LINKING ENVIRONMENTAL PROTECTION AND POVERTY REDUCTION IN.pdf

7/28/2019 LINKING ENVIRONMENTAL PROTECTION AND POVERTY REDUCTION IN.pdf

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LEADLaw

Environment and

Development

Journal

VOLUME

6/2

LINKING ENVIRONMENTAL PROTECTION AND POVERTY REDUCTION IN

AFRICA: AN ANALYSIS OF THE REGIONAL LEGAL RESPONSES TO

ENVIRONMENTAL PROTECTION

Emeka Polycarp Amechi

ARTICLE


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LEAD Journal (Law, Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

School of Law, School of Oriental and African Studies (SOAS) - University of Londonand the International Environmental Law Research Centre (IELRC).

LEAD is published at www.lead-journal.orgISSN 1746-5893

The Managing Editor, LEAD Journal, c/o International Environmental Law Research Centre (IELRC), International EnvironmentHouse II, 1F, 7 Chemin de Balexert, 1219 Chtelaine-Geneva, Switzerland, Tel/fax: + 41 (0)22 79 72 623, [email protected]


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This document can be cited asEmeka Polycarp Amechi, Linking Environmental Protection and Poverty Reduction in Africa:

An Analysis of the Regional Legal Responses to Environmental Protection,6/2Law, Environment and Development Journal(2010), p. 112,available at http://www.lead-journal.org/content/10112.pdf

Emeka Polycarp Amechi, Unit 27, the Bridles, Douglas Crescent, Sundowner, Johannesburg, 2161, SouthAfrica, Email: [email protected]

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

* PhD (Wits). Barrister and Solicitor of the Supreme Court of Nigeria. This article is gleaned from chapter two of my PhDthesis titled The Millennium Development Goals and National and International Policy Reform: Realising the Right to a Healthy

Environment in Africa.

ARTICLE

LINKING ENVIRONMENTAL PROTECTION AND POVERTY

REDUCTION IN AFRICA: AN ANALYSIS OF THE REGIONALLEGAL RESPONSES TO ENVIRONMENTAL PROTECTION

Emeka Polycarp Amechi*


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TABLE OF CONTENTS

1. Introduction 114

2. Regional Attempts to Address Environmental Concerns 115

3. Normative Legal Frameworks 1193.1 The African Convention on the Conservation of Nature and

Natural Resources (Algiers Convention) 1193.2 African Charter on Human and Peoples Rights and the Protocol

on Womens Rights in Africa 1213.3 The Bamako Convention on the Ban of the Import into Africa and

the Control of Transboundary Movement and Management ofHazardous Wastes within Africa 125

3.4 Revised African Convention on the Conservation of Nature andNatural Resources 126

4. Conclusion 128


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1INTRODUCTION

The Environmental Action Plan of the NewPartnership for Africas Development (NEPAD-EAP) identifies poverty as the main cause andconsequence of man-made environmental

degradation and resource depletion in Africa.1

Poverty is multidimensional,2 and goes beyond lackof income to include as proposed by the UnitedNations Development programme (UNDP), thedenial of opportunities and choices most basic tohuman development - to lead a long, healthy, creativelife and to enjoy a decent standard of living, freedom,dignity, self-esteem and the respect of others.3 Inessence, poverty is not only about economicdisempowerment, but also involves political, social,environmental and cultural disempowerments.4

Environmental degradation and poverty areinextricably intertwined.5 The consequence of thislinkage is a vicious cycle in which poverty causesthe degradation of the environment, and suchdegradation in turn perpetuates more poverty.6 Asaptly observed by Fabra poverty andenvironmental degradation are often bound togetherin a mutually reinforcing vicious cycle, and thushuman rights abuses related to poverty can be bothcause and effects of environmental problems.7

It follows that if poverty is the main cause ofenvironmental degradation in Africa, then policies,programmes and legal provisions (regulations,bylaws, rules etc) designed to protect theenvironment in the region will be unsuccessfulwithout a significant improvement in the livingstandards, wellbeing and livelihoods of the poor.8

However, this is not an exclusive relationship as theprotection of the environment is vital to theachievement of poverty reduction in Africa.9 Thisis due to the fact that the poor in Africa, who aremostly found in the rural areas of the region, are

basically reliant on resources obtainable from theirenvironment for sustenance, and hence, are severelyaffected by environmental degradation.10 As aptlystated by Kante, for the poor, nature offers a seriesof goods of inestimable value, on which they dependabsolutely: That sums up their life. Environmentaldamage, which represents a financial loss for the rich,

Law, Environment and Development Journal

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1 Se e New Partnership for Africas Development(NEPAD), Action Plan of the Environment Initiative of

the New Partnership for Africas development, 2003, para23, available at http://www.unep.org/roa/Amcen/docs/publications/ActionNepad.pdf.

2 For a comprehensive treatment of the nature, dimensionand manifestation of poverty,seeFocus on Global South,Antipoverty or Anti Poor? The MillenniumDevelopment Goals and the Eradication of ExtremePoverty or Hunger,2003, available at www.un-ngls.org/orf/Anti%20Poverty%20or%20Anti%20Poor.pdf.

