Fi­nally, a bio­di­ver­sity law that has teeth

Fi­nally, the con­ti­nent has a set of laws — the Ma­puto Con­ven­tion — that ≥ecog­nises the ≥ight to a sat­is­facto≥y envi≥on­ment, and the peo­ple’s ≥ight to de­vel­op­ment

The East African - - FRONT PAGE - By WILLEM DANIEL LUBBE The Con­ver­sa­tion

Ma­puto Con­ven­tion p≥otects the envi≥on­ment and peo­ple’s ≥ights

Africa is known for its rich bio­di­ver­sity. On a con­ti­nent where peo­ple de­pend on this bio­di­ver­sity for their liveli­hood, the ques­tion of how an­i­mals and plants that live on it will be pro­tected re­mains cru­cial. A dif­fi­cult ques­tion to a lofty ideal. Mak­ing lead­ers ac­count­able for na­tional en­deav­ours af­fect­ing the en­vi­ron­ment is a good start.

In 2016, the 2003 Re­vised African Con­ven­tion on the Con­ser­va­tion of Na­ture and Nat­u­ral Re­sources, oth­er­wise known as the Ma­puto Con­ven­tion, came into force. This is a doc­u­ment ex­clu­sively adopted for the African con­ti­nent.

Why has it taken 13 years to en­ter into force? The most ob­vi­ous rea­son is that it con­tains strong pro­vi­sions that could cre­ate ac­count­abil­ity and also slow down so­cial and eco­nomic de­vel­op­ment.

Dur­ing colo­nial rule, Africa had two re­gional con­ven­tions geared to­wards con­ser­va­tion. The first, the Con­ven­tion on Preser­va­tion of Wild An­i­mals, Birds and Fish in Africa, was es­tab­lished in 1900. This was prac­ti­cal and looked at con­trol­ling wildlife har­vest­ing at the time. But sig­na­to­ries did not rat­ify it and it never came into force.

A sec­ond at­tempt was the Con­ven­tion Rel­a­tive to the Preser­va­tion of Fauna and Flora in their Nat­u­ral State, which came into force in 1936. As the name in­di­cates, plant-based re­sources were in­cluded here. Akin to the first con­ven­tion, the use of an­i­mals and plants by peo­ple was a pri­mary con­cern.

After de­coloni­sa­tion and In­de­pen­dence, a new con­ser­va­tion doc­u­ment was needed, one that looked after the needs of the peo­ple. This re­sulted in the 1936 Con­ven­tion be­ing re­vised with the help of Unesco and other bod­ies. It also re­sulted in the 1968 African Con­ven­tion of the Con­ser­va­tion of Na­ture and Nat­u­ral Re­sources, or the Al­giers Con­ven­tion.

Even though this con­ven­tion was lauded, it did not have enough teeth to en­force what was in it, so, var­i­ous at­tempts were made to

re­vise it. Even­tu­ally, in 2003, the Ma­puto Con­ven­tion was adopted. It is the first re­vi­sion of Africa’s en­vi­ron­men­tal frame­work law in 48 years. This event pro­vides a much-needed in­jec­tion of con­tem­po­rary en­vi­ron­men­tal norms into African en­vi­ron­men­tal law.

The Ma­puto Con­ven­tion con­tains a num­ber of new pro­vi­sions but, im­por­tantly, it con­tains pro­gres­sive con­tent. The main dif­fer­ence be­tween the Ma­puto Con­ven­tion and its pre­de­ces­sors is its po­ten­tial to en­force the con­ven­tion. Com­ple­ment­ing this is its recog­ni­tion of sus­tain­able de­vel­op­ment and the con­cept of sus­tain­able use.

Also, the recog­ni­tion of preven­tion and pre­cau­tion as a fun­da­men­tal obli­ga­tion is in pace with the im­por­tance of na­ture as a fi­nite re­source. There is a clear move away from pure util­i­tar­i­an­ism as con­tained in the 1900 and 1933 con­ven­tions.

But the Ma­puto Con­ven­tion’s strong pro­vi­sions could, iron­i­cally, be its down­fall. His­tory shows that re­gional le­gal in­stru­ments con­tain­ing strict en­force­able pro­vi­sions get shunned by mem­ber states. Proof of this is found in the fact that it took 13 years for 16 mem­ber states to rat­ify the Con­ven­tion. This may be due to po­ten­tial ac­count­abil­ity as well as a per­ceived idea that de­vel­op­ment will suf­fer set­backs.

