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

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

3. 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)

4. 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)

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

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

7. 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

8. 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….

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

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

11. 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….)

12. 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)

13. 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’

14. 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

15. 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.