African Perspectives on Environmental Law Dr. Chifundo J. Kachale Judge, High Court of Malawi

Introduction Environmental Protection is a direct expression of the Sustainable Development discourse. Economic Development should take place without undermining Environmental Protection

A Matter of Emphasis? Developed World: Sustainability refers to ability to Maintain a desired condition…(i.e. Environment paramount) Developing world: Sustainability refers to ability to maintain & ACHIEVE a desired condition…… (i.e. Social Economic Development paramount)

Sometimes Context Matters… “Simply transplanting models of environmental law developed in the North to Africa may not always work since institutional conditions, the nature of the typical environmental problems, and the level of development in many African countries may simply be different…” Faure & du Plessis (2011), The Balancing of Interests in Environmental Law in Africa (PUP)

Some Specific African Issues Different Physical Conditions Varying Levels of (economic) Development Institutional Challenges Cultural Differences

Physical Conditions & Economic Development Deforestation and Desertification more prevalent than industrial pollution Resulting in Water Shortages…. Abundant biodiversity Agricultural activities of different scale

Institutional Challenges Absence of strong and established democratic traditions Weak Administrative Systems Limited Human Capital (to develop policy + enforce legislation) Poverty may compromise enforcement (producing collusion + corruption) Susceptible to exploitation by MNCs

Cultural Differences Legal systems differ due to varied colonial heritage Several countries have mixed jurisdictions Some jurisdictions integrate traditional governance structures in environmental management….raising peculiar challenges….

Levels of Recognition of Environmental Right Jurisprudential (Judicial Activism?) Statutory Constitutional: Directive Substantive

Interesting Models of Protection Botswana (Okavango Delta) (informed public participation in wildlife conservation) Tanzania (ecotourism): economic development & eco-protection ‘harmonized’

Conflict between Nature & Man? EP may conflict with protection of indigenous communities: (Court in Botswana decided that protection of wildlife in Central Kalahari Game Reserve could not trample the interests of the Basarwa or San). Mining and oil exploration, land degradation, and unsustainable farming practices (Uranium Mining, Paladin Africa….)

Tools used for Enforcement Environmental Permitting: licensing processes may offer real opportunity for setting standards Environmental Impact Assessments: exist on paper without corresponding political will or technical capacity for implementation. Market-based instruments: (Mauritius, Environ Protection Fee)

Systemic Limitations? Access to Environmental Information: opaque systems render it impractical to expect public to demand more Public Participation: MNCs (or lobbyists) may sideline the affected communities) Access to Justice: locus standi, prohibitive cost of litigation Institutional Capture:…dominant economic interests may stifle genuine ‘independence of decision-makers’

Rare Opportunities International Treaties: Art 24 ACHPR Constitutional Guarantees/Recognition: opportunity for upholding EP (Comparable) Framework Environmental Legislation: room for sharing experiences (Ethiopia) Customary Law: some traditional norms promote civic participation in EP

Concluding Thoughts… The need for EP is beyond Question….balance between EP and ED not easy one… Legal interventions offer most durable intervention Need to create a training package that recognizes unique aspects of individual African jurisdictions.