in Africa serve to highlight the types of legal measures necessary to mitigate that impact, or to help communities adapt to it. It is also clear that the measures needed to address these impacts include some that pose significant challenges to the way we currently organise ourselves, be that in terms of infrastructure planning (for example for transport) or in how we address particular sections of the population, such as marginalised groups. Contributions in this collection thus highlight discourses that are echoed around the world. For example, the analysis of private and community rights addressed in chapters dealing with natural resource governance and water governance reflect broader legal Foreword 10 and political discourse of how rights should be organised. Those on public participation, access to benefits and environmental justice raise issues germane to both national and international law across the globe. The relative dearth of globally available publications on environmental law in Africa compared to the physical presence and population of Africa in itself makes this volume extremely important. More than that, however, the volume holds lessons for environmental lawyers from across the globe and highlights areas in which inter-continental collaborations on environmental law may be beneficial. Prof. Elizabeth A. Kirk Chair, IUCN Academy of Environmental Law Professor of International Environmental Law Nottingham Trent University Nottingham, October 2018 11 Preface Many African countries have signed international treaties governing the environment and natural resources and have constitutional provisions on environmental law. Framework environmental laws and sectoral statutes on diverse aspects of the environment and natural resource management at the national level complement these. The need for analysis and critique of the content, implementation and enforcement of the laws cannot be overemphasised in such a dynamic field. The fodder for research and academic writing is readily available and it is gratifying to note that African scholars have taken up the challenge and provided much needed leadership in this regard. This book is a celebration of the development of environmental law scholarship in Africa. Coming from a dearth of universities teaching environmental law in Africa until the early 2000s, the array of authors, diversity of subjects and representation of universities in the book demonstrates the power of dreams. This book’s genesis is traceable to Professor Charles Odidi Okidi’s dream to have an environmental law scholars from African universities network within the Association of Environmental Law Lecturers in African Universities (ASSELLAU). Prof. Okidi leveraged his networks and sought support of the United Nations Environment Programme to bring together a group of researchers and scholars from different African countries in 2004. These scholars decried the paucity of environmental law scholarship and research from Africa and resolved to establish ASSELLAU with the main objective of popularizing the teaching of environmental law in African universities. As the person charged to run with Prof. Okidi’s dream, I must confess that this was a daunting challenge and I had no idea how to execute the task and what direction the dream would lead. It is therefore my great joy and pride to observe the remarkable success recorded by the Association in both getting environmental law into the undergraduate and graduate curricula of African universities and growing the discipline in the region in less than two decades. This book is testament to that success. It illustrates the Association’s prowess in enlisting committed law researchers working on diverse aspects of the environment – climate change; natural resource governance; water management and use; and regulation of social and environmental impacts. The capacity and agility of the scholars in the region is demonstrated in the variety and complexity of the subjects tackled in the book. They range from case studies of specific ecosystems and species within countries to broader natural resource governance issues applicable across different countries. The book also includes chapters dealing with innovations in national laws dealing with environment dispute resolution and interdisciplinary issues such as the human right to water and sanitation; natural resource management and indigenous communities; gender and environment; and resource management and development. Preface 12 The authors include members of ASSELLAU and younger scholars who have taken up the discipline more recently, some under the tutelage of older members of the Association. The engagement of scholars across different generations sets a solid foundation for sustained research going forward. It is my expectation that this book will: promote environmental law scholarship in the continent, the sub-regions, the individual countries and institutions of higher learning in Africa; promote exchange of ideas within countries; contribute to policy discourses globally, regionally and nationally; and inform global scholarship and developments in environmental law. I applaud the audacity of Professor Oliver Ruppel, the Founding Director of the Climate Policy and Energy Security Programme for Sub-Saharan Africa (CLESAP) of the Konrad-Adenauer-Stiftung for supporting the conference at which drafts of the papers included in this book were presented in Yaoundé, Cameroon in January 2018. As a founder member of ASSELLAU, Prof. Ruppel has also modelled leadership as an environmental law scholar and researcher. Finally, I would be remiss not to acknowledge the mentorship and friendship of Prof. Okidi who has been rightly named the ‘father of environmental law in Africa’, in steering ASSELLAU forward over the years. While always throwing me into the deep end of things, he has been a great source of encouragement and inspiration, ensuring that I keep afloat when all forces seemed to conspire to get me to sink under the weight of things. Prof. Dr. Patricia Kameri-Mbote (on behalf of the Editors) Chairperson ASSELLAU Nairobi, August 2018 13 Acknowledgements Law | Environment | Africa is a publication of the Proceedings of the 5th Symposium and the 4th Scientific Conference of the Association of Environmental Law Lecturers from African Universities (ASSELLAU) in cooperation with the Climate Policy and Energy Security Programme for Sub-Saharan Africa of the Konrad-Adenauer-Stiftung (KAS), the United Nations Environment Programme (UNEP) and the University of Douala. This high level event was held at the Hilton Hotel in Yaounde, Cameroon from 11-12 January 2018. At the occasion, the participants hailed the conference as an historic one in Africa. The conference was held in both official languages of Cameroon, namely English and French, with parallel sessions. It was an opportunity for more than 50 legal experts from all over Africa to present their papers and discuss the latest issues pertaining to environmental law on the continent. Selected presentations have now been captured in this remarkable book publication. The book’s object is to explore, review and analyse recent developments located at the nexus of law and the environment in Africa. The collection comprises 32 chapters from legal experts from central, eastern, southern and western Africa. It is a great achievement to have the book published in the renowned legal series “Law and Constitution in Africa (Recht und Verfassung in Afrika)” with Nomos Law Publishers in Germany. The series is known to intensify existing efforts in strengthening and deepening scientific knowledge of legal and constitutional issues in Africa and to contribute to a lively cooperation of academia and practice on both continents – Africa and Europe. A multi-authored publication such as this one is a great team effort. Therefore, special thanks go to my fellow editors and to all the distinguished contributors. Thanks also go to the Konrad-Adenauer-Stiftung (KAS) for making this publication financially possible. As a longstanding member of ASSELLAU, I herewith congratulate the association and Professor Patricia Kameri-Mbote (who is the chair of ASSELLAU) for the enormous impact on the development of environmental law in Africa over the past 15 years of ASSELLAU’s existence. Prof. Dr. Oliver C. Ruppel Founding Director Climate Policy and Energy Security Programme for Sub-Saharan Africa (CLESAP) Konrad-Adenauer-Stiftung (KAS) Yaounde, August 2018 15 The editors Prof. Dr. Patricia Kameri-Mbote Professor of Law, Former Dean, School of Law, University of Nairobi, Kenya; Chair: Association of Environmental Law Lecturers in African Universities (ASSELLAU). Prof. Dr. Alexander Ross Paterson Professor of Law and Director, Institute of Marine and Environmental Law, Faculty of Law, University of Cape Town, South Africa. Prof. Dr. Oliver C. Ruppel Professor of Law and Director, Development and Rule of Law Programme (DROP), Stellenbosch University, South Africa; Founding Director, Climate Policy and Energy Security Programme for sub-Saharan Africa (CLESAP), Konrad-Adenauer-Stiftung, Yaounde, Cameroon; Distinguished Fellow Fraunhofer Center for International Management and Knowledge Economy (IMW), Leipzig, Germany; Professor Extraordinaire, University of Central Africa (UCAC), Yaounde, Cameroon; Strathmore Law School, Nairobi, Kenya; and European Faculty of Law, Nova University, Slovenia. Prof. Dr. Bibobra Bello Orubebe Professor of Law, Provost and Dean, College of Law, Novena University Ogume, Delta State, Nigeria. Prof. Dr. Emmanuel D. Kam Yogo Professor of Law, Department of Public Law, Faculty of Legal and Political Sciences, University of Douala, Cameroon and Associate Professor, Faculty of Law, Laval University, Canada. 17 The contributors Dr. Oluwatoyin Adejonwo-Osho Lecturer, Department of Public Law, Faculty of Law, University of Lagos, Nigeria. Dr. Lanre Aladeitan Senior Lecturer, Energy, Oil and Gas and Environmental Law; previously Head of Department, Department of Public and International Law, Faculty of Law, University of Abuja, Gwagwalada, Nigeria. Dr. Jean-Claude Ashukem Postdoctoral Fellow, North-West University, Potchefstroom Campus, South Africa. Dr. Godard Busingye Senior Lecturer of Public International Law, School of Law, Kampala International University, Uganda. Prof. Dr. Mark B. Funteh Associate Professor of Peace Studies, University of Maroua, Cameroon. Dr. Elizabeth Gachenga Deputy Vice Chancellor, Academic and Student Affairs, Strathmore University, Kenya. Prof. Dr. Patricia Kameri-Mbote Professor of Law; Former Dean, School of Law, University of Nairobi, Kenya; Chair: Association of Environmental Law Lecturers in African Universities (ASSELLAU). Prof. Dr. Emmanuel D. Kam Yogo Professor of Law, Department of Public Law, Faculty of Legal and Political Sciences, University of Douala, Cameroon and Associate Professor, Faculty of Law, Laval University, Canada. Prof. Dr. Emmanuel Kasimbazi Professor of Law and Chair, Environmental Law Centre, School of Law, Makerere University, Kampala, Uganda. Prof. Dr. Michael Kidd Professor of Law, School of Law, University of Kwazulu-Natal, South Africa. Gift Dorothy Makanje Lecturer in Law, Department of Foundational Law, University of Malawi. The contributors 18 Amanda Mkhonza Lecturer in Law, Department of Public Law, University of Cape Town, South Africa. Prof. Dr. Ayoade Morakinyo Adedayo Associate Professor, Department of Jurisprudence and International Law, Faculty of Law, University of Lagos, Akoka, Nigeria. Dr. Kariuki Muigua Senior Lecturer, School of Law, University of Nairobi, Kenya; Senior Partner: Kariuki Muigua & Co. Advocates; Member of the National Environment Tribunal, Kenya. Dr. Phiona Muhwezi Mpanga Lecturer, School of Law, Makerere University, Kampala, Uganda. Andrew Muma Lecturer, School of Law, University of Nairobi, Kenya; Senior Partner: Muma & Kanjama Advocates. Dr. Joseph Magloire Ngang Senior Lecturer, University of Yaounde II – Soa, Cameroon. Dr. Marie Ngo Nonga Senior Lecturer, Faculty of Juridical Sciences and Politics, University of Yaounde II – Soa, Cameroon. Chidinma Therese Odaghara Lecturer, Environmental and Planning Law, Sub-Coordinator, Law Clinic, Faculty of Law, University of Abuja, Nigeria. Edna Odhiambo Tutorial Fellow, School of Law, University of Nairobi, Kenya. Dr. Collins Odote Senior Lecturer, Centre for Advanced Studies in Environmental Law and Policy (CASELAP), University of Nairobi, Kenya. Dr. Irekpitan Okukpon Research Fellow, Nigerian Institute of Advanced Legal Studies (NIALS), University of Lagos Campus, Yaba, Lagos State, Nigeria. Dr. Erimma Gloria Orie Senior Lecturer, National Open University of Nigeria, Lagos, Nigeria. Prof. Dr. Bibobra Bello Orubebe Professor of Law, Provost and Dean, College of Law, Novena University Ogume, Delta State, Nigeria. The contributors 19 Daniel Armel Owona Mbarga Lawyer and Doctoral Candidate, Catholic University of Central Africa (UCAC), Yaounde, Cameroon. Prof. Dr. Alexander Ross Paterson Professor of Law and Director, Institute of Marine and Environmental Law, Faculty of Law, University of Cape Town, South Africa. Olivia Rumble Senior Lecturer, Environmental Law, University of Cape Town, South Africa; Director, Climate Legal. Prof. Dr. Oliver C. Ruppel Professor of Law and Director of the Development and Rule of Law Programme (DROP), Stellenbosch University, South Africa; Founding Director, Climate Policy and Energy Security Programme for sub-Saharan Africa (CLESAP), Konrad-Adenauer-Stiftung, Yaounde, Cameroon; Distinguished Fellow at the Fraunhofer Center for International Management and Knowledge Economy (IMW), Leipzig, Germany; Professor Extraordinaire, University of Central Africa (UCAC), Yaounde, Cameroon; Strathmore Law School, Nairobi, Kenya; and European Faculty of Law, Nova University, Slovenia. Dr. Esther Effundem Njieassam Post-Doctoral Research Fellow, South African Research Chair in International Law, University of Johannesburg, South Africa. Dr. Pamela Towela Sambo Lecturer; immediate past Assistant Dean (Undergraduate), School of Law, University of Zambia. Prof. Dr. Christopher Funwie Tamasang Associate Professor, Vice-Dean in charge of Research and Cooperation, Faculty of Laws and Political Science, University of Yaounde II, Cameroon; Member: IUCN Academy of Environmental Law; Member: World Commission on Environmental Law; Vice Chair: ASSELLAU in charge of the Central African Region. Prof. Mekete Bekele Tekle Associate Professor of Law, School of Law, Addis Ababa University, Ethiopia. Robert Alex Wabunoha Regional Coordinator, Environment Government, United Nations Environment (UNEP), Nairobi, Kenya; visiting Lecturer; formerly, senior environment lawyer, National Environment Management Authority, Uganda; Principle State Attorney, Ministry of Justice, Uganda. The contributors 20 Nerima Akinyi Were Tutorial Fellow, School of Law, University of Nairobi, Kenya. Hadijah Yahyah Lecturer, School of Law, Kampala International University, Kampala, Uganda. 21 Chapter 1: Law, environment, Africa: introducing the imperatives, parameters and trends Alexander Paterson 1 The context Fundamentally we all depend on nature: the ecological infrastructure of the planet that provides the flow of goods and services upon which our livelihoods and economies are built. Yet Africa’s ecosystems are changing faster than ever before through the combined impact of global and local pressures. Loss of ecosystem services is compromising future security, health and well-being and effects are being borne disproportionately by the poor.1 This telling reality highlighted in the Africa Ecological Footprint Report (2012)2 is mimicked in several more recent regional reports comprehensively canvassing both the state of the environment in Africa and the range of factors leading to its deterioration. These reports include the African Environment Outlook 3 (2013),3 Climate Change 2014: Impacts, Adaptation, and Vulnerability (2014)4 and most recently the Global Environmental Outlook GEO-6 – Regional Assessment for Africa (2016).5 Repeating the numerous statistics exhaustively outlined in these reports serves no purpose here as several realities are clearly indicated. The deficit between what the continent’s ecological infrastructure can sustain and is being expected to sustain is growing rapidly. The range of factors contributing to the growing deficit is diverse. The current negative impacts associated with the growing deficit on the continents’ inhabitants’ security, health and well-being are vast and expanding. Recognising this ecological fragility, Agenda 2063 outlines the continent’s development agenda for the next 45 years. It includes a prosperous Africa based on inclusive growth, sustainable development, peace, security, resilience, good governance, democracy, respect for human rights, justice and the rule of law amongst its express aspirations.6 Agenda 2063 coincides with the post-2015 global development agenda reflected in Transforming our World: the 2030 Agenda for Sustainable Development,7 ____________________ 1 WWF (2012: 6). 2 Ibid. 3 UNEP (2013: 3). 4 Niang et al. (2014: 1199-1265). 5 UNEP (2016). 6 See generally: African Union (2015). 7 UNGA Res. 70/1 (2015). Alexander Paterson 22 adopted by the United Nations General Assembly in September 2015. In seeking to fulfil the Agenda 2063 aspirations, African states are also seeking to promote the attainment of the 17 sustainable development goals (SDGs) and associated targets. The SDGs envisage a world, and accordingly an African continent: devoid of poverty, hunger and inequity; ensuring the health and well-being of its inhabitants and the sustainable provision and management of water, sanitation and energy; promoting sustained, sustainable and inclusive economic growth, cities and human settlements resting on resilient infrastructure; governed by peaceful, inclusive, democratic and accountable institutions; undertaking urgent action to combat climate change; and protecting, restoring and promoting the sustainable use of its terrestrial and marine ecosystems. Realising Africa’s desired development trajectory within the constraints of the realities facing the continent’s valuable yet fragile ecological infrastructure is a tricky balancing act clearly requiring a multi-disciplinary approach. Within this context, the critical role of law has been increasingly recognised. This role includes the manner in which law constructs and regulates the functioning of key institutions; regulates and promotes the equitable and sustainable use and consumption of natural resources; creates mechanisms to inform and control pollution; constrains environmentally harmful actions; fashions tools to promote sustainable land-use planning and development; and provides processes through which the impacts associated with the foregoing can be prudently considered and mitigated. In seeking to encourage this role for law in Africa, and in keeping with the spirit of forging African solutions to African challenges, scholars from across the continent formed the Association of Environmental Law Lecturers from African Universities (ASSELLAU) in 2004. Its specific objectives include promoting the generation and dissemination of environmental law research to assist Africa’s law and policymakers to craft and implement legal frameworks that achieve the tricky balance referred to above through conferences and symposia. In partial fulfilment of this mandate, AS- SELLAU held its 4th Scientific Conference in Yaoundé, Cameroon, from 10-13 January 2018. This book comprises of selected papers presented at the conference. Divided into four parts, its object is to explore, review and analyse several recent issues and developments located at the nexus of law, the environment and Africa. 2 Climate change and energy Part I of the book focuses on climate change and energy issues and comprises of eight chapters. In Chapter 2 titled “Climate change legislative developments on the African continent”, Olivia Rumble discusses the role of law in responding to climate change, the meaning of ‘climate change legislation’ and the status of this legislation in Africa. She then turns to consider in detail the recent legal reform in two African countries, namely South Africa and Kenya, teasing out possible trends and lessons which may Law, environment, Africa: introducing the imperatives, parameters and trends 23 provide guidance to other African countries in assessing the adequacy of their existing laws to deal with climate change and amending or introducing new laws in response. In Chapter 3, Oluwatoyin Adejonwo-Osho explores the issue from a Nigerian perspective, specifically “Nigeria’s commitments under the climate change Paris Agreement: legislative and regulatory imperatives towards ensuring sustainable development”. Acknowledging the absence of dedicated climate change legislation in Nigeria, she considers the impacts of climate change in Nigeria, provides an overview of the country’s nationally determined contribution (NDC) under the Paris Agreement, and the existing domestic laws and policies of relevance to giving effect to the NDC (including the establishment of a Department of Climate Change and a proposed new bill to establish a National Climate Change Commission). She concludes by exploring key gaps and contradictions in these existing relevant laws and policies and options for reform. Dayo Ayoade builds on this analysis in Chapter 4, titled “Bridging the gap between climate change and energy policy options: what next for Nigeria?”. He specifically focuses on the manner in which Nigeria’s current law and policy addresses climate change and energy issues separately and argues for the need for a more holistic and integrated approach comprising of what he terms a tripartite structure comprising of a Nigerian Climate Change and Energy Policy, a National Climate Change and Energy Act and a Climate Change and Energy Agency. Oliver Ruppel and Marc Funteh’s Chapter 5 shifts to a more regional perspective focusing on the Lake Chad Basin region. In their chapter titled “Climate change, human security and the humanitarian crisis in the Lake Chad Basin region: selected legal and developmental aspects with a special focus on water governance”, they adopt a transdisciplinary approach in exploring the many factors characterising and fuelling the crisis in the region including: diverse and changing climatic conditions, hydrological cycles and biophysical environments; shifting livelihoods; human security, conflict and migration; water scarcity and regional security; and poor water governance. They conclude that climate change has been a sustaining force for the existing humanitarian crises in the region and that human security predicaments of the Lake Chad Basin region have been exacerbated by environmental shifts. They further highlight that public international, regional and domestic law and policy could more effectively foster the integration of climate change adaptation, water governance and conflict management; with the SDGs, the Paris Agreement and NDCs providing feasibly important entry points. The following two chapters focus on climate change issues relevant to Cameroon. In Chapter 6, Christopher Tamasang considers “Forests, forest rights, benefit-sharing and climate change implications under Cameroonian law”. He assesses the various forest types extant in Cameroon, the bundle of rights attached thereto, the formula for allocating and sharing benefits under the country’s forestry legislation, and analyses their implications specifically in the context of climate change mitigation. He argues that although Cameroon’s forestry legislation establishes a bundle of rights attached to Alexander Paterson 24 each forest type and mechanisms for facilitating benefit-sharing, the forest rights are not adequate for some relevant stakeholders involved in forest management and the mechanisms are plagued with inherent flaws which ultimately undermine their role in contributing to climate change mitigation in the country. In Chapter 7, Daniel Mbarga considers the specific nexus between “Indigenous peoples and climate change in Cameroon”, highlighting the fact that although indigenous peoples are among those who produce the least carbon emissions, they are the most vulnerable to the effects of climate change. He critically reviews the legal measures undertaken in Cameroon to protect indigenous people from the effects of climate change and proposes solutions where they are viewed as inadequate. Continuing the focus on the link between forests and climate change, Chapter 8 explores “REDD+ and benefit sharing: an examination of the legal framework in Uganda”. In this chapter, Hadijah Yahyah begins by exploring the theoretical nexus between REDD+ initiatives and benefit-sharing mechanisms before critically reviewing Uganda’s relevant law and policy framework. She concludes that although benefit-sharing is a vital component of Uganda’s REDD+ programme the necessary legal guidance to implement it is lacking, and proposes several reforms to fill the current legal vacuum. In the final chapter of this part of the book, Edna Odhiambo shifts the climate change focus to the transport sector and the Kenya context in Chapter 9 titled “Regulatory preparedness on non-motorised transport in Nairobi”. Founded on the premises that if car-oriented planning continues to dominate, a lock into unsustainable carbonintensive infrastructure will result and exacerbate adverse climate change. The chapter considers the link between global climate change and the transport sector, before introducing the concept and benefits of non-motorised transport. It then turns to investigate whether Kenya’s national and local regulatory framework currently prioritises non-motorised transport as a low-carbon mobility option, concluding that whilst much has been done at the county level, significant options exist for prioritising and implementing non-motorised transport as a climate mitigation strategy in the transport sector at the national level. 3 Natural resource governance Part II of the book is dedicated to several issues falling under the rubric of natural resource governance. It comprises of nine chapters canvassing a broad array of issues relating to different natural resources including terrestrial wildlife, oil, wetlands and marine resources. In Chapter 10, Patricia Kameri-Mbote considers “Wildlife conservation and community property rights in Kenya”. She assesses the extent to which the contemporary Community Land Act (2016), read together with the Wildlife Conservation and Management Act (2013), jointly support wildlife conservation on community lands in Kenya. This, she argues, is a vital issue given that 66% of Kenya’s total Law, environment, Africa: introducing the imperatives, parameters and trends 25 land mass comprises of community land. She considers the conceptual framework relevant to wildlife conservation and land rights before outlining and assessing Kenya’s relevant legal framework. She ultimately concludes that the enabling legal and policy framework is in place to enable and encourage wildlife conservation on community land and that the National Land Use Policy (2017) provides an opportunity to further synergise land tenure and land use. Following the wildlife theme, Marie Nonga considers “Criminal law protection of wildlife reserves in Cameroon” in Chapter 11. She begins the chapter by decrying the current state of the country’s biological resources before engaging in an extensive analysis of the nature and efficacy of the criminal remedies prescribed in Cameroon’s legal framework seeking to protect these biological resources situated in the country’s wildlife reserves. Within this analysis, she highlights concerning ambiguities and outdated provisions and provides options for necessary reform. Chapter 12 shifts sectors and is titled “Harnessing oil as natural resource wealth: a focus on the legal frameworks of Nigeria and Uganda”. In this chapter, Lanre Aladeitan, Robert Wabunoha and Odaghara Therese examine the correlation between the resource-rich state and the content of its law focusing on performance level under three key components in the 2017 Resource Governance Index Report, namely: value realisation; revenue management; and enabling environment. Focusing on the resource of oil, and undertaking a comparative approach, the chapter outlines in detail the relevant legal frameworks of Nigeria and Uganda, before comparing, contrasting and evaluating them against the abovementioned three components of the 2017 Resource Governance Index Report. The authors conclude that their assessment confirms that a governance deficit exists in the decision-making chain in the extractive industry in Nigeria and Uganda, which urgently require legal reform. Andrew Muma turns to consider “Access and benefit sharing: beyond the Nagoya Protocol and its ideals” in Chapter 13. He analyses the utility of the Nagoya Protocol in the conservation and subsequent sustainable use of biodiversity resources, and argues that one of the causes of what he views as a problematic current state of affairs is that the crusade for private land ownership has led to the neglect of values and principles of communitarianism that were geared toward sustainable resource use. In coming to this conclusion, the author firstly considers an array of conceptual issues relating to community-based participation models in the context of biodiversity conservation, purported misunderstandings of customary tenure, and the link between property rights and biodiversity conservation. He then engages in a thorough critical analysis of the relevant international, regional and Kenyan legal framework of relevance to the issue, concluding by proposing a set of sui generis rights which he argues are yet to be given rightful attention in policy-making processes. In Chapter 14, titled “Ecosystem services: legal issues relevant to Nigeria’s wetlands”, Erimma Orie provides a comprehensive critical review of Nigeria’s legal framework of relevance to wetlands. She highlights the absence of a dedicated legal Alexander Paterson 26 framework governing wetlands, the inadequacy of piecemeal complementary laws and regulations on land management to fill the void, and problematic institutional and governance arrangements – proposing a swathe of legal reform options to overcome the current regulatory and institutional vacuum. This is followed in Chapter 15 by a critical review of the “The role of the Environment and Land Court in governing natural resources in Kenya”. In this chapter, Collins Odote reviews the successes of the Environment and Land Court, established following constitutional reform in Kenya in 2010, in improving natural resource governance in the country. In doing so, he reviews the court’s jurisprudence and argues that despite recent court decisions clarifying that court’s status and jurisdiction, and also granting magistrates’ courts powers to determine land and environmental matters, there is a need for reform particularly relating to the appointment of its judges and the nature of its decision-making processes. He also notes that the number of environmental cases brought before the court has been limited with the bulk of the cases relating to land issues. Jean-Claude Ashukem moves in Chapter 16 to consider whether public participation in environmental decision-making in Cameroon is a myth or reality. Through a comprehensive review of the relevant domestic legal framework, he assesses whether it empowers local communities to effectively participate in environmental decision-making processes; and whether or not their views and aspirations are taken into account in the decisions to emanate from these processes. He ultimately concludes that the rules, procedures and processes governing public participation in Cameroon are flawed and do not often align with governance practices that provide for the effective involvement and participation of local communities during decision-making processes; thereafter providing certain reform proposals to overcome this problematic reality. Marine resources form the focus of Chapter 17, titled “Utilising Kenya’s marine resources for national development”. In this chapter, Kariuki Muigua discusses how Kenya can take advantage of its rich marine resources to boost national economic development while empowering the coastal communities whose livelihoods mainly depend on these resources. The discourse canvassed in this chapter goes beyond legal and institutional arrangements to offer practical solutions based on principles such as public participation, empowerment, sustainable development and inclusiveness. The final chapter in this part of the book, Chapter 18, considers whether the environmental Management Act (2017) and natural resource regulation in Malawi provide opportunities for or limitations to effective enforcement in the natural resource sector, particularly relating to forest, fish and wildlife resources. Gift Makanje critically evaluates the enforcement mechanisms provided for in the relevant legal framework, highlighting outstanding barriers to enforcement and opportunities for reform. Law, environment, Africa: introducing the imperatives, parameters and trends 27 4 Water governance, management and use With water scarcity and insecurity characterising vast parts of Africa, Part III of the book focuses on a broad array of legal issues relating generally to water governance, management and use. It begins with Chapter 19 titled “Pollution of water in South Africa by untreated sewage: addressing the governance issues”. In this chapter, Michael Kidd begins by describing the pervasive problem of the pollution of South Africa’s water resources by untreated sewage over recent years. He describes the country’s governance structure in relation to water treatment, focussing specifically on legal aspects of governance, and evaluates how water governance is failing in the country. Elizabeth Gachenga turns in Chapter 20 to discuss an issue of water governance in Kenya, specifically whether the country’s contemporary water legislation, the Water Act (2016), provides for real devolution or simply the ‘same script, different cast’. She critically analyses the Water Act (2016) to specifically determine the extent to which it aligns with the spirit of devolution enshrined in Kenya’s Constitution (2010). She concludes her chapter with several recommendations on the basic tenets that the water governance framework should address in order to achieve the desired delicate balance between sustainable development of water resources and the principle of subsidiarity so critical to devolved governments. With vast parts of South Africa currently suffering severe drought, Amanda Mkhonza considers improving the legal protection of strategic water source areas in Chapter 21. Described as the ‘crown jewels’ of South Africa’s water resources, these strategic water source areas comprise only 8% of the country’s landscape, yet provide more than 50% of its surface water. She begins her analysis by briefly outlining South Africa’s current environmental regime with a view to identifying and evaluating possible area-based management measures which could be used to fill the current apparent regulatory vacuum when it comes to managing, conserving and protecting the country’s strategic water source areas. Realising their limitations, she then turns to consider the Australian context, specifically New South Wales’ state laws, with a view to scoping possible legal reform for South Africa’s water legislation relevant to improving the plight of these important areas. This is followed by three additional domestic legal perspectives focusing on Uganda, Kenya and Ethiopia. In Chapter 22, titled “Institutional and legal challenges to realising clean and safe water for all in Uganda”, Phiona Mpanga interrogates the legislative and institutional frameworks relating to water and sanitation service delivery, recommending a more decentralised approach. In Chapter 23, Nerima Were considers “The Conflict between privatisation and the realisation of the right to water in Kenya”. With the Kenyan Constitution (2010) prescribing the right to water, the author interrogates whether the model of water governance promoted in the Water Act (2016) is adequate to meet the fulfilment of the right. She argues that privatisation as a model of water supply, whether systemic or inadvertent, is not sufficient to guarantee the right Alexander Paterson 28 to water and offers a critique of the model and its use in Kenya. Finally, Mekete Tekle grapples with “Policy, regulatory and institutional frameworks relevant to Ethiopian water governance” in Chapter 24. He provides both an extensive overview and critique of the existing relevant legal and institutional regime and identifies options for improved implementation and legal reform. The final three chapters in this part of the book take a more regional and comparative perspective to water governance. Joseph Ngang addresses “Water resources management and environmental sustainability in west and central Africa” (Chapter 25); Irekpitan Okukpon “Water security and environmental justice in Nigeria and South Africa: achievable concord or discordant alliance?” (Chapter 26); and Emmanuel Kam Yogo “The Lake Chad Basin Water Charter: strengths and weaknesses” (Chapter 27). In each of these chapters, the authors highlight the inherent strengths and fragilities of the relevant regional and domestic legal regimes. 5 Regulating social and environmental impacts Part IV of the book is dedicated to considering several diverse issues relevant to the role of the law in regulating social and environmental impacts associated with human activity. Godard Busingye begins in Chapter 28 by “Making the case for gender and environmental considerations in the regulatory framework relating to the Uganda-Tanzania crude oil pipeline project”. Using the East African Crude Oil Project undertaken by Uganda and Tanzania as a case study, he reviews the relevant legal framework applicable to the project in both countries and concludes that it is inadequate to forestall the environmental and gender ‘evils’ associated with the construction of the project. In Chapter 29, Orubebe Bello considers the challenges and prospects of “Integrating climate change in the environmental impact assessment process” in Nigeria. Having undertaken a comprehensive analysis of Nigeria’s relevant law and policy framework, he bemoans the fact that climate change impacts are not currently adequately integrated into the environmental impact assessment process and calls for urgent legal reform. Pamela Sambo then undertakes a review of Zambia’s Environmental Management Act (2011) in Chapter 30, in order to determine whether it provides a basis for the growth of an environmental ethos and good environmental governance in the country. She begins by analysing the historical development of the now repealed Environmental Protection and Pollution Control Act (1990) and its successor the Environmental Management Act (2011). The purpose of this analysis is to identify the key environmental themes that these two laws embody, which she then uses as the structure against which to assess whether the more contemporary legislation has led to the development of an environmental ethos in Zambia. The author concludes that while the Environmental Management Act (2011) ‘gifted’ Zambia a robust and forward-looking environmental Law, environment, Africa: introducing the imperatives, parameters and trends 29 regime, the absence of a constitutionally entrenched environmental right constrains the development of a meaningful environmental ethos in the country. In Chapter 31, titled “Regulating environmental impacts associated with mining in Uganda”, Emmanuel Kasimbazi critically analyses the effectiveness of the regulatory and institutional framework for the protection of the environment in the mining sector in Uganda. He concludes that while the regulatory framework has been developed, there is a limited level of enforcement which results in mining authorities and companies not adhering to the legal requirements. The final chapter of the book (Chapter 32) considers the social and environmental impacts associated with the exploitation of timber on indigenous communities in Cameroon. Titled “An analysis of environmental impacts of timber exploitation on indigenous communities’ land in Cameroon”, Esther Njieassam argues that despite the government’s efforts in signing several international, regional and national environmental legal instruments seeking to protect the rights of indigenous peoples, incoherent government policies, weak provisions for ensuring adequate public participation, and inefficient monitoring and enforcement mechanisms have resulted in gross environmental and human rights violations. She argues further that the government in collaboration with multinational extractive companies undermine and ignore indigenous peoples’ right to a safe and healthy environment. 6 Conclusion The Global Environmental Outlook GEO-6 – Regional Assessment for Africa (2016) highlighted that “Africa faces both enormous challenges in relation to environmental management, and equally huge opportunities for ‘doing this better’”.8 Considering the content contained in the chapters of this book canvassing a broad range of legal issues across several jurisdictions, the same appears true for the role of law. The legal challenges are plenty, but the opportunities to improve the laws and governance arrangements equally are plenty. It is hoped that the analysis and solutions proposed in the covers of this book provide some additional and useful food for thought to those engaged in formulating, refining and implementing legal frameworks central to Africa’s tricky quest in attaining its desired development trajectory within the confines of the continent’s valuable yet fragile ecological infrastructure. ____________________ 8 UNEP (2016: 8). Alexander Paterson 30 References African Union (2015) Agenda 2063: framework document. Niang, I, OC Ruppel, MA Abdrabo, A Essel, C Lennard, J Padgham & P Urquhart (2014) “Africa” in VR Barros, CB Field, DJ Dokken, MD Mastandrea, KJ Mach, TE Bilir, M Chatterjee, KL Ebi, YO Estrada, RC Genova, B Girma, ES Kissel, AN Levy, S MacCracken, PR Mastrandrea & LL White (eds) Climate change 2014: impacts, adaptation, and vulnerability: contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 1199- 1265. UNGA / United Nations General Assembly (2015) Transforming our world: the 2030 Agenda for Sustainable Development (21 October 2015 UN Doc. A/RES/70/1). UNEP / United Nations Environment Programme (2013) African environmental outlook. UNEP / United Nations Environment Programme (2016) GEO-6 Regional assessment for Africa. WWF / World Wide Fund For Nature (2012) Africa ecological footprint report. PART I: CLIMATE CHANGE AND ENERGY 33 Chapter 2: Climate change legislative development on the African continent Olivia Rumble 1 Introduction Global warming as a result of climate change is no longer a future threat, but an experienced reality in many countries. Partly because of its lower adaptive capacity, some of the worst impacts of climate change will be experienced in Africa, even though its contribution to the problem is disproportionately low.1 Anticipated impacts include more intense and frequent droughts, heat stress, tropical cyclones, and flooding. The sectors which are particularly vulnerable to its many impacts include water, agriculture and human health. Not only does climate change have the potential to affect the realisation of human rights negatively,2 it is also expected to be a significant disruptor to developmental aspirations such as poverty reduction, job creation, and inclusive and equitable macroeconomic growth. As a threat multiplier, climate change also has widereaching economic and security impacts on governance through its ability to exacerbate existing trends, tensions and instability, for example in the form of increased tensions over scarce resources, border disputes, energy conflicts and conflict prompted by migration.3 For these reasons, adaptation is a priority area for policymakers on the continent, and the African Union has urged all member states to put in place systems ____________________ 1 UNECA (2017). The article comments on investigations which suggest that the public expenditure on adaptation as a percentage of the overall adaptation costs for African countries is approximately 20% of total needs, ranging between 2 and 9% of the GDP. This demonstrates that African countries are already investing a higher percentage of finances in adaptation spending than international financial support. It confirms that these countries are already making major contributions to adaptation efforts and related expenditure. 2 There are numerous studies on the linkages between climate change and human rights. See for example OHCHR (2009) and Knox (2009). The OHCHR noted that climate change threatens the enjoyment of a wide array of human rights, although it does not in itself necessarily violate human rights. That notwithstanding, human rights law places duties on states concerning climate change and those duties include an obligation of international cooperation. Examples of affected human rights include the right to life, health, privacy, property as well as components of the right to an adequate standard of living. 3 See IPCC (2014: 1203) where it is stated that “climate change and climate variability have the potential to exacerbate or multiply existing threats to human security including food, health, and economic insecurity, all being of particular concern for Africa…Many of these threats are known drivers of conflict”. Olivia Rumble 34 and structures to take full advantage of the global mechanisms in support of climate change mitigation and adaptation.4 The extent of the current and anticipated impacts necessitates the implementation of comprehensive and costly adaptive measures by national governments in Africa. These have been proven to be difficult. The most recent Intergovernmental Panel on Climate Change Fifth Assessment Report (AR5), highlights that national governments across the continent have initiated governance systems for adaptation responses, however, as of yet, evolving institutional frameworks are unable to coordinate the range of adaptation initiatives being implemented effectively.5 It was concluded that whilst there had been progress on national and subnational strategies and policies in starting to mainstream adaptation into sectoral planning, there was “incomplete, under-resourced, and fragmented institutional frameworks and overall low levels of adaptive capacity” to manage highly complex socio-ecological changes.6 This resulted in reform being driven by reactive, ad-hoc and project orientated approaches, which were donor-funded in many cases.7 Not only must governments plan for adaptive measures, but they must mitigate greenhouse gases (GHGs). The Paris Agreement now requires all countries to participate in a global mitigation effort to reduce the impacts of GHG emissions and to achieve a long-term temperature goal of below 2 degrees centigrade.8 All parties are required to make a fair contribution to this effort and must submit Nationally Determined Contributions (NDCs), which address both adaptation and mitigation actions, successive versions of which must be increasingly more ambitious. The NDCs must set out what these national contributions entail, and governments are obliged to pursue domestic GHG mitigation measures with the aim of achieving the objectives of these contributions.9 The Paris Agreement specifically provides that developing countries, which includes most of Africa, are required to continue enhancing their GHG mitigation efforts and are encouraged to move over time towards economy-wide GHG emissions reduction or limitation targets.10 While African countries collectively have a relatively low GHG emissions profile, many countries on the continent have a wealth of opportunities for the deployment of ____________________ 4 CAHOSCC (2014). This framework programme was adopted at the 23rd Ordinary Session of the Summit of the African Union in Malabo, Equatorial Guinea, and it reaffirms that adaptation is a priority in all actions on climate change in Africa. 5 IPCC (2014: 1203). 6 Ibid. 7 Ibid. It was found that “[d]isaster risk reduction, social protection, technological and infrastructural adaptation, ecosystem-based approaches, and livelihood diversification are reducing vulnerability, but largely in isolated initiatives”. 8 In addition to this goal it was agreed that countries would pursue efforts to limit the temperature increase to 1.5 degrees Celsius (Article 2(1)(a) of the Paris Agreement). 9 Article 4(2) of the Paris Agreement. 10 Article 4 of the Paris Agreement. This is subject to the qualification that this obligation is subject to different national circumstances. Climate change legislative development on the African continent 35 renewable energy and related co-benefits, given the maturity of their energy sectors.11 Indeed, 53 of the 54 African NDCs submitted under the Paris Agreement included renewable energy as part of their mitigation ambitions.12 Whilst low carbon development is indeed an opportunity, the effective implementation of a medium to long-term low carbon development strategy is often underpinned by a host of strategic, financial and legal considerations which governments need to be attuned to. Similarly, decisions related to the exploitation of the continent’s abundant natural resources, many of which result in the release of GHGs, will need to be guided by domestic financial, legal and related strategic considerations, taking into account the country’s relevant commitments under its NDC. These challenges, opportunities and interactions paint a complex picture of the scale and complexity of responding to climate change at a national level. An effective response will require a nationally led and coordinated effort which goes beyond what has traditionally been perceived as the terrain of ‘environmental’ governance, to almost every sector of national government, including energy and industry, transport, trade, human settlements and migration, health, agriculture and fisheries, mining and water. This precipitates the need for cross-sectoral governance, levels of cooperation, and forward planning at a national, regional and international level at a hitherto unknown scale. In the midst of this response, the law plays an important mediating and empowering role. To date, policy and strategy have largely directed government action on the continent. This may be symptomatic of the equivocality in the international legal regime over the past decade. The finalisation and adoption of the Paris Agreement at the 21st Session of the Conference of the Parties to the United National Framework Convention on Climate Change (UNFCCC), however, constitute a turning point in the international negotiations. For the first time in history, all countries have publicly committed to taking action on mitigating GHG emissions and responding to the impacts of climate change. The domestic legal systems of each member state will play a critical role in implanting the commitments made by each party.13 Interestingly, since the conclusion of the Paris Agreement, many African countries have developed, or are in the process of developing, dedicated climate change laws, or amendments to existing laws that take into account climate change considerations. Most of these initiatives build on existing climate change policies and the NDCs devised in accordance with the Paris Agreement. Current legislative initiatives include ____________________ 11 In other words, they are not subject to the same technological and energy development “lockin” that other more developed countries are. 12 Phillips (2016) quoting Abdalla Hamdok, Chief Economist and Deputy Executive Secretary of the United Nations Economic Commission for Africa. It has been speculated that the Paris Agreement could be the catalyst for new investment drivers for structural transformation in Africa to achieve low carbon development. 13 Averchenkva & Matikamen (2017: 193). Olivia Rumble 36 the Kenyan Climate Change Act 11 of 2016, which was promulgated in May 2016, and the regulations under the South African National Environmental Management: Air Quality Act 39 of 2004, published in 2017. South Africa is also in the process of finalising a draft Carbon Tax Bill and a separate draft Climate Change Bill. In addition, Uganda, Zambia, Rwanda and Nigeria are all either in the process of debating in parliament legislative mechanisms to respond to climate change or have also implemented partial legislative reforms to respond to climate change impacts. To date, there has been little academic discussion of these developments and what they might mean for African countries in particular. This chapter seeks to provide an overview of some of these legislative reforms, specifically those in South Africa and Kenya, to distil whether there are any lessons or examples of best practice for other African countries currently debating whether to introduce such reforms. The chapter begins with a discussion on the role of law in responding to climate change, the meaning of ‘climate change legislation’ and the status of this legislation in Africa. This discussion is followed by an overview of how two African countries, Kenya and South Africa, have approached this challenge and the different legal frameworks they have adopted or are in the process of adopting to address their unique domestic needs. The analysis considers whether there are any possible lessons to be learnt from these legislative responses which will aid other African countries in assessing the adequacy of their existing laws to respond to climate change, and amending or introducing new laws in response. The complexity of the required legal response cannot be ignored. The need for tailored legislative responses to unique domestic situations cannot be overridden by simplistic ‘quick fix’ legislative solutions. Baring this in mind, the purpose of this chapter is to provide examples of possible legal options to African countries who wish to introduce climate change legislation, in a nascent area of law that is rapidly evolving. 2 The nature and function of climate change legislation Compared to the dynamic and evolving policy and strategic climate change responses developed by governments to date, the law is a relatively cumbersome and static medium to address climate change. It is often reactive, responding to different challenges and impacts as they arise, typically in response to defined and known problems. In the case of climate change, the extent of the challenge is only now being experienced, and the required response is anticipatory in nature. Yet legislative mechanisms can and do play a critical role in empowering governments to take action, creating certainty; powerful incentives and disincentives; structures; institutions; and mechanisms to facilitate a more co-ordinated, effective and mandatory response. The importance of law in regulating a climate change response is evident in the upswing of climate change laws over the last two decades. This is partially attributable Climate change legislative development on the African continent 37 to the dynamism in the international negotiations on climate change (domestic laws typically follow the enactment of international agreements in order to support implementation) but also a growing appreciation of the crucial role that domestic laws and measures play.14 The first law to expressly regulate climate change was passed by Japan in 1998.15 Since then there was a slow increase in laws with a flurry in 2009 and 2010,16 likely ascribable to the international political factors around the Copenhagen negotiations in 2009. The introduction of such laws then fell again, largely as a result of inertia in the international negotiations, challenging macroeconomic environments and the fact that most developed (Annex 1) countries had introduced relatively comprehensive climate change laws.17 Since then, the legislative momentum moved towards developing (non-Annex 1) countries.18 The Grantham Institute’s annal on the status of climate change legislation and litigation has been a consistent gauge of the rise of climate laws worldwide. Its latest publication in 2017 posited that there were now more than 1,200 climate change or climate change-relevant laws across the world, which according to their records was a twenty-fold increase in the last twenty years.19 Approximately 44% of the instruments used in their research are legislative acts of parliament.20 While many have sought to track this development, it is difficult to arrive at a consensus of what exactly ‘climate change legislation’ is. Low carbon and climate resilient development require a combination of technical, social, cultural and management change, and the law plays a fundamental role in facilitating these changes. The peculiar nature of climate change, its complexity, uncertainty, relative novelty as a global phenomenon and scale in terms of space and time, make it challenging to regulate. Climate change has been described as a ‘wicked’ problem: it has enormous interdependencies, uncertainties, and conflicting stakeholders resulting in the inability to formulate a single problem or solution.21 Furthermore, the more time it takes to address the more difficult it becomes, while those who are well placed to respond have the least incentive to act, making its governance a complex reality. Climate change is also interlinked with numerous policy issues which are often already regulated by other laws, such as energy, transport, industrial policy, forestry and land use, biodiversity, water, air quality, poverty and food security.22 Any legislative response needs to take into account these linkages, either by adding further layers to existing legislation or through ____________________ 14 Oulu (2015: 230). 15 Japan’s Law Concerning the Promotion of the Measures to Cope with Global Warming (1998). 16 Townshend et al. (2013: 430). 17 Ibid. 18 Fankhauser et al. (2014). 19 Nachmany et al. (2017: 5). 20 Ibid: 8. 21 Lazarus (2008: 1153). 22 Nachmany et al. (2017: 10). Sectors of biodiversity and water have been added to the list set out by the Grantham Institute. Olivia Rumble 38 enacting a separate climate change law.23 In sum, there are no basic minimum requirements which climate change legislation is required to address, and there is no easy definition of what it entails. In 2011, Townshend et al. used the term climate change ‘Flagship Laws’ to mean “a key piece of legislation through which lawmakers have attempted to put their stamp on climate change policy”,24 and again used the term in 2013 to mean “a piece of legislation or regulation with equivalent status that serves as a comprehensive unifying basis for climate change policy”.25 Such flagship laws were described as “often [being] integrative laws that bring together the various strains of pre-existing and new climate change regulation under one legislative umbrella, as has occurred in Brazil, France, South Korea and the United Kingdom”.26 Townshend argued that the five-year plans in China and India served a similar purpose.27 The Grantham Research Institute has expanded upon this definition of ‘Flagship Laws’ to retain its original scope but to add to its content and rename it as ‘framework laws’. The latter represents a law or regulation with an equivalent status which serves as a comprehensive, unifying basis for climate change policy which addresses multiple aspects or areas of climate change mitigation or adaptation (or both) in a holistic and overarching manner.28 Typical examples provided in their study include the United Kingdom’s Climate Change Act (2008); Bulgaria’s Climate Change Mitigation Act (2014); Denmark’s Climate Change Act (2014) and Mexico’s General Law on Climate Change (2012). The database, however, also includes much wider policy instruments under the ‘framework laws’ heading, such as Slovakia’s National Adaptation Strategy (2014) and Germany’s Action Programme on Climate Protection (2014).29 This chapter does not seek to address the appropriateness of the inclusion of policy in this working definition.30 For the purpose of this analysis, the author uses the term ‘framework law’ to represent an act of parliament or equivalent authority having binding legal effect at a national (as opposed to provincial or local) level, which does not include policies, strategies, plans ____________________ 23 Ibid. 24 Townshend et al. (2011: 6). 25 Townshend et al. (2013: 430). 26 Townshend et al. (2011: 9). 27 Ibid. 28 Nachmany et al. (2015: 20). 29 Ibid: 17. 30 The Grantham Research Institute justifies the approach on the basis that different countries use different routes to address climate change and they have different regulatory traditions and local contexts. For example, China has a strong executive branch which governs by policy whilst the UK has a strong Parliamentary tradition. They also acknowledge that executive activity may reflect an early phase in climate policy development where policies have not yet matured into formal legislation or legislative capacities are insufficient. Their reports distinguish between legislative acts passed by a parliament or equivalent legislative authority and executive instruments (e.g. presidential degrees, executive orders, government policies or plans) passed or decreed by the government, president or equivalent executive authority. Where both existed, prominence was devoted to legislative acts, see Nachmany et al. (2015: 30). Climate change legislative development on the African continent 39 or similar documents. The reason for doing so is the author’s belief that not only is legislation in certain cases more appropriate, for example where it relates to decisions which curtail or limit existing rights, but also because of the binding and enduring nature of legislation over policy. So-called framework laws, or ‘overarching’ legislative approaches are not the only means of regulating climate change. As mentioned above, legislators have also followed an approach which focuses on specific areas of law and the statutes which directly regulate those areas of law. This approach is referred to in this chapter as the ‘sectoral’ approach.31 For example, legislators can ‘climate proof’ existing energy legislation, by adding further layers to it which speak directly to the mitigation of GHGs only. Surveys of these amendments indicate that amendments to energy law frameworks are the most popular.32 A further distinction under the sectoral approach is that some prefer a process of statutory amendment through parliament or equivalent authority, whilst other countries prefer to use a regulative approach, i.e. through the executive. For example, after failing to pass bespoke legislation the United States’ executive government developed regulations under the Clean Air Act 1970 for GHG emissions. While there is no best practice set of climate change legislative principles, there are some compelling arguments on both sides on whether a framework law or a sectoral approach is more effective or appropriate. On the one hand, as Oulu argues, despite being constrained by time and resource requirements, a stand-alone framework law is preferable to piecemeal amendments to relevant laws.33 He draws this conclusion on the basis that –34 (i) the ‘wicked’ nature of climate change requires strategies and policy instruments that go beyond what existing sectoral legislation might have been conceived to deal with, and (ii) the nature and degree of potential amendments to existing sectoral laws are so extensive that they are best captured in comprehensive stand-alone legislation. As an example, he cites the experience in the United Kingdom of the initially limited Climate Change and Sustainable Energy Act (2006) which was expanded to become the more comprehensive Climate Change Act (2008). In support of this approach, the Grantham Institute holds the view that not all laws are equal in importance and scope, and framework laws (which admittedly also includes overarching policies under their definition) have been shown to “encourage a strategic approach to climate policy and to generate further policy action”.35 ____________________ 31 Nachmany et al. (2015: 10). 32 88% of countries in 2017 had an integration of climate change issues in energy policy, mostly focused on electrification, energy efficiency and conservation and renewable energy, see Nachmany et al. (2017: 12). 33 Nachmany et al. (2015: 22). 34 Oulu (2015: 245). 35 Nachmany et al. (2015: 17); and Fankhauser et al. (2014). Olivia Rumble 40 Highlighting the important political statement that such laws can make and their resilience to political flux, Williams also notes that after Brexit in the United Kingdom, the domestic Climate Change Act (2008) was a robust instrument in the light of policy uncertainty, by providing a “continuous and consistent overarching framework which requires no primary amendment”.36 It can also be more politically challenging to incorporate amendments across a broad suite of laws that address different sectors of the economy as it requires numerous Ministers to champion the passage of multiple amendments to the legislation applicable to their respective mandates. This makes framework laws more appetising from a parliamentary economy perspective. An overarching framework law is also particularly conducive to the introduction of mechanisms and institutions to achieve specific climate change objectives. For example, the creation of a climate change institution such as a committee or forum (which is typical of many framework laws) depending on its powers and functions, can be a compelling platform for ensuring that cross-cutting, harmonised and coordinated decision making is made at the highest levels of government, and integrated across sectors. Whilst it is not always necessary to have laws to create or regulate these types of bodies, if they are to have meaningful powers and functions with statutory accountability, it is certainly preferable to empower and direct them through framework laws. On the other hand, there are compelling arguments which support a sectoral approach where climate change considerations are incorporated into existing decision making and empowering provisions. Much of this turns on how mainstreaming is best achieved. The cross-cutting nature of climate change has seen mainstreaming being widely advocated as an important approach to its management.37 This recognises the need for climate change considerations to be included within the prevailing direction or processes adopted by government. This supports an approach whereby climate change considerations are ‘layered’ into existing processes through the inclusion of specific climate change considerations within relevant statutes and regulations. This can be achieved through a framework law or under a sectoral approach. Purely from a pragmatic perspective, a sectoral approach may better facilitate the mainstreaming since relevant authorities are often typically appraised of their powers and duties under sectoral laws relevant to their spheres of governance. It may be challenging to get administrators to learn a new set of laws, and for this reason alone it may be easier to incorporate climate considerations into statutes which they are familiar with implementing. Where there are capacity restraints, it can be particularly challenging to educate both the public and the administration on a new climate change law, in addition to the suite of laws the public and the administration are already required to abide by or implement. These challenges can be mitigated if existing and familiar laws are ____________________ 36 Williams (2017). 37 Oulu (2011: 375). Climate change legislative development on the African continent 41 amended to take climate change considerations into account (i.e. to use a sectoral approach). There are numerous benefits to both approaches which warrant further discussion and consideration. For the purpose of this chapter, the advantages of framework laws appear to outweigh a sectoral approach. However, the author is cognisant of the fact that each country will have individual requirements and unique climate change considerations which will require it to consider these merits and disadvantages. Perhaps, true to the so-called ‘bottom-up’38 approach of the Paris Agreement, it is up to each country to tailor its legislative response to fit national circumstances, mindful that framework laws are a particularly useful approach. This chapter seeks to demonstrate the prevalence of national framework laws and related regulations on the continent in order to provide guidance on the possible options available to national governments of what they might address. Before turning to this overview, and mindful of the nationally determined nature of such responses, it is also useful to consider some of the key objectives which climate change laws can address. The next section accordingly briefly discusses the way in which law can address the two key issues in climate change: the mitigation of GHG emissions; and the increase of resilience to the impacts of climate change (adaptation). 2.1 Mitigation law Much of the public discourse relating to climate change governance has related to mitigation.39 The law can play a particularly important role in incorporating the mitigation aspects of NDCs under the Paris Agreement. It can do this by prescribing a binding emissions reduction target for the country (such as in the case of the United Kingdom’s Climate Change Act).40 Alternatively, it can prescribe a process for determining this target and how it is to be achieved domestically. The latter may be a more appropriate approach mindful that the Paris Agreement envisages a ‘ratcheting up’ mechanism to require increasingly more ambitions contributions over time. According to the Intergovernmental Panel on Climate Change (IPCC),41 the law plays a particularly important role in enabling governments to limit GHGs by Land Use (AFOLU), and land use planning where activity is often strongly influenced by ____________________ 38 In terms of which domestic contributions to the international effort are determined based on country’s nationally determined contributions instead of being prescribed at an international level. 39 Osofsky & McAllister (2012). 40 The United Kingdom’s Climate Change Act (2008) requires the Secretary of State to ensure that the United Kingdom’s net carbon account of GHGs by the year 2050 is at least 80% lower than the 1990 baseline. 41 IPCC (2014: 1168). Olivia Rumble 42 planning and provision, regulations/statutes. The law can also promote the diffusion and innovation of emerging technologies, and it can remove barriers to energy efficiency. Indeed, an effective mitigation response requires fundamental changes to domestic and international energy systems, bringing an entirely distinct field, energy law, into the discussion.42 2.2 Adaptation law Often, traditional models of environmental, planning and related laws either do not address the complexities and uncertainties of climate change or behave as barriers to adequate adaptation.43 This has implications for a broad spectrum of sectoral laws such as land use planning regimes, human health systems, biodiversity conservation and the exploitation of natural resources. In commenting on this issue, McDonald and Styles44 promote the incorporation of adaptive management in legal frameworks as a means of recognising the dynamism of natural systems and the importance of monitoring, review, and modification of projects, plans and activities in response to new understanding, as a result of climate change.45 They propose five mechanisms to achieving it: namely changing statutory objectives; requiring monitoring and evaluation of projects, plans and activities; staged approvals processes; conditional approvals and statutory triggers; and proportionate resource allocation models. In their view, the use of these flexibility mechanisms facilitates decision making to respond to the impacts of climate change, while continuing to provide a level of legal certainty. In addition to principles of adaptive management generally, climate change impacts will require the state to develop new strategies and policies for avoiding and recovering from these negative effects and seizing and harnessing the benefits of adaptation actions.46 The development of such plans and strategies can be facilitated through statutes and regulations which require administrators and developers to undertake climate change vulnerability assessments at various junctures in the development and governance process and to develop plans to respond to these risks. This applies not only in the context of an Environmental Impact Assessments (EIAs) but across a wide spectrum of planning processes. For this reason, these can be individual plans, or there can be statutory requirements to undertake such assessments as part of existing planning ____________________ 42 Klass (2013: 182). 43 McDonald & Styles (2014: 25) and Craig (2010: 9). 44 McDonald & Styles (2014: 25). 45 Ibid. They noted in 2014, that, even though it is a dominant approach in natural resource management, it finds very little express mention in legal frameworks. 46 Rumble (2016). Climate change legislative development on the African continent 43 requirements, such as local development plans for municipalities, national sector strategies, or in the EIA process itself. Countries will, in any event, have to communicate in their NDCs under the Paris Agreement, a description of their adaptation goals, priorities, actions and needs. The Agreement also calls on countries to initiate processes to prepare and implement national adaptation plans. A priori, this will require countries to undertake vulnerability assessments across a wide range of vulnerable sectors, and the law can play an important role in ensuring that the requisite information is available to make submissions under the Paris Agreement. It can also play a guiding role in determining the content, timing and form of local assessments and plans. 3 Status of climate change laws in Africa The upswell of climate change laws internationally has also been experienced in Africa. An increasing number of African countries are in the process of developing or have already developed framework laws or sectoral amendments. Many of these initiatives advance the objectives and strategies in existing climate change policies and NDCs under the Paris Agreement.47 One of the more notable developments has been the Kenyan Climate Change Act which was promulgated in May 2016, as discussed in the sections which follow. In the same year, Zambia amended its Constitution to impose a duty on the State to “…establish and implement mechanisms that address climate change”.48 The Zambian Green Party has petitioned Parliament to present a Bill on implementing Zambia’s climate change commitments.49 In 2017, the party submitted a draft Bill to Parliament for consideration.50 In 2015, Uganda’s Cabinet directed the Ministry of Water and Environment to create a framework law on climate change. Members of parliament were concerned about the delay in the enactment of legislation, which prompted them to give notice to government that further delay would result in draft legislation being introduced to parliament via a private member’s Bill.51 In 2017, the Ministry published a call for proposals for a service provider to assist with the drafting of a Climate Change Bill, which included a complex scope of work as well as stakeholder consultation.52 In Nigeria, the House of Representatives initiated a Bill in 2017 which sought to establish a legal framework for the national climate change response and the formation ____________________ 47 This summary is largely drawn from Gilder & Rumble (2017: 268). 48 Gilder & Rumble (2017: 268). 49 Arounusi (2017). 50 Ibid. Copies of this draft Bill are not publicly available for review by the author. 51 Gilder & Rumble (2017: 268). 52 Ibid. Olivia Rumble 44 of a National Council on Climate Change.53 According to reports, the proposed law is intended to be “holistic and overarching as it seeks to address both mitigation and adaptation efforts towards meeting NDC [objectives]”. 54 Furthermore, it will “pave way for a set of laws that will take care of sectoral challenges and targets”.55 Recent reports suggest that trade unions, civil society organisations and academia have reviewed and been making inputs into a draft Climate Change Framework Bill.56 In addition to these framework laws, countries have also been adopting regulations and statues to address specific narrower climate change related issues. The Rwandan Parliament has enacted a law to improve the functioning of the Rwanda Green Fund (FONERWA) and its ability to mobilise climate finance.57 The law determines FONERWA’s mission and organisation and defines how the climate financing institutional aspects will function. In South Africa, regulations have also been developed to declare GHGs as priority pollutants under the National Environmental Management Air Quality Act58 39 of 2004 (NEMAQA), and emitters are required to develop GHG mitigation plans and comply with GHG emissions reporting regulations. These regulations are discussed in further detail in the sections which follow. The Department of Environmental Affairs is also in the process of developing a Climate Change Bill which will ultimately incorporate these regulations and will also serve as a framework statute for the management of climate change impacts. In October 2017, the South African Parliamentary Environmental Affairs Portfolio Committee issued a statement confirming its support of a Climate Change Bill to be introduced in parliament.59 The National Treasury also published a draft Carbon Tax Bill for comment in December 2017 and stated that the actual date of implementation of the carbon tax would be determined through a separate and later process by the Minister of Finance through an announcement during 2018 or 2019, taking into account the state of the economy. The sections which follow provide a brief overview of the Kenyan and South African examples in order to highlight their salient features and discuss similarities and useful provisions. ____________________ 53 Iroanusi (2017). 54 A copy of the draft Bill was not available for review at the time of drafting this chapter. All information has been obtained from Uwaegbulam (2016). 55 Uwaegbulam (2016). 56 Danmaryam (2017). 57 Tashobya (2017). 58 Act 39 of 2004. 59 Parliamentary Communication Services (2017). Climate change legislative development on the African continent 45 4 South Africa’s climate change regulatory framework For more than a decade, South Africa has been formulating a comprehensive climate change response. The overarching policy directive is found in the White Paper on the National Climate Change Response Policy 2011 (NCCRP). The NCCRP builds on a series of policy statements and strategies including the National Climate Change Response Strategy (September 2004)60 and the Long-Term Mitigation Scenarios Document (2007).61 Since its publication, the NCCRP has been complemented by a range of related documents including the Mitigation Potential Analysis (2014);62 the Long- Term Adaptation Scenarios Report (LTAS, 2013 and 2015)63; the Intended Nationally Determined Contribution (2015)64 which has become the country’s NDC under the Pairs Agreement; and two important draft documents, namely the Draft National Adaptation Strategy (2016)65 and the Draft Post-2020 Mitigation Scenarios Systems Report (2017).66 A series of regulations to address mitigation of GHGs have also been published (as discussed below). The Department of Environmental Affairs (Department) has also expressed an intention to develop a Climate Change Bill which will be in the form of a framework law. Since the Climate Change Bill has not been formally published for public comment yet, it is not possible to discuss its contents in detail for the purpose of this chapter. However, where possible, key elements of its likely content will be discussed. Besides, the National Treasury also expressed its intention to implement a national carbon tax and to this end, it published a series of policies and strategies outlining the reason for the tax and proposing its intended content and scope, followed by two draft Carbon Tax Bills. Again, it is not possible to address the extensive detail of these regulatory provisions within the confines of this chapter. However, it is helpful to outline their key elements and how they are likely to relate to each other and evolve as they come into effect sequentially over the next five years. 4.1 Mitigation framework In respect of mitigation, the South African Department of Environmental Affairs intends to address low carbon development in five distinct ways, entailing: ____________________ 60 South African Department of Environmental Affairs (2004). 61 Winkler (2007). 62 South African Department of Environmental Affairs (2014). 63 South African Department of Environmental Affairs (2013) and Department of Environmental Affairs (2015). 64 Government of South Africa South Africa (2015). 65 South African Department of Environmental Affairs (2016a). 66 South African Department of Environmental Affairs (2017). Olivia Rumble 46 • the establishment of a National Greenhouse Gas Emissions Reduction Trajectory; • using the trajectory to inform the imposition of sectoral emissions targets for certain government departments (i.e. for overall sectors such as ‘energy’ and ‘transport’) and legally binding individual carbon budgets for individual entities which have high GHG emissions; • a carbon tax implemented through the National Treasury; • a monitoring and evaluation regime for GHGs; and • plans to mitigate GHGs: the formal declaration of six GHGs under the existing legislation as priority pollutants which triggers the obligation on individual high emitting industries to create pollution prevention plans, describing how emissions will be controlled and reduced, over time. Concerning the National Greenhouse Gas Emissions Reduction Trajectory, various trajectories have been established in terms of the abovementioned policies and South Africa’s NDC, but its development and implementation are currently not contemplated by any existing legislation. It is likely that this issue will be addressed in the proposed Climate Change Bill. Similarly, the sectoral emissions targets and carbon budgets require legislation to be implemented as the existing legal regime does not cater for them. Conerning the carbon tax, legislation to bring it into effect has been drafted and the second iteration of a Carbon Tax Bill was published for public comment in December 2017. With regard to GHG monitoring, evaluation and mitigation, several relevant regulations have been published under NEMAQA including: the National Greenhouse Gas Emission Reporting Regulations,67 which came into operation on 3 April 2017 (as read with the technical guideline);68 the Declaration of Greenhouse Gases as Priority Pollutants;69 and the National Pollution Prevention Plans Regulations.70 The intention is for these regulations to apply as an interim measure until 2020, after which time a final Climate Change Act will have ideally been promulgated by Parliament. The intention is then for the above regulations promulgated under NEMAQA to be revised and re-promulgated under the future Climate Change Act. The above five components are discussed in more detail below. ____________________ 67 Government Gazette 40762 GN 275 of 3 April 2017. 68 South African Department of Environmental Affairs (2016b). 69 Government Gazette 40996 GNR 710 of 21 July 2017. 70 Government Gazette 40996 GNR 712 of 21 July 2017. Climate change legislative development on the African continent 47 4.1.1 Emissions reduction trajectory, sectoral emissions targets and carbon budgets According to the Draft Post-2020 Mitigation Systems Report (2017), it is intended for a national emissions trajectory to be set.71 It is likely that the legal mechanisms to support the setting and subsequent use of the trajectory in decision making will be dealt with under the Climate Change Bill. The emissions trajectory will then be translated into sectoral emissions targets –72 that cover all GHG emissions within the South Africa economy and represents the cumulative amount of emissions that can be emitted within a specific time period (i.e. the area under the curve for the emissions trajectory). Relevant national government departments will be responsible for ensuring these targets are achieved. According to the Draft Post-2020 Mitigation Systems Report (2017), these departments are likely to do so through the development of policies and measures (PAMs) which are to be set out in a plan. Again, it is envisaged that the empowering provisions and relevant rights and duties regarding these plans will be contained in the Climate Change Bill. Provinces and municipalities will also be required to develop plans which support the achievement of these targets.73 It is understood that carbon budgets will, effectively, operate as a cap on GHG emissions from a particular installation. It is likely that legislative mechanisms will make it an offence to exceed the cap and to impose a related penalty in the event of conviction. Again, the empowering provisions for carbon budgets (which effectively take away existing rights) will need to be prescribed in law and are likely to be in a proposed Climate Change Bill. There is still considerable debate whether and how, after 2020, the carbon tax and carbon budgets will be aligned. It is possible that instead of a criminal penalty that the carbon tax is used as a compliance mechanism for exceeding a carbon budget. However, this remains to be clarified by the Department and National Treasury. ____________________ 71 At present, the National Benchmark Emissions Trajectory is based on the ‘Peak, Plateau and Decline’ trajectory defined in 2010. The final emissions trajectory has not yet been set but will most likely be aligned to South Africa’s commitments under the Paris Agreement. The Department’s Draft Post-2020 Mitigation Systems Report (2017) defines emission trajectories as “…alternative computations of the likely quantity and trend of greenhouse gas emissions released for a given period, including variances related to levels of economic growth, the structural makeup of an economy, demographic development and the effect of emission reduction policies”. Under this analysis, projections were made for 2020, 2030 and 2050 with projected GHG emissions trajectories categorised by the sectors, energy, transport (as a subcategory of energy), industrial processes and products use, agriculture forestry and other land use, and waste. 72 South African Department of Environmental Affairs (2017: 56). 73 Ibid. Olivia Rumble 48 4.1.2 Carbon tax For many years, National Treasury has insisted that it intends to implement a carbon tax in order to reduce South Africa’s GHG emissions. On 2 November 2015, following a series of policies and related documents on the topic,74 the first draft of a Carbon Tax Bill was published for public comment. This was later accompanied by a set of Draft Carbon Offsets Regulations.75 A revised Carbon Tax Bill was published on 14 December 2017. In early 2018, it was announced that the tax would come into effect in January 2019.76 The tax is intended to be implemented in phases with the first phase designed to be revenue-neutral.77 The tax is a tax on fossil fuel inputs. Entities which conduct listed activities in the schedule to the Bill which emit GHGs above a prescribed threshold (also in the schedule) are tax liable. The proposed headline carbon tax (which is subject to review) is R120 per ton of CO2e for emissions above the tax-free thresholds.78 The intention was to introduce the tax at a relatively low rate and increase it incrementally over time to reduce its impact on the economy whilst simultaneously giving certainty to the industry with time to adjust. Liable entities can reduce their tax liability by making use of various allowances available under the Bill.79 The total amount of allowances can be as high as 95% in the first phase (which is likely to run until 2022). The Explanatory Memorandum to the revised Carbon Tax Bill (2017) anticipates that as a result, the effective tax rate will be as low as R6 to R48 per ton CO2e. It is intended for the South African Revenue Authority to implement the tax. However, their systems will be aligned with the Department’s in order to verify reported emissions. Unfortunately, notwithstanding much deliberation between the Department and National Treasury, there is still no certainty as to how the carbon tax and carbon budgets ____________________ 74 South African National Treasury (2006, 2010, 2013, 2014 and 2017); South African Department of Environmental Affairs (2011 and 2017); Partnership for Market Readiness (2014, 2016 and 2017); South African National Treasury Draft Carbon Tax Bill (2015); Davis Tax Committee (2015); National Treasury Draft Carbon Offsets Regulations (2016); Van Heerden et al. (2016: 714). 75 South African National Treasury (2016, the proposed draft Regulations have not yet been published in the Gazette). 76 South African National Treasury (2018: 47). 77 Revenues are likely to be recycled by way of reducing the current electricity generation levy, credit rebate for the renewable energy premium, and a tax incentive for energy efficiency savings. 78 The carbon tax liability will be calculated as the tax base (total quantity of GHG emissions from combustion, fugitive and industrial processes proportionately reduced by the tax-free allowances) multiplied by the rate of the carbon tax. 79 A basic tax-free allowance of 60%; an additional tax-free allowance of 10% for process emissions; an additional tax-free allowance of 10% for fugitive emissions; a variable tax-free allowance for trade-exposed sectors (up to a maximum of 10%); a maximum tax-free allowance of 5% for above average performance; a 5% tax-free allowance for companies with a carbon budget; and a carbon offset allowance of either 5% or 10%. Climate change legislative development on the African continent 49 will be aligned. The former is a fiscal instrument using the market to drive behaviour and prescribing, in advance, the financial value associated with mitigating GHG emissions. In other words, it creates a carbon price of approximately R120/CO2e ab initio, taking into account allowances. Carbon budgets, on the other hand, do not establish a carbon price directly, but rather use the threat of punitive regulatory sanctions to incentivise behaviour, and the cost of compliance as compared to the quantum of the criminal penalty then creates a parallel financial value for reducing GHG emissions. Although not impossible to implement simultaneously, it is a highly unique regime combining both a regulatory and fiscal instruments to achieve a reduction in the same set of GHG emissions. This design will require careful harmonisation to avoid unwanted or unanticipated macroeconomic and environmental impacts. 4.1.3 Monitoring, evaluation and planning Pending the finalisation of the post-2020 carbon budget/sectoral emissions target regime, the Department is building the architecture of the monitoring and reporting regime for GHGs. This will enable a more accurate determination of GHG emissions at a national level and will likely also be used as a basis to determine carbon budgets and potentially to support South Africa’s position in the international negotiations on climate change. To this end, the Department published National Greenhouse Gas Emissions Reporting Regulations,80 which came into effect on 3 April 2017. They were published under NEMAQA, South Africa’s air quality management legislation. They apply to private sector GHG emitting entities that: (i) fall into the sectors specified in the annexure to the Regulations; and (ii) which have an installed capacity above a prescribed capacity threshold. The Regulations require these entities to register, monitor and report certain prescribed information regarding their GHG emissions, specifically information regarding process, fugitive and combustion emissions from all GHG emission sources and source streams. The Department has also used NEMAQA to require emitters to manage GHG emissions, pending the finalisation of the Climate Change Bill. On 21 July 2017, the Minister declared six GHGs originally identified under the Kyoto Protocol as necessitating reduction, as ‘priority pollutants’ under NEMAQA (the Declaration).81 NEMAQA enables the Minister to declare priority pollutants if they are substances which ‘contribute to air pollution’.82 Upon declaring a substance a priority pollutant, identified entities are required to submit pollution prevention plans under NEMAQA.83 In terms of the ____________________ 80 Government Gazette 40762 GN 275 of 3 April 2017. 81 Declaration of Greenhouse Gases as Priority Air Pollutants (Government Gazette 40996 GN 710 of 21 July 2017). 82 Section 29(1)(a) of NEMAQA. 83 Section 21(1)(b) of NEMAQA. Olivia Rumble 50 Declaration, entities which undertake the production processes set out in its annexure, which emit more than 0.1 Mt of CO2e, are required to submit a pollution prevention plan to the Minister for approval and must subsequently monitor and report on its implementation.84 It is up to the emitting entity to propose its own set of ‘mitigation measures’85 in the plan, subject to the qualification that the Minister can reject the plan and require revision if these are considered inadequate. The Declaration was published together with the National Pollution Prevention Plan Regulations (2017)86 which set out the prescribed scope and content of a pollution prevention plan, and requirements for the submission of an annual progress report. It is only an offence to fail to comply with the obligation to submit a plan or an annual progress report or to submit false and misleading information, with a fine of up to ZAR5 million and/or five years imprisonment. It is not, however, an offence to fail to implement the mitigation measures approved in the plan itself. As such this system will ultimately be replaced by the carbon budgets regime in 2020, at which time the non-binding mitigation measures in the pollution prevention plan will be replaced by an effective legislated cap on emissions. 4.2 Adaptation At present, there are no existing draft or final laws which regulate adaptation in South Africa. It is intended for these issues to be addressed in the proposed Climate Change Bill, where it is likely that the primary responsibility for increasing resilience and reducing vulnerability will fall upon identified government sectors, provinces and municipalities. It is anticipated that these sectors and spheres of government will have to undertake vulnerability assessments and devise plans in order to respond to the impacts anticipated in these assessments. It is also likely that the Climate Change Bill will to some degree facilitate the realisation of the adaptation related commitments made by South Africa in its NDC under the Paris Agreement. These include the development of a National Adaptation Plan (a draft plan has already been circulated for public comment); the inclusion of climate change considerations in sub-national and cross-sector policy frameworks; the building of institutional capacity; and the development of an early warning, vulnerability and adaptation monitoring system. The NDC also contemplates the creation of various assessments and frameworks including a national ____________________ 84 Regulation 4 and 5. 85 Specifically, it must contain a “description of migration measures, based on the best information available at [the] time, that will be implemented and result in [a] deviation from the greenhouse gas emissions baseline over the pollution prevention plan’s period, and the projected emissions reductions that will be achieved” (Regulation 3(1)(f)). 86 National Pollution Prevention Plan Regulations (Government Gazette 40996 GN 712 of 21 July 2017). Climate change legislative development on the African continent 51 vulnerability assessment, and adaptation needs framework as well as an adaptation communication, education and awareness framework. As noted earlier in this chapter, the Bill can play an empowering role by mandating the prescribed contents of such plans and frameworks, identifying the responsible state actors for their creation, specifying their period of review and requiring a public participation process. 5 Kenya’s climate change regulatory framework Like South Africa, Kenya’s climate change regulatory framework grew from a robust set of policies setting out Government’s intention on how to manage the county’s emissions and adapt to anticipated impacts. The most important of these is the 2010 National Climate Change Response Strategy (NCCRS) 87 which was operationalised by the National Climate Change Action Plan 2013-2017 (NCCAP) 88 and the National Adaptation Plan 2015-2030 (National Adaptation Plan). 89 One of the key focuses of the NCCRS developed in 2010, was the mainstreaming of climate change considerations into policies and plans. It recommended the development of a comprehensive climate change policy which would serve as a platform for the development of a climate change statute. It proposed that this could be either in the form of amendments to existing laws or the development of a framework law, with a preference expressed for the latter.90 In March 2013, an Action Plan was developed to operationalise this policy, covering a wide array of issues such as low carbon development; strategies; adaptation and mitigation measures; climate finance; and a policy, legislative, and institutional framework to support the mainstreaming of climate change considerations.91 Kenya’s NDC under the Paris Agreement92 contains a number of mitigation and adaptation objectives as well. The country is seeking to reduce GHG emissions by 30% by 2030 relative to the business as usual scenario of 143 MtCO2eq, and the NDC proposes various actions to achieve this target. To enhance resilience, one of the focal adaptation actions is to ‘mainstream’ climate change adaptation into medium-term plans and implement adaptation actions. Priority adaptation actions are elaborated upon in the National Adaptation Plan. Climate change actions are also currently being considered under the medium-term planning process to implement Kenya’s national ____________________ 87 Kenyan Ministry of Environment and Natural Resources (2010). 88 Kenyan Ministry of Environment and Natural Resources (2013). 89 Kenyan Ministry of Environment and Natural Resources (2015a). 90 Kenyan Ministry of Environment and Natural Resources (2010: 6). See also the summary provided by Oulu (2015: 230). 91 Oulu (2015: 230). 92 Kenyan Ministry of Environment and Natural Resources (2015b: 2-6). Olivia Rumble 52 planning instrument: Vision 2030, which guides the implementation of Kenya’s NDC.93 In May 2016, soon after the conclusion of the Paris Agreement, Kenya passed the Kenyan Climate Change Act. The Act is primarily focused on the creation of institutional structures and the ‘mainstreaming’ of climate change actions within government. It creates three institutional mechanisms. The first is the National Climate Change Council which is chaired by the President, with the Cabinet Secretary responsible for Climate Affairs as its Secretary. The Secretary is supported by the Climate Change Directorate. This leadership role demonstrates the cross-cutting nature of climate change and is a useful example of how the elevation of governance functions to the level of the Presidency, can serve to overcome sectoral challenges within climate change governance. This Council is responsible for “ensuring the mainstreaming of climate change functions by the national and county governments” and must “approve and oversee the implementation of the National Climate Change Action Plan”.94 By extension, this also includes the oversight and mainstreaming of adaptation and mitigation functions and also the implementation of the National Adaptation Plan.95 It is also required to provide “guidance on [the] review, amendment and harmonisation of sectoral laws and policies in order to achieve the objectives of [the] Act” and to set targets for the regulation of GHGs.96 The Cabinet Secretary has various powers and duties, including the provision of technical assistance on climate change actions and responses to County Governments. The Cabinet Secretary is also obliged to develop, review and update the NCCAP, and to report biennially to Parliament on the status of implementation of international and national obligations, and progress achieved towards attaining low carbon and climate resilient development.97 The Act also creates the Climate Change Directorate as the lead agency of government on national climate change plans, and which reports to the Cabinet Secretary.98 It also plays a coordinating role and will provide technical assistance on climate change actions and responses to County Governments. It has a relatively wide responsibility for “set[ting] targets and coordinat[ing] actions for building resilience to climate change and enhancing adaptive capacity, and the undertaking of a biennial review of the implementation of the NCCAP and reporting to the Council”.99 Lastly, the Act creates the Kenya Climate Fund to be a financing mechanism for ____________________ 93 Statement by Wakhungu, Ministry of Environment and Natural Resources, Kenya to the UN- FCCC, at (accessed 20-12-2017). 94 Section 6(a) and (b). 95 Kenyan Ministry of Environment and Natural Resources (2016: 10). 96 Section 6(f) of the Climate Change Act (2016). 97 Section 8 of the Climate Change Act (2016). 98 Section 9 of the Climate Change Act (2016). 99 Section 9(8) of the Climate Change Act (2016). Climate change legislative development on the African continent 53 prioritised climate change actions and interventions that have been approved by the Council.100 The Act prescribes the content of the NCCAP,101 with relatively general objectives, mostly towards increasing resilience, low carbon sustainable development and the mainstreaming of climate change actions. The Council also has the power to impose ‘climate change duties’ on the public sector.102 State departments and other national entities also have a duty to mainstream climate change considerations into existing strategies and plans, to report on sectoral GHG emissions for a national inventory, to create a designated unit within each department to coordinate the mainstreaming of climate change in that body, with related functions for monitoring and reporting. In particular, there is a detailed process for performance review of climate change functions by these bodies, ultimately involving the National Assembly. 103 The Act also empowers the Council to impose “climate change obligations on private entities”,104 and to make regulations regarding monitoring and the evaluation of compliance with such obligations. The Act does not specify what such obligations may be, but presumably, they entail limitations on GHG emissions and potentially also adaptation actions. The Act also places a duty upon the National Environmental Management Authority, on behalf of the Council, to monitor and report on compliance by public and private entities on their assigned climate change duties, and the extent of “compliance on levels of greenhouse gas emissions as set by the Council under this Act”.105 Lastly, there are extensive provisions on how ‘mainstreaming’ is to be achieved by other spheres of government, including: the mainstreaming of climate change considerations into ‘functions and budgets’ of relevant state departments and entities; the performance of all functions by County Governments; Country Integrated Development Plan and Country Sectoral Plans; the integration of climate risk and vulnerability assessments into all forms of assessments (e.g. EIAs); and into the national education curriculum.106 6 Common themes and useful provisions Whilst it would be simplistic to assume that the above regulatory and statutory references serve as a measure of best practice for the continent, it is useful to consider ____________________ 100 Section 25 of the Climate Change Act (2016). 101 Section 13(3) of the Climate Change Act (2016). 102 Section 15 of the Climate Change Act (2016). 103 Section 15(6)-(10) of the Climate Change Act (2016). 104 Section 16 of the Climate Change Act (2016). 105 Section 17 of the Climate Change Act (2016). 106 Section 18-21 of the Climate Change Act (2016). Olivia Rumble 54 common themes and some examples which are, in the author’s view, elements of good practice. Clearly, both countries have sought to pursue framework laws instead of sectoral amendments. This seems to be the prevalent theme for other African countries in any event, as discussed in Part 3 above, where Uganda, Zambia and Nigeria are all in the process of considering the development of framework laws. The Kenyan example is easier to illustrate, simply because it has been able to crystallise climate policy in a framework law before South Africa was able to. In each instance, however, the benefits of a framework law become immediately apparent. The framework law can create an institution to guide the development and implementation of climate change policy and ‘mainstreaming’, with a view to harmonising state action and ensuring a coordinated response. Kenya’s escalation of this function to the level of the Presidency is a particularly useful example of the need to prioritise climate change actions across sectors and to afford it the necessary gravitas of political will. As Oulu suggests, fragmentation, conflicting mandates and capacity challenges plague many developing country institutions, and for this reason, the creation of climate change specific institutions (notably at this level) is particularly useful.107 The detailed function of the Kenyan Council and the focus on the need for appropriately technically qualified experts across a wide array of disciplines (for example in the Directorate)108 create a politically and technically balanced forum that is sufficiently robust against political flux. Commentators have argued that successful climate change legislation must be simultaneously flexible in certain respects and steadfast in others.109 This means that it should incorporate institutional design features that significantly insulate implementation from vested political and economic interests. The Kenyan example is a useful example of such legislation. Oulu puts the argument well when he argues for design features such as “pre-commitment strategies which deliberately make it hard, though not impossible, to change the law in response to emerging concerns and insights, as well as those intended to keep the statute on course over time”.110 One way in which this is achieved in Kenya is through the deep mainstreaming of climate change considerations across sectors and spheres of government in a way that makes it difficult to reverse because of its scope and depth. Similarly, the elevated quasi-legislative status of the Kenyan NCCAP and its prescribed content makes it less vulnerable to political whim and neglect. Oulu also cites other examples of best practice such as “requirements for consultation with other agencies, scientific advisory committees, and stakeholders; judicial ____________________ 107 Oulu (2015: 230). 108 See for example the qualification requirements in Section 9(4). 109 Lazarus (2008: 1153). 110 Oulu (2015: 231). Climate change legislative development on the African continent 55 review provisions; and pre-emption triggers that accommodate competing interests while exploiting the resulting tension to further climate change policy”.111 Kenya achieves some of this through the appointment of technically qualified staff in the Directorate (as specified in the Act), public consultation provisions,112 and the right to approach the Environmental and Land Court for climate change specific complaints with a reduced burden of proof.113 A common theme across the Kenyan Climate Change Act is also the need for mainstreaming. If the Act had to be summarised in one word it would probably be that. South Africa’s NCCRP, the National Adaptation Plan and related government policies also place a particular emphasis on mainstreaming climate change considerations, and it is likely to play an important role in the South African Climate Change Bill. As discussed above, not only does mainstreaming protect against political inaction or a change in policy, but it also overcomes some of the cross-sectoral and intra-governmental challenges which beset any government when addressing climate change. It ensures that there is an uptake in action by all relevant spheres and sectors, ensuring buy-in and coordination, and it also recognises the need for climate change responses to be driven by a multitude of actors in both the private and public sphere. Whilst mitigation can, to some degree, be driven by one state department through, for example, the South African approach of creating sectoral GHG targets and carbon budgets, adaptation requires a much wider array of actors to be effective. Mainstreaming is possibly one of the most useful instruments to include in a Climate Change Act particularly in Africa where adaptation is a pressing and urgent priority. The way that this has been achieved in the Kenyan Climate Change Act and its detailed provisions identifying the specific planning instruments requiring mainstreaming, together with its definition of mainstreaming is considered particularly useful. One issue the Kenyan Climate Change Act is relatively unclear on is the nature and process for imposing limitations on GHG emissions. The Act speaks of the Council needing to set targets for the regulation of GHGs, state departments reporting on sectoral GHGs, and a general reference to ‘climate change obligations’ which can be imposed on private entities. Potentially this issue may be captured in regulations under the Act. By comparison, the South African regulatory regime, including the proposed carbon tax, the current monitoring and reporting regulations for the purposes of a GHG inventory, coupled with the duty to create a pollution prevention plan, as well as the extensive architecture for the emissions trajectory, carbon budgets and sectoral emissions targets is a relatively more advanced example of GHG mitigation regulation. ____________________ 111 Oulu (2015: 231). 