3 United Nations Development Programme (UNDP),Human Deve lopment Report: Human Deve lopment toEradicate Poverty 5 (Geneva: UNDP, 1997).

4 SeeWorld Resources Institute et al, The Wealth of the Poor- Managing Ecosystems to Fight Poverty 6 (Washington DC:WRI, , 2005); Sonja Vermuelen, Reconciling Global and

Local Priorities for Conservation and Development, inDilys Roe ed., Mil lenniu m Dev elopm ent Goa ls andConservation: Managing Natures Wealth for Societys Health74 (London: IIED, 2004); Dilys Roe and Joanna ElliotMeeting the MDGsIs Conservation Necessary, in DilysRoe ed.,Millennium Development Goals and Conservation:

Managing Natures Wealth for Societys Health 13 (London:IIED, 2004); Genevieve Renard Painter, Gender, MillenniumDevelopment Goals, and Human Rights in the Contextof the 2005 Review Processes19 (Report for Gender andDevelopment Network, October 2004), available atwww.choike.org/documentos/mdg_women2004.pdf; andCenter for Human Right and Global Justice, HumanRights Perspective on the Millennium Development Goals18 (New York: Center for Human Right and Global

Justice, 2003), available at http://www.chrgj.org/images/

NYUCHRGJMDGREPORT2003.pdf.

5 SeeNew Partnership for Africas Development,note 1above, Para 1.43.

6 Id., para 3. See also Walter V. Reid et al. MillenniumEcosystem Assessment: Ecosystem & Human Well-Being:Synthesis 62 (Washington DC: Island Press, 2005).

7 Adriana Fabra, The Intersection of Human Rights andEnvironmental Issues: A Review of InstitutionalDevelopment at International Level (Background Paperprepared for Joint UNEP-OHCHR Expert Seminar onHuman Rights and the Environment,Geneva, 14-16

January 2002), available at http://www2.ohchr.org/english/issues/environment/environ/bp3.htm.

8 SeeNew Partnership for Africas Development, note 1above.

9 SeeReid et al,note 6 above at 40; and International FoodPolicy Research Institute, Ending Hunger in Africa:Prospects for the Small Farmer 2 (Washington, DC:International Food Policy Research Institute, 2004).

10Id. at 61. See also Jennifer C. Mohamed-Katerere & MayarSabet, Af ri ca n En vi ro nm en ta l Ou tl oo k 2: Ou r

En vi ronm en t, Ou r We al th 13 (United Nations

Environment Programme (UNEP), 2006).
http://www.unep.org/roa/Amcen/docs/publications/ActionNepad.pdfhttp://www.unep.org/roa/Amcen/docs/publications/ActionNepad.pdfhttp://www.un-ngls.org/orf/Anti%20Poverty%20or%20Anti%20Poor.pdfhttp://www.un-ngls.org/orf/Anti%20Poverty%20or%20Anti%20Poor.pdfhttp://www.un-ngls.org/orf/Anti%20Poverty%20or%20Anti%20Poor.pdfhttp://www.un-ngls.org/orf/Anti%20Poverty%20or%20Anti%20Poor.pdfhttp://www.chrgj.org/images/NYUCHRGJMDGREPORT2003.pdfhttp://www.chrgj.org/images/NYUCHRGJMDGREPORT2003.pdfhttp://www2.ohchr.org/english/issues/environment/environ/bp3.htmhttp://www2.ohchr.org/english/issues/environment/environ/bp3.htmhttp://www2.ohchr.org/english/issues/environment/environ/bp3.htmhttp://www.chrgj.org/images/NYUCHRGJMDGREPORT2003.pdfhttp://www.un-ngls.org/orf/Anti%20Poverty%20or%20Anti%20Poor.pdfhttp://www.unep.org/roa/Amcen/docs/publications/ActionNepad.pdf


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is a much more serious matter for the poor, leadingto the loss of their livelihood.11 Therefore, it canbe argued that any sustainable approach to thereduction of poverty in Africa requires animprovement of the natural resource base uponwhich most of the poor are dependent on.12 Thisargument has been recognised by various expertswith regard to the realisation of the MillenniumDevelopment Goals (MDGs), a poverty reductionstrategy that seeks to improve the well-being and

livelihood of the poor in Africa.13 The MDGs arenow generally accepted as a blueprint for povertyreduction and overall sustainable development ofdeveloping countries in the 21st century.14

In view of the mutual linkage betweenenvironmental protection and poverty reduction inAfrica, the question is to what extent do the variouslegal interventions for the protection of theenvironment in Africa recognise this linkage bypromoting poverty reduction and socio-economicdevelopment as integral aspect of their objective ofensuring environmental protection in the region.