The Con­ven­tion in­cludes the right to a sat­is­fac­tory en­vi­ron­ment, a right to de­vel­op­ment and the con­cept of sus­tain­able de­vel­op­ment. Th­ese are guid­ing prin­ci­ples that in­clude mod­ern en­vi­ron­men­tal ap­proaches.

An­other pro­gres­sive in­clu­sion is the “fun­da­men­tal obli­ga­tion,” where par­ties are obliged to fol­low pre­ven­tive and pre­cau­tion­ary ap­proaches. They must take into ac­count the in­ter­ests of present and fu­ture gen­er­a­tions.

The recog­ni­tion of mil­i­tary and hos­tile ac­tiv­i­ties as harm­ful to the en­vi­ron­ment is also new and pro­gres­sive. This was not the case in the pre­de­ces­sors and the in­clu­sion is wel­come since Africa suf­fers many in­ter­nal con­flicts.

Ac­cord­ing to the Con­ven­tion, steps must be taken by states to en­sure that the en­vi­ron­ment is not harmed in con­flict. But when it is harmed, par­ties must re­store and re­ha­bil­i­tate the dam­aged ar­eas.

The Ma­puto Con­ven­tion places a duty on states to adopt mea­sures that are leg­isla­tive and reg­u­la­tory for the spread­ing of en­vi­ron­men­tal in­for­ma­tion. There must be ac­cess to this in­for­ma­tion, pub­lic par­tic­i­pa­tion in mat­ters with a po­ten­tially sig­nif­i­cant en­vi­ron­men­tal im­pact, and ac­cess to jus­tice.

Trans-boundary is­sues

A fi­nal right is given to peo­ple af­fected by trans-boundary is­sues as to those where the con­flict be­gan. This means that peo­ple may have ac­cess to jus­tice where their own ju­di­cial sys­tem may not be able to help them.

The Ma­puto Con­ven­tion also recog­nises the im­por­tance of the peo­ple and aims to em­power through ed­u­ca­tion and train­ing as well as the recog­ni­tion of tra­di­tional rights of lo­cal com­mu­ni­ties and in­dige­nous knowl­edge.

There is a ded­i­cated sec­tion reg­u­lat­ing the re­la­tion­ship be­tween sus­tain­able de­vel­op­ment and nat­u­ral re­sources. In so do­ing, a man­date is placed to en­sure that de­vel­op­ment is sus­tain­able.

One of the big­gest draw­backs of the Al­giers Con­ven­tion was that it had no power to en­force laws. By es­tab­lish­ing both a Con­fer­ence of Par­ties as well as a sec­re­tar­iat for im­ple­men­ta­tion and ad­min­is­tra­tion, the Ma­puto Con­ven­tion can en­force its pro­vi­sions.

Ac­cord­ing to this pro­vi­sion, sig­na­to­ries must de­velop and adopt rules, pro­ce­dures and in­sti­tu­tional mech­a­nisms to deal with dam­age and com­pen­sa­tion.

It is, how­ever, not clear whether th­ese bod­ies have been es­tab­lished yet. Th­ese pro­vi­sions give it the teeth needed to po­ten­tially make it a suc­cess­ful and ef­fec­tive ad­di­tion to en­vi­ron­men­tal law in Africa.

Con­sid­er­ing that the Al­giers Con­ven­tion re­mains in force for

r states, the ef­fi­cacy of the o Con­ven­tion re­mains to . This is es­pe­cially true in f the fact that only 30 per African states have rat­i­fied puto Con­ven­tion to date. Africa, Le­sotho, An­gola, a, Chad, Burk­ina Faso and i have rat­i­fied it while and grow­ing economies tswana, Egypt, Equa­to­rial , Nige­ria, Libya and Gabon ot.

De­spite the un­cer­tain­ties of how ef­fec­tive it will be, the Ma­puto Con­ven­tion is bound to have some in­flu­ence on African states. It may even be­come a topic in the African ju­di­cial sys­tem, which may greatly con­trib­ute to re­gional en­vi­ron­men­tal ju­rispru­dence. Willem Daniel Lubbe is a lec­turer in re­gional en­vi­ron­men­tal law, North-west Univer­sity, South Africa.

A for­est in DR Congo’s North Kivu re­gion de­stroyed for char­coal. Be­low, Con­golese fam­i­lies flee the con­flict to Uganda. Pic­tures: AFP

Newspapers in English

Newspapers from Kenya

© PressReader. All rights reserved.