112 Section 24 of the Climate Change Act (2016). 113 Section 23 of the Climate Change Act (2016). There is no need to demonstrate loss or injury in such complaints. Olivia Rumble 56 This is likely symptomatic of the fact that South Africa emits considerably more GHGs per capita than Kenya,114 and accordingly, there is a greater impetus to regulate these emissions in the near future. Whilst this approach may seem premature for many African countries, many of which have similarly low emissions profiles to Kenya, the author believes that it is a useful and necessary legislative regime to at least consider when developing a Climate Change Act, mindful that instituting early action on the regulation of GHGs will not only facilitate the achievement of African country commitments under their NDCs, but it will facilitate the adoption of low carbon technologies within the earlier phases of development thereby reducing future retrofit and compliance costs. The costs of low carbon technologies are also becoming increasingly competitive and as such may not in themselves always be an impediment to development if adopted at an early phase. This is not to suggest that African countries should pursue the extensive and complicated carbon budget/carbon tax scheme proposed by South Africa, but it is helpful to consider the development of an inventory, implementing monitoring and reporting requirements in regulations and an architecture for GHG emissions targets/allowances within the empowering legislation at an early stage. As the Grantham Institute suggests: 115 …a good evidence base for informed climate policy requires data about both emissions and climate risks, as well as about options to reduce emissions and improve resilience to climate change. A key plank of good climate change legislation is therefore a detailed greenhouse gas inventory consisting of compulsory, timely and systematic reporting for greenhouse gases from all sectors as well as regular climate change risk assessments that can inform adaptation measures. Similarly, they advocate the use of GHG emissions targets as a means to “set a longterm trajectory and send a signal of political intent to business and civil society”.116 Lastly, one common theme is that both regulatory developments grew from a sound, well researched and detailed set of policies and strategies. In both cases, there were more than just one policy or strategy addressing climate change, and both countries had drafted a national adaptation plan underpinned by comprehensive vulnerability assessments. The usefulness of this approach is that it enables detailed and extensive public input into policy (and ultimately regulatory) objectives, ensuring that the law, once developed, is tailored to national circumstances and also has public and political buy-in. This is typically the case in many countries which enact framework laws, and it finds equal relevance on the African continent. As such the first step in the development of any climate change law ideally is the development of a national framework climate change policy or strategy underpinned by a well-informed vulnerability and needs assessment, ideally coupled with an action or implementation plan. ____________________ 114 In 2014, South Africa emitted 9 Mt/capita, compared to Kenya which emitted 0.3 Mt/capita, see (accessed 20-12-2017). 115 Nachmany et al. (2015). 116 Ibid. Climate change legislative development on the African continent 57 7 Conclusion Climate change legislation plays an important role in spurring action, operationalising climate change policy and also shielding it from policy change. Certainly, it has its challenges, and its nature varies greatly. The risk of subsequent amendments, budgetary limitations, delays in bringing regulations into effect, vested interests, and a lack of enforcement can render a seemingly strong legal mandate mere symbolic aspirational statement.117 Nevertheless, if appropriately crafted and with the necessary political will, climate change laws can play an important and meaningful role in driving a national response. Countries across Africa are in the process of developing climate change laws, primarily in framework form, to address the anticipated impacts of climate change and to facilitate low carbon development. Framework laws have proven to be durable instruments with the advantage that they facilitate mainstreaming and the development of cross-sectoral institutions. The Kenyan example is a useful prototype of how both of these objectives can be achieved, and it is anticipated that South Africa will follow a similar route. The South African example is also a helpful demonstration of how to create a relatively detailed regulatory architecture for the management of GHG emissions and the related mechanisms to develop an inventory, trajectory and ultimately GHG emissions thresholds. It would not be appropriate to simply duplicate these examples when developing national legislation and regulations. However, it is encouraging to see national responses that are relatively advanced and nuanced on the continent and which speak to immediate challenges. It has been shown that the propensity to legislate is heavily influenced by the passage of similar laws elsewhere, suggesting a strong role for peer pressure or learning effects.118 This will hopefully be the case for climate change legislation in Africa where national influences can foster regional growth in climate change laws. Going forward, and mindful of the relative youth of this field of law, it is hoped that these developments will cross-pollinate each other and build a robust set of laws to drive climate change action nationally, regionally and across the continent. References Arounusi, Q (2017) “Green party petitions to present a Bill on implementation of zambia’s commitments on climate change” Lusaka Times (8-1-2017), at (accessed 20-12-2017). ____________________ 117 Oulu (201: 231). 118 Fankhauser et al. (2014). Olivia Rumble 58 Averchenkva, A & S Matikamen (2017) “Climate legislation and international commitments” in A Averchenkova, S Fankhauser & M Nachmeny (eds) Trends in climate change legislation. CAHOSCC / Committee of African Heads of States and Governments on Climate Change (2014) Work programme on climate change action in Africa. Craig, R (2010) “Stationarity is dead – long live transformation: five principles for climate change adaptation law” 34 Harvard Environmental Law Review 9-75. Danmaryam, H (2017) “Trade unions, CSOs, academia, make input into Climate Change Bill” EnviroNews Nigeria (20-7-2017), at (accessed 20 December 2017). Davis Tax Committee (2015) First interim report on the proposed carbon tax for South Africa. Fankhauser, S, C Gennaioli & M Collins (2014) Domestic dynamics and international influence: What explains the passage of climate change legislation? Policy Working Paper No. 156 Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics, at (accessed 20-7-2017). Gilder, A & O Rumble (2017) “Africa, current developments in carbon and climate law” 3 Climate and Carbon Law Review 268-271. Government of South Africa (2015) South Africa’s intended nationally determined contribution under the Paris Agreement. IPCC / Intergovernmental Panel on Climate Change (2014) Climate change 2014: impacts, adaptation, and vulnerability: contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [VR Barros, CB Field, DJ Dokken, MD Mastandrea, KJ Mach, TE Bilir, M Chatterjee, KL Ebi, YO Estrada, RC Genova, B Girma, ES Kissel, AN Levy, S MacCracken, PR Mastrandrea & LL White (eds)]. Iroanusi, Q (2017) “Nigeria: house moves to establish Climate Change Council” Premium Times (20- 7-2017), at (accessed 20 December 2017). Kenyan Ministry of Environment and Natural Resources (2010) National climate change response strategy. Kenyan Ministry of Environment and Natural Resources (2013) National climate change action plan 2013-2017. Kenyan Ministry of Environment and Natural Resources (2015a) National adaptation plan 2015- 2030. Kenyan Ministry of Environment and Natural Resources (2015b) Kenya’s intended nationally determined contribution (INDC) (23-6-2015), at (accessed 20-12-2017). Klass, A (2013) “Climate change and the convergences of environmental and energy law” XXIV Fordham Environmental Law Review 180-275. Knox, J (2009) “Linking human rights and climate change at the United Nations” 33(2) Harvard Environmental Law Review 477-498. Lazarus, R (2008) “Super wicked problems and climate change: restraining the present to liberate the future” 94 Cornell Law Review 1153-1233. McDonald, J & M Styles (2014) “Legal strategies for adaptive management under climate change” 26(1) Journal of Environmental Law 25-53. Nachmany, M, S Fankhauser, J Davidová, N Kingsmill, T Landesman, H Roppongi, P Schleifer, J Setzer, A Sharman, C Stolle Singleton, J Sundaresan & T Townshend (2015) The 2015 global Climate change legislative development on the African continent 59 climate legislation study, at (accessed 17-7-2018). Nachmany M, S Fankhauser, J Setzer & A Averchenkova (2017) Global trends in climate change legislation and litigation: 2017 update, at (accessed 20-12-2017). OHCHR / Office of the United Nations High Commissioner for Human Rights (2009) Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (U.N. Doc. A/HRC/10/61 (15-1-2009)), at (accessed 20-12-2017). Osofsky, H & L McAllister (2012) Climate change law and policy. Oulu, M (2011) “Mainstreaming climate adaptation in Kenya” 2(3) Climate Law 375-394. Oulu, M (2015) “Climate change governance: emerging legal and institutional frameworks for developing countries” in W Filhou (ed.) The handbook of climate change adaptation 227-250. Parliamentary Communication Services (2017) “Environmental Affairs Portfolio Committee encouraged to hear that climate change legislation will soon be introduced in Parliament” (10-10-2017), at (accessed 20-12- 2017). Partnership for Market Readiness (2014) Emissions intensity benchmarks for the South African carbon tax – technical support study. Partnership for Market Readiness (2016) Modelling the impact on South Africa’s economy of introducing a carbon tax. Partnership for Market Readiness (2017) Integration of the carbon tax and carbon budgets in South Africa. Phillips, G “Paris Agreement on climate change places Africa at the fulcrum of renewable energy deployment, experts agree” African Development Bank Group (29-03-2016), at (accessed 20-12-017). Rumble, O (2016) “Water resource management and climate change” in T Humby, L Kotze, O Rumble & O Gilder (eds) Climate change law and governance in South Africa 9(1)-9(31). South African Department of Environmental Affairs (2004) National climate change response strategy. South African Department of Environmental Affairs (2011) National climate change response white paper. South African Department of Environmental Affairs (2013) Long-term adaptation scenarios flagship research programme (LTAS) – Phase 1. South African Department of Environmental Affairs (2014) South Africa’s greenhouse gas (GHG) mitigation potential analysis. South African Department of Environmental Affairs (2015) Long-term adaptation scenarios flagship research programme (LTAS) – Phase 2. South African Department of Environmental Affairs (2016a) South Africa’s draft national adaptation strategy. South African Department of Environmental Affairs (2016b) Technical guidelines for monitoring, reporting and verification of greenhouse gas emissions by industry – a companion to the South African National GHG reporting regulations (Version No. TG-2016.1). Olivia Rumble 60 South African Department of Environmental Affairs (2017) Development of South Africa’s post-2020 climate change mitigation system draft report. South African National Treasury (2006) A framework for considering the use of market-based instruments to support environmental fiscal reform in South Africa. South African National Treasury (2010) reducing greenhouse gas emissions: the carbon tax option. South African National Treasury (2013) Carbon tax policy paper: reducing greenhouse gas emissions. South African National Treasury (2014) Carbon offsets. South African National Treasury (2016) Proposed regulations: carbon offsets (not yet published in the Gazette). South African National Treasury (2018) Budget review. Tashobya, A (2017) “Rwanda: revised law equips climate fund to mobilise resources” The New Times (25-8-2017), at (accessed 20-12-2017). The World Bank (2017) “CO2 emissions (metric tons per capita)”, at (accessed 20-12-2017). Townshend, T, S Frankhauser, A Matthews, A Feger, J Liu & T Narciso (2011) “Legislating climate change on a national level” 53(5) Environment: Science and Policy for Sustainable Development 5-17. Townshend, T, S Fankhauser, R Aybar, M Collins, T Landesman, M Nachmany & C Pavese (2013) “How national legislation can help to solve climate change” 3 Nature Climate Change 430-432. UNECA / United Nations Economic Commission for Africa (2017) “Africa spending more than its fair share for adaptation” (06-11-2017), at (accessed 20-12-2017). Uwaegnulam, C (2016) “Legislators plan new law to unify climate change policies” The Guardian (15-11-2016), at (accessed 20-12-2017). Van Heerden, J, J Blignaut, H Bohlmann, A Cartwright, N Diederichs & M Mander (2016) “The economic and environmental effects of a carbon tax in South Africa: a dynamic CGE modelling approach” 19(5) South African Journal of Economic and Management Sciences 714-732. Williams, R (2017) “The UK Climate Change Act: standing strong in a time of change” (6-04-2017), at (accessed 20-12-2017). Winkler, H (2007) (ed.) Long term mitigation scenarios: technical report, Prepared by the Energy Research Centre for Department of Environment Affairs and Tourism. 61 Chapter 3: Nigeria’s commitments under the climate change Paris Agreement: legislative and regulatory imperatives towards ensuring sustainable development Oluwatoyin Adejonwo-Osho 1 Introduction The United Nations Framework Convention on Climate Change (UNFCCC) was signed at the 1992 Rio Earth Summit when countries agreed to limit their emissions of greenhouse gases (GHGs). Years after this historic treaty was opened for signature there have been far-reaching changes in the understanding of, response to, and governance of climate change. The latest report by the Intergovernmental Panel on Climate Change (IPCC) indicates that human-induced climate change is already taking place with significant adverse effects on the environment and the earth systems.1 In response to this phenomenal threat to humanity, there are increasing and sometimes comprehensive international, regional, and national climate change policies and programmes from governments, business and civil society. For instance, many countries have developed comprehensive legislation on climate change. The UK was the first country, with its historic 2008 Climate Change Act.2 Other countries have followed the UK’s footsteps.3 Altogether, 99 countries, consisting of 33 developed and 66 developing countries, which represent around 93% of global emissions, have national laws or policies directly related to climate change mitigation and adaptation.4 The foundation for the Paris Climate Change Agreement, 2015 was laid during the 2011 Durban climate change rounds of negotiation in Durban, South Africa. The Durban Outcome is significant because it heralded a new climate change regime that finally culminated in the Paris Agreement. One of the key characteristics of the Paris Agreement is that it applies to all, both developed, emerging economies, developing and least developed countries, unlike the UNFCCC’s Kyoto Protocol of 2005 which ____________________ 1 IPCC (2014). 2 Climate Change Act 2008, CAP 27. 3 According to the Globe climate legislation study, by the end of 2014 there were 804 climate change laws and policies. See Nachmany et al. (2015). Also see the UK Climate Change Act of 2008, the Philippines Climate Change Act of 2009 and most recently the Mexico General Law on Climate Change of 2012 and Kenya’s Climate Change Authority Bill of 2012. 4 Nachmany et al. (2015). Oluwatoyin Adejonwo-Osho 62 made a distinction amongst nations based on their capabilities and the international law principle of common but differentiated responsibilities.5 The success of the Paris Agreement can be linked to its bottom-up approach, different from the Kyoto Protocol which adopted a top-down approach adopted by the UN and influential powers for decades.6 Basically, the negotiations were focused on what each country and region, whether developed, developing, or least developed, is willing to contribute to the 2°C target. More importantly, it is hoped that these joint efforts will collectively contribute to what is required to stem catastrophic climate change in the future, such that we can restrict and keep warming under 2°C pre-industrial levels. The Paris Agreement still retains the founding principle of the UNFCCC such as the international principle of sustainable development,7 the precautionary principle and the principle of common but differentiated responsibility (CBDR).8 For instance, the country-specific pledges required applied the principle of CBDR. In addition, the Paris Agreement acknowledges and introduces new concepts that were not captured in the UNFCCC such as human rights obligations, climate justice, the rights of women, vulnerable groups, and indigenous peoples.9 The key elements of the Paris Agreement include the goal of holding global warming below 2°C; a system of national pledges to reduce emissions referred to in the Paris Agreement as ‘nationally determined contributions’ (NDCs);10 the non-binding character of these contributions, the reliance on transparency rather than legal enforcement to promote accountability and effectiveness; the shift away from the Annex I and non- Annex I differentiation in terms of emission reduction commitments towards a more flexible approach that encompasses all countries, whether developed or developing; the pledge to mobilise climate finance from public and private sources, and, perhaps most importantly, the bottom-up approach of the agreement. The Paris Agreement ____________________ 5 The Kyoto Protocol made a fine distinction between developed and developing countries in terms of having binding emission reduction commitment. Under the Kyoto Protocol, based on the international law principle of common but differentiated responsibilities, only developed countries, tagged as Annex I countries, have binding emission reduction commitments while developing countries, tagged as non-Annex I countries, did not have binding emission reduction commitments but were enjoined to work towards achieving the ‘ultimate objective of the Convention. Article 2 of the UNFCCC states that the ultimate objective of the Convention and any related instrument is to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. 6 Although Van Asselt and Zelli (2018: 31) disagree with this description and stated that the Protocol never fitted neatly into the top-down description. Rather, that the Kyoto climate regime was a hybrid of top-down and bottom-up elements. See also Hare et al. (2010). 7 Article 2(1) of the Paris Agreement. 8 Article 2(2) of the Paris Agreement. 9 Preamble para. 6 of the Paris Agreement. 10 Article 4 para. 2 of the Paris Agreement. Nigeria’s commitments under the climate change Paris Agreement 63 entered into force on 4 November 2016, thirty days after the date on which the minimum of 55 Parties to the Convention accounting in total for at least an estimated 55% of the total global greenhouse gas emissions had deposited their instruments of ratification, acceptance, approval or accession with the Depositary.11 2 The impacts of climate change in Nigeria The IPCC’s Fourth Assessment Report 2007 stated that of all the continents, Africa would be severely hit by the impacts of climate change, strengthened by Africa’s weak capacity for adaptation and mitigation.12 According to the IPCC Report, Africa is one of the most vulnerable continents to climate change and climate variability. Africa’s major economic sectors are vulnerable to current climate sensitivity, with huge economic impacts. The Fifth Assessment Report of the IPCC confirms that this vulnerability is exacerbated by existing developmental challenges such as endemic poverty, complex governance and institutional dimensions, limited access to capital, including markets, infrastructure and technology, ecosystem degradation, and natural disasters and conflicts. These, in turn, have contributed to Africa’s weak adaptive capacity, increasing the continent’s vulnerability to projected climate change.13 Many scientists studying the potential impact of climate change have predicted that Africa is likely to experience higher temperatures, rising sea levels, changing rainfall patterns and increased climate variability with consequential impacts on its population.14 The Food and Agriculture Organisation (FAO) of the United Nations predicts negative impacts of climate change on agricultural production and food security in large parts of sub-Saharan Africa, higher temperatures, the drying-up of soils, increased pest and disease pressure, and shifts in suitable areas for growing crops and livestock.15 Unmitigated climate change could create risks of major disruption to economic and social activity similar in scale to those experienced during the great wars and the economic depression of the first half of the 20th century.16 At present and in the long term, Nigeria remains vulnerable to climate change and its negative impacts. For example, certain activities in Nigeria are directly and indirectly associated with long-term adverse environmental impacts which contribute to global warming. These include gas flaring, deforestation due to cutting forests for biomass products, and emission of GHGs due to the use of fossil fuels. Many elements of the environment and human society are sensitive to climate change, such as the ____________________ 11 Article 21 of the Paris Agreement. 12 Parry et al. (2007: 433-435). 13 IPCC (2014). 14 Tadesse (2010: 1). 15 FAO (2008). 16 Stern (2006: ii). Oluwatoyin Adejonwo-Osho 64 ecosystem, agriculture, water needs and supply, and food production among others. Nigeria’s 2011 National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (NASPA-CCN)17 identifies 13 sectors as having climate change impacts. These are agriculture (Crops and Livestock); freshwater resources; coastal water resources and fisheries; forests; biodiversity; health and sanitation; human settlements and housing; energy; transportation and communications; industry and commerce; disaster migration and security; livelihoods; and vulnerable groups and education.18 Many developing countries located in tropical areas are already enduring climate extremes, such as very high temperatures, heat waves, droughts, hurricanes, floods, and variability in rainfall.19 The continued increase in global temperature will intensify these incidences of extreme weather conditions. For example, in recent years, Nigeria has been experiencing very high temperatures, heat waves, droughts, and variability in rainfall.20 These extreme weather conditions result in several adverse effects such as poor air quality which increases air-borne diseases, and it increases the incidences of respiratory-related illness. Similarly, sea level rise threatens small islands, low-lying coastal areas such as Lagos State in Nigeria and other major world cities such as New York and London.21 It threatens Nigeria’s coastal regions. For example, although the Niger Delta is the source of oil wealth, its low-lying terrain, crisscrossed with waterways makes it extremely vulnerable to flooding and salinisation.22 Furthermore, half of the 15 million population of the city of Lagos live less than six feet above sea level; Victoria Island is particularly vulnerable along with the several slum settlements around it.23 According to the News Agency of Nigeria (NAN),24 there are fears that no fewer than 25 million Nigerians living along coastal communities of Rivers Niger, Benue, Sokoto, Katsina Lagos, Ondo, Delta, Akwa Ibom, Bayelsa and the Cross River States in Nigeria are exposed to possible displacement and devastation due to flooding. ____________________ 17 This Report was prepared for the Special Climate Change Unit of Nigeria’s Federal Ministry of Environment by the Building Nigeria’s Response to Climate Change (BNRCC) project, a project funded by the Canadian International Development Agency. 18 National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (NASPA-CCN) 2011 (accessed 11-12-2017). 19 Stern (2006: 106-107). 20 Abaje et al. (2014). Also see Tunde (2011). 21 For example, Tuvalu, a Polynesian island nation located in the Pacific Ocean, midway between Hawaii and Australia, is particularly susceptible to the adverse impacts of climate change and rising sea level, and there are fears that Tuvalu will be uninhabitable or may vanish entirely within a few decades. According to its Prime Minister, SaufatuSapo’aga, the sea level rise as a result of climate change and global warming is no different from “a slow and insidious form of terrorism against us”. See Mansbach & Taylor (2012). 22 Fatile (2012: 78). 23 Ibeabuchi et al. (2018). 24 The National Emergency Management Agency (NEMA) also confirms that about 25 million people living in coastal regions of the country were at risk of the devastation of floods. Nigeria’s commitments under the climate change Paris Agreement 65 Communities have been displaced in Kano, Jigawa, Cross River, Taraba, Adamawa, Niger, and the Anambra States.25 As a result of climate change, droughts will become more severe in some areas, particularly in Africa.26 A key example is the vanishing Lake Chad in West Africa.27 Lake Chad was once Africa’s largest water reservoir in the Sahel region, covering an area of about 26,000 km2. However, by 2000, the lake covered less than one-fifth of that area.28 According to Salkida29, the FAO describes the state of the lake as an ecological catastrophe, and has predicted that the lake could disappear this century. The ecological catastrophe has led to drought-induced famine and locusts, and an increase in the number of extremely hot days in the Sahel and northern Nigeria. Climate change will lead to increased incidence of death from climate-related diseases such as diarrhoea, malaria, meningitis, and malnutrition.30 The distribution and abundance of disease vectors are closely linked to temperature and rainfall patterns. Changes to mosquito distributions and abundance will have profound impacts on malaria prevalence in developing countries such as Nigeria. The World Health Organisation (WHO) estimates that since the 1970s, climate change has been responsible for over 150,000 deaths each year from diarrhoea, malaria, and malnutrition, predominantly in Africa, and other developing regions.31 If effective mitigation and adaptation strategies are not observed, the numbers are expected to double to 300,000 deaths each year by 2030.32 According to the NASPA-CCN, climate change has a direct and indirect impact on the health of Nigerians. Direct health impacts of climate change stem from extreme events such as heat waves, floods, droughts, windstorms, and wildfires. Indirect effects of climate change on health may arise from malnutrition due to reduced food production, from a spread of infectious disease on food and water-borne illness, and from increased air pollution.33 Also, the various impacts of climate change will likely result in migration.34 Some of these impacts are land degradation, droughts, deforestation, water scarcity, floods, ____________________ 25 National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (NASPA- CCN), 2. 26 Conway (2009). 27 “As you approach the Lake Chad basin from Maiduguri… the atmosphere of despair is telling. The air is dusty, the wind is fierce and unrelenting, the plants are wilting and the earth is turning into sand dunes…. The lives of herdsmen, fishermen and farmers are teetering on the edge as the lake dries up before their eyes” Salkida (2012). Lake Chad is located in the far west of Chad and the northeast of Nigeria. The lake also extends to Niger and Cameroon. It is fed mainly by the Chari River. See the Lake Chad Basin Commission at (accessed 11-12-2017). 28 See Salkida (2012). 29 Ibid. 30 African Climate Policy Centre (2011). 31 Stern (2006: 75). 32 Ibid. 33 NASPA-CCN, 19. 34 Raleigh et al. (2008). Oluwatoyin Adejonwo-Osho 66 storms and famines linked to food shortages and insecurity.35 Furthermore, climate change-induced migration, which is likely to be more frequent as a result of increased flooding and extreme weather conditions in Nigeria, can create and intensify violent conflicts over scarce resources such as water and land for farming.36 Climate change threatens Nigeria’s oil and gas investment.37 This investment is at risk from the negative impacts of climate change, including rising sea levels, heavy storms, floods, high winds and shoreline erosion.38 It is also expected to negatively impact the already limited electrical power supply through impacts on hydroelectric and thermal generation.39 There is no gainsaying that these impacts will add pressures on limited resources and they are a threat to the sustainable development goals. In Africa and other developing regions of the world, climate change is a threat to economic growth, long-term prosperity, as well as the survival of already vulnerable populations. Consequences of this include persistence of economic, social and environmental inequalities and vulnerabilities. 3 Highlights of Nigeria’s Nationally Determined Contribution Nigeria’s contribution to global emissions as of 2010 is estimated to be 1% of total total emission.40 Nevertheless, Nigeria is committed to tackling climate change. NDCs are country-specific pledges to cut carbon emissions, thereby, ‘contributing’ to the net global carbon emission index which is aimed at an overall reduction of global warming. The Intended Nationally Determined Contributions (INDCs) become Nationally Determined Contributions as countries ratify the Paris Agreement. Nigeria’s INDCs became the NDCs in March 2017 after the ratification of the Paris Agreement by the Federal Government of Nigeria. The approved NDCs emphasise the delivery of direct development benefits and sustainable growth of the economy through policy measures that help to alleviate poverty, increase social welfare and inclusion, as well as improve individual well-being and promote a healthy environment. The NDCs aim to achieve a reduction in GHG emissions from the business as usual (BAU) scenario using historical emissions data between 2010 and 2014 for predicting 2015 to 2030 emissions scenario.41 ____________________ 35 Bob & Bronkhorst (2010). 36 Fatile & Adejobi (2012). 37 NASPA-CCN, 20. 38 Ibid. 39 Ibid. 40 Nigeria’s (Intended) Nationally Determined Contribution. 41 The GHGs targeted are CO2, N2O, and CH4. Nigeria’s commitments under the climate change Paris Agreement 67 The key measures of achieving Nigeria’s emission reduction commitment include ending gas flaring by 2030; generating off-grid solar PV of 13 GW (13,000 MW);42 efficient gas generation; increasing energy efficiency annually by 2% that will result in 30% efficiency by 2030; increasing the use of public transportation such as buses, trains, and light rail; increasing the capacity and efficiency of the electricity grid; and promoting the use of climate-smart agriculture and reforestation. Thus, the NDCs target key carbon-intensive sectors of the economy such as the oil and gas, energy, transport, agriculture and land use and transport sectors. Notably, Nigeria aims to reduce emissions per real GDP from the base year from 0.873 kg CO2e to 0.491 kg CO2e in 2030, which will result in 43.8% CO2e reduction in GHGs from the 2010-2014 BAU scenarios. Likewise, in monetary terms, it aims to increase its GDP per capita from US$2,950 as at 2014 base year to US$3,964 by 2030, resulting in 34.4% GDP per capita by 2030.43 However, this reduction is attributed to both 20% unconditional and 45% conditional mitigation objectives respectively. Thus, Nigeria states that it will achieve 20% target GHG reduction without external support for implementation. In addition, the NDC set a conditional 40% reduction in GHGs contingent on international support in the form of climate finance, smart technology development and transfer, and capacity building. Therefore, climate finance is a condition for undertaking ambitious mitigation and adaptation for further incremental reduction of GHG emissions. The estimated cost for implementing the mitigation and adaptation measures stated in its NDC is $142b, while the national benefit for implementing these measures is calculated to be about $304b. This implies that GHG emissions per capita will reduce by 0.68 tonnes with unconditional activities but with additional support and climate finance Nigeria can reduce her per capita emission by 1.53 tonnes GHG. The NDC cautions that some of the policies and mitigation measures contained therein can only be implemented with significant international support. Therefore, mitigation measures that require substantial investment, even if cost-effective over the life of the investment will be carefully reviewed before being implemented. Nigeria’s NDCs represent an integrated and comprehensive strategic approach towards promoting a low carbon, high growth, climate-resilient path for national sustainable development. However, the key question to consider is if the existing legal and regulatory framework supports this strategic approach – a low carbon economy and towards sustainable development. ____________________ 42 Note that the NDC does not specify a time frame within which this will be achieved. 43 Nigeria’s (Intended) Nationally Determined Contribution. Oluwatoyin Adejonwo-Osho 68 4 Nigeria’s NDC commitments: existing legislative and regulatory framework A regulatory and institutional framework is required for a coherent response to climate change. Unless this is in place, sectoral climate change actions will struggle to be implemented, and existing policies, legislation and regulations will work at cross purposes. Creating and managing an effective climate change response takes place through institutional arrangements. Cortner et al.44 define institutions as the expression of the terms of collective human experience; institutions express how people interact with each other and their environment and they represent a means through which social problems are resolved. Against the backdrop of the adverse impact of climate change on environmental, economic and social sectors and Nigeria’s commitments under its NDCs, what are the existing legal and regulatory frameworks to assist in the effective implementation of Nigeria’s commitments and what legislative and regulatory gaps exist? Currently, Nigeria does not have a climate change legislation, although legislation on climate change is gradually becoming an international global standard for countries keen on integrating climate change response into their development plans to ensure sustainable development. In addition to the fact that Nigeria does not have a climate change law, there are certain pieces of legislation that act as a drawback on the existing regulatory and institutional framework.45 There are also certain laws working at cross purposes with Nigeria’s NDC commitment. The existing regulatory and institutional framework for implementing Nigeria’s NDC commitments include the 1999 Constitution of Nigeria; the 2011 National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (NASPA-CCN); the 2007 National Environmental Standards and Regulations Enforcement Agency (Establishment) Act (NESREA); the Environmental Impact Assessment Act; the 1988 National Policy on Environment (revised in 2016); the 2006 National Forestry Policy; and on the institutional side the Department of Climate Change and the Ministry of Environment. 4.1 The 1999 Constitution of Nigeria The 1999 Constitution of Nigeria is the first of the three previous constitutions to include a specific provision on the environment.46 This provision is contained in ____________________ 44 Cortner (1988: 160). 45 Associated Gas Re-injection Act, Cap A25, LFN 2004 and The Associated Gas Re-injection (Continued Flaring of Gas) Regulation, LFN, 2004. 46 It is important to note however that earlier Constitutions like the 1979 Constitution had considerable provisions which had great significance for environmental management. For example, in the way the Constitution contemplated the conservation and rational use of the environment. Nigeria’s commitments under the climate change Paris Agreement 69 Section 20 of the Constitution which states that “the State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria”.47 The wording of Section 20 is quite broad to promote a broad framework for environmental protection and management. However, this provision is hampered because it is included under Chapter II of the Constitution and therefore forms part of the non-justiciable “Fundamental Objectives and Directives Principles of State Policy (FOD- PSP)”.48 Chapter IV, unlike Chapter II, the FODPSP, guarantees certain rights classified as fundamental human rights including the right to life which are justiciable and adequately protected by implementation mechanisms.49 Section 20 is further hampered by Section 6(6)(c) of the Constitution which provides that: The judicial power vested in the judiciary shall not extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy. This imperative effectively limits the powers of the courts to consider issues bordering on environmental rights and disables the citizens from seeking to claim or the courts to enforce environmental rights. This is despite the fact that Section 20 of the 1999 Constitution forms part of the rights guaranteed by the African Charter on Human and Peoples’ Rights (the African Charter), which Nigeria is a signatory to. The African Charter was domesticated in Nigeria in 1983 under the African Charter on Human and Peoples’ Rights (ratification and enforcement) Act Cap A9 LFN 2004. The African Charter is a regional treaty that affirms both civil and political rights such as those guaranteed by Chapter IV of the 1999 Constitution as well as economic, social and cultural rights such as those provided for under Chapter II of the 1999 Constitution and it makes no distinction between them. However, the Nigerian Supreme Court has severally held that where there is a conflict between Treaties and the Constitution, the provisions of the Constitution shall prevail in the event of a conflict.50 ____________________ For a detailed appraisal of provisions of the Nigerian Constitution with respect to environmental management, see Fagbohun (2002: 24). 47 Constitution of the Federal Republic of Nigeria, 1999. 48 For further reading on this see Okere (1983). 49 For instance the Fundamental Human Rights Enforcement Procedure Rules of 2000 provides the implementation mechanism for protecting the fundamental rights enshrined in the 1999 Constitution. 50 In the case of Sani Abacha v. Gani Fawehinmi (2000) 6 Nigerian Weekly Law Report (NWLR) (Part 660) at 228 the Supreme Court held that although the African Charter is superior to other laws, it is subordinate to the Constitution of Nigeria. It is interesting to note that the African Charter has been accorded superior status in some African countries. Also see Onooha Kalu v. The State (1998) 13 NWLR (Part 583). Compare the position of the Nigerian Supreme Court with the Indian Supreme Court. Just like Nigeria, economic social and cultural rights are not enforceable in India because those rights are contained in the part of the Constitution dealing with fundamental objectives and directive principles of state policy. However, the courts in India have through an expansive interpretation of the civil and political rights guaranteed under Oluwatoyin Adejonwo-Osho 70 Constitutional provisions can play an empowering role in engendering effective protection of the environment and strengthening of environmental institutions.51 Constitutions can guarantee environmental rights, which are increasingly recognised as a fundamental human right to “adequate conditions of life”.52 However, as mentioned earlier, the realities of Nigeria being an oil-producing nation makes it imperative to make Section 20 justiciable or like in India, although there is no specific provision in their fundamental human rights chapter bestowing a right to clean environment, this right has been made incidental to fundamental rights, such as the right to life, through judicial activism.53 4.2 The National Adaptation Strategy and Plan of Action on Climate Change for Nigeria In November 2011, Nigeria launched its National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (NASPA-CCN).54 The Strategy aims to ensure that climate change adaptation is an integral component of sustainable development.55 The objectives of Nigeria’s Climate Change Policy document are to reduce the impacts of climate change through adaptation measures that can be undertaken by the federal, state and local governments, civil society, the private sector, communities and individuals. The climate change policy document recommended strategies for the following 13 priority sectors: agriculture, freshwater resources, coastal water resources and fisheries, forests, biodiversity, health and sanitation, human settlements and housing, energy, transportation and communications, industry and commerce, disaster, migration and security, livelihoods, vulnerable groups, and education. For instance, the strategy for agriculture includes to adopt better soil management practices and provide early warning/meteorological forecasts and to implement strategies for improved resource ____________________ its constitution, enforced and promoted economic social and political rights. See the case of Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545. See also Okenwa (2015). 51 Bruch et al. (2011). 52 There is a new trend of constitutions that guarantee environmental rights. These constitutions not only provide for environmental rights but also stipulate both environmental rights and duties, including the State’s duties. For a review of environmental mental rights and duties in African constitutions, see C Bruch “Breathing Life into Fundamental Principles: Implementing Constitutional Environmental Protections in Africa. Environmental Governance in Africa” (2011) Working Papers Series World Resources Institute. 53 South Africa and India: Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC); and Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545. 54 See (accessed 10-12-2017). 55 The other strategies include: reduce the vulnerability and enhance the resilience and adaptive capacity of all economic sectors and of all people, particularly women, children, and resourcepoor men; and capture the opportunities that arise as a result of climate change. Nigeria’s commitments under the climate change Paris Agreement 71 management, as in, increase use of irrigation systems that use low amounts of water; increase rainwater and sustainable groundwater harvesting for use in agriculture. 4.3 The 2007 National Environmental Standards and Regulations Enforcement Agency (Establishment) Act The 2007 National Environmental Standards and Regulations Enforcement Agency (Establishment) Act (NESREA) established a National Environmental Standards and Regulations Enforcement Agency as the regulator charged with responsibility for the protection and development of the environment in Nigeria.56 NESREA among other things is empowered to enforce all environmental laws, guidelines, policies, standards and regulations in Nigeria, as well as enforcing compliance with the provisions of all international agreements, protocols, conventions and treaties on the environment to which Nigeria is a signatory.57 Within the context of climate change, the following regulations and standards have been set by NESREA: National Environmental (Ozone Layer Protection) Regulations, 2009; National Effluent Limitation Regulations, Special Instrument No. 8, 1991; National Environmental Protection (Effluent Limitation) Regulations, 1991; National Environmental (Control of Bush, Forest Fire and Open Burning) Regulations, 2011; and National Environmental (Control of Vehicular Emissions from Petrol and Diesel Engines) Regulations, 2011. In furtherance of its overseeing role and in order to achieve an integrated climate change response, it is expected that NESREA will coordinate, supervise and monitor the implementation of these standards and regulations in a holistic manner. However, this will be nearly impossible without a comprehensive and coherent regulatory framework that ties everything together. 4.4 The National Policy on the Environment The National Policy on Environment 1991, revised in 1999 and 2016 defines a new holistic framework to guide the management of the environment and natural resources and to ensure environmental protection and the conservation of natural resources for ____________________ 56 NESREA website (accessed 10-12-2017). The vision and mission of NESREA are “to ensure a cleaner and healthier environment for Nigerians” and “to inspire personal and collective responsibility in building an environmentally conscious society for the achievement of sustainable development in Nigeria”. 57 Section 7 NESREA Act. Oluwatoyin Adejonwo-Osho 72 sustainable development.58 The policy prescribes sectoral and cross-sectoral strategic policy statements and actions for the management of the different sector of the country’s environment. The policy is guided by sound environmental principles such as the public trust doctrine,59 the polluter pays principle, the precautionary principle, intra and inter-generational equity and an environmental right. The policy recognises emerging environmental challenges such as climate change, transboundary water resources, disasters, conflicts, genetically modified organisms and biosafety. 4.5 The 2006 National Forestry Policy Nigeria’s Forestry Policy60 aims to encourage and support an aggressive establishment of plantations of economic trees and foster the redirection of development resources. The guiding principles of the policy are based on reducing the decline of forest resources and streamlining the contribution of forests to economic development and growth, particularly the National Economic Empowerment and Development Strategy (NEEDS).61 The management strategy includes: (i) maintaining a sustainable supply of forest produce for internal consumption and exports; and (ii) increasing revenue to government. An examination of the strategy indicates that the policy is more concerned with the economic benefits of the forestry resources of Nigeria. There is little or no focus on its environmental management and conservation, its role in combating climate change62 and achieving sustainable development. The shortcomings identified in this policy could be a result of the fact that the document was formulated in 2006 and it is due for an update to bring it up to speed with global best practices for forest management and governance.63 4.6 Proposed Bill to establish a National Climate Change Commission There is a Climate Change Commission Bill pending before the Senate and the House of Representatives. The proposed Bill establishes a National Climate Change ____________________ 58 National Policy on the Environment (revised 2016), at (accessed 25-11-2017). 59 On John Sax’s theory of Public Trust Doctrine, see Rose (1998). 60 See (accessed 12- 12-2017). 61 The four key strategies of NEEDS are: reorienting values, reducing poverty, creating wealth and generating employment. 62 Forest is a veritable source for carbon sequestration and GHG mitigation. 63 For further reading on the National Forest Policy see Faleyimu & Agbeja (2012) and Aruofor (2003). Nigeria’s commitments under the climate change Paris Agreement 73 Commission as a statutory body with a mandate to manage and control climate change and other related environmental matters.64 When passed into law, the Bill will provide appropriate policies, institutions and the required planning and coordination for climate change response and governance in Nigeria. Furthermore, the proposed Climate Change Commission, when it is eventually established, will take over and expand the current role and functions of the Department of Climate Change, which is currently subsumed under the Federal Ministry of Environment. 4.7 The Department of Climate Change The Department of Climate Change is a parastatal under the Federal Ministry of Environment and is the national focal point for climate change in Nigeria.65 The Department coordinates activities towards national implementation of the UNFCCC and the Kyoto Protocol. The Department collaborates with other relevant government organisations, non-governmental organisations, academia and private sector under a Committee known as Inter-ministerial Committee on Climate Change (ICCC).66 The ICCC is a policy advisory organ under the Chairmanship of the Federal Ministry of Environment. The Committee meets regularly on a quarterly basis and on ad-hoc basis to review policies on climate change, to advise government on appropriate actions, and to present Nigeria’s position at meetings where climate change issues are being discussed or negotiated. The Department serves as the Designated National Authority (DNA) for the implementation of Clean Development Mechanism (CDM) projects in Nigeria. 5 Nigeria’s NDC commitment: gaps, contradictions and imperatives for sustainable development Globe International,67 a non-governmental organisation committed to developing and overseeing the implementation of local or national laws in pursuit of sustainable development and climate change, recently carried out an audit of climate change-related legislation across the globe. According to the study, countries in sub-Saharan Africa achieved major developments in formulating national plans and strategies on climate change.68 Kenya adopted the 2013-2017 Climate Change Action Plan, Mozambique adopted the 2013-2025 National Strategy for Climate Change with the aim of reducing ____________________ 64 Section 1 of the Bill (accessed 12-12- 2017). 65 See (accessed 11-12-2017). 66 See (accessed 10-7-2018). 67 See (accessed 11-12-2017). 68 See (accessed 11-12-17). Oluwatoyin Adejonwo-Osho 74 vulnerability to climate change and improving living conditions. Tanzania passed its National Strategy on REDD+ in March 2013. Rwanda approved its Second Economic Development and Poverty Reduction Strategy (2013-2018). However, it is important to note that national strategies, policies and plans such as Nigeria’s NASPA-CCN only form the basis for future legislation and that they do not replace the need for national legislation on climate change. There are several requirements for the NDCs. Generally, a country’s NDC should: be ambitious in terms of its set goals; result in transformation of GHG intensive industries; be transparent, such that stakeholders can monitor effective implementation of stated goals; be equitable with regards to country’s fair share of emission reduction burden; and ensure that climate change considerations are infused into relevant national policies and programmes such as those on sustainable development, environmental protection, poverty alleviation. However, and more importantly, individual country’s NDC must establish linkages with the sustainable development goals (SDGs). In a bid to achieve the NDCs, the Department of Climate Change of the Federal Ministry of Environment has developed action plans, policy and strategic documents such as the National Climate Change Strategy and Action Plan (2018-2022); the High- Level Road Map on Implementation of the Intended Nationally Determined Contributions (August 2016); and sectoral action plans of the agriculture, the forest, the industry, the oil and gas and the power and transport sectors. It has also launched Nigeria’s Sovereign Green Bond in 2017; it is pursuing the passing of the Climate Change Bill at the National Assembly and is engaged in capacity building projects, advocacy, and tree planting and renewable energy/energy efficiency initiatives.69 However, despite these laudable strategies, there are existing (old) and relatively new national policies and action plans that threaten to jeopardise the achievement of Nigeria’s NDC commitments, such as the Associated Gas Re-injection Act and its Associated Gas Re-injection (Continued Flaring of Gas) Regulations,70 fuel subsidy, and Nigeria’s Coal Power Project. 5.1 Oil and gas sector and flare out date Gas flaring is the highest contributor to GHG emissions in Nigeria. The country is rated one of the highest gas flaring nations globally.71 Developing countries are responsible for about 85% of the global emissions caused by flaring, and yet it is in these ____________________ 69 Odogwu (2017). 70 Cap. A25 laws of the Federation of Nigeria, 2004. Note that there is a proposed amendment to this Act, namely the Associated Gas Re-injection (Amendment) Bill 2010. 71 World Bank (2016). Nigeria’s commitments under the climate change Paris Agreement 75 countries that the associated gas could, for example, be used to provide access to affordable and clean energy for industries and households use. It is estimated that Nigeria has the ninth largest gas reserves in the world, with 192 tcf of gas reserves. Presently, large quantities of associated gas are produced with crude oil, and a significant quantity is unutilised and flared. Approximately 330Bscf (or 19%) is flared annually. Despite the abundant reserve, Nigeria suffers from an acute energy crisis (electricity) due to several factors, including the inability of the gas sector to meet domestic demand for power generation. Nigeria’s NDCs aim to achieve a flare out date by 2030. The mitigation measures identified in the oil and gas sector are the enforcement of gas flaring restrictions, the development of gas-to-power plants at sites where associated gas is being flared, the blending of 10% by volume of fuel-ethanol with gasoline (E10) and of 20% by volume of biodiesel with petroleum diesel (B20) for use in the transportation fuels sectors. Achieving the flare out date is important for climate change mitigation and equally important for the achievement of the SDGs. However, for Nigeria to achieve its flare out date of 2030, there are some hurdles to consider. Achieving the flare out date requires enabling laws and the effective implementation of such laws and regulations. The provision of infrastructures such as gas gathering infrastructure, the buy-in of oil and gas companies involved in gas flaring and the respective political will are required to achieve the flare out date. Further prerequisites include to remove barriers to the diffusion of clean fuel such as natural gas and subsidies for non-sustainable fuels such as kerosene, to discourage the use of ‘dirty fuels’ such as firewood and charcoal at the household level, and to enhance access to clean energy. Gas flaring is the main environmental challenge in Niger Delta of Nigeria, and it contributes more to greenhouse gases than all other oil producing nation in sub-Saharan Africa combined.72 The Nigeria National Gas Policy (2017) also acknowledges the fact that the flaring of natural gas that is produced in association with oil is one of the most egregious environmental and energy waste practices in the Nigerian petroleum industry.73 The practice of gas flaring continues in Nigeria, although, it has reduced. Although Nigeria still flares a significant portion of its gross natural gas production (19% of AG, 331 sbcf in 2015), the amount of gas flared has significantly reduced in recent years.74 According to the ranking of top 30 flaring countries, Nigeria is ranked 6th highest flaring nation between the period 2013 to 2017.75 ____________________ 72 Aghalino (2009); Eregha & Irughe (2009); Emoyan et al. (2008); and Kachikwu (2017: 9). 73 National Gas Policy: Nigerian Government Policy and Action 2017, at (accessed 10-7-2018). 74 See (accessed 10-7-2018). 75 See (accessed 15-11-2018). Oluwatoyin Adejonwo-Osho 76 The Associated Gas Reinjection Act 1979 and its Associated Gas Re-injection (Continued Flaring of Gas) Regulations76 were the main regulatory framework for gas flaring in Nigeria until 2018 when the Flare Gas (Prevention of Waste and Pollution Regulations) 201877 was signed into law by the President of Nigeria. The Regulation is made pursuant to Section 9 of the Petroleum Act and Section 5 of the Associated Gas Re-Injection Act. The Regulation introduces a new and stiffer payment of penalties for gas flaring,78 it adopts the polluters pay principle and it mimics a carbon tax regime. The Regulation further imposes reporting obligations on producers and flare out projects for the purpose of data reporting for gas flaring activities at project site. The Regulation has increased the payment of penalties from the meagre N10 (Naira) per thousand standard cubic feet to $2 per thousand standard cubic feet of gas. Nigeria having ratified the Paris Agreement, and being a signatory to the Global Gas Flaring Partnership (GGFR) principles for global flare-out by 2030 whilst committing to a national flare-out target by year 2020. Furthermore, the Nigerian Gas Flare Commercialisation Programme (“NGFCP”) was established to harness gas that was hitherto flared in order to, amongst other objectives, stimulate economic growth, drive investments, provide jobs and protect the environment from the menace of gas flaring.79 The objective of the NGFCP is to eliminate gas flaring through sustainable gas utilisation projects developed by third party investors who will participate in a competitive and transparent bid process. The Programme also aims to implement the National Gas Policy commitments for stricter regulation on flaring and to provide a pathway to ultimate flare-out.80 5.2 Nigeria’s coal-to-power generation project The Federal Government in 2017 partnered with the African Development Bank (AfDB) to fund coal projects in Nigeria. The Ministry of Mines and Steel Development and the Ministry of Power are collaborating on the coal projects which is expected to account for about 30% of the country’s power mix.81 The project plans to generate ____________________ 76 Cap. A25 laws of the Federation of Nigeria, 2004. The Act and the regulation made pursuant to it failed woefully in addressing the perennial problem of gas flaring and energy resource waste in Nigeria. 77 See S.I. No. 9 of 2018. 78 The former penalty was gas flare penalty of N10/Mscf (equivalent US$0.03) of associated gas flared. 79 See (accessed 15-11-2018). 80 National Gas Policy: Nigerian Government Policy and Action 2017, at (accessed 10-7-2018). 81 Adoyi (2017). Nigeria’s commitments under the climate change Paris Agreement 77 about 30% of electricity through coal. This definitely negates the commitments under the NDCs and Nigeria’s gas policy because coal mining is the highest source of GHG emissions. Furthermore, this project would impact on water management strategies, huge freshwater demand, ocean acidification, and air, water and land pollution, which negates Nigeria’s climate change and sustainable development strategy. 5.3 The energy sector In the energy sector, the NDCs aim to increase the use of renewable energy in Nigeria’s energy mix, build multi-cycle power stations, increase the capacity of existing power stations by 20-50 MW, enhance energy efficiency by attaining 2% per year energy efficiency culminating in 30% efficiency by 2030, and encourage use of natural gas rather than liquid fuels. Prior to the privatisation of the electricity sector in Nigeria, the sector performed below expectations, and some would argue that in spite of privatisation, the sector is still performing below expectations.82 A state enterprise known as the National Electric Power Authority (NEPA) was established as an integrated monopoly services provider responsible for generation, transmission, distribution and sales of electricity faced overwhelming challenges in terms of its three core areas of power generation, transmission and distribution.83 Some of the challenges that plagued the now defunct NEPA included: a lack of infrastructural development to match Nigeria burgeoning population and commercial activities; funding, irregular maintenance and obsolete power plants; inefficient and grossly inadequate transmission capabilities; vandalisation of transmission infrastructures and distribution facilities; inadequate power distribution facilities; poor revenue collection system; fragile and overloaded distribution networks; an inaccurate and unreliable billing system; and corruption and mismanagement of funds.84 Liberalisation and commercialisation of the sector led to the Electricity Act of 1990 and its Amendment Act of 1988, the dissolution of NEPA and its replacement with the Power Holding Company of Nigeria (PHCN).85 The current governance structure and legal framework for the electricity sector in Nigeria is the Electric Power Sector Reform (EPSR) Act, 2005. ____________________ 82 Adeyemo & Salami (2008: 408). 83 Sections 1 and 7 of the National Electric Power Authority Act 1972, LFN. For example, the current electricity grid is unable to reliably serve the teeming population and the industrial sector, most rural communities remain off the grid and about 60% of the population lack access to electricity. As a result of this shortfall in generation capacity, generators are widely used to meet household and industry energy needs. These generators are inefficient and polluting. See also Amokaye (2015: 737). 84 Omoluabi (2012). 85 For a historical overview of the electricity reform in Nigeria, see Oke (2013). Oluwatoyin Adejonwo-Osho 78 This Act unbundled the State’s stake in the power sector,86 especially the generation and marketing elements, and it made electricity generation, sales and marketing open to independent power providers. The current grid generation capacity is unable to meet the energy needs of industrial and urban consumers. As a result of this shortfall, industrial and other consumers have resorted to the use of inefficient and polluting generators for electricity. In addition, most rural communities remain off the grid, and it is estimated that at the current rate of grid expansion, these communities will remain largely under-served, and about 60% of the population lack access to electricity.87 Of particular importance to Nigeria’s NDC commitments is the infrastructural deficiency with regards to the distribution of electricity and the diversification of the national grid and diversification of energy mix to include renewables such as wind, solar and energy. The EPSR Act is silent on the issue of diversifying Nigeria’s energy mix. However, the National Energy Master Plan (NEMP) and National Renewable Energy & Energy Efficiency Policy (NREEEP),88 2014 are policy documents that seek to address this gap. The NEMP provides the roadmap for achieving Nigeria’s energy objectives in relevant sectors of the economy. In that regard, the NEPM focuses on all energy sources including renewable energy and efficiency and other crosscutting issues such as energy financing, capacity development. For instance, to achieve Nigeria’s renewable energy objective and to encourage the diffusion of renewables, the NEMP recommends that an enabling regulatory and financial environment should be created in order to attract foreign direct investment and indigenous participation in renewable energy.89 However, more is required to ensure availability of affordable energy options, incentives to encourage diversification of the energy mix, and devolution of governance to local communities’ governmental structure, in order to maximise the benefit of the reformed electricity sector in Nigeria. Furthermore, the proposed policy documents will ensure a robust and sustainable energy mix and the development of varied renewable energy sources in Nigeria. ____________________ 86 Note, however, that states usually retain control of electricity transmission and distribution, which are natural monopolies for national security reasons. 87 Nigeria’s Intended Nationally Determined Contribution, at (accessed 30-11-2017). 88 See (accessed 30-11-2017). Note that these documents are currently open for review and comments. 89 See (accessed 10-7-2018). Nigeria’s commitments under the climate change Paris Agreement 79 6 Nigeria’s NDC commitments: imperatives towards harnessing the sustainable development benefits of the Paris Agreement Response to climate change and emission reductions are undertaken on the basis of equity, sustainable development and efforts to eradicate poverty, which are critical development priorities for many developing countries. Although climate change will inevitably cause challenges to Nigeria’s growth, it also provides an opportunity for the country to grow faster and cleaner and for Nigeria to develop her own capacity for industrialisation. Furthermore, the Paris Agreement provides a strong basis for response to climate change, and to achieve sustainable development through effective implementation of national NDCs. However, for Nigeria to seize the opportunities inherent in the Paris Agreement for mitigation and adaptation to climate change and to fulfil its commitments under the Paris Agreement, it has to address some of the legislative and regulatory challenges highlighted above. It is imperative, therefore, that the NDC strategies and goals are mainstreamed into all national development strategies and the SDGs currently being implemented. To that end, this chapter proffers the following recommendations: • A legislative audit of existing laws and regulations, which will help to eradicate the current overlaps and inconsistencies in the various legislations that will invariably affect NDC implementation. A comprehensive regulatory and institutional framework will ensure that climate change mitigation and adaptation strategies and policies are integrated with long-term national development plans and policies. Coherence is necessary between the regulatory and institutional frameworks on the ground in order to ensure that they work in synergy in order to achieve sustainable development – a panacea to the adverse effects of climate change. • Establish links between NDCs and domestic strategy and policy agenda. An NDC that is strongly linked with the domestic strategy and policy agenda has a greater chance of promoting sustainable development and meeting national targets. This can be achieved by unpacking the NDC at sectoral levels such that high-level policies and goals translate into actionable roadmaps among the relevant sectors of the economy. • Establish a strong and adequate institutional and regulatory framework that will enhance development, coordination and implementation of climate policies and programmes nationally. Strong and independent government agencies should have a key role such that they can coordinate and drive the NDC implementation process amongst the relevant sectors of the economy. To achieve this, Nigeria should eradicate institutional barriers and rivalry amongst national agencies and improve coordination at the national level. The institutional framework must ensure that key agencies or ministries work together. Oluwatoyin Adejonwo-Osho 80 • Assess capacity building needs across government agencies and coordinate capacity building amongst relevant ministries and agencies. Relevant ministries and agencies should identify potential capacity needs. This will increase Nigeria’s capacity to initiate and implement climate change policies and programmes and also to attract climate finance and investments. Furthermore, the relevant ministries and agencies should raise awareness among stakeholders about the benefits of the implementation of the NDCs. • Identify mitigation potentials in key sectors of the economy. Nigeria should invest in research and data collation on issues such as in-country analysis of GHGs and the development of GHG inventories, an understanding of mitigation potentials in key sectors of the economy, and baseline study in order to determine GHG projections and implement mitigation strategies. • Establish clear links to the 2015 SDGs. This creates an unprecedented opportunity to set a clear path for development for the next generation. Action on climate change is essential in meeting development aims, including poverty eradication, health, education, food and energy security. The various agreements on climate change, including the Paris Agreement, and the SDGs should be seen as complementary, with opportunities for mutual benefit in areas such as low carbon development, climate adaptation and resilience. 7 Conclusion The NDCs are only one of many steps on a long road to the ultimate objective of a comprehensive climate change regime. They provide the mandate and framework for concerted action. The challenge now is to implement the NDCs at national levels towards a low carbon and climate resilient future at all levels. Good NDCs should be ambitious; result in a transformation in carbon-intensive sectors and industries; be transparent, so that stakeholders can track progress and ensure countries meet their stated goals; and be equitable in order that each country does its fair share to address climate change. 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World Bank (2016) “Top 30 gas flaring nations” at (accessed 20-7-2018). 83 Chapter 4: Bridging the gap between climate change and energy policy options: what next for Nigeria? Morakinyo Adedayo Ayoade 1 Introduction The disruption of the global climatic system as a result of human developmental activities is responsible for climate change concerns constituting a definitive issue for the 21st century. Stakeholders as varied as international organisations, governments, business, non-governmental organisations (NGOs) and the world’s population, are interested in this complex issue. Discussions on climate change are difficult due to the different interests of powerful stakeholders. This is particularly the case, where there is a direct clash in policy interests such as that between climate change and the energy sector. Policy makers are important in this context as the need to balance the interests of competing parties at the international and domestic arena, means there is a need to achieve a modicum of consensus say between developed country consumers and poor developing countries. While climate change policy is primarily driven at international level due to the integrated nature of the global ecosystem, the centrality of nation states means that any meaningful analysis of the topic requires national perspectives. Climate change refers to the altered response of the climatic system to increased concentrations of greenhouse gases (GHGs) in the atmosphere.1 Scientific convergence, despite some skeptics, indicates that a notable increase in the average temperature of the Earth’s atmosphere, oceans and land mass will result in devastating weather pattern shifts causing loss of biodiversity, heat waves, drought, rising sea level, human migration, decreased agricultural yields, etc.2 Climate change policy concerns specific guidelines or strategies formulated at the international, national, or even local level to address climate change. This can be climate mitigation focused on minimising the extent of climate change; or climate adaptation that tries to minimise risks posed by the consequences of climate change. Energy policy, on the other hand, is concerned with the way and manner energy development ____________________ 1 Hunter et al. (1998: 609). 2 Zaelke & Cameron (1990: 253-260). Morakinyo Adedayo Ayoade 84 issues such as production, distribution and consumption are treated. It encompasses oil and gas exploration and development, refining, renewable energy, coal and electricity. Climate change and energy are intrinsically linked, as energy is central to the development of modern society. Today, prosperity is based on the production and consumption of large amounts of energy, which is problematic as energy accounts for about 75% of total GHG emissions and 80% of carbon dioxide (CO2).3 The threat of climate change is addressed by an evolving and increasingly sophisticated legal architecture that is based on the UN Framework Convention on Climate Change (UNFCCC) 1992, the Kyoto Protocol 1997 and the Paris Agreement 2016. Also potentially relevant are regional and sub-regional pronouncements on climate change. Interestingly, anxiety about climate change and advocacy for action started as far back as the 1970s and continued into the 1980s until the UNFCCC came into play.4 Parallel to this are some key energy documents such as the United Nations Sustainable Energy for All Initiative 2012 and International Energy Charter 2015.5 Climate change imperatives directly confront the interests of developing producer nations, particularly, those like Nigeria which is a mono-product economy that is dependent on foreign sales of crude oil and gas for economic growth. A member of the Organisation of Petroleum Exporting Countries (OPEC) since 1971, Nigeria is the largest oil and gas producer in Africa that also controls its largest natural gas reserves. Unfortunately, the country is experiencing problems with crude oil refining, as well as a huge deficit in electricity production that is urgently needed for its ever-expanding population. This is despite being richly endowed with coal and bitumen as well as renewable energy sources like solar, wind, biomass and hydro resources. On the face of it, there is a direct conflict between Nigeria’s economic and development interests and the demands for climate change action mostly emanating from the international sphere and mostly caused by industrialisation activities in developed countries. There is thus a tension between the short-term national interest and the need to transition to sustainable energy systems. That said, Nigeria has put in place an extensive network of energy policies potentially impacting climate change. This majorly includes the National Energy Policy 2003, Renewable Energy Action Program (REAP) 2006, Bio-Fuels Policy 2007 and the National Renewable Energy and Energy Efficiency Policy (NREEEP) 2015. The chapter adopts an analytical methodology to critically evaluate Nigeria’s response to its international climate change obligations in the context of energy policy.6 Therefore, the chapter is arranged as follows: Part 2 provides the contextual ____________________ 3 International Energy Agency (2018). 4 Ong (2010: 450-451). 5 Please note that the chapter will be limited to these documents and will not include all international energy documentation. 6 Note that the focus of the chapter is on climate change and energy and no attempt will be made to engage environmental policy or related issues. Bridging the gap between climate change and energy policy options: what next for Nigeria? 85 background linking climate change and energy; Part 3 assesses international climate change and energy-related obligations accepted by Nigeria; while Part 4 deals with the relationship between Nigerian energy policy and climate change. Part 5 integrates climate change and national energy policy. It is argued that there is a need to integrate radically climate change and energy policy. It further observes that difficult decisions have to be taken if Nigeria is to eventually transit to a low carbon economy based on its policy choices. 2 Contextual background: linkages between climate change and energy The issue of climate change is quite complex and controversial as there is some scientific disagreement on the criteria for climate change.7 According to the Intergovernmental Panel on Climate Change (IPCC), climate change constitutes:8 a change in the state of the climate that can be identified [e.g., by using statistical tests] by changes in the mean and/or the variability of its properties and that persists for an extended period, typically decades or longer. Thus, climate change includes sporadic weather events as well as the slow rise in global mean surface temperature.9 Essentially, the IPCC’s definition refers to any change in climate over time, whether due to natural variability or human activity. Meanwhile, the UNFCCC defines climate change as attributes directly or indirectly linked to human activity that alters the composition of the global atmosphere – in addition to natural climate variability – observed over comparable periods of time.10 According to Kerr11, the main cause of climate change is attributable to “higher concentrations of greenhouse gases in the earth’s atmosphere leading to increased trapping of infrared radiation”. Climate change thus poses a threat to sustainable development, socio-economic development, human rights and efforts to protect the environment.12 Major GHGs such as carbon dioxide, methane, nitrous dioxide and chlorofluorocarbons (CFCs) are emitted from energy generating fossil fuels. For this reason, industrialised countries are alarmed at the projected upward trend in fossil energy use in developing countries,13 despite their free use of fossil fuels to climb up the development ladder. ____________________ 7 Todorov (1986: 258-259); United Nations Framework Convention on Climate Change (1992); Smith (2017: 22). 8 IPCC (2007). 9 Ifeanyi-Obi (2012); Smith et al. (2017: 22). 10 IPCC (2007). 11 Kerr (2002). 12 Segger (2016: 202-203). 13 Sagar (2006: 71). Morakinyo Adedayo Ayoade 86 Climate change particularly engages the energy sector due to the centrality of energy as the source of problems as well as a solution.14 Today, energy security and climate change concerns are challenging due to existing energy systems based on fossil fuels.15 Energy security refers to the availability of adequate, reliable and affordable energy, which is a necessity for modern economies. Hence, the need for well-designed energy policies capable of addressing complex issues, as national energy policies stretch to include international treaties, legislation, regulation, guidelines etc. Furthermore, energy policies address climate change and seek to reconcile global policy objectives with domestic law and interests.16 Fossil fuels such as oil, natural gas and coal currently dominate the global energy mix and are responsible for about 80% of commercial energy supply.17 This is driven by economics as fossil fuels are relatively low cost, energy dense, flexible and highly convenient when compared with nuclear power and renewable energy resources.18 Energy services underpin human activity and civilisation by fueling needs as diverse as cooking, heating, lighting, industry, health, education, communication and transport.19 Put simply, energy equals development as there is a correlation between GDP growth and per-capita energy consumption. Nigeria is influential on the global energy sector due to its status as the world’s sixth largest crude oil exporter. Its crude oil reserves are put at 37.2 billion barrels, and natural gas reserves are estimated at 187 trillion cubic feet.20 Notwithstanding these energy advantages, the country contributes to climate change by flaring an estimated 2.5 million cubic feet of gas per day which is equivalent to the daily consumption of all African countries.21 This means that over 400 million tons of carbon are vented into the atmosphere.22 Also, its overdependence on crude oil exports has negatively impacted on industrial activities and agriculture; worsening its development trajectory. But importantly, climate change is already manifesting in the nation with intensifying soil erosion, landslides, seasonal droughts, and excessive flooding threatening its extensive coastline.23 In parts of northern Nigeria, villages have been abandoned due to ____________________ 14 Beecher & Kalmbach (2012: 4). 15 Hansen (2008). 16 Farah & Rossi (2011: 232). Elements of an energy policy include the level of energy sufficiency of the nation, the location of future energy sources, and how it will be consumed, as well as national security and foreign policy considerations. See Hamilton (2013). 17 MacGill (2008: 86). 18 Ibid. 19 World Energy Council (2007). 20 Nwaogaidu (2013: 163). 21 Ismail & Umukoro (2012: 292). 22 Ogbodo & Stewart (2014: 17-18). 23 Akinyemi (2014: 48); National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (NASPA-CCN) (November 2011), iii-iv, at (accessed 27-12-2017). Bridging the gap between climate change and energy policy options: what next for Nigeria? 87 encroaching desertification and migration of animal herders has caused violent clashes with farming communities throughout the country. Interestingly, Nigeria is blessed with both conventional and non-conventional renewable energy sources scattered across the country. Renewable energy, in the form of energy produced from solar, wind, sustainably managed hydro, geothermal and biomass resources, is available as an alternative to fossil fuels. Hydropower generation is vulnerable to changing weather patterns due to its sensitivity to the amount, timing and geographical spread of rainfall.24 Such is the complexity of the climate change debate and susceptibility to new scientific evidence that it is worthy to note that there is some dispute on hydro and biomass as legitimate sources of renewable energy.25 Table 1: Nigeria’s energy reserves/potentials26 ____________________ 24 Ladan (2009: 7-8). 25 Daigneau (2013); Mckie (2017). 26 Source: Renewable Energy Master Plan. Morakinyo Adedayo Ayoade 88 3 International climate change and energy-related obligations 3.1 International instruments on climate change The starting point on international action to combat climate change commenced at the Earth Summit in Rio de Janeiro in 1992 when 154 countries joined the United Nations Framework Convention on Climate Change (UNFCCC). This foundation treaty sets the ground rules for inter-state cooperation. To assist easy acceptance, it does not oblige countries to make quantitative reductions to GHG emissions, nor does it have an enforcement mechanism. Entering into force on 21 March 1994, the key provision of the UNFCCC is stated in Article 2 titled objectives: The ultimate objective of this Convention and any related legal instrument that the Conference of the Parties may adapt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. The provision evidences the need to stabilise GHGs to avoid dangerous disruption of the climatic system within time frames that would allow for natural adaptation. This is in line with the preamble of the UNFCCC which acknowledged that climate change and its adverse impact are a “common concern of mankind”. Also important is the acknowledgement that climate change action can only be effective through an international response that integrates cooperation among all countries. While cooperation on the part of all countries is required, there is some recognition that a ‘one size fits all’ approach will not work due to the development gap between developed and developing countries.27 Noting that developed and developing states have common but differentiated responsibilities and respective capabilities is a realistic posture on past responsibility and actual ability to act. Thus, Annex I parties primarily comprises of developed countries, while non-Annex I parties are made up of developing nations like Nigeria. The only soft commitments in the UNFCCC are on Annex I parties who are obliged to adapt national policies to mitigate climate change in order to return emissions to 1990 levels. At the same time, the extent to which ____________________ 27 Article 3(1) UNFCCC states that: “The parties should protect the climate system for the benefit of present and future generations of mankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof”. The principle is also replicated in the Kyoto Protocol. Perhaps an alternative approach is to consider climate change from the polluter pays principle prism which will demand that developed countries are responsible for climate change and thus should bear the costs of prevention and remediation. See Maguire (2012: 109-110). Bridging the gap between climate change and energy policy options: what next for Nigeria? 89 developing countries can meet their commitments is dependent on developed countries financial and technical assistance. International moves against climate change were taken further when the Kyoto Protocol was concluded on 11 December 1997. The Protocol is a global agreement concluded under the terms of the UNFCCC and was the result of over two years of intense negotiations. Unlike the UNFCCC, it establishes for the first time, binding emission limits for developed country parties. Such parties are required to reduce their collective GHG emissions by 5.2% compared to 1990 levels between 2008 and 2012. Nonetheless, the Protocol softens the impact of binding targets by allowing developed countries access to three flexible implementation mechanisms that recognise compliance costs in meeting emissions targets. These market-based instruments integrate private sector and developing country participation in reducing GHG emissions. The Kyoto mechanisms are: (i) emissions trading that allows a country that has higher emissions to purchase the right to emit more, whilst a country with fewer emissions can trade its right to emit to other developed countries; (ii) the Clean Development Mechanism (CDM) allows developed countries to reduce emissions by financing emission reduction projects, e.g., planting a forest in developing states like Nigeria; and (iii) joint implementation which allows a developed country to invest in an emission reduction project in another developed country as a means of reducing emissions.28 More recent efforts to strengthen climate action are contained in the Paris Agreement of 2015. 150 heads of state and government gathered at the Conference of the Parties (COP) 21 in Paris summoned the political will for unprecedented action. Article 2(1)(a) of the Agreement pushes state parties to toughen the global response to climate change by: Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impact of climate change. This ambitious target saw over 1,300 non-state actors such as major companies and large cities participate in pledging to meet global emissions reductions. The Paris Agreement represents six years of complex negotiations under the UNFCCC, with the added pressure of trying to avoid the fate of the failed 2009 Copenhagen Conference. Moreover, the Agreement provides for a universal and nationally driven approach that differentiates nations on the basis of capacity and not developed or developing country. Unlike the Kyoto Protocol, the Paris Agreement does not formulate country-specific targets. Instead, it relies on voluntary mitigation measures and progressively ambitious mitigation contributions. Furthermore, the Agreement puts in place an enhanced transparency and accountability framework for countries in which there is frequent reporting on internationally agreed emission standards; progress tracking every two years to ____________________ 28 Thornton & Beckwith (2004: 60-61). Morakinyo Adedayo Ayoade 90 ensure countries are on course; as well as a robust expert review of progress and targets achievements to avoid corner cutting.29 Put simply, the Paris Agreement provides a common framework that allows countries to determine their nationally determined contributions taking into account their capacities as well as the overall goal of the agreement. This collaborative approach seems to provide the basis for concerted long-term cooperation over climate change, though the jury is still out. 3.1.1 United Nations Sustainable Energy for All Initiative 2012 The years 2014-2024 have been declared the Decade of Sustainable Energy for All (SE4ALL) by the UN General Assembly in Resolution 65/151 in 2012, which cements the importance of energy to sustainable development and climate change mitigation. Three objectives are to be achieved by 2030: universal access to modern energy services; doubling the improvement rate in energy efficiency, and doubling the renewable energy share in the global energy mix.30 It recognises that mounting energy emissions are a contributor to climate change and that the provision of cleaner and more efficient sustainable energy is in the interest of all countries. The SE4ALL is an initiative driven by the Office of the Secretary General of the United Nations. Perhaps influential at best, it does not have the solidity of a global instrument prescribing standards of behaviour to member states. Considered together with the International Renewable Energy Agency (IRENA), an intergovernmental organisation that supports countries transiting to sustainable energy, it provides strong policy directions that underscore the significance of sustainable development and the push towards low carbon economic growth and prosperity. All of these have influential overtones on 150 SE4ALL countries policymakers, including Nigeria. 3.1.2 International Energy Charter 2015 The International Energy Charter (IEC) in its preamble states that it is a political intention declaration merely aimed at strengthening energy cooperation between signatories and does not result in financially or legally binding obligations. This Charter, however, sets out a framework for long-term cooperation at the regional and global ____________________ 29 OPEC (2016). The Organisation of Petroleum Exporting Countries (OPEC) welcomed the Paris Agreements in the following terms: “The world has reached a critical turning point with the Paris Agreement. Its ratification and orderly implementation will put the entire world community on a sustainable path that secures everyone’s future and preserves the planet for coming generations”. 30 Sustainable Energy for All (2012). Bridging the gap between climate change and energy policy options: what next for Nigeria? 91 level for sustainable energy development, energy security and the use of energy in an environmentally sound manner.31 Nigeria is one of 90 signatories among other 10 African countries that seek to strengthen and integrate regional energy markets in order to enhance global market efficiency by providing, e.g., access to energy markets, liberalised trade under the World Trade Organisation, investment protection, diversification of energy sources, access to sustainable energy and energy efficiency.32 The IEC is an update of the legally binding Energy Charter Treaty 1994 which promotes energy security through open and competitive energy markets.33 Sadly, despite an admirable bent towards energy sustainability, there is no attempt to integrate climate change, though this is now an increasingly central part of the global policy agenda. 3.1.3 African Union climate change policy African countries like Nigeria, through the African Union (AU), have addressed climate change in light of its transboundary nature and the vulnerability of member states. Driving the process is the role of the AU’s Assembly of Heads of State and Government (the Assembly) which has rightly focused on developing a common negotiation position for its member countries. Thus, enhancing Africa’s negotiating and bargaining power over the negligible power of its individual countries. The principal strands of AU climate change policy are: (i) the Eighth AU Summit which endorsed climate change efforts in the Climate Information for Development Needs: An Action Plan for Africa Report 2007, which basically called on members to integrate climate change into national development plans; (ii) the Algiers Declaration on Climate Change 2009 that established a common African negotiation stance for the fifteenth Conference of the Parties to the UNFCCC (COP15) – developed countries should have mitigation commitments, while developing states mitigation actions should be voluntary and dependent on their access to technology, finance and capacity building; (iii) institutionalisation of climate change through the Conference of African Heads of State and Government on Climate Change (CAHOSCC); and (iv) the Draft AU Strategy on Climate Change 2014 that focused on the different obligations of developed and developing countries in line with the UNFCCC and Kyoto Protocol.34 The aim of the 2014 AU Strategy is to achieve climate-smart socio-economic development on a continent populated with some of the poorest countries in the world. ____________________ 31 International Energy Charter (2015), at (accessed 24-12-2017). 32 Ibid. 33 Energy Charter Treaty (1994), at (accessed 27-12-2017). 34 Chinwuba & Ayoade (2013: 86-87). See also Jarso (2010-2011). Morakinyo Adedayo Ayoade 92 In relation to energy, the Strategy advocates that Africa must focus on increased energy access and security, whilst at the same time, reducing emissions. Other climate change governance activities are undertaken through the New Partnership for Africa’s Development (NEPAD) and the African Ministerial Conference on the Environment. 3.1.4 Economic Community of West African States The Economic Community of West African States (ECOWAS) was modelled on the basis of the European Union and established on 28 May 1975 to coordinate and promote trade, cooperation and development in the sub-region. Even the ECOWAS revised Treaty of 1993 focuses inter alia on energy cooperation as well as economic, social and cultural activities to alleviate poverty and raise the standard of living of its people. ECOWAS does not have a specific climate change policy, though there is a 2008 ECOWAS environmental policy. Be that as it may, the ECOWAS Lomé Declaration on Climate Change and Protection of Civilians in West Africa, 2009 recommends that a special fund be established to ameliorate climate change induced inputs. Also, member states are urged to establish and promote adaptation mechanisms taking into account regional cooperation and national expertise.35 The ECOWAS energy policy, on the other hand, can be found in diverse documents that have sought to inter alia mainstream renewable energy and energy efficiency at the regional level in order to harmonise the legal and regulatory architecture of its member states. First is the ECOWAS Energy Charter Protocol, 2003, which is majorly concerned with international cooperation for investment promotion and protection, since it is based on the Energy Charter Treaty which it simply copies. Article 19 of the 2003 Protocol on environmental aspects does not explicitly refer to climate change, though, it reflects the importance of environmentally compliant energy investments, improving energy efficiency, and utilising renewable energy.36 The ECOWAS Renewable Energy Policy 2015 tries to remove barriers to renewable energy and aims to increase the renewable energy share in the total energy mix (large hydro inclusive) to 35% in 2020 and 48% in 2030.37 To achieve this ambitious target, member states, including Nigeria, are assisted in putting action plans in place to make the goals achievable. Simultaneously, the ECOWAS Energy Efficiency Policy provides a framework for energy efficiency investments to stimulate job creation and socio-economic development; also doubling energy efficiency by 2020, assists energy ____________________ 35 See Paragraph 19 of the Lomé Declaration on Climate Change and the Protection of Civilians in West Africa (2009). 36 ECOWAS Energy Protocol A/P4/1/03 2003, at (accessed 24-12-2017). 37 ECOWAS Renewable Energy Policy (2015), at (accessed 26-12-2017). Bridging the gap between climate change and energy policy options: what next for Nigeria? 93 access, energy security, and climate mitigation and adaptation.38 The document specifically mentions environmental protection and the need to reduce GHG emissions which is assisted by the operation of the ECOWAS Centre for Renewable Energy and Energy Efficiency (ECREEE). 4 Nigerian energy policy and climate action Nigeria’s energy policy is based on the National Energy Policy 2003, which encapsulates the entire energy landscape of the nation. The aim of the policy is to guarantee adequate, reliable and sustainable energy supply at appropriate costs and in an environmentally responsive manner in order to benefit the economy for national development. Five of its six chapters are structured into energy sources, energy utilisation, energy issues, energy financing and planning and policy implementation.39 The goal is to optimally use energy resources for the sustainable development of the country. The 2003 National Energy Policy (NEP) was the first governmental attempt to guide energy policy, and there is an explicit acknowledgement that energy is critical to national development goals. The role of government and the state is to take the lead in the energy sector in order to overcome challenges. Yet, there is a recognition that overdependence of oil can be overcome through aggressive research, diversification of energy resources, and human capacity development.40 Energy policy objectives were summed up as follows and this is fully reproduced due to its importance:41 i. To ensure the development of the nation’s energy resources, with diversified energy resources option, for the achievement of national energy security and an efficient energy delivery system with an optimal energy resource mix. ii. To guarantee increased contribution of energy productive activities to national income. iii. To guarantee adequate, reliable and sustainable supply of energy at appropriate costs and in an environmentally friendly manner to the various sectors of the economy for national development. iv. To guarantee an efficient and cost effective consumption pattern of energy resources. ____________________ 38 ECOWAS Energy Efficiency Policy (2012), at (accessed 24-12-2017). 39 National Energy Policy (2003). The ability of the federal government to make policy for the nation is derived from the Constitution of the Federal Republic of Nigeria 1999 (as amended). In particular, Section 16, Part II of the Constitution deals with the economic objectives of the nation and empowers the executive arm of government to make policy. Also Section 16(2)(b) of the Constitution directs that the state has harness and distribute the material resources of the nation for the common good. Furthermore, under the Second Schedule to the Constitution, mines and minerals including oil fields and natural gas are reserved to the exclusive legislative list which implies that only the National Assembly can legislate on this issue, and this also makes it an exclusive matter of the federal government. 40 National Energy Policy (2003). 41 Ibid. Morakinyo Adedayo Ayoade 94 v. To accelerate the process of acquisition and diffusion of technology and managerial expertise in the energy sector and indigenous participation in energy sector industries for stability and self-reliance. vi. To promote increased investments and development of the energy sector industries with substantial private sector participation. vii. To ensure a comprehensive, integrated and well informed energy sector plans and programs for effective development. viii. To foster international cooperation in energy trade and projects development in both the African region and the world at large. ix. To successfully use the nation’s abundant energy resources to promote international cooperation. This laudable set of objectives is of course reflective of the traditional approach to energy policy, which is to essentially focus on short-term development concerns, including the need to participate in the sector as the owner of the natural resource. Criticism of the NEP might include its failure to take account of the indigenous host communities that live with the consequences of oil production and development; and the failure to differentiate between onshore and offshore oil and gas resources. Of course, there is no mention of climate change as this was not yet a major international policy concern. It does, however, discern the importance of international cooperation in developing energy resources. In relation to electricity, the NEP recognised the inadequacy of supply and the fact that the sector was then 98% owned by the Federal Government. Inadequate electricity meant that the commercial and industrial sectors relied on polluting generators which account for over half of consumed grid electricity. Hence, the policy advocates private sector involvement to ensure reliable power and the need to broaden energy options for generating power.42 Its aim is to make electricity available to 75% of the populace. Interestingly, renewable energy resources were not considered, particularly mainstream, though there was a strategy to use renewable energy for the agricultural sector.43 Institutional support for energy policy can be found in the Energy Commission of Nigeria (ECN). Established by the Federal Government by Act No. 62 of 1979, as amended by Act No. 32 of 1988 and Act No. 19 of 1989, the ECN is charged with the strategic planning, monitoring and coordination of national energy policy. This includes policy implementation, promotion of diverse energy sources through guidelines, research, information dissemination, and periodic master plans. The ECN is responsible for advising the federal, state and local governments on the funding of energy research, production, etc. It also acts as the national energy data bank and liaises with all international organisations on energy-related matters.44 ____________________ 42 Ibid: 36. 43 Ibid: 72. 44 Energy Commission of Nigeria (2014). Bridging the gap between climate change and energy policy options: what next for Nigeria? 95 Importantly, the NEP already outlines the key elements for the development and application of renewable energy. This includes the promotion and use of renewable energy to ensure decentralised energy supply, especially to rural areas; develop, promote and harness all viable renewable options into the national energy mix; discourage the use of wood as fuel; promote efficient use of biomass energy resources; and awareness to develop newly emergent sources of renewable energy by keeping abreast of international and technological trends. The NEP was first revised and updated in 2006, though, the latest draft revision was in 2013. The 2013 draft rightly includes an environmental and climate change policy, energy policy issues such as bilateral, regional, and international cooperation, local content, gender, human resources development and training. This is in addition to policies on energy financing, planning, and policy implementation. Following on from the NEP, the Renewable Energy Master Plan for Nigeria (REMP) was produced in 2006 with support from the United Nations Development Programme (UNDP). It sought to assist Nigeria transition from a monolithic fossilbased economy to a less carbon-intensive economy utilising gas, and with a larger role for renewable energy. The overall objective was to provide a roadmap for national development through accelerated development and use of renewable energy resources.45 In line with this, the Renewable Electricity Policy Guidelines were issued in December 2006 to further buttress the Federal Government’s vision and policy to derive electric power from renewable energy. Moreover, the guidelines ensure that regulatory policy on renewable energy must be in line with Nigeria’s international obligations on climate change. Thus, as Nigeria is a signatory to the Kyoto Protocol and eligible to participate in the Clean Development Mechanism (CDM), participation on such climate change mitigation activities is essential and has resulted in gas utilisation projects and even a hydropower rehabilitation project with countries like Norway, Italy, UK, France and Sweden. Since socio-economic development is driven by energy, Nigerian policymakers have long realised that development goals such as the then Millennium Development Goals cannot be met without substantial improvement in energy supply and consumption. Also, the Vision 20:2020 (2008) blueprint to propel Nigeria into the rank of the top 20 largest economies by 2020 tacitly accepts this and seeks to increase energy supply from 4,000 MW in 2007 to 35,000 MW in 2020. At the same time, refining capacity should rise sharply from 445,000 bpd to 1,500,000 bpd in 2020.46 Vision 20:2020 envisages the usage of coal reserves estimated at 2.75 billion tones for energy production using clean coal technology.47 This is in addition to electric power generation from tar sands or bitumen, hydropower, solar energy, wind power, ____________________ 45 Sambo (2009: 6-8). 46 Energy Commission of Nigeria (2014: 6). 47 Ibid: 16. Morakinyo Adedayo Ayoade 96 biomass and uranium. It emphasises gas more than electricity as environmentally cleaner to oil and coal options. The added benefit would be to end gas flaring by 2008, an objective that has not been achieved.48 Unfortunately, the vision essentially failed at conception, and much of its commendable aims were not accomplished. Promotion of renewable energy for environmental reasons, for instance, is in consonance with Nigeria’s climate change obligations, though, the document does not mention climate change. The Nigerian Bio-Fuel Policy and Incentives 2007 is yet another attractive policy recognition of the need to minimise fossil fuels and its related GHG emissions. The objective of this document is to provide a beneficial environment conducive to the development of a home-grown ethanol fuel industry, which will reduce dependence on imported gasoline and provide sustainable jobs. To ensure this, various financial incentives and tax waivers have been provided for this infant industry. Despite this, the policy has not recorded much success though biofuels can play an important role in mitigating climate change. Notable, however, is that there is no actual mention of climate change in this important document. Perhaps more valuable is the National Renewable Energy and Energy Efficiency Policy (NREEEP) 2016. This policy document harmonises Nigeria’s renewable energy and energy efficient policy with the ECOWAS Renewable Energy Policy (EREP) and ECOWAS Energy Efficiency Policies (EEEP). Its great advantage is to provide a system to implement the National Renewable Energy Action Plan (NREAP) and a National Energy Efficiency Action Plan (NEEAP) to carry out Nigeria’s international obligations. Linked to the NEP 2003, NREEP seeks to provide, for instance, Mandatory or Voluntary Renewable Portfolio Standards (RPS) which determine the amount of energy generated from renewables by a target year; Power Production Tax Credit (PPTC) to encourage electricity producers to generate from renewable sources; Feed-in-Tariff (FIT) offering a favorable pricing structure for renewable; Public Benefits Fund (PBF) that allows a tariff percentage to support on and off-grid renewable energy projects; and the provision of generous tax holidays, capital grants and other incentives.49 Behind this is the desire that renewable energy constitutes about 20% of total energy supply in the long term, whilst there will be reliable electricity in the near term to meet the aims of Vision 20:2020.50 Again, in this document, there is no mention of climate ____________________ 48 Ibid: 19. 49 National Renewable Energy and Energy Efficiency Policy (2015). It is interesting that the Ministry of Power, and not the Energy Commission of Nigeria developed this policy. Other interesting aspects of the policy include that it allows for the active participation of states, local governments, and NGOs in renewable energy and energy efficiency matters. In addition, it provides for a monitoring and evaluation watchdog group under the control of the Minister of Power. The latter is supposed to tackle the notorious deficiency of government in implementing and enforcing its own rules. 50 National Renewable Energy and Energy Efficiency Policy (2015). Bridging the gap between climate change and energy policy options: what next for Nigeria? 