This is very important as the enforcement of theselegal instruments is vital to the protection of theenvironment in Africa, which in turn, could givezest to the quest to achieve poverty reductionsinitiatives like the MDGs in the region. This enquirystarts with a discussion of the regional attempts to

address environmental concerns in Africa. This isvery important as it will shed light not only on thevarious interventions instituted to protect theenvironment in Africa, but also, the underlyingprinciple of environmental protection in the region.This will be followed by an analysis of the legalinstruments for the protection of the environmentin Africa to determine their linkage with povertyreduction. The focus will be limited only to regionalenvironmental instruments. Finally, this article is

concluded with the recommendation that since theselegal instruments aim inter alia to promote povertyreduction and socio-economic development inAfrica, African governments should promote theirimplementation as a means of enhancing theachievement of poverty reduction initiatives suchas the MDGs in the region.

2REGIONAL ATTEMPTS TO ADDRESSENVIRONMENTAL CONCERNS

The first regional attempt to address environmentalconcerns in Africa was the adoption of the AfricanConvention on the Conservation of Nature andNatural Resources, by the defunct Organisation ofAfrican Unity (OAU) on 15 September 1968 atAlgiers, Algeria.15 It should be noted that while theadoption of the Convention by the then newlyindependent African nations constituted the firstregional attempt to address environmental concernsin the region, it was not the start of environmentalprotection in Africa as the protection of theenvironment was an integral part of the religious,cultural and social life of Africans before theircolonisation and subsequent independence.16 This

Linking Environmental Protection and Poverty Reduction in Africa

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11 SeeBakary Kante, The Environment, the wealth of thepoor?,Poverty & Environment Times No. 2 March 2004.

12 SeeReid et al., note 6 above at 49 & 61; Mohammed-Katerereet al., note 10 above at 90and Sue Mainka, Jeff McNeely& Bill Jackson, Depend on Nature : Ecosystem Services

supporting Human Livelihoods16-17(Gland: IUCN, 2005).13 Grained from the Millennium Declaration adopted at the

Millennium Summit in September 2000 (UN Doc. A/Res/55/2, 18 September 2000). The MDGs are eightdevelopment goals with time-bound and quantified targetswere grained from the provisions of the MillenniumDeclaration, adopted at the Millennium Summit inSeptember 2000. The goals are eradicating extreme povertyand hunger; achieving universal primary education;promoting gender equality, reducing child mortality;improving maternal health; combating HIV, Malaria andother diseases; ensuring environmental sustainability; anddeveloping a global partnership for development.

14 See United Nations, Millennium Development GoalsReport 2005, 3 (New York: United Nations, 2005) andUN Millennium Project, Investing in Development: APractical Plan to Achieve the Millennium Development

Goals 2-4 (Geneva: UNDP, 2005).

15 African Convention on the Conservation of Nature andNatural Resources, Algiers, 15 September 1968, OAUDoc. No. CAB/LEG/24.1.

16 SeeEmeka Polycarp Amechi, Enhancing EnvironmentalProtection and Socio-Economic Development in Africa:A Fresh Look at the Right to a General SatisfactoryEnvironment under the African Charter on Human andPeoples Rights, 5 (1) La w, En vi ro nm en t an d

Development Journal62-63 (2009).


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was evident in the adoption of environmentalconservation and management practices such as thedesignation of sacred forests, groves, rivers, andanimals; designated market periods and locations;designated bathing and laundry places in streams andrivers; and prohibition of defecating or urinating invillage amenities like roads, rivers and stream.17 Thesepractices which to a certain extent, account for thepristine condition of the natural environment in Africabefore colonisation, were based on the traditional

African notion of the unity of humanity and nature,and therefore, emphasised conservation andsustainable utilisation of natural resources by man.18

However, the potential of these ancient Africanpractices in curtailing environmental degradationwas weakened by colonisation. This is due to thefact that the efficacy of these practices is heavilydependent on the inhabitants of these rural townsand villages existing as a homogenous unit. Withcolonisation, came the transformation of hithertorural towns into urban areas. It also brought aboutmigration to urban areas in search of better income.

The development of urban areas and the subsequentrural-urban migration contributed to culturaldisintegration of both urban and rural areas withadverse consequence for the environment, astraditions that honour nature and maintain the man/nature balance were gradually eroded.19 In addition,Christianity, which is closely associated withcolonisation, introduced a system of beliefs thatquestioned the religious basis of these practices andtheir enforcement institutions as their sustainingsystem of beliefs, taboos, myths and totems werebranded as ungodly.20 Furthermore, colonialism

led to the establishment of formal administrativestructures that took over the administration ofAfricas natural resources from the traditionalsystem. However, such administrations were meantprincipally to serve the interest of foreign merchantsand their home governments in the exploitation ofAfricas natural resources and not in their sustainableuse and management.21 As observed by Boahen [the]main raison detre [of colonialism] was the ruthlessexploitation of human and material resources of the

African continent to the advantage of the ownersand shareholders of expatriate companies andmetropolitan governments and their manufacturingand industrial firms.22

