Africa’s am­bi­tious new bio­di­ver­sity laws have teeth and will pro­tect peo­ple

Pretoria News Weekend - - NEWS - WILLEM DANIEL LUBBE

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

Last year, 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 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 was es­tab­lished in 1900 and was called the Con­ven­tion on the Preser­va­tion of Wild An­i­mals, Birds, and Fish in Africa. 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. This con­ven­tion en­tered 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 Al­giers Con­ven­tion.

Even though this con­ven­tion was lauded, it did not have enough teeth to en­force what was in it.

As a re­sult, 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.

It has a num­ber of new pro­vi­sions, but im­por­tantly it also con­tains pro­gres­sive con­tent. The main dif­fer­ence be­tween the Ma­puto Con­ven­tion and its pre­de­ces­sors is its po­ten­tial to be en­forced. 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 place 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, iron­i­cally, could be its down­fall. His­tory shows that re­gional le­gal in­stru­ments con­tain­ing strict en­force­able pro­vi­sions get shunned by mem­ber states. Proof of this is 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 in­cludes mod­ern en­vi­ron­men­tal ap­proaches.

An­other pro­gres­sive in­clu­sion is the “fun­da­men­tal obli­ga­tion” where par­ties are obliged to fol­low pre­ven­ta­tive 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 wel­comed since Africa suf­fers from many in­ter­nal con­flicts. Ac­cord­ing to the con­ven­tion, steps must be taken by states to en­sure 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.

A fi­nal right is given to peo­ple af­fected by trans-boundary is­sues as it is given 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 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 can, how­ever, not be de­ter­mined 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 mem­ber states and not yet the Ma­puto Con­ven­tion, the ef­fi­cacy of it re­mains to be seen. This is es­pe­cially true in light of the fact that only 30% of African states have rat­i­fied the Ma­puto Con­ven­tion to date.

Some prom­i­nent coun­tries that have rat­i­fied the con­ven­tion in­clude South Africa, Le­sotho, An­gola, Rwanda, Chad, Burk­ina Faso and Bu­rundi. Coun­tries with large and grow­ing economies that have not yet rat­i­fied the Con­ven­tion in­clude Botswana, Egypt, Equa­to­rial Guinea, Nige­ria, Libya and Gabon.

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.

– The Con­ver­sa­tion Africa ● Lubbe is a lec­turer in Re­gional En­vi­ron­men­tal Law at North-West Univer­sity.

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