97 change implications of the policy, though its overall purpose does fit into a climate mitigation agenda. This section is devoted to the latest policy documents governing the petroleum and natural gas sectors. The National Petroleum Policy (NPP), 2017 and Natural Gas Policy (NGP), 2017 are rather important as they represent the latest thinking of policymakers and their being written at a period in which climate change is at the top of the regulatory agenda around the world. The central objective of the NPP is to maximise hydrocarbon production for national economic growth so that the sector is much more than a provider of foreign exchange. For the NGP, its purpose is to centralise the role of natural gas in the national industrial economy and at the same time capture international markets. Despite the attractive roadmap and action plans provided in both documents, there is still a significant failure to take climate change into account as there is barely any mention of this important issue. This is particularly regrettable bearing in mind the link between gas and electricity generation. The Nigerian electricity sector is underpinned by the National Electric Power Policy (NEPP) 2001, which was developed by the Electric Power Reform Implementation Committee which provided for the privatisation of the electricity sector, establishment of an independent regulator, and wholesale market trading structures.51 This was supported by the Electric Power Sector Reform Act (ESPRA) passed by the National Assembly in 2005. ESPRA is primarily concerned with licensing and regulation and does not particularly concern itself with the link between energy policy and climate change. For instance, the regulator, the Nigerian Electricity Regulatory Commission’s (NERC) job is focused on general regulation, and there is neither mention of renewable energy nor climate change as areas of interest.52 Despite the number of policy options available to the Nigerian government, it is clear that much of the policies cannot be regarded as successful, particularly as regards climate change obligations. While some of the documents nod towards the need to take climate change into account, there is no instrument that gives policy priority or prominence to climate change; take for instance, the failure to end gas flaring and the moves towards coal use in the Vision 20:2020, which is perhaps indicative of the general lapses in extant policies from the climate change perspective. From the above, it could be rightly surmised that the Nigerian state is publically committed to combating climate change. While the UNFCCC, the Kyoto Protocol and the Paris Agreement have been ratified, there has been no attempt to domesticate the agreements into national law for implementation and enforcement. Under Section 12 of the 1999 Constitution, an act of the National Assembly is essential to treaty implementation and application. However, the National Environmental Standards and Regulations Enforcement Agency (NESREA) does have the statutory responsibility of ____________________ 51 Maduekwe (2011). 52 Section 32 of the Electric Power Sector Reform Act, 2005. Morakinyo Adedayo Ayoade 98 enforcing international agreements, protocols, treaties and conventions on the environment including climate change. Furthermore, the Nigerian government has put in place a National Policy on Climate Change and Response Strategy (NCC-RC) and National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (NASPA-CCN) 2011.53 These documents are reactive to climate change, but neither focused on energy issues nor on sustainable energy. All the same, NASPA-CNN provides specific strategies for the energy sector, and this includes measures on higher specifications and construction of energy infrastructure; risk assessments to increase energy sector resilience; develop secure energy backup mechanisms; and expand sustainable energy sources.54 5 Integrating climate change and national energy policy options The central role of energy to development is incontrovertible, as earlier discussed. In Nigeria, the Federal Government has the overall responsibility for formulating, enacting and also enforcing all climate change and energy policies. Turning to the issue of climate change, the inspiration is external and arrived in the form of climate change obligations freely entered into by the Nigerian state. This extends from the UNFCCC to the Kyoto Protocol and now the Paris Agreement. As also noted, energy policy is rather fragmented, though the principal instrument is the National Energy Policy, 2003 which tries to encompass every component of the fossil and renewable energy options available to policymakers. Despite the huge importance of energy policy to Nigeria, an outdated instrument is in place, as even the most up-to-date revised draft of 2013 does not seem particularly reflective of climate change. Supporting instruments such as the Renewable Energy Master Plan for Nigeria, the Renewable Electricity Policy Guidelines 2006, Vision 20:2020, and most recently, the National Renewable Energy and Energy Efficiency Policy 2016 derived from ECOWAS, do unveil a rough strategy pointing towards sustainable energy. In sum, Nigeria’s energy policy consists of domestic and transnational elements that perhaps coexist uncomfortably. This is due to the central dilemma facing policymakers all over the world, though it is particularly sharp for energy-producing developing countries. Fossil fuels (oil, natural gas and coal) are the traditional tools for industrial, economic development and national prosperity. Not only can such countries not sell on such products, but indeed it cannot be freely utilised domestically. Evidently, there is a need for robust policy imperatives that will enable a sustainable energy transition. ____________________ 53 National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (2011), at (accessed 25-12-2017). 54 National Adaptation Strategy and Plan of Action on Climate Change for Nigeria (2011). Bridging the gap between climate change and energy policy options: what next for Nigeria? 99 On the one hand, the international global agenda has instituted and promoted climate change mitigation and adaptation as a crucial policy goal to save the planet from serious global warming ramifications. Against this, economic self-interest and existing energy policies are directed towards carbon-intensive activities as shown in the Natural Gas and Petroleum Policies of 2017. Perhaps more serious is the argument that rich developed countries are yet to definitively prove that a low carbon economy is not only possible but that it is compatible with socio-economic prosperity. Notwithstanding these difficulties, mainstreaming of climate change policy is slowly emerging with the 2012 Nigerian Federal Executive Council (FEC) adoption of the National Policy on Climate Change and Response Strategy (NASPA-CCN) as the key document for implementing climate action. The FEC which is the highest ranking executive body in the nation has provided backing for its key objective which is to promote low carbon, sustainable high economic growth to build climate change resilience. Interestingly, the document was developed by the Nigerian government and civil society organisations. Of course, stakeholders’ participation increases policy credibility and adds to potential regulatory success. Undoubtedly, there is clearly a sufficient number of policies governing climate change and energy in Nigeria. Yet there remains a gap between the two concepts which undermines their viability and effectiveness. One would, thus, posit that there is an urgent need to integrate climate change and energy policy into one integrated policy. The existing approach where they are treated separately allows for policy contradiction and is not sustainable in the long term. This would mean a substantial overhaul of extant climate change and energy policies through a stakeholders meeting that will incorporate government, sectoral experts, NGOs and civil society. However, transparent and accountable the process to develop an integrated climate change and energy policy may be, there might not be much actual change unless the policy is reinforced through legislation. Policy provides guidance, while implementation, compliance and enforcement benefit from the imperatives of statutory enactment. With regard to climate change in Nigeria, for instance, there is no climate change law in place, though, the federal legislative arm, the National Assembly, has over the years introduced bills on climate change that would, if signed into law, begin the process of mainstreaming climate change adaptation and mitigation action. In relation to renewable energy policy which is scattered into diverse documents such as the 2001 National Electric Power Policy and the National Renewable Energy and Energy Efficiency Policy 2016, there is a need for policy integration with climate change and legislative enactment. At present, countries like China and India have sought to provide legislative backing for renewable energy through China’s Renewable Energy Law of 2005 and India’s draft National Renewable Energy Act, 2015.55 However, we argue beyond the narrow confines of renewable energy law, for the need ____________________ 55 Ogbodo & Stewart (2014: 17-18). Morakinyo Adedayo Ayoade 100 to put in place a Nigerian Climate Change and Energy Policy as well as National Climate Change and Energy Act. The proposed integrated policy and statute will bridge the policy gap between climate change and the energy sector, and provide the legislative architecture for the transit to a low carbon economy. Both policy and law should make it clear that the dangers emanating from climate change shifts and Nigeria’s international commitments to tackle climate change are the basis for the new approach. The new instruments will encompass, among others: fossil fuel developments and target dates for leaving resources in the ground; financial incentives driven investments in renewable energy and low carbon sources; significant reduction in GHG emissions; and increased improvements in energy efficiency. Furthermore, there is the need for a robust institutional governance infrastructure to ensure proper implementation and compliance. Nigeria’s experience in the energy sector, and indeed other sectors of the economy, unveils myriad laws but rather poor compliance and enforcement. Such lacunae cannot be permitted in this sensitive arena as the proposed changes have fundamental and profound implications for the national economy and well-being of Nigerians. Although institutions such as the National Climate Change Trust Fund, the Department of Climate Change in the Federal Ministry of the Environment and the Energy Commission of Nigeria already have specific mandates, there is a need to merge all the relevant extant bodies to create a Climate Change and Energy Agency or government department to ensure a smooth transit to a low carbon future. 6 Conclusion The global agenda on climate change is increasingly cohesive and dominant as every nation now has to take cognisance of the transformation of international commitments into targets and goals within domestic legal frameworks. Starting from the ‘soft’ approach of the UNFCCC, there is a gradual hardening of climate change policy as it transits from the Kyoto Protocol to the much more rigorous Paris Agreement which requires state parties including Nigeria to limit surface temperature rise to less than 2°C. On the face of it, international consensus even when the AU and ECOWAS are included, is seemingly gathering momentum. The transnational approach to energy policy may be regarded as more nebulous to some extent. This is the case where one considers the UN driven SE4ALL and International Energy Charter, which are soft law and with debatable prospects of becoming hard law. Perhaps this criticism is not justified as the history of energy operations is soaked in state sovereignty and nationalism. Also, the difficulty of reaching consensus among a wide range of countries with diverse development and aspirations means that an initial soft law approach is inevitable for a developing international energy policy. Bridging the gap between climate change and energy policy options: what next for Nigeria? 101 One reasonably common thread is the need for international cooperation and investment. This view is similarly replicated in the ECOWAS Energy Charter Protocol. At the national level, substantial government policies already exist in the National Policy on Climate Change and Response Strategy, 2012 and the National Energy Policy, 2003. These principal instruments are supported by policies as diverse as the Renewable Energy Master Plan, Renewable Electricity Policy Guidelines, and the National Renewable Energy and Energy Efficiency Policy. Also commendable is the concrete support of ECOWAS instruments and institutions which is recognition that there is a global approach to solutions. The main problem with this large network of policies and even the few laws is that they are essentially parallel to each other. While there is minor recognition of climate change in some energy policy instruments, there is no strategy to centralise climate change as a fundamental aspect of energy governance. The suggestion in this chapter is the need to bridge the gap by integrating climate change and energy into a holistic document. The view is that only a tripartite Nigeria Climate Change and Energy Policy, a National Climate Change and Energy Act and a Climate Change and Energy Agency will provide the building blocks for sustainable clean energy. This radical integration of climate change and energy policy and law is not without substantial challenges. Undoubtedly, there will have to be substantial political will on the part of the Nigerian government, which must be accompanied by the backing of stakeholders, especially, the business and industrial sector, civil society and the general public. Whatever the case, the writing is now on the wall as the transformation of climate change and energy at the international, regional and national level becomes a reality. This informs the need for Nigerian policymakers to be proactive in planning the county’s transition to a sustainable low carbon future. 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Funteh 1 Introduction Since independence from either the French or the English in the early 1960s, the countries of the Lake Chad Basin (LCB) region, with a longstanding history of violent conflict, have been plagued by serious humanitarian crises. This is inter alia due to complex political instability, weak economic and social policies, which have prolonged the national and international conflicts. Low levels of economic development vary between riparian nation states, poor education systems, widespread illiteracy, sharp gender disparities, high health risks, water and food insecurity are marks of the crisisstricken region. The LCB area represents the poorest, most marginalised and neglected part of each respective country, with poor provision of basic infrastructure and social services; a situation that disfavours various aspects of human security. Nigeria has been hit by successive incidents of unrest, including coup d’états, civil wars and the recent rise of the Islamist extremist group Boko Haram, founded in 2002, that has terrorised the entire region. Chad has for a long time experienced a seemingly endless crisis of civil war since 1963. As an enclave country, it has often been exposed to threats of attacks, human trafficking and armed conflict from Libya, Darfur (South Sudan) and the Central African Republic. Being part of the route that migrants take to reach Europe, the Chadian desert supports the migrations of young people fleeing the unbearable situations of their origins. Niger, ranking second lowest in the world on the Human Development Index1, suffers from continual structural calamities, weak sectoral policies and low levels of investment and development aid, as well as an influx of refugees from Mali and Nigeria. Meanwhile, Cameroon – despite its development deficits – has since 1967 borne the burden of huge refugee inflows from many neighbouring states. Following huge crop damage by locust swarms; the stagnation or decline of crop production, fishing and animal husbandry activities; the constant mobility of people; a sustained crime wave; and health, food and price insecurity despite ____________________ 1 UNDP (2016). The Central African Republic ranks lowest in the world. Oliver C. Ruppel & Mark B. Funteh 106 international and national efforts, research worldwide seeks a new understanding of the persistence of the humanitarian crises in the region. Lake Chad is an international shallow fresh-water lake, which has receded significantly over the past decades due to overuse, poor management practices and expanding desertification. The LCB is located between Latitude 6° and 24° N and Longitude 7° and 24 E°. Covering 2,434,000 km2, which is an estimated 8% of the total African surface area, the Basin is shared by the riparian countries of Chad (45%), Niger (28%), the Central African Republic (CAR) (9%), Nigeria (7%), Algeria (4%), Sudan (4%), Cameroon (2%) and Libya (0.5%).2 However, only four of these are in direct contact with the lake, namely Cameroon, Chad, Niger and Nigeria. Chad and Niger are the countries with the largest shared territory, but three-quarters of the lake water come from the CAR and Cameroon. More than 70 ethnic groups and a total population of about 38 million form the predominantly rural population around Lake Chad, most of which depend on the region’s natural resources for their livelihoods.3 The Human Development Indices (HDI) – a summary measure of average achievement in key dimensions of human development: a long and healthy life, being knowledgeable and have a decent standard of living – in the region are among the lowest in the world.4 According to the United Nations, the long-running violence and military counteroffensives have affected 21 million people across the LCB and left nearly half of the region’s population – 9.2 million people – in critical need of aid.5 Chad, Niger and Nigeria have experienced periods of military rule. Chad and Nigerian politics are shaped by oil exploration. Transitions from military rule to democracy have occurred in Niger and Nigeria.6 The LCB is conflict dense. Attacks have taken place in northern Cameroon since March 2014 and in southern Niger and western Chad since early 2015. Fighters move freely across national borders. They have some level of support from certain local populations in all four countries although there is also much anger directed against them due to continuing tactics of committing attacks against civilians.7 Cameroon has seen a recent escalation of conflict and violence in its northeast and southwest regions, marked by violence against Anglophone activists by security forces,8 bomb blasts and the proclamation of the independence of Ambazonia by secessionist groups.9 ____________________ 2 Odada et al. (2006: 1). 3 With further references see Nagarajan et al. (2018). 4 UNDP (2016); and Nett & Rüttinger (2016). 5 UNOCHA (2016). 6 Nagarajan et al. (2018: 9). 7 Ibid: 13. 8 Ruppel & Stell (2017). 9 ICG (2017). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 107 In Chad, already hosting hundreds of thousands of refugees from conflicts in neighbouring Sudan and the CAR, clashes between settled farmers and nomads over land use rights and access to water occur frequently in the north. Niger, with a history of conflict between the state and some of its Tuareg communities, has also, due to its geographical location, felt the spill-over of conflict from neighbours Mali and Libya as well as Nigeria. New sites of conflict have manifested in Nigeria since its 2015 elections around the pro-secessionist mobilisation by and state reaction to the Indigenous Peoples of Biafra (IPOB) in the southeast and tensions around the killing of over 300 unarmed members of the Islamic Movement of Nigeria (IMN), a Shiite group, by the military, detention of their leader and protests ending in violence which add to preexisting conflict around oil extraction in the Niger Delta, rural banditry and inter-communal violence.10 While the peoples of Niger and Chad are predominantly Muslim, Cameroon has a Christian majority with a significant Muslim minority and Nigeria roughly equal numbers of Christians and Muslims.11 The role played by ethnic heterogeneity in local resource conflicts in the LCB region contributes to its population dynamics. The ethnic composition remains a crucial factor for mobilisation, turning the protest into collective violence triggered by language and religious loyalties. In trying to make a living through the exploitation of scarce water and land resources, the multi-ethnic groups have often engaged in interethnic and sectoral conflicts.12 One particular instance is the recurrent deadly clashes between the Shuwa Arabs from the east of Lake Chad and the Fulani pastoralists from the south-west, over the limited fishing and animal husbandry opportunities at the southern pool of the Basin.13 As of 2016, over 30 million people inhabited the LCB.14 This rapidly growing population – with an average growth rate of 2.6% – is ethnically highly heterogeneous, with over 70 groups who are Christian, Muslim and Animist by faith. The main groups are Kanuri, Maba, Buduma, Hausa, Kanembu, Kotoko, Bagger, Haddad, Kuri, Fulani, Massa, Mundang and Manga, and they often straddle the region’s international borders, with the largest cities being Kano and Maiduguri in Nigeria, Maroua in Cameroon, N’Djamena in Chad and Diffa in Niger.15 ____________________ 10 Nagarajan et al. (2018: 17). 11 Ibid: 12. 12 Le Barbe & Lebel (1997). 13 Odada et al. (2006). 14 Cf. (accessed 18-5-2018). 15 Okpara et al. (2015: 2). Oliver C. Ruppel & Mark B. Funteh 108 2 Diverse climate The LCB region is located in the Sahel at the southernmost edge of the Sahara, but the lake itself is largely fed by precipitation further south in the humid tropics. This unique geography has created an oasis in an otherwise largely arid region. The LCB features strong diversity in climate, from the desert in the north to humid tropics in the south.16 According to the Intergovernmental Panel on Climate Change (IPCC), the Sahel is the world’s region with the most substantial and sustained decline in rainfall recorded, and climatic conditions are expected to deteriorate further.17 Temperatures are projected to increase, and if the shrinking of Lake Chad continues at the current pace, the lake could completely disappear within the next 20 years.18 While the LCB region is generally and historically subjected to intense drought events, water scarcity is increasingly associated with the myriad of socio-economic and livelihood shifts around the lake, for which climate variability acts as an amplifier. Both overexploitation and climate change have the potential to contribute to increased conflicts over the distribution of natural resources.19 Depending on precipitation rates, which vary from an average of 1,400 mm/year in the south to 10 mm/year in the north, four climatic zones may be identified in the LCB, namely: the humid zone in the Basin’s southern part (the territory of Cameroon and CAR); the dry sub-humid zone (the territory of CAR and Chad); the semi-arid zone in the central part of the Basin (the territory of Nigeria, Chad and Niger); and the northern arid and hyper-arid zone (territory of Niger and Chad). The northern half of the Basin is desert, containing the Tenere desert. Erg of Bilma and Djurab lying south of that comprises the Sahel zone, which is dry savanna and thorny shrub savanna. The main rivers are skirted by riparian forests, flooding savannas and wetland areas. In the far south, there are dry forests.20 Lake Chad constantly changes in response to variations in temperature and rainfall. A variety of ecological zones surround the lake, including deserts, forests, wetlands, savannas and mountains.21 Three main drainage systems supply its water, namely the Chari-Logone River (in the CAR), the Komadugu-Yobe River (in Nigeria) and the Yedsaram/Ngadda River (in Cameroon). Lake Chad is, in fact, a tropical lake with associated wetlands. It has a northern and a southern basin of roughly the same size, which are separated by a sand barrier, referred to as the Great Barrier. It is very shallow with a general depth of less than four metres. The main rivers feeding the lake flow ____________________ 16 Nagarajan et al. (2018). 17 Niang & Ruppel (2014: 1209). 18 See Nett & Rüttinger (2016: 13) with further references. 19 Niang & Ruppel (2014). 20 FAO (2009: 2). 21 Ovie & Emma (2011); Sullivan & Rohde (2002). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 109 into its southern basin. When the water level is too low, the Great Barrier prevents water from flowing to the northern basin, causing that segment of the lake to dry up.22 3 Livelihood and sustainability The LCB supports the human population, as well as millions of wildlife that include birds, mammals, reptiles and amphibians. There are populations of elephants, giraffes and lions. The local economy in the upper part of the catchment area is based on fishing, agriculture and pastoralism. Agriculture is primarily undertaken in rain-fed areas in the south and flooded areas. Hydrological and biophysical changes resulting from natural climatic variability and various human activities threaten the entire LCB, but the lake itself and the natural resources and ecosystem services are used by communities to pursue their livelihoods.23 Livelihoods are sustained by activities dear to the peoples’ hearts. The main activities in the LCB are economic and include farming, herding and fishing, as mentioned earlier. At least 40% of the rural population of the Basin lives in poverty and routinely faces chronic food shortages.24 Crop production based on rain is possible only in the southern belt, as highlighted earlier. Flood recession agriculture is practised around the LCB and in the riverine wetlands. Nomadic herders migrate with their animals into the grasslands of the northern part of the Basin for a few weeks during each short rainy season, where their livestock intensively graze the highly nutritious grasses. When the dry season starts, the herders move back south, either to grazing lands around the lakes and floodplains or the savannas further to the south. Livestock rearing is, in fact, most well developed in the northern section of the Basin,25 while farming activities can be traced mostly on the edges of Lake Chad and in the south of the Basin. All the LCB countries have alarming levels of hunger, with some witnessing extreme levels. The Global Hunger Index (GHI) is a multidimensional statistical tool that describes the state of hunger in different countries. The GHI value for Chad is over 30 and is between 20 and 29.9 for the other basin countries.26 With poverty conspicuous throughout the Basin, many young people seek to flee the region or join armed groups leading to increased social unrest. It is expected that this will worsen in the coming years, as the security and economic situations have reached a critical point, demographic growth is large, and climate change is negatively affecting agriculture. Furthermore, with increasing environmental challenges, multi-activity has become common as individuals engage in several livelihood activities from fishing, livestock ____________________ 22 McMichael et al. (2003). 23 UNEP (2004). 24 FAO (2017). 25 FAO (1983). 26 Cf. (accessed 18-5-2018). Oliver C. Ruppel & Mark B. Funteh 110 rearing, agricultural, trading and handicraft making to secure revenue to sustain their livelihoods.27 4 Hydrological and biophysical changes The LCB area has experienced serious hydrological and biophysical changes caused by climatic variability and various human activities. These threaten the entire LCB, the lake itself and the ecosystem and natural resources used by communities to pursue their livelihoods.28 The depletion of soil fertility and freshwater supplies and the mismanagement of water catchment basins as a consequence of excessive deforestation have also contributed to encroachment by the Sahara Desert. The climatic changes have imposed on the region high temperatures, strong winds, high evapotranspiration (estimated at 2,200 mm/annum) and fluctuating rainfall patterns.29 Annual rainfall varies spatially from nearly 1,400 mm along the southern pools to less than 150 mm near the northern end.30 In fact, a short rainy season (June, July, August and September) and a longer dry spell are pronounced characteristics of spatial-temporal distribution of rainfall in the LCB.31 Because of the strategic location of the Basin, in a climatic transition zone, regions at the south of the lake tend to experience more rainfall than those at the north of the lake. The mean monthly rainfall for eight stations within the LCB area that are located in the southern parts of the Basin shows that distribution is common in tropical rainfall regions. Here, rainfall occurs from April to early November. The northern portion, however, only experiences (often very light) rainfall for a shorter period in July, August and September. What this means is that the level and size of Lake Chad depend on precipitation in the southern parts and how much of the run-off is transferred through the floodplains of the Basin to the lake.32 The distribution of surface water bodies has a high correlation with rainfall distribution. The southern parts have a few perennial rivers that act as lifelines to agricultural activities and human needs, while the north-east and north-west regions are characterised by intermittent water bodies that have low seasonal flow and dry up quickly at the onset of drought.33 Studies concerning mild and prolonged drought years in northern Cameroon show that the riverbeds of these intermittent streams are desiccated, primarily as a result of substantial water abstraction for irrigation and nomadic pasturing.34 ____________________ 27 Mekonnen (2016). 28 Niang & Ruppel (2014); and UNEP (2004). 29 FAO (2009: 33). 30 Odada et al. (2006). 31 Coe & Foley (2001); Nicholson, Yin & Ba (2000); and Caminade & Terray (2010). 32 Charney (1975: 193-202). 33 Okonkwo & Demoz (2013). 34 Lienou et al. (2005). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 111 The distribution of decadal monthly rainfall and temperatures suggests that there is a relationship between high temperature and low rainfall. Increased temperature leading to increased evapotranspiration is associated with increased drought.35 Peak rainfall in August corresponds to the northward movement of the intertropical convergence zone (ITCZ).36 Consequently, the history of drought in the Basin is defined by its changing rainfall patterns.37 From the middle of the 1960s, rainfall started to drop intermittently until the droughts of 1972-1975, which coincided with the shrinking of the Basin surface water level to 10,700 km2 from its initial level of 25,000 km2 in 1963.38 Another drought, which occurred in 1982-1985, resulted in a drop in water levels in the LCB to 1,410 km2,39 the lowest basin surface level recorded over the past 100 years. This is evident in many river beds. Lake Chad was identified as one of the lakes at greatest risk of socio-political stress.40 Over 13 years since this observation, the state of the lake’s Basin has worsened in as much as it has shrunk by over 90% compared with its size (25,000 km2) in the 1960s.41 Lake Chad was vastly bigger (up to 400,000 km2) several thousands of years ago than it was in the 1960s when it was known as Lake Megachad.42 For the entire 20th century, the lake was at its highest level between 1960 and 1963.43 Furthermore, stream flow modification and water diversion, associated with the construction of large irrigation and water development projects along the Chari-Logone River and Kamadugu-Yobe River, are also identified as contributing to the shrinkage of the Basin over the period 1970-2013.44 The construction (between 1979 and 1990) of the Yaguou-Tekele Dyke and Maga Dam beside the Chari-Logone River in Chad, and a series of other dams, such as the Alau Dam, Tiga Dam, and the Yeders Dam at the Nigerian end of the Kamadugu-Yobe River, has had a great impact on the lake’s waters.45 Between 1970 and 1990, the average water discharge from the Chari- Logone River to the Basin was 55% of the average of the period 1950 to 1970.46 It is estimated that about one-third of the water flow (since the 1980s) is diverted from the Chari-Logone River in the CAR before it reaches the LCB.47 Water diversion ____________________ 35 Dai et al. (2004). 36 Lélé & Lamb (2010). 37 Malo & Nicholson (1990). 38 Okpara et al. (2015: 7). 39 GIWA (2004). 40 Wolf et al. (2003). 41 Gao et al. (2011). 42 Drake & Bristow (2006). 43 USGS (2014). 44 Ibid. 45 Onuoha (2008). 46 Olivry et al. (1996). 47 Glantz (2004). Oliver C. Ruppel & Mark B. Funteh 112 for irrigation and hydropower generation increased greatly between 1981 and 1990.48 About 50% of the depletion in the lake’s size since the late 1970s to 2000 was attributed to unsustainable water diversion and use for human activities, but recently arguments attributing water shortage to evaporation due to global warming are growing more popular.49 Consequently, the current state of the lake is one of acute water shortage. In 2000, the water supply was less than 500 m3 per person per year.50 This has not changed to date though the population has continued to increase. A change from cultivation of low water intensity food crops (such as wheat) to high water intensity food crops (such as rice) has added to water scarcity.51 Reduced water levels have caused increased alkalinity, increased anoxic conditions and worsened the effects of eutrophication.52 Because the lake region is generally and historically subjected to intense drought events, water scarcity is increasingly associated with the myriad of socio-economic and livelihood shifts around the lake, for which climate variability acts as an amplifier. This has had a direct effect on food yields and famine in the area. Relying on ecosystem health, subsistence farmers, fisherfolk and pastoralists suffer from accentuated unpredictability and relative decline in rainfall levels. In this dry region, even a one-degree global temperature rise contributes significantly to the decline of the lake, which equates to the destruction of people’s vital resources and livelihoods. Accordingly, drastic consequences of global climate change fall on those whose activities have contributed the least emissions. With desertification erasing some fishing areas over time, shrinking the lake to reveal more land for cultivation, combined with the reduction of fish stocks from overfishing and as a consequence of the lake’s recession, many fishermen have given up fishing to begin farming. Household groups have switched livelihood strategies as the demand for water and water scarcity have simultaneously increased. These chain reactions have often heightened competition between farmers and other livelihoods. Impacts on income, food and nutrition security, labour generation and poverty alleviation are clear as climate-related water stress, and shortages exacerbate community vulnerabilities. Relying on increasingly exhaustive coping strategies and social networks to meet food security needs, people have moved around the Basin and diversified livelihood activities and adopted more drastic behaviours. As a result, the resilience of the socio-ecological system of the region is threatened as resources become more intensely used and depleted. Reduced rainfall and streamflow modification reduce fishing grounds and modify habitats, which translate to declining fish catch and trade, lowered income, ____________________ 48 GIWA (2004). 49 Coe & Foley (2001). 50 Henninger et al. (2000). 51 Odada et al. (2006). 52 Ovie & Emma (2011). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 113 unemployment and increased poverty, and, ultimately, food and nutrition insecurity. For 40 years the only water in the lake has been found at its deepest point, namely the southern pool and to a certain extent in the marshes, in spite of high flow rates occurring elsewhere. The relative flatness of the terrain means that variations of a few centimetres flood the islands, as happened in 2012, or result in the lake shoreline receding by several kilometres. Such variations have not, however, been beneficial to fish reproduction, forcing fishermen to diversify their activities and move into farming, owing to the uncertainty and insecurity caused by the varying water levels of the lake.53 The species of fish currently caught by fishermen, although once plentiful and varied, are struggling to survive the onslaught of overfishing and the drop in water levels caused by the variable climate. The reduced water levels have not only led to decreased fish catches but have also increased the productive capital expenditure of fishers, especially for hitherto near-shore fishers. Changes in fish distributions and productivity not only increase productive capital considerably but also inflate the cost of fish. In the same vein, the lake’s fishing communities have had to move in response to declining fishing grounds caused by a gradual but steady decline in water area.54 Furthermore, the siltation of water bodies and watercourses, the proliferation of invasive aquatic plants, premature dewatering, the reduced biodiversity, increasing water pollution, and harmful fishing practices have not helped the fishing environment, as there has been a serious decline in fish production over several decades and the disappearance of once-common species. This has also affected the livestock herders and pastoralists. Livelihood patterns have shifted in large part owing to growing water shortages in the Basin. For example, decreased grazing land for animals has led herders to shift from rearing grazing animals (cattle and camels) to browsing animals (sheep and goats),55 which has led to an increased removal of vegetation cover.56 Moreover, water shortage has initiated shifts in livelihood patterns.57 This, in turn, has led to increased removal of vegetation cover.58 A declining annual fish catch (for example, the annual fish catch from the lake’s fisheries decreased from 141,000 tonnes in the early 1970s to 70,000 tonnes in 2002) explains that fishers engaged in small-scale open water fisheries have had to switch to swamp and floodplain fisheries.59 This required a change in fishing gear, from open water gear to specialised passive gears such as gill nets, cane traps and hooks. Because of reduced fishing areas, large-scale fishers have had to invest in bigger and safer boats to enable them to travel longer distances to access the ____________________ 53 Cf. (accessed 18-5-2018). 54 Ovie & Emma (2011). 55 Onuoha (2008). 56 USGS (2014); and Herrmann et al. (2005: 394). 57 Living Waters (2003). 58 USGS (2014). 59 Cf. (accessed 18-5-2018). Oliver C. Ruppel & Mark B. Funteh 114 open waters of the lake to catch species of higher value, as indicated earlier. Only the wealthy fishing households can make these adjustments, while the poor become poorer and remain more exposed to the exploits of terrorists in the region.60 5 Human security, conflict and migration Adverse climatic events not only deepen poverty vulnerability but also have an impact on all aspects of human security, either directly or indirectly. Issues that potentially interrelate between climate change and human security include water stress, land use, food security, health security, environmentally induced migration and violent conflict.61 Both overexploitation and climate change will continue to contribute to increased conflicts over the distribution of natural resources.62 Although violent conflict and migration are caused by different interacting factors, including social, demographic and economic drivers, it may be observed that migration and violent conflict in the LCB are also sensitive to the impacts of climate change. In fact, climate change has the potential to act as a risk multiplier threatening the stability of states and societies.63 Examples of climate change impacts closely related to migration are floods and droughts exacerbated by climate change, which have resulted in an increased rural-urban migration. The nexus between climate change and violent conflict on the African continent has become the focus of a growing body of research in recent years. Mechanisms linking climate change to violent conflict include worsening livelihood conditions; migration and changing pastoral mobility patterns; tactical considerations of armed groups; and exploitation of local grievances by the elite.64 Extreme weather events can be a cause of violent conflict as they have the potential to intensify competition over scarce resources, especially in regions that lack efficient conflict management institutions. As droughts and expansion of the Sahel continues, southward migration has increased since people move south to seek basic resources for their survival and that of their livestock. This southward migratory trend, however, has not curbed natural resource degradation due to overexploitation.65 One major concern regarding human security is the issue of forced migration in fragile contexts. In recent years the number of forcefully displaced persons has increased significantly and caused a number of short-term human security needs, as well ____________________ 60 Ovie & Emma (2011). 61 Ruppel (2013). 62 Niang & Ruppel (2014). 63 Rüttinger et al. (2015). 64 SIPRI (2017). 65 GIWA (2004). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 115 as long-term challenges, including dealing with the legal status of displaced persons in a host country.66 Most forcefully displaced persons are internally displaced, namely displaced within the borders of their home country; and forced displacements are closely associated with violent conflicts. Official data differs in tracking ongoing migrations and displacements, as such numbers are mostly approximations of forced migration, unable to qualify the chaos of daily life within the Basin, which has lost many types of security. Capturing the threats within LCB, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) reported that as of 30 March 2016, beyond those taking refuge outside their home countries, the number of internally displaced people had surged. According to the International Organization for Migration (IOM) in 2017, displaced people were recorded in the following countries: Nigeria (3 million), Niger (252,000), Cameroon (396,000) and Chad (176,000). In total, 17,300,000 people are living in the affected area of which 2,200,000 are internally displaced people and 1,400,000 returnees.67 Added to this, are the death tolls, destruction of schools and hospitals, and the blocking of food supplies, market holdings, trans-border transactions and so on, in the region. Moreover, the relationship between climate change and armed conflict has an amplifying effect on the subsequent humanitarian and hunger crises in the region. Community assets and food reserves are destroyed as Boko Haram strikes, which worsens already severe problems of food security and increases the prevalence of acute malnutrition in the region. Within a previously poor nutritional situation, due largely to food shortages resulting from environmental challenges, the incidence of conflict and regional insecurity (beyond pre-existing drought and desertification disasters, which steadily damage natural capital) appear as overlaying causes and effects of the regional crisis. Hence, the protracted conflict-induced humanitarian situation appears as a prolonged shock to a regional system already dealing with local food and nutrition insecurity for decades. Therefore, interruptions to daily life and routine coping strategies employed within areas of poor economic and low human development have compounded impacts, drastically affecting people throughout the region in one way or another and reducing their already constricted strategies for coping in a harsh environment. In many cases people have been uprooted from their homes, thereby losing social and physical capital, and, in other cases, have been compelled to drastically alter their networks, activities and previous sources of income. According to recent reports from the Nigerian military, Boko Haram has resorted to using natural resources as a weapon and part of their strategy of violence. They have poisoned water sources such as wells and streams in areas where they were dislodged by state troops, making water use dangerous for both humans and livestock. While it ____________________ 66 SIPRI (2017). 67 IOM (2017). Oliver C. Ruppel & Mark B. Funteh 116 remains unclear whether this strategy is being systematically used as a weapon against civilians, it underlines the strategic importance of natural resources in the conflict.68 Ultimately, the causes for displacement and migration are manifold; however, climate change in the LCB region is definitely one of the interlinking issues. Other potential drivers of migration are push and pull factors related to the overall situation in the LCB region, and intervening factors that facilitate or restrict migration, all of which interact in different ways.69 However, human mobility is a strategy (not only a reaction) to climatic changes that is characteristic of the LCB region, and the nature of the response is determined by the economic context of the specific communities.70 For instance, family and kinship groups straddle national borders, and historically, people have migrated and traded freely across the region. There was always thriving crossborder trade in agricultural produce, fish as well as other goods and commodities. Lake Chad acted as a trading hub offering economic opportunities and resources of which people living around the lake took advantage despite the lack of national government policies to support this.71 6 Water scarcity and regional security The importance of Lake Chad’s transboundary waters creates a situation where conditions in one country can create adverse repercussions in another. A river basin is a source of ecological interdependence under which water stress and conflicts in one country can be transmitted to another.72 This has regional security implications. Research shows that when there were increased water crises in the region during the droughts of the 1980s and 1990s, people struggled for the scarce fertile areas and wetlands.73 This crisis phenomenon has become the order of the day in the region since then. For instance, several militarised conflicts occurred over competing river claims, especially as resource users migrated in response to the shrinking lake. For example, between 1980 and 1994, almost 60,000 Nigerians followed the receding lake waters, fishing, cultivating crops and rearing animals within Cameroon’s border of the LCB.74 By triggering hostilities with neighbours and damaging relationships between nations sharing the lake’s common pool resources, the shrinking lake threatens regional security. In 1982 local people from Cameroon and Nigeria clashed over access to the ____________________ 68 See Nett & Rüttinger (2016: 14-18) with further references. 69 Black et al. (2011). 70 Niang & Ruppel (2014). 71 Nagarajan et al. (2018: 10). 72 Tir & Stinnett (2012). 73 Hall (2009). 74 Ibid. Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 117 water resources around the southern end of the LCB.75 In 1983, Chad engaged in a violent interstate conflict with Nigeria over the status of the islands in the lake with which both countries have borders.76 This violence resulted in over 100 casualties.77 In the late 1980s, Nigeria and the Niger Republic clashed over water diversion and access to the Komadugu-Yobe River flow within the LCB. In 1992, there were clashes between upstream (Nigeria) and downstream (Niger) communities over access to the waters from the Tiga and Challawa Gorge Dams at the south-western end of Lake Chad.78 All of these conflicts also increased the number of displaced people in the region. With climate change causing reduced rainfall, reduced river runoff and more frequent droughts, the extent and impacts of water scarcity are far-reaching, particularly in the context of livelihood security. Thus, a collaborative stand exists between climate change, water scarcity, conflict and migration. Since 2005, competition and conflict over the use of water resources within the lake have continued to create security concerns at the lake’s southern pool where the largest population of resource users live.79 Water shortages and loss of livelihood options have driven vulnerable people into risky behaviours such as drug trafficking and the trading of arms. Large cohorts of young people deprived of their sources of livelihood constitute the major portion of terrorist groups and rebels in third world militias.80 The rise of violent jihadist militants, who have killed over 10,000 people in the southern part of the lake, has been linked to loss of livelihoods and joblessness created by environmental degradation around the lake.81 As water scarcity and poverty become more amplified and intense, the economic and political value that communities and nations place on the lake’s resources are expected to increase.82 Growth in unilateral consumption and unregulated allocation and use of water (for instance through damming, diverting, dumping and draining activities) by one nation decreases the amount available to another state. In the wake of the droughts and water shortages of the 1980s, each riparian country unilaterally took decisions to construct dams and divert water away from the lake without recourse to existing water agreements and consultations with the Lake Chad Basin Commission (LCBC). This implied that previously agreed-upon river diversion arrangements (e.g. for agriculture, human consumption and industrial use) became politically problematic as the water levels of ____________________ 75 Odada et al. (2006). 76 UCDP (2008). 77 Wallensteen & Margareta (1999). 78 Odada et al. (2006). 79 GIWA (2004). 80 Ohlsson (2003). 81 Ifabiyi (2013). 82 Onuoha (2008). Oliver C. Ruppel & Mark B. Funteh 118 rivers flowing into the Basin continued to drop and as the resulting externalities became a burden for downstream countries.83 Water resources comprise less than 1,000 m3/person/annum, and, as in the case of the LCB, water scarcity creates discontent and desperation, especially when it constrains socio-economic development.84 Since the droughts of the 1970s and 1980s, agricultural production has continued to decline. For example, annual sorghum yield was less than 250,000 tonnes during the 1972 to 1975 droughts and 180,000 tonnes during the 1982-1985 droughts.85 These yields have further declined to date.86 The retreat of the lake resulting from a series of relatively dry years has created new areas of cultivable land, which has proven beneficial to local farmers. However, these farmers are particularly affected by seasonal variability, as the receding water levels affect their harvests and the quality of their products with related effects, like food shortages, malnutrition, high market prices and high levels of poverty and hunger. It is also noticeable that, owing to diminishing rainfall, resources have been depleted and desertification has advanced in the region. Productive activities, including agriculture, fishing, livestock rearing and the trade of the respective products, have also been interrupted by Boko Haram’s insurgency and systemic violence via methods such as poisoning of water resources, and also “pillaging of villages, destruction of public buildings, systematic abduction, imprisonment, rape and forced marriages of girls and women, and forced recruitment or execution of boys and men”.87 Where the locals can no longer sustain a living from their environment, looking elsewhere for survival becomes a better option. That better option was found with Boko Haram who offered the poverty-stricken population opportunities for a livelihood. When the youths’ livelihood activities or bread-winning actions are cut off or reduced in the region, the only means of surviving hardship was to acquiesce to the attractive offers.88 7 Water governance Effective water governance is essential for human security. This – in the context of climate change – also needs to take adaptation opportunities into account.89 Water action, peace action and climate action need to move closer together to engender social stability in the transboundary lake region.90 Conflicts about water in the LCB are ____________________ 83 Odada et al. (2006). 84 Gleick (2000). 85 GIWA (2004). 86 USGS (2016). 87 Nett & Rüttinger (2016). 88 BIR (2015); Funteh (2015); and Mercy Corps (2016). 89 Babcicky (2013). 90 Gustafsson (2016). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 119 interlinked issues regarding their environmental, vulnerability and security implications. In fact, the need to harmonise and drive actions on resource management and governance was already recognised in the mid-1960s following the adoption of the Fort Lamy Convention, which led to the establishment of the LCBC.91 7.1 The Fort Lamy Convention The political basis for international boundary settlement between the LCB countries was provided by a formal declaration at the Fort Lamy Conference of heads of government in December 1962, where all riparian states agreed to recognise the existing national boundaries of the lake and by the subsequent solemn resolution of the Organisation of African Unity in July 1964 that its member states undertake to respect the frontiers existing at the time when they became independent.92 From the uti possidetis rule follows a need for careful documentary research to determine the historical origins and current validity of the water boundaries agreed upon between the then colonial powers in the LCB, namely, Great Britain, France, and (until 1919) Germany.93 After the First World War and the defeat of Germany, former German territories fell to the League of Nations in 1919.94 According to Article 118 of the Treaty of Versailles, Germany had to renounce its rights over its former colonial territories: In territory outside her European frontiers as fixed by the present Treaty, Germany renounces all rights, titles and privileges whatever in or over territory which belonged to her or to her allies, and all rights, titles and privileges whatever their origin which she held as against the Allied and Associated Powers. Germany hereby undertakes to recognise and to conform to the measures which may be taken now or in the future by the Principal Allied and Associated Powers, in agreement where necessary with third Powers, in order to carry the above stipulation into effect. After the liberalisation of Africa from colonialism, African leaders chose to keep colonial boundaries for the interest of stability and certainty by utilising the uti possidetis principle. Since 1964, the water resources of Lake Chad have largely been regulated by the Lake Chad Basin Commission Convention and Statute signed on 22 May 1964 in Fort Lamy (today named N’Djamena).95 The Fort Lamy Convention, an instrument of public international law, attempts to balance the conflicting interests of member states. On the one hand, it prohibits any unilateral exploitation of Lake Chad’s water by its member states, whereas, on the other hand, it recognises their sovereign rights over the water resources in the basin. ____________________ 91 Sand (1974: 68). 92 Ibid. 93 For further references to the relevant colonial treaties see Sand (1974: 68). 94 Regarding former Namibian and Cameroonian German territories, see for further information Ruppel & Ruppel-Schlichting (2016 and 2018). 95 Jacobs & Mostert (2007: 15). Oliver C. Ruppel & Mark B. Funteh 120 These opposite aims are difficult to reconcile and contribute to disputes as history has shown.96 Generally, the Fort Lamy Convention permits its member states to exploit the resources of the LCB and to utilise the surface and underground waters. The Convention acknowledges the right of member states to plan water-related projects if they consult the LCBC beforehand. While the Convention mainly deals with matters of diplomatic form and procedure, the Statute details the functions of the LCBC,97 and certain principles of substance, including the basic compromise formula of Article 5 which requires member states to consult with the LCBC before undertaking new projects likely to have an appreciable effect on the overall water balance or water quality of the basin.98 Article 5 is the cornerstone provision of the Fort Lamy Convention, which establishes the principle of prior consultation between member states before they initiate measures likely to have marked influence on water quantity or quality, including groundwater reserves. It provides as follows: The Member States undertake a refrain from adopting, without referring to the Commission beforehand, any measures likely to exert a marked influence either upon the extent of water losses, or upon the form of the annual hydro graph and limnograph and certain other characteristics of the Lake, upon the conditions of their exploitation by other bordering States, upon the sanitary condition of the water resources or upon the biological characteristics of the fauna and the flora of the Basin. In particular, the Member States agree not to undertake in that part of the Basin falling within their jurisdiction any work in connection with the development of water resources or the soil likely to have a marked influence upon the system of the water courses and levels of the Basin without adequate notice and prior consultations with the Commission, provided always that the Member States shall retain the liberty of completing any plans and schemes in the course of execution or such plans and schemes as may be initiated over a period of 3 years to run from the signature of the present Convention. Article 5(2) can be seen as the environmental regulatory arm of the Fort Lamy Convention. It uses, but does not define, the term ‘marked influence’. In accordance with the object and purpose of the Fort Lamy Convention, the term should be understood as meaning a measurable and not totally negligible impact on the ecosystem of the basin and the interest of other riparian States.99 Regarding navigation on Lake Chad and its tributaries, Article 7 of the Fort Lamy Convention provides that the member states “shall draw up common rules to facilitate as far as possible navigation…on the lake and its surrounding navigable waterways”, whereas Article 3 provides that the basin is to be open to use of all member states, without prejudice to the sovereign rights of each, and subject to the establishment of ____________________ 96 Lorenzmeier (2013). 97 The legal texts are available online at (accessed 6-6-2018). 98 Sand (1974). 99 Ibid. Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 121 common rules for the purpose of facilitating navigation on the lake and navigable waters in the basin. Read in conjunction, the provisions prescribe that navigation on Lake Chad still falls under the control of riparian states, which is only regulated by international norms. Article 7 of the Fort Lamy Convention treats the LCB as being of common interest to the riparian states and not as common property.100 As the shrinking of the water reserves of the LCB shows, the approaches to resource management in the Lake Chad region have been inadequate. Additionally, droughts, population increase and movement, as well as civil strife are common in the region and have placed constraints on the effective management of transboundary water resources in the area. In order to achieve the aim of sound biodiversity conservation and development in the region, an improvement and strengthening of the rules on environmental protection and their implementation is necessary.101 Altogether, the “loopholes in the Fort Lamy Convention have long been recognised”, and the implementation of the Fort Lamy Convention has had limited success when it comes to the shrinking of the water reserves of Lake Chad.102 7.2 The Lake Chad Basin Commission (LCBC) The LCBC was established on 22 May 1964 by the four countries that border Lake Chad: Cameroon, Niger, Nigeria and Chad. The CAR joined the organisation in 1996 and Libya was admitted in 2008. Observer status is held by Sudan, Egypt, the Republic of Congo and the Democratic Republic of Congo. N’Djamena, the capital of Chad, hosts the Headquarters of the Commission.103 Chapter IV of the Statutes of the Fort Lamy Convention regulates the LCBC, which in terms of Article 17 shall, in all respects, enjoy the status of an international body. According to Article 9, the LCBC has the following terms of reference: (a) Preparing joint rules, permitting the complete application of the principles affirmed under the present Statutes and the Convention to which it is appended, and ensuring an effective implementation of such rules; (b) Assembling, examining and diffusing information on the projects prepared by Member States and recommending the planning of joint works and research programmes within the Chad Basin; (c) Maintaining liaison between the Member States with a view to the most efficient utilisation of the waters of the Basin; (d) Following up the execution of works and studies in the Chad Basin falling within the present Convention and keeping Member States informed at least once a year through the exploitation of systematic periodic reports which each State undertakes to address to it; ____________________ 100 Lorenzmeier (2013: 3). 101 Ibid. 102 Aginam (2008: 206). 103 See (accessed 18-5-2018). Oliver C. Ruppel & Mark B. Funteh 122 (e) Formulating common rules concerning navigation; (f) Establishing regulations governing its personnel and ensuring their application; (g) Examining complaints and assisting in settling disputes; (h) Supervising the implementation of the provisions of the present Statutes and the Convention to which it is appended. Article 11 stipulates that the joint regulations and recommendations of the LCBC shall be transmitted to the governments of the member states for their decision. The mandate of the LCBC is to sustainably and equitably manage Lake Chad and other shared water resources of the LCB, to preserve the ecosystems of the LCB, and to promote regional integration, peace and security across the Basin. Promoting international cooperation between the riparian countries in the LCB is the main task of the LCBC. Moreover, the LCBC has a mandate for examining complaints and promoting the settlement of disputes between the parties. It also serves as a general forum for the riparian states on other issues like environmental protection. The work of the LCBC has to be seen in the light of the difficulties the region is facing, its weak powers, and its serious lack of financing. On the positive side, the work of the LCBC contributes to the peaceful settlement of disputes in the region, and as an international body, it is a perfect tool for the harmonisation of conflicting national objectives.104 Most importantly, the LCBC is in charge of managing all surface and groundwater resources in the LCB, including aquifers. It is the role of the LCBC to ensure the most efficient use of the Basin’s waters. This requires regional (as opposed to national) development, coordination and implementation of measures that provide integrated management mechanisms. Such orchestration of both national and regional activities in the LCB water governance system would ideally also be prepared to mitigate the causes and adapt to the effects of climate change at regional, national and local levels. More recent approaches to water governance and resource management in the LCB region have led to the adoption of the Water Charter for the LCB105 in 2012 with the aim of facilitating the implementation of the Lake Chad Vision 2025106 and the Strategic Action Programme for the LCB of 2008.107 ____________________ 104 Lorenzmeier (2013). 105 See (accessed 12-7-2018). 106 See (accessed 5-6-2018). 107 Cf. (accessed 5-6- 2018). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 123 7.3 The Water Charter for the Lake Chad Basin The creation of the Water Charter for the LCB108 is a response to the fact that precipitation and hydraulic flow conditions in the tributaries of Lake Chad are extremely variable and are likely to be affected by climate change; and that an uncontrolled increase in abstractions could cause significant effects and critically reduce the volume and surface area of the lake as groundwater resources are inadequately managed, and the basin’s ecosystems are very sensitive to variations in inflows and pollutant discharge. The risk of the lake drying up, the unavailability of sufficient good quality water resources, the disappearance of animal and plant species, widespread poverty, and risks of inter-community and interstate conflict within the Basin prompt the need for more effective measures to strengthen the legal and institutional framework for the sustainable management of the Basin’s environment. The parties to the Water Charter (Cameroon, CAR, Libya, Niger, Nigeria and Chad) commit themselves toward the following international instruments: • the United Nations Organisation of 26 June 1945; • the Constitutive Act of the African Union of 11 July 2000; • the Revised Treaty of the Community of West African States (ECOWAS) signed on 24 July 1993; • the Treaty Establishing the Economic Community of Central African States (ECCAS) signed on 18 October 1983; • the Treaty Establishing the Arab Maghreb Union (AMU) signed on 17 February 1989; and • the Lake Chad Basin Commission Convention and Statute signed on 22 May 1964 in Fort Lamy. Moreover, the parties recognise the importance of the provisions made by non-binding international instruments and fundamental principles on international watercourses and lakes, in particular: • the 1966 Helsinki Rules on the Use of International Watercourses, adopted in Helsinki in 1966; • the United Nations Resolution 34/186 of 1979 establishing principles for conduct to ensure the conservation and harmonious use of shared natural resources, adopted in New York in 1979; • the Declaration of the International Conference of Water and the Environment on sustainable development, adopted in Dublin in 1992; • the 1992 Declaration of the United Nations Conference on the Environment and Development and the Action Plan of the United Nations Conference on the Environment and Development, in particular, Chapter 18 on the protection ____________________ 108 Document available at (accessed 5-6-2018). Oliver C. Ruppel & Mark B. Funteh 124 of freshwater resources and their quality, adopted in Rio de Janeiro in 1992; • the Declaration of the International Conference of Water and Sustainable Development held in Paris in 1998; • the Millennium Declaration including the Millennium Development Goals adopted in New York in 2000; and the • the Ministerial Declaration of the International Conference on Fresh Water held in Bonn in December 2001. The Water Charter also refers to binding international agreements to codified law on international watercourses and waterbodies and its gradual development, inter alia: • the African Convention on the Conservation of Nature and Natural Resources dated 16 September 1968, amended on 11 July 2003 in Maputo; • the Convention on Wetlands of International Importance especially as Waterfowl Habitat, dated 2 February 1971; • the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, adopted on 17 March 1992; and • the Convention on the Law of Non-Navigational Uses of International Watercourses, adopted on 21 May 1997. The major aims of the Water Charter are to regulate the following issues: • quantitative management of surface and groundwater resources; • protection and preservation of water quality in the basin’s aquatic ecosystems; • emergency planning and preparedness to ensure the protection of people, the environment and water resources; • ban on significant harm to others; • water-borne disease; • navigation; • prior notification of planned measures; • enforcement of environment, water, fishing and navigation rights and regulations; • collection and exchange of data and information; • common facilities, facilities of common interest and infrastructure asset management and ownership; • rights of the basin populations; • promotional actions; • implementation of the charter; • settlement of disputes; • partnership; and • financing. According of Article 1 of the Water Charter, Lake Chad and the watercourses, aquifers and aquatic ecosystems contained in its hydrographic basin, are declared international waters. They are common heritage belonging to the member states of the LCBC. It Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 125 further provides that member states shall cooperate to achieve the sustainable management and development of Lake Chad in compliance with the rules and principles governing international lakes and watercourses. In Article 3, the Water Charter stipulates that it constitutes a binding framework the global purpose of which is the sustainable development of the LCB through integrated, equitable, coordinated management of the Basin’s shared water resources and environment. It also promotes good governance, sub-regional cooperation and solidarity based on the common interests of member states as key ideals. The Water Charter falls under the framework set by the Fort Lamy Convention for the creation of the LCBC, and the Statute of the Commission signed on 22 May 1964 at Fort Lamy, which it refines and supplements.109 This is important to note when it comes to the conflict of laws, as the Fort Lamy Convention can be regarded as lex generalis and the Water Charter is lex specialis to the Convention. The Water Charter urges member states to use the LCB’s surface water and aquifers in their respective national jurisdictions equitably and reasonably to obtain optimal, sustainable benefits that are compatible with the legitimate interests of all the countries in the Basin and with the protection of Lake Chad and the watercourses, aquifers and aquatic ecosystems contained in its hydrographic basin.110 In the event of natural disasters or disasters caused by human activities affecting Lake Chad or these watercourses, aquifers and aquatic ecosystems, member states are obliged to immediately notify all other Basin countries and the LCBC, thereby allowing them to proceed as necessary to prevent or reduce the effects of the emergency situation on their national territories.111 Interestingly, the Water Charter acknowledges that citizens of member states have a right to water and sanitation, which is a fundamental human right and is necessary for human dignity.112 Member states are obliged to take all normative, institutional and operational measures necessary to guarantee that this right is effectively implemented.113 Moreover, member states are required to make all necessary internal arrangements, in particular judicial, institutional, operational and financial arrangements, to ensure effective enforcement of the Water Charter.114 Where disputes arise from the application or interpretation of the present Water Charter, member states are urged to settle these in a peaceful manner and in accordance with the United Nations Charter, the Constitutive Act of the African Union and the Declaration on Principles of International Law concerning Friendly Relations and ____________________ 109 Article 6. 110 Article 10. 111 Article 37. 112 Article 72. 113 Ibid. 114 Article 83. Oliver C. Ruppel & Mark B. Funteh 126 Cooperation among States.115 Member states are required to seek solutions to their dispute employing direct negotiation,116 and only if they fail to come to an agreement after negotiation, bring the dispute to the Commission for attempted settlement by way of mediation.117 If the Commission is unable to settle the dispute, any party to the dispute may bring the matter before the competent regional and sub-regional authorities, which shall, in turn, seek to mediate the dispute.118 If all the aforementioned dispute resolution mechanisms fail, the disputing parties must bring the case for arbitration or judicial dispute resolution before the International Court of Justice.119 7.4 Other relevant international and regional instruments There are several other important international and regional instruments of key relevance to water governance in the LCB. These are briefly outlined below. On 25 September 2015, the United Nations General Assembly adopted Resolution 70/1 (Transforming Our World: The 2030 Agenda for Sustainable Development)120 containing 17 sustainable development goals (SDGs) and targets aimed at ending poverty, protecting the planet and ensuring prosperity for all. Each goal has specific targets to be achieved over the next 15 years. For the goals to be reached, everyone needs to do their part including governments, the private sector and civil society. The 2030 Agenda for Sustainable Development is guided by the purposes and principles of the Charter of the United Nations, including full respect for international law. It is also relevant in the context of the implementation of the LCB Water Charter, and the following goals are particularly relevant for the LCB: • Goal 1: End poverty in all its forms everywhere; • Goal 2: End hunger, achieve food security and improved nutrition and promote sustainable agriculture; • Goal 3: Ensure healthy lives and promote well-being for all at all ages; • Goal 6: Ensure availability and sustainable management of water and sanitation for all; • Goal 7: Ensure access to affordable, reliable, sustainable and modern energy for all; • Goal 8: Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all; ____________________ 115 Article 85. 116 Article 86. 117 Article 87. 118 Article 88. 119 Article 89. 120 UNGA Res 70/1 ‘Transforming our World: The 2030 Agenda for Sustainable Development’ (21 October 2015 UN Doc A/RES/70/1). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 127 • Goal 9: Build resilient infrastructure, promote inclusive and sustainable industrialisation and foster innovation; • Goal 10: Reduce inequality within and among countries; • Goal 11: Make cities and human settlements inclusive, safe, resilient and sustainable; • Goal 12: Ensure sustainable consumption and production patterns; • Goal 13: Take urgent action to combat climate change and its impacts; • Goal 15: Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss; • Goal 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels; and • Goal 17: Strengthen the means of implementation and revitalise the Global Partnership for Sustainable Development. People residing in and around the LCB also need to be protected in terms Article 22 of the African Charter on Human and Peoples’ Rights (1986), especially when it comes to the alleviation of poverty. Article 1 of the African Charter compels states to “adopt legislative or other measures to give effect” to the rights protected under the African Charter. Article 22 further stipulates that all people “have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind” and that states have a duty, individually or collectively, “to ensure the exercise of the right to development”. Finally, Article 24 of the African Charter prescribes that all people “shall have the right to a general satisfactory environment favourable to their development”. Similarly, the LCB Water Charter is also subject to various Regional Economic Communities’ (RECs) regulatory regimes, such as the Central African Economic and Monetary Community (CEMAC) and the Economic Community of Central African States (ECCAS). CEMAC is composed of six central African states, namely: Cameroon, Republic of the Congo, Gabon, Equatorial Guinea, CAR and Chad. Its main mission is to promote peace and the harmonious development of its member states by establishing an economic union and a monetary union. The CEMAC countries are founder members of the African Union (AU), successor to the Organization of African Unity (OAU). However, all the CEMAC countries also belong to the ECCAS. In addition to the CEMAC countries, ECCAS includes Burundi and the Democratic Republic of the Congo (members of the Economic Community of the Great Lakes Countries), as well as Angola and Sao Tomé and Principe. ECCAS is one of the eight Regional Economic Communities (RECs) designated by the African Union as pillars for the implementation of the African Economic Community. At the ECCAS level, the organisation of a Conference of Ministers responsible for the forests of Central Africa in 2000 provided a framework for harmonisation initiatives. This followed the Oliver C. Ruppel & Mark B. Funteh 128 Declaration of Yaoundé, in which the ECCAS heads of state proclaimed, among other things, their support for the preservation of biodiversity and the sustainable management of tropical forests. These commitments were institutionalised in the Treaty on the Conservation and Sustainable Management of Forest Ecosystems in Central Africa and to Establish the Central African Forests Commission (COMIFAC) (2005). COMIFAC is the body responsible for formulating, harmonising and monitoring forestry and environmental policies in Central Africa.121 Unfortunately, COMIFAC so far has not fulfilled the necessary regional legislative harmonisation imperatives. 8 Conclusion The reflection on selected developmental and legal aspects shows the interdependent complexity of climate change, human security, water governance and the humanitarian crisis in the LCB region. Millions of people depend on Lake Chad. However, the lake’s volume has decreased by 90% in area in the last 40 years due to increased drought, as well as human-related causes such as increased irrigation withdrawals. Existing regulatory regimes seem inadequate in preventing the above. Research has also highlighted the interconnections between the impacts of climate change on natural resources, dependent livelihoods and food insecurity on the one hand; and tension, conflict and mobility on the other.122 The ongoing crisis is affecting more than 17 million people across northeastern Nigeria, Cameroon’s far north, western Chad and south-eastern Niger. Caused by the ravages of violent conflict, extreme poverty, underdevelopment and climate change, more than 10.8 million people are in need of humanitarian assistance.123 To give more attention to the vulnerability aspect, attempts to link environmental issues to humanitarian security should influence the understanding of the interactions between water scarcity and socio-economic predicaments, which are exacerbated by climate change. Conflict and fragility are decreasing the resilience of communities making them more vulnerable to climate change which at the same time is further undermining livelihoods and exacerbating the competition around increasingly scarce natural resources. If not broken, this vicious circle threatens to perpetuate the current crisis and take the region further down the path of conflict and fragility.124 The scarcer resources become, the more power vests in those who control them. Moreover, where state or customary institutions are unable to equitably manage natural resources, competition for scarce resources is more likely to result in violence and situations of fragility.125 The nexus ____________________ 121 Article 5 of the abovementioned Treaty. 122 See with further references IOM (2018: 52). 123 CARE (2018). 124 Nagarajan et al. (2018: 25-26). 125 Nett & Rüttinger (2016: 19). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 129 between climate change, vulnerability and humanitarian crises can only be unpacked holistically. In response to this, foreign policymakers have attempted to identify entry points for intervention in the region and effective modes of engagement.126 The role of humanitarian aid and development cooperation play an increasing role in addressing the root causes of the LCB crisis.127 This justifies why the integration of climate adaptation, water governance and conflict management in conflict-prone settings is now incorporated within progressive discourses of international environment and development agendas.128 Drawing upon evidence in the region, the explanation for conflicts over scarce resources, land, water, and so on, lies in the vulnerable status of the people, and is reinforced by environmental change. Trying to understand the link between conflict and environmental change is not so much a matter of challenging issues intellectually as attempting to bring solutions to the issues. Therefore, science, politics and law need to be brought together to make a significant and timely difference to humanity and especially to those most severely affected.129 Climate change permeates the law in many ways creating intersections of law in its diverse fields. Climate change law, an emerging legal discipline, is both international and domestic in nature.130 Climate law (national, regional and international) should also form part of a social protection system for the LCB region, which has been facing a longstanding history of violent conflict and crisis. This is partly due to complex political instability and weak regulatory, economic and social policies. Regarding the legal dispensation, it will still have to be seen how the implementation and domestication of the LCB Water Charter will help to improve the situation on the ground. It is further hoped that the substantive financial commitments made by the international community can propel its implementation, also in light of other African Union and regional regulatory obligations. One key challenge according to the Lake Chad Development and Climate Resilience Action Plan (2015) is to improve water and natural resources governance of the LCB, especially when it comes to more effective decision making, control and participation in public policy.131 This has also been acknowledged by Resolution 2349/2017 of the United Nations Security Council, which recognises the complex challenges faced by the LCB region and welcomes the development of programmes by the respective governments to help build and sustain peace by addressing the root causes of ____________________ 126 Nagarajan et al. (2018: 27). 127 Ibid. 128 Ludwig et al. (2011). 129 Ruppel (2012 and 2013); Ruppel & Ruppel-Schlichting (2012); and Ruppel & Wulff (2016). 130 Ruppel (2013: 37). 131 See (accessed 28-5-2018). Oliver C. Ruppel & Mark B. Funteh 130 the crisis. In the same resolution, the Security Council calls upon respective governments to strengthen their coordination and prioritisation within these programmes to enable more effective implementation.132 Whether climate change is gradually moving from mere politicisation towards a state of securitisation remains to be seen.133 Once an issue is successfully securitised it moves out of the sphere of normal politics to be dealt with as an emergency issue without the normal democratic processes being brought to bear, and the securitising actor can, through this process, infuse the concept of ‘security’ with any meaning desired.134 Although such development would have some merits, in the context of the post-2015 Development Agenda, human security has already become a critical reference point.135 The Declaration on the SDGs emphasises a world free of poverty, hunger, disease, want, fear and violence; with equitable and universal access to quality education, health care, social protection, safe drinking water and sanitation; where food is sufficient, safe, affordable and nutritious; where habitats are safe, resilient and sustainable; and where there is universal access to affordable, reliable and sustainable energy.136 Although the term human security itself is not mentioned in the declaration, it stresses that sustainable development cannot be realised without peace and security and that peace and security will be at risk without sustainable development.137 This is particularly true in the LCB, where water poverty affects large sectors of the population with no access to safe drinking water or which experience droughts impeding agricultural production.138 There are also growing suggestions that the 2015 Paris Agreement on climate change and the SDGs should provide vital entry points to spearhead opportunities for cross-thematic integration of vital issues confronting less developed nations. At a minimum, the template provided by these international processes can facilitate ways in which institutional, financial, technical and political dimensions of policy integration can be understood, reconciled and/or negotiated.139 After all, the Paris Agreement is an agreement under international law. Its central objective is the determination of binding quality goals for the protection of the climate for nearly the entire international community. For the first time in human history, the international community has agreed to a quantified climate protection goal. If this goal is to be reached it will be through Nationally Determined Contributions (NDCs). All countries in the LCB ____________________ 132 Resolution 2349 (2017) S/RES/2349 (2017), adopted by the Security Council at its 7911th meeting on 31 March 2017. 133 Ruppel (2013: 23). 134 Taureck (2006: 55). 135 Wählisch (2016: 5). 136 UNGA Res 70/1 ‘Transforming our World: The 2030 Agenda for Sustainable Development’ (21 October 2015 UN Doc A/RES/70/1). 137 Wählisch (2016: 6). 138 See also wording on water scarcity in Africa in Pope Francis’ Laudato Si (2015: 28). 139 Okpara et al. (2018: 40). Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 131 region submitted their NDCs prior to COP21 in Paris. Although the failure to reach the announced NDCs is not sanctionable according to the Paris Agreement, the LCB countries are expected to make national provisions to guarantee enforcement of their commitments.140 Thus, the next step will be to begin implementing measures to achieve the NDCs. 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Climate change, human security and the humanitarian crisis in the Lake Chad Basin region 135 Wolf, AT, SB Yoffe & M Giordano (2003) “International waters: identifying basins at risk” 5(1) Water Policy 29-60. 137 Chapter 6: Forests, forest rights, benefit-sharing and climate change implications under Cameroonian law Christopher F. Tamasang 1 Introduction In addition to the vital functions of forests, international climate change negotiations have given an additional dimension to the value of forests regarding their climate change mitigation (CCM) relevance. Cameroon’s forestry legal framework classifies forests into various types, and a corresponding bundle of rights is attached to each forest type in addition to a mechanism for the allocation and sharing of benefits. The implementation of this legal framework has CCM implications. This chapter identifies the various forest types, the bundle of rights attached thereto and the formula for allocating and sharing benefits under the forestry laws, analysing their implications for CCM. The chapter argues that although Cameroon’s forestry legislation puts in place a bundle of rights attached to each forest type and a mechanism for benefit-sharing (BS), the forest rights are not adequate for some relevant stakeholders involved in forest management, and the BS mechanism is plagued with inherent flaws. By extension, it does not enhance the role of forests in contributing to CCM in Cameroon. The principal objective of this chapter is to demonstrate that the role of forests in contributing to CCM in Cameroon, which can only be enhanced by the establishment of adequate forest rights for relevant stakeholders involved in forests management, and the effective implementation of a fair and equitable BS paradigm aimed at incentivising sustainable forest management (SFM) and forest conservation. The chapter analyses Cameroon’s legislation, focusing specifically on how it provides for the protection of the various types of forests, forest rights, mechanisms for BS, assessing their CCM implications in Cameroon. The chapter concludes that the role of the country’s forests in contributing to CCM is greatly hindered due to aninadequate and inappropriate recognition of forest rights reserved for some relevant stakeholders involved in forest management and a corresponding inadequate and inappropriate BS formula, underscoring the need for urgent legal reforms. The chapter ends with some recommendations. Christopher F. Tamasang 138 1.1 Contextualising the study Global climatic change primarily driven by the quest for economic development across countries is accelerating. Humankind has altered the natural global environment to the extent that the earth is becoming warmer, causing climate change that has suddenly vaulted to the top of global agenda, traceable to global initiatives intended to address the phenomenon, its causes and adverse effects on common concerns of humankind.1 One such leading global initiative is the United Nations Framework Convention on Climate Change (UNFCCC) signed in 1992 as one of the outcomes of the Rio Conference on Environment and Development according to which, climate change is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.2 The UNFCCC identifies two policy responses to address climate change; to wit: climate change mitigation (CCM) by reducing greenhouse gases (GHGs) in the atmosphere and enhancing carbon sinks, and adaptation to the impacts of climate change.3 CCM is thus any intervention strategy or action taken to reduce GHG concentrations in the atmosphere by avoiding further emissions from sources or by enhancing sinks of GHGs (principally atmospheric carbon dioxide (CO2)). The UN- FCCC has as an ultimate objective, the stabilisation of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system and such a level should be achieved within a period sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.4 To minimise potentially severe climate change impacts, the UNFCCC negotiations have set a goal of limiting global warming to 2°C above pre-industrial levels.5 Likewise, the 2015 Paris Agreement has as a primary goal, to keep a global temperature rise this century below 2°C and to drive efforts to limit temperature increase even further to 1.5°C above pre-industrial levels.6 Just like the UNFCCC, the Paris Agreement identifies forests as one of the significant sinks and reservoirs of GHGs and directs parties to take action to implement activities relating to reducing emissions from deforestation and forest degradation. It emphasises the role of conservation, sustainable management of forests and enhancement of forest carbon stocks under its Article 5. Since Cameroon is not an industrialised country, its various forest types will play a critical role in helping the government in achieving its 32% emissions reduction ____________________ 1 Tamasang (2009: 172). 2 Article 1(2) of the UNFCCC. 3 Article 2 of the UNFCCC. 4 Article 2 of the UNFCCC. 5 Article 17 of Kyoto Protocol to the UNFCCC. 6 See Article 17 of the Paris Climate Change Agreement adopted on 15 December 2015, signed in New York on 22 April 2016 and entered into force on 4 November 2016. Forest rights, benefit-sharing and climate change implications under Cameroonian law 139 pledged under its Nationally Determined Contributions (NDCs). Originally submitted as Intended Nationally Determined Contributions (INDCs), these become binding NDCs when a country ratifies the Paris Agreement.7 For the country’s forest to ait in achieving the above emission reduction, the various types of forests must be managed sustainably. This would, however, depend on the extent to which the various forests types classified, rights thereto attached and the benefit-sharing entitlements are implemented. Forests play some vital economic, socio-cultural, ecological and environmental functions8 and when sustainably managed, can play a central role in mitigating climate change. The intrinsic relationship between climate change and forests has brought renewed attention to forests and land use. The international climate change negotiations have provided an additional dimension to the value of forests in terms of their carbon sequestration9 and carbon-storing potential, which have CCM relevance. This crucial role of forests in contributing to CCM has been broadly acknowledged and has become the central issue in the global forest-related dialogue and policy processes and their role in CCM is receiving increasing attention.10 Forests play an important role in stabilising GHG concentrations in the atmosphere,11 and as the most significant terrestrial carbon reservoir covering nearly one-third of the earth’s land surface, they account for almost half of the earth’s terrestrial carbon pool.12 In their growth process, forests transform the gas to the solid carbon that makes up their bark, wood, leaves and roots. Globally, forests potentially provide abatement equivalent to about 25% of current ____________________ 7 Under the Paris Agreement, the INDC become the first NDCs when a country ratifies the Agreement, unless they decide to submit a new NDC at the same time. Thus, the NDC became the first greenhouse gas targets under the UNFCCC that applied equally to both developed and developing countries upon ratification of the Agreement. On 28 September 2015, Cameroon submitted its INDCs to the Secretariat of the UNFCCC. In its INDCs, Cameroon pledged a 32% reduction in emissions by 2035 compared to business-as-usual levels, taking 2010 as the reference year and conditional upon international support in the form of financing, capacity building and transfer of technology. 8 Forests have important functions including: in economic development; provide revenue for the state, basic needs for rural population; ecologically, socially and culturally; protection of the soil and watersheds or catchments, enhance agricultural activities especially agroforestry, provide opportunities for public education, research and recreation, a source of medicinal plants, provide habitats/home to the majority of terrestrial species, protect biodiversity. For more on such functions, see Tamasang (2007); IUCN (2017); COICA (2013); Desclée et al. (2013); FAO (2005); and Rautner et al. (2013). 9 In this context, carbon sequestration refers to the uptake and storage of carbon by forests. It is the process of removing carbon from the atmosphere and depositing it in a reservoir. Carbon sequestration is an ecosystem service that provides a vital contribution to CCM and this service can be enhanced by maintaining ecosystem resilience in space and time. 10 The Bali Action Plan (2008) under the auspices of the UNFCCC, sought to mobilise positive incentives for countries to reduce their forest-based GHG emissions. See Weaver (2011); Kadar (2011: 185); and UNEP (2014: vi). 11 Article 2 of the Kyoto Protocol to the UNFCCC. 12 CPF Strategic framework for forests and climate change (2008: iii). Christopher F. Tamasang 140 CO2 emissions from fossil fuels by 2030, through a combination of national strategies.13 The total volume of carbon locked up in forests is currently greater than that held in the atmosphere according to the 2006 Stern Report.14 Forests have a tremendous capacity to cause as well as avoid and remove carbon emissions. Preserving forests means that carbon is stored in them rather than emitted into the atmosphere, where it accelerates climate change.15 When forests are cleared or degraded, their stored carbon is released into the atmosphere as CO2. Forests thus play an important role in the global carbon cycle as both a sink (absorbing CO2) and a source (emitting CO2). What happens to forests, therefore, has crucial implications in the climate change saga. Although the largest share of GHG emissions is as a result of the combustion of fossil fuels; in 2005 about 18% of annual global GHG emissions were attributable to deforestation and other land use change.16 In 2011, the FAO stated that an estimated 17.4% of GHG emissions are derived from the forest sector, in large part due to deforestation and that forests have considerable potential for carbon sequestration.17 Other estimates indicate that tropical deforestation and forest degradation account for between 12 to 25% of global anthropogenic emissions resulting from land use change, depending on the year and the measurement methodology used.18 Accordingly, forest-based CCM efforts must be balanced with other forest objectives. Forests can and must be part of the solution to keeping the climate within the globally accepted two-degree temperature increase limit. Forest management usually involves the reconciliation of multiple and sometimes conflicting rights and the allocation and sharing of benefits derived from the same. That said, there is a nexus between forests, forest rights, BS and CCM. Climate Smart Forestry or Climate Friendly Forestry (forest management that does not cause climate change, but contributes to CCM) strongly depends on the nature of forest rights and BS scheme, which can act as an incentive or disincentive to sustainable forest management (SFM) and forest conservation with implications for CCM. In fact, the legal guarantee of adequate forest rights for all relevant stakeholders in forest management and a fair and equitable BS paradigm are incentives for forest protection that can greatly enhance their CCM role. Thus, strengthening forest rights and the BS scheme can serve as an incentive for forestry actions that contribute to CCM. However, ensuring adequate forest rights and a fair and equitable BS mechanism seem to be an undervalued and often-overlooked strategy for enhancing forests’ CCM role in Cameroon. ____________________ 13 Reinhard (2011: 4). 14 Ibid. 15 OECD (2015). 16 Secretariat of the Convention on Biological Diversity (2009: 52); Boyd (2014: 470); Pittock (2009: 1570); and Costenbader (2011: 3). 17 FAO (2011). 18 See Van Asselt (2012: 1214); Norman & Smita (2014: 3); Alix-Garcia & Wolff (2014: 361- 363); Brack (2012: 4); Emily & Hisham (2014: 13); and Corbera & Schroeder (2010: 1). Forest rights, benefit-sharing and climate change implications under Cameroonian law 141 The legal guarantee of forest rights for relevant stakeholders in forest management especially communities tends to lower deforestation and forest carbon emissions as stakeholders with secured forest rights will be motivated to maintain or enhance their forests’ carbon stocks. The 1994 Cameroonian Forestry Law19 and its enabling instruments (implementation Decree20, the joint MINADT/MINFI/MINFOF Order on the annual forestry fees21) constitute the main legal instruments implementing the counties’ forestry policy. The law and related enabling instruments lay down the forestry, wildlife and fisheries regulations within a framework of integrated management, sustainable conservation and usage.22 The implementation of the aforementioned is thus also relevant to forest rights, BS and CCM in Cameroon. 1.2 Theoretical and conceptual frameworks In recent years, the management of natural resources such as forests, the rights attached thereto and corresponding benefit entitlements have become a significant concern of legal theorists. Going by the public trust theory of natural resource management, it provides that the state has the duty to hold natural or environmental resources in trust for the benefit of the public and not to make them subject to private ownership.23 In addition, the theory of decentralisation and participation in environmental and natural resource governance requires the state to achieve sustainability objectives through collective action by ensuring broader and inclusive stakeholder participation. In the same vein, any meaningful discussion on rights in any field of study and on forest rights and benefit entitlements as articulated in this chapter cannot proceed without invoking Hohfeld’s theoretical considerations and analysis of ‘legal rights’24 which has often been extolled as a paradigm of conceptual clarity of legal rights. Hohfeld’s theory of legal rights, in a nutshell, seeks to clarify juridical relationships between the relevant parties. The concept of forest rights is used in this chapter to depict the property rights tied to the various types of forests and their resources. In other words, forest rights are utilised here to represent ownership, access, use and management rights associated with the different types of forests and their resources. In addition, the concept of BS is ____________________ 19 Law No. 94/01 of 20 January 1994 to lay down forestry, wildlife and fisheries regulations. 20 Decree No. 95/531/PM of 23 August 1995 setting the terms and conditions of application of the forest regime. 21 Joint Order No. 122/MINADT/MINFI/MINFOF of 29 April 1998 issued to lay down conditions for the use of revenue derived from forestry fees. 22 Section 1 of the 1994 Forestry Law. 23 For more on this theory, cf. Tamasang (2007: 4). 24 Hohfeld (1919). Christopher F. Tamasang 142 employed in this chapter to connote the allocation and sharing of benefits derived from forest management. Studies conducted on the classification of forests, forest rights and BS in Cameroon are instructive but not focused on the assessment of their implication for CCM. The research question guiding this chapter is whether the law on the classification of forests, the rights attached thereto and the BS paradigm favour Sustainable Forest Management (SFM) and forest conservation enhancing the role of forests in contributing to CCM in Cameroon? Thus, the thrust of the chapter is to demonstrate the role of forests in contributing to CCM in Cameroon can only be enhanced with the establishment of a system of adequate forest rights for all relevant stakeholders in forest management and a fair and equitable benefit allocation and sharing scheme, whose effective implementation can incentivise SFM and forest conservation. This is more so because the UNFCCC’s REDD+25 mechanism designed to mitigate climate change has added financial value to carbon stored in forests which is still considered to be a relatively new forest commodity. 1.3 Methodology This chapter makes a content analysis of the forestry legal framework, including recent policy and legal developments on climate change and forest governance such as REDD+, the UNFCCC, its Kyoto Protocol, the Paris Agreement, and the NDCs. The author also makes use of desk research consisting of the reading and reviewing of records, with the aim of identifying policy and legislative changes that can be recommended with respect to forests, forest rights, BS and how they can enhance the role of forests in contributing to CCM in Cameroon. 2 Forest types, forest rights and their implications for climate change mitigation in Cameroon Forest rights can be described as a bundle of rights that may include various combinations of ownership, access and use, management and alienation rights. In some cases, a single user may command all of the aforementioned rights, while in other cases, different users may claim some subset of these rights associated with the same area of forest.26 For instance, it is possible for the state to claim ownership of forest lands ____________________ 25 Reducing Emissions from Deforestation and Degradation, conservation of forest carbon stocks, enhancement of forest carbon stocks and sustainable forest management in developing countries. 26 UNEP (2015: 45); Springer & Larsen (2012: 4); and Climate Focus (2015). Forest rights, benefit-sharing and climate change implications under Cameroonian law 143 giving a permit to a private entity to carry out other activities, while at the same time a community may have the right to live in and use the same forest. In Cameroon, these rights are poorly defined, weakly enforced, overlapping and - at times - generate tenure conflicts over these areas.27 Of particular relevance to CCM, are ownership rights which are often exclusive; use or usufruct rights, which are more limited than ownership rights, and which can belong to other actors than the owner. They comprise individual and collective rights, tangible rights pertaining to physical land and resources such as trees and intangible rights, which cannot be physically acquired. That for instance applies to carbon credits derived from carbon stored in trees and biomass, which today constitute a new but controversial forest commodity. This is especially true when it comes to ownership and benefit due to a lack of existing legislation in Cameroon. 2.1 Types of forests and related rights under Cameroonian law The 1994 Forestry Law classifies national forest into permanent forest estates (PFE) and non-permanent forest estates (NPFE).28 PFE comprise lands that are used solely for forestry and/or as wildlife habitat29 and consists of state and council forests30, covering at least 30% of the total area of the national territory, reflecting the country’s ecological diversity.31 NPFE or unclassified forests comprise forest lands that may be used for other purposes than forestry32 and consist of communal forests, community forests and forests belonging to private individuals.33 In classifying forests, the 1994 Forestry legislator established different rights attached to the different types of forests. The nature and exercise of such rights may also have implications for CCM in Cameroon. 2.1.1 State forests, rights attached thereto and climate change mitigation implications Under Section 24(1) of the 1994 Forestry Law, state forests include (a) areas protected for wildlife, such as national parks, game reserves, hunting areas, game ranches belonging to the state, wildlife sanctuaries, buffer zones and zoological gardens belonging to the state. Section 24(1)(b) provides for forest reserves consisting of production ____________________ 27 See Korwin (2016); Blomley (2013: 11); and Mboh et al. (2012: 25). 28 Section 20(1). 29 Section 20(2). 30 Section 21(2)(a) and (b). 31 Section 22 (1). 32 Section 20(3). 33 See Section 34(a), (b) and (c) respectively. Christopher F. Tamasang 144 forests, protection forests, integral ecological reserves, recreation forests, teaching and research forests, plant life sanctuaries, botanical gardens and forest plantations. Under Section 26(1), the instrument classifying a state forest is expected to take into account the social environment of the local population, who are entitled to maintain their logging rights in such forests. However, under Section 26(2), such rights may be limited if they are contrary to the purpose of the forest. In such a case, the local population is entitled to compensation. Article 26(1) of the Decree implementing the 1994 Forestry Law further provides that the population living around state forests is entitled to maintain their usufruct rights consisting in carrying out within these forests their traditional activities, such as collecting secondary forest products, notably raffia, palms, bamboo, cane or foodstuff and firewood. Article 26(2) of the Decree further provides that in order to meet the domestic needs for poles and firewood, the neighbouring populations concerned can cut down a number of trees commensurate to such needs. They are, however, strictly forbidden to sell or exchange wood from such trees. The respect and effective implementation of these rights of the local population could constitute an incentive for improved SFM and conservation of state forests, both relevant for CCM. This can motivate local populations to adopt more sustainable exploitation methods that do not contribute to deforestation and forest degradation, thereby maintaining the carbon stocks of such forests. However, the forest rights recognised by the aforementioned legal provisions are inadequate for the local population since their implementation has not been effective. This inadequacy is captured in the discussion that follows. 2.1.2 Council forests, rights derived therefrom and climate change mitigation implications Under Section 30(1) of the 1994 Forestry Law, a council forest is a forest that has been classified on behalf of a local council or has been planted by the local council. Section 32(3) provides that forest products stemming from the exploitation of council forests are the sole property of the council concerned. Under Section 67(2) councils, for the exploitation of their forests, receive the selling price of forest products and the annual royalty for the forest area. Section 30(2) determines the management objectives of council forests, as well as logging rights by the respective local population. These entitlements can motivate more SFM of council forests, contributing to CCM. Section 32(3) can also enfold positive implications for CCM then belonging to the council in question. In the same vein, Section 67(2), which gives the council the right to the entitlement of the selling price of forest products and the annual royalty is another incentive for SFM with potential CCM effects. Notwithstanding these promising legal provisions on council forests and rights attached thereto, the law remains inadequate with respect to the rights of the local population as critically examined below. Forest rights, benefit-sharing and climate change implications under Cameroonian law 145 2.1.3 Community forest, rights related thereto and climate change mitigation implications Cameroon’s forestry legislation encourages the participation of local populations in the management of forests and their resources in order to contribute in improving their livelihoods, notably through community forests (CFs). CFs are defined by the Decree implementing the 1994 Forestry Law as a forest of the non-permanent forest estate, object of a management agreement between a village community and the service in charge of forestry. The management of such forest is the responsibility of the village community concerned, with the technical assistance of the service in charge of forestry.34 Under Cameroonian law, CFs comprise forest lands that may be used for other purposes than forestry35 and under Section 37(1) of the 1994 Forestry Law. Village communities have the right to participate in the management of forest resources. Forests which may be subject to a CF management agreement are those situated in the outskirts of, or close to one or more communities in which the inhabitants carry out their activities.36 The populations concerned are those that are authorised to carry out their activities therein not only as custodians of the forest, and within the framework of usufruct rights, but also as entities recognised under existing legislation.37 Forest products of all kinds resulting from the management of CFs belong solely to the village communities concerned.38 Like in the above forest types, CF and the rights flowing from its management under Cameroonian law are inadequate in enhancing such forests’ CCM role. This inadequacy is given a critical assessment below. 