The colonial governments did make efforts to arrestthe rapid degradation of the environment bypromulgating environmental regulations at theregional and national levels. However, theseregulations were sectoral as they addressed onlyspecific natural resources valuable to the colonialadministrations.23 Also, they were mostly use-oriented as their specific focus is on the allocation

and exploitation of natural resources rather thanmanagement.24 For example, in the area of wildlifeconservation, their efforts were limited to thepreservation of game stocks that are increasinglybeing depleted at an alarming rate, in order toguarantee continuing access to such species by elitewhite hunters.25 For environmental issues otherthan natural resources conservation, the colonialadministrations took a rudimentary approach tosuch issues by treating them as merely involvingenvironmental sanitation or purely a health


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17Id. at 62.18Id. at 63.19 SeeAfrican Conservancy, The Environmental and Cultural

Disintegration of Africa, available at http://www.africanconservancy.org/about/documents/Problem_1206.pdf and G.O. Anoliefo, O.S. Isikhuemhen& N.R. Ochije, Environmental Implications of theErosion of Cultural Taboo Practices in Awka-South LocalGovernment Area of Anambra State, Nigeria: 1. Forest, Trees,and Water Resource Preservation, 16Journal of Agriculturaland environmental Ethics 281, 282-283 & 285 (2003).

20 See James C. Murombezi, Pre-colonial and ColonialConservation Practices in Southern Africa and theirLegacy Today, 2003, available at http://dss.ucsd.edu/~ c c g i b s o n / d oc s / M u r o m b e dz i % 2 0 - % 2 0 P r e -

colonial%20and%20Colonial%20Origins.pdf.

21 Se e John Agbonifo, The Colonial Origin andPerpetuation of Environmental Pollution in thePostcolonial Nigerian State, available at http://lilt.ilstu.edu/critique/fall2002docs/jagbonifo.pdf.

22 Quoted in Agbonifo, note 21 above.23 For example, the 1933 London Convention (Convention

Relative to the Preservation of Fauna and Flora in theirNatural State) adopted by Africas colonial masters andwhich entered into force on 14 January 1936, has as itsmain objective the preservation of plants and animalspecies that are valuable and popular with trophy hunters.

24 SeeInternational Union for Conservation of Nature,AnIn tr od uc ti on to th e Af ri ca n Co nv en ti on on th eConservation of Nature and Natural Resources (Gland:IUCN, IUCN Environmental Policy and Law Paper No.56, 2004).

25 SeeMurombezi, note 20 above at 6-11.
http://www.africanconservancy.org/about/documents/Problem_1206.pdfhttp://www.africanconservancy.org/about/documents/Problem_1206.pdfhttp://www.africanconservancy.org/about/documents/Problem_1206.pdfhttp://www.africanconservancy.org/about/documents/Problem_1206.pdfhttp://www.africanconservancy.org/about/documents/Problem_1206.pdfhttp://www.africanconservancy.org/about/documents/Problem_1206.pdfhttp://www.africanconservancy.org/about/documents/Problem_1206.pdfhttp://dss.ucsd.edu/~ccgibson/docs/Murombedzi%20-%20Pre-colonial%20and%20Colonial%20Origins.pdfhttp://dss.ucsd.edu/~ccgibson/docs/Murombedzi%20-%20Pre-colonial%20and%20Colonial%20Origins.pdfhttp://dss.ucsd.edu/~ccgibson/docs/Murombedzi%20-%20Pre-colonial%20and%20Colonial%20Origins.pdfhttp://lilt.ilstu.edu/critique/fall2002docs/jagbonifo.pdfhttp://lilt.ilstu.edu/critique/fall2002docs/jagbonifo.pdfhttp://lilt.ilstu.edu/critique/fall2002docs/jagbonifo.pdfhttp://dss.ucsd.edu/~ccgibson/docs/Murombedzi%20-%20Pre-colonial%20and%20Colonial%20Origins.pdfhttp://www.africanconservancy.org/about/documents/Problem_1206.pdf


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problem.26 Thus, for complex environmental issueslike poisonous or hazardous wastes emanating fromthe activities of transnational companies that pollutethe air, water and land, there were little or nolegislative efforts by the colonial administration tocontrol them.27

At independence, the protection of the environmentdid not feature much in the agenda of most Africancountries as principal emphasis was placed on

economic development, which most often wasundertaken without due regard to the negative effectson the environment.28 The scant regard for theenvironment was also evident at the regional levelas the Charter of the now defunct Organisation ofAfrican Unity (OAU) formed by newly independentAfrican States on 25 May 1963, made no expressreference to environmental protection.29 Whatcould be construed as implied references toenvironmental protection can be seen in the thirdpreambular paragraph of the Charter that speaks ofthe duty of African leaders to harness the naturaland human resources of our continent for the total

advancement of our peoples in all spheres of humanendeavours30 and the objective of the OAU to

coordinate and intensify their cooperation andefforts to achieve a better life for the peoples ofAfrica.31 The OAU sought to change this state ofaffairs in 1968 by adopting the Algiers Convention,32

in an attempt to address Africas environmentalconcerns.33

However, the adoption of the Convention whilemarking the beginning of a formal attempt by thenewly independent African nations to address

environmental concerns in the region did not havethe anticipated effects of stimulating furtherenvironmental developments either at the regionalor national levels in Africa, where most nations untilrecently, lacked comprehensive environmentalregulatory frameworks.34 The late 1980 and 1990switnessed an increase in environmentalconsciousness on the part of African leaders, as theybecame increasingly aware of the actual and potentialnegative effects of persistent degradation of theenvironment and natural resources on human healthand well-being.35 Several factors were responsiblefor this increase in environmental consciousness.

