African
Environmental
Law & Policy
hosted by the Africa Program of the
Environmental Law Institute

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Africa projects expand ELI’s international scope
September/October 1999

Responding to requests for ELI expertise, Institute lawyers have begun assisting African nongovernmental and governmental environmental advocates in their efforts to establish or strengthen legal regimes to protect the continent’s ecosystem. The African environment is already one of the most endangered ecosystems in the world, and its leaders are facing a potential quadrupling of population over the next half century.

As is the case with its other international work, ELI’s role is primarily one of assisting local leaders develop more effective institutions and mechanisms to protect or enhance environmental quality. Most African nations are in the process of moving from national environmental policies to environmental laws, having developed framework laws providing authority to develop subsequent legislation.

In May, ELI participated in the conference on access to environmental information in East Africa. The goal of conferees was to launch regional initiatives ensuring the public’s right to information about the environment. In another project with the Uganda Wildlife Society, ELI helped review a draft regulation on access to genetic resources and benefit sharing. And with the IUCN Environmental Law Center, ELI coordinated the peer review process for Ethiopia’s new framework environmental law.

These recent initiatives benefit from over a decade of international environmental law and policy work at the Institute which continues in the Americas, Central and Eastern Europe, and in Asia on the Indian subcontinent.

Senior Attorney Carl Bruch, recently appointed by ELI to direct the new projects in Africa, observes: "Many of the issues facing African environmental advocates are not new. Developing countries in Latin America and Asia, as well as European countries in transition, have had experiences that are directly relevant to Africa." Bruch’s point is readily illustrated: in examining the draft Ugandan regulation on access to genetic resources, for example, ELI capitalized on its recently completed study of similar regimes in the Americas to provide a range of options for substantive, procedural, and institutional provisions. In Ethiopia, when the drafters sought assistance on how to structure penalties for environmental offenses, the Institute provided important insights gained from a report that ELI had conducted for Peru on options for structuring sanctions and incentives, focusing on sanctions regimes in nine countries in North and South America.

Developing and implementing environmental law in Africa brings with it many challenges. Before joining the ELI staff, Senior Attorney Brian Rohan had spent nine months in Uganda advising on the drafting of that nation’s framework environmental law and analyzing the environmental provisions of the draft Ugandan constitution. Rohan recalls that "the Ugandan framework law was far more comprehensive than anything I had encountered in the United States. The problem was the absence of an institutional structure to implement and enforce the law."

Unsurprisingly, these new countries are only starting to address basic rule-of-law issues, let alone environmental issues. The circumstances of independence demanded a focus on economic development. After the centralized legacy of the colonial period, many countries are finding decentralization works better to promote sustainable development at the local level. As a result, governments are wrestling with the appropriate role of a national environmental agency vis-à-vis local governments, as well as other national ministries. In some countries, such as Uganda, decentralization is a practical and political matter, but in federal countries such as Ethiopia and Nigeria, decentralization is a complex constitutional matter.

Many African nations are starting to develop basic procedural protections for the public in managing the environment. Governmental and nongovernmental organizations are exploring access to information, public participation in decisionmaking processes, and access to judicial redress — all elements of the U.S. Administrative Procedure Act, but generally foreign to national governments that traditionally view information as a source of power that is to be hoarded. Nevertheless, strong public participation traditions at the local community level may provide an opportunity for developing national mechanisms for public participation. African advocates also are considering the possibilities of developing and promoting a regional or subregional convention modeled on the 1998 Aarhus Convention on access to information, public participation, and access to justice in environmental matters.

The greatest challenge for developing African environmental law and policy is the lack of resources. Of the poorest ten countries in the world, eight are in Africa, and Africa includes 29 of the 34 countries that the United Nations ranked lowest in terms of human development, accounting for income, life expectancy, and education. Kifle Lemma, a respected Ethiopian environmental attorney, noted that, "Ethiopia feels that all we need is the financial resources to develop and implement the necessary changes."

Ultimately, environmental protection in Africa depends on Africans. Thus, ELI seeks not only to develop strong environmental laws that can be successfully implemented, but also to develop the capacity to address environmental problems locally. As part of that effort, ELI has had four environmental lawyers from African nations as Visiting Scholars over the past several months: Anne Angwenyi from Kenya, Wole Coker from Nigeria, Abani Ibrahim from Niger, and Christine Nanyonjo from Uganda. The Institute’s Visiting Scholars program helps it to establish strong relationships with individual attorneys in other nations while drawing on their expertise for projects such as those described above. ELI continues to work with many of the Scholars after they return to their homelands.

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