2.1.4 Communal forests, rights emanating therefrom and climate change mitigation implications According to Section 34(a) of the 1994 Forestry Law, communal forests comprise forest lands that may be used for other purposes than forestry. Under Section 35, communal forests include orchards, agricultural plantations, fallow land, wooded land adjoining an agricultural farm, pastoral and agro-forestry facilities. Citizens living around communal forests are granted logging rights. However, for purposes of conservation or protection, the minister in charge of forests may restrict such rights, particularly in ____________________ 34 Article 3(11) of the Decree. 35 Section 34(b) of the 1994 Forestry Law. 36 Article 27(2) of the Decree. 37 For more on this, cf. Tamasang (2007: 159). 38 Section 37(5) of the 1994 Forestry Law. See also the proviso to Section 67 of the 1994 Forestry Law which provides that village communities and individuals are only entitled to payment of the selling price of the products extracted from their forests. Christopher F. Tamasang 146 relation to grazing, pasturing, felling, logging and mutilation of protected species.39 Notwithstanding the aforementioned, for the development of neighbouring village communities of certain communal forests under exploitation, part of the proceeds from the sale of forest products are reserved for these communities.40 The effective implementation of the rights attached to communal forests can produce positive CCM outcomes. For instance, their right to a share the proceeds from the sale of forest products can incentivise them to avoid unsustainable activities that lead to forest destruction which in turn contributes to climate change. 2.1.5 Private forests, rights thereto attached and climate change mitigation implications According to Section 34(c) of the 1994 Forestry Law, private forest comprises forest lands that may be used for other purposes than forestry. Under Section 39(1) individual natural persons or corporate bodies may plant forests on land they acquire in accordance with the laws and regulations in force referred to as private forests. However, the ownership over natural resources in private forests is limited by Section 39(4) according to which forest products under Section 9(2) (which classifies various products or resources as special41) belong to the state. The state’s monopoly over such special products may stifle incentives to support SFM and forest conservation efforts with negative CCM outcomes. Within the framework of REDD+ implementation, such special products may be extended to include carbon stored in trees and under this legal construct, most carbon credits realised from REDD+ within private forests belongs to the state. This bears the significant risk of private forest owners being exempted from adequate financial rewards, thus de-incentivising SFM and conservation efforts as well as hindering positive CCM results. This insufficiency of the law will be elaborated further in the sub-section below. 2.2 Discussion on forest types, rights thereto attached and climate change mitigation implications under Cameroonian law Cameroonian forestry legislation provides different stakeholders in forest management with a bundle of rights attached to the various forest types. The adequate implementation of such rights may be favourable or disfavourable to CCM. The law makes it ____________________ 39 Section 36(1) of the 1994 Forestry Law. 40 Section 68(2) of the 1994 Forestry Law. 41 Section 9(2) of the 1994 Forestry Law classifies various products as special and belonging to the state: namely, ebony, ivory, wild animal horns, certain plants and medicinal species or those which are of particular interest. Forest rights, benefit-sharing and climate change implications under Cameroonian law 147 obligatory to consider these rights especially in light of the social interests of local populations. In this respect, the right to benefit belongs to the various forest owners, managers and users, with an additional use right (rights to harvest and use forest products) accorded to the local population under basically all forest types in Cameroon. In the same spirit, the UN-REDD Programme standards under Criterion 7 requires national REDD+ programmes to respect and promote the recognition and exercise of the rights of indigenous peoples (IPs), local communities and other vulnerable and marginalised groups to land, territories and resources, including carbon.42 Despite the promising legal provisions guaranteeing the enjoyment of forest rights by relevant stakeholders in forest management under Cameroonian law, especially the rights of local populations are considered inadequate as their implementation has not been effective. This reality is stifling incentives to support SFM, forest conservation efforts and CCM. Although Section 8(1) of the 1994 Forestry Law recognises the rights of the local population to harvest all forest products freely for their personal use, except the protected species, it precludes any sale of such products. In the same manner, Article 26(2) of the Decree implementing the 1994 Forestry Law strictly forbid neighbouring populations from selling or exchanging wood from trees harvested in order to meet the domestic needs for poles and firewood. Also, under Section 26(2) of the 1994 Forestry Law, logging rights of the local population guaranteed under Section 26(1) may be limited if they are contrary to the purpose of the forest. Such legal restrictions are harsh on communities living in close proximity to such forest resources as their subsistence entirely depends on them. Furthermore, forests are subject to multiple and conflicting usages. Stakeholders in forest management have different and often opposing rights and mandates over forest areas. Often numerous plans exist in the same forests targeting different priorities. Such priorities deal for instance with timber harvesting, biodiversity conservation, the collection of non-timber forest products, agriculture etc. Conflicting natural resource policies do not create a sound forestry policy and legislative base to promote CCM. The fact that Cameroon does not have a comprehensive land use plan leads to problems of overlapping usage titles. Conflicts have been noted between and among conservation priorities, mining and logging concessions and the livelihoods of local populations.43 These conflicts also carry the potential for large-scale forest destruction lacking a favourable legal environment for CCM. Moreover, a critical assessment of relevant laws reveals that the bundle of rights available for local communities tend to be more limited to use and management rights (and often) for a limited period of time (e.g. 25 years for CF44) despite the long-term ____________________ 42 See UN-REDD Programme (2011: criterion 7). 43 See Megevand et al. (2013: 127). 44 See Articles 37, 38 & 39 of the 1994 Forestry Law. Christopher F. Tamasang 148 investment needed in many forest areas for sustainable management. The forestry law also limits forest tenure and management rights of local communities by for instance: • providing maximum limits for CF areas (5,000 hectares); • non-recognition of existing customary forest tenure claims; and • restricting CF to selected forest areas on the outskirt. The forestry law further contains legal clauses that allow the state to repossess forests if management is not deemed acceptable, leaving communities vulnerable. The CF model is seen as a weak response to customary claims, providing only temporary and easily revoked use and management rights to small and degraded forest areas.45 This creates insecurity which is a potential driver for unsustainable activities which do not favour CCM. Moreover, the acquisition and management of CF are slow due to stringent legal requirements, cumbersome and costly procedures.46 Some CFs in Cameroon have also resulted in negative experiences such as confiscation by elites in complicity with business interests with the low involvement of communities, resulting in mismanagement and embezzlement of revenues.47 In fact, CF is perceived negatively because of the failure to deliver broad-based positive community benefits compounded by corruption and administrative inconveniences that decrease the motivation of communities to acquire and manage CF. In addition, forest tenure rights take a weaker form with implications for effective forest stewardship as vulnerable forest-dependent people are granted limited usufruct rights while economically valuable resources are claimed by the state and its business allies. In fact, customary ownership of forests and its valuable resources are at times “hijacked” from local populations, making them tenants of the state and subject to state regulation. Forest-dependent people consider forest resource management under state control as unfair and merely beneficial to industrial forestry companies.48 Cameroon’s land and forest tenure laws create a degree of uncertainty regarding tenure rights. In particular, customary tenure is generally not recognised under the Land Tenure Ordinance as all land without a registered land title is treated as state land49 implying that customary landholdings are also treated as state-owned land ____________________ 45 Carodenuto et al. (2014: 121). 46 The 1994 Forestry Law allows local communities to apply for and obtain CF under stringent conditions such as the need to create a legal management entity which is not necessary, developing management plan, annual report writing, and recording inventories; which are cumbersome and hard for local communities to comply. 47 Fobissie et al. (2012: 15). 48 Chia et al. (2013: 499). See also Awung & Marchant (2016: 20). 49 Cameroon land tenure is governed by Ordinance No. 74/1 of 6 July 1974 to establish rules governing land tenure, the 1995 Indicative Land Use Framework, and other pieces of legislation including the local cultural and traditional land tenure systems and according to the 1974 Land Ordinance, all uninhabited forestland without land title is owned by the state which abolishes ancestral rights that were recognised in the pre-independence period, making registration the only way to claim ownership and places all unregistered lands under state control. Land Forest rights, benefit-sharing and climate change implications under Cameroonian law 149 including their forests. Most forests in Cameroon are classified as national and stateowned despite century-old claims by forest-dependent communities and their contributions to SFM and limited contributions of state-controlled forests to local livelihoods and development. Indeed, there is a general conception that IPs’ forest tenure rights were established even before the state came into existence. It is thus critical that forestdependent communities be given more forest ownership and management rights. Otherwise, they may resist such forest management projects as for example in the case of the local population against the Kilum-Ijum Mountain Biodiversity Conservation project.50 If the state continues with the exclusionary policy and if the rights of vulnerable communities are not strengthened, they have little incentive to protect forests. In fact, it has been suggested that effective decentralisation of forest management rights and responsibilities, especially with the involvement of local communities, can provide for more effective management of forest resources compared to state-managed forests.51 Without secure tenure, local forest users have few incentives and lack the legal mandate to invest in protecting forests.52 The importance of strengthening forest tenure rights, especially for IPs and local communities is well recognised under the REDD+ initiative. At the 16th Conference of Parties to the UNFCCC in Cancun in 2010, social and environmental safeguards were developed to avoid the negative impacts of REDD+ actions53 including “respect for the knowledge and rights of indigenous peoples and members of local communities”,54 and “the full and effective participation of relevant stakeholders, in particular, indigenous peoples and local communities”.55 Legal certainty of forest tenure rights is a prerequisite for reducing environmental and social risks. 56 In the absence of a comprehensive policy to address the rights of forestdependent communities in Cameroon, certain ad hoc policies have been established for individual programmes in response to pressure from international organisations. For instance, to meet the World Bank Operational Policies on IPs, the Pygmy Peoples Development Plan was established as part of the Forest and Environment Sector Programme to facilitate access to CF by the Pygmies such as the Baka people and to ensure fair distribution of the annual forestry fees (referred to herein by its French acronym ____________________ certificate is the official certificate of real property rights according to Article 1 of Decree No. 6/165 of 27 April 1976 to establish the conditions for obtaining land certificates as amended and supplemented by Decree No. 2005/481 of 16 December 2005. 50 The government of Cameroon, in its effort to maintain the natural biodiversity of the Kilum- Ijim mountain forest, entered into a contract with the NGO BirdLife International to conserve the mountain’s forest. This decision was taken without involving the inhabitants who were all asked to quit the forest. As a result, the decision was never implemented due to resistance from the local population. 51 Viana et al. (2012: 12); Tassa et al. (2010); and Lastarria-Cornhiel et al. (2012: 102). 52 Sam & Shepherd (2011). 53 UNFCCC Decision 1/CP.16 (“Cancun Agreement”), Appendix I. 54 Paragraph 2(c). 55 Paragraph 2(d). 56 Day & Naughton-Treves (2012: 1); and Moore et al. (2012: 83). Christopher F. Tamasang 150 as RFA57) and the Wildlife Tax. The Voluntary Guidelines on Responsible Governance of Tenure further stresses the need for national laws and processes to protect communities with customary tenure systems from encroachment or displacement, helping communities document and publicly make available information about the forests and lands they control and to register documented customary systems in order to secure customary rights.58 Be that as it may, a complete bundle of rights under CF could also promote better protection of standing forest and restoration of degraded forest.59 There is a growing body of literature linking community forest rights with healthier forests and lower CO2 emissions. Legal recognition and government support of community forest rights can thus help maintain and protect healthy forests, ensuring their role as carbon sinks.60 Forest communities already have a genuine interest in protecting forests, as they depend on them for their livelihoods and culture. In line with this opportunity to sustainably manage forests, Cameroon under the REDD+ readiness process has engaged forest-dependent communities as a key stakeholder though with very limited representation of only one member out of the 19 members constituting the National REDD+ Steering Committee.61 It has been suggested that the government can meet its climate goals while also improving citizens’ livelihoods by protecting and expanding the amount of officially recognised CFs.62 These can sequester considerable amounts of carbon. Important carbon stocks in many forests around the world have been maintained and enhanced thanks to the management practices of local communities, which range from conservation to reforestation to community fire management.63 Hence, enhancing forest rights of forest communities presents an enormous opportunity to fight climate change. This would, of course, require the need to simplify the conditions and procedures for the acquisition and management of CFs. Strengthening community forest rights is not just question pertaining to land and resources. It is also a cost-effective CCM solution. In fact, community forest rights should be part of the national CCM Policy. However, it’s not sufficient to legally recognise their forest rights. The government must also protect these rights by supporting communities in the sustainable management of their forests. Customary rules should prescribe clear and acceptable claims to lands for forestdependent communities while such claims should not be contradicted or nullified by ____________________ 57 Redevance forestière annuelle. 58 See UNEP (2015: 49). 59 Bond (2009: 99). 60 See ˂http://www.wri.org/blog/2014/12/why-community-forest-rights-should-be-part-nationalclimate-change-policies˃ (accessed 22-3-2018). 61 See Order No. 103/CAB/PM of 13 June 2012 pertaining to the creation, the organisation, and the operation of the REDD+ Steering Committee. 62 See ˂http://www.wri.org/blog/2014/07/community-forests-undervalued-approach-climatechange-mitigation> (accessed 22-3-2018). 63 FAO (2010: 4). Forest rights, benefit-sharing and climate change implications under Cameroonian law 151 state regulation. This insufficiency of the law in recognising such claim rights leaves communities vulnerable to losing their land, making forests vulnerable to being cut down. Thus, strengthening customary tenure rights over forest lands can guarantee legitimacy and local support for SFM and forest conservation which are good for CCM. Strengthening customary tenure rights has to be understood as the process by which the government legally and unequivocally cedes claims of forest ownership and management rights to local communities that have historically used and occupied such forests. However, the strengthening of such rights for forest-dependent communities should go in tandem with the enforcement and monitoring of related legal reforms. 2.2.1 Clarification of carbon rights as a new forest resource under Cameroonian law International legal instruments64 envisage a new forest product known as carbon, which could emerge as a tradable commodity in the process of mitigating climate change. While this has been commended as a laudable initiative, the instruments, unfortunately, do not clearly define the rights relating to this transaction. This probably explains why such initiative had never really been successful within the SFM conversation. REDD+ negotiations which are an upshot of the UNFCCC and its numerous Conference of Parties’ decisions have not made the situation any better in terms of clarifying carbon BS under this new forest management paradigm. The majority of the countries, including Cameroon, are therefore at odds as to crafting domestic legislation relating to the subject. Another explanation for the silence is that it is a relatively new development in the forest management paradigm requiring ample time to monitor its operation in national settings. The legal clarification of carbon rights could be challenging, as multiple stakeholders may claim rights over forest carbon, including communities, governments and carbon project implementers. Ownership of carbon rights is a contentious issue65 as most of the REDD+ participating countries, including Cameroon, do not have explicit laws regarding the carbon rights. In addition to forest tenure clarification, the question as to who should own the carbon embodied in both old and new forests requires legal clarity in Cameroon. This would create an incentive for engagement in forest carbon sequestration projects which could become favourable for CCM. Following the classification of forests under Cameroonian law, rights over carbon may belong to the state, councils, a group such as a community or an individual. On the strength of forest classification, the right to carbon would belong to the state where it is a state forest while the right to carbon on community and private forests would ____________________ 64 Cf. Kyoto Protocol to the UNFCCC. 65 Sherpa & Brower (2015: 27); and Loft et al. (2015: 1036). Christopher F. Tamasang 152 belong to the owners of these forests,66 and the carbon on council forests and national land would respectively belong to councils67 and to the nation managed by the state. Thus, carbon can be made a publicly owned resource, a communal resource or a private resource. However, certain forest products are classified as special, and the list of special products is fixed when necessary, by the competent ministry.68 The discretionary power of the minister may also allow the inclusion of carbon into the special products list. Under this legal construct, most carbon credits realised will go to the state with significant risk that communities will not reap adequate financial rewards, stifling incentives to support forest conservation efforts. In fact, in Cameroon, most forests storing carbon are mostly owned by the state who will by implication be the main beneficiary of any carbon benefit. Options for the clarification of carbon rights have been suggested by Costenbader as follows:69 • The carbon is privately owned expressed in a contract or a covenant that runs with the land, binding anyone who owns the property in the future; or the carbon is the object of a separate, alienable property right, such as a usufruct right70 or profit à prendre71, which the owner can sell without conveying land ownership. • The carbon is a publicly owned asset where the government holds it as trustee for the benefit of forest owners or of the public, with the power to sell it. Where carbon projects are planned and implemented in a centralised manner, payment for carbon benefits can be allocated and distributed through the existing RFA BS mechanisms. From the foregoing, one may conclude that carbon rights are rights over an ‘intangible asset’ referred to as carbon, a new form of resource which may or may not be separate from trees / biomass in which it resides, and which may be transferred or commercialised separately. Generally, one of the major factors driving forest destruction in Cameroon is due to inadequate and insecure rights over forests and its resources. Consequently, enhancing and securing such rights is fundamental when ensuring the long-term permanence of the CCM role of forests. The participatory approach adopted under the REDD+ ____________________ 66 Natural resources found within a private forest are owned by the individual as defined by Section 39(1) of the 1994 Forestry Law. 67 Article 32(3) of the 1994 Forestry Law which states that forest products of all kinds resulting from the exploitation of council forest shall be the sole property of the council concerned. 68 Section 9(2) of the 1994 Forestry Law classifies various products or resources as special and thus as belonging to the state: namely, ebony, ivory, wild animal horns, certain plants and medicinal species or those which are of particular interest. 69 Costenbader (2011: 27). 70 Usufruct is “the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantage which it may produce, without altering the substance of the thing”. 71 Profit à prendre is “the right to share in the land owned by another. In particular, profit à prendre enables a person to take part of the soil or produce of land that someone else owns”. Forest rights, benefit-sharing and climate change implications under Cameroonian law 153 readiness process could build genuine support, especially from forest-dependent communities if there is strong political will to initiate reforms that enhance and protect their rights thereby making these communities active stakeholders in forest management - especially in the context of CCM. 3 Benefit-sharing in the context of forest management and implications for climate change mitigation under Cameroonian law BS may be defined as the distribution of monetary and non-monetary benefits derived from forest management to relevant stakeholders within a country’s legal architecture. With the advent of carbon as a forest commodity, it is important to highlight carbon in the context of BS, which has been defined as an –72 agreement between stakeholders, such as private sector, local communities, government and nonprofit organisations, about the equitable distribution of benefits related to the commercialisation of forest carbon. Carbon BS may therefore be understood as the distribution of benefits derived from the sale of carbon credits. BS considerations are important determinants of forestbased efforts to mitigate climate change. Yet, an appropriate mechanism for fair and equitable BS is challenging. A well-functioning BS scheme provides incentives for actions that protect forests, which is essential for CCM. There are existing BS mechanisms under Cameroonian law, but just like carbon rights, there is a limited appetite to establish a legislative carbon BS scheme in Cameroon to date. However, there are existing formulae for BS on which carbon BS may hinge. 3.1 Current benefit-sharing schemes under Cameroonian law and implications for climate change mitigation BS constitutes a key aspect of CCM because it helps to create necessary incentives to engage in SFM, forest conservation and carbon projects. When designed and implemented appropriately, a BS mechanism can encourage climate-smart forestry. An effective, fair and equitable paradigm for BS can secure the positive outcome of SFM, forest conservation and carbon projects while unfair and inequitable distribution is a threat to participation in such efforts. In fact, a fair and equitable BS mechanism that is well implemented can incentivise SFM and forest conservation by forest rights holders and can lead to decreased pressure on forest ecosystems, and by extension enhance the role of the forest in contributing to CCM while, unfair and inequitable BS mechanism is a disincentive to SFM and forest conservation and can lead to increased ____________________ 72 Lindhjem et al. (2010: 25). Christopher F. Tamasang 154 pressure on forest ecosystems, and by extension limit forests’ CCM role. In the case of carbon BS, one of the challenges is the task of receiving funds from international sources and distributing them fairly and equitably to relevant national actors. National and foreign investors and other supporting actors most relevant to national forest governance will require fair and equitable BS arrangements to compensate them for their participation in SFM, forest conservation and carbon projects. Thus, a BS scheme needs to target different actors across various levels. A BS formula is complex to establish, due to the range of stakeholders involved, their interests and scales at which they intervene in SFM, forest conservation and carbon projects. The establishment of a BS mechanism across levels that is accepted by relevant stakeholders is challenging but critical. Such a mechanism should not only look at rules and modalities for distribution, but also at how conflicts arising in the process can be resolved so that incentives do not generate countervailing reactions.73 A generic approach to BS is not appropriate because every country is likely to have unique circumstances, preferences and needs that inevitably influence BS arrangements. In the case of carbon, there are no specific legal provisions in Cameroon on how carbon benefits will be shared among relevant actors. In the absence of such legal specificity, Cameroon’s approach to national carbon BS can be derived from Cameroon’s REDD+ Readiness Preparation Proposal (R-PP). This approach is based on the experience of other revenue sharing mechanisms currently in place, such as the redistribution mechanism of annual forestry fees (RFA).74 Under relevant legislations, royalties or revenues from the exploitation of forest resources are paid to the state.75 In fact, any economic and financial benefits resulting from the exploitation of forest resources are subject to the payment of royalties (RFA) to the state.76 In turn, the state distributes royalties collected in the following proportions: 50% to the state, 20% to municipalities adjacent to the forest concessions, 20% to FEICOM (Special Equipment and Inter-municipality Intervention Fund) and 10% to the local population affected by the project.77 In addition to this scheme, the 1994 Forestry Law requires the project owner to undertake to carry out industrial installations, developmental works and to ____________________ 73 Minang et al. (2014). 74 Forest Carbon Partnership Facility Cameroon (2013: 72). 75 Cf. Sections 66, 67 and 68 of the 1994 Forestry Law. These provisions are supplemented by those of Section 14(2) of Law No. 98/9 of 1 July 1998 Finance Law of the Republic of Cameroon, which fixed the annual forestry fee at CFAF 1,500/ha for forest concessions and CFAF 2,500/ha for the exploitation of sales of standing volume. The same provisions provide for the distribution of the said annual forestry fee as follows: 50% for the state, 40% for local councils and 10% for bordering villages. See also Decree No. 96/642/PM of 17 September 1996, fixing the amount and the modalities of tax recovery and the rights of royalties relating to forestry activities. 76 Decree No. 96/642/PM of 17 September 1996, fixing the amount and the modalities of tax recovery and the rights of royalties and tax relative to forestry activities. 77 Decree No. 96/237/PM of 10 April 1996 defining the conditions for the functioning of special funds provided in the 1994 Forestry Law. Forest rights, benefit-sharing and climate change implications under Cameroonian law 155 provide social amenities for the benefit of the local population.78 Joint Order No. 122/MINADT/MINFI/MINFOF of 29 April 1998 issued to lay down conditions for the use of revenue derived from forestry fees was found to be ineffective and was replaced by another joint order issued on 3 June 2010, which because of implementation difficulties, was subsequently repealed by joint Order No. 76/MINADT/ MINFI/MINFOF of 26 June 2012 to lay down conditions for the planning, use and monitoring of the management of forest and wildlife revenue allocated to councils and local communities.79 BS revolves around different kinds of benefits to be shared, how stakeholders are entitled to receive the benefits and the rules governing the allocation and sharing of those benefits. With respect to the different kinds of benefits, they can be grouped as either being monetary or non-monetary in nature. This is in line with the prescription of Article 5(4) of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.80 From a monetary point of view, benefits are allocated and shared under the RFA system in Cameroon as seen above. Apart from direct cash flows, non-monetary benefits could also be made by building social infrastructures promoting community development and poverty reduction activities. In this respect, Sections 50 and 61(3) & (4) of the 1994 Forestry Law require the project participant to undertake to carry out industrial installations, developmental works and to provide social amenities for the benefit of the local population. From another perspective, there are three main types of benefits: The first type comprises the (net) benefits from the implementation of a carbon project under which those implementing it may derive gains from the sale of carbon credits with the direct costs consisting of transaction and implementation costs, such as for guarding forests against illegal logging and forest clearing. The second type consists of (net) benefits from changes in forest use such as the foregone agricultural and timber rent (profit), or the opportunity costs of forest conservation. That is, lost opportunities because some uses are stopped or downscaled. The third type of benefits consists of indirect (net) benefits from the implementation of carbon projects, including improved governance, such as strengthening of tenure rights and law enforcement, technology transfer, enhanced participation in decision-making, preservation of biodiversity and/or other ecosystem services and infrastructure provisions.81 ____________________ 78 This includes construction of roads, bridges, schools, hospitals, and recreational facilities. See Sections 50(3) and 61(3) and (4) of the 1994 Forestry Law. 79 Assembe-Mvondo et al. (2015: 1). 80 See the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity which aims at sharing the benefits arising from the utilisation of genetic resources in a fair and equitable way. It entered into force on 12 October 2014, 90 days after the date of deposit of the fiftieth instrument of ratification. 81 See generally Luttrell et al. (2013); Denier et al. (2014); Lindhjem et al. (2010); and Loft et al. (2014). Christopher F. Tamasang 156 With respect to the stakeholders entitled to receive the benefits, the RFA has clearly identified the various stakeholders to include the state, councils in case of council forests and the municipalities adjacent to the forest concessions. Individuals are eligible in the case of private forests, FEICOM, the local population affected by the project and local communities in the case of CFs. However, the beneficiaries of benefits increase with the multiplicity of stakeholders with divergent interests involved in carbon projects implementation such as project developers and implementers, wider communities, intermediaries and relevant government departments. If a programme is too narrowly targeted and focuses on just a few key actors, it risks not being sufficiently broad enough to align incentives, cultivate support, build legitimacy and prevent leakage.82 The rules governing the allocation and sharing of benefits are those found under the existing RFA in Cameroon, which are held not be fair and equitable with respect to the meagre percentage allocated to the local population and the unfair procedures for the transmission of the revenue to the local communities, which must pass through unaccountable local councils and under the management of corrupt elites. 3.2 Discussion on benefit-sharing under Cameroonian law and implications for climate change mitigation The long-term success of forest-based CCM efforts depends upon ensuring that BS under any scheme is perceived as fair and equitable by relevant stakeholders especially forest-dependent communities. The BS mechanism as provided by the RFA in Cameroon leaves much to be desired in terms of value, fairness, equality and transparency. In fact, the scheme is plagued with a number of flaws. The materialisation of BS has been weak. The Ministries of Forestry and Finance negotiate the terms of BS with no consultation process with the local community before fixing the amount to be paid contrary to the requirement to hold a briefing meeting during which the community through the traditional authorities is notified of the envisaged amount.83 The 10% share seems insignificant compared to what companies extract from the forest and compared to what they pay into the Public Treasury. The BS scheme allocating only 10% of revenue to local communities is likely to trigger negative responses from community members. This is so because they may contend that this proportion is inadequate and cannot provide the infrastructure required for sustainable societal development.84 The meagre 10% share allocated to local communities is managed by local governments with a widespread report by communities on the insufficient investment of the revenue ____________________ 82 Kelley et al. (2012: 4). 83 See Decree No. 96/237/PM of 10 April 1996, fixing the modalities of the functioning of the special fund for Forestry, Wildlife and Fisheries. 84 Alemagi (2011: 70). Forest rights, benefit-sharing and climate change implications under Cameroonian law 157 in concerned villages. The 10% often end up in private pockets of elites as a result of the top-down preferences of central and local governments on communities. The management of the RFA at the community level has been very controversial because of large-scale misappropriation. BS, which is often thought to be pro-poor is not necessarily pro-poor in nature as in some forest communities, more powerful actors tend to be given priority in benefits sharing.85Elite capture and diversion of benefits can lead to perverse incentives with a tendency to degrade forests or to result in the exclusion of vulnerable right holders from benefits, compromising forests’ CCM role. The RFA BS mechanism, which is also proposed in the R-PP for the sharing of carbon benefits is inappropriate as it has been plagued by problems since its inception, evident by insufficient transparency over the use of funds, which is prone to misappropriation, both within MINFI and at the municipal and village levels with limited mechanism for independent actors to hold them accountable. In this respect, benefits could be captured at higher levels, without reaching those who matter most and who have less power to influence such processes. This could undermine local populations’ participation and support for SFM, forest conservation and carbon projects and potentially endanger the permanence of any carbon being sequestered over the long term. The weaknesses in Cameroon’s BS system require numerous adjustments in terms of necessary legal reforms. Indonesia’s July 2009 REDD Revenue-Sharing Regulation was the first of its kind in providing that national, municipal, and provincial governments would receive 10- 50% of carbon credit funds from forest projects, while local forest communities would receive 20-70%, depending on the type of forest. For instance, in ‘customary’ forests, government would receive 10%, communities 70% and developers 20%.86 A key concern is that of giving large sums of money to governments with poor track records, low institutional and governance capacities and weak commitments to transparency, accountability and participation, a weak rule of law and inadequate public financial management capacity.87 In the case of carbon benefits, there is genuine concern that governments or brokers will appropriate carbon revenue.88 The RFA BS mechanism in Cameroon suggests that IPs and local communities may be at risk of not receiving adequate shares of carbon benefits, especially in light of the high potential for corruption. In fact, IPs in Cameroon continue to be concerned about accountability and embezzlement by local and national elites at the expense of local economic development and welfare. Not only will they receive little or no payment under the RFA BS scheme. They are deemed to even lose their traditional rights to forests and associated resources. Poverty remains endemic in most forest communities that accommodate ____________________ 85 Sam & Shepherd (2011). 86 Costenbader (2009: 78). 87 Ibid: 57. 88 Katerere et al. (2009: 19). Christopher F. Tamasang 158 logging concessions with the two main beneficiaries of revenues being the government and the forest products firms. Carbon benefits may not go beyond these categories of stakeholders, which may cause local communities to embark on more unsustainable forest activities out of frustration. Explicit controls are therefore required to prevent the capture of benefits. This requires the establishment of a system that is fair, equitable and transparent, which instils confidence and must be given a legal base through legislation. If stakeholders do not perceive the BS scheme as fair and equitable, the legitimacy of SFM, forest conservation, carbon projects and buy-ins from dissatisfied stakeholders will be weakened. In general, such a system must strive to ensure that payments are allocated and shared in a manner that is both fair and equitable (adequately compensate relevant stakeholders especially forest-dependent communities) as well as effective (leading to forest-based carbon emissions reductions and carbon stocks enhancement). The BS paradigm established by the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits is worth mentioning here. In accordance with Article 15(3) and (7) of the Convention on Biological Diversity, benefits should be shared in a fair and equitable way and that such sharing shall be upon mutually agreed terms.89 Article 5(2) and (3) of the Protocol directs that each Party takes legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilisation of genetic resources that are held by indigenous and local communities, in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these genetic resources are shared in a fair and equitable way with the communities concerned and based on mutually agreed terms. Although not designed for forest and carbon BS, the Nagoya Protocol’s BS mechanism can be adopted by the government in designing an appropriate BS mechanism. Fundamental issues in the design of a BS mechanism include criteria for allocating benefits, eligibility to benefit, transparency in the process, the timing of payment and the responsibilities of actors in the BS process at all levels. In designing such a scheme, special attention must be given to the marginalised and vulnerable forest-dependent communities, who have limited voices and influence. Their special involvement in the design of a BS mechanism in Cameroon will provide incentives for actions that are relevant for forest protection, as well as building trust and legitimacy, strengthen local governance and aligning BS with pro-poor and local development strategies, which are all essential for CCM. In the light of this reasoning, the UN-REDD Programme standards under Criterion 12 requires that the design, planning and implementation of national REDD+ programmes among others, should ensure equitable, non- ____________________ 89 See Article 5(1) of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. Forest rights, benefit-sharing and climate change implications under Cameroonian law 159 discriminatory and transparent BS among relevant stakeholders, with special attention to the most vulnerable and marginalised groups.90 It is therefore imperative to consider paying benefits to communities’ accounts without going through local governments. One option being tested in Brazil under the REDD+ initiative is to use commercial banks to transfer payments from the voluntary carbon market to farmers and community organisations.91 Appropriate BS arrangement can induce cooperation,92 SFM and forest conservation that enhance the role of the forest in contributing to CCM. If the proposed BS framework is not considered by policymakers, revenue will continue to be distributed based on the existing flawed RFA BS mechanism, where revenue accrues to the state, local councils and elites at the detriment of local communities, undermining SFM which is not healthy for CCM. An appropriate BS mechanism also requires that a conducive institutional set-up is established to deliver and manage such benefits. 4 Conclusions and recommendations 4.1 Conclusions This chapter has established that Cameroonian law has classified forests into various types, giving different categories of stakeholders including the state, councils, local communities and private individuals or corporate entities the enjoyment of a bundle of rights attached to the various forest types. These categories of forest right holders are also entitled to benefits derived from forest management. The development of the carbon concept has also increased the number of stakeholders in forest management, who enjoy some rights with corresponding carbon benefits entitlements. However, some stakeholders involved in forest management such as forest-dependent communities enjoy limited and weaker rights with inadequate benefits compared to the councils, the state, its well-positioned elites and its economic business allies under the RFA on which carbon BS will hinge. The forest rights and the RFA BS mechanism have not been effectively implemented. More often, vulnerable groups face implementation challenges, mostly related to poor governance, posing as a major constraint to forest’s contribution to CCM. Thus, although the forestry legal framework classifies forests and puts in place a bundle of forest rights enjoyed by different categories of stakeholders with corresponding BS scheme, inherent weaknesses exist in the law. The prevailing forest rights arrangements and BS frameworks in Cameroon are inadequate to incentivise forest-dependent communities to practice SFM, forest conservation and ____________________ 90 See UN-REDD Programme (2011: criterion 12). 91 Bond (2009: 103). 92 See IUCN (2009: 5). Christopher F. Tamasang 160 engage in carbon projects which is not healthy for CCM. Government actions that weaken the exercise of limited and weak forest rights and the unfair and inequitable BS mechanism could contribute to forest destruction and carbon emissions that can compromise forest-based CCM efforts. Despite a theoretical decentralisation and transfer of powers and rights with corresponding benefits to different forest stakeholders, the practical forestry management reinforces a central stakeholders’ power with strong political and economic incentives for elites and central bureaucracies to consolidate their control over forests. In fact, the poor enforcement of the forestry legislation with respect to forest rights and BS owing to weak governance, an absence of the rule of law, vested interests and insufficient political will, has led to a wide gap between policy rhetoric and on-the-ground practice. Under the existing legal and governance reality, the role of the forest in contributing to CCM is greatly hindered, underscoring the urgent need for legislative reforms, which seem critical if the government of Cameroon wishes to deliver its promise under the NDCs in achieving the goals of the Paris Agreement.93 4.2 Recommendations A key recommendation calls for an enhancement of the role of forests in contributing to CCM under Cameroonian law. Relevant laws need to be revised to effectively decentralise and promote participatory forest management that gives adequate forest rights to the relevant stakeholders. An appropriate forest management and a corresponding fair and equitable BS paradigm need to be supported by a genuine political commitment that allows and fosters on-the-ground implementation. This is premised on the reasoning that adequate rights over forest management with an associated fair and equitable BS paradigm encourage more SFM, forest conservation and carbon projects for a better forest-based CCM outcome. In order to enhance forests’ contribution to CCM in Cameroon, there is a need for forest management to operate in a legal context of adequate and secure forest rights for relevant stakeholders. Moreover, the BS formula needs to be harnessed to overcome the inherent flaws plaguing the RFA BS scheme. References ____________________ 93 Under 17, the Paris Agreement has as primary goal, to keep a global temperature rise this century below 2°C and to drive efforts to limit temperature increase even further to 1.52°C above pre-industrial levels. 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Mboh, C, D Skole, M Dieng, C Justice, D Kwesha, L Mane, M El Gamri, V Von Vordzogbe & H Virji (2012) Challenges and prospects for REDD+ in Africa: desk review of REDD+ implementation in Africa GLP Report No. 3, at (accessed 2-8.2018). Minang, PA, M Van Noordwijk, LA Dugumaa, D Alemagi, TH Dod, F Bernarda, P Agung, V Robiglioe, D Catacutand, S Suyantob, A Armas, C Silva Aguade, M Feudjioc, G Galudrab, R Maryani, D Whitef, A Widayati, E Kahurani, S Namirembea & B Leimona (2014) REDD+ readiness progress across countries: time for reconsideration. Moore, C, T Hansel & A Johnson (2012) “REDD+ in Lao PDR: is it also a “plus” for forest-dependent communities? a case study from the Nam Et Phou Louey National Protected Area; Lao, PDR” in L Naughton-Treves & C Day (eds) Lessons about land tenure, forest governance and REDD+: case studies from Africa, Asia and Latin America 83-92, at ˂www.rmportal.net/landtenureforestsworkshop˃ (accessed 17-10-2017). 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Tamasang, CF (2007) Community forest management entities as effective tools for local level participation under Cameroonian law: a case study of Kilium/Tjim mountain forest PhD Thesis Faculty of Law and Political Science University of Yaounde II SOA. Tamasang, CF (2009) “The clean development mechanism and forestry projects in Africa: the case of forestry projects in Cameroon” in R Mwebaza & LJ Kotzé (eds) Environmental governance and climate change in Africa: legal perspectives 171-195. Tassa, DT, R Da Re & L Secco (2010) “Benefit sharing mechanisms and governance issues in participatory forest management-REDD related projects: a community forest case-study in Tanzania” Berlin Conference on the Human Dimensions of Global Environmental Change Berlin 8-9 October 2010. UNEP / Unites Nations Environment Programme (2014) Forests in a changing climate: a sourcebook for integrating REDD+ into academic programmes. 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WWF / World Wide Fund For Nature (2013) WWF guide to building REDD+ strategies: a toolkit for REDD+ practitioners around the globe. 165 Chapter 7: Indigenous peoples and climate change in Cameroon Daniel Armel Owona Mbarga 1 Introduction Climate change is defined as modifications of the climate attributed directly or indirectly to human activity that alters the global atmosphere, contributing to natural climate variability over comparable time periods.1 These changes are a reality. Indeed, the recurrence of extreme weather events2 around the world is evidence of the fact that a gradual alteration of the climate system is happening. Proven or potential impacts are increasingly evident as a result of global warming, which are both harmful to humans and global ecosystems.3 Cameroon has also been affected by these climatic changes as evidenced in the various agro-ecological zones.4 There have been floods, recurrent droughts, strong winds, heavy rainfall and significant annual water variations.5 In addition, rising temperatures have increased evapotranspiration, leading to more frequent storms.6 The most devastating cases occurred in 2000, 2003 and 2007 in the coastal highlands of the south west of the country, causing US$ 450,000 worth of damage.7 ____________________ 1 Article 1, United Nations Framework Convention on Climate Change of 9 May 1992. 2 Among the extreme events caused by climate change we have heat waves, droughts, floods, cyclones and forest fires. See IPCC (2014: 8). 3 Ibid: 4. 4 These are zones defined according to their ecological, climatic and edaphic characteristics. There are five in Cameroon, namely the Sudano-Sahelian zone, the high Guinean savannah zone, the highlands zone, the forest zone with bimodal rainfall, the coastal area with monomodal rainfall. The first is characterised by savannahs, steppes and an arid climate. The North and Far North Regions are part of this zone. The high Guinean savannah zone, on the other hand is considered as the country’s first watershed because a good number of major rivers take their rise from here. The Centre Region, the Sudano-Guinean savannah and the Adamawa plateau are part of this zone. The Upper plateau zone for its part includes the West and North West Regions. It is also considered as the country’s second watershed. The forest zone with a bimodal rainfall includes the East and South Regions. In addition, it is a tropical forest particularly characterised by a dense hydrographical network. Finally, the coastal area with a mono-modal rainfall includes the coastal and mountainous zone with a humid equatorial climate. See Ministry of the Environment, Nature Protection and Sustainable Development (2015). 5 Ministry of Environment, Nature Protection and Sustainable Development (2015: 2; 23-24). 6 Ibid: 38. 7 Ibid. Daniel Armel Owona Mbarga 166 Such phenomena are obviously not without consequences for Cameroon’s population. Over the last 20 years, floods have affected more than 90,000 people and killed more than 100 throughout the country.8 In the Sudano-Sahelian agro-ecological zone, in particular,9 floods killed 153 people in 2011 and 2012.10 Heat waves in this zone greatly increase the risk of mortality, food insecurity and famine as well as skin and other diseases such as malaria and others.11 In the coastal zone with mono-modal rainfall, the amount and variability of rainfall greatly increased the risk of death from water-borne diseases.12 Future predictions concerning the effects of climate change in Cameroon are equally disturbing. According to the National Plan for Adaptation to Climate Change (PNACC), it is predicted that an average of five droughts per decade may cause at least 500 deaths in the Sudano-Sahelian zone.13 This serves as an example for the growing gravity of the consequences of climate change on human beings. Climate related impacts are particularly alarming for vulnerable groups such as indigenous peoples.14 Indigenous peoples are expected to be more and more affected by climate change because their livelihoods largely depend on land use and natural resources.15 At the same time, they are among those who have least contributed to carbon emissions.16 To date, there is no internationally accepted definition of the term ‘indigenous peoples’. As proof, the United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly on 13 September 2007 does not define the term. This is because there is no comprehensive definition that embodies the current diversity of cultures, history and circumstances of indigenous peoples.17 It is for this reason that the organisations that represented indigenous people during the development of the above-mentioned United Nations declaration explicitly rejected any definition of who they were.18 As Kobila stated, we “notice the inappropriateness to define the concept of indigenous peoples”.19 Thus, in order to identify indigenous peoples, it is ____________________ 8 Ibid. 9 With its mono-modal rainfall the coastal zone is one of the areas most vulnerable to climate change. See Ministry of the Environment, Nature Protection and Sustainable Development (2015: 49). 10 Ministry of the Environment, Nature Protection and Sustainable Development (2015: 39). 11 Ibid: 48. 12 Ibid: 44. 13 Ibid: 41. 14 The Cameroonian Government acknowledges the existence of vulnerable indigenous peoples in the country. See (accessed 4-3-2018). 15 IUCN (2010: 2). 16 Ibid. 17 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya 276/03 (2009: 18). 18 Geslin (2010: 7). 19 See Kobila (2009: 28). Indigenous peoples and climate change in Cameroon 167 necessary to refer to various criteria established at the universal, regional and national levels. At the universal level, Martinez Cobo’s study of “the Problem of Discrimination against Indigenous Peoples”, prepared under the auspices of the United Nations, identifies precedence over a given territory before colonisation, non-dominance and marginalisation from an economic, political and socio-cultural point of view, as well as the claim of one’s own identity, as distinct criteria.20 At the regional level, through its Working Group on Indigenous Populations/Communities, the African Commission on Human and Peoples’ Rights notes that certain criteria such as precedence set out in Cobo’s study are unworkable in the African context.21 Indeed, except in specific cases such as the San people in southern Africa and the Pygmies in central Africa, all Africans are indigenous because they have always lived in this territory.22 Therefore, the African Commission advocates that the identification of indigenous peoples should be based on selected criteria taking the African context into consideration. These include: 23 • self-definition as indigenous peoples distinct from other groups within a State; • special attachment to and use of their traditional heritage by which their ancestral lands and territories are of crucial importance to their physical and cultural survival; and • experience of subjugation and marginalisation because of their culture, lifestyle or ways of production, which differ from the hegemonic and dominant model of the national majority. Based on these criteria, the African Court on Human and Peoples’ Rights also established criteria, which it considers important for identifying indigenous peoples:24 The presence of priority in time with respect to the occupation and use of a specific territory; a voluntary perpetuation of cultural distinctiveness, which may include aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions; self-identification as well as recognition by other groups, or by State authorities that they are a distinct collectivity; and an experience of subjugation, marginalisation, dispossession, exclusion or discrimination, whether or not these conditions persist. Finally, at the national level, even though Cameroon recognises subjective rights of indigenous peoples in the Preamble of its Constitution, its conception seems different from the one advocated at the universal level. It is the underlying conception used in this chapter hereinafter. It draws from the spirit and letter of Article 57(3) of the ____________________ 20 Cameroon’s Ministry of Forestry and Wildlife (2011:14). 21 African Commission on Human and Peoples’ Rights Experts Working Group on Indigenous Populations / Communities (2005: 103). 22 Ibid. 23 Ibid: 103-104. 24 African Commission on Human and People’s Rights v. Republic of Kenya Application No. 006/2012 (2017: 31). Daniel Armel Owona Mbarga 168 Constitution. According to this Article, the Regional Council is headed by an indigene elected from among its members for the life of the Council. The Constitution recognises the existence of indigenous peoples in each of the ten regions of the country.25 It holds that all people are indigenous to their land.26 As such, Cameroon gives this concept a meaning similar to that of the African Commission on Human and Peoples’ Rights. However, only those indigenous peoples whose vulnerability has been established on account of their socio-economic status, as a result of historical injustices, are eligible to the special constitutional and international protection of indigenous peoples.27 This autochthony is in the same vein as that of the colonisers before independence. Indeed, since the time East Cameroon was a French-mandated territory under the League of Nations, the entire so-called native population was considered indigenous. Evidence of this can be found in an annual report submitted to the Council of the League of Nations at its sixth session between June and July 1925, in which the expression ‘indigenous population’ refers to people as listed below:28 In the three constituencies of Garoua, Maroua and Ngaoundere, we are dealing with a society where conquerors, whose organisation reminds of feudalism, are placed at the head of the indigenous population. Some indigenous people considered as vulnerable include29 the Mbororo and Pygmies because their vulnerability to climate change is often raised.30 The Mbororo are nomadic Fulani known for their engagement in pastoral activity,31 who roam the bush in search of pastures.32 Estimated at more than 60,000 people, they are subdivided into three main groups, namely the Jafun, Woodabe and Aku.33 They are found throughout Cameroon but mainly in the north west, west, north, Adamawa and east regions.34 The Pygmies are considered as the first inhabitants of the African tropical forests and their lifestyle is based on hunting and gathering.35 They are mainly found in the east, south and central regions and in the southern part of the coastal zone.36 The Pygmies consist of three major groups: the Bakas, the Bagyelis and Bedzans.37 ____________________ 25 Kobila (2009: 100). 26 Ibid: 99. 27 Ibid: 100. 28 France (1925: 54). 29 The author agrees with Kobila (2009: 102) that establishing a limited list of vulnerable indigenous populations does not coincide with the understanding of the Cameroonian Constitution in its Article 57(3). 30 See Nguegang Tayou (2017) and the Project: Population Resilience to Climate Change, funded by the United Nations Development Programme. 31 Mouiche (2012: 152). 32 Ibid: 153. 33 Nguiffo & Mballa (2009: 1). 34 Mouiche (2012: 153). 35 Ibid. 36 Nguiffo & Mballa (2009: 1-2). 37 Ibid. Indigenous peoples and climate change in Cameroon 169 Indigenous marginalisation has been evidenced by historical exclusion from decision-making processes and by the fact that they are often pushed into resource-poor and climate-sensitive regions because of development activities.38 When combined with the effects of climate change, their vulnerability is exacerbated. Cameroonian climate policy must, therefore, take indigenous peoples into account in order to protect them against the impacts of climate change. The State of Cameroon is also obliged to do so in light of its legal obligation as a signatory to the Paris Agreement.39 Article 7 of this Agreement stipulates that parties should take into account and draw on the best available scientific knowledge and, as appropriate, traditional knowledge, indigenous know-how and knowledge and local knowledge systems, to adapt relevant socio-economic and environmental policies and measures. Hence, it is necessary to examine the level of protection of indigenous populations in Cameroon’s climate policy. Despite the existence of several articles focusing on indigenous populations in Cameroon,40 these writings do not address the issue of climate change. Thus, this chapter attempts to progress research on this particular topic by evaluating the level protection of indigenous populations in light of the growing impacts of climate change. 2 Little initial consideration of the indigenous populations Cameroon signed and ratified the United Nations Framework Convention on Climate Change (UNFCCC),41 which represents the instrument that formalises the international legal system on climate change. Cameroon’s climate policy reveals that indigenous people have been accorded a far more central role in recent times. Between 1996 and 2005, Cameroon has developed several planning documents pertinent to climate change including the National Environmental Management Plan (NEMP) of February 1996 and Cameroon’s First Initial National Communication to the UNFCCC in 2005. These documents reveal an undifferentiated participation of indigenous peoples not only in the preparation phase but also regarding the proposed response strategies. ____________________ 38 IUCN (2010: 2). 39 Cameroon ratified the Paris Agreement on 29 July 2016. See (accessed 10-12-2017). 40 See for example Abega (1996-1997); Abega & Bigombe Logo (2006); Atsiga Essala (1999); Bigombe Logo (2000). 41 Signature in 1992 and retification in 1994; the Convention entered into force in Cameroon on 17 January 1995. See (accessed 10-12-2017). Daniel Armel Owona Mbarga 170 2.1 Undifferentiated participation of indigenous peoples in the development of strategy papers on climate change Strategy or planning papers are usually developed after consultation with various stakeholders, including experts, members of government, donors and private persons, who can intervene at various stages of the process. With the aim of developing policies, strategies and actions for the protection of the environment and the rational management of natural resources for sustainable development,42 the NEMP reflects Cameroon’s climate-related aspirations. The strategy was developed in line with the expectations under the UNFCCC.43 It was also developed with the participation of the populations concerned, such as rural and urban communities, the government and the public service, specialised non-governmental organisations, professional associations, and all users of natural resources, including forests and pastures as well as donors and international cooperation agencies.44 Although indigenous peoples have not been mentioned explicitly, it can be deduced that they had been included in the general reference ‘users of natural resources’ since Pygmies use forests and Mbororos rely on pastures, which are both natural resources. 2.2 Lack of differentiation of the indigenous peoples in the response strategies developed The state of vulnerability of the population should be assessed also taking into account the potential variability of the impacts of climate change on urban dwellers and indigenous populations, particularly as regards to the way they can cope or adapt to these changes. Cameroonian responses developed to address the effects of climate change envisage mitigation and adaptation. The former refers to measures that contribute to the reduction of the negative impacts of climate change, while the latter refers to measures that contribute to the modifications of lifestyles in a bid to cope with the consequences of climate change. Various measures proposed in the initial national communication shall mitigate the growth of greenhouse gases in the forestry sector. These include the reduction of emissions from biomass use, the expansion of sequestration sinks of forest emissions and the change in land use.45 As concerns adaptation to the adverse effects of climate change, the initial national communication takes into account the strategies used by farmers in the Benue Valley, particularly the change in cultivation practices, the constitution of safety stocks, the ____________________ 42 Ministry of the Environment and Forests (1996: 6). 43 For the analysis of incentives particularly financial, that moved Cameroon to include climate change in its political agenda, see Kede (2017). 44 Ibid: 6. See also Ministry of the Environment and Forests (1996: 6). 45 Ministry of the Environment and Forests (2005: 71). Indigenous peoples and climate change in Cameroon 171 change of date for certain operations and the use of new plots.46 Upon observation, it is noticeable that the response strategies proposed in the initial national communication do not include indigenous peoples. Yet, these strategies should take into account traditional knowledge of indigenous peoples as they possess knowledge capable of facilitating adaption to climate risks.47 This is, for instance, the case for mixed cropping or higher crop diversification on the same plot. The objective of this strategy is not only to reduce crop vulnerability but to multiply the quality of plants in the field. Thus, if some of the plants are not resistant to variations due to climate change, the others may be.48 This allows Pygmies to adapt to climate disruptions.49 In addition, the traditional system of forecasting the beginning and the end of the rainy season can be seen as another asset of traditional knowledge. The Baka, for instance, determine the beginning of the rainy season based on the first appearance of edible black head caterpillars.50 Rains usually start exactly two weeks after the appearance of these caterpillars.51 This makes it possible to adapt to irregular rainy seasons due to climate change. Thus, between 1996 and 2005, the potential participation of indigenous people in the fight against climate change was not taken into account. Yet, they could make a significant contribution in this area. It is undoubtedly for this reason that Cameroon’s climate policy has recently given greater importance to these populations. 3 Recent expansion of the inclusion of indigenous peoples As from 2012, it is noticeable that indigenous people have been more and more integrated into Cameroon’s climate policy consultation processes. In fact, a careful observation of documents such as the National Adaptation Plan (PNACC)52 of 24 June 2015, the 2015 planned determined contribution at the national level and the 2012 proposed measures for the state of preparedness (R-PP), show governmental recognition of the contribution of indigenous peoples in the development of climate strategy papers, as well as the consideration of their vulnerability in proposed responses. ____________________ 46 Ibid: 94-95. 47 World Bank (2010: 108). 48 Fosso (2014). 49 Ibid. 50 Ibid. 51 Ibid. 52 The national plan on Adaptation to Climate Change is a national strategy paper, which is aimed at guiding the government and stakeholders in approaching adaptation to climate change. See Ministry of Environment, Nature Protection and Sustainable Development (2015: 27). Daniel Armel Owona Mbarga 172 3.1 Government recognition of the contribution of indigenous peoples in the development of climate strategy papers The recognition of the contribution of indigenous peoples in the preparation of strategy papers in the fight against climate change is the result of the internalisation of international commitments to which Cameroon has subscribed. In developing its PNACC, for example, Cameroon has followed the UNFCCC recommendations as well as those of the Cancun Framework for Adaptation,53 taking into account and drawing on traditional and indigenous approaches. Furthermore, the proposal for the state of preparedness measures (R-PP) within the framework of the mechanism on reducing emissions from deforestation and forest degradation (REDD+) states that indigenous peoples are among the 21 members of the REDD+ Steering Committee.54 This Committee is responsible for planning policy and strategy proposals for the REDD+ initiative, developing selection criteria for the projects that shall be submitted to the Minister in charge of the environment, and validating the work and approving the action plan of the Technical Secretariat.55 They, therefore, play a major role in the decision-making process on climate. In addition, the participation of indigenous peoples is evaluated at 7% in the regional and national consultation workshops for the finalisation of the R-PP.56 This involvement is explained by the relevance of indigenous peoples in the REDD+ framework and the choice Cameroon has made to develop a REDD+ mechanism that particularly targets the development of vulnerable groups. 57 3.2 Taking into account the vulnerability of indigenous peoples in proposed response strategies As part of recommendations for the sectoral policy, the PNACC takes into account the vulnerability of the indigenous populations in terms of gender, vulnerability, social protection and national solidarity sectors. The objective here is to reduce the vulnerability of marginalised populations and to build their capacities, autonomy and independence.58 The PNACC also recommends the development of a specific plan to support indigenous peoples in the event of disaster.59 ____________________ 53 Ministry of Environment, Nature Protection and Sustainable Development (2015: 27). 54 Republic of Cameroon (2012: 11). 55 Ibid. 56 Ibid: 18. 57 Ibid. 58 Ministry of Environment, Nature Protection and Sustainable Development (2015: 80). 59 Ibid: 81. Indigenous peoples and climate change in Cameroon 173 In addition, the PNACC also takes into account the vulnerability of indigenous peoples within the framework of its proposed projects. An example is a project focusing on the improvement of local governance structures in response to climate change, to strengthen local mechanisms for securing the rights of use and access to land ownership for the main stakeholders, particularly indigenous peoples.60 The nationally determined contribution (NDC) of Cameroon projects to build capacities of indigenous peoples, within the framework of adaptation measures.61 This shows the growing role that indigenous peoples are playing in contemporary Cameroonian climate policy. 4 Conclusion While in the past, the capacity of indigenous peoples in Cameroon’s climate policy was underutilised and underrepresented, in recent years, they have been more and more integrated into the Cameroonian climate policy and strategy. This happened for good reasons: First, the influence of Cameroon’s international commitments towards a greater inclusion of indigenous peoples in climate change planning. Secondly and perhaps even more important, the realisation of the value that indigenous and traditional knowledge can play in overcoming their vulnerability in the implementation of concrete projects. References Abega, SC (1996-1997) La communication avec les Pygmées Baka. Abega, SC & P Bigombe Logo (eds) (2006) La marginalisation des Pygmées d’Afrique centrale. African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005) Rapport du Groupe de travail d’experts de la Commission africaine des droits de l’homme et des peuples sur les populations/communautés autochtones, at (accessed 20-7-2018). Atsiga Essala, L (1999) “L’exploitation des populations marginales : le cas des Pygmées du Cameroun” 2 Les formes contemporaines d’esclavage, Cahier africain des droits de l’homme 155-177. Bigombe Logo, P (2000) “Droits des peuples autochtones au Cameroun: le dilemme de la reconnaissance et de la banalisation” 37 Bulletin IKEWAN 9-11. Fosso, LC (2014) Stratégies indigènes d’adaptation aux changements climatiques: cas des populations autochtones et communautés locales autour du parc national de Boumba Bek, Est Cameroun Dissertation University of Dschang. France (1925) Rapport annuel du Gouvernement français sur l’administration sous mandat des territoires du Cameroun pour l’année 1924. ____________________ 60 Ibid: 110. 61 Republic of Cameroon (2015: 15). Daniel Armel Owona Mbarga 174 Geslin, A (2010) La protection internationale des peuples autochtones : de la reconnaissance d’une identité transnationale autochtone à l’interculturalité normative Annuaire français de droit international. IPCC / Intergovernmental Panel on Climate Change (2014) Changements climatiques 2014. Rapports de synthèse. Résumé à l’intention des décideurs, at (accessed 20-7-2018). IUCN / International Union for Nature Conservation (2010) Indigenous peoples and REDD-plus. Challenges and opportunities for the engagement of indigenous peoples and local communities in REDD-plus, at (accessed 20-7-2018). Kede EY (2017) La gouvernance climatique au Cameroun. Sociologie d’une action publique internationale en contexte africain. Kobila JM (2009) La protection des minorités et des peuples autochtones au Cameroun. Entre reconnaissance interne consacrée et consécration universelle réaffirmée. Ministry of Environment and Forests (1996) Plan national de gestion de l’environnement, at (accessed 20-7-2018). Ministry of Environment and Forests (2005) Communication nationale initiale, at (accessed 20-7-2018). Ministry of Environment, Nature Protection and Sustainable Development (2015) Plan national d’adaptation aux changements climatiques du Cameroun, at (accessed 20-7-2018). Ministry of Forests and Wildlife (2011) Projet de conservation et d’utilisation durable de la forêt de Ngoyla-Mintom. Plan pour les peuples autochtones et vulnérables (PPAV), at (accessed 20-7-2018). Mouiche, I (2012) Démocratisation et intégration sociopolitique des minorités ethniques au Cameroun: Entre dogmatisme du principe majoritaire et centralité des partis politiques. Nguegang Tayou, SA (2017) Genre et vulnérabilité des peuples autochtones au changement climatique : cas des Mbororo du Cameroun Dissertation Catholic University of Louvain. Nguiffo, S & N Mballa (2009) Les dispositions constitutionnelles, législatives et administratives relatives aux populations autochtones au Cameroun, at (accessed 20-7-2018). Republic of Cameroon (2012) Readiness preparation proposal (R-PP), at (accessed 20-7-2018). Republic of Cameroon (2015) Contribution prévue déterminée au niveau national, at (accessed 20-7-2018). United Nations Permanent Forum on Indigenous Issues (2008) Climate change and indigenous peoples, at (accessed 20-7-2018). World Bank (2010) Nouveaux horizons. Développement et changement climatique. 175 Chapter 8: REDD+ and benefit sharing: an examination of the legal framework in Uganda Hadijah Yahyah 1 Introduction Reducing Emissions from Deforestation and Forest Degradation, as well as Conservation, Sustainable Management of Forests and Enhancement of Forest Carbon Stocks (REDD+) is a voluntary initiative established under the United Nations Framework Convention on Climate Change (UNFCCC) to create financial incentives for developing countries to reduce forest-related greenhouse gas emissions.1 REDD+ activities have the potential to deliver a wide range of benefits to the climate, to biodiversity and to communities that depend on forests. By the same token, REDD+ poses risks of negative impacts, particularly if the rights of local communities are not respected, if a gender-sensitive approach is not taken and if REDD+ activities are not embedded in the overall framework of the environment.2 Uganda’s REDD+ Programme, which is implemented as a National REDD+ Process, is a national effort to contribute to the mitigation of climate change, and improve the livelihoods of local, indigenous as well as forest-dependent communities. Uganda’s REDD+ Readiness process aims to design a socially and environmentally viable national strategy for reducing emissions from deforestation and forest degradation, and a national reference scenario of emissions from deforestation and forest degradation. This takes into account the national circumstances and the emerging guidance from the global climate change convention. Benefit sharing refers to a commitment to channel some returns, whether monetary or non-monetary, back to the range of designated participants or affected communities.3 A proportion of revenue earned by the State is returned to local communities through indirect and direct benefit-sharing arrangements. Direct benefit sharing refers to cash payments to individuals or communities, and indirect benefit sharing includes other non-cash benefits, including infrastructure or community facilities, and grassroots development activities. ____________________ 1 Decision 2/COP13. 2 UNEP (2015). 3 IUCN (2012: 6); also see Lindhjem et al. (2010). Hadijah Yahyah 176 Benefit sharing is attracting increasing attention worldwide as a uniquely powerful, practical and adaptable conservation tool in natural resource management. It serves to underpin the sort of partnerships needed to involve people in development decisions that affect them genuinely and is a practical way for REDD+ and sustainable forest management to contribute to sustainable development. REDD+, which includes the conservation of forest carbon stocks, conservation and sustainable management of forests, and enhancement of forest carbon stocks, is one of the most important climate initiatives of the 21st century and is being developed into an incentive-based conservation programme. It has the potential to contribute to lowcarbon sustainable development and poverty reduction while reducing emissions and sequestering carbon.4 For REDD+ to result in lasting emission reductions and realise sustainable benefits for forest management communities and avoid making vulnerable people worse off, a system of equitable, effective and efficient benefit sharing is imperative through policy, and legal and institutional arrangements. REDD+ initiatives are increasingly taking forest governance issues into account, which helps to make it an effective instrument to slow, halt and reverse forest cover and carbon loss. Uganda is both a party to the UNFCCC, and a signatory to the Kyoto Protocol and the Paris Agreement that resulted out of the COP21 decisions in Paris, France. 2 The conceptual and theoretical basis of this chapter It is widely recognised that the conservation of tropical forests largely depends on incentivising and supporting the countries that host these forests and the people who live and work in them.5 It is also recognised that incentive mechanisms such as REDD+ can quite substantially increase benefit flows to forest managers.6 The central principle underlying REDD+ is the transfer of financial incentives from developed to developing countries to reduce deforestation and forest degradation. The scale of the benefits is usually linked to the rates of ‘forest manager’ defined here as any group or individual that depends upon the forest to generate income or to subsist, including private landholders. In this regard, REDD+ can provide substantial financial benefits to developing tropical countries. The way in which these benefits are to be distributed has become a persistent problem in REDD+. Particular concerns are that the benefits may not be equitably shared between stakeholders and that people with less power in the benefit-sharing decision-making processes could lose out.7 ____________________ 4 Ibid. 5 Wollenberg & Springate-Baginski (2009). 6 Agrawal & Angelsen (2009). 7 Griffiths (2008); Costenbader (2011). REDD+ and benefit sharing: an examination of the legal framework in Uganda 177 Peskett et al.8 and Griffiths9 argue that equity in benefit-sharing mechanisms is a fundamental condition if REDD+ is to be effective and that this, in turn, depends on the degree of local participation in the process of developing and implementing benefits. However, despite concerns raised in the literature about the impact of benefitsharing mechanisms on the effectiveness of REDD+, as reflected in overall reductions in deforestation,10 scholars have been unable to agree on how to make benefit-sharing mechanisms more equitable.11 Indeed, still lacking is a clear understanding of what benefit-sharing mechanisms entail; the types of benefits REDD+ will deliver and the processes by which the organisation will deliver them. The term ‘benefit sharing’ relates to many different instances (e.g. governance structures and institutions set up to collect compensation and rents from the provision of the ecosystem services of carbon sequestration and storage; and distribution of the direct and indirect benefits among affected stakeholders), which hampers efforts to identify the main issues and the optimum approach.12 In particular, it is not always clear what types of benefits need to be shared; how ‘legitimate’ beneficiaries should be identified, particularly in cases where deforestation is the result of illegal activities; or how benefit-sharing systems can be managed at the various levels of government (i.e. national, sub-national, local). According to the Bali Action Plan, benefit-sharing mechanisms and the related benefits will be created as part of the policy approaches and measures for REDD+. Two types of policies and standards related to benefit-sharing mechanisms have been identified: those that aim to generate compensation (benefits designed to cover the foregone opportunity costs of deforestation) and those that generate incentives (benefits designed to encourage positive behaviours).13 Both incentives and compensation can be delivered up front, to enable REDD+ to commence, or, dispensed over time, to ensure that REDD+ actions continue according to performance. In this chapter, compensation is considered as a type of incentive, because it serves to encourage conservation behaviours. Another category of policies and measures related to benefit-sharing mechanisms consists of those that aim to generate interventions.14 In this context, interventions are actions designed to create legal, administrative and technical benefits and include the regularisation of land tenure, institutional arrangements, monitoring systems and other activities that are necessary to facilitate and guarantee positive outcomes from REDD+. ____________________ 8 Peskett et al. (2008). 9 Griffiths (2008). 10 Luttrell et al. (2007). 11 Agrawal & Angelsen (2009); Johns & Schlamadinger (2009). 12 Costenbader (2011). 13 Brown (2008); and Peskett et al. (2008). 14 Ibid. Hadijah Yahyah 178 Another critical consideration is the process by which the mechanisms distribute the benefits: directly or indirectly.15 Direct benefit sharing involves giving benefits directly to forest managers (e.g. payment for environmental services or PES; and technical materials); whereas indirect benefit sharing encompasses benefits that aim to foster broader development and adaptation actions that enhance co-benefits (e.g. access to education and health services). Mechanisms would involve the delivery of benefits at both national and local levels. The choice of policies and measures to establish benefit-sharing mechanisms will affect the whole structure of a REDD+ scheme by determining who is to be given incentives to do what, and the kinds of interventions that are needed to facilitate the successful implementation of the process. 2.1 Local participation It has been argued by some scholars that active local involvement is necessary to identify beneficiaries, appropriate benefits, the timeframe for implementation and how benefits will be received, as part of the design and implementation of benefit-sharing mechanisms for REDD+ schemes.16 For this chapter, it is important to define ‘local participation’. The Food and Agriculture Organisation (FAO) of the United Nations describes participatory forestry as those processes and mechanisms that enable people with a direct stake in forest resources (i.e. local people) to take part in decision-making in all aspects of forest management, from managing resources to formulating and implementing institutional frameworks.17 More specifically, community forestry refers to a component of participatory forestry that focuses on local communities as key stakeholders for sustainability. However, the meaning of ‘local’ itself is controversial.18 Definitions of local people and forest-dependent communities, for example, are usually specific to their geographical area, and various terms are used for people who live in or near forest areas or who are from such areas.19 In this chapter, ‘local’ is defined as any group that depends on the forest to generate income or to subsist, including private landholders. These people, referred to in this chapter as ‘forest managers,’ derive substantial benefits from the forest and therefore are more inclined to manage and take care of it. They will be the first to feel the impact of any changes in the forest cover or the quality of the forest and the services it provides. ____________________ 15 Peskett et al. (2008); and Luttrell et al. (2012). 16 Santilli et al. (2005); Nepstad et al. (2007); Griffiths (2008); and Peskett et al. (2008). 17 See (accessed 1-8-2018). 18 Raffles (1999). 19 Gebara (2013). REDD+ and benefit sharing: an examination of the legal framework in Uganda 179 ‘Participation’ too can have different meanings depending on the context. Whatever the definition, participation is highly context-specific, and its effects range from coercion to full local control. There are two distinct perspectives for participatory approaches: participation as a means, i.e. to improve the effectiveness of specific interventions; and participation as an end, i.e. as a necessary tool for equity and the empowerment of marginalised groups.20 Furthermore, according to Pimbert and Pretty,21 there are different levels of participation, from simple sharing of information to transfer of power. The crucial role of local participation in the design of benefit-sharing mechanisms is to develop approaches that are flexible, suitable and able to ensure the effectiveness of forest managers’ efforts to reduce deforestation and forest degradation.22 Such methods are most likely to result from interactive and self-mobilisation participation because these types of engagements involve forest managers taking control of local decisions and resources. There is a risk, however, that benefit-sharing mechanisms will end up reinforcing the status quo and that the power of the benefits will remain in the hands of project developers or central governments, to be distributed according to their criteria,23 producing unfair outcomes. Local participation has also been found to have significant implications for related aspects of REDD+, such as monitoring activities.24 Fry, for example, argues that national systems should be built, at least partly, on community-based monitoring, reporting and verification (MRV) protocols that maximise local people’s involvement in forest monitoring and the assessment of social impacts.25 Hajek et al.26 demonstrate the potential for technological and organisational innovation when a diverse group of local and international for-profit and not-for-profit actors come together to design and implement a project.27 The literature contains a range of findings indicating the necessity of local knowledge and engagement when creating and enforcing rules for forest management.28 Overall, the results show that the design of national policies and measures should include flexible approaches for benefit-sharing mechanisms, which can be adapted to the needs of forest managers and to the area in which the REDD+ scheme is to be developed. Moreover, if changes in forest management and forest conditions are to be achieved, social change at all levels will first be necessary. Policies and measures should, therefore, include tools and subsidies to achieve such social change. ____________________ 20 Cleaver (1999); Diamond (2002). 21 Pimbert & Pretty (1995). 22 Ibid: 22. 23 Griffiths (2008). 24 Corbera & Schroeder (2011). 25 Ibid. 26 Hajek et al. (2011) 27 Corbera & Schroeder (2011). 28 Gibson et al. (2005). Hadijah Yahyah 180 2.2 Equity Equity is a critical element in the design and implementation of benefit-sharing mechanisms for schemes such as REDD+.29 The literature contains a range of equity discourses on REDD+ benefit sharing,30 and these discourses, along with ideologies and definitions associated with benefit sharing, concern a variety of objectives, ranging from the need to provide compensation for costs incurred, the need to ensure cobenefits (e.g. biodiversity) and the need to recognise legal rights and ensure fair outcomes. A significant concern when incorporating equity into REDD+ schemes is that, in order to meet the inclusion criteria (as defined in the Clean Development Mechanism), REDD+ must provide benefits to the vast majority of landowners that are likely to be responsible for the bulk of emissions from deforestation and forest degradation and this would be unfair to those who have been conserving the forests for a long time, such as indigenous communities.31 Most of the various definitions of equity are based on ideas of distributive and procedural justice,32 which are as varied as the cultures from which they originate.33 Therefore, the definition of equity will always vary from one REDD+ country to another and may change with time. Another important consideration is the way in which equity is analysed, both in the outcomes of a distributional scheme and in the process of agreeing on such a scheme.34 This distinction is described by Brown and Corbera35 as, respectively, equity in outcomes and equity in decision making,where the first refers to the distribution of project outcomes among project participants,36 and the latter concerns procedural fairness within the project framework and considers the issues of recognition and inclusion in strategic management decisions.37 Another form of representing these concepts is found in the definition of McDermott et al.38, who describe local equity as a global value of ecosystem services. They identify three interrelated dimensions of distributive equity, procedural equity and contextual equity. ____________________ 29 Pagiola & Platais (2007); Grieg-Gran (2008); Peskett et al. (2008); Pascual et al. (2010); and McDermott et al. (2012). 30 Luttrell et al. (2013). 31 Griffiths (2008); and Bond et al. (2009). 32 Rawls (1971); Dobson (1998); and McDermott et al. (2012). 33 Sachs & Santarius (2007). 34 Lind & Taylor (1988). 35 Brown & Corberal (2003). 36 Corbera et al. (2007). 37 Fraser (1997); and Corbera et al. (2007). 38 McDermott et al. (2012). REDD+ and benefit sharing: an examination of the legal framework in Uganda 181 For McDermott et al.39, distributive equity is concerned with outcomes in the allocation among stakeholders of the costs, risks and benefits resulting from environmental policy or resource management decisions and hence primarily represents the economic dimension of equity. In this context, the equitable distribution of benefits can be justified by one of the various principles: equality, social welfare, merit and need. Procedural equity, according to McDermott et al.40, refers to fairness in the political processes that allocate resources and resolve disputes. It involves representation, recognition/inclusion, and voice and participation in decision-making. Contextual equity links the other two dimensions, state McDermott et al.,41 by taking into account the pre-existing conditions under which people engage in procedures and benefit distributions and which limit or enable their capacity to do both. This concept builds on Brown and Corbera’s idea of ‘equity in access’ by incorporating context, capabilities and power. In terms of distributive equity, Pascual et al.42 summarise different economic fairness criteria that could be applied in PES schemes, including: (i) ‘compensation’, where payments compensate landholders for the foregone benefits related to the provision of environmental services; (ii) ‘common goods’, where payments are invested in common goods, so all providers benefit indirectly; (iii) ‘egalitarian’, where funds are distributed equally among all providers; (iv) ‘maxi-min’, where the aim of payments is to maximise the net benefit to the poorest landholders; (v) ‘actual provision’, where payments to landowners correspond with the actual outcome level of provision of environmental services; (vi) ‘expected provision’, where payments to landholders depend on the expected level of provision of services for a given land use; and (vii) status quo, where payments maintain previous standards of relative distribution of income among providers. This chapter adopts the view that equity in decision making will directly influence equity in outcomes, as argued by Corbera et al.,43 and employs this distinction to analyse the way in which benefit-sharing mechanisms were designed and implemented in several projects. To analyse equity in the decision-making process, the author uses Pimbert and Pretty’s44 typologies of participation to examine how local forest managers were engaged in the design and implementation of benefit-sharing mechanisms. To analyse equity in the outcomes, the author looks at the fairness of the benefits distributed.45 ____________________ 39 Ibid. 40 Ibid. 41 Ibid. 42 Pascual et al. (2010). 43 Corbera et al. (2007). 44 Pimbert & Pretty (1995). 45 Muller (2001). Hadijah Yahyah 182 This permits the inclusion of a range of economic fairness criteria,46 without the need to choose just one specific approach. Therefore, a contextualised assessment of forest managers’ needs and of the interventions that are necessary in each case appears to be a critical step in determining equity parameters when identifying the benefits and optimum benefit-sharing mechanisms for REDD+ schemes at the local level. Furthermore, as shown by Corbera et al.47, a more contextually informed definition of the benefits is critical for achieving equity in benefit sharing. 3 The forestry sector and REDD+ benefit-sharing governance in Uganda Uganda’s forests may be categorised into four broad types: well-stocked Tropical High Forests (THF) (430,888 ha); degraded THF (136,280 ha); woodland (including montane) (1,161,610 ha); and plantation forest (107,608 ha). Together they cover 1.84 million ha, approximately 10% of the country’s land area.48 Well-stocked THF are found mainly in central forest reserves (CFRs) in the west (Bugoma, Budongo, Kalinzu-Maramagambo, Katsyoha-Kitomi) and national parks (Bwindi Impenetrable, Mgahinga, Mount Rwenzori, Mount Elgon, Kibale and Semuliki). Low-stocked THF are found around the shores and islands of Lake Victoria, while woodland is found mainly in the northern, central and western regions. The eastern part of the country is largely forest-poor, except for Mount Elgon. The forestry sector in Uganda faces many challenges due to continued destruction and degradation of forests; loss of forest cover; increased pressure on forests in protected areas due to rapid degradation of forests on private lands; inadequate enforcement of forest laws; uncontrolled encroachment on forests in protected areas, especially in the central forest reserves; unclear land rights that result in issuance of land titles for land in the protected areas and disputes over land use; growing population pressures on the remaining forests; weak sector governance; political interference in the management of protected forest estate; and a resultant failure to contribute to improving livelihoods and forest-based development to the levels expected in the Forestry Policy and the National Forest Plan. According to UNEP World Conservation Monitoring Centre Uganda is among the few countries with the highest deforestation rate globally. The natural forest cover has experienced a steady decline in the area in the past decades. In 1990, forest cover was estimated at 24% of the total land area. In 2000, forests were expected to have covered ____________________ 46 Pascual et al. (2010). 47 Corbera et al. (2007). 48 FIPU (2017: xii). REDD+ and benefit sharing: an examination of the legal framework in Uganda 183 3.12 million hectares but had declined to 2.42 million hectares in 2015, about 11.8% of the total land area.49 According to Uganda’s (Intended) Nationally Determined Contributions (INDC),50 forestry sector priorities include enhancing forest ecosystems resilience through promoting intensified and sustained restoration efforts (afforestation and reforestation programmes); biodiversity and watershed conservation (including re-establishment of wildlife corridors) and encouraging agro-forestry; and supporting and encouraging efficient biomass energy production and utilisation technologies. The Government of Uganda is in an advanced stage of developing a national REDD+ strategy as a longterm measure for tackling deforestation and forest degradation, ensuring sustainable forest management, and enhancing carbon stocks and forest biodiversity conservation,51 while meeting the demands for energy and other forest products. The intended REDD+ strategy options have to be developed for enhancing positive impacts of strategy options, and reducing any likely adverse social and environmental effects on forest-dependent communities and the communities overall. Uganda has participated in REDD+ preparatory activities, e.g. institutional setup, strategy preparation, capacity building and awareness since 2008 in partnership with the Forest Carbon Partnership Facility (FCPF) of the World Bank. As a REDD+ participating country, Uganda submitted its Nationally Determined Contributions (NDCs) to the UNFCCC way before the COP21 and efforts are underway to have these implemented. The Uganda REDD+ national focal point and team are in an advanced stage of drafting the country’s national REDD+ strategy. REDD+ is part of the National Climate Change Policy (NCCP) that aims for a harmonised and coordinated approach towards a climate-resilient and low-carbon development path for sustainable development in Uganda. It is both a mitigation and adaptation action under Uganda’s Climate Change Policy (2015). The REDD+ process recognises and seeks to collaborate with a variety of climate change initiatives and programmes of government, non-governmental organisations (NGOs), civil society organisations (CSOs), private sector, forest-dependent communities and the general public to ensure that appropriate strategies for reducing emissions from deforestation and forest degradation are developed and effectively implemented. The REDD+ Readiness process also interacts with and utilises areas of synergy and complementarities with ongoing climate change initiatives at national and local levels. Since July 2013, Uganda has been implementing the REDD+ Readiness phase under the National Climate Change Advisory Committee (policy level coordination) and Ministry of Water and Environment (technical and management). The Forestry Sector ____________________ 49 GoU (2017: 5). 50 Uganda made the first submission to the UNFCCC Secretariat in January 2017. 51 See (accessed 30-3-2018). Hadijah Yahyah 184 Support Department of the Ministry of Water and Environment serves as the REDD+ Secretariat. The REDD+ Readiness activities are derived from the Readiness-Preparedness Proposals (R-PP). By the end of 2017, Uganda had made important progress in elaborating on its nationally agreed strategies and actions for reducing deforestation and forest degradation, sustainable forest management, enhancing the role of conservation of biodiversity, and enhancing carbon stocks. These strategies will be packaged into Uganda’s REDD+ Strategy and Action Plan document. Additionally, the following baselines and measures will have been developed: the National Reference Emission Level/Forest Reference Level, National Forest Monitoring System, National Forest and Safeguards Information System, Benefit Sharing Arrangements, Environmental and Social Management Framework, Forest Grievances and Redress Mechanism, and Standards for REDD+ Field activities in Uganda. In addition to the list above, Uganda’s capacity to implement the National REDD+ Strategy will have been strengthened at various scales and across different sector and players. Examples of REDD+-related projects in Uganda include: Uganda Carbon Bureau, Katoomba Group Incubator, Katoomba Group REDD+ Opportunities Scoping Exercise, the International Small Groups Tree Planting Project, and the Nile Basin Reforestation Project, among others. Benefit sharing has been highlighted as a critical aspect of all the REDD+ processes such as the Readiness-Preparedness Proposals (R-PPs). For example, most of the R- PPs and National Program Documents refer to the importance of developing benefitsharing systems and some also make commitments to transparent and equitable benefit sharing. Benefit- or revenue-sharing mechanisms in the context of REDD+ are defined as agreements between stakeholders, such as private sector, local communities, government and non-profit organisations, about the equitable distribution of benefits related to the commercialisation of forest carbon. Schroeder52 suggests the following definition for non-human genetic resources: “Benefit sharing is the action of giving a portion of advantages or profits derived from the use of non-human genetic or traditional knowledge to the resource providers to achieve justice in exchange”. In other words, benefit sharing is not an act of charitable giving – if we use resources we do not own, justice demands some form of compensation in return. Uganda’s NDC prioritises adaptation. The country continues to work on reducing its vulnerabilities and addressing adaptation in agriculture and livestock, forestry, infrastructure (with an emphasis on human settlements, social infrastructure and transport), water, energy, health and disaster risk management sectors. Sustainable Land Management (SLM) and Climate Smart Agriculture (CSA) will be scaled up to increase resilience at the grassroots level while fostering gender and social equity. ____________________ 52 Schroeder (2007). REDD+ and benefit sharing: an examination of the legal framework in Uganda 185 At the sectoral level, efforts are still underway to ensure climate change is mainstreamed into governmental policies and institutional frameworks through sectoral policies. Some of these sectoral policies were developed before climate change became the subject of a high-level policy and development priority, and although they align with the NDP II, they have not been systematically aligned with the country’s NDC and climate change objectives. Local level policies also include District Development Plans (DDPs) that are aligned with NDP II and reflect the priorities of each of the 135 districts and local governments in Uganda. The DDPs provide the main entry point for climate change priorities, particularly the integration of the NDC into local government decision-making systems. As the country moves towards activating these policies, it is in the process of: (i) establishing institutional frameworks that will disseminate action across levels of government; (ii) coordinating relevant actors (including those outside the government, such as the private sector, multilateral and bilateral partners, and civil society organisations) to rally behind the country’s climate ambitions; (iii) identifying and articulating roles and responsibilities for each actor; and (iv) establishing monitoring and evaluation (M&E) frameworks for increased accountability and transparent reporting of progress towards future goals. Already significant work is being done to articulate national objectives on climate change mitigation and adaptation. To respond to climate change impacts, the Government of Uganda has successfully leveraged international support to better understand its risks and vulnerabilities to projected climate change impacts.53 While more attention has been given to adaptation efforts, work is also being done to limit increases in greenhouse gas (GHG) emissions as the country prioritises economic development strategies. This is reflected in the country’s NDC commitment to reduce emissions by 22% (including land use, land use change and forestry (LULUCF)) by 2030, and potentially by 30% with assistance from the international community. In addition to policy frameworks, strategic plans and budgeting processes focused on priority sectors, there are other longer-term ideas being explored for future implementation. Over time, Uganda is pursuing several ambitious projects for climate action implementation. It is very close to finalising both a Green Growth Development Strategy (GGDS) and a Climate Change Bill (still in draft form). Beyond these items, there are other aims being considered and analysed to consider feasibility, general structure, delegates and partnerships to champion these items. Another initiative currently under consideration is a national budget tagging and tracking system that will allow national budget planners to identify and track expenditure on climate-related projects and ____________________ 53 These policies include the National Environmental Management Policy, the National Policy for the Conservation and Management of Wetland Resources, the National Water Policy, the National Forest Policy, the National Agricultural Policy, the Energy Policy for Uganda, the Renewable Energy Policy, the Oil and Gas Policy and Transport Policy, and the Disaster Preparedness and Management Policy, among others. Hadijah Yahyah 186 identify gaps in funding. Through coordinated efforts with development partners and international communities, the country will be better able to fill funding gaps quickly with a better understanding of project needs and potential sources. At the local government level, the district natural resources officer (the district focal point on climate change) supports the integration of climate change policies into District Development Plans and budgets. These officers sit on the district technical planning committee, as well as on the district risk reduction and management committees and the environment committees. These committees are critical for planning local government participation in NDC implementation. Uganda has gained experience with benefit-sharing mechanisms in the environment sector,54 and in joint forest management, and the country has forest legislation that provides for community forestry. Despite the apparent rationale for benefit sharing, there is still very little clarity on what benefit sharing means in the context of REDD+. 3.1 The international regulatory framework for REDD+ and benefit sharing At the international level, Uganda ratified the United Nations Framework Convention on Climate Change (UNFCCC) on 8 September 1993 and the Convention on Biological Diversity (CBD), the Kyoto Protocol, Nagoya Protocol on Access and Benefit Sharing,55 and the Paris Agreement of the COP21 in which Article 5 legitimises REDD+. The UNFCCC obliges all parties explicitly to cooperate in preparing for adaptation to the impacts of climate change and to develop an elaborate, appropriate and integrated plan for water resources and agriculture.56 The UNFCCC also obliges all parties to take climate change considerations into account in their relevant social, economic and environmental policies and actions. The Paris Agreement allows parties to make unconditional and conditional pledges to reduce emissions. Clarity will be needed regarding whether REDD+ actions included in an NDC are considered conditional emissions reductions. Uganda is effectively engaged with the international community to carry forward NDC implementation and climate change work collaboratively. Uganda joined the NDC Partnership during the United Nations Climate Change Conference in 2016 (COP22). Since then, the country has actively engaged with the NDC Partnership to identify areas of intervention, such as challenges and opportunities, available for NDC implementation. In June 2017, the NDC Partnership and implementing partners facilitated the Strategic Dialogue on Achieving Uganda’s Climate Goals, to identify ways forward for NDC implementation and corresponding Sector Strategic Investment ____________________ 54 IUCN (2015). 55 Party since 12 October, 2014. 56 Article 2 of the UNFCCC. REDD+ and benefit sharing: an examination of the legal framework in Uganda 187 Plans that connect financing with action plans to get projects off the ground. In August 2017, a follow-up mission was organised to build on previous conversations and prioritise initial support activities from the NDC Partnership to Uganda on NDC implementation. Some work between development partners is already organised by sector. The World Resources Institute (WRI) has done extensive research to uncover linkages between sustainable development goals (SDGs) and NDCs. As members of the NDC Partnership, they have the opportunity to provide assistance in ensuring that these international sustainable development and climate targets are reflected in national and sub-national performance indicators. Other members within the NDC Partnership also have a strong local presence in Uganda on climate planning activities. Since the Climate Change Department (CCD) was established, the United Nations Development Programme (UNDP), through the Low Emissions Capacity Building (LECB) Project, has built institutional and technical capacity in key sectors; supported the development of the GHG inventory unit and the national GHG inventory system; supported the development of the GGDS; and designed several Nationally Appropriate Mitigation Actions (NAMAs) through highly consultative stakeholder engagement processes. Finance has been accessed to implement two NAMAs, namely a project on wastewater treatment with funding from the Global Environment Facility (GEF) and a project to support greening public schools with funding from the NAMA Facility. In its planned support to Uganda on NDC-related activity, UNDP will focus on implementing mitigation actions, strengthening the national GHG inventory system and creating systems for gender-responsive NDC implementation. Finally, to build information systems on climate change impacts and monitoring systems, Uganda secured USD4 million from the Least Developed Country Fund, with support from UNDP, to implement the Strengthen Climate Information and Early Warning Systems in Uganda to Support Climate Resilient Development Project. Aligned with Uganda’s National Adaptation Programme of Action (NAPA), this project will allow Uganda to monitor long-range climate impacts, detect extreme events, and more quickly deliver response mechanisms that protect local people and economies.57 Building on the momentum of these existing efforts, there are several ambitious climate projects that the Government of Uganda is seeking to move forward now, including:58 the passage of a climate change bill; the establishment of a climate levy with revenues to be earmarked for financing climate action or the creation of an ____________________ 57 See (accessed 1-8-2018). 