These include the United Nations Conference onthe Human Environment, 1972 and subsequent


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26 SeeE.O. Akanki, Air Pollution Control Law, in J.A.Omotola ed., Environmental Law in Nigeria IncludingCompensation 202 (Lagos: University of Lagos, Facultyof Law, 1990).

27 SeeAgbonifo, note 21 above at 6; L. Feris, The AsbestosCrisis-the Need for Strict Liability for EnvironmentalDamage,Acta Juridica 289-291 (1999) and Raewyn Peart& Jessica Wilson, Environmental Policy-making in theNew South Africa, 5 SAJELP238 (1998).

28 SeeIfeanyi Anago, Environmental Impact Assessment asa Tool for Sustainable Development: The NigerianExperience (paper prepared for FIG XXII InternationalCongress, Washington D.C., USA, 19-26 APRIL 2002),available at http://www.fig.net/pub/fig_2002/Ts10-3/TS10_3_anago.pdf and Shadrack W. Nasongo & WilfredN. Gabsa, Environmental Policy and Politics ofEcologism in Cameroon and Kenya, available at http://www.jsd-africa.com/Jsda/Fallwinter2000/articlespdf/ARC-E n v i r o n m e n t a l % 2 0 P o l i c y % 2 0 a n d % 2 0 t h e %20Politics%20of%20Ecologism.pdf.

29 It can be argued that African leaders at that point in timedid not see environmental protection as meriting theirattention in view of their economic backwardness andthe fact that most of Africa was still under colonialism.

30 See the Preamble to Organisation of African Unity(OAU) Charter, available at http://www.africa-union.org/root/AU/Documents/Treaties/text/

OAU_Charter_1963.pdf.

31Id., Art iii (3). See also Fatsah Quguerouz,African Charteron Human and Peoples Rights: A Comprehensive Agenda

for Human Dignity and Sustainable Democracy in Africa364 (New York: Kluwer Law International, 2003).

32 SeeAfrican Convention on the Conservation of Natureand Natural Resources, note 15 above.

33 It should be noted that before the Convention, there areother conventions with specific aims like the Conventionof the African Migratory Locust Organisation, adoptedby 22 African States on 25 May 1962 in Mali and enteredinto force on 13 April 1963; and the Phyto-SanitaryConvention for Africa, adopted at Kinshasa (CongoDRC) on 13 September 1967 (not yet in force).

34 See Morne van der Linde, African Responses toEnvironmental Protection, 35 CILSA 101 (2003);Nasongo & Gabsa, note 28 above at 86-87; YemiOsibanjo, Some Public Law Considerations inEnvironmental Protection, in Omotola ed., note 26above at 129; O.A. Bowen, The Role of Private Citizensin the Enforcement of Environmental Laws, in Omotolaed., note 26 aboveat 153; Akanki,note 26 above at 202and Jennifer A. Storm, South Africas NewEnvironmental Policies: Making Green the NewDominant Color, 9 Georgetown Intl Envtl. L. Rev. 644(1997).

35 van der Linde, note 34 above at 101-102. See also IUCN,note 24 above at 1-2 and Nasongo & Gabsa, note 28

above at 70-80 & 90-91.
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Peoples Rights,41 and the African Court on Humanand Peoples Rights.42 In addition to providing forthe right to environment, the OAU in 1991 adoptedthe Convention on the Ban of Import into Africaand the Control of Transboundary Movements ofHazardous Waste within Africa,43 to control theinflux and dumping of toxic wastes in the region.To ensure a holistic approach to the protection ofthe environment in Africa, the African Union (AU)which replaced the OAU, at its second Summit held

on 11 July 2003 in Maputo, Mozambique adoptedthe Revised African Convention on theConservation of Nature and Natural Resources.44

The Revised Nature Convention improves on theoriginal Algiers Convention by providing not onlythe conservation and management of naturalresources, but also, provides for institutionalstructures to facilitate implementation by the Statesparties as well as establishes mechanisms toencourage compliance and enforcement.

United Nations Conference on Environment andDevelopment (UNCED), 1992 that triggeredheightened global activity in the area ofenvironmental awareness and management;36 the1989 First African Regional Conference on theEnvironment and Development, held in Kampala,Uganda, and which place further emphasis onenvironmental concern;37 the menace of toxic wastedumping in Africa evidenced by the dumping oftoxic waste in 1988 at Koko, Nigeria, and recently

in Cote dIvoire in 2006;38 and with reference toSouth Africa, the abolition of the apartheid policyand regime that have had adverse environmentalconsequences.39

The increase in environmental consciousness amongAfrican leaders led to the establishment of legal,institutional and policy frameworks for theprotection of the environment at the regional, sub-regional and national levels. These include theadoption in June 1981 of the African Charter onHuman and Peoples Rights and its 2003 Protocolon the Rights of Women in Africa, which not only

provides for the right of all people to a generallysatisfactory environment favourable todevelopment,40 but also, enforcement mechanismssuch as the African Commission on Human and


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36 See IUCN, note 24 above at 1 and Michael OchiengOdhiambo, Legal and Institutional Constraints to PublicInterest Litigation as a Mechanism for the Enforcementof Environmental Rights and Duties in Kenya,(Proceedings of the Fifth International Conference onEnvironmental Compliance and Enforcement),availableat http://www.inece.org/5thvol2/odhiambo.pdf.

37 Seethe Kampala Declaration on Sustainable Developmentin Africa, Kampala, 12-16 June 1989, OAU Doc No 2153b26/04/1989.

38 See van der Linde,note 34 above at 101-102 and K.M.Mowoe, Quality of Life and Environmental Pollutionand Protection, in Omotola ed.,note 26 above at 181.

39 SeePeart & Wilson,note 27 above at 238-242 and PhiaSteyn, The Lingering Environmental Impact ofRepressive Governance: The Environmental Legacy ofthe Apartheid Era for the New South Africa, 2 (3)Globalizations 392-400 (2005).

40 See Art. 24, African Charter on Human and PeoplesRights, Banjul, 27 June 1981, OAUDoc.CAB/LEG/76/3 rev.5, 21Intl Leg. Mat. 58 (1982) and Art. 18, Protocolto the African Charter on Human and Peoples Rightson the Rights of Women in Africa, Maputo, 13 September

2000, CAB/LEG/66.6.

41 A quasi-judicial organ established pursuant to article 30of the African Charter on Human and Peoples Rights,note 40 above.

42 SeeArt. 1, the Protocol to the African Charter on Humanand Peoples Rights on the Establishment of an AfricanCourt on Human and Peoples Rights, 10 June 1998,OAU Doc. OAU/LEG/EXP/AFCHPR/PROT III.(The Court and the African Court of Justice (ACJ) havenow been merged into a single new court known as theAfrican Court of Justice and Human Rights. It appearsthat until the coming into force of the ACJHR Protocol,the ACHPR will continue to function separately fromthe ACJ. SeeArt 3, 5 & 7, Protocol on the Statute of theAfrican Court of Justice and Human Rights, 1 July 2008,available at http://www.africa-union.org/root/au/documents/treaties /text/Protocol%20on%20the%20Merged%20Court%20-%20EN.pdf (not yet in force).

43 See Convention on the Ban of Import into Africa andthe Control of Transboundary Movements of HazardousWaste within Africa, Bamako, 30 January 1991, 30 Intl

Leg. Mat. 775 (1991).44 African Convention on the Conservation of Nature and

Natural Resources (Revised Version), Maputo, 11 July2003 (not yet in force), available at http://www.africa-union.org/root/au/Documents/Treaties/Text/nature%20and%20natural%20recesource.pdf. It should benoted that this decision to adopt the Convention is linewith the AUs objective of promoting sustainabledevelopment at the economic, social and cultural levels.See Art. 3(j), Constitutive Act of the African Union,

Lome, 11 July 2000, CAB/LEG/23.15.
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specimens and trophies, and conservation areas.52

Unlike previous Conventions negotiated by colonialrulers in Africa, the Convention not only movesaway from the notion of nature conservation purelyfor utilitarian purposes, but also, emphasises theprinciple underlying ancient African environmentalconservation and management practices. This isevident in the preamble to the Convention whichacknowledges inter alia that natural resourcesconstitute a capital of vital importance to mankind;

the ever-growing importance of such resources froman economic, nutritional, scientific, educational,cultural and aesthetic point of view; and that theutilisation of the natural resources must aim atsatisfying the needs of man according to the carryingcapacity of the environment.53 This is furtherevident in the intention of the contracting partiesto undertake individual and joint action for theconservation, utilisation and development of theseassets by establishing and maintaining their rationalutilisation for the present and future welfare ofmankind.54

The intention of contracting parties to integrateenvironmental protection and achievement ofsustainable development objectives includingpoverty reduction in Africa is given concreteprominence in the overriding principle of theConvention which provides that the contractingStates shall undertake to adopt the measuresnecessary to ensure conservation, utilisation anddevelopment of soil, water, flora and faunal resourcesin accordance with scientific principles and with dueregard to the best interests of the people.55 Thereference to the best interests of the people can beconstrued as referring to their economic, nutritional,

scientific, educational, social, cultural and aestheticinterests. Hence, it can be argued that African leadersenvisage that the implementation of the provisionsof the Convention must not only foster theconservation and management of environmental


resources in Africa, but also, promote povertyreduction and overall socio-economic developmentin the region. This intention runs through the entireprovisions of the Convention relating to theconservation and management of water, flora, andfaunal resources.56 For example, the Conventionrequires that its parties in establishing policies forconservation, utilisation and development ofunderground and surface water, must endeavour toguarantee for their populations a sufficient and

continuous supply of suitable water.57 Furthermore,parties are required to ensure conservation, wise useand development of faunal resources and theirenvironment, within the framework of ... economicand social development.58