58 See (accessed 1-8- 2018). Hadijah Yahyah 188 (autonomous) climate fund, which could receive funds from development partners, the private sector, and the government; the development of robust green sectoral investment plans; and development of an expenditure tracking system to monitor resource allocation and use for climate action and NDC measures. Some groundwork has already been laid for these projects and some are at an advanced stage (including the Climate Change Bill). Ongoing support, which can be provided through the NDC Partnership, will be needed to ensure that each project is funded, implemented and monitored en route to achieving its intended objective. At the regional level, Uganda is party to the East African Community (EAC) Treaty,59 EAC Protocol on Environment and Natural Resources Management and the East African Community Climate Change Policy (EACCCP). EAC Protocol on Environment and Natural Resources Management provides that states shall develop and harmonise their laws, policies and strategies for mitigating the effects of greenhouse gas emissions and the manner and procedures for benefiting from climate change adaptation and mitigation activities and strategy. The EAC Secretariat is currently developing the East African Climate Change Strategy and Master Plan (EACCCMP) which attempts to define the region’s priority actions to address climate change. Uganda is also a party to regional treaties that could add value to the implementation of REDD+, including the New Partnerships for African Development (NEPAD), 2001; Common Market for Eastern and Southern Africa (COMESA) Treaty, 1993; and the Inter-Governmental Authority for Development (IGAD), 1986. Others include the 2001 Constitutive Act of the African Union (AU), Pan African Parliament and Africa Court of Justice, 1981; African Charter on Human and Peoples’ Rights, 2003; Maputo Convention-African Convention on conservation of nature and natural resources, and 1991 Bamako Convention on control of transboundary movement and management of hazardous wastes in Africa. Implementation of the REDD+ will benefit from experiences and lessons learned from implementation of these regional treaties. 3.2 The national regulatory framework for REDD+ and benefit sharing in Uganda The legal framework for the environmental sector is based on the Constitution of the Republic of Uganda (1995).60 For example, the Constitution obliges the State to protect critical natural resources including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda. The government of Uganda has a constitutional duty to protect forests in their natural sites from destruction by all, including private investors. The Constitution mandates Parliament to enact legislation: to preserve and ____________________ 59 Articles 111, 112, and 114 of the EAC Treaty provide for the cooperation in environment and natural resources. 60 Part XIII of the Constitution of Uganda of 1995. REDD+ and benefit sharing: an examination of the legal framework in Uganda 189 protect the environment from abuse, pollution and degradation; to manage the environment for sustainable development; and to promote environmental awareness.61 Uganda’s parliament has enacted several laws to further these constitutional objectives. They include the National Environment Act, Cap 153 (1995),62 National Forestry Policy (2002), and National Forestry and Tree Planting Act (2003). The law classifies forests into central, local, community and private forest reserves.63 Central and local forest reserves are held in trust by the national and local governments respectively. The governments are legally mandated to protect the forests for ecological, forestry and tourism purposes, for the benefit of the people of Uganda.64 However, collaborative forest management arrangements can be entered into between a respective government and a local community for the management of central and local forests. Though community forests are designated as such by the Minister in consultation with a District land board and a local community,65 the law still gives immense powers to the Minister. The powers include: to appoint a responsible body to manage a community forest and to consent to the use of community forests for any purpose other than forest conservation. It is through such provisions that those local communities lack tenure to the forests in their territories. The Uganda Forest Policy (UFP), the National Forestry and Tree Planting Act (NFTPA) and the 2016 regulations made thereunder, provide an enabling legal framework for a variety of community groups to participate in forestry and forestry management, including community forests and ownership of trees on private land. The Policy provides for improved management of forestry on land outside state control through raising awareness on land and tree ownership. The NFTPA and regulations provide for the declaration, management and use of community forests (CFs) and private forests (PFs). The forestry regulations do promote collaborative arrangements with private sector and communities including carbon sequestration credits. Other policies include the National Adaptation Plan (NAP), National Adaptation Programme of Action for Climate Change (NAPA), Second National Development Plan (NDPII) and National Climate Change Policy ( NCCP) (2015). The Uganda Wildlife Act provides for the promotion of community conservation of wildlife resources which are essential for the management of wildlife in CFs. The Land Act (1998) provides a framework for recognition of community land rights as it recognises customary land tenure66 applicable to a specific area of land and ____________________ 61 Article 245 of the Constitution of Uganda of 1995. 62 Section 18(1) of the National Environment Act, Cap 153 of 1995. 63 Section 1 of the National Forestry and Tree Planting Act of 2003. 64 Section 5(1) of the National Forestry and Tree Planting Act of 2003. 65 Section 17(1) of the National Forestry and Tree Planting Act of 2003. 66 Section 2 of the Land Act of 1998. Hadijah Yahyah 190 particular description or class of persons.67 Under the Act, the customary land is managed according to conventional regulations. The Land Act and its regulations regulate the establishment of Communal Land Associations (CLAs) and communal ownership and management of land-based resources therein by the other laws. The National Environment Act (NEA) provides for the protection of traditional uses of forests which are indispensable to the local communities.68 However, to make these effective, there are still several provisions for the government to operationalise. Other environmental related laws include: the Local Governments Act (1997); the Uganda Wildlife Act Cap 200 (of 1996);69 the Agricultural Seeds and Plant Act (1994); and the Regulations on Access to Genetic Resources and Benefit Sharing 2005. The policies include: the National Energy Policy (2002); the National Environment Policy (1995); the National Wetlands Policy (1994); the Climate Change Policy (2012); the Renewable Energy Policy for Uganda (2007); and the Uganda Wildlife Policy (2003). The policy and law are reflected in the National Forest Plan (2011).70 Also, Uganda’s National Development Plan (2010/11-2014/15) categorises forestry as a primary growth sector with prospects for investment both from the national budget and the private sector. The National Development Plan emphasises “sustainable development through preservation of natural resources such as forests”.71 The National Development Plan (NDP) also aims to increase forest cover from 3,604,176 ha to 4,933,746 ha by 2015 and has committed itself to enhance capacity for: (i) enforcing forestry law; (ii) private tree planting; and (iii) farm forestry.72 Likewise, the objectives of Uganda’s Second National Development Plan (2015/16-2019/20)73 include to increase afforestation and reforestation for sustainable forestry. Uganda’s Vision 2040 is explicit on carbon trading as a means of conserving forests for climate change mitigation. It provides that Uganda will promote carbon trade that will increase forest cover, as well as incomes of the rural communities. It further provides for the promotion of conservation programmes that will not only restore but also sustain an optimum level of forest cover in the country.74 ____________________ 67 Section 3(1) of the Land Act of 1998. 68 Section 17(4) of the National Environment Act, Cap 153 of 1995. 69 Provides for revenue sharing where 20% of the park entry fees collected from a Protected Area (PA) is given to the local government(s) of the areas surrounding such Protected Areas. 70 See (accessed 30-3-2018). 71 GoU (2010: 41). 72 Ibid: 95. 73 GoU (2015: 170). 74 GoU (2013: 99). REDD+ and benefit sharing: an examination of the legal framework in Uganda 191 3.3 Institutional arrangements for REDD+ benefit-sharing governance in Uganda Governance can be described as being about the use of power to make and enforce decisions. Decisions regarding how forests are managed and used involve a wide range of stakeholders. In Uganda, the government is responsible for management of forests in protected areas and therefore it is a government which decides on how the forests are managed and how the local communities are engaged in the decision-making process. Nevertheless, the communities use the forests for their livelihoods, and thus there are often running conflicts on access. In areas where Collaborative Forest Management (CFM) or Collaborative Resource Management (CRM) is being practised, both sides have moved closer in reconciling their perceptions on resource use. The critical forestry sector institutions include the Community Forest Management Unit under the National Forestry Authority (NFA) which is in charge of managing the 506 CFRs and providing specific technical services; the Community Conservation Division under Uganda Wildlife Authority (UWA) which manages the forests in the National Parks and Wildlife Reserves; the Climate Change Unit and the Forest Sector Support Department under the Ministry of Water and Environment which is in charge of policy, sector coordination and support to districts; and the District Forest Services which provide decentralised forestry services in all districts and manage local forest reserves. Other key actors in forest management include the National Environment Management Authority which coordinates and supervises all environmental issues in the country. The Ministry of Finance, Planning and Economic Development is responsible for directing national development and allocating the necessary financial resources. Donors, NGOs and the private sector (landowners and forest owners) contribute actively to forest management especially by implementing those activities constrained by funding or whose management is not suitable for government service institutions. One of the challenges is the short-term cycle of their projects and duplication of activities due to poor coordination. Also, there is tenure insecurity among land and forest owners that can provide a disincentive to forestry investment. 3.4 Case examples of benefit sharing mechanisms in Uganda The Uganda Wildlife Authority (UWA) is obliged to share 20% of its park entry fees with the local governments adjacent to the forest reserves. This obligation is based on the acknowledgement that communities on the frontline of protected areas endure a disproportionate burden of the costs associated with the conservation of protected areas.75 The Uganda Wildlife Act is operationalised by the Uganda Wildlife Authority ____________________ 75 Katoomba Group (2009); REDD-net (2010). Hadijah Yahyah 192 Revenue Sharing Guidelines (2012). These guidelines identify the tripartite aims of benefit sharing as: • providing an enabling environment for establishing good relations between the protected areas and their neighbouring local communities; • demonstrating the economic value of protected areas and conservation in general to communities neighbouring protected areas; and • strengthening the support and acceptance for protected areas (PAs) and conservation activities from communities living adjacent to these areas. The guidelines also provide the criteria for the selection of community projects to fund, using the money received. The requirements comprise two parts: i) contribution to the reduction of human–wildlife conflict; and ii) contribution to the improvement of livelihoods of households in frontline local council. The Mount Elgon Regional Conservation Programme (MERECP) uses the concept of community revolving funds (CRFs) to distribute benefits to communities based on performance, measured by their contribution towards the enhancement of planted forests. CRFs are extended to community groups, non-government organisations (NGOs) and community-based organisations.76 CSOs like the Environmental Conservation Trust of Uganda (ECOTRUST) are implementing payments for ecosystem service (PES) schemes that have benefit-sharing arrangements that could provide lessons for future REDD+ community projects. 4 Key issues arising Poor law enforcement – despite the existence of sound policies, laws and regulations – has resulted in an illegal cross-border timber trade in contravention of Uganda’s international commitments on trade in wild fauna and flora, in deforestation for charcoal and firewood and in unsustainable harvesting of timber. Poor standards of governance in Uganda’s public administration are recognised as a significant concern by the Government of Uganda across all sectors, including forestry.77 Poor governance lowers compliance with environmental and other regulations and is compounded by the lack of coordination between key actors in related sectors like forestry, agriculture and wetlands, trade and investment. Conflicting decisions are often made, for example with those seeking development investments nearby or within forest and wetlands areas which are incompatible with conservation objectives. Gaps remain in Uganda’s policy and legal frameworks about REDD+. For example, inadequate licensing of the carbon trade and definitions of carbon rights could potentially affect implementation of the REDD+ strategy. Unclear laws may allow ____________________ 76 Mwayafu & Kimbowa (2011). 77 GoU (2010). REDD+ and benefit sharing: an examination of the legal framework in Uganda 193 landowners to make land use choices (for instance a return to commercial agriculture) based on market opportunities rather than on REDD+ contractual obligations that may emphasise forest conservation. There is no standard benefit-sharing mechanism in Uganda. Some benefit-sharing mechanisms are currently being used in natural resource management (NRM), but until the benefit-sharing mechanism is harmonised at the national level, implementation of REDD+ projects and programmes will remain problematic owing to lack of guiding principles to address sociocultural, economic and ecological concerns, high coordination costs owing to a lack of established mechanisms for government institutions to collaborate, the existence of bureaucratic red-tape, differing approaches and conception of issues due to different professions and conflicting roles. This results in separate ministries with well-protected territories buttressed and prioritised by development partners. There is concern that many of the proposals to tackle the drivers of deforestation and forest degradation do not take into account or seek to address the economic aspects of the trade in illegal charcoal, firewood and timber; including the provision of economic alternatives for those engaged in these activities. These proposals could be more useful if they incorporate more technology transfer options (like improved charcoal kilns and selection of suitable tree species) and skills and entrepreneurship development for nature-based activities that are compatible with forest conservation. There is little understanding among citizens of what implications REDD+ might have at the national and local levels. While the process of developing the R-PP involved stakeholder consultations, many people remain unaware of the REDD+ mechanism. For example, the R-PP consultations turned out to be mostly REDD+ awareness sessions. Therefore, there is a need to ensure that the next steps – like the development of the REDD+ strategy – build in robust awareness creation alongside the consultation processes to secure meaningful participation and the views of forest stakeholders. There are several challenges cited in the implementation of the CFM arrangements, which should serve as learning points for REDD+ architecture. The most significant challenge is that the law does not provide for benefit-sharing mechanisms for the communities participating in CFM arrangements. That is, for the higher-ranked resources like poles and timber, without apparent benefit guidelines, NFA cannot provide proportionate returns to the communities from the different concessions. Till the present, NFA has used an unstructured case-by-case method to offer returns to participating communities. As a result, some of the communities reported some levels of dissatisfaction with the way NFA has implemented the signed agreements. It may serve as a disincentive for the currently enrolled Community Best Organisations (CBOs) to meet their obligations, but also a deterrent for any new CBOs to engage in CFM arrangements. NFA, on the other hand, reported that CFM arrangements carry high transaction costs for negotiating and enforcement. Hadijah Yahyah 194 Further, the CBOs reported that the groups had not been supported to start up alternative livelihood activities and this makes them still dependent on forest resources. Also, they stated that the CFM/NFA agreements had never been reviewed (since 2002) and yet some essential elements were missed out in the first document. But also several socioeconomic changes warrant revisions of some sections in the documents. Although CFM and CRM as known under the Uganda Wildlife Act for central management of forests and wildlife protected areas (national parks and reserves) in Uganda are well-embedded in policy and practice, CFM has no adequate provision for benefit sharing. Also, there is no role of local governments in the management of Central Forest Reserves (CFRs). The Forestry Act recognises community forests (CFs), but there has not been an active registration of CFs. There are guidelines for registration, declaration and management of community forests which regulate access to the CFs through setting up community institutions for equitable governance, registration and planning for sustainable management of the CFs. The guidelines provide that CFs should develop a management plan that reflects the needs of all stakeholders in the CFs, including non-members. There are also guidelines for registration and management of private natural forests which help private forest owners (PFOs) to bring their natural forests under responsible forest management. The instructions enable PFOs to advocate for incentives for improved management of natural forests and the accompanying flow of benefits to the stakeholders. However, the procedure and requirement for developing Forest Management Plans (FMPs) are deemed complicated and too technical for community or private forest owners. The Forest Management Plans are linear on paper but cyclical in practice, hence the need to better translate and explain how regulations work in practice. The NFTPA allows domestic use of forest produce by local communities but still does not define tenure rights. The rights and benefits are left to be established in individual CFM agreements merely as interests to recognise in the FMP. The NFA developed guidelines for CFM that provide for public participation in forest management. However, these policy frameworks do not provide guidance on the publicity of information on access to land for forest plantation establishment. The Uganda Wildlife Act provides clear terms for historical rights of individuals in Wildlife Conservation Areas (WCAs), but there are no guidelines for recognition and formalisation of these rights. The Forestry law provides for a national tree fund meant to provide a financing mechanism to promote tree planting and growing efforts of a non-commercial nature, among others; however, the fund is yet to be established. While the procedures for responsible forest management, including partnerships with the local communities, are provided for in the policies and laws of Uganda, the practice on the ground often falls short of these policy ideas. In a study titled “The Effectiveness of Collaborative Forest Management as a Means of Engaging Local Communities in Forest Conservation”, 30% of the respondents expressed little or no REDD+ and benefit sharing: an examination of the legal framework in Uganda 195 satisfaction with the CFM arrangements.78 At the top of the list is corruption, which is intimately connected with the appropriation of benefits intended for the local communities by the wealthy. For example, in Budongo Central Forest Reserve (CFR), CFM communities had been promised that they would be allowed to convert into charcoal the branch wood left by timber harvesters. However, the top leadership of the National Forestry Authority (NFA) did an about-turn and sold the branch wood to the same timber cutters without the knowledge of the local community partners. In another incident in Bugoma CFR, CFM groups reported a local wealthy timber businessman who had been licensed to grow trees in the grassland within the CFM area. The CFM agreement had provided that land for tree growing in the CFR would be one of the benefits accruing to the local community partners, but the NFA went against this provision in the agreement.79 Therefore governance in the forestry sector is an essential consideration for the design of REDD+ benefit-sharing mechanisms. This is especially important regarding benefits intended for local people, because they may not be able to marshal sufficient power to fight for their contractual rights unless their capacity to this effect is built. 5 Conclusions and recommendations 5.1 Conclusions Although there are some provisions on benefit sharing in the different instruments, specifically in Uganda’s forest legal and policy frameworks, they are weak in respect of benefit-sharing issues. The institutional gaps and implementation challenges make this situation worse. The major policy, legislative and institutional gaps and implementation challenges include: a lack of a comprehensive policy on costs and benefit sharing with clear mechanisms and approaches for benefit sharing; a lack of benefit-sharing guidelines to guide the effective implementation of existing legal and policy provisions; a lack of full information on the benefits available for sharing; weak community institutions that cannot negotiate for adequate benefits and enforce rights; weak linkages of government institutional frameworks with other stakeholders; limited participation of communities in benefit-sharing decision-making processes; and unwillingness by the forest authorities to give real power or authority for forest management to the local communities. Furthermore, in the context of collaborative forest management arrangements, governments transfer their role and responsibilities to communities adjacent to forests without enough support and corresponding benefits. ____________________ 78 Nsita (2012). 79 IUCN (2012). Hadijah Yahyah 196 The benefit sharing that takes place in Uganda has not had any significant impact on either the livelihoods of people or the forests. The arrangements and processes in their current form are ineffective in ensuring sustainable forest management and improved community livelihoods. There is a need for serious adjustment. Although the communities living adjacent to forests receive some benefits, they do not feel they are adequate. The poor people, who constitute the majority of those who live near the forests, are getting mainly firewood, herbal medicines, crafts materials, etc. for domestic consumption as benefits. These do not provide sufficient incentive to communities to focus on conservation. The communities know that valuable forest products like timber and land for tree planting are often enjoyed by those who are relatively better off, usually well connected politically and socially, and often staying far away from the forest and thus removed from the threats to livelihoods that originate from the forest, such as crop raiding, human injury and insecurity. The impact of benefit sharing on livelihoods is perceived as insufficient, because the anticipated increased incomes are unrealised and do not reflect any investment in changing lifestyles, e.g. investments in economic activities, such as local transport and small to medium enterprises. Only a few local forest people feel the impacts tied to food security and change in nutrition habits, which help to maintain healthy households. Regarding institutions, the Government of Uganda has made efforts to escalate climate change as one of its priority areas on the development agenda.80 This is demonstrated by its commitment to creating an institutional-enabling set up to manage and monitor climate change issues – which, in turn, serves as an excellent opportunity for implementation of the REDD+ projects. For example, in 2008, the Government of Uganda with financial support from the Royal Danish Embassy created the Climate Change Unit (CCU) in the Ministry of Water and Environment, to coordinate all issues concerned with climate change in Uganda. However, the CCU is understaffed, and this presents a challenge at grassroots level. The staffing gap is expected to be filled by employing other teams in the local governments, and by integrating climate change adaptation and mitigation in their sector plans. There is a willingness to incorporate a climate change unit within government structures. It is necessary that the local government and central government teams have their capacities developed to handle deforestation and forest degradation issues. Where broad jurisdiction mechanisms are involved, distribution of REDD+ benefits through regular government (central and local) budget processes could be used, because the policies and procedures are well established. However, reflection on challenges that affected the implementation of the policies and procedures makes this a problem. Widespread corruption, lack of transparency, misappropriation of public funds, inherent bureaucracies and inflexible systems of procurement and financial management – which are characteristic of otherwise well-intentioned programmes – ____________________ 80 GoU (2016). REDD+ and benefit sharing: an examination of the legal framework in Uganda 197 will impact negatively on REDD+ benefit sharing. It will be quite a task to design REDD+ benefit-sharing arrangements that will be free from these vices if the methods are based on standard budgeting processes. 5.2 Recommendations There is a need to set up a statutory national REDD+ institution. It should either be constituted as a separate law, or the institution could be placed, distinctly, within the Tree Fund which is already provided for in the NFTP Act and the accompanying Forestry Regulations. A semi-autonomous institution could be designed to overcome most of the drawbacks that characterise implementation of the normal government budgets. The development of an enabling environment for forestry management could include: community forest management groups, forest law enforcement and governance, and strengthening forest institutions responsible for forest management and development. Experiences of the current benefit-sharing initiatives in the forestry sector make it clear that REDD+ payments alone will not be enough to give sufficient motivation to all parties involved in working efficiently towards responsible forest management (RFM). Unless a clear rationale for distributing the benefits is developed, conflicts among eligible beneficiaries will arise around how benefits and interest are distributed. To ensure equitable sharing of benefits and participation through mechanisms designed for payments to be made in such a way that the best performers get more, and the nation-performers get nothing, the REDD+ implementation programmes should be designed to build the capacity of the local people, so that all eligible stakeholders can play their roles efficiently, and thus equitably share the benefits that accrue. This will minimise the frustration among the poor people who may have capacity inadequacies and thus be unable to attain what REDD+ considers best performers compared to the benefit-sharing arrangements prescribed by law. CFM and CRM are legally recognised but not overly prescriptive about what to do or not to do. This provides a flexible mechanism in which to deal with matters of equity. There should be sharing arrangements specifying in broad terms as to the benefitsharing principles and a framework within which benefit-sharing agreements can be negotiated. To the extent that the policies and agreement framework should be included in the Forestry Regulations, the passing of the Climate Change Bill into law is long overdue. The decision-making bodies should be intimately involved in the channelling of REDD+ cash payments to eligible beneficiaries. Also, the capacities of the communities involved should be built to enable them to spearhead community-based advocacy when their rights are threatened. Frameworks that provide space for communities’ voices and participation in the process need to be made very clear and enhanced. Hadijah Yahyah 198 Land/forest tenure lies at the heart of legitimate and equitable benefit-sharing arrangements. Tenure systems are recognised legally or by custom in Uganda, but the holders of the ownership/use rights are not as vigilant as it seems at first sight because they are multi-layered. This will therefore affect how REDD+ programmes are implemented, and thus how the benefits are shared. The land and forestry policies and laws provide general guidance on ownership and user rights/privileges. The forestry rules and statutory guidelines should specify what accrues to whom, especially in tenure types where ownership/use is multilayered. The poor people and local communities should be assisted with forming legal entities with titled/registered owner of land and forest holdings. However, it should be kept in mind that the carbon benefits may trigger a scramble for land grabbing by those who can secretly process land titles. Sufficient safeguards should be included in the registration process to ensure transparency. The deliberate and demonstrable commitment of politicians at local and national levels should be generated before REDD+ programmes can be rationally effective. This also calls for an early start on concretising the conflict and grievous mechanism included in the REDD+ National Strategy. What is required is an analysis of the NDC to establish baselines and cost implementation strategies (mirroring the NCCP Cost Implementation Strategy), the establishment of an improved data collection system linked with the National Statistics Office and the establishment of a robust MRV system that can be equally applied to goals and targets within the SDGs, NAP, NDCs, GGDS, NCCP and NDP II, as well as across sub-levels of government. There is also a need to ensure that the various policies are aligned with each other so that efforts to implement any one of them are not redundant. This is especially true of the SDGs, NAP, NDCs and GGDS where effects are economy-wide and have large implications across sectors and ministries. As this work gets underway, the NDC Partnership members are already planning and implementing several projects that are working towards the country’s NDC goals. References Agrawal, A & A Angelsen (2009) Using community forest management to achieve REDD+ goals. 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CIFOR Info brief No. 21. 201 Chapter 9: Regulatory preparedness for non-motorised transport in Nairobi Edna Odhiambo 1 Introduction 1.1 Global climate change and transport There is scientific consensus that human activities are inducing dangerous warming1 and the consequences will be severe and widespread. Droughts, floods, wildfires, heat waves, ocean acidification, sea level rise, among others, continue to threaten ecosystems and ultimately endanger human livability on earth.2 Consequently, urgent and concerted climate action is needed to avert a looming catastrophe. The Paris Agreement is a universal legally binding treaty adopted in 2015 and came into force in November 2016 as the successor to the Kyoto Protocol in an attempt to curb climate change. In stark contrast to Kyoto’s top-down model of internationally set binding emission reduction targets, the Paris Agreement has adopted a bottom-up approach to addressing emissions through the Nationally Determined Contributions (NDCs). Each party drafts their own NDCs, which represent the nation’s climate action plans taking into account local priorities and unique circumstances. Transport contributes towards 23% of global greenhouse gas (GHG) emissions and is the second largest source of CO2 from fossil fuel combustion after the power sector.3 This figure is set to rise particularly with the growth of emissions from road transport.4 An analysis of 133 NDCs reveals that 76% of the parties intend to mitigate emissions from the transport sector with a focus on urban transport.5 Urban transport constitutes 40% of total transport energy consumption6 and projections indicate that it will double by 2050.7 This chapter postulates that the NDCs under the Paris Agreement present an opportune moment to advance low-carbon mobility options such as non-motorised transport (NMT) into city transport planning. ____________________ 1 IPCC (2014: 4). 2 Ibid: 2, 5 and 8. 3 Ibid. 4 Partnership on Sustainable Low Carbon Transport (2015). 5 Ibid. 6 Sims et al. (2014). 7 International Energy Agency (2013). Edna Odhiambo 202 1.2 Benefits of NMT 1.2.1 Emissions abatement NMT substantially reduces GHGs from the transport sector because it is a viable alternative to motorised options, particularly for short trips and last mile connectivity. According to a study conducted in Mumbai, converting 10% of roads into NMTfriendly infrastructure will result in a reduction of carbon dioxide emissions by 7.63 million tons over the next five years.8 This is a good indication of NMT’s potential to address climate emissions from the transport sector. In many cities, including Nairobi, the lack of sufficient baseline data on NMT is a barrier to calculating the actual emission abatements achieved from NMT options such as walking and cycling. The importance of data will be canvassed below in subsequent parts of this chapter. 1.2.2 Increased economic opportunities Studies conducted indicate that improved NMT infrastructure can increase economic productivity and development.9 Such infrastructure increases local retail sales and property values because people walking and cycling are more likely to purchase goods and services as they pass by shops.10 NMT facilities attract residents and industries that value environmental quality, physical fitness and outdoor recreation.11 A study that evaluated the effects of walkability on the housing process concluded that walkability had a statistically significant positive impact on housing values.12 In a typical metropolitan area, each walk score point13 increase was associated with a $700 to $3,000 increase in home values.14 1.2.3 Health NMT, also known as active transport, can substantially improve the health of citizens. According to the World Health Organization, approximately three million deaths are ____________________ 8 Yelda (2015). 9 Victoria Transport Policy Institute (2004). 10 Local Government Commission (2001). 11 NBPC (1995); NAR & NAHB (2002); According to a survey of 2,000 representative homebuying U.S. households, 27% would like to be able to walk to more places from their home, and the following community amenities rated important or very important: jogging/bike trails (36%), sidewalks (28%), and shops within walking area (19%). 12 Litman (2010: 22). 13 Carr et al. (2010: 460). 14 Litman (2010: 23). Regulatory preparedness on non-motorised transport in Nairobi 203 recorded annually as a result of outdoor air pollution.15 Heavy motorisation is a major cause of air pollution, which can be mitigated by increased investment in NMT, which reduces congestion and in turn promotes better air quality. Additionally, walking and cycling encourage healthy lifestyles because of regular activity. This has a direct impact on reducing risks of lifestyle disease such as diabetes, cardiovascular diseases, high blood pressure and obesity. 1.2.4 Safety According to the Nairobi NMT Policy, pedestrians constitute the highest number of road fatalities.16 47% of the population in Nairobi make their journeys on foot, implying that the majority of the population is most at risk due to inadequate investment in NMT facilities.17 If NMT infrastructure is prioritised, a safer city for the majority of the citizenry will be achieved. 1.2.5 Accessibility Non-motorised transport, particularly walking and cycling facilities, can improve the lives of many citizens through better access to economic opportunities, health care services and social engagements. It can also reduce the amount of money spent by families on transport, particularly in the low-income bracket. One study indicates that approximately 8-16% of household income, and in some cases even 25% of it, is spent on transport.18 With options such as walking and cycling, many can have an option of low-cost transport, and this greatly reduces inequities in cities. 1.3 Kenya’s transport sector emissions Kenya’s NDCs seek to reduce emissions by 30% by 2030 relative to the business as usual scenario of 143 MtCO2eq.19 Low carbon and efficient transport systems have been listed as one of the intended mitigation measures.20 The transport sector contributed 11% (9.1 MtCO2e) of total emissions in Kenya.21 This figure is projected to ____________________ 15 See (accessed 16-2-2018). 16 Nairobi City County Government (2015: 5). 17 Ibid: 3. 18 See (accessed 5-3-2018). 19 Ministry of Environment and Natural Resources (2015: 1). 20 Ibid: 73. 21 Ibid. Edna Odhiambo 204 increase to 15% (21.0 MtCO2e) by 2030 due to an increase in the number of passenger and freight vehicles.22 According to the National Transport and Safety Authority (NTSA), Kenya is projected to have 4,141,189 vehicles in 2020 of which approximately 46% will be privately owned cars. Vehicle increase is set to rise annually at an average rate of 10%.23 These statistics justify the need to invest in sustainable mobility such as NMT in the country’s cities if Kenya is to decrease emissions from the transport sector. 1.4 Status of NMT in Nairobi NMT caters for an average of 47% percent of daily trips in Nairobi with the rest being provided by public transit and private cars respectively.24 Despite this being the most used means of transport, there has been little improvement of NMT infrastructure over the past fifteen years.25 NMT is marred with poor infrastructure mainly due to the lack of implementation of an integrated transport regulatory framework that supports multi-modal transport. The popularity of NMT is not attributed to choice or convenience, but rather, it is the only alternative for many citizens who are not catered for by an inefficient public transport system and high costs of motorised transport.26 Much focus has been placed on road expansion and increased motorisation in a manner that does not cater for multi-modal transport. Secondly, the privatisation of public passenger transport has led to stiff competition and an over-supply of vehicles. This, in turn, is causing congestion in the city, encroachment of the few NMT spaces as well as aggressive and unsafe driving adversely affecting NMT users.27 NMT users are most at risk of road fatalities, making it the most unsafe means of transport. According to road accidents data for 2010-2016 illustrated in Figure 1 below, pedestrians account for the highest number of road fatalities, and in 2016, 65% of traffic fatalities were pedestrians.28 ____________________ 22 Ibid. 23 National Transport and Safety Authority (2016). 24 Nairobi City County Government (2015: 3). 25 Ministry of Environment and Natural Resources (2015: 75). 26 Ibid: 73. 27 Ibid: 81. 28 Cummings & Obwocha (2018). Regulatory preparedness on non-motorised transport in Nairobi 205 Figure 1: Traffic fatalities in Nairobi by road user, 2010-201629 Statistics from NTSA indicate that 1,097 people died in road accidents by 11 May 2017, of which 416 were pedestrians.30 By September 2017, the figure had risen to 714 pedestrians and 36 cyclists.31 These figures are set to rise if updated to include fatalities from September to December. On 31 December 2017, 36 people died in a road carnage after a road accident along the Nakuru-Eldoret highway.32 These figures reiterate the need to share the road and make it more conducive for other users besides vehicles. 2 Legislative framework for NMT in Nairobi 2.1 Constitution of Kenya, 2010 The Bill of Rights provides that all Kenyans have a right to a clean and healthy environment.33 NMT plays a crucial role in mitigating air pollution from the transport sector and promoting a cleaner and healthier environment. Generally, the transport sector has a role to play in realising other rights such as equality, dignity, security, health, movement and reasonable access. The Constitution further provides for county government functions regarding transport.34 These include county roads, street lighting, traffic and parking, and public road transport. Therefore, counties have an essential role in promoting NMT infrastructure and other sustainable modes of transport. ____________________ 29 Data from NTSA (2017). 30 Anjali (2017). 31 Wanambisi (2017). 32 Openda (2017). 33 The Constitution of Kenya (2010), Article 42. 34 The Constitution of Kenya (2010), Fourth Schedule. Edna Odhiambo 206 2.2 NMT in transport legislative framework 2.2.1 The Kenya Roads Act, 2007 The Act was enacted to provide for the management and provision of road infrastructure including NMT in all classes of roads. Under part two, Section 3(1), the Act establishes the Kenya National Highways Authority (KeNHA) which is responsible for the management, development, rehabilitation and maintenance of national roads. Similarly, it establishes the Kenya Urban Roads Authority (KURA),35 which is responsible for the management, development, rehabilitation and maintenance of all public roads in the cities and municipalities. In this context, KURA has a role to play in addressing NMT challenges in Nairobi county’s roads such as encroachment of pedestrian pathways, provision of walking and biking paths on roads, maintenance of NMT infrastructure and securing safety of NMT users. 2.2.2 National Transport and Safety Authority Act (NTSA), 2012 NTSA has the mandate to provide safe, reliable, efficient road transport and to implement policies relating to these issues. NTSA deals with registration, licensing and inspection of motor vehicles, educating the public on road safety, safety audits, compilation of road accident statistics, and overseeing testing and licensing of drivers.36 Bearing in mind that pedestrians account for approximately 50-60% of road accident fatalities, these functions of NTSA play a crucial role in ensuring the safety of NMT users. Further, the functions of safety and efficiency have implications for NTSA to ensure that transport policies adequately factor in low carbon mobility options such as NMT. 2.2.3 Traffic Act, 2015 This Act establishes the law relating to traffic on all public roads. Provisions on licencing of vehicles, speed limits, signage, and traffic offences go a long way in safeguarding NMT users and infrastructure. In particular, the Act criminalises offences that have been the leading causes of pedestrian deaths in Nairobi, such as: driving under the ____________________ 35 The Kenya Road Act, Section 9(1). 36 National Transport and Safety Authority Act (NTSA) (2012), Section 4(2). Regulatory preparedness on non-motorised transport in Nairobi 207 influence of drink;37 driving on pavement;38 pedestrian walkway, reckless driving and causing death by driving or obstruction;39 reckless driving;40 and driving without due care or attention.41 Drunken driving is a leading cause of pedestrian deaths. The Traffic (Breathalyser) Rules (2011) operationalise NTSA’s mandate to ensure safety on roads by curbing drunk driving, an offence under the Traffic Act. NTSA used breathalysers to arrest and charge drunk drivers. Rule 3 of the Breathalyser Rules states as follows: Alcohol prohibition: (1) No person shall drive, attempt to drive or be in charge of a motor vehicle on a road or other public place if the person has consumed alcohol in such quantity that the blood alcohol concentration in his body is beyond the prescribed limit. (2) A person who contravenes sub-rule (1) commits an offence under section 44(1) and 45 of the Act. However, this was challenged in court,42 and it was held that drunk-driving should be charged under traffic laws, not breathalyser rules. The court noted that the breathalyser rules did not introduce any new offences other than those in the Traffic Act, adding that there is need to amend the Traffic Act to align it with the breathalyser rules. Subsequently, NTSA stated that it would apply Section 44 (1) of the Traffic Act, which outlaws driving under the influence of alcohol or substances. Whichever section of the law is invoked, it is necessary to ensure that NTSA’s mandate to protect road users is facilitated and not derailed by technicalities. Parliament should harmonise the provisions of the law to create an enabling environment for institutions to carry out their responsibilities. Additionally, coordination of the roles of the Kenya Roads Board (KRB), KeNHA, KURA, and NTSA is vital to avoid overlaps and conflicts as well as allow for efficient use of resources. 2.2.4 Kenya Roads Board Act, 1999 KRB is charged with coordination and implementation of all policies relating to the maintenance, rehabilitation and development of the road network with a view to achieving efficiency, cost-effectiveness and safety. Rehabilitation and safety of roads have direct implications for NMT. As part of increasing NMT infrastructure, several roads in Nairobi will have to be rehabilitated to include NMT options. ____________________ 37 Traffic Act (2015), Section 44. 38 Traffic Act (2015), Section 45A. 39 Traffic Act (2015), Section 46. 40 Traffic Act (2015), Section 47. 41 Traffic Act (2015), Section 49. 42 Reminisce Sports Bar Limited t/a Reminisce Bar & Grill & 3 others v. Cabinet Secretary Ministry of Transport & 7 others (2017) eKLR. Edna Odhiambo 208 2.3 NMT in the climate change legislative framework 2.3.1 Kenya Climate Change Act, 2016 The Act states that the National Climate Change Plan shall prescribe measures to enhance energy conservation, efficiency and use of renewable energy in industrial, commercial, transport, domestic and other uses.43 Unfortunately, the National Climate Change Action Plan (2013-2017) makes no mention of investing in NMT as a climate mitigation strategy. It prioritises development of mass transit options such as bus rapid transit (BRT) and light rail transit (LRT) to the exclusion of NMT.44 The Plan has not fully embraced the features of multi-modal transport and fails to cater for other forms of low carbon mobility. According to a 2016 meeting on the Transport Sector NDC Analysis, an NMT study by the University of Cape Town on behalf of United Nations Environment Program is underway to document GHG abatement emissions, and some models for Nairobi may be available.45 The report notes that:46 The challenge remains in realising significant emission reductions from NMT given that the trend (at least in the short to medium term) is that bulk of commuters who cannot afford to travel by vehicles today will do so when they can and finally shift from using PSVs to purchasing personal cars. This statement demonstrates why integrating NMT as a preferred mode of travel for short trips and last mile connectivity will have a long-term impact on emission reductions. Additionally, the NDC sector analysis report states that:47 [NMT] is not considered as a priority mitigation option. The justification provided is that NMT emission reductions are not significant on a national scale, and levels of NMT will decrease over the coming decades if the government meets its development targets. Further, there is a significant overlap with the options for mass rapid transit systems. If designed and priced well, the improved access to transport services and reduced transport inefficiencies resulting from improved transit systems will greatly reduce the number of journeys undertaken by foot. This approach may be problematic in the long term. Firstly, the analysis concludes that NMT’s emission reductions are not significant on a national scale. Such assertions are not backed by baseline studies and projections. There is no data from evidence showing the impact of NMT on emission reductions. In fact, as will later be highlighted in this chapter, NMT has been lumped together with intermediate transport in some policies making it impossible to have any disaggregated data and targeted policy interventions on NMT. ____________________ 43 Kenya Climate Change Act (2016), Section 13(3)(j). 44 Ministry of Environment and Mineral Resources (2013). 45 Ministry of Transport, Infrastructure, Housing and Urban Development (2016: 5). 46 Ibid. 47 Ministry of Environment and Natural Resources (2015: 81). Regulatory preparedness on non-motorised transport in Nairobi 209 Secondly, the analysis adopts a narrow approach to NMT as it focuses exclusively on walking. While walking is the most popular, other modes of NMT, particularly bicycling, may grow if investment in infrastructure is made and proper integration is done. Adopting a multi-modal approach cannot be overemphasised as citizens need to have a choice as to what is the most appropriate and convenient means of access to goods, services and each other. Thirdly, inadequate prioritisation and investment in NMT will push more residents to purchase private vehicles once they can afford to do so because public transport cannot be the panacea for all transport challenges. This does not adequately address the emission challenge from the transport sector. The efficiency of public transport is a fallacy if it does not encompass multi-modal forms of mobility. NMT becomes particularly vital since it is the most convenient for short trips and last mile connectivity. 3 Policy framework for NMT in Nairobi 3.1 Nairobi County Government Non-Motorised Transport Policy, 2015 The County Government of Nairobi has adopted an NMT Policy, which aims to make NMT “the mode of choice as a safe and reliable means of transport”.48 It recognises NMT as an effective means of mobility particularly for short trips and for last mile connectivity compared to the proposed mass transportation systems. The County is cognisant of NMT’s advantage as a low carbon emitter. The Policy reiterates the following challenges facing NMT in Nairobi: lack of NMT provision, encroachment of NMT spaces; high accident rates; weak land use development and planning; traffic congestion; radial network system; and inefficient public transport.49 Its geographical scope is rather limited as it provides an analysis of a survey conducted along two road corridors – Jogoo and Juja.50 Commendably, it lays out targeted strategies (represented in Table 2 below)51, which go a long way in providing targets for monitoring and evaluating progress. Additionally, it pledges at least 20% of the County’s transport sector budget for NMT and public transport services and infrastructure.52 ____________________ 48 Nairobi City County Government (2015). 49 Nairobi City County Government (2015: 4-5). 50 Ibid: 6-12. 51 Ibid: 20. 52 Ibid: 23. Edna Odhiambo 210 Table 1: Outputs and outcomes of the policy Local NMT planning is a step in the right direction. A report by UNEP reveals a growing trend among African countries to localise the development of NMT policies.53 Localisation allows for the development of tangible informed targets derived from broader policy statements agreed upon nationally. Secondly, this gives sub-national governments the mandate to allocate budgetary resources for the improvement of NMT and effectively participate in monitoring and evaluation of it. Nevertheless, national NMT policies are equally important in encouraging synergistic efforts between the central and local governments. The Policy is lacking in adequate baseline data and even admits to presenting outdated information due to a lack of documentation on NMT.54 However, this challenge is not unique to Nairobi. According to UNEP,55 lack of available baseline data is a major issue in monitoring and implementing NMT policies. Collecting baseline data on NMT varies from data collection principles used in motorised transport. NMT has ____________________ 53 UN Environment (2016: 19). 54 Nairobi City County Government (2015: 4). 55 UN Environment (2016: 19). Regulatory preparedness on non-motorised transport in Nairobi 211 characteristics such as shorter trips, less confinement to fixed paths hence unpredictable movements, more affected by weather conditions, larger margins of error while counting and less developed technology for data collection.56 3.2 Integrated National Transport Policy (INTP), 2009 INTP’s mission is to “link transport policy with other sectoral policies, in order to achieve national and international development objectives in a socially, economically and environmentally sustainable manner”.57 It makes provision for NMT and intermediate means of transport (IMT), which include low engine capacity vehicles (motorcycles and motor tricycles and sidecars or trailers attached to these). It does not distinctively address NMT; rather it combines it with IMT.58 This grouping has challenges when trying to obtain disaggregated data and make targeted policy interventions on NMT. This data is particularly imperative when one wants to calculate the emission abatement from NMT. The Policy has several intervention areas including tackling climate change. It mentions various strategies, but none of them mention NMT as a means of tackling atmospheric pollution from the transport sector.59 This is indicative that NMT is not considered as a key strategy for climate action in the transport sector. It acknowledges that NMT has lagged behind over the years due to a focus on motorised transport at the expense of NMT infrastructure. According to the Policy, NMT is not fully recognised by law and does not enjoy government’s financial and technical support. It is not clear what ‘full recognition’ entails. However, one can deduce that the national government has not prioritised NMT as an important mode of transport more so as a climate mitigation strategy in the transport sector. Rather, it views it as a default option for those who cannot afford and access public transport and other forms of motorised transport. This bias at the national level negatively affects the improvement and increased uptake of NMT infrastructure at the county level. Among the strategies laid out is to “encourage development of NMT as a means of enhancing mobility and accessibility in urban areas”.60 This is important because it elevates NMT to equal status with other motorised modes of transport bringing out the need for equitable financial and technical allocation while integrating multi-modal transport. The Policy aims to increase the socio-economic impact of motorised ____________________ 56 Minnesota Department of Transportation Bicycle and Pedestrian Data Collection Manual (2015: 33). 57 Ministry of Transport and Infrastructure (2009: 6). 58 Ibid: 45. 59 Ibid: 95-96. 60 Ibid: 46. Edna Odhiambo 212 transport through NMT. Conspicuously missing is the environmental impacts of motorised transport which should be addressed separately if one is to understand the full benefits of NMT as a sustainable means of transport. A number of issues facing NMT have been laid out by the Policy including gender bias, infrastructure development and maintenance, regulatory frameworks, safety, incentives for NMT and enforcement. Lack of adequate NMT infrastructure development and maintenance is a key issue, which the policy proposes to address by requiring road agencies to cater for NMT infrastructure in their projects as well as factor in technical and financial support for it. In the urban areas, it proposes that each local authority or agency provides and maintains adequate sidewalks and pavements for pedestrians, separate lanes, parking bays, bridges, footpaths, and other facilities for NMT and intermediate means of transport (NMIMTs).61 This provision creates a central role for the county governments, which should take a leading role in the provision and maintenance of adequate NMT infrastructure. 3.3 National Land Use Policy, 2017 Land use and transport planning are intimately intertwined. Various land use factors such as mobility management, density, centeredness and site design have direct implications for the transport sector. The Policy seeks to encourage the efficient, productive and sustainable use of land.62 It acknowledges that land use in Kenya has been haphazard due to a lack of coordinated legal and policy frameworks. This is evident particularly in Nairobi and other major cities facing the consequences of poor physical planning such as congestion, urban sprawl, accessibility, air pollution and safety. The same is reiterated in the NMT policy, which asserts that: Land use planning and development control is weak and does not encourage compact land use that is supportive to better transport provisions, especially for NMT users. The current land use encourages increasing trip distances making the use of NMT and public transport less attractive. The Land Use Policy makes a mention of transport and infrastructure stating the need to continuously develop and upgrade transport infrastructure. It does not go into any detail on how this should be done. The mere mention of transport does not solve the myriad of issues faced in the interactions between poor land use and transport infrastructure. Moreover, implementation, monitoring and evaluating progress is illusory in the absence of targeted outputs and outcomes. The Policy states that a majority of the residents in urban areas are in the low-income bracket. These residents are currently the major users of NMT, and they do not ____________________ 61 Ibid: 47. 62 Ministry of Lands and Physical Planning (2017: 2). Regulatory preparedness on non-motorised transport in Nairobi 213 enjoy choice on mobility. This brings into play a crucial discussion on how unsustainable transport trends of increased private motorisation and road expansion continues to disenfranchise the urban poor. NMT is a preserve of the low-income earners, and such infrastructure is inadequate and poorly maintained. It is the most unsafe means of transport as users are most at risk of road accident fatalities. Public transport infrastructure is equally inadequate and unaffordable making it out of reach for the urban poor. The current state of affairs suggests that unsustainable transport planning is a key factor in exacerbating the plight of the urban poor’s access to basic services. Though this discussion is beyond the ambit of this study, it deserves passing mention. Lastly, the Policy seeks to address environmental degradation and climate change, which includes air pollution, and NMT plays an important role in securing these goals.63 Further, it proposes the adoption of compact sustainable urban forms64, which may be interpreted to include mixed land use, centeredness and connectedness, which in turn make a good case for the increased uptake of NMT. 3.4 Integrated Land Use Guidelines, 2011 The Guidelines,65 if adopted, have positive implications for NMT as they deal with: i) ensuring the provision of pedestrian paths and bicycle paths in road construction and planning; ii) provision of subways for interurban connections and improved mass transit systems within both the urban areas and connecting urban centres; iii) provide time-frames during which private vehicles are not allowed within the Central Business District (CBD); and iv) provide for the location and enforcement of designated pedestrian drop-off and pick-up points for public transport.66 These Guidelines should complement the provisions of the NMT policy. 3.5 Draft National Urban Development Policy (NUDP), 2016 The NUDP seeks to create a framework for sustainable urban development. It mentions transport as one of its thematic areas laying emphasis on addressing challenges faced in the urban transport sector. NUDP proposes that all urban areas and cities prepare and implement an appropriate transportation strategy with emphasis on mass transport, pedestrian and cycling modes. The mention of city-led pedestrian and ____________________ 63 Ibid: 21. 64 Ibid: 47. 65 National Environment Management Authority (2011: 36-37). 66 Ibid: 36-37. Edna Odhiambo 214 cycling strategies creates an impetus for promoting a localised NMT agenda as a means of achieving sustainable cities 67 It also seeks to encourage compact land use, which as previously discussed, encourages NMT as a mode of choice. Additionally, it seeks to address climate change and improve the environmental management of urban areas through city-wide environmental planning and management, including adherence to environmental legislation and the mainstreaming of climate change in planning and development processes.68 This may encourage transport planners to lay emphasis on low carbon mobility modes such as NMT. 3.6 Nairobi Integrated Urban Development Master Plan (NIUPLAN), 2014 The NIUPLAN tackles urban transport. It lists the rapid increase of private vehicles and the lack of efficient public transport systems as some of the key issues that need to be addressed. Though it does not provide detail, it mentions the development of efficient and sustainable transport systems as one of the planning strategies.69 This strategy must factor in NMT to be considered ‘efficient and sustainable’ and avoid pitfalls of ignoring NMT or giving it late consideration in the design phase. 3.7 Nairobi County Integrated Development Plan, 2018-2022 (NCIDP) The Nairobi County is expected to increase NMT facilities to 1,500 km from a current 300 km through the implementation of the NCIDP.70 The NCIDP seeks to improve the integration between NMT and public transport and proposes the development of an NMT master plan.71 Some of the key performance indicators include the length and number of NMT infrastructure constructed, level of utilisation of NMT infrastructure,72 a decrease in the number of private vehicles accessing the CBD, and improved accessibility to CBD by NMT.73 As part of the measures to harness impact, there will be strict enforcement to ensure NMT facilities are effectively used and this can address the issue of encroachment of NMT spaces by vendors and public vehicles.74 Civic education to encourage the public ____________________ 67 Opiyo & Mitullah (2016). 68 Nabutola (2012). 69 Nairobi Integrated Urban Development Master Plan (2014: 2). 70 Nairobi County (2017: 47). 71 Ibid: 76. 72 Ibid: 178. 73 Ibid: 181. 74 Ibid: 180. Regulatory preparedness on non-motorised transport in Nairobi 215 to own NMT facilities has also been mentioned.75 This strategy is critical in changing perceptions and attitudes that NMT is a preserve for low-income earners and that private vehicles are a status symbol. Climate change76 and the Sustainable Development Goals (SDGs)77 have also been listed as thematic areas of the NCIDP. If the NMT vision is realised, it will significantly address the growing emissions in the transport sector, and the SDGs on sustainable cities, climate action, energy efficiency, health and equality. 4 Conclusion and recommendations Having evaluated legislation, policies and plans, it is evident that there is a commendable effort at the county level to promote the NMT agenda. However, despite the projections in vehicle increase and the attendant emissions, NMT has not been prioritised as a climate mitigation strategy in the transport sector unlike BRT and LRT. NMT does not enjoy a standalone policy at the national level unlike what is discernible at the county level. In the instances where NMT is mentioned in national policy documents, it has not been fully accepted as a stand-alone means of transport and is always viewed as a corollary for other forms of transport. Below are recommendations advocating for the inclusion and prioritisation of NMT as a GHG abatement measure along with attendant benefits it can bring to safety, health, and accessibility. 4.1 Making a business case for NMT NMT should be viewed as a viable economic development opportunity. Reduced traffic congestion could see increase in the national gross domestic product (GDP). Currently, significant revenue is lost in traffic congestion as productive person-hours are spent on the road. The government can have increased cost savings from reduced road and parking infrastructure development. Reduction in air pollution registers savings in the provision of healthcare particularly for deadly respiratory diseases not to mention savings from energy conservation and reaping benefits from strategic land use utilisation. ____________________ 75 Ibid. 76 Ibid: 35. 77 Ibid: 102. Edna Odhiambo 216 4.2 Autonomy of city governments to drive sustainable transport infrastructure Autonomy of local governments is important in the promotion of sustainable infrastructure. A review of 30 Sub-Saharan countries reveals that administrative and fiscal decentralisation remain weak, thus undermining the authority of local governments. In particular, local governments have “no real responsibility for land management and no power over public utilities and pricing”.78 Bernard and Madiès’79 study of four African countries confirms low fiscal capacities of local authorities and notes that capacity building for local administration officials is imperative if decentralisation will be attained. The idea behind localisation of transport infrastructure projects is to make a case for cities as best suited to address climate impacts from transport because of their contribution and vulnerability to climate impacts. It also proffers an approach that emphasises the need to contextualize unique realities of local governments, hence creating an opportunity for them to steer their own infrastructural development. 4.3 Prioritising data on non-motorised transport There is a glaring absence of baseline data on walking and cycling particularly in African cities. One of the recommendations from the African Mobility week is that urban areas should invest in data gathering to allow for critical evaluation of the cost-benefit of NMT infrastructure, while taking into account road safety and public health, especially for vulnerable groups.80 Data plays an important role in monitoring and evaluation, which can only be effective in the presence of reliable quality data. It also allows for evidence-based decision making. Some of the potential challenges that cities may have to contend with are the informality that surrounds them. Informal settlements, informal transport associations and hawkers are an integral part of our city, and these have direct implications on transport infrastructure. Adequate resource allocation for NMT research and user privacy rights, which are becoming an area of concern in big data, should be contemplated as well in this regard. ____________________ 78 Paulais (2012: 111). 79 Dafflon & Madiès (2013). 80 UN Environment (2018). Regulatory preparedness on non-motorised transport in Nairobi 217 4.4 Unpacking ‘development’ According to the NDC Analysis Report, NMT usage will decrease as the government meets its development targets.81 This statement brings into question, what does the government consider to be ‘development’? Kenya Vision 2030,82 the country’s development blueprint, aims at providing a high quality of life to all its citizens in a clean and secure environment and is anchored upon the economic, social and political pillars. It is interesting that even though it seeks to achieve a clean environment, it does not include the ‘environment’ as one of its pillars and places it under the ‘social’ pillar. As regards infrastructure, the aim is to: i) develop a 50-year Integrated National Transport Master Plan which is linked to the National Spatial Plan; ii) establish the Nairobi metropolitan region BRT to cover three transport corridors; and iii) develop a light rail transportation system for Nairobi and its suburbs which is projected to serve at least 150,000 passengers daily.83 Progress in the transport sector in the context of Vision 2030 seems to be confined to BRT and LRT. This contradicts the objective of establishing an integrated transport plan. For a plan to be considered integrated, it should adequately cater for multi-modal transport. Further, isn’t getting more people out of their cars and having them walk or bike equally a sign of development? NMT not only reduces GHG emissions but also positively affects citizens’ health. It decreases air pollution and gives people a chance to enjoy the environment around them. There is, therefore, a need to re-define the term ‘development’ in a manner that truly embraces the three components of sustainability. Such an approach will influence the policy interventions in the transport planning sector to be representative of these three components in a manner that achieves GHG emissions abatement. It will also promote adequate financial and technological investment in NMT infrastructure. 4.5 Optimisation of bus rapid transit and light rail transit The Kenyan emission mitigation strategy in the transport sector focuses on investing in the BRT and LRT in Nairobi and its suburbs. These forms of mass transit have been successful in many parts of the world particularly in addressing decongestion in cities. However, BRT and LRT and compact, pedestrian-oriented land-use development are mutually supportive. In essence, therefore, one cannot purport to exclude NMT from the agenda of BRT and LRT. ____________________ 81 Ministry of Environment and Natural Resources (2015: 81). 82 Government of the Republic of Kenya (2007: vii). 83 Ibid: 14. Edna Odhiambo 218 One of the features of BRT is reducing and eliminating delays in connectivity. This brings the trade-offs between spacing and convenience into sharp focus. Therefore, BRTs tend to have fewer stops (in comparison to LRT), and this is where NMT infrastructure becomes crucial in facilitating the last mile connectivity. Adequate NMT infrastructure is a vital component of successful BRT and LRT systems, which can be most effective when integrated within a broader planning framework encompassing land use policies, zoning regulations, and economic and community development.84 Climate responsive transport planning in Nairobi should, therefore, prioritise NMT as a complementary mitigation strategy to other forms of mass transit. 4.6 Behavioural change and civic education The Nairobi NMT Policy seeks to make NMT the transport mode of choice. This statement is indicative of perceptions associated with NMT. According to the survey conducted along Jogoo and Juja roads, walking seemed to decline sharply with increased income, and the majority of the pedestrians (58.8%) earned less than Ksh20,000 a month.85 The general public perception of pedestrians was that they are poor (22.6%) and belonged to the low-income group (14.4%).86 The same case applied to cyclists and handcart operators who are also viewed as poor accounting for 11.9 % and 21.9 % respectively.87 In particular, motorists perceived pedestrians as low-income earners (11.8%), cyclists as poor (21.9%) and handcart operators as a nuisance (35.1%).88 Additionally, it was noted that motorists do not respect NMT users.89 This explains the rampant encroachment of NMT spaces and endangerment of NMT users. For NMT to be an effective climate mitigation strategy and a transport mode of choice, Nairobi residents must recognise, appreciate and respect its use and users. The perception that NMT is the preserve for low-income earners must change. Similarly, the attitude that owning a private vehicle is a status symbol must shift if we are to achieve sustainable mobility in Nairobi. The county and line ministries should take a leading role in changing these mindsets and helping the public un-learn and embrace an environmentally-friendly approach towards transport with its attendant health, social and economic benefits. That said, many will not embrace NMT until adequate investments are made to improve and maintain NMT infrastructure, the safety of pedestrians is guaranteed, and ____________________ 84 Institute for Transportation & Development Policy (2007). 85 Nairobi City County Government (2015: 6). 86 Ibid. 87 Ibid: 7. 88 Ibid: 6. 89 Ibid. Regulatory preparedness on non-motorised transport in Nairobi 219 massive improvement of public transport is recorded. Having invested in NMT, the national and county governments may consider adopting market approaches to encourage NMT such as carbon tax on fuel, toll charges, increased parking fees, increased duty on private vehicles, incentives for carpooling, and stringent regulations on the importation of used motor vehicles. It is evident that a one size fits all strategy will not achieve sustainable mobility and effectively reduce the growing transport emissions in Nairobi. Integrated approaches that factor in multi-modal means of mobility based on sound land use and urban planning are needed to push the NMT agenda forward. References Carr, LJ, SI Dunsiger & BH Marcus (2010) “Walk scoreTM as a global estimate of neighborhood walkability” 39(5) American Journal of Preventive Medicine 460-463. Cummings, C & B Obwocha (2018) At the crossroads – the politics of road safety in Nairobi, at (accessed 3-3-2018). Dafflon, B & T Madiès (2013) The political economy of decentralization in sub-Saharan Africa: a new implementation model in Burkina Faso, Ghana, Kenya, and Senegal. Institute for Transportation & Development Policy (2007) Bus rapid transit planning guide, at (accessed 20-7-2018). International Energy Agency (2013) Policy pathways: a tale of renewed cities. IPCC / Intergovernmental Panel on Climate Change (2014) Climate change 2014: synthesis report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Litman, T (2010) Quantifying the benefits of non-motorized transportation for achieving mobility management objectives. Local Government Commission (2001) The economic benefits of walkable communities. Ministry of Environment and Mineral Resources (2013) Kenya national climate change action plan (2013-2017). Ministry of Environment and Natural Resources (2015) Nationally determined contributions sector analysis report. Ministry of Lands and Physical Planning (2017) National land use policy. Ministry of Transport and Infrastructure (2009) Integrated national transport policy. Ministry of Transport, Infrastructure, Housing and Urban Development (2016) Kenya’s intended nationally determined contribution (INDC) transport sector analysis. Minnesota Department of Transportation (2015) Bicycle and pedestrian data collection manual, at (accessed 2-3-2018). Mitullah, WV, M Vanderschuren & M Khayesi (eds) (2017) Non-motorized transport integration into urban transport planning in Africa. Nabutola, W (2012) National urban development policy making process: the Kenyan way: big challenges and some opportunities, at (accessed 10-3-2018). Edna Odhiambo 220 Nairobi County (2017) Integrated development plan. NAR / National Association of Realtors & NAHB / National Association of Home Builders (2002) Joint survey: survey suggests market-based vision of smart growth, at (accessed 10-03-2018). National Bicycle and Pedestrian Clearinghouse (2015) Economic and social benefits of off-road bicycle and pedestrian facilities. National Transport and Safety Authority (2016) New motor vehicles statistics for the last 10 years. Openda, J (2017) “At least 36 dead, 18 hurt after bus collides with truck at Migaa” Daily Nation (31- 12-2017), at (accessed 10-03-2018). Opiyo, R & W Mitullah (2016) Enhancing mobility in Kenya Counties through strategic policies formulation. Partnership on Sustainable Low Carbon Transport (2015) Intended nationally determined contributions (INDCs) offer opportunities for ambitious action on transport and climate change, Preliminary Analysis. Paulais, T (2012) Facing Africa’s cities. The imperative of local investment. Sims R, R Schaeffer, F Creutzig, X Cruz-Núñez, M D’Agosto, D Dimitriu, MJ Figueroa Meza, L Fulton, S Kobayashi, O Lah, A McKinnon, P Newman, M Ouyang, JJ Schauer, D Sperling & G Tiwari (2014) “Transport” in O Edenhofer, R Pichs-Madruga, Y Sokona, E Farahani, S Kadner, K Seyboth, A Adler, I Baum, S Brunner, P Eickemeier, B Kriemann, J Savolainen, S Schlömer, C von Stechow, T Zwickel & JC Minx (eds) Climate change 2014: mitigation of climate change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. UN Environment (2016) Global outlook on walking and cycling, at (accessed 12-03-2018). UN Environment (2018) African mobility week, at (accessed 16-3-2018). Victoria Transport Policy Institute (2004) TDM and Economic Development. Wanambisi, L (2017) “Over 1,900 die in road accidents since January” Capital fm, at (accessed 31-12-2017). Wanjala, E (2017) “Road fatalities fall by 6.7% – NTSA” The Star (13-5-2017), at (accessed 31-12-2017). Yelda, S (2015) Urban transportation and the environment, issues, alternatives and policy analysis. PART II: NATURAL RESOURCES GOVERNANCE 223 Chapter 10: Wildlife conservation and community property rights in Kenya Patricia Kameri-Mbote 1 Introduction Property rights are granted for a variety of purposes including providing incentives for proper management of land. A property owner has a bundle of entitlements that include using, excluding others and alienation.1 Kenya’s pre-2010 law provided for the protection of property rights as constitutional rights. This protection did not, however, extend to according communities rights to own land. The Carter Commission2 dealt with the allocation of land to communities in the 1930s, while the Swynnerton Plan3 introduced the Torrens registration system for native-occupied land in the 1950s. Interestingly, the Swynnerton Plan acknowledged that there were communities in Kenya for whom private/individual rights to land were not suitable on account of their land uses. It recommended the establishment of group ranches, a form of group tenure, which is discussed below. Policy and law over the years have, however, explicitly favoured private rights and encouraged the parcelling of community lands into private holdings. Indeed, the expectation was that all community land rights would eventually be converted to private rights. Another factor that has greatly influenced land-rights holding in Kenya is the preference for cultivation agriculture. This is despite the fact that only a third of Kenya’s land mass is suitable for cultivation, with the rest being arid and semi-arid. Approximately 75% of the country’s population lives within the medium to high potential (20% of land area) and the rest in the vast arid and semi-arid lands.4 Before the promulgation of the Constitution of Kenya (2010) (2010 Constitution) and the subsequent enactment of the Community Land Act (2016)5 (Community Land Act), group/community ownership in Kenya was dealt with under trust land and group ranches. Trust land comprised of areas that were occupied by the natives during the colonial period and which had not been consolidated, adjudicated and registered in individuals’ or group names, and native land that had not been taken over by the ____________________ 1 Honoré (1961). 2 The Kenya Land Commission Report (1934). 3 Swynnerton (1955). 4 Ministry of Lands and Physical Planning (2017: 13). 5 Act 27 of 2016. Patricia Kameri-Mbote 224 government.6 It was governed by the Trust Lands Act7 and vested in local authorities designated as county councils.8 County councils managed all the resources within the trust land under their jurisdiction and controlled the development of that land. With regard to group ranches, the Report of the East Africa Royal Commission of 1953-1955, concluding the policy on land tenure in the East African Protectorate as Kenya then was, noted that individualisation of land ownership ought to be the main aim. It, however, noted that such ownership need not be confined to individuals but could also extend to groups such as companies, cooperatives and customary associations of Africans.9 Group ranches are demarcated areas of rangeland to which a group of pastoralists, who graze their individually or owned herds on it, have official land rights. It was designed for groups of herders shown to have customary rights over the range or pastureland in question which were governed by the now repealed Land (Group Representatives) Act.10 Most group ranches are in the areas occupied by pastoral communities in Kenya. The composition of group ranches was an attempt at formalising traditional community structures. Group ranches did not, however, work well for a variety of reasons. Firstly, the group representatives lacked the authority of traditional leaders. Secondly, government policy emphasised individual rights and there was a prevalent view that group rights would eventually morph into individual rights. Despite this neglect, community claims to land remained.11 The absence of clear and secure property rights for communities has been an impediment to full enjoyment by communities of the incidents of property holding, productive use of land and national development. This presented a perverse incentive for communities to move away from community rights leading to defensive titling of land into individual holdings to protect their land from encroachment by government or other entities both within the trust lands and the group ranches. The latest available statistics indicate that over 60% of the total land area in Kenya is held under customary arrangements.12 Much of this land is, however, being converted to private tenure through the process of land adjudication and there are no up to date figures on how much land still remains under community tenure. Some group ranches had already designated areas for wildlife conservation before the 2010 Constitution, but the lack of secure tenure left such areas open to conversion to alternative tenure and land uses.13 ____________________ 6 Section 115 of the Constitution of Kenya (1983) (Repealed). 7 Chapter 288 of the Laws of Kenya. 8 Section 114 of the Constitution of Kenya (1983) (Repealed). 9 East Africa Royal Commission (1955). 10 Chapter 287 of the Laws of Kenya, introduced as an Act of Parliament to provide for the incorporation of representatives of groups who have been recorded as owners of land under the Land Adjudication Act Chapter 284 of the Laws of Kenya. 11 Akech (2001). 12 Republic of Kenya (2004). 13 Interviews with group ranch leaders at Kaulo in Samburu and Isiolo in 2011. Wildlife conservation and community property rights in Kenya 225 It is within this context that both the 2010 Constitution and the first ever National Land Policy in Kenya (Sessional Paper No. 3 of 2009) provided for the recognition of community rights to land. The 2010 Constitution and the National Land Policy presented the yearned for opportunity to craft new land laws for the protection of public, private and community land.14 The 2010 Constitution vests community land in communities identified on the basis of ethnicity, culture or similar community of interest.15 It also provides that unregistered community land shall be held in trust by county governments (entities established under the 2010 Constitution in a bid to devolve power) on behalf of communities.16 It comprises of: group ranches; land lawfully transferred to a specific community by any process of law; land declared to be community land by an Act of Parliament; and land lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities; or lawfully held as trust land by county governments.17 No disposition or use of community land is allowed if it does not conform to legislation specifying the nature and extent of the rights of members of each community individually and collectively. The 2010 Constitution required Parliament to enact this law and this was done in 2016. The Community Land Act and Regulations to implement it are now in place. The question that this chapter seeks to answer is the extent to which this law facilitates wildlife conservation granted the close relationship between pastoral communities to whom it applies and wildlife. This is within a context of unabated conversion of community land to private tenure before the promulgation of the 2010 Constitution and after its promulgation before the enactment and implementation of the Community Land Act.18 In designing the wildlife law and policy in the 2000s, among the key issues identified as barriers to wildlife conservation in Kenya were: land tenure insecurity; a failure to provide for multiple and compatible land uses through zoning; the lack of a legal framework for involvement of local communities in sustainable wildlife management despite the fact that wildlife shares land with communities and that the bulk of wildlife is outside protected areas; that communities have no rights to wildlife resources and no legal basis for claiming part of the benefits accruing from wildlife conservation and management or appropriating any value of wildlife despite the fact that they are obliged to keep the wildlife on their land and bear the costs; and the absence of incentives for landholders to conserve wildlife on their land. The 2010 Constitution dealt with the equality and security of tenure under all tenure types. The Community Land Act and the Wildlife Conservation and Management Act ____________________ 14 Article 61 of Constitution of Kenya (2010). 15 Article 63 of Constitution of Kenya (2010). 16 Article 63 of Constitution of Kenya (2010). 17 Article 63(2) of Constitution of Kenya (2010). 18 Musembi & Kameri-Mbote (2013: 5). Patricia Kameri-Mbote 226 (2013)19 (WCMA) were enacted to both align the land law and wildlife law to the 2010 Constitution and to respond to the concerns raised above. Additionally, the National Land Use Policy20 seeks to guide “Kenya towards an environmentally and socially responsible use of land and land-based resources for socio-economic transformation of the people of Kenya”21 and “to promote best land use practices for optimal utilization of the land resource in a productive, efficient, equitable and sustainable manner”.22 This chapter assesses the extent to which the Community Land Act and the WCMA support wildlife conservation on community lands. Part one is the introduction. Part two conceptualises issues of wildlife conservation and land rights. Part three lays out the legal and policy framework for wildlife conservation and land rights assessing the extent to which community land rights have factored in wildlife conservation and vice versa. Part four provides the conclusion. 2 Conceptual framework 2.1 Wildlife conservation as a land use Kenya boasts a varied diversity of flora and fauna.23 It has over 7,800 animal and plant species and various other species that constitute wildlife, counting as a key revenue earner for government.24 It is important to note that wildlife conservation is predicated on the manner in which land is held and used. Of the total land acreage in Kenya, community land is the largest, constituting nearly 66% of the total land mass while public land is 12%, with the remaining 22% being private land.25 Given that community land forms the bulk of the total land mass in Kenya, it then follows that it is a crucial resource in terms of providing a habitat and migratory routes for wildlife. In another sense, community land alongside private land, which constitutes more than 85% of the total land mass in Kenya,26 must be used if proper wildlife management is to be achieved. Most community lands in Kenya are in the arid and semi-arid parts of the country and lag behind in terms of economic development. Many of these lands have in recent times been earmarked for large infrastructural projects, which are likely to affect both communities and wildlife.27 Moreover, while Article 62 of the 2010 Constitution envisages a total forest cover of 10% of the total land mass in Kenya, only ____________________ 19 Act 47 of 2013. 20 Ministry of Lands and Physical Planning (2017). 21 Ibid: 4. 22 Ibid. 23 Kiambi & Opole (1992: 53). 24 World Conservation Monitoring Centre Kenya (1998). 25 Kimeu & Kairu (2016). 26 Ibid. 27 See for instance the Isiolo Resort City and the Standard Gauge Railway projects. Wildlife conservation and community property rights in Kenya 227 6.3% of the land mass at present is forested.28 This means that Kenya still lags behind in terms of meeting the constitutionally and internationally recognised standard on forest cover, with forests forming a key habitat for wildlife. Wildlife situated on community land usually share the land with the communities and their livestock, while wildlife on public land resides in protected areas - national parks and game reserves. It is estimated that 70% of Kenya’s wildlife resides outside protected areas29 as national parks comprise only 8% of Kenya’s total land acreage.30 Particular problems arise with respect to the delineation of land rights’ regimes in areas hosting wildlife owing to the special nature of wildlife. To begin, wildlife is a ‘fugitive resource’, which is not easily associated with a particular user as owner in its in situ condition.31 Land on its part, being a finite and scarce resource, has multiple competing and sometimes incompatible values and uses.32 Wildlife conservation is one of the uses to which land can be put and is invariably at odds with cultivation, urban or infrastructural development.33 These latter uses are more economically lucrative in the short term and have greater support in national development policies compared to wildlife conservation.34 It is therefore not surprising that because of the emphasis on crop production in national policy, agro-pastoralism is more common than pure pastoralism in many pastoralist areas that can support agriculture.35 This shift in land use is accompanied by conversion of land tenure from group to individual rights. Many group ranches have been subdivided to individual holdings, which are perceived to be more secure and beneficial to the owners than group holdings.36 The absence of a secure legal framework for community land rights largely fuelled this conversion.37 Conversion of tenure is accompanied by conversion of land use from pastoralism, which is compatible with wildlife conservation, and has grave implications for conservation. It is worth noting that the change in tenure has not been accompanied by a change in lifestyle for many pastoralists who still keep large herds of livestock for livelihood and security against the economic uncertainties of life. Most of them have large herds on ____________________ 28 Ministry of Lands and Physical Planning (2017: para. 4.21). 29 See generally: Western (1994). 30 Ibid. 31 Kameri-Mbote (2002: 29). 32 Republic of Kenya (2009: para. 29). 33 Ministry of Lands and Physical Planning (2017: 16). See (accessed 28-6-2016). 34 See, for example, the recently completed Standard Gauge Railway Line passes through the Nairobi National Park, Olingo (2016). The southern bypass road is also set to pass through the park. 35 This is the case in Amboseli area and Narok, which are home to the Maasai community. See Campbell et al. (2000: 337). The authors note that the Maasai are becoming partially or fully sedentary and embracing crop production to supplement their livestock production and support their families. 36 See generally: IUCN (2011). 37 Seno et al. (2013: 75). Patricia Kameri-Mbote 228 land that is not able to sustain them leading to overgrazing. Drought and overall changes in climate have pushed the carrying capacity of many pastoral lands to the brink. In the quest for survival, herders have in recent times invaded private lands belonging to smallholder farmers and ranchers in places like Laikipia.38 These pressures on land have implications for wildlife conservation. The greatest threats to wildlife are loss of habitat, human interventions in ecosystems, poaching and over-use of resources.39 The quest to optimise the uses to which land is put places wildlife in a disadvantaged position as urbanisation and agriculture take centre stage. The contest between deontological40 (moral/equity) approaches to land and efficiency/utilitarian41 approaches lies at the core of promotion of property rights’ systems in spaces that host wildlife. Where conservation of wildlife is concerned, the situation is complicated by anthropocentric approaches that place human needs ahead of nature conservation. The emphasis on economic returns leads to the neglect of social and ecological concerns. The development of mega projects without taking into account habitat needs of wildlife is justified on grounds of the economic benefits of such projects in improving the lives of people. Where landscapes that host wildlife are occupied by poor people who hold land collectively, tenure reform geared towards individual ownership of land leads to the fragmentation of habitats and fencing of wild lands which affect the movement of animals. The drive towards individual land rights follows from the exposition by Hardin42 who proposed the institution of private property rights as a way to stem the tragedy of the commons and deal with the problem of unsustainable resource use in commonly held lands. It has however become increasingly clear that the fragmentation of community land into individual holdings does not guarantee sustainable resource management and can, to the contrary, fuel unsustainable harvesting of resources.43 More recently, tenure reform has been informed by the perceived need to unlock the economic potential of ‘dead capital’ that land held communally is perceived to have remained for a long time.44 In computing the value of land, nature conservation has unfortunately not been factored in. The competition for resources between humans in communally held landscapes and the wildlife pits conservation against people’s welfare, and conservation is perceived as compounding poverty by taking land that would otherwise be available for use. ____________________ 38 Kubania (2017). 39 Steidl & Powell (2006: 50). 40 See (accessed 28-10-2016). 41 Solow & Polasky (1999: 17). A utilitarian/efficiency approach to wildlife conservation is one that evaluates conservation on the basis on costs and benefits deriving therefrom. 42 Hardin (1968: 1243). 43 Kameri-Mbote (2002). 44 De Soto (2000). For a contrarian view on the same particularly within the African and Kenyan context, see Nyamu-Musembi (2006); and Okoth-Ogendo (2006). Wildlife conservation and community property rights in Kenya 229 Land rights are vested in various entities – individuals, communities or states granting such entities varying levels of exclusivity as regards usage and occupation of land. The existence of wildlife on land in many instances requires owners of the land to desist from some uses, which are incompatible with wildlife conservation. For poor people sharing landscapes with wildlife, the lure of alternative land uses is real in the quest for survival.45 This is fanned by policies that over-emphasise private land rights and fail to take into account the needs of fugitive resources such as wildlife for vast lands. The situation is exacerbated by population growth leading to competition for land and resources between humans and wildlife. 2.2 Land rights and wildlife law As noted above, the rights that accrue to landowners are referred to as a ‘bundle of sticks’46 or entitlements and include the rights to use, dispose, exclude, possess, manage, right to security, right to capital and to transmit.47 Entitlements flow from the grant of land rights, which are delineated according to the bundle encapsulated in the grant. This explains why holders of freehold48 and leasehold49 titles have different bundles of rights. Rights to wildlife would therefore naturally be an incident of property. However, wildlife remains public property despite the fact that it is also found on community and private land. This challenges William Blackstone’s eighteenth-century full liberal ownership theory where a private owner was perceived as having total exclusionary rights over their property over every other person.50 Blackstone described property as:51 ...that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. ____________________ 45 It is, therefore, not surprising that a number of landowners in areas such as Kajiado County have opted to dispose of their land in a bid to secure a bigger return on their capital. See Muiruri (2015). 46 Bundle of sticks is a metaphor used within the context of property law to denote the complexities of ownership and more specifically to connote the full extent/entitlements of private property ownership. The metaphor is credited to Justice Benjamin Cardozo. See further Ellickson (2011: 215). 47 Honoré has titled these as incidents of entitlements in property under the full liberal ownership concept. See further Honoré (1961). 48 Freehold title refers to an interest in land which upon the death of the holder, can descend to heirs or continue in perpetuity. 49 Leasehold title is an interest in land for a defined period/duration of time, upon expiry of which the land reverts to the lessor/grantor of the lease. 50 We use the phrase ‘appeared to suggest’ since there are serious doubts as to whether he was unaware of the qualifications to the concept of exclusivity of property. See in particular Blackstone (1769). 51 Blackstone (1769: 2). Patricia Kameri-Mbote 230 This physicalist conception of property as the exclusive right to use and abuse the ‘res’ (thing that was the object of property) was used in Johnson’s view to justify private property as a means:52 …to secure freedom and autonomy for individuals; the only obligation was to do no harm to others in the exercise of one’s rights. People viewed ownership of land as the path to wealth, autonomy, and status. Ownership provided a circular justification for property rights that were themselves seen to naturally flow from ownership. The full liberal ownership is less applicable in modern day due to ecological concerns, issues of social justice53 and the emergence of new forms of intangible property. Indeed, the entitlements one has over land have been qualified over time with concerns about aviation, planning and environmental conservation being allowed to fetter the rights of landowners.54 Further new forms of intangible property such as intellectual property,55 electromagnetic spectrum56 and more recently data,57 have raised a need to reconsider the physicalist notion of property. Land rights entitling owners to use their property pits communities against wildlife conservation authorities, which is a major challenge in Kenya’s conservation arena. This is compounded by human-wildlife conflicts occasioned by the encroachment of wildlife and humans into each other’s terrain. Increasing urbanisation is also a major factor in these threats in Kenya as people move from the rural areas to urban areas in search of employment. For instance, between 2010 and 2015, Kenya’s urban population grew by 4.4%.58 In 2013, the total urban population comprised 25% of the total population in the country.59 This figure is projected to have increased since 2013. Increased urbanisation has necessitated destruction of ecological zones to construct houses for settlement thus exacerbating human-wildlife conflicts. Increased urbanisation has also contributed to the fragmentation of land and conversion of what was formerly pastoral and agricultural land into residential and commercial uses, thus creating conflict of these land uses with wildlife conservation.60 ____________________ 52 Johnson (2007: 250). 53 For a view that the exclusivity concept with regard to property as stated by Blackstone was more mythical than real and that Blackstone was misunderstood, see Rose (1998: 602). 54 See, for instance, Baron Bernstein of Leigh v. Skyviews and General Ltd [1978] QB 479 where Justice Griffiths referred to the cujus maxim as a “colourful phrase upon the lips of lawyers…” that is not as applicable in modern day. 55 Ministry of Lands and Physical Planning (2017). 56 Ibid. 57 Ibid. 58 Ibid: 13. 59 Ibid. 60 Ibid: 21. Wildlife conservation and community property rights in Kenya 231 2.3 Broader policy issues 2.3.1 Devolution The new governance architecture that was ushered in by the 2010 Constitution is also of importance. It features devolution and some sharing of functions between the national and 47 county governments. This is a fundamental shift from the centralised approach that informed wildlife management in Kenya for a long time under the Wildlife (Conservation and Management) Act (1976).61 While protection of the environment and natural resources and specifically the protection of animals and wildlife is a function of the national government,62 there are interfaces with county governments. The latter are expected to implement specific national government policies on natural resources and the environment.63 Counties are also required to develop County Integrated Development and County Physical Plans, which can facilitate sustainable management of wildlife.64 The interface is further buttressed by the values in Articles 10 and 60 of the 2010 Constitution, which include public participation and community involvement. Participation and involvement are best realised at the local levels, which are within counties and have implications for the devolution of wildlife management that has been a concern for many African countries since the 1980s.65 Devolution radically departs from the previous situation where centralised wildlife authorities alienated wildlife resources from local communities.66 Indeed, devolution has the potential to enlist community support for conservation67 as it enhances community participation and promotes wildlife conservation particularly outside protected areas.68 The engagement of communities is critical to framing incentives in conservation, to facilitate communities availing land for conservation and to provide a framework for involving them in dealing with poaching. This is in line with the chief objects of devolution namely, the enhancement of good governance and public participation at the community level.69 Communities are then empowered to monitor and check abuses of wildlife and to participate in land-use planning and zoning in a manner that is compatible with proper wildlife management.70 The WCMA and the Community ____________________ 61 Kameri-Mbote (2008: 291). 62 Fourth Schedule Part I (Paragraph 22) of Constitution of Kenya (2010). 63 Fourth Schedule Part II (Paragraph 10) of Constitution of Kenya (2010). 64 Article 220(2) of the Constitution of Kenya (2010). 65 Roe et al. (2000: 3). 66 Kameri-Mbote (2002: 171). 67 For a characterisation of the benefits of decentralising wildlife management, see: Cirelli (2002: 58). 68 For further insights on the consequences of devolution of wildlife management, see: Poole & Leakey (1996: 55 and 58). 69 Olowu & Wunsch (2004: 2). Also see, Article 174(c) and (d) of the Constitution of Kenya (2010). 70 Kameri-Mbote (2010: 184). Patricia Kameri-Mbote 232 Land Act are steps forward in terms of enhancing devolution of wildlife management and giving effect to the constitutional principles. 2.3.2 Vision 2030 Conservation in Kenya has also to be seen within the context of the country’s Vision 203071 – the economic blueprint that seeks to transform Kenya to a middle-income economy by 2030. Infrastructure development, which depends on the availability of land, is a key component of this Vision. Many infrastructure projects have pitted communities and wildlife conservation organisations against the government as the former resist compulsory acquisition of their lands.72 For instance, Kenya began the construction of a Standard Gauge Railway in 2014 and it was completed in 2017.73 The railway runs through Nairobi National Park dividing it from north to south, though it is being built on a viaduct to ensure that only pillars will touch the ground of the park.74 Nonetheless, the disruption caused will have negative effects to wildlife inhabiting the national park. However, the construction of the railway line through the park has been justified on the basis that it would save half the cost that would otherwise be incurred were the railway line to pass around the park.75 This park, however, is hemmed between the city, residential areas and community lands and has survived years of wanton public land conversion to private land.76 Opening up the park for the railway will disrupt the lives of communities who share the southern border with the park as well as provide a window for future conversion of the land from conservation use to urban development. The value of land in Nairobi has risen exponentially77 and this is likely to fuel the drive towards conversion for other uses. It is indeed worth noting that the cost of the Standard Gauge Railway rose considerably on account of payments for land compulsorily acquired for the construction of the railway.78 There are plans to expand the railway to link it to western Kenya. Compulsory acquisition of 100 acres of the park and 40 acres of Oloolua forest is required for this in addition to 1,000 parcels of private land bordering the park.79 ____________________ 71 Government of Kenya (2007). 72 For instance, a conservation lobby group named Kenya Coalition for Wildlife Conservation and Management sued the government against the intended construction of the Standard Gauge Railway through Nairobi National Park. See further: Ochieng (2016). 73 Cuddihy (2016). 74 Ibid. 75 Ibid. 76 Republic of Kenya (2004), popularly referred to as the ‘Ndung’u Report’. 77 Mutanu (2015). 78 Anon (2014) and Anyanzwa (2016). 79 Rajab (2017). Wildlife conservation and community property rights in Kenya 233 Another example is the proposed construction of the Isiolo resort city and an international airport to enhance tourism within the region.80 Significantly, the Lewa Wildlife Conservancy to the south, Samburu Game Reserve and Ewaso Ng’iro River to the west, and Buffalo Springs and Shaba National Reserve to the north, borders the land on which this development is proposed to take place, which are all habitats for wildlife.81 Without doubt, the construction of these amenities, while meant to promote wildlife tourism, is likely to have deleterious effects on wildlife conservation. The idea seems to be to maximise the benefits from wildlife tourism through improved infrastructure. This, however, does not seem to consider the fact that the development may lead to negative impacts on the livelihood of communities who have lived with wildlife for many years. The developments are also likely to lead to destruction of the very resource they are seeking to enhance access to, as habitat is destroyed and opened up for settlement. It is important to note that poaching continues to be one of the greatest threats to wildlife in Kenya82 and will likely be further fueled by opening up of conservation areas to influxes of humans. It is within this context83 that the WCMA enhanced the penalties for poaching.84 Needless to say, this approach is likely to be unsustainable in the long term as economic factors justifying infrastructure projects are hoisted over ecological concerns. 3 The legal framework for land rights and wildlife conservation 3.1 Land rights The 2010 Constitution radically altered the land law terrain by redefining land categories and classifying them into: private, public and community land. Article 61 of the 2010 Constitution provides that all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals. Article 61(2) classifies all land in Kenya as public, community and private. Wildlife is found in all these land categories. Article 66 of the 2010 Constitution mandates the state “to regulate the use of any land or any interest in or right over any land” including land-use planning. Protected areas that constitute national parks, national reserves and gazetted forests are public land but as pointed out above, public land alone cannot sustain wildlife85 and ____________________ 80 KNA (2012). 81 Ibid. 82 Vaughan (2016). 83 Nellemann et al. (2014). 84 Some of the penalties under the statute include life imprisonment for poachers and fines of up to Ksh. 20 million (Section 92 of the WCMA). 85 Watson et al. (2010: 8). Patricia Kameri-Mbote 234 most of the wildlife in Kenya lives outside these national protected areas.86 This calls for innovative ways of managing land taking wildlife habitat needs and the needs of individual and community landowners into account. It is noteworthy that most community land that hosts wildlife is also situated in the country’s poorest areas.87 The respective land law regimes present unique problems as far as wildlife conservation is concerned; and these concerns need to be addressed if land rights are to be supportive of conservation. One of the most problematic issues is ownership of wildlife. As pointed out above, wildlife as a fugitive resource is not amenable to private ownership.88 A private owner’s interest to maximise the use of his land for optimum gain pits wildlife conservation as a land use against other more beneficial uses. With market forces driving up land values, this can be a hard choice. There have, however, been innovations developed and applied to promote wildlife conservation on private land such as the use of environmental easements.89 In this context, the easements are used to restrict the rights of a landowner to put land to uses that are inimical to wildlife management.90 While easements were developed under common law,91 they have been included in Kenya’s land rights92 and environmental93 regimes. Environmental easements are particularly relevant within the context of private land regimes and can serve as a useful tool for conserving wildlife particularly outside protected areas.94 This is the tool that has been used in the establishment of wildlife conservancies on private lands.95 Additionally, the Land Act (2012) contains detailed mechanisms on conservation of natural resources and ecologically sensitive parts of public96 and private land.97 The National Land Commission (NLC) is required to take appropriate action to maintain public land that has endemic species of flora and fauna, critical habitats or protected areas.98 The Commission is also required to identify ecologically sensitive areas that are within ____________________ 86 See (accessed 30-10-2016). 87 It is little surprising that pastoralist communities such as Maasais in Kajiados have been selling away land. See Muiruri (2015). 88 Kameri-Mbote (2002: 13). 89 Watson et al. (2010: 8). 90 Ibid. 91 Ibid. 92 See part X of the Land Registration Act (2012). 93 See Section 6 of EMCA and Section 68 of Wildlife Management and Conservation Act 2013. 94 Watson et al. (2010: 9). 95 For instance, the Northern Rangelands Trust (NRT) is a community based organisation that enables communities run conservancies allowing pastoralist communities to graze on the land while allowing for wildlife conservation on the same land. 96 Public land as provided under Article 63 of the Constitution of Kenya (2010) is a tenure classification where land is vested in the state (national government/county government or state agencies). 97 Private land as provided under Article 64 of the Constitution of Kenya (2010) is a tenure classification whereby land vests in an individual/private person. 98 Ministry of Lands and Physical Planning (2017: para. 2.5.10). Wildlife conservation and community property rights in Kenya 235 public lands, demarcate or take any other justified action on those areas and act to prevent environmental degradation.99 In doing so, the Commission should work in consultation with the relevant institutions like Kenya Wildlife Service or Kenya Forest Service. Significantly, the 2010 Constitution requires the state to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resource and the equitable sharing of the accruing benefits.100 Further, the state is compelled to protect the indigenous knowledge, biodiversity and genetic resources of communities.101 These are enabling provisions for harnessing community knowledge of ecosystems and habitat that are shared with wildlife. The National Land Use Policy102 (2017) proposes that the government should: 1. Identify, map and gazette critical wildlife migration and dispersal areas and corridors in consultation with the local communities and individual land owners; 2. Encourage the development of wildlife sanctuaries and conservancies and involve local communities and individuals living contiguous to the parks and protected areas in the co-management of such areas; and 3. Review the gazettement of forests and protected areas to foster the realization of their multiple values and ensure that they are protected for their ecosystem values and not merely to physically exclude human activities. These recommendations aim to stem conflicts that arise where communities live in ecologically sensitive lands that have been placed under public authority’s curatorship through gazettement, but which communities claim rights over by virtue of having occupied them before the gazettement. Section 24 of the Community Land Act addresses this by enabling the NLC to convert public land to community land on a case by case basis in accordance with the Land Act (2012). Communal land in Kenya has the greatest potential to conserve wildlife and there have been efforts geared towards enabling the communities, particularly those that live with wildlife and those that border protected areas, to recognise the benefits of wildlife conservation through community benefit-sharing schemes relating to revenues derived from wildlife tourism.103 More sophisticated mechanisms have been proposed in the WCMA which include the formation of community wildlife conservancies where a community or a number of communities come together and decide to set aside land collectively for wildlife management with a set of governing rules.104 While the Community Land Act does not expressly provide for conservation of wildlife, a reading of it as a whole points to ways of conserving wildlife. The Act in its entirety seeks to protect and promote the right of communities to manage their ____________________ 99 Section 11(2) of the Land Act (2012). 100 Article 69(1)(a) of the Constitution of Kenya (2010). 101 Article 69(1)(c) of the Constitution of Kenya (2010). 102 Ministry of Lands and Physical Planning (2017). 103 Section 80 of the WCMA. 104 Section 39 of the WCMA. Patricia Kameri-Mbote 236 lands. This will have a positive effect on the conservation of the wildlife resources on community land as communities identify with wildlife conservation as a land use. Moreover, the security of tenure provided for under the Act provides a good context for incorporating wildlife as part and parcel of the community, with the assurance that the benefits of conservation will be shared with the community. Part II of the Community Land Act provides for the recognition, protection and registration of community land.105 Significantly, communities may hold land as freehold, leasehold or under customary tenure.106 The Act requires the maintenance of a community land register for each registration unit, which register should contain: a cadastral map showing the extent of the community land and identified areas of common interest; the name of the registered community; a register of members of the registered community which shall be updated annually; the user of the land; and such other particulars of members of the registered community as the Registrar may determine.107 Section 17 underscores the rights of a registered community as proprietor of land whether acquired on first registration or subsequently for valuable consideration or by an order of court. It is categorical that such rights “shall not be liable to be defeated except as provided in this Act or any other written law, and shall be held on behalf of the community, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever”, subject to leases, charges and other encumbrances and to the conditions and restrictions, shown in the register; and such overriding interests as may affect the land. It remains to be seen how titling of community land will impact on wildlife conservation. It is important to note that easements on community land facilitate the designation of wildlife migratory routes and hence co-existence between communities and wildlife. Under Section 12, there are different classes of holding community land which include: communal; family or clan; and reserve land. The provision for reserve land opens a pathway for the use of community land for conservation. Indeed among the uses for which a community may reserve land is community conservation.108 Related to this is the provision that enables a registered community to submit a plan for the development, management and use of their land for approval to the county government on its own volition or at the request of such government.109 The community is required to consider any conservation, environmental or heritage issues relevant to the development, management or use of the land before submitting such a plan.110 ____________________ 105 Act 27 of 2016. 106 Section 4 of the Community Land Act. 107 Section 10 of the Community Land Act. 108 Other uses are farming, urban development; cultural and heritage sites (Section 13(3) of the Community Land Act). 109 Section 19 of the Community Land Act. 110 Section 19(2)(a) of the Community Land Act. Wildlife conservation and community property rights in Kenya 237 Inadequate organisation or lack of a formalised central source of management and control of land resources in community lands has been the greatest challenge in integrating and appreciating wildlife resources as a land use in community land. Section 15 of the Act provides for the establishment of both a community assembly (consisting of all adult members of the community) and a community land management committee. These institutions are responsible for the management and administration of community land; coordinating the development of community land use plans in collaboration with the relevant authorities; and prescribing rules and regulations. The community assembly ratifies the rules and regulations and governs the community operations. These two institutions are therefore responsible for the formulation of the wildlife conservation and management policy within the respective community land. Section 20 is devoted to conservation of natural resources on community land. It provides that registered communities should abide by applicable laws, policies and standards on natural resources, and further that they should establish measures to protect critical ecosystems and habitats. Registered communities are also required to provide: incentives for communities and individuals to invest in income generating natural resource conservation programmes; measures to facilitate the access, use and co-management of forests, water and other resources by communities who have customary rights to these resources; procedures for the registration of natural resources in an appropriate register; and procedures for the involvement of communities and other stakeholders in the management and utilisation of land-based natural resources. If implemented, these measures can bridge the divide between land rights holding and conservation. They can also stem the impoverishment of communities by conservation initiatives that exclude them. Under Section 28 of the Community Land Act, pastoral communities are entitled to grazing rights within community land. This entitlement is, however, subject to conditions that may be imposed such as: the kind and number of livestock that may be grazed; the part of land the pastoralists may graze on; and a grazing plan. Despite Section 13 of the Act providing for exclusivity of special purposes, the provision has not been strictly observed leading to prevalence of cultural practices that lead to unsustainable land use and inappropriate ecosystem management.111 This has led to severely degraded rangelands, reduced productivity levels and unsustainability due to overgrazing, poor land husbandry practices and conversion of rangeland to crop farming and ultimately to the reduction of land available for wildlife conservation.112 The National Land Use Policy (2017) proposes that the government should address the problem of rangelands’ degradation to secure pastoralists’ livelihoods and tenure to land by: planning and developing rangelands according to their potential in livestock production, tourism, mining and energy production; establishing mechanisms for ____________________ 111 Ministry of Lands and Physical Planning (2017). 112 Ibid: 17. Patricia Kameri-Mbote 238 enforcing adherence to the optimum stocking rates for each area; establishing a framework for livestock management in rangelands including provision of water, pasture and fodder development; discouraging open access to grazing land by and among pastoralists by developing communal grazing area plans; establishing suitable methods for defining and registering land rights in pastoral areas while allowing pastoralists to maintain their unique land systems and livelihoods; ensuring that the rights of women in pastoral areas are recognised and protected; providing for flexible and negotiated cross-boundary access to protected areas, water, pastures and salt licks among different stakeholders for mutual benefit; mainstreaming climate change adaptation and mitigation in rangeland management; and ensuring that all land uses and practices under pastoral tenure conform to the principles of sustainable resource management.113 Section 29 of the Community Land Act provides for setting aside some land within the community land for special purposes, which include community conservation areas. Such areas can only be used for those specific purposes. The community could set up wildlife conservation areas using this provision. Section 35 requires the resources found in the community land to be sustainably and productively used for the benefit of the whole community including future generations. Indisputably, the community assembly, the community land management committee and community members bear a burden of conserving the wildlife resources on community land and sharing the benefits that accrue from such use. Secure tenure for communities, incentives for investments and benefit-sharing are most likely to attract investment in wildlife conservation on community land. Such investments could include wildlife conservation centres run by the communities or by outsiders with the approval of the community. The community must ensure that such investments do not impact on the environment negatively. Communities can also use alternative dispute resolution mechanisms, including traditional dispute resolution mechanisms and mediation, to resolve disputes that arise among land uses or even community members under part VII of the Act. Dispute resolution procedures can be provided for in by-laws developed by the community. Fast-tracked dispute resolution is vital for sustainable conservation of wildlife resources. 3.2 Wildlife conservation The principal statute governing wildlife is the WCMA. While the final version of the policy is yet to be completed, the latest version of the Draft National Wildlife Management Conservation Policy (2017)114 aims to – ____________________ 113 Ibid: 45-46. 114 Ministry of Environment and Natural Resources (2017: 2). Wildlife conservation and community property rights in Kenya 239 …promote a positive cultural relationship between people and wildlife, through the incorporation of indigenous and local knowledge systems; and negotiate a social contract with communities living with wildlife to provide space for wildlife. It also aims at providing fiscal incentives to community owners and “support landowners and communities to set aside wildlife conservation areas and sanctuaries within the framework of approved land use plan of the area”. Other laws that constitute the wildlife conservation legal regime are mainly sectoral laws that govern specific sectors that have an impact on wildlife. Such laws include the Forest Conservation and Management Act (2016), the Environment Management and Coordination Act (1999) (EMCA) and the various land-use planning laws. Article 69 of the 2010 Constitution provides for the protection of biodiversity and natural resources (which include wildlife) by the state. This constitutional provision gives legal and constitutional mandate to the state to put in place laws, measures and policies to ensure the sustainable exploitation, utilisation, management and conservation of the environment and natural resources. It is in this light that the WCMA should be viewed. The EMCA is the framework law for environmental management. Being overarching and cross-sectoral in nature, it has provisions that impact on wildlife conservation in general. For instance, under the EMCA, there is a requirement to conduct an environmental impact assessment before any activity with potential negative consequences on the environment may be carried out.115 Furthermore, before the establishment of a protected area such as a national park or a game reserve, an environmental audit and a licence issued by the relevant authority (National Environmental Management Authority) is required.116 The law also designates Kenya Wildlife Service (KWS) as the lead agency for matters relating to wildlife.117 Land-use planning laws also have an impact on wildlife conservation as they direct the use of land in different parts of the country. Their potency lies in their ability to guide management of natural resource management and can lead to sustainable or unsustainable practices depending on how they are framed. Kenya’s land use policy was only concluded in 2017.118 This implies that land use has historically been haphazardly planned with no proper zoning according to ecological regions. The WCMA establishes KWS as the competent body responsible for protecting, managing and acting as the custodian of the country’s wildlife resources.119 Its functions include liaising with communities and private landowners in management and consultation, and offering security for wildlife.120 Notably, wildlife resources are found in forests, lakes and maritime zones. Cooperation mechanisms between KWS, the ____________________ 115 Section 58 of the EMCA (1999), Cap 387. 116 Ibid. 117 Section 6 of the WCMA. 118 Ministry of Lands and Physical Planning (2017). 119 Section 6 of the WCMA. 120 Section 7 of the WCMA. Patricia Kameri-Mbote 240 NLC, Community Land Management Committees, county governments and the Kenya Forest Service are therefore critical. The cooperation will reduce duplication of roles and blame games that lead to inefficient resource management. Section 11 of the Land Act (2012) requires the NLC to take appropriate measures to maintain public land that has endangered or endemic species of flora and fauna situated on it. This obligation includes demarcating such ecologically sensitive areas in consultation with the relevant institutions. The WCMA mandates the Cabinet Secretary, in consultation with the NLC, to develop a list of endangered species warranting special protection measures.121 This protection is only possible through cooperation between KWS and the NLC. The creation of migratory wildlife corridors is also possible because the Land Act (2012) provides for rights of way and easements, while the WCMA provides for easements and protection orders. The WCMA lays out values that guide conservation of wildlife as follows: devolution of wildlife conservation and management; effective public participation; conservation and management shall be encouraged using an ecosystem approach wherever possible; encouragement and recognition of wildlife conservation as a form of land use on public, community or private land; sustainability; benefits of wildlife conservation be derived by the land user in order to offset costs and to ensure the value and management of wildlife does not decline; and equitable sharing of the benefits accruing from wildlife conservation.122 This Act further defines KWS functions as to: conserve and manage national parks, wildlife conservation areas and sanctuaries under its jurisdiction; set up a county wildlife conservation committee for each county; develop mechanisms for benefit sharing with communities living in wildlife areas; assist and advise in the preparation of management plans for community and private wildlife conservancies; undertake and conduct enforcement activities such as anti-poaching operations, wildlife protection, intelligence gathering, investigations and other enforcement mechanisms to effect the provisions of the Act; promote and undertake extension programs to enhance wildlife conservation, education and training; advise the NLC, the Cabinet Secretary and the Council on the establishment of national parks, wildlife conservancies and sanctuaries; and grant licenses and monitor the observation of conditions of grant of such licenses.123 The WCMA also provides that benefits for wildlife conservation shall accrue to the land user to offset the costs of conservation.124 In addition, benefits accruing from the use of wildlife resources shall be equitably shared between the county and national government, private landowners and communities.125 Essentially, the WCMA ____________________ 121 Section 46 of the WCMA. 122 Section 4 of the WCMA. 123 Section 7 of the WCMA. 124 Section 4(e) of the WCMA. 125 Section 19 of the WCMA. Wildlife conservation and community property rights in Kenya 241 introduces incentives to encourage conservation of wildlife by all stakeholders and as a source of income.126 It also provides for the establishment of a Wildlife Endowment Fund whose functions are to: develop wildlife conservation initiatives; manage and restore protected areas and conservancies; protect endangered species, habitats and ecosystems; and support wildlife initiatives.127 To conserve wildlife, the Cabinet Secretary, upon recommendation of the relevant county government and after consultation with the NLC, may declare by notice in the Gazette any land under the jurisdiction of the county government to be a national reserve where such land is rich in biodiversity and wildlife resources, contains endangered species or is an important wildlife buffer zone, migratory route or dispersal area.128 In the same spirit, the Cabinet Secretary may: acquire by purchase any land suitable to be declared a national park, wildlife corridor, migratory route or dispersal area under the Act;129 or by notice in the Gazette publish a national list of wildlife ecosystems and habitats that are endangered and threatened and are in need of protection on the advice of the KWS and in consultation with the NLC.130 The WCMA provides the framework for setting up community wildlife associations or conservancies in Kenya.131 Once registered, the conservancy is mandated to prepare management plans for the conservation of wildlife; assist KWS in combating illegal activities such as poaching and bushmeat trade; assist in problem animal control; and keep regional wildlife conservation areas informed of any development changes in their area that may affect wildlife.132 Landowners are encouraged to donate land to the national government, county government, community or educational institutions for wildlife conservation.133 The Act provides that any person or community who owns land inhabited by wildlife may individually or collectively establish a wildlife conservancy or sanctuary in accordance with the Act and the Wildlife Conservation and Management (Conservancy and Sanctuary) Regulations (2015). A community under this regulation is defined as a group of individuals or families who share common heritage or interest in an identifiable piece of land or natural resources. The regulations provide a procedure for the establishment and registration of conservancies; to promote the development of conservancies on private and community land; and to harmonise the standards for maintaining the conservancies. KWS is tasked with the duty of registering conservancies. To register a conservancy, the community is required to submit: a concept proposal in the format provided ____________________ 126 Section 70 of the WCMA. 127 Section 23(3) of the WCMA. 128 Section 35(1) of the WCMA. 129 Section 38(2) of the WCMA. 130 Section 46(1) of the WCMA. 131 Section 40 of the WCMA. 132 Section 41 of the WCMA. 133 Section 42 of the WCMA. Patricia Kameri-Mbote 242 in the 5th schedule in not more than 1,000 words; a benefit-sharing plan; minutes of conservancy members agreeing to the establishment of the conservancy; and a receipt signifying the payment of the requisite fee. Qualifications for registration are set out in Section 10 and include an indication of the following: the acreage of the land to be dedicated to conservation; a concept proposal by the applicant; a land tenure system; the socio-economic and ecological viability of the conservancy; the diversity of the wildlife resources; and contiguous land use patterns and their effect on the proposed conservancy. Upon successful registration as a conservancy, a certificate is issued to the applicant. It is important to point out that many individuals and communities had already established conservancies before the enactment of the WCMA.134 The Act is, however, important as it provides the framework for the management of all conservancies. 3.3 Wildlife conservation on community lands The problems identified as plaguing conservation on community lands before the promulgation of the 2010 Constitution included: land tenure insecurity; a failure to provide for multiple and compatible land uses through zoning; the lack of a legal framework for involving local communities in sustainable wildlife management despite the fact that wildlife shared land with communities and that the bulk of wildlife is outside protected areas; the fact that communities had no rights to wildlife resources; the lack of a legal basis for claiming part of the benefits accruing from wildlife conservation and management or appropriating any value of wildlife despite the fact that they were obliged to keep the wildlife on their land and bear the cost thereof; and the absence of incentives for landholders to conserve wildlife on their land. Other problems included the degradation and overuse of community land, which impacted on the ecosystems shared with wildlife. The 2010 Constitution, the WCMA, the Community Land Act and their accompanying regulations have addressed these issues. What now remains is the implementation of these legal and policy provisions. Once successfully implemented, communities should be able to contribute to wildlife conservation and benefit from their efforts. ____________________ 134 The Northern Rangelands Trust had already established about 15 community conservancies in Northern Kenya and a number of community conservancies had been established in the Narok area. Private land owners had also established conservancies in areas like Laikipia and a Kenya Wildlife Conservation Association had been set up. Wildlife conservation and community property rights in Kenya 243 4 Conclusion Wildlife conservation is now every citizen’s responsibility regardless of the category of land on which wildlife resources may be situated. The enabling legal and policy framework is in place for everybody’s participation with incentives provided for landowners to avail their land for conservation. The National Land Use Policy (2017) provides an opportunity to synergise land tenure and land use. It requires that the allocation of land and issuance of title deeds be done on the basis of approved physical development plans; approved survey plans; approved local area zoning regulations; and policy guidelines. It also provides that areas of public land that have been identified as having high public value (such as watershed protection, important botanic or wildlife habitat and/or landscape values, cultural significance, road reserves for potential future highways) should not be allocated except under leases with conditions that reflect the high value or period by which the land may be required for a reserved use. The crafting of community area conservation plans taking into account human, livestock and wildlife needs will contribute to sustainable management of community lands and resources on them. References Akech, JM (2001) Rescuing indigenous tenure from the ghetto of neglect. Anon (2014) “Kenya to sink Sh 10 bn into land for new railway” Daily Nation (16-6-2014). Anyanzwa, J (2016) “Changes to Kenya’s land laws to tame cost of public projects and debt” Daily Nation (4-9-2016). Blackstone, W (1769) Commentaries on the laws of England. 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World Conservation Monitoring Centre Kenya (1998) Conservation of biological diversity and forest ecosystems. 247 Chapter 11: Criminal law protection of wildlife reserves in Cameroon Marie Ngo Nonga 1 Introduction Given its privileged geographical situation, nearly 92% of Africa’s ecosystems are represented in Cameroon. It is, therefore, a country that is very rich in biodiversity. However, these biological resources are abundantly exploited both by the state and by the local populations, which have many of their activities primarily focused on the exploitation of natural resources. In fact, despite the legal status of protected areas,1 wildlife reserves maintain their nurturing and health functions for the local populations, and the resources they contain are sought after for food, commercial, medicinal and cultural purposes. They highly contribute to the annual revenue of the state of Cameroon. There are six wildlife reserves situated in different regions of Cameroon: Dja in the south; Douala-Edea and Lake-Ossa in the Littoral; Kimbi and Mbi-crater in the northwest and Santchou in the west.2 Wildlife reserves are an integral part of what are commonly called protected areas. They are geographically defined areas managed to achieve specific conservation and sustainable development objectives of a given resource or resources.3 A wildlife reserve is, therefore, an area set apart for the conservation, development and propagation of wild animal life, as well as for the protection and development of its habitat. Within these reserves, hunting is prohibited unless authorised by administrative authorities, and/or where other human activities are regulated or prohibited.4 ____________________ 1 The story of the birth of protected areas around the world began in the American State of Wyoming with the creation of Yellowstone National Park in 1872. On the African continent, the very first area is the Sabie Game Reserve of South Africa which became the Krüger National Park in 1898. In Cameroon, the first protected areas were created on 12 June and 19 November 1932, Mozogo Gokoro and Benue. To date, Cameroon has nearly 20 protected areas, national parks, reserves and sanctuaries, the touristic and eco-touristic assets of which are undeniable. 2 Gonmadje et al. (2015: 48). 3 Article 2 of Decree No. 95/466/PM of 20 July 1995 to lay down the conditions for the implementation of wildlife regulations. 4 Article 2(7) of the same Decree. Marie Ngo Nonga 248 According to the National Environmental Management Programme (NEMP), Cameroon’s wildlife has an immense potential of specimens5 and is home to nearly half of the protected animal species in Africa.6 It also has a varied biological diversity. Despite the exceptional character and legal status conferred on wildlife reserves, their degradation has accelerated in recent years. Cameroon ranks second in the 2013 world ranking by the International Union for Conservation of Nature (IUCN) of countries in which a significant number of major species are threatened, with a total of 260 species at risk. The causes of degradation of wildlife reserves and their biodiversity are multiple and intrinsically linked to the development of human activities. The first is commercial poaching, aggravated by the frustration and impoverishment of local populations that depend on these resources for their subsistence needs. Secondly, people hunt the rarest animal species and harvest plant species with high market value.7 It is also necessary to mention the precarious conditions in which state agents in charge of monitoring wildlife reserves live and which make them particularly vulnerable to corruption and excessive complacency towards poachers. Furthermore, the insufficient technical and financial capacity of the forest administration is another factor threatening wildlife reserves. They lack modern equipment and watchtowers, which are necessary for viewing and identifying species and especially essential to observing the dynamics of species in order to prevent possible attacks and incursions by hunters. Finally, the lack of cohesion in the policies relevant to protected area management is another source of their decline. Authorities continue to encourage the harvesting of animals by issuing a high number of licences and hunting permits, notwithstanding the unprecedented extinction of protected species and the subsequent destruction of biodiversity. Most environmental problems observed in wildlife reserves do not stem from the natural vulnerability of the ecosystems, but from the irrational management of these resources. It is, therefore, important to strengthen the effectiveness of the legal framework relevant to protecting wildlife reserves. Cornu’s legal vocabulary defines protection as follows:8 the precaution which, in response to the need of the person or what it covers, and generally corresponding to a duty for the person ensuring it, consists in protecting a person or good against a risk, in guaranteeing their security and integrity by legal or material means; it designates both the action of protecting and the laid down system of protection (measure, system, arrangement...). ____________________ 5 PNGE (1996: 87). 6 Tchindjang et al. (2006: 17). 7 In this regard, see Judgement No. 1718/COR of 12 July 2010 of the Douala Court of First Instance against Amiah Awudu, Yeboa Eric and Osei, all three of Ghanaian nationality found guilty of hunting without the necessary hunting licences and permits. 8 Cornu (2011: 815). Criminal law protection of wildlife reserves in Cameroon 249 The protection provided by criminal law, therefore refers to a set of repressive legal means (legal and jurisprudential) adopted by a state or a community to ensure respect for public order in general and specifically for the elements that the law seeks to protect. Criminal law therefore has a key role to play in the environmental policy context, which is strongly imbued with the principle of prevention, insofar as it provides for the imposition of sufficiently dissuasive sanctions on possible offenders. As concerns environmental matters, criminal law, which deals with offences and sentences,9 and the laws establishing them,10 aims to enact legal and regulatory measures that prevent and sanction biodiversity offences. It thus covers a heterogeneous set of norms from parliament, government or international agreements. These are measures that address biodiversity protection, deal with offences and sanctions, and regulate the conservation, sustainable use or exploitation of biological resources and the fair and equitable sharing of benefits that stem from the use of genetic resources.11 The biological diversity,12 or variability of living organisms of all origins (individuals and populations)13 and the ecological complexes of which they are part, includes diversity among species and between species and ecosystems.14 According to the Convention of Biological Diversity (CBD), biodiversity includes landscape diversity including an ecological15 or cultural16 sense of a given region. However, this chapter focuses on protecting biodiversity in wildlife reserves through criminal law measures. The level of protection of different species depends on whether they are fully or partially protected. Section 2(8)(a) of Decree No. 95/PM/466 of 20 July 1995 lays down conditions for the implementation of wildlife regulations, underlining the preservation of endangered animal, plant and habitat species. This chapter, therefore, focuses only on “protected” threatened plant and animal species as well as the environment and habitats necessary for the life of these species. ____________________ 9 Trousse (1956). 10 Haus (1873: 1). 11 Article 1 of the Convention on Biological Diversity. 12 Biodiversity, comes from the Greek word “bios” that means “life” or from Latin word “diversitas” which is the contraction of the biology diversity concept. However, the use of the term in its contracted form is from the biologist Wilson following a presentation in 1985, see (accessed 12-7-2018). 13 De Sadeleer & Born (2004: 17). 14 Article 2 of the Convention on Biological Diversity. Ecosystem diversity refers to different habitats or environments that exist on earth like tropical or temperate forests, hot or cold deserts, wetlands, lakes, mountains, shrub steppes, and coral reefs. 15 In the ecological sense, the landscape refers to a portion of heterogeneous territory composed of interrelated sets of ecosystems, and is characterised by geomorphological and climatic constants. 16 A cultural landscape refers to a topographically defined territory whose aspect results from the combined action between the nature and man. Defined by the World Heritage Committee (No. 231), it refers to Category V of protected areas. Marie Ngo Nonga 250 Today, environmental protection appears as an imperative towards which many policies17 must converge in order to ensure their effectiveness.18 From this point of view, criminal law seems to be an essential tool, at least when the sanctions it enacts are both dissuasive and proportionate in the protection of biodiversity. Environmental offences may be subject to both criminal and administrative sanctions. In fact, the Forestry Law of 1994 allows the administrative agents to impose sanctions against perpetrators of offences in the wildlife reserves and apply transactional fines with the authorisation of the State Counsel. These administrative and criminal sanctions have a punitive and restorative aim. This implies the possibility of imposing administrative fines for all environmental offences. In Cameroon, these administrative sanctions are implemented, not alongside criminal sanctions, but often in their stead. This is sometimes ambiguous because they mask the legibility and coherence of environmental policies. In this respect, the effectiveness of these sanctions in deterring prohibited conduct may be questioned, especially since criminal sanctions have a reputation of being ineffective, and even inappropriate.19 The perceptible contrast between criminal provisions and the persistence, or even aggravation, of environmental problems they are supposed to solve, raises the question of the role of criminal law in promoting sustainability. While the author partially agrees with the doctrine20 linking this ineffectiveness to the disregard for local customs and practices, the fact remains that this ineffectiveness is primarily dependent on the very nature of repressive provisions that protect wildlife reserves in Cameroon, and especially their lax application by courts. Beyond the subjectivity of judgements concerning the state of criminal law,21 legislative drafting today should look for a more rigorous approach taking into account the forms and causes of damages to the environment. If the protection of certain aspects of forest biodiversity has already been examined in some works22 in Cameroon, very few consider it in relation to the legal value of protected property.23 Yet this vision would not only set the limits of criminal law protection but also guide the choice of the most adequate incrimination technique to ensure appropriate protection of biodiversity. Thus, the construction of incriminations as concerns environmental questions should, as a matter of priority, take into consideration biodiversity as a preserved social value, disconnected from all the links with human interests, while totally integrating man in everything that makes up the environment. This conception implies a global vision of biodiversity that promotes both the ____________________ 17 Tunc (1977: 31-35). 18 We speak of effectiveness when the law enforcement bodies apply the criminal sanction. 19 Fossier (2017: 1). 20 Nguiffo & Talla (2010: 61). 21 Albertini (2015: 331). 22 Nguiffo (2001); Triplet (2009: 7); Bille & Picard (2007: 27); and WafoTabopba (2008: 9). 23 D’Ambrosio (2015: 90). Criminal law protection of wildlife reserves in Cameroon 251 analysis of species and their habitat and which would include local residents as potential victims of the degradation of their living environment. The destruction of biodiversity has repercussions on all living things and necessarily affects the quality of life of humans, their health, feeding and that of their children, etc. With the disappearance of medicinal and consumable species, the first victims of destruction are the local residents who see their livelihoods becoming scarce24 and their fundamental right25 to a concrete and visible26 quality environment violated. The putting in place of a criminal policy in the domain of wildlife reserve management in Cameroon is at the heart of the dialectic between the will to preserve ecological balance and the generally preeminent desire to, in no way, disrupt the development of economic activities. This is surely what justifies the contrasted application of existing repressive norms. 2 A textual application of the criminal law protection of biodiversity in the wildlife reserves of Cameroon The violation of the standards regulating use, exploitation and management of fauna resources within the protected areas is criminally punishable even if these standards remain bound to administrative law.27 This category of administrative sanctions is apprehended more widely as one applied by the public administration.28 The essential of the definition of the offence is dictated by administrative authorities and supplemented by an external definition.29 In this respect, for the wrongful conduct to be sanctioned, it must necessarily be cumulated with non-compliance with an administrative regulation.30 These sanctions are mainly aimed at protecting endangered animal species and secondarily at protecting the surrounding biodiversity. ____________________ 24 Thus considered, it seems interesting to raise the awareness of local communities on the urgency and importance of their participation to the improvement of their condition, since it is up to them to gather all the necessary efforts to maintain and increase the productivity of protected species by adopting sustainable management methods. 25 Prieur (2003). The fundamental right to a quality environment refers to “the right for everyone to live in a balanced and healthy environment”. This is an absolute necessity for Man whose existence on earth as well as the development goals seem seriously compromised by human activities. 26 Prieur (2005: 1160). 27 Ost (1995: 287). 28 Perrier (2017: 1). 29 Estupinal-Silva (2015: 66). 30 Deffairi (2016: 176). Marie Ngo Nonga 252 2.1 An increased criminal law protection of endangered species The Cameroonian legislator has chosen to map out geographic areas regulating access to and use of their resources. This technique is favourable for the survival of wildlife species and their development in their natural habitat.31 This involves reserving part of the public domain by enacting police regulations in order to prevent damages to biodiversity32 and, in certain cases, to reduce the sometimes irreversible,33 pressure exerted by individuals on nature. With the creation of wildlife reserves, the legislator was more interested in things – in this case the endangered wildlife – that are not yet “patrimonialised”34 or individualised in a certain manner, but that can be dynamic and/or changing. That is why the legislator has resorted to criminal sanctions as a guarantee for the application35 of environmental standards. The criminal norms for protecting the fauna are contained in various texts.36 They criminalise behaviours that violate administrative and regulatory provisions related to the environment. In this respect, the law establishes a set of actions that are subject to strict prohibition or regulation, the violation of which becomes an offence; but as a general rule, it can be seen that the administrative authorities have the power to impose pecuniary sanctions in any case, to sanction either the lack of authorisation to hunt or the non-compliance to applicable rules.37 It is for this reason that the company Saf Bois was sentenced to pay a fine of 3,980,000 FCFA for exploiting the national estate without authorisation.38 Traditional hunting is the only form of hunting that is carried out without a licence as long as it remains non-commercial. This right was acquired since colonial times39 and concerns rodents, small reptiles, birds and other animals of Class C.40 However, in order to limit its degrading effects41 on biodiversity, it was regulated and limited to ____________________ 31 Ly & Ngaide (2008: 89). 32 Martin (1995: 135); Martin (1992: 11); and Clay (2003: 1489). 33 For a research, see Fritz-Legendre (1998: 96); and Cans & de Klemm (1998: 119). 34 Tricot (2015: 145). 35 Beccaria (1856: 57). 36 Finally, hunting without prior authorisation of wildlife species classified on lists B and C which contain animals open to hunting is totally prohibited in accordance with the provisions of Section 15 of Decree No. 95/466/PM. Section 85 of the framework law of 5 August 1996 on the environment extends the competence of environmental sanctions to the Penal Code and to specific laws applicable to environmental protection. 37 Bush meat is subject to trade, but in addition to the existence of a list of protected animals contained in Order No. 0565/A/MINEF/DFAP/SDF/SRC, administrative authorities condition this activity to the respect of transparency and traceability standards contained in the Washington international convention of 3 March 1973 on the trade in endangered wildlife, ratified on 5 June 1981. 38 Ministry of Forests and Wildlife, press release No. 031/MINFOF/CAB/BNC of 5 July 2005. 39 Kamto (1996: 148). 40 Section 24 paragraph 2 of Decree No. 95/4466/PM. 41 Mafoua (1991: 122). Criminal law protection of wildlife reserves in Cameroon 253 the slaughter of authorised games. All other forms of hunting, regardless of the method used, are either prohibited or subject to authorisation. This is the case with sport hunting usually carried out by tourists with weapons authorised by law.42 Administrative penalties that can be applied are of various types and levels of severity: they range from the suspension or revocation of the hunting permit or licence to the confiscation of the products harvested, or the restitution and even the injunction for the restoration of the degraded place.43 Thus, Section 71(1) of Decree No. 95/466/PM of 20 July 1995 lays down the conditions for the implementation of wildlife regulations providing that the approval given to an operator can be suspended or withdrawn by the administrative authorities and suspension is pronounced in case of recidivism.44 In this case, it is no longer the lack of authorisation, but the non-compliance with the rules governing the practice of hunting. In the same vein, Section 144 of the Forest Law allows the administration to sell the seized perishable products by public auction.45 Section 142 of the same law provides that the sworn agents shall, upon the finding of the facts, seize the wrongly harvested products and the articles used to commit the offence and draw up a report. They exercise a right of action against offenders. Under the system of administrative authorisation, the criminal law protection of wildlife reserves is “somewhat masked by the protection of administrative action”46 exercised by officials of the Ministry of Forests. Through this mechanism of textual anticipation, the legislator incriminates offences against wildlife by establishing a presumption of risk with respect to certain human behaviours. This anticipation allows, at least ideally, the prevention of abusive infringements of protected species, but also, and above all, facilitates the incrimination procedure, especially through the insistence on the proofs of the offence. In this respect, it seems possible to conclude, that poor knowledge of environmental standards, even if it does not immediately cause damage to the wildlife environment, is likely to lead to the punishment of its perpetrator. This is how environmental offences are managed by the criminal law that ensures the protection of endangered species through monitoring and planning by the administration. In this regard, the application seems close to the repressive law of the environment through the severity of the means used47 to protect endangered fauna species. Given that they are pronounced very rapidly by the administration because of their simplicity and especially the immediate knowledge of the infringement, administrative sanctions generally precede criminal penalties. Once pronounced, and when the ____________________ 42 According to the provisions of Section 29 of Decree No. 95/466/PM of 20 July 1995. 43 Prabhu (1994: 669). 44 In the commission of an offence punishable by a fine of at least 3,000,000 FCFA. 45 Or by mutual agreement, in the absence of a bidder, by the competent administration, except for those that are dangerous or damaged. 46 D’Ambrosio (2015: 90). 47 Estupinan-Silva (2015: 26). Marie Ngo Nonga 254 measures they ordered enforced, or the lack of hunting permit regularised, criminal action is no longer necessary. But, on closer inspection, these measures are more regulatory than punitive. The punitive logic becomes secondary since the non-respect of these administrative measures may be subject to criminal sanctions. In this regard, the law of 1994 sets up criminal sanctions for some offences committed in wildlife reserves in Cameroon and the penalties provided for are applicable without prejudice to confiscations, restitution, damages and remediation of the site as ordered by the administrative officials. These penalties are doubled in the event of recidivism or if it is a sworn officer of the competent administration or a judicial police officer with general jurisdiction who commit the corresponding offences, or if they are accomplices. This is without prejudice to the administrative and disciplinary sanctions. The penalties are also doubled for any hunting with the use of chemical or toxic products, violation of forest control barriers and in the event of a hit-and-run offence or refusal to comply with the injunctions of control officers. Furthermore, unauthorised traffic in a protected area is punishable with a fine of from 5,000 to 50,000 FCFA and/or imprisonment for ten days.48 Section 155 of the 1994 Law provides for a term of imprisonment of from twenty days to two years and a fine of from 50,000 to 200,000 FCFA or one of these sentences, against any person engaged in hunting without the required licence or permit.49 In addition, the sentences set out are in principle applied without a stay of execution or mitigating circumstances50 as provided for by criminal law.51 However, Cameroonian jurisprudence rather seems lenient against offenders and imposes very light sentences, often whimsical and reduced by mitigating circumstances and stay of execution.52 For instance, the Yabassi Court of First Instance, after finding the defendant guilty of slaughtering and moving around protected animals without a hunting permit, granted him mitigation circumstances.53 Similarly, the Court of First Instance of Ebolowa by Judgement No. 480/COR of 6 September 2011, sentenced the defenders, found guilty of illegally keeping fully protected animals and capturing Class A species without a capture permit, to two months imprisonment and 150,000 and 100,000 FCFA fine respectively. This stand of Cameroonian jurisprudence is in contradiction with the repressive environmental provisions, in particular, ____________________ 48 Section 154 of law No. 94/01 of 20 January 1994 to lay down forestry, wildlife and fisheries regulations. 49 Section 91 and following of the law of 20 January 1994. 50 Section 87 of the framework law of 1996 on environmental management in Cameroon. 51 Section 54 and 94 of Cameroon’s new Penal Code of 2016. 52 The Judicial decisions sanction the capture of Class A species without licence (cf. the Yabassi Court of First Instance, Judgement No. 43/COR of 4 November 2003), the marketing of Class B animals without collection permit or certificate of origin, the slaughtering of protected animals without a hunting permit, the detention and illegal marketing of panther skin, etc. 53 Yabassi Court of First Instance, Judgement No. 43/COR of 4 November 2003. Criminal law protection of wildlife reserves in Cameroon 255 Article 87 of the 1996 framework law. It is a position that is likely to encourage negligent or fraudulent behaviours or even the express violation of the law by offenders. As it can be seen, repressive environmental law is multidimensional in nature.54 It makes the distinction between administrative offences and purely repressive offences. The purely repressive offences consist of acts or omissions relating to the destruction of wildlife species, depletion or management of natural resources. The penal legislator does not necessarily require a material element of the result. To this end, the infringement is established when the existence of a behaviour endangering the life of the protected animal species is proven. Thus, the Court of First Instance of Yaounde administrative centre found a defendant guilty of illegally detaining ivory tusks and marketing game trophies55 and sentenced him to a 30-day suspended prison sentence and a fine of 100,000 FCFA. The same sentence was applied to a person convicted of possessing and selling elephant trophies.56 If at first sight, such a position seems to violate the principle of nullum crimen sine injuria as denounced by the doctrine.57 At the practical level it allows, however, for the rehabilitation of the object of the offence by annihilating the requirement of causality and result.58 Criminal liability requires criminal intent,59 but this intent is equated with gross negligence in environmental criminal law, for environmental crimes are not often isolated facts, but continuous facts where actions and omissions blend with a psychological aspect often linked to negligence rather than intent. Wildlife liability may affect not only individuals but also legal entities. To this end, Article 150(1) of the law of 20 January 1994 states that: “Any individual or legal entity found guilty of violating the provisions of this law and its implementing instruments shall be liable and punishable in accordance with the penalties provided therefor”. Thus, Cameroonian environmental law is concerned with the criminal enterprise and henceforth permits the inclusion of legal persons and administrative agents involved in the commission of an offence within the circle of responsibilities.60 Furthermore, in providing for offences for failure to comply with legal requirements, the legislator sets a presumption of knowledge of the rules against the offender and, at the same time, excludes the error of law as a defence and retains only the factual error or lack of diligence. This solution of environmental criminal law seems interesting since it allows for proactive action, before the realisation of any hindrance, so as to prevent reprehensible behaviours.61 Here, the penal legislator will not make the ____________________ 54 Estupinan-Silva (2015: 26). 55 Yaounde Court of First Instance, Judgement No. 1201/CO of 17 December 2003. 56 Ibid. 57 Carraccioli (1994: 1013). 58 Minko-Ndongo (2015: 45). 59 Kalda (2014: 51). 60 Article 150 paragraph 2 the law of 20 January 1994. 61 It is an anthropocentric vision that considers environmental protection as a means of protection of the human interests and not as an intrinsically protected value by itself. Marie Ngo Nonga 256 reprehensible behaviour disappear, but rather try to make it as respectful as possible of the critical state of biodiversity in the wildlife reserves. Consequently, protection and liability may present an apparent contradiction.62 In fact, holders of permits or licences to hunt or slaughter protected species are exempted from the criminal responsibility, even when they capture an endangered species. It is, however, regrettable that Cameroonian courts only marginally engage criminal actions against perpetrators of massive destruction of the wildlife. These jurisprudential hesitations may be indicators that could prompt legislative action for the acknowledgement of an autonomous place of repressive law within Cameroonian criminal law. 2.2 An indispensable protection of biodiversity in wildlife reserves In order to preserve biodiversity in the wildlife reserves, the Cameroonian legislator has established a set of criminal rules to stop the threat of their impoverishment. Sustainable protection of species can only be guaranteed if living conditions are also guaranteed. In this respect, the preservation of the tropical fauna also implies the preservation of the living space of wild animals. It is within this perspective that, in defining the wildlife reserve, the legislator refers it to the natural habitat of species.63 The legislator has made a choice of a conservation policy of natural ecosystems and habitats and a policy of maintaining and restoring viable populations in their natural environment.64 Although not explicitly specified by the legislator, it is conservation in situ,65 which implies monitoring and protection of the wildlife found in a given space and which is of a certain interest for man. This conservation, entails less cost66 than ex situ conservation67 and extends to nearby zones to protected areas. This technique increases the limits of criminal law protection, by promoting sustainable and ecologically sound development. These areas are generally places where feed is available or that are suitable for nesting and mating.68 Article 154 of the law of 20 January 1994 provides that contacts with neighbouring populations of wildlife reserves should be as little as possible. ____________________ 62 Tricot (2015: 145). 63 Article 2(7) of Decree No. 95/466/PM 20 July 1995 to lay down the conditions for the implementation of wildlife regulations. 64 Article 2 of the 1992 Convention on Biodiversity. 65 It is not clearly stated in the text that wildlife reserves would be the subject of the in situ conservation, but there is no indication to the contrary; and according to Article 9 of the Convention on Biodiversity, measures adopted for the ex situ conservation complement those taken for in situ conservation. 66 Gonmadje et al. (2015: 46). 67 Guideline No. 2004/35/CE, Appendix II, Article 1(d). 68 ITIO Directive for the Conservation and Sustainable Use of Biodiversity in Tropical Timber- Producing Forests, Development Policy No. 17 OIBT/ITTO/UICN 2009 2. Criminal law protection of wildlife reserves in Cameroon 257 To this effect, any provocation of wild animals is forbidden. Similarly, freedom of movement is also restricted. In addition, the legislator sets up buffer zones69 located at the periphery of wildlife reserves that enjoy the same criminal law protection as the overall biodiversity. The criminal law insists on the protection of endangered species and provides, to that effect, a set of measures that regulate all human activities likely to have an impact on them and their living environment. This is the case with the prohibition of bushfires and any activity that could affect, in one way or the other, the living environment of protected organisms within wildlife reserves. Indigenous and local populations cannot freely exercise their right of use on the preserved space. The exploitation of products of reserves is only allowed if it does not alter the course of forest productivity. The new Penal Code, in Articles 187, 187(1) and 227, as well as the law of 20 January 1994 in Articles 155 and 156 penalise fire, destructions and any other form of degradation. The penalty is doubled if the perpetrator or the accomplice is in a state of recidivism or belongs to the administrative body. The protection of biodiversity in wildlife reserves seems essential insofar as it is necessary to protect the entire environment where the endangered species live. It is therefore important to provide an adequate response to environmental management as a whole by including all the components of the ecosystem because there is no sustainable development that does not take into account this essential fact, especially the one that wild flora and fauna are unpredictable natural elements. Forest degradation could have a negative impact on the communities that live within them and whose means of subsistence largely depend on products found in their living environment. For this reason, the use of forest resources and space is subject to a strict legal framework that limits its duration and extent. Thus, all uses for economic purposes are subject to obtaining a permit from the forest administration and must comply with the objectives set by the latter. The law justifies this incursion into the private domain by ecological motivations, the imperative nature of which explains the necessity for the State to intervene, at the expense of the owner. Thus considered, the concessions authorising wildlife management are limited in time (15 years renewable once). They are also limited in space (200,000 ha) and material extent of the right transferred to the licensee. The legislator also regulates the prerogatives of the populations resulting from the appropriation and use of lands, keeping only those that allow for biodiversity conservation. Some of these prerogatives regulated include the mutilation of protected species, grazing, logging,70 etc. The aim is to contribute to the protection of ____________________ 69 Kamto (1996: 203). 70 Ibid: 200. Marie Ngo Nonga 258 biodiversity by developing measures to regulate activities likely to have a negative impact on the survival of wild animal species71 and their natural environment.72 Despite the existence of all the aforementioned conservation measures with criminal penalties for non-performance, the state of degradation of wildlife reserves of Cameroon continues to worsen. It seems that economic interests are taking precedence over environmental considerations. This is because it is difficult to reconcile what cannot be reconciled, in other words, to optimise the exploitation of wildlife resources while taking into account the imperative of sustainable development, and especially to fight against poverty effectively. The helplessness of the administrative agents, if not their inability to rigorously react after each serious attack to the biodiversity, bears witness to this reality. Therefore, the effective enforcement of the environmental criminal law in force in Cameroon is far from being a priority. However, penal sanctions play a considerable preventive role in environmental matters, because as Plato recalled in the antiquity:73 He who cares to punish cleverly do not strike because of the past - what is done is done - but for anticipation of the future, so that neither the culprit nor the witnesses of this punishment be tempted to begin all over. Repressive texts do set criminal sanctions against biodiversity offenders, but these texts are rarely applied to the intended extent. In any case, the lack of vitality of criminal law in environmental matters, and especially the side-lining of local residents in the drafting of criminal policy in the domain of biodiversity protection seems to explain the gap that still exists between the drafting of standards and their practical implementation. 3 A contrasted real application of repressive rules in the protection of biodiversity in wildlife reserves Urbanisation, intensive exploitation of soils, mines and quarries, agriculture, the development of infrastructure74 and demographic explosion are all causes of destruction of the habitats of species and consequently of the biodiversity crisis. Indeed, the fundamentally anthropocentric vision of the world pushes men to place their interests over those of non-human entities, despite the repressive measures that can be taken to ensure the conservation of the latter. Thus, infringements on biodiversity are commonplace in spite of penal sanctions provided for to this effect by the legislator. Several factors can justify this situation including the ambiguous and limited nature of the ____________________ 71 Prieur (2004: 8). 72 Despax (1980: IX 8). 73 Plato (1984: 39). 74 de Sadeleer & Born (2004: 15). Criminal law protection of wildlife reserves in Cameroon 259 penal provisions that regulate activities in the wildlife reserves of Cameroon and their inadequacy with the contemporary environmental requirements. 3.1 The ambiguity of repressive provisions for the protection of biodiversity in wildlife reserves A reading of the repressive provisions punishing offences committed in Cameroon wildlife reserves reveal, at first glance, a lack of cohesion and above all a lack of convergence between the various sanctions provided for in cases of violation. This is likely to generate conflicts of the laws and especially a competitive dynamic between the various texts that can be applied. The competition is necessary with regard to the transaction that is easily proposed by the administration75 since the 1996 framework law on environment provides that the public action shall cease when the perpetrator has fulfilled all the obligations resulting for him from the acceptance of the transaction within the time limit set.76 This competition results in the termination of criminal proceedings following the execution of administrative sanctions. The transaction replaces criminal prosecution, since it is implemented in their stead. This distinguishing effect of criminal prosecution is all the more disconcerting as the environmental transaction has a very wide field of application in Cameroonian law. In fact, pursuant to Article 91(1) of the framework law of 1996, the administrations responsible for environmental management have full power to make a deal.77 Thus, it is possible for the administration to implement the transaction for any environmental offence provided for by the legislator. It should be noted that the Cameroonian legislator has not set any limit that would exclude the transaction for offences of particular gravity for the biodiversity either because of the consequences that they could engender, for example, the definitive extinction of a species protected or because of the modus operandi. Owing to the fact that it allows a fine to be proposed to the offender, the amount of which may not be less than the minimum amount of the corresponding criminal fine,78 it seems obvious that the environmental transaction is repressive. This is especially so since the transaction is most often the concertation between the prosecution and the competent administrative authority.79 It allows the administration to propose a sanction of a punitive nature. The environmental transaction provides a simple, quick and inexpensive response to offences concerning biodiversity violations in wildlife reserves of ____________________ 75 Mayer (2014: 523). 76 Section 146 and following of the law of 20 January 1994. 77 Also see the provisions of Articles 146 and 147 of law No. 94/01 of 20 January 1994. 78 Article 91 paragraph 2 of the framework law of 1996 on environmental management in Cameroon. 79 Perrier (2017: 2). Marie Ngo Nonga 260 Cameroon. However, it is important to know whether these transactional measures are effective and dissuasive enough to ensure the prevention of damage to biodiversity. While it is undeniable that environmental transaction provides a repressive response to the offence on biodiversity, its effectiveness in preventing such harm is questionable. Indeed, the transaction is not dissuasive. This lack of deterrence should encourage the Cameroonian legislator to limit the recourse to transaction only to minor infringements. For more serious offences, including illegal hunting of endangered species, it would be preferable to resort to sufficiently severe criminal sanctions. It is possible that the mere threat of imprisonment can help to achieve the prevention goal as sought for in international standards. Moreover, it is not always obvious to have sufficient coherence in the penalties provided for by the Cameroonian legislator. The Penal Code provides for stronger penalties, with heavier prison sentences than the specific texts applicable to wildlife reserves. Thus, Section 155 of the Penal Code provides for, apart from the fine, an imprisonment term of 20 days to two months for the felling of protected trees. Section 184 of the Penal Code penalises a degradation of public or classified property by imprisonment from one month to two years. The same applies to the burning and destruction of property for which the Forest Law provides a prison sentence of six months, while the Penal Code sets a prison sentence from three to ten years. More so, when cases are brought to court, flexible sentences are often applied to offenders. The Ebolowa Court of First Instance, for example, sentenced a defendant to only two months in prison and a fine of 150,000 FCFA for illegal detention of fully protected animals and the capture of Class A species without a permit. The discrepancies between the various criminal penalties are due to the fact that the forestry law focuses on taxation to the detriment of penal rigour. In fact, the legislator favours the pecuniary nature of penalties in disregard of the deterrent impact that could have more severe incriminations on the behaviour of those that the penal norms target. For example, Article 75 of Decree No. 95/466/PM favours the confiscation and auctioning of products from poaching, to the benefit of the administration. In practice, this criminal policy implemented in environmental matters does not have the desired effect on offenders because the amounts allocated for damages resulting from the commission of wildlife offences are often derisory in relation to the gravity of the offence. Imposing fines as the only criminal sanction applicable in the event of a violation of repressive environmental provisions does not seem judicious insofar as it seems insufficient compared to the severity of damages on the environment. In some cases, damage are irreversible, such as the complete disappearance of the western black rhino from Cameroonian territory in 2011.80 Generally, many factors contribute to the degradation of biodiversity in Cameroon. The role that criminal legislation should play is to adopt means and instruments that ____________________ 80 For research see Prouteau-Lagrot (2007: 80). Criminal law protection of wildlife reserves in Cameroon 261 can combat the daily delinquency that rages the wildlife reserves more effectively and promote the sustainable conservation of species and their habitat. An overhaul of criminal provisions in this domain seems urgent. Thus, in order to put an end to the profitability of environmental criminality and to strengthen the effectiveness of criminal responses, it seems essential that the state adopts sanctions that are equivalent to the gravity of environmental crimes. Penal sanctions should be defined according to the quality of the offenders and especially as regards the specificity of the offence. The individualisation of sentences would make it possible to apply the most appropriate sanction depending on the nature of the offence, the profile of the offender, the damage caused etc.81 3.2 Obsolescence of repressive provisions for the protection of wildlife reserves In developing countries like Cameroon, local populations require opportunities to gain access to the resources which they need to survive. Environmental resources such as wildlife reserves often appear as a public utility that meets the criteria of non-exclusion.82 The use of such utility is in principle free and not subjected to any formality or authorisation. It is a recognised subjective right83 of local residents, that is justiciable84 and opposable to third parties.85 This right of use, however, is nevertheless regulated in wildlife reserves. Damage to preserved species is allowed only in cases of self-defence.86 Articles 82 and 83 of the law of 20 January 1994 exempt any person who kills or injures a classified animal in self-defence without provoking it from criminal liability. Similarly, the administration can proceed to controlled push-backs, when animals pose a danger to people or property. Apart from these protective measures, local populations whose survival depends on forest resources have largely been ignored by legal provisions.87 The right of use of these communities within protected areas is subject to limitations (e.g. Article 5 of the decree of 20 July 1995).88 These limitations at times generate conflicts between the ____________________ 81 Fouchard & Neyret (2015: 415). 82 Bacache-Beauvallet (2008: 35). 83 Ibid. 84 Favoreau (2008: 1228-1230). 85 Nonaros (1996: 216); and Dabin (1952: 80-92). 86 Nevertheless, the person must prove the state of self-defence within 72 hours. If not they are liable to another offence punishable by a fine of 5,000 to 20,000 francs and/or 20 days to two months in prison (Article 155 of the law of 1994). 87 The legislator has voluntarily excluded the riparian population from the circle of people to be protected, even as the notion of environment is far from being an abstraction, but rather considered in its entirety. 88 These are the rights granted to the riparian population “to harvest all forest, wildlife and fisheries products freely for their personal use, except the protected species”. See Article 8 of the law of 1994. Marie Ngo Nonga 262 respect of the law on the one hand and ancestral practices on the other.89 Indeed, the penalties imposed on members of indigenous communities often increases the hostility of these groups populations against the criminal law. In one case, for example, the Dschang Court of First Instance sentenced the defendants convicted of destroying a protected area to a six-month suspended prison sentence and a fine of 50,000 FCFA. By doing so, the court ignored the fact, that the defendants were not only poorly educated but also their state of necessity when exploiting environmental resources. The local population’s distrust of the law is exacerbated by the granting of exploitation rights to foreigners. An example is a case in the northern region, where the State transferred 19 out of 28 hunting areas to foreigners90 to the detriment of local populations’ pastures. The exclusion of local populations from responsible protection of protected areas is one of the major flaws of the policy of conservation of wildlife biodiversity in Cameroon. Only participatory inclusion through the involvement (and not the exclusion or taxation) of local populations in the organisation, valorisation and management of wildlife reserves, can reduce the threat of extinction of vulnerable species. Residents of wildlife reserves live in a precarious situation, which requires improved dialogue and the consideration of their existential problems. The State should rather grant these groups subsidies to foster their enthusiasm about preserving the reserves linked to their ancestral heritage In addition, such grants could develop profitable alternative activities that enable local populations to take care of their most vital need and at the same time contribute to biodiversity protection in the form of payment for environmental services.91 Cameroonian environmental law is also drifting away from its international environmental law obligations. Despite a cautious introduction of innovative elements through the incorporation of international principles developed in 1992 in Rio, Cameroon’s repressive laws attempt to make wildlife resources contribute to economic development at the cost of ecological, social and cultural concerns. Far from being a protective law, Cameroon’s environmental criminal law largely focusses on use and exploitation of natural resources, providing economic privileges over sustainable ecosystems. ____________________ 89 Barume (2004: 14). 90 Which moreover carries three parks of 730,000 ha and a vast ZIC of more than 2,000,000 ha. It is important to note that in 1986, there were 15 ZICs in the North for a total area of 729,390 ha. In 1996, this number rose to 27 and 28 in 1998. These 28 ZICs have a precise distribution: 23 are leased to hunting guides, three are managed by the state, one is allocated to the Lamido of Rey Bouba and one is intended for experimentation of a game-ranch. 91 Payments for environmental services (PES) are incentives that provide compensation in exchange for adopting practices that are conducive to the preservation of environment. They are based on contractual constructions that may involve private actors (landowners, companies, associations...) and public actors (the state, local authorities...). Criminal law protection of wildlife reserves in Cameroon 263 While for instance the precautionary principle under the Rio Declaration was incorporated in various national texts (e.g. Article 9 of the framework law of 1996 on environmental management), Cameroon’s forest criminal law is still contrary to principles of rational management of wildlife resources. In many cases, the forest administration continues to use unsustainable methods geared towards generating income for the national economy. The prescribed hunting season, for example, partially overlaps with the gestation periods for female animals, thereby promoting the interests of hunters over those of wildlife. However, a more efficient management of protected areas should be adapted to conditions which best foster the protection of biological diversity. Protected sites could serve as an experimental approach to enhance the management, reproduction and protection of endangered species. Research students from different universities in Cameroon could benefit from scholarships to carry out field studies in the company of guards working in the reserves.92 This would foster scientific knowledge on the one hand and strengthen a more cautious approach to the management of biodiversity on the other. Investigating commercial activities’ impacts on forests and wildlife are equally essential. Although the implementation of certain environmental protection measures is costly, these could be funded by increasing returns from tourism. All of the aforementioned would contribute to an improved wildlife reserves governance in Cameroon. 4 Conclusion There are many expectations regarding the repression of damages on biodiversity in Cameroon’s protected areas. One of them is to enshrine ecocide93 crimes in environmental penal law envisaging punitive damages.94 Environmental offences are often lucrative in nature, committed voluntarily in the interest of commercial profit. In the same light, repressive biodiversity protection policies should not only consider the degradation of ecosystems but also the vulnerabilities of the poorest populations. Criminal law protection of biodiversity in wildlife reserves should be an ethical duty towards the threatened future and survival of both man and ecosystems.95 As a proverb puts it so well, “when the last tree has been cut down, the last fish caught, the last river poisoned, only then will we realise that one cannot eat money.” ____________________ 92 In this sense, impact studies carried out by these reserves would enable MINFOF (the supervisory Ministry) to locate the difficult sectors and set up integrated study scenarios. Indeed, it is impossible that, on the field, MINFOF officials be the judge and party at the same time. The impact studies have the advantage of encouraging planning that goes along with monitoring and evaluation of the different projects initiated. 93 This involves the massive destruction of flora and fauna, as well as the implementation of any action that would cause an ecological disaster. 94 Lambert-Faivre (1998). 95 Thibierge (2013: 577). 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Des éco-crimes à l’écocide, le droit pénal au secours de l’environnement 145. Triplet, P (2009) Manuel de gestion des aires protégées d’Afrique francophone. Trousse, PE (1956) Les Novelles – Droit pénal Vol. 1(1). Tunc, VA (1977) “Un droit en miettes” XXII La responsabilité, Archive de philosophie 31-35. Wafo Tabopba, G (2008) Les aires protégées de l’extrême nord Cameroun entre politiques de conservation et pratiques locales Thesis Orléa. 267 Chapter 12: Harnessing oil as natural resource wealth: a focus on the legal frameworks of Nigeria and Uganda Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 1 Introduction Natural resources1 are “a gift of nature and an endowment of comfort that makes the existence of mankind complete”.2 It is a matter of debate whether resource-rich states in Africa use the resources for the comfort of the majority of their citizens. Governance of natural resources is a broad issue that raises more questions than answers. This is despite society’s longstanding desire for and institutionalisation of governance norms through law. Law serves three critical roles in the governance of natural resources. Firstly, states order the behaviour of individuals and organisations in the realm of natural resources through law and legal institutions, converting economic and social policies into outcomes.3 Secondly, the law defines the structure of government by arranging and distributing political and economic interests and power. In the case of oil, legal authority to act, political and economic power are established and distributed among the state, local host communities and extractive companies as the major stakeholders in the exploration of the resource. Thirdly, the law provides space for public participation in governance through substantive and procedural tools that promote accountability.4 It is not enough to have a legal framework in a resource-rich state. A pragmatic legal framework in the realm of resource governance must seek to address issues that include, how rights and benefits are allocated among stakeholders; the rights and benefits of local host communities; requirements for linking investments to the economy or creating jobs; and environmental health and safety obligations of the extractive companies. Transparency, accountability and a clear sense of purpose, however, must accompany the making of law from the onset to the point of enforcement and ____________________ 1 Natural resources in the context of this chapter refer to raw materials embedded in the soil, which are extracted and modified by man for his/her benefit and use. They can be thought of as natural capital assets, distinct from physical and human capital, in that they are not created by human activity. See World Bank (2010: 44-46). 2 Aladeitan (2013: 160). 3 See World Bank (2017). 4 Ibid. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 268 implementation for such legal framework to shore up value realisation, revenue management and the creation of an enabling environment in oil resource governance. This chapter examines the correlation between the resource-rich state and the content of its law focusing on performance level under three key components in the 2017 Resource Governance Index (RGI).5 These include: value realisation; revenue management; and enabling environment. It focuses on the legal frameworks6 of Nigeria and Uganda, which have been identified as part of the 81 states that together produce 8% of the world’s oil and 78% of its gas.7 On a scale of 100, Nigeria scored 42 points and ranked 55 among 89 assessments in the 2017 Resource Governance Index (RGI). Nigeria has the largest oil and gas reserves in sub-Saharan Africa and has the ninth largest reserve in the world.8 It, however, faces challenges that affect value realisation, revenue management and the enabling environment in the extractive decision-making chain.9 Similar challenges bedevil the Ugandan oil and gas sector, which was rated 44 on a scale of 100 in the 2017 RGI, placing it at number 51of the 89 states assessed in the index.10 Uganda has 2 billion barrels proven oil reserves, which attracted exploration interest during the commodity boom of the last decade.11 According to the RGI Report, early years of exploration in Uganda have been marked by governance challenges that include a poor licensing regime, inadequate infrastructural development and investment conditions and hostility from the local communities.12 To analyse the correlation between the state and the content of its law, and the performance levels in the three key components of the 2017 RGI identified above, the chapter is divided into four sections. The first section comprises the introduction. The second section assesses selected laws dealing with oil resources law in Nigeria and ____________________ 5 Natural Resource Governance Institute (2017a). 6 For each project to extract natural resources from the ground, there are rules that govern the rights and responsibilities of governments, companies and citizens. Together these rules are called a legal framework, or legal architecture. The legal framework that governs the extractive industry comprises a set of documents that include the constitution, legislation, regulations and contracts. See NRGI Reader (2015). 7 The 2017 RGI assesses how 81 countries, including Nigeria and Uganda govern their oil, gas and mineral wealth. The index composite score comprises of three components: value realisation; revenue management; and the enabling environment. According to the RGI report, the overall score for both Nigeria and Uganda in oil resource governance fall within the ranking for states that exhibit serious shortcomings. See (accessed 5-3-2018). 8 OPEC (2017). 9 Value in Nigeria’s oil resource industry is lost in licensing and in the state-owned enterprise’s sales of government oil, as well as when revenues from oil and gas are disbursed and saved. See Natural Resource Governance Institute (2017b). 10 Natural Resource Governance Institute (2017c). 11 Ibid. 12 The 2017 RGI assesses how 81 resource-rich states govern their oil, gas and mineral wealth. See Natural Resource Governance Institute (2017c). Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 269 Uganda. In the Nigerian case, the focus is on: the 1999 Constitution of the Federal Republic of Nigeria (as amended); the Petroleum Act;13 the Nigerian National Petroleum Corporation (NNPC) Act;14 the Associated Gas Re-injection Act;15 the Environmental Impact Assessment Act (EIAA);16 and the Nigeria Extractive Industry Transparency Initiative (NEITI) Act.17 In Uganda, the authors focus on the Constitution of Uganda (1995) (as amended); the Constitutional (Amendment) Act (2005); the Petroleum (Exploration and Production) (Conduct of Exploration Operations) Regulations;18 the Petroleum (Exploration, Development and Production) Act;19 and the Petroleum (Refining, Conversion, Transmission and Midstream Storage) Act.20 The third section highlights some approaches, suggesting that there are components that may be built into the legal framework of both countries to boost sustainability in the harnessing of oil resource in Nigeria and Uganda. The fourth section comprises the conclusion. 2 Assessing the legal frameworks for oil resources in Nigeria and Uganda 2.1 Legal framework in Nigeria 2.1.1 The 1999 Constitution of the Federal Republic of Nigeria (as amended) The legal framework in the Nigerian oil resources sector is discussed in light of the provisions of Sections 16(1) and (2)(b), 20 and 44(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 16(1) provides that: The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution: (a) harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy; (b) control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity; Section 16(2)(b) further provides that the state shall direct its policy towards ensuring that the material resources of the nation are harnessed and distributed as best as possible to serve the common good. Under Section 20, the 1999 Constitution provides that ____________________ 13 Petroleum Act 1969, CAP P 10, Laws of the Federal Republic of Nigeria 200419692004. 14 Nigerian National Petroleum Corporation Act No. 33 of 1977, Chapter N 123, Laws of the Federal Republic of Nigeria 2004. 15 Associated Gas Re-injection Act 1979. 16 Environmental Impact Assessment Act No. 86 of 1992. 17 Nigeria Extractive Industry Transparency Initiative (NEITI) Act 2007. 18 The Petroleum (Exploration and Production) (Conduct of Exploration Operations) Regulations (1993). 19 The Petroleum (Exploration, Development and Production) Act 2013. 20 The Petroleum (Refining, Conversion, Transmission and Midstream Storage) Act 2013. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 270 the state shall protect and improve the environment and safeguard the water, air, land, forest and wildlife of Nigeria. Section 44(3) of the 1999 Constitution, which refers to oil and other minerals, provides as follows: Notwithstanding the foregoing provisions of this section, the entire property in and control all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the national assembly. The provision of Section 44(3) is reiterated by item 39 (part 1) of the second schedule to the 1999 Constitution, which vests exclusive powers to legislate on mines and minerals, (including oil fields, oil mining, geological surveys and natural gas) in the National Assembly of the state. The implication of these provisions is that only the federal legislature is vested with the prerogative to make laws in respect of mines and minerals, including oil fields, oil mining, geological surveys and natural gas. Basically, any legal framework fashioned by the legislature should reflect a state’s petroleum policy objective, establishing, maintaining and enforcing a system of competence to regulate petroleum activities in a manner consistent with the state’s national petroleum objectives.21 For a law to be effective, transparency, accountability and a clear sense of purpose accompanied by effective public participation should accompany the making of that law from the outset to the point of enforcement and implementation. Transparency and accountability are necessary if the national vision is to be realised and socioeconomic goals clarified. In this respect, the Nigerian 1999 Constitution is fundamentally flawed, as it does not encourage the inclusion of the input of the public through participatory processes. The wording of Section 44(3) of the 1999 Constitution is at variance with the state’s policy objectives laid out in Section 16(2)(b) because it restricts decision-making concerning the management of natural resources in Nigeria to the federal government, subject to the legislative competence of the National Assembly. Similarly, the provisions of Sections 16 and 20 of the 1999 Constitution, which appear to encompass the tenets of environmental justice and sustainability, as well as promote ideals that are synonymous with a sound legal framework for the governance of oil resources in Nigeria, are not enforceable by any court. The non-justiciability of Sections 16 and 20, which fall under Chapter II of the 1999 Constitution, is predicated on Section 6(6)(c) of the 1999 Constitution (as amended).22 The practical implication of Section 6(6)(c) is to dismantle the aspirations of Section 16 and 20 in Chapter II of the 1999 ____________________ 21 Likosky (2010: 12). 22 Section 6(6)(c) provides that the judicial powers vested in the courts shall not except as otherwise provided by the Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directives principles of state policy set out in Chapter II of the 1999 Constitution. Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 271 Constitution by ousting the jurisdiction of the Courts to entertain any “issue or question” relating to these sections. 2.1.2 The Petroleum Act, 1969 (as amended)23 The Petroleum Act provides for the exploration of petroleum from territorial waters and the continental shelf of Nigeria and vests the ownership of, and all on-shore and offshore revenue derived from petroleum resources in the federal government.24 Section 1(1) of the Act reiterates the position of the 1999 Constitution as it vests the entire ownership and control of all petroleum in, under or upon any land in Nigeria in the federal government of Nigeria.25 The Office of the Minister of Petroleum Resources in Nigeria is a key unit of governance in the oil and gas industry by virtue of the Petroleum Act, which confers the Minister with wide powers including the power to grant and revoke licenses and make regulations. Section 2 of the Act provides that the Minister may grant: • a licence, to be known as an oil exploration licence, to explore for petroleum;26 • a licence, to be known as an oil prospecting licence, to prospect for petroleum;27 and • a lease, to be known as an oil mining lease, to search for, win, work, carry away and dispose of petroleum.28 Under Section 3 of the Petroleum Act, no refinery shall be constructed or operated in Nigeria without a licence granted by the Minister in the prescribed form. Where no ____________________ 23 Now known as Petroleum Act Cap. P10 (Laws of the Federation of Nigeria (LFN) 2004). 24 Section 14 of the Petroleum Act defines ‘petroleum’ as “mineral oil (or any related hydrocarbon) or natural gas as it exists in its natural state in bituminous shales or other stratified deposits from which oil can be extracted by destructive distillation”, and ‘natural gas’ as gas obtained from boreholes and wells and consisting of hydrocarbons. 25 By virtue of Section 1(2) of the Act, this provision is deemed to apply to all land (including land covered by water) which is in Nigeria, under the Nigerian territorial waters, forms part of the continental shelf or forms part of the exclusive economic zone of Nigeria. 26 Oil exploration licences are no longer granted in practice. Presently, the Department of Petroleum Resources on behalf of the federal government of Nigeria has engaged the services of a seismic data-gathering services company, and this negates the need for exploration in the strict sense. 27 Oil prospecting licenses under the Petroleum Act appear to confer the rights to not only exploration but also exploitation of oil resources won during prospecting operations subject to the fulfilment of obligations imposed under the Act or by the Petroleum Profit Tax Act or any other law imposing taxation in respect of oil resources in Nigeria. 28 A lease is the grant to an applicant of the exclusive right to conduct exploration and prospecting operation and to win, get, work, store, carry away, transport export or otherwise treat petroleum discovered in or under the leased area. This is subject to any provision of the Petroleum Act and any special terms or conditions imposed in the grant of the lease. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 272 form is prescribed, or no terms or conditions are prescribed, then the Minister has the discretion to decide or impose a form, terms and conditions. The Minister is equally vested with the power to regulate the downstream petroleum sector as no person is permitted to store, import, sell or distribute any petroleum products without a license granted by the Minister.29 The consent of the Minister is also required for the assignment of any rights in licences or leases granted under the Petroleum Act.30 The provisions in the Petroleum Act on the assignment of rights in licences and leases initially seem to be straightforward. Practice in the oil industry, however, reveals a legal gap in the Act, widened by the advent of increasing acquisition, divestment and financing activities in the upstream petroleum sector. This gap lies in the definition of what constitutes “…interests therein or thereunder” in Paragraph 14 of the first schedule of the Petroleum Act. The Petroleum Industry Bill (PIB)31 attempts to cure the lacunae in the Petroleum Act by expounding on the assignment of licence or lease.32 The Bill, among other objectives, seeks to create new institutions to govern the operations of the industry, through the incorporation and privatisation of the stateowned enterprise, the Nigerian National Petroleum Corporation (NNPC). However, the PIB has been in draft form since 2008. The Petroleum Act also includes provisions that promote safe operations, protection of the environment and conservation of natural resources. A fundamental challenge, however, persists because the Petroleum Act is outdated, and does not reflect contemporary realities. For instance, the state-owned enterprise might perform its commercial and operational duties through contractual arrangements, which presumably enjoy statutory authorisation by virtue of Paragraph 35(a) of the first Schedule of the Petroleum Act. The Minister is empowered to, if he considers it to be in the public interest, impose on a licence or lease terms and conditions not inconsistent with the Petroleum Act, participation by the Federal Government in the venture to which the licence or lease relates, on terms to be negotiated between the Minister and the applicant for the licence ____________________ 29 Section 4 of the Petroleum Act. 30 Paragraph 14 of the First Schedule to the Petroleum Act provides that “[w]ithout the prior consent of the Minister, the holder of an oil prospecting licence or an oil mining lease shall not assign his licence or lease, or any right, power or interest therein or there under”. 31 The PIB Draft Bill 2008 proposes: to establish the legal and regulatory framework, institutions and regulatory authorities for the Nigerian petroleum industry; to establish guidelines for the operation of the upstream and downstream sectors; and for purposes connected with the same. 32 Section 173 of the Petroleum Act provides that where a licence, lessee or production sharing or service contractor is taken over by another company or mergers, or is acquired by another company either by acquisition or exchange of shares, including a change of control of a parent company outside Nigeria, it shall be deemed to be, and treated as an assignment within Nigeria and shall be subject to the terms and conditions of the Petroleum Act. The PIB explicitly construes an assignment of a licence or lease or any rights, power or interest to include mergers, takeover and basically any other arrangement that results in a change of control of the licence or even a contract thereunder. See Sections 173 and 194 of the Petroleum Industry Bill (2008). Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 273 or lease.33 The implication of this provision is that the NNPC undertakes its operation with extractive companies through various forms of contracts that do not maximise the benefits from oil and gas resource for the country. An examination of practice in the industry reveals that most contractual arrangements are usually fraught with frictions and conflicts between the respective committees, the Corporation’s joint venture partners and production sharing contractors, over compliance with laid down legal and policy direction, accessibility to data and prompt and adequate reporting by the operating partners or contractors.34 2.1.3 The Nigerian National Petroleum Corporation (NNPC) Act A discussion on the oil and gas governance framework in Nigeria is incomplete without discussing the NNPC and its enabling constitutive NNPC Act35 with a view to show the lack of accountability and transparency in the Nigerian oil and gas sector. Statutorily, the affairs of NNPC are to be managed by a Board of Directors consisting of a chairman, who is the Minister of Petroleum Resources, and other members. Section 5(2) is a far-reaching provision, which confers much latitude and flexibility to the President and the Corporation to undertake a general review of the affairs of the Corporation without legislative amendment. Of course, this provision is certainly not without consequences as such latitude has been susceptible to abuse, whims and caprices of the holders of the office of the President and the management of the Corporation over the years. The latitude may, no doubt, be responsible for the level of corruption and gross mismanagement of the country’s number one foreign exchange earner; oil. It is equally imperative to note that this particular provision appears to be the basis on which the Corporation has undergone various changes by successive governments, from its inception in 1977 to present, without any significant amendment to the establishing Act. The NNPC Act in Section 6(1) further confers wide-ranging discretionary power on the Corporation by providing that:36 the Corporation shall have powers to do anything which in its opinion is calculated to facilitate the carrying out of its duties which includes but are not limited to holding, managing and alienating movable and immovable property; purchasing or otherwise acquiring or taking over all or any of the assets, business, properties, privileges, contracts, rights obligations and liabilities of any other Company, firm or person in furtherance of any business engaged in by the Corporation; entering into contracts or partnerships with any Company, firm or person which in the opinion of the Corporation will facilitate the discharge of its duties; establishing and maintaining ____________________ 33 First Schedule, paragraph 35(a), of the Petroleum Act. 34 Aladeitan (2013: 160). 35 NNPC Act, 1977 (Decree No. 33, 1977), Cap. N. 123, L.F.N. 2004 and the NNPC (Amendment Act) of 2007. 36 Section 6(2) of the NNPC Act. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 274 subsidiaries for the discharge of such functions as the Corporation may determine, and; training managerial, technical and such other staff for the purpose of the running of its operations and for the Petroleum Industry in general. With respect to the powers conferred on the NNPC by the Act, it is significant to point out that leaving the Corporation to exercise its powers as it may deem necessary, without setting parameters, guidance or performance standards comparable with international best practice of state-owned enterprises (SOEs) which must be complied with, appears to be a serious omission. This has resulted in the loss of value in licensing and a decline in sales of resources. Although the NNPC Act requires the Corporation to keep proper accounts and records in accordance with best commercial standards37 as well as appoint auditors with the approval of the President for purposes of auditing its accounts; it requires the auditors to submit its detailed observations and recommendations for that year to the Corporation.38 The entire process for auditing the Corporation is flawed and defeats the essence of accountability, thus creating an avenue for reckless and unchecked excesses, which have characterised the Corporation over the years. Another indication of lack of accountability and transparency in the management of the affairs and operations of the Corporation can also be observed from Section 7(4) and (5) of the NNPC Act which empowers the Corporation – to maintain a fund which consists of such monies as may from time to time be provided by the Federal Government for the purposes of the Act by way of grants or loans … and such monies as may be received by the Corporation in the course of its operations in relation to the exercise by the Corporation of any of its functions under the Act and from such fund [shall] defray all expenses incurred by the Corporation. This provision gives the Corporation unfettered discretion in the application of monies accruing to it. The only check in the exercise of this wide power is the requirement of Section 7(5) of the NNPC Act which mandates the Corporation to submit to the President, not later than three months before the end of each financial year, estimates of its expenditure and income relating to the following financial year. What is required here is simply ‘submission’, and there is no requirement for approval by the President. This creates a gap that can be exploited and taken advantage of by the management board and officials of the Corporation. The Corporation has an obligation to prepare and submit their schedule estimates of revenue and expenditure to the Minister of Finance under the Fiscal Responsibility Act (FRA) 2007.39 What is clear from the provisions on the Corporation’s borrowing powers40 and disposal of surplus funds,41 is the involvement of the President in issues relating to funds. It appears that the management of the affairs of the Corporation is more ____________________ 37 Section 7(1) of the NNPC Act. 38 Section 7(2) & (3) of the NNPC Act. 39 Section 21 of the Fiscal Responsibility Act. 40 Section 8 of the NNPC Act. 41 Section 9 of the NNPC Act. Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 275 or less vested in the President, and if viewed from the fact that the NNPC Act was a product of the military interregnum in government, the drafting of the Act may not be surprising, having regard to the autocratic nature of the military rule. What is however surprising, is the fact that the succeeding civilian administration has not deemed it necessary to amend the Act to reflect contemporary realities that can promote value realisation and boost revenue management in a manner that translates to an enabling environment for investment in the oil resource sector. Furthermore, the NNPC Act shields of the Corporation from legal proceedings through a limitation of suits and states that:42 no suit against a member of the board or an employee of the Corporation for an act done in respect of an alleged neglect shall be instituted in any court unless it is commenced within 12 months next after the act or the neglect complained of Before an action can be instituted or commenced against the Corporation, a notice of intention to sue is required to be served on it by the intending plaintiff or his agent one month prior to the suit.43 This is an attempt to insulate the Corporation from being answerable for its neglect and defaults, bearing in mind that the discovery of acts of neglect or injury may be well after twelve months, and investigation to verify certain facts may take a longer period than a month. Still on the issue of transparency and in what has been described as a measure of the Corporation’s continuing importance to the calculus of political leadership,44 is the regulation of public access to the Corporation’s offices across the country. Regulation of access is so intense to the extent that there are extreme and extraordinary security arrangements in the Corporation’s offices all over the country. Reasons other than security to ward off a physical attack, at least until the recent threat of ‘Boko Haram’ and attacks of the Niger-Delta militants, have been provided for the level of security. One reason is that public access to the Corporation is regulated for the purpose of securing and guarding its operational secrets. Whereas the veracity or otherwise of this reason is not ascertainable, what is not in doubt is the fact that the NNPC Act actually enjoins the Corporation to prohibit and restrict the access of the public or of any class of members of the public to any premises vested in, occupied by or under the control of the Corporation etc.45 The essence of this statutory restriction to a public corporation leaves much to be desired, but since it is not an outright prohibition, and with the enactment of the Freedom of Information Act46, it is hoped that restriction of public access to the Corporation’s premises may ____________________ 42 Section 12(1) of the NNPC Act. 43 Section 12(2) of the NNPC Act. 44 Nwokeji (2007: 5). 45 Section 17 of the NNPC Act. 46 The Freedom of Information Act 2015 is an Act that makes public records and information more freely available. It provides for public access to public records and information, protect public records and information to the extent consistent with public interest and the protection of personal privacy. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 276 be reduced to the barest minimum in order to bolster the dwindling image of the state as one that lacks the capacity to create an enabling environment. 