Therefore, it will be contrary to the spirit of theConvention if States parties were to adopt orpromote conservation measures and policies thatfocus exclusively on protectionism and humanexclusion from ecological resources.59 It should benoted that while this principle has not yet beeninterpreted judicially at the regional level, similar

decisions supporting this argument exist at thenational level in Africa. For example, this principlecan be inferred from the decision of the KenyanHigh Court inAbdikadir Sheikh Hassan and 4 othersv Kenya Wildlife Service,60 where the applicantssought an injunction preventing the respondent,from the translocation of a rare endangered speciesof animals called the hirola on the ground that suchaction would deprive their local community of aspecies that forms part of their natural heritage andlocal ecology. The injunction was granted, but on

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52 The Convention which has been in force since 16 June1969 has been signed by 40 African countries with 30ratifications as on 30 January 2009.

53 See preamble to the African Convention on theConservation of Nature and Natural Resources,note 15above, Paras 1, 3 & 5.

54Id., Preamble, Para 6.

55Id., Art. II.

56Id., Arts. IV-VII.57Id., Art. V (1).58Id., Art VII (1).59 It should be noted that most poor Africans and

households are depended on these resources for theirsustenance. Thus, adopting such policies will adverselyimpact on their food security, culture and livelihoodthereby exacerbating poverty. See Dilys Roe, TheMillennium Development Goals and Natural ResourceManagement: Reconciling Sustainable Livelihoods andResource Conservation or Fuelling a Divide?, in DavidSatterthwaite ed., The Millennium Development Goals and

Local Processes: Hitting the Target or Missing the Point?56& 61 (London: IIED, 2003).

60Abdikadir Sheikh Hassan and 4 others v Kenya WildlifeService, High Court of Nairobi, Civil Case No. 2059 of

1996.


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the ground that the Kenyan Constitution and otherrelevant statutes relied upon by the respondent didnot entitle it to translocate the animals.61In addition,while South Africa has neither signed nor ratifiedthe Convention, it provided for a similar principleamongst the fundamental principles under Chaptertwo of the National Environmental ManagementAct (NEMA).62 This principle was considered inFuel Retailers Association of SA case,63 where theSouth African Constitutional Court held that:

One of the key principles of NEMA requirespeople and their needs to be placed at theforefront of environmental management batho pele.

It requires all developments to be

socially, economically and environmentallysustainable. NEMA therefore requires theintegration of environmental protection andeconomic and social development. It requiresthat the interests of the environment bebalanced with socio-economic interests. Inthis sense, it contemplates that environmentaldecisions will achieve a balance between

environmental and socio-economicdevelopmental considerations through theconcept of sustainable development.64

3.2 African Charter on Human and

Peoples Rights and the Protocol

on Womens Rights in Africa

The African Charter on Human and Peoples Rightswhich is the foremost human rights instrument inAfrica was adopted by African Heads of States andgovernment during the eighteenth ordinary

assembly of the defunct OAU on 27 June 1981, atNairobi, Kenya. The Charter presently enjoysregion-wide ratification. It was adopted to promoteand protect human and peoples rights and freedomsin a continent where human rights violations happenquite often.65 The Charter is innovative and differentfrom existing human rights instruments as itembodies Africas perception of human rights.66 Theaim of the African experts that drafted the Charterwas to create an instrument that will be based on

African traditional philosophy and responsivenessto the real needs of Africa.67 The most important ofsuch needs was identified as the reduction of povertyand achievement of socio-economic development inthe region.68 To achieve this purpose, the Charterprovides for extensive civil and political rights, aswell as socio-economic and cultural rights. Theserights are essential to the achievement of povertyreduction objectives and promotion of humandignity as they ensure empowerment, voice, accessto social services, and equality before the law.69


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61 Kenya is a party to the African Convention on theConservation of Nature and Natural Resources which itratified on 12 May 1969. It should be noted that whilethe respondent may have the conservation andmanagement of the animal in mind, the fact thetranslocation will adversely affect the socio-culturaldevelopment of the indigenous community made itcontrary to the spirit of the Convention.

62 SeeNational Environmental Management Act, Act 107of 1998, S. 2(2).

63Fuel Reta4i lers Association of SA (Pty) Ltd v. Director-General, Environmental Management, Department of

Agriculture, Conservation and Environment, Mpumalanga,and Others, Constitutional Court of South Africa, CaseCCT 67/06, Decision Delivered on 7 June 2007.

64Id., Para 60.

65 SeeQuguerouz, note 31 above at 37.

66Id.at 41-42. See also Rachel Murray, The AfricanCommission on Human and Peoples Rights andInternational Law 10 (Oxford: Hart Publishing, 2000).