2.1.4 The Associated Gas Re-injection Act, 1979 This is an Act made to compel every company producing oil and gas in Nigeria to submit preliminary programs for gas re-injection and detailed plans for implementation of gas re-injection by no later than 1 April 1980.47 Section 3 of the Act prohibits any company engaged in the production of oil or gas to flare gas produced in association with oil without the written permission of the Minister. Under Section 3(2), the Minister may issue a certificate to a company engaged in the production of oil or gas, where he is satisfied that the utilisation or reinjection of the produced gas is not appropriate or feasible in a particular field. The Minister is further vested with the discretion to specify the terms and conditions for the continued flaring of gas in the particular field or fields.48 The Minister may also permit the company to continue to flare gas in the particular field or fields if the company pays such sum as the Minister may from time to time prescribe for every 28.317 standard cubic metre (SCM) of gas flared.49 The Minister may, if satisfied, grant the permission subject to the payment of such a sum as the Minister may prescribe.50 Section 4 penalises an offender with forfeiture of the concessions granted in a particular field in relation to which the offence was committed. The Minister may also withhold any entitlements of any offender towards the cost of completion or implementation of a desirable re-injection scheme.51 There are also the Associated Gas Re-injection (Continued Flaring of Gas) Regulations (1984), which are subsidiary legislation under the Associated Gas Re-injection Act. These stipulate conditions for the issuance of permits by the Minister under Section 3(2) of the Associated Gas Re-injection Act. Section 1 of the Regulations provide for the continued flaring of gas in a particular field or fields, provided anyone or more of the laid out conditions are met. The conditions include where more than 75 % of the produced gas is effectively utilised or conserved and where the produced gas contains more than 15% impurities, which render the gas unsuitable for industrial purposes. Other conditions include where an on-going utilisation programme is interrupted by ____________________ 47 Sections 1 and 2 of the Associated Gas Re-injection Act. 48 Section 3(2)(a) of the Associated Gas Re-injection Act. 49 Section 3(2)(b) of the Associated Gas Re-injection Act. 50 There is a proviso to the effect that any such payment shall be made in the same manner and be subject to the same procedure as for the payment of royalties to the federal government by companies engaged in the production of oil. See Section 3(2)(b) of the Associated Gas Re-injection Act. 51 Section 4(2) of the Associated Gas Re-injection Act. Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 277 equipment failure; or where the ratio of the volume of gas produced per day to the distance of the field from the nearest gas line or possible utilisation point is less than 50,000 SCF/KM.52 These Regulations do not reflect contemporary realities and philosophy for transparency and accountability. There is an indication that the state lacks the political will to enforce its anti-gas flaring provisions in the Associated Gas Re-injection Act of 1979. The Act, which targets anti-gas flaring policies and requires companies to submit to the Minister detailed programs for reinjection of associated gas produced or programs for the use of such gas, is completely watered down by the provisions of Section 1 of the Associated Gas Re-injection (Continued Flaring of Gas) Regulations 1985.53 2.1.5 The Environmental Impact Assessment (EIA) Act, 1992 The EIA Act is a guide on the procedures to be undertaken in considering the likely impacts of any project, whether private or public, on the environment. The Act is described as a landmark in the Nigerian environmental protection regime because it is the first statute that allows public participation in the decision-making processes relevant to development.54 Thus, members of the public have access to information on such projects and the right to participate in the decision-making process on the potential (negative or positive) impacts on their immediate environment.55 Under the EIA Act, companies engaged in extractive activities in the petroleum sector may not embark on projects without considering the environmental impacts at an early stage, except as permitted by law.56 By virtue of Sections 2(2) and (3) of the EIA Act, “where the extent, nature or location of a proposed is likely to significantly affect the environment”, oil companies are expected to undertake an environmental impact assessment of the intended project. Under Sections 4(d)-(e) of the EIA Act, an environmental impact assessment shall include a description of the proposed activities, assessment of the proposed activities, and an assessment of the likely environmental impacts and alternatives to mitigate any negative impacts of the project. Petroleum and ____________________ 52 Section 1 of the Associated Gas Re-Injection (Continued Flaring Of Gas) Regulations. 53 Omeke (2011). 54 Section 7 of the EIA Act allows public participation in environmental impact assessment in Nigeria. It provides that “before the Agency gives a decision on an activity to which an environmental assessment has been produced, the Agency shall give opportunity to government agencies, members of the public, experts in any relevant discipline and interested groups to make comment on environmental impact assessment of the activity”. The Review Panel accentuates public participation in environmental impact assessments in Nigeria. Under Section 37(b) of the EIA Act, proceedings in the review panel stage are expected to be conducted in public “in a manner that offers the public an opportunity to participate in assessment”. See Omorogbe (2002: 577). 55 Ekhotor (2016: 43). 56 Section 2(1)(4) of the EIA Act. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 278 mining are included in the list of industries deemed as subject to mandatory study activities under the schedule to the EIA Act.57 The Act has been a subject of criticism over the years due to limitations imposed by the provisions of Section 15(1) on exceptions to the performance of environmental impact assessment in certain projects. Section 15(1) of the EIA Act states that an environmental assessment of the project shall not be required where: (a) in the opinion of the Agency the project is in the list of projects which the President, Commander-in-Chief of the Armed Forces or the Council is of the opinion that the environmental effects of the project is likely to be minimal; (b) the project is to be carried out during national emergency for which temporary measures have been taken by the Government; (c) the project is to be carried out in response to circumstances that, in the opinion of the Agency, the project is in the interest of public health or safety. These provisions run contrary to the intentions of the EIA Act. For instance, based on the provisions, notwithstanding valid objections to a proposed project, the President of Nigeria has the discretion to evade the statutory requirements for an einvironmental impact assessement in projects relating to the petroleum sector. Consequently, corporate bodies with an extractive interest in the oil industry may through access or ‘connections’ to the President potentially influence him or her to give approval to their proposed projects, notwithstanding the negative environmental impacts of such projects.58 It is interesting to note that the Environmental Impact Assessment Bill (2017), which is presently under review, retains the provisions of Section 15. The Bill makes no significant clarification on what constitutes ‘minimal’ effect of a project as provided for in the EIA Act. Similarly, the Bill does not qualify the nature of projects which would be considered to be in the interest of the public, as laid down by Section 15 of the EIA Act. These are legal gaps that certainly deserve the attention of stakeholders in the field. 2.1.6 Nigeria Extractive Industry Transparency Initiative (NEITI) Act, 2007 The NEITI Act, as the title suggests, is enacted to ensure due process and transparency in the payments made by companies operating in the Nigerian extractive industry to the federal government.59 The Act is intended to ensure accountability in the revenue receipts of the federal government from companies in the extractive industry and to ____________________ 57 Under Section 25 of the EIA Act, in mandatory study activities projects, EIA reports shall be published and made available to the public in selected places and any person or individual can file comments on the conclusions and recommendations of such reports. 58 Osa (2016: 1). 59 Aladeitan (2015). Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 279 eliminate all forms of corrupt practices in the determination, payment, receipt and posting of revenue accruing to the federal government.60 Having regard to the above functions, it is evident that the NEITI Act is a response to noticeable transparency and accountability gaps in the country’s oil, and gas and solid minerals sectors.61 However, the Act is fraught with legal gaps. For instance, Section 2(c) of the Act empowers NEITI to “eliminate all forms of corrupt practices in the determination, payments, receipts and postings of revenue accruing to the Federal government from extractive industry companies”.62 This particular clause appears to be overly ambitious, and in fact, some of its terms of reference are already exercised by statutory government agencies such as the Federal Inland Revenue Service, Central Bank of Nigeria, and the Office of the Accountant General of the Federation. This clause can, however, be modified to give NEITI a clear coordinating role, limiting overlaps with other government agencies and departments in the performance of key functional mandates. It is encouraging to note that the Petroleum Industry Governance (PIG) Bill addresses some of the gaps in the legal framework governing Nigeria’s oil and gas industry.63 For instance, by virtue of clause 86 of the Bill, all existing enactments, including but not limited to the Petroleum Act, the Pipeline Act and the Petroleum Profit Tax Act, are to be read with such modifications as to bring them into conformity with the Bill. In the event of any inconsistency between the provisions of the Bill and that of any other enactment, the provisions of the Bill shall prevail.64 It is also instructive to note that although variation to all extant Acts covered by the Bill will take effect when the Bill is assented to by the President, the NNPC Act, the NNPC (Projects) Act and the NNPC Amendment Act will only be repealed when the Minister issues a legal notice vesting the assets and liabilities of the NNPC in the relevant successor entities.65 ____________________ 60 Section 2, Nigeria Extractive Industries Transparency Initiative (NEITI) 2007. 61 Aladeitan (2015). 62 This clause is similar to that of Section 3(c) of the NEITI Act which prescribes a function for NEITI to ensure transparency and accountability in the management of the investment of the Federal Government in all extractive industry companies. 63 The Senate only recently passed the PIG Bill into law in June 2017. The PIG Bill is just one of several components of the Petroleum Industry Bill which has been before the National Assembly for over a decade. The PIG Bill seeks to restructure the Nigerian. National Petroleum Corporation and the Department of Petroleum Resources, as well as remove the overlap of functions among the commercial, regulatory and policy institutions. Clause 2(1)(g) of the Bill curtails the discretion of the Minister by subjecting the exercise of his powers to grant, amend, renew, extend or revoke petroleum exploration and production licenses and leases under the Petroleum Act to the recommendation of a new commission to be created under the Bill; the Nigerian Petroleum Regulatory Commission. 64 See Clause 86 of the PIG Bill. 65 Ibid. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 280 2.2 Legal Framework in Uganda 2.2.1 The 1995 Constitution of the Republic of Uganda (as amended) The 1995 Constitution of the Republic of Uganda has elaborate provisions regarding environmental management. In the National Objectives and Directive Principles of State Policy, the Constitution requires the Government of Uganda to take measures to protect important natural resources, including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda.66 The government is also required to promote and implement energy policies that will ensure that people’s basic needs and those of environmental preservation are met. It is further required to promote the rational use of natural resources so as to safeguard and protect the biodiversity of Uganda. In the substantive provisions, the 1995 Constitution makes specific provision for the right to a clean and healthy environment. Under Article 39, every Ugandan has a right to a clean and healthy environment. This provision is reiterated under Section 3 of the National Environment Act Cap 153 and Section 5(2) of the National Forestry and Tree Planting Act No. 8 of 2003, which similarly provide for the right to a clean and healthy environment. The breach of the right entitles any person or responsible body to bring an action in furtherance of the right. The 1995 Constitution further imposes on the state and citizens the duty to create and protect a clean and healthy environment.67 These provisions imply that a party whose right to a clean and healthy environment is violated due to oil exploration and production, may institute legal action to seek redress against the extractive company responsible, or even the state.68 Over a decade ago, Uganda discovered commercial volumes of oil in the Albertine and Nile basin. Since then, a major concern for stakeholders in Uganda’s natural capital sector has been oil resource governance and how much local content will be utilised in developing the sector. The oil resource sector in Uganda is budding, and most citizens are yet to enjoy the benefits of the resource through the creation of innovative ____________________ 66 Principle XIII of the 1995 Constitution. 67 Article 17(1)(j) of the 1995 Constitution. 68 In the case of Environmental Action Network v. British American Tobacco, the applicant brought an application under Article 50(2) of the 1995 Constitution and rule 3 of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, for a court order compelling the respondent, a manufacturer of ‘dangerous products’ (cigarettes), to fully and adequately warn consumers of the health risks associated with its products. Although the order was ultimately denied, the court did confirm the locus standi of the applicant and that Article 50(2) enabled individuals to bring public interest matters to court on behalf of those who were not in a position to do so. Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 281 opportunities to build a new economy founded on upstream gas extraction activities, and the downstream linked value addition industries.69 The 1995 Constitution vests the ownership of all minerals and petroleum in the government, which is to hold the same in trust for the people of Uganda. This introduces the public trust doctrine in the management of oil and gas resources,70 which is embedded in the Constitutional (Amendment) Act of 2005. 2.2.2 The Constitutional (Amendment) Act, 2005 This Amendment Act has significant implications for oil and gas management and control, and the sharing of royalties derived from oil and gas exploitation. Part XIII and specifically Section 43 amends Article 244 of the 1995 Constitution by replacement. Accordingly, the entire property in and the control of all minerals and petroleum in, on or under any land or waters in Uganda are vested in the government on behalf of the Republic of Uganda. This is, however, subject to Article 26 of the 1995 Constitution, which emphasises the need to fairly and adequately compensate surface landowners before the government can take over the petroleum-rich lands. Just like Nigeria, the parliament in Uganda is mandated to make laws regulating the exploitation of minerals and petroleum; the sharing of royalties arising from mineral and petroleum exploitation; the conditions for payment of indemnities arising out of the exploitation of minerals and petroleum; and conditions regarding the restoration of derelict lands. 2.2.3 The Petroleum (Exploration and Production) (Conduct of Exploration Operations) Regulations, 1993 These Regulations were made under the repealed Petroleum (Exploration and Production) Act, Cap. 150. They however remain in force as long as they are not inconsistent with the repealing Act.71 Regulation 51(1) provides for the prevention of pollution of the environment in carrying out exploration, development, production and transportation of oil and gas.72 ____________________ 69 See (accessed 9-12-2017). 70 Article 244. 71 Section 189 of the Petroleum (Exploration, Development and Production) Act, 2013. 72 Under Regulation 36, an application for the consent of the Commissioner to the construction or installation of a fixed platform should be made in writing and should state among others, the location at which it is intended to construct or install the fixed platform and the reasons for selection of that location. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 282 Further, under Regulation 51(2), in the disposal of any waste material, a licence holder should not create any conditions, which may adversely affect public health, life, property, aquatic life, wildlife or vegetation. The Regulations further require that before drilling operations are commenced in any licensed area, the person-in-charge should submit a description of the procedure, personnel, equipment and materials that will be used in reporting, cleanup and prevention of the spread of any pollution resulting from exploration or development activities for approval. Regulation 56 also bars the disposal of drilling mud into any lake, river, stream, pond or other water bodies. Under Regulation 56(2), produced water may be disposed into an operating area after satisfying, with the commissioner’s approval, that the oil content of produced waters discharged from offshore platforms has been reduced to an average of not more than 10 mg/l during normal operation. The Regulations also make provisions for safety issues. Regulation 85(1) requires the operator to prepare a manual of instructions for safety in operations and bring it to the attention of every person who is about to be engaged in, or concerned with, the carrying out of operations or the execution of works in any licensed area. Regulation 112 further requires that all confined areas where operations could lead to the emission and accumulation of explosive mixtures or toxic gases should be provided with suitable means of ventilation and with a continuous ventilation monitoring system approved by the commissioner, which should be fitted with an audible warning device. Regulation 114 requires that at appropriate distances from every place where gases such as hydrogen sulphide are, or could be a hazard, the person-in-charge should cause to be displayed suitable signs warning of the presence of the gases, and any person observed approaching that place should be warned of the danger that exists. Regulation 115 prescribes that the exhaust gases from engines, motors or devices using gas in place of steam or air to operate pumps and other power-driven equipment, should be discharged in a direction and location where they will not create a health hazard to any person. 2.2.4 The Petroleum (Refining, Conversion, Transmission and Midstream Storage) Act, 2013 The Act seeks to operationalise the Oil and Gas Policy by establishing an effective legal framework to ensure that midstream operations are carried out in a sustainable manner that guarantees optimum benefits for all Ugandans, both the present and future generations; enabling the development of petroleum refining, gas conversion, pipelines, transmission and other activities in midstream operations.73 The Act provides that licensees, or any person exercising or performing functions, duties or powers thereunder, should take into account and comply with environmental ____________________ 73 Section 1 of the Petroleum (Refining, Conversion, Transmission and Midstream Storage) Act. Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 283 principles prescribed in the NEA and other applicable laws. For these purposes, the Oil Authority of Uganda may grant a licence to an entity contracted by the licensee upon such conditions as are deemed fit by the National Environment Management Authority (NEMA), for the management of transportation, storage, treatment or disposal of waste arising out of midstream operations, and it is an offence for any such contracted entity to operate without such a licence.74 The Act prohibits venting and flaring of gases. Gas venting means the release of gases to the atmosphere, whereas flaring means combustion of hydrocarbons without application of the resulting heat or gases for any useful purposes.75 These activities are prohibited by Section 38, which provides that a licensee is not allowed to flare or vent petroleum in excess of the quantities needed for normal operational safety without the approval of the Minister on the advice of the Oil Authority.76 All facilities in the midstream stage should be planned and constructed in such way as to avoid gas flaring or venting under normal operating conditions. Hence, any disposal of gases by flaring or venting for normal operational safety should be with the written consent, of the Authority, where it is necessary for the safety of midstream operations or necessary to comply with a requirement imposed by or under any law in Uganda, or in case of an emergency. However, even where flaring or venting is done without consent as an emergency, the licensee should ensure that the flaring or venting is kept at the lowest possible level, and submit a technical report to the authority detailing the nature and circumstances that caused the emergency situation. Part III of the Act provides that the process of licensing for midstream operations shall be kept open and transparent. Section12 provides that the Minister shall, within 45 days after receiving an application for a midstream licence, cause a notice of the application to be published in the Gazette and at least one newspaper of wide circulation in Uganda, and such notice must indicate: details of receipt of the application; description of the nature and location of the proposed facility or operation; inform the members of the public that the application may be inspected, within the limits of the laws governing intellectual property rights and commercial confidentiality; and invite parties and local authorities in the areas affected by the project who object to the granting of the licence, whether on personal, environmental or other grounds, to lodge their objections with the Minister. According to Section 74, the Minister may, in accordance with the Access to Information Act, 2005, make available to the public: details of all agreements, licences and any amendments to the licences or agreements whether or not terminated or valid; details of exemptions from variations to, or suspensions of the conditions of a licence; ____________________ 74 Section 3 of the Petroleum (Refining, Conversion, Transmission and Midstream Storage) Act. 75 Section 2 of the Petroleum (Refining, Conversion, Transmission and Midstream Storage) Act. 76 The Oil Authority of Uganda is established under Section 9 of the Petroleum (Exploration, Development and Production) Act. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 284 and all assignments and other approved arrangements in respect of a licence. This section would ordinarily be very significant in ensuring transparency and accountability in midstream operations, but it seems the proceeding Sections 75 and 76, which impose very stringent clauses on confidentiality of data and prohibition against disclosure of information, respectively, curtail these guarantees. 2.2.5 The Petroleum (Exploration, Development and Production) Act, 2013 The Act is one of the newest enactments in the field of oil and gas. It was enacted basically to regulate the upstream sector and aims at giving effect to Article 244 of the 1995 Constitution of Uganda. It regulates petroleum exploration, development and production; establishes the petroleum authority of Uganda; provides for the establishment of the national oil company of Uganda; and regulates the licensing and participation of commercial entities in petroleum activities. The major purpose of this Act is to operationalise the National Oil and Gas Policy. It aims to establish an effective legal framework and institutional structures to ensure that the exploration, development and production of petroleum resources is carried out in a sustainable manner that guarantees optimum benefits for all Ugandans, both the present and future generations and creating a conducive environment for the efficient management of petroleum resources.77 It also seeks to establish institutions to manage the petroleum resources and regulate petroleum activities; and regulate petroleum activities through licensing, exploration, development, production and cessation of activities or decommissioning. Public safety and protection of public health and the environment in oil activities; supporting the development of state participation and national content in the petroleum industry and ensure transparency and accountability in all activities regulated under the Act, are other strategic approaches laid out in the Act.78 To achieve this, a licensee is required to contract a separate entity to manage the transportation, storage, treatment or disposal of waste arising out of petroleum activities. However, the licensee shall remain responsible for all the activities of the entity so licensed. A person contracted by the licensee shall not undertake the above activities without obtaining a licence from NEMA. The Act makes provision for punitive measures where a person violates the environmental principles contained in the Act. It further provides that a person shall not be granted a petroleum production licence unless their development plan takes proper account of best petroleum industry practices and safety factors.79 This provision is largely ____________________ 77 Section 1 of the Petroleum (Exploration, Development and Production) Act. 78 Ibid. 79 Section 74(1)(b) of the Petroleum (Exploration, Development and Production) Act. Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 285 vague because the Act does not satisfactorily define what amounts to ‘best petroleum industry practices’.80 The only reference to practice which might constitute ‘best petroleum industry practice’ is embedded in Section 76(1)(f) which states that a petroleum production licence granted under the Act must expressly require the licensee to undertake an environmental impact assessment prior to commencing any production activity.81 With respect to access to information by the public, the Act empowers the Minister, in accordance with the Access to Information Act (2005) to make available to the public: details of all agreements, licences and any amendments to the licences or agreements whether or not terminated or valid; details of exemptions from, or variations or suspensions of the conditions of a licence; approved field development plans; and all assignments and other approved arrangements in respect of a licence upon payment of the prescribed fee.82 This seems to be a good guarantee for transparency and accountability in the sector. However, the stringent confidentiality provisions under Section 152 and other express restrictions in Section 153 have restricted it. There are neither regulations on operational mechanisms of the Petroleum Fund, nor Regulations on sharing of revenues from royalties of oil and gas in the Petroleum (Exploration, Development and Production) Act (2013) or elsewhere. Furthermore, although the National Oil and Gas Policy (2008) has transparency and accountability as some of its principles, and one of the actions in the policy is to participate in the processes of the extractive industries and transparency initiative (EITI), Uganda is yet to participate fully in the processes of the EITI as required under the Oil and Gas Policy. A worrisome feature that cuts across most of the legal instruments in the oil governance sector for Nigeria and Uganda is the bureaucratic impediments hindering public participation in decision-making, access to justice and dispute resolution of aggrieved parties. The review of the legal framework for the management of the oil and gas sector in Nigeria and Uganda reveals that there is a variance between the law on paper and its implementation in practice.83 It equally shows the prevalence of unfettered discretion in the management of the resource by the political leadership as opposed to a standardised approach for appropriate and effective management. It is submitted that unfettered discretion which gives far-reaching latitude and flexibility for the policy direction of a state’s oil resources can be overwhelming and expose the ____________________ 80 The Act merely defines ‘best petroleum industry practices’ to mean the best available practices that are generally accepted as good, safe, transparent and efficient in carrying out petroleum activities and that can be applied globally under similar circumstances, something which leaves a lot to be desired since environmental compliance is best achieved through strong regulation. 81 Section 76(1)(f) of the Petroleum (Exploration, Development and Production) Act. 82 Section 151 of the Petroleum (Exploration, Development and Production) Act. 83 See (accessed 26-4-2018). Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 286 sector to undue interference and political consideration other than best operational and management practices. 3 Essential components of the legal framework for ensuring sustainability in the oil sector for Nigeria and Uganda From the above examination of the Ugandan and Nigerian legal frameworks, the following elements of resource governance are suggested as components that should be highlighted and wholly integrated into the legal frameworks for improving sustainable governance of the oil industry in both coutries. 3.1 Value-based approach Prior to building any legal framework for the oil and gas sector, a methodology must be adopted to guide decision-makers on the underlying prospects and challenges in the governance of natural resource in general, and oil resources in particular. Values imply a level of judgment about what is important. Through values, concrete principles like the actual value of the resource, human rights, social equity and legitimacy become synonymous with the emerging legal framework. The emergence of values in resource governance is grounded on the understanding that whilst economic development is essential, not all values are monetary, as biodiversity has intrinsic and cultural values that go beyond economics.84 The value-based approach attaches weight to oil resources, as well as connects the activities and decisions of key stakeholders in the sector. Based on values, key decisions can be made about oil resources and the impact of their extraction on the ecosystems. The Nigerian and Ugandan legal frameworks have developed without clear values underpinning them. This failure has resulted in gaps that compromise the effectiveness of well-meaning legal provisions. While Uganda has a normative framework for ingraining the principles of accountability and transparency, it faces the same challenges that are faced in Nigeria. This raises the need for ensuring that when principles are adopted, they permeate all activities in the oil and gas industry. This will provide a context for dealing with corruption and other rent-seeking activities that are common in the oil and gas sector in both countries. ____________________ 84 See (accessed 12-12-2017). Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 287 3.2 Value-addition approach Most importantly, both states should seek to re-engineer their economic models to add value to their oil and gas resources.85 Both states should shift from crude oil exports to intermediate and finished oil products by adding value and maximising their natural resource wealth. This shift is long overdue. Oil and gas industry governance in Nigeria and Uganda should include the use of legal provisions that buoy up national investment in the sustainable harnessing of environmental assets through industrialisation and reversing natural capital losses. These legal provisions should include developing and strengthening private and public partnerships for harnessing natural capital. Similarly, there is a need for reform of the banking sector laws and regulations to ensure that investors rely extensively on company disclosures to evaluate environmental-related financial risks.86 Presently, company quantification of natural resource use and pollution impacts is largely guided by the Global Research Index (GRI) sustainability reporting guidelines.87 Increasingly, large companies and organisations are creating transparency reports and making considerable strides in building local communities through skills transfer and investment. As environmental, social and governance reporting become more commonplace, the corresponding monitoring systems are likely to improve. 3.3 Principles Good governance, transparency, accountability, participation and responsiveness principles should be included in the laws of both states as they provide the architecture for the sustainable harnessing of oil and gas as well as a standard for measuring economic development in resource-rich states. Specifically, the principle of public participation goes beyond the typical state-driven approach by highlighting the central role of members of the public. Inclusive decision-making through the public participation principle implies a horizontal process in which power dynamics are re-balanced, and the views of groups at risk of marginalisation are clearly taken into account in decisions regarding natural resource governance, including through appropriate representation. ____________________ 85 See (accessed 21-12-2017). 86 UNEP (2015). 87 See Global Reporting Initiative (GRI) Sustainability Reporting Guidelines, which produce international framework for the sustainability reporting process to promote the drive towards greater transparency. The framework sets out principles and indicators that organisations can use to measure and report their economic, environmental, and social performance. CERES and the United Nations Environment Program (UNEP) founded GRI in the USA in 1997. Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 288 Recognition and respect for tenure rights, especially customary, collective rights of members of host local communities, is an important principle that should also be included in the laws of both Nigeria and Uganda. For instance, though the laws on oil and gas resources vest total ownership and control in the government in Nigeria and Uganda to the detriment of the local communities in the areas where the resources are situated, there is general consensus that the ownership of mineral resources by the federal government of Nigeria has been detrimental to the people of the oil producing areas of Nigeria.88 This is likely to be replicated in Uganda. Recognising tenure rights of local communities in the oil and gas industry laws in both states can contribute to effective and equitable natural resource governance. More specifically, such recognition facilitates local stewardship of lands and resources, providing a foundation for sustainable livelihoods and contributing to the fulfilment of human rights and cultural survival. International frameworks such as the Voluntary Guidelines on the Governance of Tenure (Voluntary Guidelines),89 the African Charter on Human and Peoples Rights (whose tenets are part of the law in both Nigeria and Uganda),90 and the United Nations Declaration on the Rights of Indigenous Peoples91 are all legal documents that reflect a global consensus on the need to recognise and respect all legitimate tenure rights. However, the Voluntary Guidelines and the UN Declaration on the Rights of Indigenous Peoples do not enjoy the force of law in Nigeria and Uganda. There are opportunities for including the principles in these documents in both countries, and these should be utilised. Provision for devolution and subsidiarity through collaborative governance is also fundamental in improving the relevant legal frameworks of both countries. Devolution is defined as “a process by which state control over the use of natural resources is gradually and increasingly shared with local communities”.92 In the present context, devolution is closely linked to the principle of subsidiarity, by which decisions are taken at the lowest possible level. Devolution and subsidiarity are key elements that create flexible and adaptive processes for decision-making and management of natural resources. Accordingly, building devolution and the subsidiarity principles in the oil resource governance framework addresses access to justice, differentiated actions for specific situations of vulnerable groups and social and environmental accountability. The focus on devolution further reinforces the rights-based approach to natural resources governance, as members of the local community through their representatives are engaged in making decisions with respect to the extractive activities in their ____________________ 88 Ekhator (2016: 43). 89 FAO (2012). 90 Article 21 of the African Charter provides that all peoples shall have the right to freely dispose of their wealth and mineral or natural resources. 91 United Nations Declaration on the Rights of Indigenous People (2007), at (accessed 20-01-2018). 92 Nakangu (2016). Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 289 environment. Both Nigeria and Uganda have work to do to ingrain devolution and subsidiarity principles within their oil and gas laws. 4 Conclusion Nigeria and Uganda share similar historical antecedents in terms of laws that regulate certain sectors of their respective economies. Uganda’s entrance into the group of oil resource extracting states is, however, relatively new compared to that of Nigeria, and the state is yet to fully participate in the EITI. Both states are making similar efforts to provide a responsive legal framework for oil resources governance. This chapter does not dwell in-depth on the reasons for the poor performance of Nigeria and Uganda in the RGI Report. Based on the review of their legal frameworks, however, it is safe to posit that both states share similar governance challenges. The content of their respective laws and the role of the state as prescribed by these laws have contributed to the governance challenges the countries have experienced. An assessment of the legal frameworks for oil resource governance in Nigeria and Uganda reveals gaps, which justify the 2017 RGI Report’s conclusion that a governance deficit exists in the decision-making chain in the extractive industry in Nigeria and Uganda. Legal reforms to boost value realisation, improve revenue management and maintain an enabling environment are critical if Nigeria and Uganda are to harness oil wealth for the benefit of their people. The existing legal instruments governing the management of oil resources in both states do not reflect contemporary realities and the principles of inclusiveness, transparency and accountability. This explains the mismanagement, lack of regard for the rule of law, poor regulatory quality and corruption associated with the governance of oil resources in Nigeria for instance.93 It also explains the poor revenue management and corruption that undermines the development of an appropriate legal framework for the budding oil resource industry in Uganda. Review of the content of laws in both states and their performance on the 2017 RGI, which places Nigeria and Uganda within the ranking for states that exhibit serious shortcomings in oil resource governance, leads us to conclude that there is a correlation between the content of the law, state presence and sustainable harnessing of oil resources. For any state, including Uganda and Nigeria, to govern its oil and gas sector sustainably, the principles of accountability and transparency outlined above, a valuebased approach and the need for value addition must be incorporated into the legal framework. ____________________ 93 See (accessed 10-02-2018). Lanre Aladeitan, Robert Alex Wabunoha & Chidinma Therese Odaghara 290 References Ahmed, Z (2012) “NEITI: The prospects, issues and challenges” Presentation to the IMF Mission (21-3-2012), at (accessed 13-03-2018). Aladeitan, L (2013) “Ownership and control of oil, gas, and mineral resources in Nigeria: between legality and legitimacy” 38 Thurgood Marshall Law Review 159-197. Aladeitan, L (2015) Natural resources and conflict in Nigeria: the legal framework for resource governance, peace and sustainable development Ph.D. thesis, University of Abuja, Nigeria. Ekhator, EO (2016) “Public regulation of the oil and gas industry in Nigeria: an evaluation” 21 Annual Survey of International & Comparative Law 43-93. FAO / United Nations Food and Agricultural Organisation (2012) Voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security. Likosky, M (2010) “Contracting and regulatory issues in the oil and gas and metallic minerals industries” 18 Transnational Corporations 12. Nakangu, BB (2016) NRGF challenges and opportunities in eastern and southern Africa NRGF Regional Scoping Report. Natural Resource Governance Institute Reader (2015) “Legal framework navigating the web of laws and contracts governing extractive industries”, at (accessed 30-4-2018). Natural Resource Governance Institute (2017a) “Resource governance index”, at (accessed 5-5-2018). Natural Resource Governance Institute (2017b) “Nigeria: Oil and Gas, 2017 Resource Governance Index”, at < http://resourcegovernanceindex.org/country-profiles/NGA/oil-gas> (accessed 8-4- 2018). Natural Resource Governance Institute (2017c) “Uganda: Oil and Gas, 2017 Resource Governance Index”, at (accessed 8-4- 2018). Nwokeji, G (2007) The Nigerian National Petroleum Corporation and the development of the Nigerian oil and gas industry: history, strategies and current directions Policy Report of the Joint James Baker III Institute for Public Policy/Japan Petroleum Energy Centre on the Changing Role of National Oil Companies in International Energy Markets. Omeke, CA (2011) Critique on the legal regime governing gas flaring in Nigeria unpublished LLM dissertation of the University of Nigeria Nsukka Nigeria. Omorogbe, Y (2002) “The legal framework for public participation in decision-making on mining and energy development in Nigeria: giving voices to the voiceless” in DN Zillman, AR Lucas & G Pring (eds) Human rights in national resource development: public participation in the sustainable development of mining and energy resource 549. OPEC / Organization of the Petroleum Exporting Countries (2017) Annual statistical bulletin, at (accessed 29-4-2018). UNEP (2015) The financial system we need, aligning the financial system with sustainable development, at (accessed 30-4-2018). World Bank (2010) Trade report, at (accessed 10-3-2018). Harnessing oil as natural resource wealth: the legal frameworks of Nigeria and Uganda 291 World Bank (2017) The role of law in World Development Report 2017, at (accessed 10-12-2017). 293 Chapter 13: Access and benefit sharing: beyond the Nagoya Protocol and its ideals Andrew Muma 1 Introduction This chapter analyses the utility of the Nagoya Protocol in the conservation and sustainable use of biodiversity resources, both flora and fauna. Sustainable development aims not only to conserve the resources that exist in the environment for the present generation but also generations to come.1 This has a bearing on food sufficiency, preservation of heritage, intellectual property, climate change and sustainability.2 Clear juridical rights of ownership in community-owned areas ensure that resources are not abused.3 This chapter looks at community rights over land and resources on it as a possible tool for enhancing sustainable development.4 Sustainable environmental management is important for life on earth.5 In this chapter, it is argued that one of the causes of environmental degradation is the crusade for private land ownership which has led to the neglect of values and principles of communitarianism that were geared toward sustainable resource utilisation.6 This is premised on the fact that private property ownership is hedonistic and broods an attitude of total disregard for the impacts of current actions on the future. The Nagoya Protocol restates principles of the past and proposes a bottom-up approach that puts communities at the centre of the ownership of biodiversity. By enhancing the status of communities’ tangible rights over the finite resources, it has the potential to eradicate poverty and simultaneously to facilitate the reinvention of value systems needed for effective biodiversity management and that as a check against rapid resource depletion.7 ____________________ 1 Fimbel et al. (2005: 33). 2 Okoth Ogendo (2006: 65). Okoth argues that the formal regime ought to ensure that there is security of tenure for the juridical persons entitled to such rights if sustainable development is to be achieved in the larger society. 3 Nyukuri (2017: 266); and Seppälä et al. (2009). 4 Nyukuri (2017: 266). 5 Obare & Wangwe (2004); and Ogolla & Mugabe (1996: 85-86). 6 Ross (2009: 5). 7 Nnadozie (2003: 58). Andrew Muma 294 2 Background 2.1 An ontological perspective on land ownership policies It is becoming increasingly clear that the subjugation of traditional systems of property ownership occasioned by colonisation is no longer justifiable.8 This is because the premise upon which the neglect was founded – the economic efficiency of private ownership of resources – is flawed.9 Historical evidence shows that the introduction of private ownership of land and resources in Kenya was a ploy to dispossess indigenous communities and create room for the settler community.10 Further, before the advent of colonisation, land and allied resources were owned by the community as a unit with different categories of rights granted to clans, families and individuals.11 However, upon declaration of the Kenyan protectorate in 1897, Ordinances were introduced whose effect was to take away ownership of the land from the communities and vest it in the Crown – the equivalent of the state in modern day terms.12 Owing to the wrong perception that land and land-related resources could not be efficiently managed using communal/customary tenure, communities directly collided with the introduced ‘formal’ system of ownership.13 The western ownership patterns, which had matured through the industrial revolution slowly, replaced the institutions that had been in existence for centuries and had sustained the communities.14 Proponents of the market believed that only easily transferrable property rights were desirable15 contrary to emerging literature.16 With the taking away of land rights, communities became squatters on their own land17 and their access to flora and fauna was curtailed. They were forced into reserves, which were the only places in which they were allowed to roam.18 Most forests, which were part and parcel of the traditional life, became state property and were fenced off. This curtailed access to wildlife, fruit, traditional shrines, areas demarcated for traditional rites, medicinal plants. Settlers were allowed access into some of the forests to ____________________ 8 Kameri Mbote et al. (2013: 37). 9 Nyamu-Musembi (2006). 10 Odote (2017: 119-120). See also Kalabri v. AG (1938) 18 KLR. 11 Blackburn (1976). 12 Ghai & McAuslan (1970: 3). See also Ole Njogo v. A.G of E.A.P, (1914), 5 E.A.L.R. 70. 13 Kameri-Mbote et al. (2013: 40), argue that colonial and post-colonial policy was geared towards privatisation of land and customary tenure was neglected and ignored. See further Swynnerton (1995). 14 Kenyatta (1965: 38). 15 Kemboi (2015: 88). 16 Angeles (2011: 2). 17 Okoth Ogendo (1995). 18 Anderson (2000). Access and benefit sharing: beyond the Nagoya Protocol and its ideals 295 clear and commence farming. The colonial government required permits and licenses for hunting and gathering activities.19 Upon the attainment of independence, the emphasis on private property continued.20 Some of the land taken away was sold back to the natives who could access credit in order to pay for the land.21 Ownership of reserves where customary tenure operated was transferred to the county councils to hold as trust land on behalf of these communities.22 It is important to note that before the advent of the wave of land reforms in the global south in the 1990s,23 the Land (Group Representatives) Act was the only postindependence Act of Parliament in Kenya that recognised some form of community tenure. Nevertheless, Odote has argued that this was not the end, but a means to an end.24 The alleged recognition was to facilitate the conversion of the ranches to private land holdings. 2.2 The history of natural resource management The displacement of communities is clear from the foregoing discussion. Once the land was taken away, native communities were deprived of their sources of livelihood,25 exacerbating poverty. Mborio et al.26 note, discussing the future of the Khasigau, that upon the forceful taking away of land from the community, poverty struck and is still felt by the Kasighau relative to its neighbours in Taita Taveta County. Community resources in Kenya were taken away from communities for imperialist interests.27 The colonial government set up the Department of Forests to manage forests28 after Kenya became a protectorate. This was done without a policy to guide the delineation of forests and highlight the goals and objectives of setting them aside. The communities living around the forests were, and still are, prevented from accessing the forest areas, and where access is allowed, utilisation is circumscribed to the extent of rendering their proximity to the forests’ resources useless. A policy was crafted in 1957, but by that time the areas gazetted as forests had already been set aside.29 It is therefore likely that the demarcations were not based on ____________________ 19 Peluso (1993); and Baker (1997). 20 Doyle (2016). 21 Mweseli (2000: 21-22). 22 Okoth-Ogendo (2000). 23 Knight (2010). 24 Odote (2010). 25 Sen (2001). 26 Mborio et al. (2016). 27 Lindholt (2005). 28 Ogada (2012). 29 See (accessed 28-11-2017). Andrew Muma 296 equitable grounds but were meant to protect the interests of the regime. In 1968, another policy was crafted which continued the process of exclusion of communities from direct participation in the management and use of the forest resources. This revision happened at a time when the increasing population had inadequate land to settle on. A few changes were introduced such as the shamba system, to allow communities living around the forests to use land gazetted as forest areas for farming, as they also cultivated crops for domestic use. Members of the community remained squatters on land that originally belonged to them. Alarmingly, little has changed even with the Forest Management and Conservation Act No. 36 of 2016 and the Forest Policy of 2007. The depletion of forest cover continues at an alarming rate. Other resources taken away from communities30 include wildlife and extractives that form the raison d’être for the Convention on Biodiversity and its Protocols.31 The case studies used by Kameri Mbote et al.32 show that resources such as minerals, pasture and wildlife become the property of the state and their use is controlled by the state.33 However, in the case of pasture in areas that are predominantly pastoralist, access is not limited. The challenge that arises is that in seasons of scarcity, there is a scramble for pasture on public land. In the case of minerals, exclusion fuels violent clashes and the minerals become a curse disguised as a blessing.34 In the case of genetic resources and the intellectual property of communities, exploitation is never brought to their attention. Furthermore, due to the sophistication with which such activities are conducted, the communities are totally excluded from the benefits that accrue. If such activities were brought to public light, communities could demand their entitlements. For instance, Lake Baringo residents benefitted from the use by a Japanese company of enzymes from the geysers in Lake Bogoria.35 Aquatic resources are also being depleted and degraded. The water hyacinth in Lake Victoria has really affected the ecosystem. The fish population in Lake Victoria is also dwindling, raising poverty levels and diminishing food sources for communities living around the lake. In terms of wildlife resources, continued deforestation has led to increased human-wildlife conflict owing to increased mobility of wildlife due to disturbed habitats. Communities that live near gazetted national parks do not often benefit directly from the revenue that accrues from such parks. It is channelled to national coffers thus making it difficult to convince communities living near the parks to participate in wildlife conservation. ____________________ 30 Nyamwaya (2013). 31 Convention on Biological Diversity (1992) 31 I.L.M. 842. 32 Kameri-Mbote (2014). 33 See Article 71 of the Constitution of Kenya 2010. 34 Quinn & Conway (2008). 35 Muheembwa (2014). Access and benefit sharing: beyond the Nagoya Protocol and its ideals 297 3 Conceptual framework 3.1 Property rights and the management of biodiversity 3.1.1 Property rights Property has different meanings to different people. To the layperson, property is a thing represented by physical resources. However, it is a legal concept, economic concept and a social relationship.36 A right is a claim by an individual or institution-holder of a right on another upon whom there is a duty for an act or forbearance; and the failure to perform, entitles the right holder to use coercion to extract compliance or compensation in lieu thereof.37 Property represents a social relationship between the rights holder and persons amongst whom he lives.38 It is a relationship between an individual and the community regarding the use and exploitation of resources, and is dependent on the enforcement mechanisms of the state.39 It is the duty of the law, as the expression of the will of the people, to provide mechanisms to protect property in the interest of all citizens. A property law system must protect and curtail the right of property holders to ensure an environment in which the rights of other property holders and the public interest are safeguarded. This view of property is very important for the discussion going forward because natural resource use that entails degradation affects the entire society. It is therefore important to emphasise the point that property is not just a commodity over which the owner has absolute rights. Choices on the use and regulation of property go beyond individuals to shaping social relationships generally. Property is a legal relationship by virtue of a claim backed by law, a bundle of rights and expectations in a tangible or intangible thing that are enforceable against third parties including the government.40 These are entitlements to possess, use, exclude, allow others to use, sell, give away, dispose of by will, recover from a thief and receive compensation in case of damage. With the encoding of these presumptions into law and policy, communal rights have been marginalised in Kenya since the official dogma openly supports private individual rights and actively encourages the transformation of community rights into private individual rights.41 At the centre of all this property discourse is the maxim cuis est solum eius est usque as coelom et ad infernos – he who owns the land owns everything reaching up to the heavens and down the depths of the earth – which underscores the sacrosanct nature of land rights in English common ____________________ 36 Bentham (1976: 133). 37 Becker (1977). 38 Kameri-Mbote (2007: 75). 39 Akech & Kameri-Mbote (2008: 15). 40 Cohen quoted in Sprankling (1991). 41 Kameri-Mbote et al. (2013: 37). Andrew Muma 298 law.42 Its subject matter includes the surface of the soil, the things on the soil enjoyed as part of the land (such as air, water, trees and animals); the things artificially attached to the land like buildings; and things found beneath the surface of the earth. It also includes biological resources. There are three distinct property rights regimes that affect biodiversity management: individual/private property; communal/common property; and government control.43 At the international level ownership of genetic resources have for a long time been a point of contention between developed and developing countries. A good case in point was the coining of the concept of farmers rights (FRs), a genus of intellectual property rights seeking to balance benefits enjoyed by donors of germplasm and technology versus the interests of farmers who preserve protect and conserve genetic resources and share them with others. Developing countries saw the abrogation of the common heritage of humankind concept as a step towards equity with developed countries in terms of genetic resource and commercialisation, but this has not been the case. Countries like Kenya have since moved to align their laws to regulate access to genetic material whilst neglecting land tenure arrangements, which are key to sustainable development. The result undermines the best interests of citizens. Property rights are discussed under two headings at the national level: state regulation and market regulation. Both positions assume that human beings cannot use common pool resources in a sustainable manner without state regulation. In instances of state regulation, the state undertakes, through regulatory command and control mechanisms, to elicit behaviour conducive to biodiversity management. Market solutions, on the other hand, rely on personal motivation derived from granting private individual rights with the hope that it will provide incentive enough to right holders to maximise the benefits, thereby promoting sustainability.44 The upshot of the foregoing campaign for private property rights in biodiversity conservation, both at the international and national level, is the view that property held in common encourages a rush by all having access to it to appropriate as much of it as possible while it lasts.45 Food shortages and environmental degradation have led to disenchantment with command and control approaches to environmental regulation, raising the need to change the narrative. A change would call for an understanding of economics and property rights in addition to embracing relevant property rights regimes that work. In biodiversity management, both real and intellectual property rights are relevant where real property comprises tangible commodities capable of exclusive possession and delineation.46 Land exemplifies this form of property as it hosts an array of species and ecosystems, thus making land tenure arrangements central to biodiversity ____________________ 42 Blackstone & Blackstone (1809). 43 Miller (1995). 44 Kameri-Mbote (2002: 20-25). 45 Ostrom (2015). 46 Swanson (1995: 118). Access and benefit sharing: beyond the Nagoya Protocol and its ideals 299 management. Land tenure defines the range of persons able to control and manage resources found on that land and the form of land management to apply to it. It also determines who may participate in resource extraction and to what degree.47 The value of intellectual property rights (IPRs), on the other hand, results from creating a shortage of information by limiting access to non-owners. IPRs have proven to be a challenge in communal setups as they are premised on the understanding that a creator has invested labour. This concept is akin to private property ownership and does not accommodate community knowledge developed over time and passed from generation to generation; knowledge that cannot be traced to a particular individual and which is available for use by all members of the community.48 IPR regimes are, however, slowly warming up to the realisation that communities cannot be wished away and traditional knowledge and indigenous peoples property rights protection are taking centre stage in international debates. 3.1.2 The moral hazard theory In the context of agency, an agent is seldom more concerned with the affairs of the principal than the principal would be. Therefore, an agent is likely to be less concerned with the long-term performance of the endeavours of the principal as long as the agent’s short-term goals are catered for. In the context of corporate governance, a stakeholder other than the owner of an entity will likewise be less concerned with the performance of the affairs of the said entity. This rationalises the effort that is being expended in modern-day toward the creation of governance structure in entities, whether public or private, in order to protect the interests of the real owners of entities and to the factors of production. Building on the argument above, stakeholders, other than the communities that live next to areas rich in natural resources, may theoretically not be the best institutional entities and/or persons to manage and conserve natural resources. This is because they do not bear first hand, the brunt of the mismanagement of such resources be they forests, aquatic resources, minerals or wildlife.49 On this premise, it is therefore proposed to grant more pronounced rights to communities to enhance their chances of better biodiversity management.50 Furthermore, the current system of vesting the rights of control, use and access to resources in the state has shown that the said powers are ____________________ 47 Ochola et al. (2010: 399-406). 48 Mudiwa (2002). 49 Okidi Odidi & Odote (2017: 278). 50 Odote (2010). Andrew Muma 300 prone to abuse.51 Further, there has been continued depletion of the said resources and increased poverty for the people living around the natural resources.52 3.2 Commons as the institutional arrangement that may alter behavioural challenges There is ample evidence that the current institutional arrangements fail because of the fallacy that common property regimes are inefficient. This, according to Okoth, was based on a lack of proper understanding of the nature of commons as a legitimate regime governed under customary law.53 As opposed to private systems that are focused on individual advancement and optimal gain, commons are based on the understanding that individuals are interdependent. Therefore, the concept of mutual vulnerability is at the centre of societal development.54 This is what other authors view as the requirement for reciprocity in dealings with property owned communally. From the foregoing, it is clear that the approach to property under customary or communal tenure had common interests as the chief goal of institutional arrangements. On the other hand, under common property regimes, resources on land and in land were considered to be trans-generational assets.55 Persons who were alive knew well that they were not exclusively entitled to benefit from the resources but to consider future generations as well.56 This shows that under communal systems of ownership, sustainability of resource utilisation was paramount. This explains why communities would demand that once land that had been tilled for some time and had become depleted in terms of mineral richness, the land had to be left fallow for years before tilling would be allowed on it again.57 The same applied to wildlife and forest resources, which were used under strict supervision. Owing to the misunderstanding of the intrinsic nature of the commons, it has been argued by Hardin that due to a lack of restrictions on access, commons face a tragedy.58 Musembi59 has illustrated that such a theory is fallacious. Moreover, this is squarely because of the confusion of commons with open access. This position has been taken up by Akech who argues that there is a need to revive the commons as an alternative or complementary driving force to ensure sustainable use of not only land but other ____________________ 51 Government of Kenya (2004). 52 Abwoli (2009: 315-333). 53 Okoth-Ogendo (2002: 7). 54 di Robilant (2011: 1363) discussed in Okoth Ogendo (1995). 55 Okoth Ogendo (1995). 56 Kameri-Mbote (2007). 57 Ibid. 58 Hardin (1968: 1243). 59 Musembi (2007). Access and benefit sharing: beyond the Nagoya Protocol and its ideals 301 resources too.60 This position has been properly captured by Bromley and Cernea who have refuted the position that commons are wasteful in the following terms:61 Resource degradation in developing countries while incorrectly attributed intrinsically to common property systems actually originates in the dissolution of local level institutional arrangements whose purpose was to give rise to resource use patterns that were sustainable. 3.3 Resource management decentralisation as a panacea Irresponsible human activity is one of the main causes of resource degradation and depletion.62 This explains why deforestation singularly accounts for between 12-18% of greenhouse gas emissions. It is noteworthy that globally, there is a push towards recognising community or indigenous rights. This recognition has converged with the growing importance of climate change and environmental degradation. Decentralisation places individual communities at the centre of resource management enabling them to individually and collectively manage the resources.63 This ensures that they benefit from the resources and view them as a trans-generational asset. The results of this decentralisation range from the alteration of human behaviour in respect of resources to the improvement of livelihoods.64 The formal recognition of communities as juridical persons in law is a step in the right direction.65 For instance, the Northern Rangelands Trust (NRT) was created to allow for proper use of pasture while at the same time conserving wildlife, which is a source of revenue.66 Similarly, in Arabuko Sokoke, participatory forest management has been used to allow communities to access the forest resources while at the same time engendering conservation. This has contributed to changing the perception of communities toward natural resources and helped reduce human-wildlife conflict. 3.4 Access and benefit sharing: definition and importance in economic development Access means obtaining, processing and using genetic resources, including derived products and where applicable, intangible components for purposes of research, bioprospecting, conservation, industrial application or commercial use. Before the ____________________ 60 Akech (2001). 61 Bromley & Cernea (1989: 47). 62 Adger et al. (2009). 63 Salick (2007). 64 Mariku et al. (2012). 65 Odote (2010). 66 Kameri Mbote et al. (2013: 54). Andrew Muma 302 Convention on Biological Diversity (CBD)67 came into effect in 1992, genetic resources were free to all humankind. They would be collected from countries of origin and taken to other countries without any regulation. This led to countries of origin seeking to share the benefits arising from the use of the resources sourced in their territory. Benefit sharing is a hotly debated topic in law, medical ethics and political philosophy. Its ordinary definition is the action of giving a portion of advantage or profit (monetary and non-monetary benefits) to others. However, for purposes of the international legal discourse, benefit sharing is used to mean giving a portion of advantage/profit derived from the use of genetic resources or related knowledge to resource providers.68 Economically, access and benefit sharing (ABS) regimes are important to channel benefits that accrue from the use of genetic material. Namibia, for example, exports the devil’s claw, which is used as an analgesic anti-inflammatory drug. Export revenues are estimated at USD 2 million annually, but communities receive no benefit.69 Similarly, Prunus Africana, used for boosting immunity and the treatment of prostate cancer, generates about USD 220 million annually, yet people who have nurtured it receive no benefit.70 Industrial enzymes from microbes used for fading jeans are a trade worth USD 600 million annually, and the communities around Lake Bogoria in Kenya where the enzymes are sourced, do not benefit from the proceeds.71 Communities living around Lake Ruiru in Kenya are also unaware of, and do not benefit from, the EUR 278 million generated from a diabetes drug processed from microbes sourced from the lake.72 4 Legal and regulatory framework governing natural resource management and conservation From the foregoing, it is evident that community involvement in natural resource management has become necessary and ABS can facilitate it. ABS has achieved recognition in international treaties and protocols emphasising the need to legislate on ABS nationally. This part of the chapter looks at ABS treaties and the extent to which their provisions have been domesticated in Kenya. ____________________ 67 Convention on Biological Diversity, 31 International Legal Materials opened for signature on 5 June 1992 and entered into force on 29 December 1993. 68 Carrizosa (2004). 69 Government of Namibia (2010). 70 Stewart (2003). 71 Lacey (2006). 72 Munyaradzi (2014: 117). Access and benefit sharing: beyond the Nagoya Protocol and its ideals 303 4.1 International framework for access and benefit-sharing 4.1.1 Convention on Biological Diversity The CBD is a key instrument in discussions on ABS. It was opened for signature in 1992, entered into force in 1993 and has to date been ratified by 193 parties making it nearly universal. It has three objectives:73 • the conservation of biological diversity; • the fair and equitable sharing of benefits arising out of the utilisation of genetic resources; and • the sustainable use of the components of biological diversity. Fair and equitable sharing of benefits arising from the use of genetic resources is addressed in Articles 15, 16 and 19 of the CBD. Article 15 provides for access to genetic resources on mutually agreed terms and subject to prior informed consent of the contracting party providing such resources. It requires contracting parties to take legislative, administrative and policy measures for fair and equitable sharing of the benefits; results of research and development; and the commercial and other use of genetic resources. Article 16 focuses on access to, and transfer of, technology and requires contracting parties to undertake to provide both access to and transfer of technologies relevant to the conservation and sustainable use of biological diversity. Additionally, while recognising that patents and other IPRs may have an influence on the implementation of the CBD, it calls on parties to cooperate to ensure that IPRs support and do not run counter to its objectives. Article 19 specifically addresses biotechnology and its benefits, emphasising the need for all parties to effectively participate in biotechnological research especially in developing countries. It also calls for practical measures to promote and advance priority access on a fair and equitable basis. Notably, it anticipates the need for and exhorts parts to consider a protocol with appropriate ABS procedures. In a nutshell, the CBD represents a paradigm shift from the concept of common heritage of mankind to the concept of national sovereignty over genetic resources. While it lays a basis for ABS, it has been argued that it concentrates on access for chemical and pharmaceutical purposes and is difficult to apply to plant genetic resources used for food and agriculture.74 Implementation of the ABS provisions at the national level has been slow in Africa, owing to: a lack of ‘user measures’; the absence of support for user compliance with ABS legislation in provider countries; and the difficulty in negotiating mutually agreed terms of ABS. According to the multi-donor ABS development capacity building ____________________ 73 Article 1 of the Convention on Biological Diversity. 74 Santilili (2012: 56). Andrew Muma 304 initiative, only six out of 54 African countries had developed ABS legislation by 2011.75 While these few countries developed access oriented policies and legislation, the lack of corresponding benefit sharing policies and legislation in industrialised countries resulted in the adoption of the Nagoya Protocol in 2010 at the World Summit on Sustainable Development.76 4.1.2 African model law The African Model Law for the protection of rights of communities, farmers and breeders, and the regulation of access to biological resources, was adopted in 1998 and provisions on plant breeder’s rights (PBRs) included in 2001. This is not a law or agreement, but rather an information package for use in drafting national laws. It provides a framework for African Union member states to develop specific national legislation in compliance with their international commitments.77 The African Model Law needs revision, but the question is whether it is useful within the context of a detailed international ABS instrument – the Nagoya Protocol.78 4.1.3 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) The ITPGRFA,79 adopted in November 2001 and which entered into force in June 2004, seeks to ensure the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of benefits arising out of their use, in harmony with the CBD. It only regulates access to plant genetic resources for food and agriculture (PGRFA) while access to other genetic resources is to be negotiated bilaterally in accordance with national ABS policies in the context of the CBD. Under the Treaty, ABS goals are to be achieved through a multilateral system where facilitated access is provided based on a standard material transfer agreement, which establishes benefit sharing obligations when PGRFA are commercialised. ____________________ 75 GIZ (2011). 76 Paragraph 44 of the plan of implementation of the World Summit on SD A/Conf 199/20 (2002). 77 Munyi et al. (2012). 78 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, UNEP/CBD/COP/DEC/X/1. 79 International Treaty on Plant Genetic Resources for Food and Agriculture, adopted in November 2001 and which came into force in June 2004 (accessed 30-5- 2018). Access and benefit sharing: beyond the Nagoya Protocol and its ideals 305 4.1.4 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation The Bonn Guidelines80 were adopted in April 2002 by the sixth meeting of the Conference of Parties to the CBD. They apply to genetic resources covered by the CBD but not those covered by the ITPGRFA. The Guidelines are voluntary and flexible and were designed to guide countries in developing ABS legislation. They deal with the involvement of relevant stakeholders and capacity building; steps in the ABS process; elements of a prior informed consent system; potential monetary and non-monetary benefits; incentives; national monitoring and reporting; and accountability.81 4.1.5 Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol) This protocol to the CBD, adopted in Japan on 29th October 2010, sets out the rules and mechanisms for access to genetic resources and associated traditional knowledge (TK) and supports the fair and equitable sharing of benefits arising from their use. It draws significantly from the Bonn Guidelines. Articles 5 and 6 of the Protocol require that access to genetic resources by users be based on prior informed consent and that equitable benefit sharing must occur on mutually agreed terms. 4.1.6 Rights of indigenous people and local communities Recognising that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable development and proper resource management, several covenants and declarations have been signed, including: the Covenant on Intellectual Cultural and Scientific Resources; the Declaration of Principles of the World Council of Indigenous Peoples;82 the UN Declaration on the Rights of Indigenous Peoples;83 the Kari-Oca Declaration and the Indigenous Peoples Earth Charter;84 the Charter of the ____________________ 80 Secretariat of the Convention on Biological Diversity, Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (2002). 81 Carrizosa et al. (2004). 82 World Council of Indigenous Peoples Declaration of Principles (CIRCA1984) adopted by the General Assembly of the WCIP at a gathering at Panama City, Panama (1984). 83 United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on 13th September 2007, A/RES/61/295. 84 KARI-OCA Declaration and Indigenous Peoples’ Earth Charter, World Conference of Indigenous Peoples on Territory, Environment and Development KARI-OCA 25-30 May 1992. Andrew Muma 306 Indigenous-Tribal Peoples of the Tropical Forests;85 the Recommendations from the Voices of the Earth Congress;86 the COICA/UNDP Regional Meeting on IPRs and Biodiversity basic points of agreement;87 the UNDP Consultation on the Protection and Conservation of Indigenous Knowledge;88 and the UNDP Consultation on Indigenous Peoples Knowledge and IPRs.89 All these build momentum for communities’ rights to participate actively in matters affecting their livelihood, including ABS relating to environmental management and conservation.90 4.2 National laws on ABS elements Kenya signed the CBD in 1992 and ratified it in 1994 and the Nagoya Protocol in 2012. Kenya is also a party to the ITPGRFA. Some ABS elements are contained in some national laws, but their actual implementation is far from perfect.91 Prior to CBD, there was little or no exchange of knowledge or compensation for access to resources. There is an urgent need to correct this position. The ABS regime at the national level is fragmented with instances of role duplication, which makes enforcement difficult. Nyamwaya suggests the need for a comprehensive regime recognising the role of communities.92 Internationally, the Universal Declaration of Human Rights recognises the rights of people to own property and natural resources, stating:93 Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. Community involvement in natural resource management ought to be embraced, and for this to be successful, it must be looked at both from a land ownership perspective and from the perspective of implementary ABS. ____________________ 85 Charter of the indigenous and tribal peoples of the tropical forests (IAIP Charter), Penang, Malaysia (1992). 86 Recommendations from the Voices of the Earth Congress, Amsterdam, Netherlands, 10-11 November 1993. Cited in Posey and Dutfield (1996). 87 COICA/UNDP Regional Meeting on Intellectual Property Rights and Biodiversity, Santa Cruz de la Sierra, Bolivia, 28-30 September 1994. 88 UNDP Consultation on the Protection and Conservation of Indigenous Knowledge, Sabah East Malaysia (24-27 February 1995). 89 UNDP Consultation on Indigenous Peoples’ Knowledge and Intellectual Property Rights, Suva (April 1995). 90 Posey & Dutfield (1996: 175-179). 91 Joseph (2012). 92 Nyamwaya (2013). 93 Article 28(1) of the Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly Resolution 217A). Access and benefit sharing: beyond the Nagoya Protocol and its ideals 307 4.2.1 Current legislation and regulations in Kenya The Constitution of Kenya 2010,94 the Land Act95 and the Community Land Act96 are of relevance here. The Community Land Act recognises, protects and provides for the registration of community land rights, and Sections 35 and 36 provide that natural resources found on community land shall be managed sustainably, with benefits accruing shared equitably subject to a clear agreement entered into between the investor and the community. However, the question is what happens to natural resources on public land held by the government that communities are entitled to? This is the issue graphically discussed in Kasighau in November 2011:97 There is no land that is unclaimed. If we were to be told: each one to your positions go! There would be no vacant spaces left that anyone could point to and call ‘ours’ as everything would be labeled ‘mine’. The government land is therefore what we are eyeing when we speak of community land. On the other hand, natural resource laws include the Constitution of Kenya 2010, the Environmental Management and Coordination Act (EMCA),98 the Forest Management and Conservation Act99, the Fisheries Management and Development Act,100 the Water Act,101 the Wildlife Management and Conservation Act,102 the Mining Act 2016,103 and the Petroleum (Exploration and Production) Act.104 The yet to be passed Natural Resources (County Royalties) Bill (2013)105 and the Natural Resources (Benefit Sharing) Bill (2014)106 which have a more direct bearing on sharing revenue from the use of natural resources, are yet to be passed. Section 53 of EMCA deals with ABS and under it, the Environment Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to ____________________ 94 The Constitution of Kenya, 27th August 2010 (accessed 25-05-2018). 95 The Republic of Kenya, Laws of Kenya, Land Act No. 6 of 2012. 96 The Republic of Kenya, Laws of Kenya, Community Land Act No. 27 of 2016. 97 Mborio et al. (2016). 98 The Republic of Kenya, Laws of Kenya, Environmental Management and Co-ordination Act No. 8 of 1999. See furhter: Kenya Gazette Supplement No. 74 Act No. 5 of 3rd June 2015; and the Environmental Management and Co-ordination (Amendment ) Act (2015). 99 The Forest Conservation and Management Act, Kenya Gazette Supplement No. 155 (Acts No. 34) of 7th September 2016. 100 The Republic of Kenya, Laws of Kenya, Fisheries Management and Development Act No. 35 of 2016. 101 The Republic of Kenya, Kenya Gazette Supplement No. 164, Water Act No. 43 of 2016. 102 The Republic of Kenya, Laws of Kenya, Wildlife (Conservation and Management) No. 47 of 2013. 103 The Republic of Kenya, Laws of Kenya, Kenya Gazette Supplement No. 71, Mining Act No. 12 of 2016. 104 The Republic of Kenya, Laws of Kenya, Petroleum Exploration and Production Act Chapter 308. 105 Republic of Kenya, Natural Resources (County Royalties) Bill 2013. 106 Republic of Kenya, Kenya Gazette Supplement No. 137 Senate Bills No. 34 of 2014. Andrew Muma 308 Genetic Resources and Benefit Sharing) Regulations Legal Notice No. 160 of 2006 were made. The regulations provide for access at Part III and benefit sharing at Part IV, with implementation placed under National Environmental Management Authority (NEMA). All applications for permits are to be made to NEMA whose requirements include: payment of a fee; prior informed consent; mutually agreed terms; and minutes of meetings and research authorisation from the National Council of Science and Technology (NCST).107 In the case of wildlife, prior informed consent should be sought from Kenya Wildlife Service (KWS);108 and from the Kenya Agricultural and Livestock Research Organization (KARLO) in case of agriculture.109 Complaints about a lack of clarity in the systems, the multiplicity of regulators and a lot of paperwork abound with many seeing compliance with CBD lost as the obligation to pay fees imposed by NEMA takes centre stage. The expectation that communities would benefit has not been realised.110 It is proposed in the draft National Biosciences Policy111 that a National Biosecurity and Bioscience Research Authorization Committee be established to reduce the red tape. The involvement of the community in crafting access legislation is critical for progress to be made. Section 5 of the Water Act112 vests water resources in the government in trust for the people of Kenya. It also creates a Water Resources Authority to regulate the management and use of water resources, and grant and enforce permits for water abstraction, use and recharge. A Water Basin Committee has been established, with four to seven members including representatives of farmers/pastoralists. Its function is to advise the authority and county governments on conservation, use and apportionment of water resources, permit issuance and cancellation, equitable water sharing and related issues. There is an attempt at decentralisation in this Act, but ABS mechanisms for communities living around water bodies to motivate them to conserve the resources are absent. Benefits can be derived from bulk water revenues, tourism, water sports, energy generation, large-scale irrigation and aquatic resources. The Wildlife (Conservation and Management) Act113 also makes no mention of ABS for communities living around the parks, only providing compensation for personal injury or death. ____________________ 107 NEMA, ABS Brochure, Access and Benefit Sharing from Utilization of Biological Resources and Associated Traditional Knowledge in Kenya (2014). NCST is a semi-autonomous government agency established by the Science and Technology Act Cap 250 Laws of Kenya main role being research clearance and authorisation. 108 KWS is a state corporation established under the Wildlife Conservation and Management Act No. 47 of 2013. 109 KALRO is a corporate body created under the Kenya Agricultural and livestock Research Act of 2013. 110 Brink (2013: 45). 111 Science Technology and Innovation Act, 2013 Laws of Kenya, National Commission for Science, Technology and Innovation (NACOSTI), became the successor of NCST, currently developing the Bioscience Policy 2018. 112 The Republic of Kenya, Laws of Kenya, Water Act No. 43 of 2016. 113 Republic of Kenya, Wildlife Conservation and Management Act, No. 47 of 2013. Access and benefit sharing: beyond the Nagoya Protocol and its ideals 309 The Fisheries Management and Development Act114 creates the Kenya Fisheries Advisory Council and Kenya Fisheries Service (KFS), whose functions are to ensure the development of standards on management, sustainable use, development and protection of the fisheries resources and aquaculture activities. Notably, Sections 35 and 36 of the Act provide for a working relationship between the county government and the KFS pursuant to the Constitution of Kenya 2010, Schedule 4. However, KFS retains a supervisory role over so many functions with the county government taking a back seat. Section 37 of the Act establishes Beach Management Units (BMUs) to ensure structured community participation in fisheries’ management. The role of communities in the BMUs is left to future regulations. The Forest Conservation and Management Act115 establishes the Kenya Forest Service whose function is to conserve, protect and manage all public forests. Section 20 of the Act provides for a forest conservation area and a committee, which includes a community forest association nominee. It is worth noting that Part V of the Act provides for community participation in forest management through Community Forest Associations (CFA) with user rights in forests, which is meant to ensure sustainable forest management. However, it is not clear what their influence is on ABS relating to forest resources. The Petroleum Exploration and Production Act116 governs exploration of crude oil, natural gas and petroleum within Kenya and the continental shelf. It vests these resources in the government. There is no mention of community or benefit sharing anywhere in the Act even though communities can be occupiers of land with, or contiguous to, resources. The existence of these resources on land removes them from individuals and communities and vests them in the government. For private land, Section 10 provides that access will not be denied where a contractor intends to enter land to carry out petroleum operations. The Mining Act117 also makes no mention of community rights and ABS in the exploitation of the natural resource and all decision approvals, permits licenses and benefits accrue to government through the Ministry, Mineral Rights Board and National Mining Corporation. The Energy Act,118 which regulates electrical energy supply, petroleum and natural gas licensing and permits, renewable energy and energy efficiency and conservation, also has no ABS elements. This is despite the fact that communities live around windmills, hydroelectric power plants and geothermal plants. The upshot of the above analysis is that CBD and Nagoya provisions on ABS are yet to be realised in Kenya. There is a need to review land ownership and natural ____________________ 114 Republic of Kenya, Laws of Kenya, Fisheries Management and Development Act, No. 35 of 2016. 115 Republic of Kenya, Laws of Kenya, Forest Conservation and Management Act, No. 34 of 2016. 116 Republic of Kenya, Laws of Kenya, Petroleum Exploration and Production Act, Chapter 308. 117 Republic of Kenya, Laws of Kenya, Mining Act, No. 12 of 2016. 118 Republic of Kenya, Laws of Kenya, Energy Act, No. 12 of 2006. Andrew Muma 310 resource laws to balance entitlements and restore public trust, which demands that we conserve our environment and right glaring wrongs.119 Granting communities entitlements is one way of securing public trust. 5 Beyond the Nagoya Protocol The government has a key role to play in biodiversity conservation if the current state of laws is anything to go by. The lacuna in law has caused the degradation of Kenya’s natural resources, and it is, therefore, time to enhance community participation as a way of reducing government control over natural resources. This can be initiated through pilot projects. There is also need to reduce the bureaucratic and complex nature of the existing ABS regulatory system. NEMA has already indicated a willingness to streamline procedures by developing templates for prior informed consent, mutually agreed terms and material transfer agreements; and introducing automating licensing. The idea of linking all institutions involved in ABS to create a one-stop shop for prospective users would certainly contribute to decreased complexity and reduced bureaucracy. Raising awareness about ABS regulations amongst stakeholders is important. It should address issues such as the types of potential benefits, how to access these benefits and negotiation processes. Capacity building to enhance negotiation skills and meetings to align users’ and providers’ expectations should be convened. Better monitoring of compliance is key to the establishment of structures and the enhancement of expertise. Compliance, monitoring and enforcement should be strengthened in both the user and the provider countries. In addition, to ensure transparency and traceability and to guarantee compliance with the legal requirements in the country of origin, an international certificate of origin has been proposed.120 Lastly, there is a need for greater coordination between ministries responsible for ABS in environmental resource sectors and agriculture. These recommendations can be addressed through the introduction of a sui generis ABS law, aligning relevant existing laws and anchored on stakeholder and community participation. 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Wekundah, JM (2012) Why protect traditional knowledge?, at (acceseed 20-7-2018). 315 Chapter 14: Ecosystem services: legal issues on Nigeria’s wetlands Erimma Gloria Orie 1 Introduction This chapter deals with the Nigerian legal framework relevant to wetlands as an ecosystem service. At the outset, it is necessary to define concepts such as ‘ecosystem’ and ‘wetlands’. In Nigeria, ecosystems provide general and environmental services such as flood attenuation, water purification, soil stabilisation and erosion reduction, food, groundwater recharge, and climate change mitigation. In this functional context, an ecosystem can be defined as:1 a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit. In other words, an ecosystem is a complex set of relationships among the living resources, habitats, and residents of an area. It is a community of living and non-living things that work together. Ecosystems vary in size and composition, although each ecological community is considered a functioning unit. An ecosystem may include animals, birds, fish, micro-organisms, plants, soil, water and people. When all the elements in an ecosystem live in balance, the ecosystem is said to be healthy, sustainable and rich in biodiversity.2 Ecosystem services, on the other hand, are the direct and indirect contributions ecosystems provide to human well-being. They are the outcomes from ecosystem functions that are to the benefit of humans.3 They support human survival and quality of life (directly or indirectly).4 According to the UN Millennium Ecosystem Assessment,5 ecosystem services can be classified into four types, namely: supporting service, regulating service, cultural service, and provisioning service. Within the European Union (EU), a conceptual framework for mapping and assessment of ecosystems and their services (MAES) has been developed to steer a more harmonised approach to ____________________ 1 See Article 2 of the Convention on Biological Diversity, at (accessed 29-7-2018). 2 See (accessed 3-3-2018). 3 Miller & Tangley (1991: 268). 4 Orie (2018). 5 WRI (2005: v). Erimma Gloria Orie 316 ecosystem and ecosystem services assessments.6 More recently, the idea of a common international classification is gaining ground as it has been recognised that if ecosystem accounting methods are to be developed and comparisons made, then some regularisation is desirable. Some ecosystems are accorded special protection by international and domestic laws. These include wetlands, which are defined in Article 1.1 of the Ramsar Convention on Wetlands of International Importance, 19717 (the Ramsar Convention) as: areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres. Wetlands “may incorporate riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six metres at low tide lying within the wetlands”.8 More broadly, wetlands can be categorised into five types, namely marine, tidal, lacustrine, palustrine and riverine.9 Wetlands provide many ecosystem services including sewage treatment,10 pollination,11 and provision of hydro-electricity. In Nigeria, wetlands perform strategic functions such as cultural,12 supporting13 and provisioning14 services amongst others. Wetlands are recognised as a precious part of the ecosystem. Notably, a reasonable percentage of Nigeria’s over 17015 million ____________________ 6 For further information see (accessed 29-7-2018). 7 Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (1972) II ILM 963. 8 Article 2.1 of the Ramsar Convention. 9 See (accessed 29-7-2018). 10 With regard to global water scarcity, wetlands are remarkable for their non-provisioning ecosystem services like water purification and waste water treatment. See Russi et al. (2013: 2). 11 Orie (2017). 12 Cultural services include non-material benefits derivable from the ecosystems like intellectual development, spiritual, archaeological and/or emblematic enrichment, recreation and aesthetic values. Wetlands provide these to varying degrees. Emblematic plants and animals, e.g. national symbols such as American eagle, British rose, Welsh daffodil; Spiritual, ritual identity, e.g. holy places; sacred plants and animals and their parts as in southern part of Nigeria; on the Coburg Peninsula (the world’s first Ramsar site), traditional Aboriginal owners still conduct an active ceremonial life and undertake semi-traditional hunting and gathering in this coastal wetland. See (accessed 3-1-2017). 13 Wetlands support nutrient cycling and soil formation. They also support agriculture through maintenance of water tables and nutrient retention in floodplains, for example, rice, a common wetland plant, is an important agricultural product in Southern European countries, Asia and Nigeria. US AID (2008: 10). 14 Conceptually, wetlands and other freshwater habitats provide food, fiber and fuel, freshwater, biochemical and genetic materials for the benefit of humankind. They are important sources of wild game fish and other aquatic food items agrarian for people. They provide habitat for a myriad of other diverse species. 15 See (accessed 3-1-2017). Ecosystem services: legal issues on Nigeria’s wetlands 317 population derive their livelihood from wetland resources, albeit in an unregulated manner.16 Nevertheless, wetlands are increasingly threatened and degraded mainly due to unsustainable anthropogenic exploitation activities and situations like oil and gas installations, sand mining and channelisation, Nypa palm dispersion, population, dredging and reclamation, and coastal urbanisation among other things that change the water quality, quantity or flow rates, increasing pollution and change the make-up of species. In Nigeria, this situation is exacerbated by a lack of effective national law for wetland management, a weak institutional framework, improper wetland valuation,17 etc. These deficiencies do not only result in the depletion of existing wetlands, loss of biodiversity and unsustainable ecosystems, but also in lack of incentives and financing mechanisms for achieving conservation goals. Such negative impacts reduce the capacity of wetlands to provide significant ecosystem services and ensure sustainable ecosystems. The key legal question, therefore, is whether the law can be used to improve or ensure sustainable wetlands in Nigeria. Consequently, this chapter examines the relevance of wetlands in the ecosystem services, the issues and challenges associated with the regulation of wetlands and strategies for conserving wetlands in Nigeria. Nigeria’s marine and coastal environment is rich in resources and species diversity. The mangroves in this environment are the largest remaining tract in Africa18 and also the third largest in the world covering about 9,723 km2.19 The mangrove ecosystem provides a nursery and breeding ground for many of the commercial fishery species obtained in the Gulf of Guinea.20 The coast of Nigeria is said to have about 199 species of finfish and shellfish, a large number of which are used commercially.21 The shrimp fisheries of the country are exceptionally strong, and their produce is being exported to other countries, including the United States of America. Artisanal fisher folk harvest a large variety of fish, crustaceans, and molluscs from the estuaries and channels and utilise mangrove and swamp forest products for different kinds of domestic uses.22 Similarly, a variety of birds,23 mammals, and reptiles, including a few endemic species like the Sclater’s guenon and the Nile Delta red colobus monkey, inhabit the mangroves and swamp forests of the coast. Although a few species of sea turtles lay eggs ____________________ 16 Orie (2017). 17 Wetland valuation is a way to estimate ecosystem benefits and it allows financial experts to carry out a cost benefit analysis. It is therefore an important tool for environmental managers and decision makers to justify public spending on conservation activities and wetland management. 18 Federal Republic of Nigeria (2015). 19 US AID (2008: 10). 20 Ibid. 21 Ibid. 22 Ibid. 23 It was the response to international bird conservation concerns that resulted in the first major international agreement on wetlands, the Ramsar Convention. Wetlands are among the key areas in migration flyways of birds. See Copernicus (2015). Erimma Gloria Orie 318 on the beaches, they are rare and under threat from human predation.24 The wetlands are also used for the cultivation of different staples like plantain (Musa sapientumvar paradisiacal), banana (Musa sapientum), sugarcane (Saccharumofficinarum), bitter leaf (Vernoniaamygdalina), red spinach/plumed cock’s comb/silver cock’s comb, locally called Soko (Celosia argentea), and West African mallow leaves, locally called Ewedu (Corchorusolitorius), cocoyam (Colocasiaesculenta), fruits and vegetables. The production of logs, fuel-wood, peat, fodder, extraction of medicines and other materials for biota, genes for resistance to plants pathogens, and ornamental species are also aspects of the provisioning services. 2 Effects of loss of wetlands Wetlands are some of the Earth’s greatest anchor productive ecosystems and incredibly biodiverse. Yet, wetlands are also among the world’s most threatened ecosystems with 50% of all wetlands having disappeared in the last century.25 For example, corals are the lynchpin of the entire undersea ecosystems but have been suffering from a severe warming climate in recent years. In the same vein, the kelp harbours communities of diverse types of fish and other living organisms and in turn provides significant value to humans through their contribution to fisheries.26 In fact, kelp is worth Australian $10 billion to the Australian economy annually due to its contribution to tourism and fishery.27 Specifically, the kelp supports an entire ecological community such that when “we lose the kelp we lose a biological engine that controls or dominates temperate reefs.”28 However, more recently, there has been the massive death of giant kelp around Tasmania.29 About 100 km of the forests were wiped out due to a marine heat wave, upsetting marine biodiversity, while about 90% of the kelp forest off the western coast of Australia has been wiped off between 2011 and 2013.30 These threats to the ecosystem lead to loss and wetland degradation, leaching of soil nutrient, and acidification ultimately. There is evidence that the loss and degradation of wetlands increase hazards from coastal storms and tidal surges, loss of shelter from fast-moving currents, loss of hiding place from predators, and loss of reproduction site (spawning and nursery sites) for aquatic, amphibian and terrestrial life forms.31 The loss of the remaining wetlands ____________________ 24 Copernicus (2015). 25 European Comission (2007). 26 Matthiesen (2015). 27 Wernberg (2015). 28 Mooney (2016a). 29 Mathiesen (2016). 30 Wahlquist (2016). 31 Adegun et al. (2014). Ecosystem services: legal issues on Nigeria’s wetlands 319 would result in the loss of refugia for the biotic communities inhabiting the wetlands and, in particular, to the loss of recovery from natural hazards such as flood. The cumulative result is that the ecosystem services that wetlands provide to people are compromised, leading to unintended but foreseeable consequences for the environment. For instance, it was reported that whenever the Oyan Dam in Nigeria was ‘opened’, the storm usually affected the floodplains and wetlands covering about 2,800 ha of River Ogun catchment within Lagos comprising Ikosi-Ketu, Mile 12, Agiliti, Thomas Laniyan Estate, Owode-Onirin, Agboyi, Owode-Elede, Maidan and Isheri North Scheme.32 On 10 July 2011, the entire Lagos State was flooded. In some areas of the state, the flood water-mark on the houses was about 3.5 m. Conservatively, about 25 persons reportedly lost their lives in the Lagos flood which caused the state to close down schools. In 2012, about 21 states were declared disaster zones by the Federal Government of Nigeria, because of severe flooding which destroyed both farmlands and wetlands.33 The year 2017 saw about 27 states also submerged due to massive flooding. In adding, an unknown number of oil wells submerged, especially in the Forcados area of Delta State.34 Besides, some hydrological modelling opined that three feet of sea level rise could put nearly all the Delta’s onshore oil fields in Nigeria under water.35 Such immersion would translate into a massive loss of wetlands and invaluable species. Interestingly, there tends to be realisation in some quarters that the greatest impacts of climate change may not be the direct effects of warming on one species as compared to the effects of warming on the way species interact with each other.36 Indeed, some scientists have submitted that warming does not kill the coral itself, but it actually breaks the relationship between the coral and the symbiotic algae in the same way that the changes in the ecosystem processes have serious negative impacts on artisanal fisheries of Nigeria.37 All these losses (real and potential) are the outcome of an unconcerned attitude of both the people and government to protect the wetlands, which are incessantly converted to uses with economic gains. 3 The regulation of wetlands in Nigeria: issues and challenges Three issues need to be analysed in the context of the regulation of wetlands in Nigeria, namely, the policy, legal and institutional frameworks that support the federal government’s strategic mission to secure, conserve and manage the country’s rich biological ____________________ 32 Ajibola et al.(2016). 33 Orie (2013). 34 Orie (2015). 35 Awosika (1995). 36 Barton & Ives (2014). 37 Mooney (2016b); Mustapha (2013: 130). Erimma Gloria Orie 320 endowment together with the diverse ecosystems sustainably. This section reviews the major past and present efforts of the government in biodiversity conservation, especially, as it concerns Nigeria’s wetlands. 3.1 Policy framework The 1999 National Policy on the Environment, among other objectives, focuses on securing a quality environment that is adequate for good health and well-being, the conservation and use of the environment and natural resources for the benefit of present and future generations, and the restoration, maintenance and enhancement of the ecosystems and ecological processes for the conservation of biological diversity. The policy is complemented by the Policy on Biodiversity.38 Some other policies that have a bearing on the protection of wetlands include: • The National Forest Policy (2006): the purpose of this policy is to ensure sustainable forest management, promote participatory process of development, facilitate private sector forestry development and adopt an integrated approach to forestry development. • The National Policy on Erosion, Flood Control and Coastal Zone Management (2005). • Nigeria’s National Agenda 21 (1992) which integrates environment into development planning at all levels of government – the private sector and the non-governmental sector. • The Climate Change Policy (2017) approved by the federal government recently. 3.2 Legal framework Section 20 of the 1999 Constitution39 of the Federal Republic of Nigeria (as amended) provides the fundamental legal principles for environmental protection in Nigeria. It provides that the state shall protect and improve the environment and safeguard water, air, land, forest and wildlife.40 In an effort to achieve environmental sustainability, the Nigerian government established the Federal Environmental Protection Agency (FEPA), which was scrapped in 1999. In another development, the National Environmental Standards and Regulations Enforcement Agency (NESREA) Establishment Act (2007) was enacted. The latter supersedes the FEPA Act (1988). Section 8(k) of ____________________ 38 Federal Republic of Nigeria (2015). 39 The Constitution of the Federal Republic of Nigeria 1999 as amended. 40 Ibid. Ecosystem services: legal issues on Nigeria’s wetlands 321 the statute mandates NESREA to present for the Minister’s approval proposals for guidelines, regulations and standards on environmental matters (excluding the oil and gas sector) such as: atmospheric protection, air quality, ozone-depleting substances, noise control, effluent limitations, water quality, waste management and environmental sanitation, erosion and flood control, coastal zone management, dams and reservoirs, watersheds, deforestation and bush burning. NESREA’s authority extends to the enforcement of environmental guidelines and policies like the National Policy on the Environment, 1999. The Agency is charged with the responsibility of the protection and development of the environment, biodiversity conservation and the sustainable development of the country’s natural resources as well as environmental technology. The federal government, through NESREA, has developed 24 environmental regulations that have been gazetted and are now in force. Six of these regulations are (directly or indirectly) linked to the management of wetlands in various capacities. These regulations include:41 • the National Environmental (Wetlands, River Banks and Lake Shores) Regulations, 2009, S. I. No. 26. They provide for the conservation of wetlands and their resources in Nigeria; • the National Environmental (Watershed, Mountainous, Hilly and Catchments Areas) Regulations, 2009, S. I. No. 27. They make provisions for the protection of water catchment areas, identification of major watersheds; restriction on the use of watersheds, mountainous and hilly areas, delineation of roles, prevention of fires in watersheds, afforestation and reforestation, as well as grazing of livestock; • the National Environmental (Access to Genetic Resources and Benefit Sharing) Regulations, 2009, S. I. No. 30. These regulate the access to and use of genetic resources; • the National Environmental (Soil Erosion and Flood Control) Regulations, 2010, S. I. No. 12. These make provision to check all earth-disturbing activities, practices or developments for non-agricultural, commercial, industrial and residential purposes to protect human life and the environment; • the National Environmental (Desertification Control and Drought Mitigation) Regulations, 2010, S. I. No. 13. They seek to provide an effective and pragmatic regulatory framework for the sustainable use of all areas already affected by desertification and the protection of vulnerable lands; and • the National Environmental (Protection of Endangered Species in International Trade) Regulations, 2010, S. I. No. 16. These provide for the protection of endangered wildlife species of fauna and flora. ____________________ 41 Abere & Jasper (2010). Erimma Gloria Orie 322 Furthermore, there are some existing laws at the federal and state levels that complement the federal laws on the conservation of natural resources. These include: • the Natural Resources Conservation Act (1989) which is the most recent legislation on natural resources conservation. The Act establishes the Natural Resources Conservation Council which is empowered to address soil, water, forestry, fisheries and wildlife conservation by formulating and implementing policies, programmes and projects on conservation of the country’s natural resources; • the Environmental Impact Assessment Act (No. 86 of 1992). This Act requires that environmental impact assessment must first be carried out before any project likely to impact the natural environment could be undertaken; • the Endangered Species (Control of International Trade and Traffic) Act (No. 11 of 1985). This Act makes provision for conservation and management of the country’s wildlife and protection of some of the rare and endangered species; • the National Parks Services Act, Cap N65 Laws of the Federation of Nigeria 2004, one of the principal laws on biodiversity conservation, was promulgated to provide for the conservation and protection of natural resources and plants in national parks. Nigeria is a signatory and a party to several international agreements for the conservation and sustainable use of biodiversity, which demonstrates the country’s commitment to the conservation of natural resources. The country is a signatory to the Ramsar Convention which provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. The Convention covers all aspects of wetland conservation, recognising wetlands as ecosystems that are extremely important for biodiversity conservation in general and for the well-being of human communities. The country also took an active part in all the negotiation processes leading to the adoption of the Convention on Biological Diversity in Rio de Janeiro in 1992. Subsequently, Nigeria ratified the Convention in 1994 and thereafter, started the process of preparing her Biodiversity Strategy and Action Plan. In 1993, a report of a country study compiled by FEPA acknowledged the position of Nigeria’s biological diversity, policies, laws, and conservation programmes.42 Additionally, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was ratified in 1974. An overview of the legal framework reveals that it comprises both laws and regulations. In Nigeria, an Act is a bill that has been enacted by the National Assembly and assented to by the president. On the other hand, a regulation could be a mere creation ____________________ 42 Myada (2015). Ecosystem services: legal issues on Nigeria’s wetlands 323 of a minister in charge of a particular sector.43 It is a subordinate legislation that is associated with an Act of Parliament. It is more descriptive than an Act because, in many cases, most of the details of the Act are mentioned in the regulations. Thus, regulations indicate how a certain law has to be implemented step by step. The NESREA Act (2007) is the environmental law in Nigeria. Nonetheless, the Act merely mandates NESREA (the implementing agency) to present for the minister’s approval proposals for guidelines, regulations and standards on environmental matters including wetlands. Obviously, there is no specific law that gives direction on the regulation of wetlands. 3.3 The institutional framework Presently, despite the importance wetlands and the ecosystem portend, the lead agency is not one of the few institutions the President heads. Instead, the Federal Ministry of Environment implements and enforces the provisions of the National Environmental Standards Regulation (NESREA) Act, its supporting regulations, and other relevant laws. Apart from the above structure, there are several linkage centres in Nigerian institutes and universities created in 2001 as part of the activities undertaken in support of the Convention for Biological Diversity. These include the Linkage Centres for Arid Environments (Maiduguri), Freshwater Environments (Minna), Highlands/Montane Environments (Jos), Delta Environments (Port Harcourt), Marine and Coastal Environments in conjunction with the Nigerian Institute for Oceanography and Marine Biology (Lagos), and Forests, Conservation, and Biodiversity at the University of Agriculture (Abeokuta), which is designed to focus on coordinating data and research relevant to biodiversity conservation. Regrettably, there is very little information on how well these centres have done in fulfilling their mandates. Ordinarily, these institutions are expected to assist in the management of the Nigerian wetlands for the benefit of the immediate community and country at large. However, the reverse is the case due to some of the challenges discussed in the subsequent section. ____________________ 43 For example Section 34 of the NESREA Act empowers the Minister of Environment to create several regulations on various aspects of the environment. National Environmental (Wetlands, River Banks and Lake Shores) Regulations, 2009, National Environmental (Watershed, Mountainous, Hilly and Catchments Areas) Regulations, 2009. S. I. No. 27. Erimma Gloria Orie 324 4 The legal issues and strategies for conserving Nigeria’s wetlands The main legal issues and strategies pertinent to Nigeria’s wetlands and its ecosystem are outlined in the following subsections. 4.1 The absence of law Nigeria has ratified the Ramsar Convention but is yet to transmit it into its body of laws. By virtue of Section 12 of the Nigerian Constitution, such conventions cannot have the full force of law until they are domiciled.44 The above section provides that “…no treaty between the federation and any other country shall have the force of law except to the extent to which such a treaty has been enacted into law by the National Assembly.”45 Thus, there is presently no legal basis to implement the Ramsar Convention for the protection of wetlands in Nigeria. Although there are some related laws on the subject matter, the absence of a specific law on the protection of wetlands is a major challenge to the institution charged with enforcement. Related to this is the fact that some other related laws on the subject matter, like the Land Use Act, are neither consistent with relevant government policies on forestry and biodiversity nor are they comprehensive.46 In addition, the absence of unique and vulnerable wetlands geographical information system (GIS) maps for each community and technical training on how to use the maps for stormwater management planning is a major challenge. These maps identify the locations of the vulnerable wetlands in relation to developed sites which makes it easy to determine and plan for the appropriate type and placement of stormwater control options to protect these resources better and reduce phosphorus loading to the river.47 These challenges are aggravated by lack of a national law on climate change which has made it possible for other impacts of climate change to equally affect the management of ecosystems. ____________________ 44 Orie (2014). 45 The Supreme Court of Nigeria in the locus classicus case of General Sani Abacha and 3 others v. Chief Gani Fawehinmi (2000) NWLR (pt4) 533 at 585-586, held that no international treaty can be said to have come to effect in Nigeria except the provisions of such treaty have been enacted into law by the Nigerian National Assembly and that it is such law that breathes life into such treaty in Nigeria. 46 The Policy on Forestry and Biodiversity recognises the need for local communities to own or at least be active stakeholders in the management of the protected areas. On the other hand, Sections 5, 6, 21 and 22 of the Land Use Act divest individuals and communities of rights of ownership and to that extent are inconsistent with the objectives of both the forestry and biodiversity policies of the government. Ecosystem services: legal issues on Nigeria’s wetlands 325 The ratification of the Convention is not enough. There is an urgent need to integrate the Convention into the Nigerian body of laws. The point being canvassed here is that the absence of laws in areas like climate change mitigation is affecting the health of the environment, which in turn impacts on the quality of wetlands. For instance, in some remote areas in China, where laws on the mitigation of the impacts of climate change are not yet effective, climate change has led to the change in the movement of the bees in that environment. This resulted in a situation where the farmers lacked the requisite population of bees to pollinate plants, and were compelled to engage in manual cross-pollination exercises.48 4.2 Valuation of wetlands Wetland valuation is used to build local and political support for their conservation and sustainable use. It helps to diagnose the causes of environmental degradation and biodiversity loss. It also allows more balanced planning and decision-making, and develops incentive and financing mechanisms for achieving conservation goals.49 However, in Nigeria, this is not the case. A study by Ajibola50 reveals that valuing wetland resources is fraught with challenges such as lack of data, complex wetland ecosystems, inadequate government policy, sophisticated survey design and hostility from residents within and around wetlands. Egbenta51 adds that the inadequacy of legal regulations is a major challenge frustrating wetland valuation.52 Strategically, markets need to capture values of ecosystem services and to improve the understanding of the various services and their potential trade-offs. Collaboration between the government, professional bodies and various stakeholders to provide data banks for the valuation of wetland resources is equally necessary. In addition, the multinational oil companies need to be compelled to adopt contemporary (environmental) valuation methods in the determination of compensation payable to claimants, understand the link between various services and to various components of biodiversity. Also, there is the need to analyse the role that an economic institution, specifically, ‘the market’, plays in promoting the adoption of ecosystems management in both public and private domains. Ecosystem service approaches provide an opportunity to link ecosystem functions with social values, but in reality, the essential role that social dynamics play in the delivery of outcomes remains largely unexplored. Social factors ____________________ 48 Liess (2015). 49 Barbier et al. (1997). 50 Ajibola (2012: 34). 51 Egbenta (2010). For further reading see Turpie et al. (2010). 52 After a comprehensive review of the various statutory provisions for compensation, Egbenta (2010) is of the view that there is no comprehensive statutory provision for assessing compensation resulting from oil spills/pollution in the petroleum industry. Erimma Gloria Orie 326 such as management regimes, power relationships, skills and values can dramatically affect the definition and delivery of ecosystem services. The rationale for this is founded on the fact that, ultimately, services must support individual or societal values. 4.3 Recognition of market or economic value Although the commercial value of biological diversity in Nigeria exceeds the cost of conservation measures by more than US$3 billion at 1993, biodiversity conservation has not been recognised as a feasible investment in Nigeria’s economic development.53 Consequently, biological diversity valuation has not been fully incorporated into the national economic planning. The challenge, therefore, is that until biodiversity conversion is accorded such recognition, it may be difficult to incorporate it into national economic planning. Unfortunately, unlike some jurisdictions like Peru and the Czech Republic,54 the Nigerian legislations do not actually provide for the payment for ecosystem services (PES).55 In Peru, the high-level political commitment and the multistakeholder participation in monitoring results, transparency and verifiability are some of the success factors of the PES system.56 In contrast, the individuals and other use right holders in Nigeria do not benefit from the sale of specified ecosystem products derived from their lands. The implication is that individual and community landowners do not adjudge themselves as stakeholders of the ecosystems who, therefore, should be involved in the protection of the respective wetlands and ecosystems. Generally, regulating ecosystem services is a complex process, and the specific relationship will look different for different services. The main challenge is how to manage the various service relationships, potential trade-offs, and stakeholders’ interactions among others. Part of the strategy Nigeria needs to adopt is to recognise biodiversity conservation as a feasible investment in Nigeria’s economic development and consequently incorporate natural resources valuation fully into the national economic planning. Thus, in line with Article 6 of the Convention on Biodiversity, the Federal Ministry of Environment initiated the strategy and action planning process in order to guarantee the conservation of Nigeria’s biological diversity. This strategy should be adopted by other ministries and the communities. Embracing and capturing economic values of ecosystem services in mainstream decision-making tools and indicators. For ____________________ 53 See the Fourth National Biodiversity Report, Federal Republic of Nigeria (2010). The Fifth National Biodiversity Report has been submitted in 2014. 54 The Czech Republic legislation provides possibilities on how to compensate forest owners providing ecosystem services. 55 This is clear from a combined reading of the Land Use Act and the National Conservation Act. For further reading see Orie (2016). 56 Fagbohun & Orie (2015). Ecosystem services: legal issues on Nigeria’s wetlands 327 example, a national income and growth matrix can help in designing effective policies for sustainable growth and societal well-being. 4.4 Wetland rehabilitation and recreation A major strategy for Nigeria is to restore its wetlands as a way of checkmating its loss of ecosystem services and the consequent loss of biodiversity. This can be achieved through partnerships with some expert organisations like LIFE-Nature. Nigeria should learn from the experience of Hungary’s Hortobágy region where the LIFE-Nature organisation was able to restore the wetlands of the region. In addition, with the help of terrestrial arthropod monitoring, the organisation proved that the high intensity of grazing in the wetland areas could be beneficial for the improvement of the fauna in such wetland area and also the communities.57 Similarly, in Spain, LIFE-Nature was able to reverse decades of environmental damage by recreating the wetlands of Lake Banyoles. These projects are good examples of collaboration among different administrations (local, national and regional) and private entities (Foundation Territori IPaisatge) working together for the conservation of a natural site. However, to ensure that the results of the restoration work would be preserved, the Nigerian government as beneficiary should introduce traditional cattle grazing in restored areas. 4.5 Capacity building and lack of awareness Nigeria lacks capacity mostly in the areas of finance, human and technical resources. The various complimentary laws on wetland are not properly understood by many of the enforcement agencies and even the communities. There are few trained and qualified people in the field to enforce compliance. In addition, oversight function at all levels is sorely lacking, making way for ‘entrepreneurial opportunities’ to make money through the unsustainable use of the wetlands, such as over-harvesting of seafood and conversion of wetlands for construction purposes. Effective management of wetlands requires the allocation of more financial resources to acquire and collect accurate data on the distribution and abundance of the resources involved, the ecological parameters of sustainability for each, the amount harvested from year to year, the benefits of the wetlands to Nigeria and other relevant factors. There is no such information on Nigeria’s wetland; no data on the actual content of the wetlands, their peculiarities and the challenges of the habitats. Without a proper understanding of existing regulations and ____________________ 57 The intensive grazing of cattle keeps the grass short and gives the competitively weak plant associations such as the Puccinellio-Salicornetea the space to spread in suitable soil areas. Erimma Gloria Orie 328 information about the status of most habitats and species, effective management becomes extremely difficult. Critical to the conservation of biodiversity and the sustainable management of wetlands, in particular, is the need for a systematic and long-term approach to building the knowledge base of Nigerians and the integration of this knowledge into the decisionmaking process to ensure the prudent use of wetlands.58 One major way of doing this is through an ecosystem management approach (EMA),59 which encourages cost-efficient policies and development strategies that blend short-term needs with long-term targets that place conservation and management of ecosystems at the centre60 in a way devoid of major challenges. To achieve this, the Ramsar Convention Secretariat, over the years, developed handbooks as guidelines to assist those with interest in, or directly involved with the implementation of the Convention at the international, regional, national, subnational or local levels. One of the latest is the Ramsar handbook for the wise use of wetlands.61 There is need to provide more ecosystem sensitive infrastructure, and to pursue the transfer and uptake of appropriate technologies, improve the knowledge of change in wetland areas in Nigeria, as well as improve the consistency of data on change in wetland areas in published papers and reports. Participation in global ecosystems agreements will also attract overseas ecosystems management assistance (OEMA) to Nigeria. Another means to protect wetlands is to educate the public about the benefits of wetlands. According to the NBSAP,62 by 2020, 30% of Nigeria’s population should be aware of the importance of biodiversity to the ecology and economy of the country. This government strategy appears not to be sufficiently proactive. In a country of over 170 million people, and considering the benefits that Nigeria stands to lose from such lack of awareness exacerbated by the impact of climate change, the 30% awareness by 2020 is a far cry. If the public does not recognise the benefits of wetland preservation, wetlands will not be preserved. Furthermore, there is a need to change the content and character of awareness creation and information dissemination to be in tandem with the times. The law should specifically incorporate a framework for promoting awareness. Such framework should also preclude the following practices: physical draining of wetland water; draining of streams and watercourses feeding the wetlands; mining in wetlands, human settlements and their related infrastructural developments in wetlands, and disposal of ____________________ 58 Ramsar COP3 (1987) defined wise use of wetlands as “their sustainable utilisation for the benefit of mankind in a way compatible with the maintenance of the natural properties of the ecosystem.” (This definition was updated in 2005 by Resolution IX.1, Annex A, to “Wise use of wetlands is the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development”). 59 For further discussion on EMA see Lackey (1998). 60 UNEP (2012). 61 Ramsar Convention Secretariat (2010). 62 Target 1 of the NBSAP. Ecosystem services: legal issues on Nigeria’s wetlands 329 solid waste and effluents in wetlands. On the other hand, the framework should seek to promote the use of wetlands for farming, grazing, fishing, timber production and salt-winning in a manner that promotes the conservation of the ecosystem, biodiversity and sustainable productivity of the wetlands. Another more proactive measure will be to incorporate this information into the schools’ curricula from primary to tertiary education. 4.6 The top-down approach Wetlands in Nigeria are owned by the government of Nigeria.63 The top-down approach of government to biodiversity management and in particular wetland conservation is a big challenge to the system. Despite the current limited recognition of wetland benefits, there still exist many potentially conflicting interests such as between the interests of landowners (the government),64 the local community (the original owners of the land before the advent of the Land Use Act which divested them of such ownership rights), and the general public; and between developers and conservationists. Part of the challenge is also how to integrate biodiversity concerns in sectoral policies and programmes and modify existing government policies and regulation to achieve consistency, for instance the Land Use Act, the National Policy on Forestry and the Policy on Biodiversity Conservation. In terms of strategy, many conservationists are of the view that the best hope for protecting and conserving natural resources is through a public participatory approach which will entail carrying the local communities along and also by compensating them for preserving the wetlands.65 Communities near protected areas and any other remaining wild areas in Nigeria rely on these resources for their existence, and it is to their advantage to conserve them for future uses. Carrying the local communities along will require the establishment and formalisation of the ‘Development Triumvirate’ that will comprise the government, the private sector, and other stakeholders like the indigenous community, the civil society, to name a few. For example, in Costa Rica and Peru, the governments adopted the payment for environmental service system which entails paying the community members compensation for forest conservation, reforestation and agroforestry.66 The system was such a huge success that it was recommended for other ____________________ 63 Regulations 1-4 and 8 of the National Environmental (Wetlands, Rivers Banks and Lake Shores) Regulation, 2009. 64 A person who desires to carry out regulated activity listed in the schedule to the National Environmental (Wetlands, Rivers Banks and Lake Shores) Regulation, 2009 on wetlands shall apply to NESREA in line with Regulations 8 and 9. Regulation 14 provides that even landowners, occupiers or users of property contiguous to a wetland have a duty to prevent the degradation or destruction of such wetlands. 65 Orie (2016). 66 See (accessed 13-01-2016). Erimma Gloria Orie 330 countries.67 Protection can be accomplished only through the cooperative efforts of citizens. Efforts to manage ecosystems divorced from ownership realities are equally ineffectual. Therefore, to implement integrated ecosystem management, there is a need for the inclusion of individual and community landowners. An institutional mechanism for managing ecosystems across the various states in Nigeria is required, and cooperation among a broad range of interests. 4.7 The impact of climate change According to the Millennium Ecosystem Assessment,68 climate change will not only further worsen the loss and degradation of many wetlands and cause the extinction of or decline in their species,69 but the human populations that are dependent on their services will also be negatively impacted. The main challenge is that there is currently no climate change law in Nigeria, although the country is a signatory to the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. A major step in the fight for a sustainable ecosystem through the protection of wetlands is the protection of the ecosystem against the impacts of climate change. This strategy calls for the enactment of a law on climate change. This will invariably ensure the protection of wetlands and ultimately a sustainable ecosystem. 5 Conclusion and recommendations This chapter examined wetlands issues in Nigeria. It attempted to proffer legal strategies to overcome the challenges associated with management of wetlands. Wetlands are indispensable for the countless benefits or ecosystem services that they provide to humanity globally and Nigeria in particular, ranging from regulating, provisioning, supporting to cultural services. These wetlands are consistently over-exploited, albeit, in an unregulated manner leading to several challenges for the ecosystem. It was found that, although Nigeria is a signatory to the Ramsar Convention, it is yet to incorporate it into the Nigerian body of laws. The piecemeal complementary laws and regulations on land management are neither consistent with relevant government policies nor are they comprehensive. In ____________________ 67 Fagbohun & Orie (2015). 68 WRI (2005). 69 Rise in temperature will lead to drought, loss or reduction of the species of the wetland and even disappearance of the wetlands. Ecosystem services: legal issues on Nigeria’s wetlands 331 addition, the institutional framework for the enforcement of the laws is weak and ineffective due to inadequate inter-ministerial cooperation at the federal level which also affects state and local government levels. The institutional framework should be strengthened through capacity building of enforcement operators and collation of relevant data to ensure effective management of the Nigerian wetlands. Furthermore, the management of ecosystems when divorced from landownership realities is equally ineffectual. Therefore, to implement an integrated ecosystem management, there is a need for the inclusion of community landowners. The chapter, therefore in answer to the legal question whether the law can be used to improve or ensure sustainable wetlands in Nigeria, advocates for the establishment of a national law and a strong institutional framework for the regulation of wetlands in Nigeria and for a consideration of the critical role that social dynamics play in generating outcomes between the social and the ecological link which the ecosystem services framework provides. In the light of the above discussion, the chapter, therefore, makes a case for: • The establishment of a national law on the regulation of Nigerian wetlands. Such law should incorporate ecosystem management concerns like building capacity and data, wetland rehabilitation and recreation, perpetuating wetland areas, valuation of wetland, and payment for ecosystem services. The law, when established, should work in synergy with other relevant and complementary laws and regulations in Nigeria. For instance, wetlands conservation issues should be integrated into Nigeria’s national land-use planning policies. • A strong institutional framework for effective management of the Nigerian ecosystems and wetlands in particular. This will entail having the correct mix of infrastructure and facilities necessary for such management operations, proper funding, capacity development, data availability, collaboration with sister ministries or agencies as well as ensuring that other relevant/complementary laws and regulations like the Environmental Impact Assessment Act are co-opted as part of the enforcement mechanism. • The establishment of a law on climate change to indirectly address the protection of wetlands. References Abere, SA & E Jasper (2010) “Evaluation of forest resources conservation laws in Nigeria” 2(5) Mediterranean Journal of Social Sciences 49-54. Adegun, O, S Odunuga & Y Appia (2014) “dynamics in the landscape and ecological services in system I drainage area of Lagos” 6 Ghana Journal of Geography 75-96. Ajibola, MO (2012) “Challenges of valuing wetlands resources for compensation in the Niger Delta, Nigeria” 2(11) Transnational Journal of Science and Technology 34-49. Ajibola, MO, BA & KC Ijasan(2016) “Effects of urbanisation on Lagos wetlands” 3(17) International Journal of Business and Social Science 310-318. Erimma Gloria Orie 332 Awosika, L (1995) “Impacts of global climate change and sea level rise on coastal resources and energy development in Nigeria” in JC Umolu Global climate change: impact on energy development. Barbier, EB, M Acreman, & D Knowler (1997) Economic valuation of wetlands, at (accessed 29-7-2018). Barton, BT & AR Ives (2014) “Direct and indirect effects of warming on aphids, their predators, and ant mutualists” 95(6) Ecology 1479-1484. Copernicus (2015) Wetlands – unexpected treasures Brief No. 55, at (accessed 29-7-2018). Egbenta, RI (2010) Application of contingent method to valuation of non-market goods damaged by oil pollution for compensation Unpublished Ph.D Thesis, Department of Estate Management, University of Nigeria, Nsukka (Enugu Campus). European Comission (2007) LIFE and Europe’s wetlands, at (accessed 29-7-2018). Fagbohun, AO & EG Orie (2015) “Nigeria: law and policy issues in climate change” Environmental Law Research Institute Monograph Series 18-20. Federal Republic of Nigeria (2010) Fourth national biodiversity report, at (accessed 29-7-2018). Federal Republic of Nigeria (2015) National biodiversity strategy and action plan, at (accessed 29-7-2018). Lackey, RT (1998) “Seven pillars of ecosystem management” 40(1-3) Landscape and Urban Planning 21-30. Liess, S (2015) “After bee die-off, Chinese apple farmers resort to hand pollination” Epoch Times (25-4-2015), at (accessed 29-7-2018). Mass.gov (2015) Mapping and protecting vulnerable wetlands and stormwater management planning project, at (accessed 29-7-2018). Mathiesen, K (2016) “Ocean heatwave destroys Tasmania’s unique underwater jungle” Climate Home News (14-10-2016), at (accessed 29-7-2018). Miller, K & L Tangley (1991) Trees of life: saving tropical forests and their biological wealth. 268 Mooney, C (2016a) “Global warming could be breaking up this 200 million year old relationship” Washington Post (2-11-2016), at (accessed 29-7-2018). Mooney, C (2016b) “Scientists say climate change wiped out an entire underwater ecosystem. Again” Washington Post (15-11-2016), at (accessed 29-7-2018). Mustapha, MK (2013) “Potential impacts of climate change on artisanal fisheries of Nigeria” 4(1) Journal of Earth Science and Climate Change 130-136. Myada, SW (2015) Nigeria’s biodiversity and the Nagoya Protocol Master Thesis, University of Cologne, at (accessed 29-7-2018). Ecosystem services: legal issues on Nigeria’s wetlands 333 Orie, EG (2013) The clean development mechanism as a tool for sustainable development: a case for regulatory action Unpublished Ph.D Thesis, Nigerian Institute of Advanced Legal Studies, University of Lagos Nigeria. Orie, EG (2014) “Environmental protection and fundamental human right to life: a review of the Nigerian constitutional provision and the judicial posture” 4 NOUN Current Issues in Nigerian Law 148-196. Orie, EG (2015) “Climate change and sustainable development: the Nigerian legal experience” 5 NOUN Current Issues in Nigerian Law 68-114. Orie, EG (2016) “Climate change and sustainable forest management in Nigeria: a case for regulatory action” 1 National Open University of Nigeria Law Journal 31-53. Orie, EG (2017) “Sustainable wetlands and biodiversity conservation: Nigeria’s Lagos Lagoons in focus” in U Tandon, M Parasaran & S Luthra (eds) Biodiversity: law, policy and governance 11- 35. Ramsar Convention Secretariat (2010) Wise use of wetlands: concepts and approaches for the wise use of wetlands 4th ed, at (accessed 30-7-2018). Russi, D, P ten Brink, A Farmer, T Badura, D Coates, J Förster, R Kumar & N Davidson (2013) The economics of ecosystems and biodiversity for water and wetlands, at (accessed 25- 9-2018). Turpie J, K Lannas, N Scovronick & A Louw (2010) Wetland ecosystem services and their valuation: a review of current understanding and practice Report to the Water Research Commission (WRC) Report No. TT 440/09 March 2010. UNEP / United Nations Environment Programme (2012) Putting ecosystem management in the vision of Africa’s development, at (accessed 30-7- 2018). US AID (2008) Nigerian biodiversity and tropical assessment. Votteler, TH & TA Muir (2002) Wetland protection legislation water resources of the United States United States Geological Survey Water Supply Paper 2425, at (accessed 30-7-2018). Wahlquist, C (2016) “Australias vast kelp forests devastated by marine heatwave, study reveals” The Guardian Weekly (7-7-2016), at (accessed 30-7-2018). Wernberg, T (2015) “Australia’s ‘other’ reef is worth more than $10 billion a year – but have you heard of it? The Conservation (16-8-2015), at (accessed 29-7-2018). Wilen, BO, C Virginia & JR Jones (2002) Wetland mapping and inventory United States Geological Survey Water Supply Paper 2425, at (accessed 30-7-2018). WRI / World Resources Institute (2005) Millenium ecosystem assessment – Ecosystems and human well-being: wetlands and water, at (accessed 30-7-2018). 335 Chapter 15: The role of the Environment and Land Court in governing natural resources in Kenya Collins Odote 1 Introduction Kenya’s 2010 Constitution reformed the structure of the judiciary to enhance access to justice.1 One of the innovations was the creation of a specialised court with the status of the High Court to “hear and determine disputes relating to the environment and use and occupation of, and title to land”.2 With the establishment of this court, Kenya joined countries that have adopted specialised courts and tribunals to respond to environmental challenges. The main goals in establishing specialised courts are two-fold. The first is as a case management tool to improve the quantity and quality of cases handled, when compared to general courts.3 The second imperative is to develop an alternative jurisprudence that moves from the traditional ‘legalistic’ adjudications to a more ‘problem-solving’, ‘therapeutic’ or ‘interdisciplinary’ approach.4 Consequently, environment courts and tribunals –5 are looked to as one solution for fairly and transparently balancing the conflicts between protecting the environment and promoting development; for managing cases more efficiently and effectively; for supporting greater public information, participation, and access to justice; and for achieving more informed and equitable decisions. The court has been operative for close to six years. While its adoption, set in the context of a progressive, transformative and ‘green’ constitutional architecture, was hailed as progressive, its rollout and performance have been a mixed bag. The country’s environmental challenges continue and arguments about the inconvenience of a court dedicated to environmental and land matters abound. There is also concern about the quantity and quality of cases focussing on the environment dealt with by the court, and questions have been raised about the court’s design. All these beg the question as to whether the court’s presence is positive and its impact demonstrable, or whether the ____________________ 1 See generally Akech et al. (2011); and Kameri-Mbote & Akech (2011). 2 Article 162(2), Constitution of Kenya (2010). 3 Ibid. 4 Nolan (2009); and Rottman (2000). 5 Pring & Pring (2009). Collins Odote 336 continued existence of the court as a mechanism for dealing with Kenya’s intractable environmental challenges is an unnecessary inconvenience. This chapter argues that while the existence of the court is essential for improved environmental governance, its utility has been hampered by structural and normative challenges. First, the operationalisation of the court has suffered a conceptual flaw occasioned by a misinterpretation by the judiciary of the nature of a specialised court, its status in the judicial hierarchy and its rationale. The second hindrance has been the attitude of the judges of the court and the quality of the natural resource governance jurisprudence it has produced. Based on a review of key decisions on the functioning of the Environment and Land Court (ELC), the author argues that despite recent court decisions clarifying the position of the ELC as a specialised court and further granting magistrates courts powers to determine land and environmental matters, there is need to improve the quality of jurisprudence on land and environmental matters so as to promote sustainable management of natural resources and the environment in Kenya. 2 Courts and sustainable development realisation From its early antecedents,6 the sustainable development principle has gained tremendous traction, leading to its current central position in the global discourse. In 2015, the global community adopted the Sustainable Development Goals (SDGs)7 to foster the realisation of sustainable development. Comprising of 17 goals and 169 clear targets, SDGs are geared toward transforming the world.8 Implementing sustainable development requires action at several levels and the involvement of many actors, including the judiciary.9 The discussion on the role of the judiciary should be set within the broader context of the role of law in protecting the integrity of the environment. Ojwang10 has argued that environmental integrity focuses on three interrelated issues: “prudence in the use of environmental resources – to the intent that they may, as the capital base for the economy, not be exhausted”; “effective control and management of social and economic activities – so that they may not generate harmful levels of pollution and waste”;11 and “ecological planning and management – so as to achieve and maintain an aesthetic and healthful arrangement of the structures, features, assets and resources surrounding us”.12 ____________________ 6 Case Concerning Gabcikovo Nagymaros, ICJ Rep. 1997, 7. 7 UNGA (2015). 8 See (accessed 23-4-2018). 9 Preston (2005); and Kameri-Mbote & Odote (2009-2010). 10 Ojwang (2007: 19). 11 Ibid. 12 Ibid. The role of the Environment and Land Court in governing natural resources in Kenya 337 There are several steps and agencies involved in the process of ensuring environmental integrity. Laws as a set of rules are developed to define environmental goals and prescribe the necessary action to realise those goals. As one of the three arms of government, the judiciary plays the role of adjudicating disputes. This is a critical cog in the wheel of promoting a sustainable environment and natural resources management. The international recognition of the judiciary’s critical contribution was acknowledged at the World Summit on Sustainable Development in Johannesburg in 2002.13 Before the Summit, chief justices and senior judges met at the Global Judges Symposium on the Role of Law and Sustainable Development,14 where they adopted a set of Principles on the Role of Law and Sustainable Development,15 affirming that:16 …an independent Judiciary and judicial process is vital for the implementation, development and enforcement of environmental law, and that members of the Judiciary, as well as those contributing to the judicial process at the national, regional and global levels, are crucial partners for promoting compliance with, and the implementation and enforcement of, international and national environmental law. Further, the judges underscored that:17 the fragile state of the global environment requires the Judiciary as the guardian of the Rule of Law, to boldly and fearlessly implement and enforce applicable international and national laws, which in the field of environment and sustainable development will assist in alleviating poverty and sustaining an enduring civilization, and ensuring that the present generation will enjoy and improve the quality of life of all peoples, while also ensuring that the inherent rights and interests of succeeding generations are not compromised. These resolutions formed the launching pad for enhanced discourse on the judiciary’s contribution to the realisation of sustainable development. Subsequent developments at the national and international level both clarified the content and normative character of sustainable development and the framework for their achievement. This culminated in the Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability18 at the World Congress in Rio in 2012. The declaration recognised that since the Johannesburg Summit:19 …the importance of the judiciary in environmental matters has further increased and resulted in a rich corpus of decisions, as well as in the creation of a considerable number of specialized ____________________ 13 The Conference was convened by the United Nations in Johannesburg from 26 August to 4 September 2002. At the end, the Johannesburg Declaration on Sustainable Development was adopted, A/CONF.199/20. (accessed 12-5- 2018). 14 UNEP (2005: 54). 15 See (accessed 31-7-2018). 16 Ibid. 17 Ibid. 18 See (accessed 20-4-2018). 19 UNEP (2012). Collins Odote 338 courts and green benches, and a lasting effect on improving social justice, environmental governance and the further development of environmental law, especially in developing countries. The above developments eventually led to the evolution of the concept of the environmental rule of law and tremendous work by the United Nations Environment Programme (UNEP) on the environmental rule of law. While scholars have long been familiar with the concept of the rule of law and its place in orderly affairs in society, in the environmental field, the rule of law approach to environmental management was only recently recognised. In a description on the UN website, the essence of the concept is captured in the following terms:20 Environmental rule of law is central to sustainable development. It integrates environmental needs with the essential elements of the rule of law and provides the basis for improving environmental governance. It highlights environmental sustainability by connecting it with fundamental rights and obligations. It reflects universal moral values and ethical norms of behavior, and it provides a foundation for environmental rights and obligations. Without environmental rule of law and the enforcement of legal rights and obligations, environmental governance may be arbitrary, that is, discretionary, subjective, and unpredictable. The concept of the environmental rule of law was originally coined by the UNEP Governing Council in 2013, when, in Decision 27/9 on Advancing Justice, Governance and Law for Environmental Sustainability, it requested the executive director of UNEP to –21 lead the United Nations system and support national Governments upon their request in the development and implementation of environmental rule of law with attention at all levels to mutually supporting governance features, including information disclosure, public participation, implementable and enforceable laws, and implementation and accountability mechanisms including coordination of roles as well as environmental auditing and criminal, civil and administrative enforcement with timely, impartial and independent dispute resolution. The above decision was arrived at against the background acknowledgement that –22 the violation of environmental law has the potential to undermine sustainable development and the implementation of agreed environmental goals and objectives at all levels and that the rule of law and effective governance play an essential role in reducing such violations… The realisation of sustainable development is accordingly a cooperative endeavour and effective judiciaries are an integral component of the institutional architecture that every country must put in place, equip and utilise so as to ensure the realisation of sustainable development. ____________________ 20 See (accessed:12-05-2018). 21 UNEP Governing Council Resolution 27/9 of 2013, at https://www.informea.org/en/decision/advancing-justice-governance-and-law-environmental-sustainability> (accessed 23-4- 2018). 22 Ibid. The role of the Environment and Land Court in governing natural resources in Kenya 339 3 The evolution of the Environment and Land Court (ELC) Until the adoption of the 2010 Constitution, environment and land matters were handled within the normal court structure. Consequently, the general complaints about courts as being too technical, case delays, executive influence and corruption that were the key drivers for judicial reform, also affected the disposal of land and environmental matters. While environmental matters are largely public-spirited in nature, the traditional adjudicative process and philosophy are characteristically private rights focused. This hampers the performance of courts in environmental matters with many cases being dismissed on technicalities as a result of the failure of those seeking redress from courts to demonstrate their specific private rights under threat. The Kenyan Nobel Laureate and one-time assistant Minister for Environment became the point of reference in this restrictive approach by courts when her attempts to protect the county’s most famous recreational park in the centre of Nairobi, Uhuru Park, was dismissed. The judge famously quipped that Professor Mathai:23 has strong views that it would be preferable if the building of the complex never took place in the interests of many people who had not been directly consulted. Of course, many buildings are being put up in Nairobi without many people being consulted. Professor Wangari apparently thinks this is a special case. Her personal views are immaterial. The Court finds that the Plaintiff has no right of action against the defendant company and hence she has no locus standi. This negative attitude by the judiciary on litigating environmental matters in the public interest has changed gradually starting with the enactment of a facilitative framework environmental law in Kenya: the Environmental Management and Coordination Act (EMCA). The Act was “enacted by Parliament after a lengthy but cordial debate, in 1999”.24 Its history, however, started much earlier and is traceable to the Stockholm Conference in 1972 and Kenya’s hosting of UNEP.25 The Act sought to provide “an appropriate legal and institutional framework for the management of the environment in Kenya”.26 The implication from this preambular statement was that the hitherto existing framework was deficient. The deficiency arose from several factors including a sectoral and uncoordinated approach to managing the environment, a purely command and control legislative architecture and excessive executive discretion in enforcing environmental prescriptions. On the contrary, “EMCA is based on the recognition that improved coordination of the diverse sectoral initiatives is necessary for better management of the environment”.27 ____________________ 23 HCCC 5403 of 1989 reported in (2006) 1 Kenya Law Reports (Environment and Land) 170. 24 Okidi (2008: 126). 25 Ibid. See also Okidi & Kameri-Mbote (2001). 26 Preamble, Act Number 8 of 1999 Laws of Kenya. 27 Angwenyi (2008: 143). Collins Odote 340 From a dispute resolution standpoint, EMCA recognised the role of the court in environmental management. Section 3 provides the right and duty of every citizen to a clean and healthy environment, and grants access to courts for resolution of disputes in relation to violations of this right, stipulating that:28 If a person alleges that the entitlement conferred under subsection (1) has been, is being or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the high court for redress and the High Court may make such orders, issue such writs or give such directions as it may be deem appropriate. In addition to the High Court’s powers, the Act also creates environmental offences, which according to Kenya’s judicial structure are resolved by subordinate courts. By the time EMCA was enacted there were already complaints about the performance of courts in resolving environmental disputes. Consequently, EMCA established two other dispute resolution fora:29 …the public complaints committee, which is in the nature of an environmental ombudsman, whose function is to receive complaints and petitions of a technical or non-technical character, and the National Environment Tribunal whose function is to review administrative decisions. These two bodies provided quick and expeditious options for resolving environmental disputes but suffered from several challenges, notably the structuring of the public complaints committee (PCC) as a committee of the National Environmental Management Authority, yet it was supposed to also investigate the Authority. While Kenya had a progressive law in the form of EMCA, the existing constitutional architecture did not deal with environmental issues. This was despite the recognition of the need to elevate environmental matters to the constitutional level and the existence of environmental provisions in several constitutions across the continent.30 As a result, courts relied on the constitutional right to life, as it was the only avenue for addressing violations of environmental rights. This, however, happened in a single case before the adoption of the 2010 Constitution. In that case, the court held that:31 Under Section 71 of the Constitution all persons are entitled to the right to life - in our view the right to life is not just a matter of keeping body and soul together because in this modern age that right could be threatened by many things including the environment. The right to a clean and healthy environment is primary to all creatures including man, it is inherent from the act of creating, the recent restatement in the Statues and the Constitutions of the world notwithstanding. Environmental rights and management received extensive treatment in the 2010 Constitution.32 Not surprisingly, the Kenyan 2010 Constitution has been labelled as a “green Constitution”33 for elevating environmental management and the realisation of ____________________ 28 Section 3(3), EMCA. 29 Mumma (2007: 259-260). 30 See Bruch et al. (2001: 187). 31 Peter K. Waweru v. Republic (2006) eKLR. 32 Odote (2012). 33 Kaniaru (2011-2012: 581). The role of the Environment and Land Court in governing natural resources in Kenya 341 sustainable development to constitutional status.34 The establishment of the ELC by the Constitution as one of the two specialised courts within the judicial structure and its positioning at the level of the High Court was also trailblazing. Writing in the early days of the adoption of the Kenyan 2010 Constitution, one writer stated that:35 How soon the court is in place and the type of results it turns out may well determine whether this lead is taken or not taken by the many African countries currently engaged in constitutional reviews in their phase of maturity since independence. The court was operationalised by the enactment of the ELC Act in 2011 and the appointment of an initial 16 judges to the court in 2012. Consequently “(a) at the end of 2012, the ELC was fully operational. Many expect(ed) that the court will be able to develop a sound jurisprudence on environment and land matters and address the many challenges facing the country”.36 The creation of the court was the culmination of increasing efforts to enhance the judiciary’s role in environmental management and to facilitate its departure from the largely negative and restrictive reputation captured in the approach taken in the Wangari Mathaai case.37 The initial efforts were made by UNEP in fulfilment of the declaration at the global Judges Symposium in Johannesburg in 2002, when a call was made for dedicated capacity building for judiciaries across the world. However, the turning point for Kenya was between 2005 and 2007, when the University of Nairobi partnered with the Institute for Law and Environmental Governance and the National Environment Management Authority to mount a capacity building programme for the judiciary on environmental law. Through a series of colloquia and symposia, all judges of the High Court and Court of Appeal and senior magistrates were introduced to the concepts and principles of environmental law, highlights of the national and legal framework governing environmental management and the role of the judiciary in promoting sustainable development.38 One of the experts at the training session for judges was the Chief Judge of the Land and Environment Court of New South Wales, the pioneer specialised environmental court in the world. In his presentation, Judge Preston shared the experience of their courts and courts in Asia and Pacific in promoting sustainable development.39 He argued that “the role of the judiciary in relation to the law of sustainable development is thus of the greatest importance”.40 Consequently, “it is up to the judiciary to clearly define the circumstances of application and the means of implementation of the principles of sustainable development so that this body of law can continue to develop”.41 ____________________ 34 Ibid. 35 Ibid. 36 Odote (2013: 177). 37 HCCC 5403 of 189 reported in 1 Kenya Law Reports (Environment and Land) 2006, 164-171. 38 These fora run for three years and included several presenters. See for example, Okello (2006). 39 Preston (2005). 40 Preston (2005: 210). 41 Ibid: 211. Collins Odote 342 In the Kenyan context, these words challenged the judiciary leadership resulting in the Chief Justice establishing a division of the High Court responsible for land and environmental matters.42 This laid the early foundations for the ELC. It also led to challenges relating to jurisdiction, when following the promulgation of the 2010 Constitution and the establishment of the ELC, the Chief Justice appointed a judge of the High Court and not one of the ELC to act as the presiding judge of the Court. This was changed following a case,43 canvassing the jurisdiction of the court. Kenya borrowed from the design of New South Wales to combine both environment and land matters. The Land and Environment Court of New South Wales was the first to be established as a specialised superior court of record focusing on land and environmental matters. The importance of land and the responsibility for the judiciary to be able to deliver on the constitutional imperative of sustainable development led to the creation of the Kenyan Environment and Land Court.44 Land forms the backbone of the country and a direct nexus exists between land tenure and use, on the one hand, and environmental management on the other. Consequently, the manner in which the judiciary handles land and environment cases has direct and fundamental impacts on the majority of the population who rely on land for their livelihoods. The performance of the ELC is thus an important determinant of the judiciary’s contribution to socioeconomic development in the country. As Judge Brian Preston, the Chief Judge of the Land and Environment Court pointed out:45 The judiciary has a role to play in the interpretation, explanation and enforcement of laws and regulations. …Increasingly, it is being recognised that a court with special expertise in environmental matters is best placed to play this role in the achievement of ecologically sustainable development. 4 Jurisdictional challenges The question of jurisdiction has dogged the ELC since its establishment. To be fair, this jurisdictional issue is part of the rationale for the inclusion of both the employment and labour relations court and the ELC in the 2010 Constitution. Before the 2010 Constitution, the country had an Industrial Court to determine labour disputes. However, there continued to be a jurisdictional challenge between the High Court and the Industrial Court, with the High Court entertaining appeals from the Labour Court much to the disquiet of the labour movement, which argued that this reduced the utility of the Industrial Court. Consequently, the 2010 Constitution sought to put a stop to this. ____________________ 42 See (accessed 12- 5-2018>. 43 Karisa Chengo & 2 others v. R, CA No. 44,45 and 76 of 2014. 44 Preston (2005); and Kameri-Mbote & Odote (2009-2010). 45 Preston (2008: 386). The role of the Environment and Land Court in governing natural resources in Kenya 343 For the ELC, the 2010 Constitution provides for the establishment of the court “with the status of the High Court”46 and further that the jurisdiction and function of the court would be determined by the Parliament.47 These provisions have raised operational challenges for the ELC. The main challenge resulted from the fact that by granting the court the jurisdiction to handle disputes relating to “the environment and the use and occupation of, and title to, land”48 in a country where the majority of disputes relate to land, there was the fear that the ELC would be clogged. Secondly, the ELC could hear and determine disputes relating to the right to a clean and healthy environment. A lot of debate revolved around what was meant by a court of the status of the High Court. Did this mean that it is part of the High Court or distinct from the High Court? The ELC Act gave the court several adjudicative functions relating to environment and land matters, including an original, supervisory and appellate jurisdiction. Clarifying its exact jurisdiction became controversial. How would one handle succession cases involving land? Were these land cases or succession cases? The importance of this issue derives from the importance of jurisdiction to the functioning of courts. The locus classicus for this was laid down years ago by the Kenyan Court of Appeal in the case of Owners of Motor Vehicle “Lilian S” v. Caltex Oil Kenya Limited49 where it held:50 Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Delineating the proper contours of the jurisdiction of the ELC would consequently help in its performance. As the Court of Appeal argued in Karisa Chengo and others v. Republic:51 Land in Kenya is an emotive issue and for good reasons; agriculture is the backbone of the country’s economy. In our view there was need to have expeditious disposal of land and environment matters and a specialized court would ensure that was done as well as provide jurisprudence on adjudication of land and environment disputes. The need therefore for preserving the objective of creating the specialized courts contemplated under Article 162(2) of the Constitution cannot be gainsaid. We have already stated that the matters handled by these courts are extremely important and sensitive which have an impact on socio-economic well being. Consequently, it is important to empower those courts in dealing with their mandate. This case epitomises and also resolves the jurisdictional challenge of the ELC. However, the actual jurisdictional confusion was created by the actions of the former Chief Justice of the Republic of Kenya. In 2012, he issued practice directions clarifying the ____________________ 46 Article 162(2), Constitution of Kenya. 47 Article 162(3), Constitution of Kenya. 48 Article 162(2)(b), Constitution of Kenya. 49 (1989) KLR 1653(CA). 50 Ibid. 51 Criminal Appeals Numbers 44, 45 and 76 of 2014. Collins Odote 344 jurisdiction of the ELC.52 The first practice directions issued in September 2012 vested the Court with jurisdiction to hear succession cases. This was, however, corrected in November 2012, but the jurisdictional confusion would continue for much longer. The rationale behind this confusion was the intention, for administrative convenience, to avoid drawing a fine distinction between judges of the High Court and those of the ELC. Karisa Chengo v. Republic53 demonstrates this jurisdictional separation between the judges. On 4 October 2013, Dr. Willy Mutunga, the then Chief Justice gazetted54 judges to hear and determine criminal appeals following his declaration of a service week to clear the backlog of criminal cases in the country between 14 and 18 October. Magistrates courts had convicted Karisa Chengo and others of the offence of robbery with violence. Their appeal was heard during the service week by a panel comprising a High Court judge and a judge of the ELC. The bench dismissed the appeal. He appealed to the Court of Appeal, which held that the panel lacked jurisdiction because of the inclusion of an ELC judge. On subsequent appeal to the Supreme Court, the latter upheld the Court of Appeal decision, finally resolving the jurisdictional problem. It delved into the history of the establishment of the courts, especially the record of the committee of experts, which drafted the country’s 2010 Constitution. In the words of the Supreme Court:55 The Committee of Experts in its Final Report thus, adverted to three main factors in securing anchorage in the Constitution for the specialized Courts. These were, first, setting out in broad terms the jurisdiction of the ELC as covering matters of land and environment and of the ELRC as covering matters of employment and labour relations but leaving it to the discretion of Parliament to elaborate on the limits of those jurisdictions in legislations. Secondly, and more fundamentally, the establishment of the ELC was inspired by the objective of specialization in land and environment matters by requiring that ELC Judges were, in addition to the general criteria for appointment as Judges of the superior Courts, to have some measure of experience in land and environment matters. Lastly, the Committee of Experts ensured the insertion in the Constitution of a statement on the status of the specialised Courts as being equal to that of the High Court, obviously to stem the jurisdictional rivalry that had hitherto been experienced between the High Court and the Industrial Court. The Supreme Court also dealt with the double issue of status and jurisdiction clarifying that while the High Court and the ELC were of the same status, meaning same level, their jurisdictions were distinct. The ELC is a “special cadre of courts with sui generis jurisdiction”.56 The above decision has settled a limitation on the ELC, which sadly had been administratively created by the judiciary. Another administrative hurdle was evidenced ____________________ 52 Practice Directions on Proceedings relating to the Environment and the use and Occupation of, and Title to Land Gazette Notice Number 13573, dated 20 September 2012 and published on 28 September 2012. 53 High Court Criminal Appeal Number 49 of 2012. 54 Gazette Notice Number 13601. 55 Republic v. Karisa Chengo and others Supreme Court Petition No. 5 of 2015. 56 Ibid. The role of the Environment and Land Court in governing natural resources in Kenya 345 by the decision to designate the head of the ELC as a Principal Judge when the courts were being operationalised. The designation was later changed to Presiding Judge. The 2010 Constitution envisaged that the ELC would be a court with the same status as the High Court. It contemplated a clear system of administration of the judiciary where leadership would not be the preserve of the Chief Justice. The establishment of an independent Judicial Service Commission and provision for leadership of each court evidences this. The Chief Justice is the head of Supreme Court as its President, while the Court of Appeal also has a President. The High Court has a Principal Judge, elected by judges of the High Court from amongst themselves.57 The link between the status of the ELC and its leadership is critical. While the establishment of the court followed appreciation of the importance of land and environmental issues in the country’s governance and development arena, its distinction from the High Court is still subject to debate within the judiciary.58 When the 2010 Constitution was adopted, the Employment and Labour Relations Court and ELC were by dint of Article 162 created as separate superior courts with the same status as the High Court. It is important to point out that the Employment and Labour Relations Court had a successor in the Industrial Court. This had always operated as a separate court from the High Court. The only debate was whether it was inferior to the High Court or not. The ELC on the other hand, used to be a High Court Division. The 2010 Constitution placed these two courts at the same level and removed matters within their jurisdictions from the High Court. When the enabling legislation was enacted, a Principal Judge was contemplated for both the Employment and Labour Relations Court and for the ELC. However, through an amendment in 2011, the term Principal Judge was replaced with Presiding Judge. The ELC Act provides that “The Presiding Judge shall have supervisory powers over the Court and shall report to the Chief Justice”.59 It is important to debate the rationale for the change of the title for the head of the ELC from Principal Judge to Presiding Judge. While one may argue that this was to avoid confusing it with the Principal Judge of the High Court and also that there is nothing in a name, practice does not support this argument. If the head of the Employment and Labour Relations Court is designated as a Principal Judge and that court is of the same status as that of the ELC, why should the ELC have a Presiding Judge? Secondly, divisions of the High Court have presiding judges. For example, the civil division of the High Court has a Presiding Judge. Does the designation of the head of the ELC not make the court be seen as a division of the High Court? ____________________ 57 Article 165(2), Constitution of Kenya (2010). 58 The jurisdiction challenge outlined above and the initial appointment of a head for the court and not election evidences this. 59 Section 6(3), ELC Act. Collins Odote 346 This is not a futile debate. Since its establishment, the status and jurisdiction of the ELC has been the subject of heated debate. Initially, the Chief Justice established a division of the High Court headed by a High Court before the Act operationalising the ELC was enacted. Then the court had three judges. When the fifteen judges of the court were hired by the Judicial Service Commission and appointed by the President, the High Court judge continued serving as the head of the ELC. This is despite her not being appointed as an ELC judge. Secondly, this happened despite the express provisions of the Environment and Land Court Act providing for the manner of appointing the Presiding Judge for that court. When the Court of Appeal ruled in the Karisa Chengo case, the High Court Judge was transferred to Machakos and a judge appointed under the ELC Act appointed as the ELC Presiding Judge, despite the provisions of the Act for elections.60 This issue was only resolved when elections were held for the position in 2017. The related question of the powers of the Presiding Judge versus those of the Principal Judge needs to be ventilated and resolved. The ELC Act does not define either the Principal or Presiding Judge. Before the 2012 amendments it had defined a Principal Judge. The 2012 amendment replaced Principal Judge with Presiding Judge. The High Court (Organization and Administration) Act61 may help here but it is important to point out that this Act gives effect to Articles 165(1)(a) and (b) of the 2010 Constitution by providing for the organisation and administration of the High Court, which the ELC is neither a part nor a division of. The Act defines a Principal Judge as one elected under Article 165(2) of the 2010 Constitution, while a Presiding Judge is one appointed by the Chief Justice to preside over a station or division. Designating the head of the ELC as Presiding Judge therefore envisages that they are heading a division or station but not a court. Secondly, if one compares the provisions of Section 6 of the ELC Act, they are on all fours with Section 5(2) to (5) of the Employment and Labour Relations Act.62 Curiously though, the head of the Employment and Labour Relations Court is designated “Principal” while that of ELC is “Presiding”. The designation has implications for both authority and management. While Section 6 of the ELC Act states that the Presiding Judge of the Court is answerable to the Chief Justice, the High Court (Organization and Administration) Act envisages that a Presiding Judge shall be answerable to the Principal Judge and shall rank lower in precedence than a Principal Judge. A Principal Judge has support staff including a Chief Officer and such other staff as designated by the Chief Registrar,63 while a Presiding Judge does not. Currently, the Presiding Judge of the ELC only has a secretary like other judges. In addition, the ____________________ 60 Section 6, ELC Act. 61 Act No. 27 of 2015. 62 Chapter 234B, Laws of Kenya. 63 Section 6(5), Act No. 27 of 2015. The role of the Environment and Land Court in governing natural resources in Kenya 347 Presiding Judges do not have a distinct budget. This limits the discharge of their management responsibility and ability to supervise the performance of the court. Further, while Section 9 of the ELC Act provides for a Registrar of the Court to be appointed by the Judicial Service Commission, to date no substantive Registrar has been appointed. The court operates with a Deputy Registrar. The leadership of the ELC needs to be enhanced bearing in mind both its unique status and that judges of the court are spread throughout the country. They sit in the same stations with their High Court colleagues, but are not part of the High Court in organisation and administration. 5 Linkages to lower courts and tribunals The ELC has supervisory and appellate jurisdiction over lower courts and tribunals. However, questions have continued to abound as to the implications of this on the benefits of specialisation which these courts were expected to herald with their establishment. While tribunals by their nature provide for expedited disposal of cases, the ELC was established with the same rationale. Questions, therefore, arise on the necessity for having both the ELC and the National Environment Tribunal (NET) established under the Environment Management and Coordination Act.64 The retention of the NET when the ELC was adopted was not, and has not been, properly thought through, especially considering ongoing efforts to reform tribunals in the country to bring them within the ambit of the judiciary and rationalise their numbers. NET also experienced challenges when at the end of 2017 both the Judiciary Service Commission and the Ministry of Environment had a back and forth regarding the powers over appointment and supervision of the tribunal. With a specialised court, and innovations on its procedures, there is a need to reconsider the necessity for and continued relevance of the NET, which is centralised in Nairobi, while there are ELC courts across the country. The second aspect relates to the role and jurisdiction of Magistrates Courts over environmental matters. Because of a lack of initial clarity over the jurisdictional powers of the ELC, controversy also arose as to whether Magistrates’ Courts could handle environmental matters. This, in my view, is one place where the controversy was unwarranted. First, accorded the status of the High Court implied that there would be matters that would not necessarily need to be brought to the ELC. In addition, Kenya’s environmental management approach combines both civil and criminal tools. Criminal enforcement of environmental law is necessary to protect the integrity of the regulatory system, prevent harm to the environment, protect public health and welfare, and to punish culpable violations. Clarity on the criminal jurisdiction in environmental cases ____________________ 64 Odote (2013: 177). See also Mcleod (1997); and Stein (1997). Collins Odote 348 is therefore as necessary as in civil cases. The ELC does not have a jurisdiction to handle criminal matters. Magistrates Courts are consequently relevant in the resolution of environmental disputes in criminal cases. Despite this, and because of conflicting interpretations on the role of Magistrates’ Courts in environmental matters, amendments were made to the law in 2015 to clarify the jurisdiction of Magistrates’ Courts in environmental matters. First, the ELC Act was amended by introducing Section 26(3), which provided that “(t)he Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country”.65 Section 26(4) of the same Act also provided that subject to Article 169(2) of the Constitution, the magistrate appointed under sub-section (3) shall have jurisdiction and power to handle:66 (a) disputes relating to offences defined in any Act of Parliament dealing with environment and land; and (b) matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates’ Courts Act. In addition, a new Magistrates’ Court Act67 was enacted in the same year. The Act included a comprehensive section focusing on the jurisdiction of environment and land matters by Magistrates’ Courts. It stated that Magistrates’ Courts:68 in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 12A) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to – (i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (ii) compulsory acquisition of land; (iii) land administration and management; (iv) public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (v) environment and land generally. These amendments, however, became the subject of court disputes involving members of the Law Society of Kenya (LSK). In a suit filed by the LSK Malindi Branch, the lawyers argued that this section was unconstitutional. A three-judge bench in Malindi heard the case and held the amendments unconstitutional. At this stage, the LSK Nairobi Branch, which had not been a party to the proceedings at the initial stage, sought to join the case by filing an appeal against the judgment. While they were allowed to prosecute the appeal, the case raised two interesting procedural issues. The first was the fact that a party that was not part of the proceedings at all in the initial case could file an appeal against such a decision. This precedent had the potential of encouraging people to sit out litigation until judgment is delivered even if they feel they will be affected by such a decision, only to wake up and argue that they are unhappy with the decision and must appeal it; yet they could have ventilated their concerns at the trial ____________________ 65 Act No. 5 of 2015. 66 Act No. 25 of 2015. 67 Act No. 26 of 2015. 68 Section 9(a) Act No. 26 of 2015. The role of the Environment and Land Court in governing natural resources in Kenya 349 stage. Secondly, although the LSK has branches in several parts of the country, it is one statutory body established in law. In addition, as a representative body of lawyers in the country, it is assumed that there is consultation before they take a position on a public matter. This litigation pitted two branches against each other, with the parent body in the midst of both of them. The courts, by allowing the appeal, also ignored this aspect of corporate governance. Substantively on the issue of jurisdiction of the Magistrates’ Courts, the Court of Appeal held that that the courts had jurisdiction over environment and land matters, arguing that:69 In our view, conferring jurisdiction on magistrates’ courts to hear and determine does not diminish the specialization of the specialized courts considering that appeals from the magistrates’ courts over those matters lie with the specialized courts. As urged by Mr. Kanjama, under the doctrine of judicial precedent, the decisions of the specialized courts would bind the magistrates’ courts and the specialized courts would therefore undoubtedly imprint the “specialized jurisprudence” on the magistrates’ courts. The above decision followed an earlier judgment by Justice Lenaola in the High Court even before the 2015 amendments. Although his decision was just one of the contending views then, the above sentiments by the Court of Appeal have now settled the law and agreed with his position that:70 In that context, looking at Section 13 (1) of the Act it is clear that Parliament did not intend that the Environmental and Land Court should have exclusive jurisdiction to hear and determine matters related to the environment, and the use and occupation of, and title to land. …It therefore follows that the Magistrates’ Courts have jurisdiction to determine matters falling within the jurisdiction of the Environment and Land Court Act and their decisions will be subject to appeals preferred to the Land and Environment Court. I would not attribute any other meaning to the above provisions. Sadly, therefore I do not think that the Applicants can sustain the argument that the Environment and Land Court has exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land and the environment because the law does not bear them out. 6 A review of emerging jurisprudence As the Court of Appeal alluded to, it is imperative that the ELC imprints its specialised jurisprudence. This will give guidance to Magistrates’ Courts, clarify many legal issues and help assert the role of the court in the management of environmental matters. Since its establishment, the courts have made numerous judgments in both environmental and land cases. While there is no comprehensive statistics on the cases handled to date and how many of these are land matters versus environmental mattters, anecdotal and preliminary review of the cases demonstrates that the majority of the ____________________ 69 Law Society of Kenya (Malindi Branch) v. Malindi Law Society of Kenyan and others Malindi Civil Appeal, 287 of 2016. 70 Edward Mwaniki Gaturu & another v. Hon. Attorney-General & 3 others (2013) eKLR. Collins Odote 350 decisions from the court are land, and even for these there is a disproportionate high number addressing itself to injunctive and preliminary relief. There are, however, several cases that signal that the court is alive and is setting a positive trajectory with its jurisprudence on environmental matters. 6.1 Environmental impact assessment (EIA) The ELC has dealt with the question of EIA as a tool for environmental management. The EMCA clearly provides that EIA exists to help ensure that in designing and undertaking development projects, environmental considerations are taken into account and integrated in the entire process. It provides for an elaborate process of identifying negative environmental and social impacts of any proposed projects, determining what mitigation measures are necessary and whether if such action is undertaken, the project could proceed without negatively impacting on the environment. While EIA has been subject of several cases before the ELC, the jurisprudential approach by the court is demonstrated by the case of Kwanza Estates Limited by Kenya Wildlife Services.71 The case arose out of the action of the defendant to construct public toilets, which the plaintiff, a registered owner of land in Wakame where he had constructed a resort, argued was causing adverse environmental effects to his resort hence devaluing the property. In determining whether to grant an injunction against the construction of the toilets, the court was guided by the place of EIA in sustainable development since the plaintiff had complained that no EIA was undertaken before the toilet was constructed. The court held that while “it is in the public interest that every public beach must have toilets accessible to the members of the public”,72 compliance with EIA processes was necessary. In the courts’ words the “protection of the environment for the benefit of the present and future generations is supposed to be done in a structured manner”.73 On EIA, the court held that its necessity was justified, both on the need to ensure sustainable development and due to the need to comply too with the constitutional stipulation of public participation, which would be actualised by conducting an EIA and compiling a report for approval by the NEMA. The court ruled that EIA was an important process, pointing out that:74 EIA is a tool that helps those involved in decision making concerning development programmes or projects to make their decisions based on knowledge of the likely impacts that will be caused on the environment. Where the impacts are negative and likely to result in significant harm, decisions markers will be able to decide what kind of mitigating measures should be taken to eliminate or minimize the harm. The projects that are potentially subject to EIA are specified in the ____________________ 71 2013 eKLR. 72 Ibid. 73 Ibid. 74 Ibid. The role of the Environment and Land Court in governing natural resources in Kenya 351 second schedule of EMCA and they include an activity out of character with its surrounding, any structure of a scale not in keeping with its surrounding and change in land use… Consequently, for failing to demonstrate that there had been public participation, the court granted an injunction against the construction arguing that this was a denial of public participation. In the courts’ view, it prevented them from raising any concerns they had with the proposed project:75 The importance of public participation in decision making in environmental matters is highlighted by the requirement that EIA study report be published for two successive weeks in the Gazette and in a newspaper circulating in the area of the project and the public to be given a maximum of sixty days for submissions of oral or written comments on the same. EIA process gives individuals like the Plaintiff in this case, a voice in issues that may bear directly on their health and welfare and entitlement to a clean and healthy environment. 6.2 Relationship between NEMA and lead agencies Environmental enactments adopt a framework approach to deal with the sectoral and uncoordinated approaches of the past. EMCA is designed as a framework law with NEMA designated as the agency to coordinate environmental management. In practice though, turf wars are discernible between NEMA and sectoral agencies established under sectoral environmental laws, in regulations promulgated under these laws and in the implementation of the institutions’ environmental mandate.76 The relationship between NEMA and lead agencies was addressed in the case of Republic versus National Environmental Management Authority and another Ex parte Phillip Kisia and Another.77 NEMA charged the Nairobi City Council Town Clerk for failing to perform environmental obligations. The court held that lead agencies have an obligation to cooperate with NEMA in environmental management but –78 the buck stops with NEMA as regards environmental matters. NEMA assists and guides lead agencies in the preservation and protection of the environment but when a lead agency fails to comply with the directives given by NEMA then NEMA has no option but to engage the powers granted to it by EMCA. 6.3 Access to information and public participation Procedural rights are critical to realising the right to a clean and healthy environment. ELC has demonstrated the importance of procedural rights, making decisions, which underscore that failure to involve the public in environmental decisions or to provide ____________________ 75 Ibid. 76 Akech (2008: 334). 77 2013 eKLR. 78 Ibid. Collins Odote 352 access to environmental information, are a violation of environmental rights and hinder sustainable environmental and natural resources management. Consequently, courts will give relief to enforce these guarantees. Two cases demonstrate this approach. Joseph Leboo & 2 others v. Director Kenya Forest Services & Another79 involved an application by Lembus Council of Elders Committee Members against the Director of Kenya Forest Service and the Baringo County Forest Coordinator, for alleged illegal allocation of rights to pre-qualified and unqualified saw millers to harvest timber and fuel materials from Lembus forest, without involving the community and against the laid down procedure. The court held that public participation is a key prerequisite for sound environmental management. The second case, Friends of Lake Turkana v. Attorney General and others80 related to an alleged memorandum of understanding between the Government of Kenya and the Government of Ethiopia, entered into in 2006, to purchase of 500 MW of electricity from Gibe III as well as an $800 million grid connection between Kenya and Ethiopia. To generate electricity, the Ethiopian Government constructed dams on River Omo, a principal source of water for Lake Turkana. A civil society organisation – Friends of Lake Turkana – sued, arguing that the construction of the dam would adversely affect the environment and Lake Turkana. The failure of the Government of Kenya to provide access to information on the nature of agreement with the Government of Ethiopia was also raised. The court held that access to information was important for public participation and monitoring government actions. 6.4 The precautionary principle and environment management Section 3 of the EMCA incorporates international environmental law principles as subsets of the principle of sustainable development and requires courts to rely on them in the management of the environment. One such principle is the precautionary principle,81 captured in the Rio Declaration as follows:82 In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle was popularised in the famous case of Shehla Zia v. WAPDA83 where the court held that in appropriate cases it would grant injunctions in instances of threat to environment even if the state of scientific knowledge was uncertain. This approach ____________________ 79 Ibid. 80 2014 eKLR. 81 Preston (2005). 82 Principle 15, Rio Declaration. 83 Supreme Court of Pakistan, Shehla Zia v. WAPDA, PLD 1994 SC 693 (12-2-1994). The role of the Environment and Land Court in governing natural resources in Kenya 353 was approved by the ELC in a case involving the decision of the Cabinet Secretary for environment and natural resources to ban plastic bags. In the case of Kenya Association of Manufacturers v. Cabinet Secretary for Environment for Natural Resources84 the court held that:85 At this stage of determining whether the applicant has established a prima facie case or not, the court’s role will entail an examination of the relevant legal framework to establish if the 1st Respondent had the requisite powers to issue the legal notice. Section 3 of the Act echoes the constitutional framework on the right to a clean environment. It also provides a broad framework on environmental governance principles and access to justice in environmental disputes. One of the environmental governance principles emphasised by this legal framework is the principle of public participation in the development of policies, plans and processes for the management of the environment and natural resources. The other key principle set out in this section is the precautionary principle. This principle requires that where there are threats of damage to the environment, whether serious or irreversible, immediate, urgent and effective measures be taken to prevent environmental degradation notwithstanding the absence of full scientific certainty on the threat to the environment. 7 Conclusion From the review, the ELC is setting a path which favours sustainability in the management of natural resources and which demonstrates the benefits of a specialised environmental court.86 However, several issues need to be resolved to enhance the role of the court in sustainable natural resources management. First is the quantity and quality of jurisprudence. There are very few substantive cases on the environment that have established sound jurisprudence from the court. The majority of the cases revolve around temporary relief. While these signal sound knowledge of environmental law, the lack of depth and analytical focus needs to be addressed going forward. The plans by the Judiciary Training Institute to develop a bench book on environmental law is a useful starting point for providing the foundations for a rigorous analysis of the emerging jurisprudence and challenging the courts to explore and provide guidance on critical and emerging environmental challenges. The success of this will, however, require that many more environmental cases are brought before the ELC. In an adversarial system like Kenya’s, courts can only make judgments based on matters brought before them. It is also important that the relationship between NET and ELC be revisited. Additionally, the use of experts in environmental matters should be considered so that courts can benefit from scientific advice in their determinations. This will improve both the substantive investigation of issues and the quality of judgments. ____________________ 84 2017 eKLR. 85 Ibid. 86 Preston (2005). Collins Odote 354 On the issue of jurisdiction, despite the clarification by the courts, there are still the outstanding issues: how to determine which case is environmental and which is land; and relatedly, how to deal with issues of mixed jurisdiction. How does one determine the jurisdiction in a case having both land and environmental issues and other questions of law? This arises both in the context of constitutional issues and normal civil litigation. The case of Tasmac Limited v. Shalin Chitranjan Gor87 had elements of land and company law and the court held that either the High Court or the ELC had jurisdiction. This approach has the potential of encouraging forum shopping, as it does not clarify jurisdictional competence. Judge Ngugi in Suzanne Achieng Butler v. Redhill Heights Investments Limited and Another88 adopted a better approach. He argued that the consideration of competence should be based on the “predominant purpose test” entailing the determination of the predominant purpose of the transaction and the gravamen of the dispute. Thus, while a case may involve several issues, the approach is to determine what is at the heart of the dispute. In this way, it will be possible to determine which court has jurisdiction as opposed to the first court to be approached as happened in Tasmac. In the final analysis, the ELC has made movement, although baby steps, in its quest to enhance sustainable development in the country. References Akech, M (2008) “Governing water and sanitation in Kenya” in CO Okidi, P Kameri-Mbote & M Akech (eds) Environmental governance in Kenya: implementing the framework law 305-333. Akech, M, P Kameri-Mbote, C Odote & G Mwangi (2011) Judicial reforms and access to justice in Kenya: realizing the promise of the new Constitution. Angwenyi, AN (2008) “An overview of the Environmental Management and Coordination Act” in CO Okidi, P Kameri-Mbote & M Akech (eds) Environmental governance in Kenya: implementing the framework law 142-182. Bruch, C, W Coker & C VanArsdale (2001) “Constitutional environmental law: giving force to fundamental principles in Africa” 26 Columbia Journal of Environmental Law 131-212. Kameri-Mbote, P & M Akech (2011) Kenya justice sector and rule of law. Kameri-Mbote, P & C Odote (2009-2010) “Courts as champions of sustainable development: lessons from East Africa” 10(1) Fall, Sustainable Development Law and Policy 31-38, and 83-84. Kaniaru, DW (2011-2012), “Environmental courts and tribunals: the case of Kenya” 29 Pace Environmental Law Review 566-581. Mcleod, G (1997) “Do we need an environmental court in Britain” in D Robinson & J Dunkley (eds) Public interest perspectives in environmental law 274. Mumma, A (2007) “The Role of administrative dispute resolution institutions and processes in sustainable land use management: the case of the national environment tribunal and the public ____________________ 87 Tasmac Limited v. Shalin Chitranjan Gor 2014 eKLR. 88 High Court Kiambu Commercial case No. 2 of 2016. The role of the Environment and Land Court in governing natural resources in Kenya 355 complaints committee” in N Chalifour, P Kameri-Mbote, L Heng Lye & JR Nolin (eds) Land use for sustainable development 253-265. Nolan Jr, JL (2009) Legal accents, legal borrowing: the international problem-solving court movement. Ojwang, JB (2007) “The role of the judiciary in promoting environmental compliance and sustainable development” (1) Kenya Law Review 19-29. Okidi, CO (2008) “Background to Kenya’s framework environmental law” in CO Okidi, P Kameri- Mbote & M Akech (eds) Environmental governance in Kenya: implementing the framework law 126-142. Okidi, CO & P Kameri-Mbote (2001) The making of a framework environmental law and policy. Odote, C (2012) “Kenya constitutional provisions on the environment” 1 IUCN Academy of Environmental Law 136-145. Odote, C (2013) “The new Environment and Land Court” 4 IUCN Academy of Environmental Law 171-177. Preston, BJ (2005) “The role of the judiciary in promoting sustainable development: the experience of Asia and the Pacific” 9(2&3) Asia Pacific Journal of Environmental Law 109-212. Preston, BJ (2008) “Operating an environment court: the experience of the Land and Environment Court of New South Wales” 25 Environmental and Planning Law Journal 385-409. Preston, BJ (2012) “Benefits of judicial specialization in environmental law: the Land and Environmental Court of New South Wales as a case study” 29(2) Pace Environmental Law Review 396- 440. Pring, G & C Pring (2009) Greening justice: creating and improving environmental courts and tribunals. Rottman, DB (2000) “Does effective therapeutic jurisprudence require specialized courts (and do specialized courts imply specialized judges)?” 37 American Judges Association Court Review 22-27. Stein, P (1997) “A Specialist Environmental Court: An Australian Experience” in D Robinson & J Dunkley (eds) Public interest perspectives in environmental law 255-273. UNEP / United Nations Environment Programme (2005) UNEP global judges programme, at (accessed 31-7-2018). UNEP / United Nations Environment Programme (2012) Advancing jusitce, governance and law for environmental sustainability, at (accessed 31-7-2018). UNGA / United Nations General Assembly (2015) Transforming our world: the 2030 Agenda for Sustainable Development A/RES/70/1, at (accessed 31-7-2018). 357 Chapter 16: Public participation in environmental decision-making in Cameroon – myth or reality? Jean-Claude Ashukem 1 Introduction There seems to be an apparent parallel reality between the legal provision of the right to public participation and its actual implementation in Cameroon. The country’s rules, procedures and processes of public participation in environmental matters are flawed to the extent that they seem to be void of effective participation by local communities. In this regard, it is doubtful whether local communities participate in environmental decision-making at all; or whether their views are ever taken into consideration prior to the implementation of development activities. Several examples are apparent to substantiate this assertion, and these form the focus of this chapter. Two examples are mentioned briefly below by way of introduction. Firstly, several commentators have argued that in the context of forest governance, forest management plans are often approved without due regard to legal prescriptions that provide for public participation by local communities.1 This is contrary to the objective of the Law on Forestry, Wildlife and Fisheries Regulation2 of 1994. Secondly, public participation in decision-making relating to the approval of development activities under the Ordinance on the Management of State Lands3 of 1976 seems flawed. The Ordinance provides for public participation in the guise of the composition of the Land Consultative Board (LCB), but – as will be explored later in the chapter – several problems have been identified regarding the composition and function of this LCB. Examples such as this have led commentators to question whether public participation in environmental matters in Cameroon is a mere symbol of intent rather than a meaningful and powerful right designed to oblige the government to ensure the effective ____________________ 1 Fuo & Semie (2011: 84-85); Alemagi et al. (2013: 9); and Ashukem (2016a: 242). For a detailed critique of the forest management plans in Cameroon, see Cerutti et al. (2008). 2 Law No. 94/01 of 20 January 1994 to lay down Forestry, Wildlife and Fisheries Regulation in Cameroon (Law No. 94/01). 3 Ordinance No. 76/166 of 25 April 1976 laying down the Management of State Lands in Cameroon (Ordinance 76/166). Jean-Claude Ashukem 358 involvement and full participation of local communities in environmental decisionmaking processes.4 The aim of this chapter is to critically appraise the legal framework on public participation in environmental decision-making in Cameroon. It assesses whether it empowers local communities to participate in environmental decision-making processes effectively; and whether or not their views and aspirations are taken into account in the decisions that emanate from these processes. The chapter is organised into four discrete but interrelated parts. Part 2 provides an overview of public participation in environmental decision-making and a synoptic perspective of its provision and use in relevant international and regional legal instruments. Part 3 outlines Cameroon’s relevant legal framework with particular emphasis on the following: the Constitution of the Republic of Cameroon, 1996 (the Constitution); Law No. 94/1 on Forestry, Wildlife and Fisheries Regulation; Ordinance No. 76/166 on the Management of State Lands; Law No. 96/12 on Environmental Management; and Law No. 2003/006 on Biotechnology. Part 4 contains a critical appraisal of Cameroon’s legal framework regarding public participation in environmental decision-making. This is followed by the conclusion and a set of recommendations for improving the current regime. 2 Public participation in environmental decision-making: an overview Generally, public participation is a multi-layered activity that involves participation in decision-making and policy-making, proceedings to challenge the outcome of decision-making and governance processes. Since the 1970s, there have been calls for a ‘bottom-up’ more people-centred approach to socio-economic development,5 and for stronger environmental protection.6 This collectively gave impetus to public agitation for more democratic and participatory approaches in the environmental context.7 Public participation can be divided into two components: capacity building; and the process of participation. Capacity building relates to and focuses on environmental education and raising awareness. The participation process deals with transparent and consultative processes that provide an opportunity for concerned individuals to express their views, linked with some assurance that their views will be taken into account in the final decision-making process.8 Public participation, which must be backed by transparency, access to information, and access to justice, is considered one of the most recognised principles for achieving sustainable development, since it helps to balance the three conflicting and interwoven ____________________ 4 Ashukem (2016a: 247). 5 Spyke (1999: 269); Morrow (2011: 140); and Ashukem (2016a: 128). 6 Barton (2002: 81-83); Kiss & Shelton (2007: 102); and Foster (2008: 225). 7 Ashukem (2016a: 128-129). 8 Du Plessis et al. (2016: 100). Public participation in environmental decision-making in Cameroon – myth or reality? 359 dimensions of sustainable development.9 This has led to public participation becoming an indelible feature of modern environmental regulatory systems. It involves not only the engagement of state entities, but also the role of non-governmental organisations (NGOs), local communities and other interested and affected parties10 in environmental decision-making processes prior to the implementation of development projects impacting on the environment. Legislation in many countries incorporates the principle of public participation as a necessary catalyst to spur environmental protection measures.11 This enables and promotes both state and non-state actors (including local communities and other interested and affected parties) to engage, deliberate and take meaningful decisions relating to the protection of the environment, ultimately seeking to improve the environment for the benefit of both present and future generations.12 At the international level, Principle 10 of the Rio Declaration on Environment and Development13 (1992) provides the basis for the use of a participatory approach in environmental decision-making. It advocates that every person should have access to information, an ability to participate in decision-making processes and access to justice in environmental matters. Similarly, both the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters14 (Aarhus Convention) of 1998 and the Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (Bali Guidelines) of 2010 provide for and reiterate the importance of public participation in environmental decision-making as a necessary catalyst for environmental protection. The Aarhus Convention provides for the right of the public to participate at an early stage in a wide range of environmentally-related activities; places an obligation on public authorities to consider a participatory approach when preparing plans and/or issuing decisions that permit certain activities that may significantly affect the environment; and recognises the need for the public to participate during the preparation of executive regulations and other generally applicable legally binding rules that may ____________________ 9 Segger & Khalfan (2004: 156-158); Segger et al. (2003: 54); Charnovitz (1997: 183); Robinson (2011: 18-19); Steele (2001: 426); and Morrow (2011: 140). 10 Morrow (2011: 139). 11 See, for example: Section 2(4)(f) of the National Environmental Management Act 107 of 1998 (South Africa); Section 2(2)(b) of the Ugandan National Environment Act Cap of 1998; and Section 9(e) of the Law No. 96/12 on Environmental Management in Cameroon. 12 Petkova et al. (2002: 66-67); Ebbesson (2007: 684); and Razzaque (2007: 587). 13 United Nations Conference on Environment and Development (1992) 31 ILM 874. 14 The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matter (1998) 38 ILM 517. Although African states, including Cameroon, are not signatory to the Convention, it provides international benchmarks in terms of the observance and respect for the right to access to information, public participation in decisionmaking and access to justice in environmental matters. Jean-Claude Ashukem 360 have a significant impact on the environment.15 The Bali Guidelines call on states to: ensure, facilitate and provide opportunities for early and effective public participation in environmental decision-making; recognise their responsibility to undertake efforts to ensure proactive public participation operates in a transparent and consultative manner, including efforts to ensure that the concerned are given an adequate opportunity to express their views; ensure that relevant environmental information is made available to the public to facilitate their effective participation in decision-making processes; take due account of public comments received; and make sure that the final decision is made public.16 The Bali Guidelines furthermore call on states to: ensure public participation in review processes of previously unconsidered environmental sensitive issues; consider appropriate ways of ensuring public input into the preparation of legally binding rules that might have a significant effect on the environment and into the preparation of policies, plans and programmes relating to the environment; and finally, to provide measures that encourage and support capacity-building, including environmental education and awareness-raising and measures that serve to promote public participation in environmental decision-making.17 At the African regional level, public participation is enshrined in the African Charter on Human and People’s Rights18 (African Charter) of 1982. It provides a broad approach to public participation and bestows an obligation on state parties to respect the right of all citizens, whether individually or through their chosen representatives, to freely participate in the governance of their country.19 This broad approach to public participation under the African Charter, it is argued, is not limited only to environmental decision-making processes and extends to participation in the formulation of laws, policies and implementation.20 The right has been given serious attention by the African Commission on Human and Peoples’ Rights (African Commission) in the case of Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 2010 (Endorois case),21 where the African Commission stated:22 This duty requires the State to both accept and disseminate information, and entails constant communication between the parties. These consultations must be in good faith, through culturally appropriate procedures and with the objective of reaching an agreement. ____________________ 15 See Articles 6-8 of the Aarhus Convention. Also see Ebbesson (2002: 3); and Kravchenko (2006: 110). 16 Bali Guidelines (2010) 9-11. 17 Bali Guidelines (2010) 12-14. 18 African Charter on Human and People’s Rights (1981) 21 ILM 58. 19 African Charter on Human and People’s Rights (1981), Article 10. 20 Ashukem (2016a: 194). 21 Also see the Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria, African Commission on Human and People’s Rights, Comm. No. 155/92 (2001). 22 Endorois case, para. 289; and Du Plessis et al. (2016: 101). Public participation in environmental decision-making in Cameroon – myth or reality? 361 The African Commission emphasised that an equal bargaining position is a necessary requirement for effective participation and that public participation must include local communities and other interested and affected parties having the opportunity to influence the outcome of a project’s implementation on the environment. In terms of the Endorois case, it follows that merely noting an impending project as a fait accompli would not amount to effective public participation, since the local communities and affected stakeholders would not have had the chance to influence the outcome of the project.23 The essential elements for effective and full public participation in environmental matters for the purposes of this chapter, are those set out in the Endorois case and include: effective public participation before the project is a fait accompli; an equal bargaining position must be established; literacy and an understanding of the project must be promoted; effective public participation must be made in good faith; effective and full participation of local communities has to be based on, and be facilitated by access to information and other procedural entitlements; and measures that facilitate public participation must be culturally sensitive.24 The author has previously distilled relevant characteristic features from relevant international and regional instruments (including soft laws and multilateral environmental treaties) that are necessary for effective public participation in environmental matters.25 It is important to bear in mind that the rationale for public participation is to attempt to influence policies and individual decisions made by government bodies relating to the protection of the environment.26 This concerns, for instance, the ability to have access to, to understand, to evaluate, to formulate and to comment on proposals, plans and programmes that may impact on the environment. Generally, and within an environmental context, public participation takes various forms.27 These include broad-based participation through representative bodies such as NGOs which speak on behalf of individuals and affected communities; and stakeholder participation through which formulated proposals are circulated for comment to parties interested in and affected by a development project.28 It can also take the form of deliberative participation that entails agreeing the rules of decision-making. According to Richardson and Razzaque,29 public participation in environmental decision-making has been rationalised from two perspectives: a process perspective and a substantive perspective. The process perspective is based on the argument that public participation improves the substantive outcome of decision-making; while the substantive perspective supports ____________________ 23 Endorois case, para. 281; and Ashukem (2016a: 128). 24 Endorois case, para. 289; and Ashukem (2016a: 137). 25 Ashukem (2016a: 212-213). 26 Bell & McGillivray (2008: 311). 27 See generally: Arnstein (1969: 216); and Du Plessis et al. (2016: 100). 28 Bell & McGillivray (2008: 311-312); and Arnstein (1969: 216). 29 Richardson & Razzaque (2006: 170). Jean-Claude Ashukem 362 the view that public participation “bolsters the democratic legitimacy of decision-making”.30 The law plays a crucial role in all of these approaches and perspectives, especially as it “creates a structure for participation that helps crystallise and protect environmental objectives”.31 This is because the law stipulates participatory procedures in environmental impact assessment (EIA) processes, for example, and considers public participation a necessary element for effective EIA decision-making. The proper implementation of public participation generally, and in EIA processes in particular, has the potential to ensure and promote environmental justice and human well-being, as it helps to balance the needs of both present and future generations in governmental decisions, to integrate environmental consideration within decisions, and to implement and enforce environmental standards.32 In sum, public participation in environmental decision-making provides a platform where voices meet and are heard. Whether this is the case in Cameroon’s legal framework is considered in the next section of this chapter. 3 The legal framework of public participation in Cameroon Provisions relating to the right to public participation in Cameroon can be found in the Preamble of the Constitution, Law No. 94/1, Law No. 96/12, Law No. 2006/2003 and Ordinance No. 76/166. The relevant provisions of these laws are examined below. 3.1 The Constitution of the Republic of Cameroon, 1996 Although the Constitution of Cameroon has no direct provision on the right to public participation, the right could implicitly be inferred from the Preamble of the Constitution. In terms of Article 65 of the Constitution, the Preamble is part and parcel of the Constitution, with enforceable rights. The Preamble requires the state to harness its land and environmental resources in such a way as would benefit all Cameroonians. Furthermore, in guaranteeing the right to a healthy environment, the Preamble requires that the “protection of the environment shall be the duty and responsibility (emphasis added) of every citizen”. Finally, the Preamble affirms the duty and responsibility of the state to safeguard the effective protection of vulnerable populations, including inter alia, local communities, minority populations and indigenous communities. The foregoing suggests that the participation of the public is essential to ensure effective ____________________ 30 Ibid. 31 Ibid: 167. 32 Birnie & Boyle (2002: 261); Verschuuren (2004); and Ashukem (2016a: 136). Public participation in environmental decision-making in Cameroon – myth or reality? 363 environmental protection, the protection of the rights of vulnerable populations, and the harnessing of land and environmental resources for the benefit and prosperity of all Cameroonians. The reverse would be true if the decision-making processes of largescale land investment activities were void of public participation. 3.2 Law No. 94/01 Section 1 of Law No.