67 This is reflected in the fourth and fifth preambularparagraphs of the Charter which provide that [r]eaffirmingthe pledge they solemnly made in Article 2 of the said[OAU] Charter to eradicate all forms of colonialism fromAfrica, tocoordinate and intensify their cooperation andefforts to achieve a better life for the peoples of Africa.;and [t]aking into consideration the virtues of theirhistorical tradition and the values of African civilisationwhich should inspire and characterise their reflection onthe concept of human and peoples rights. The tone forthis underlying philosophy was laid down by the latePresident Leopold Senghor in his opening address to themeeting of the African experts held in Dakar, Senegal, from28 November to 8 December 1979. In his address, he urgedthe experts to use their imagination and draw inspirationfrom African traditions, keeping in mind the values ofcivilisation and the real needs of Africa (Cited inOuguergouz, note 31 above at 41).

68 SeeSenghors opening address as cited in Ouguergouz, note31 above at 41. See also the observation of the discussionleader in Seminar on the Study of New Ways and Meansfor Promoting Human Rights with Special Attention tothe Problems and Needs of Africa, Dar es Salaam, 23October- 5 November 1973, UN Doc. ST/TAO/HR/48,at p. 22, para iii as cited in Ouguergouz, note 31 above at 31.

69 SeeUnited Nations Development Programme (UNDP),Human Development Report: Human Rights and HumanDevelopment74-77(Geneva: UNDP, 2000). See also Center

for Human Right and Global Justice, note 4 above at 10-11.


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Most importantly, Article 24 of the Charter providesthat All peoples shall have the right to a generalsatisfactory environment favourable to theirdevelopment. The inclusion of this novel right inthe Charter, is an acknowledgement by its framersof the importance of a healthy environment toAfricas socio-economic development. This can beseen from the fact that the right aims to promote anenvironment of such quality that is favourable tothedevelopment of African people. As observed by

Ouguergouz:

For a great many African peoples, thesevarious aspects of the problem of the naturalenvironment are of vital importance. Forthem as others, a general satisfactoryenvironment favourable to the developmentalso means a quality environment: in otherwords, relatively unpolluted air and water,the protection of the flora and fauna whichare particularly important as they sometimesform an integral part of the traditional way food and medicine for example of certain

African people.70

However, the right as contained in the Charter isvague and ambiguous with regard to its meaning andscope.71 This vagueness can be seen from the factthat the Charter did not give any clear indication ofthe meaning of the term satisfactory andenvironment used in framing the right.Nevertheless, It can be argued that the termenvironment refer to both the natural environmentcomprising living (biodiversity or ecosystem), andnon-living or man-made components of the naturalworld, as the Charter envisages a general satisfactory

environment favourable to the development ofAfrican people.72 Using such expansiveinterpretation enables not only persons whose access

to streams, rivers, land and clean air has beenimpeded by environmental degradation, but also,those whose enjoyment or access to their homes andother buildings, as well as shrines, sacred groves andother cultural monuments, to rely on the provisionsof Article 24 of the Charter for appropriate relief.73

As aptly suggested by Jan Glazewski with regard tothe interpretation of the term environment underSection 24 of the South African Constitution,74 theterm [should] be broadly interpreted to include not

only our relationship with natural resources but alsoour cultural heritage as well as the urbanenvironment.75

In addition, the term satisfactory is ambiguous asit can refer to clean, adequate, acceptable, reasonable,suitable, fitting, pollution-free, healthy or pleasingwhen qualifying the right to environment as usedin the Charter. The ambiguity of these qualifyingterms may make the interpretation of the right bythe court, environmentalist and human rightsscholars difficult.76 On the other hand, as arguedby van der Linde, it could possibly assist positively

in that it allows for a wide and more flexible


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70 SeeOuguergouz, note 31 above at 364.71 It has been argued that such ambiguity is symptomatic of

the vague and laconic way in which much of the Charteris drafted. SeeRobin Churchill, Environmental Rights inExisting Human Rights Treaties, in Alan Boyle & MichaelAnderson eds.,Human Rights Approaches to Environmental

Protection 106(Oxford: Oxford University Press, 1998)and van der Linde,note 34 above at 106.

72 Other meaning of the term environment includessetting, situation, background and location. Se e

Ouguergouz,note 31 above at 361.

73 It appears that courts in South Africa subscribe to anexpansive interpretation of the term environment andthus, are willing to uphold this right where it can beproved that the non-natural aspects of the environmentare affected by pollution and other environmentaldegradation. SeeMinister of Public Works and others v.

Kyalami Ridge Environmental Association and Another,Constitutional Court of South Africa, Decided on 29 May2001, 2001 (3) SA 1151 at 1178 C-J. (the ConstitutionalCourt held that the Respondents (Kyalami residents) havenot shown as a probability that the action of thegovernment in establishing a camp for displaced peopleat the premises of the Leeuwkop prison will have asignificant effect on the environment.); and Hichange

Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd andOthers, High Court of South Africa, Eastern CapeDivision, 2004 (2) SA 393 at 411J-413D (allegation thatthe 1st respondents polluting activities have adverseeffects inter alia on the materials in the premises of thefirst defendant not proved and thus, prayer for an ordershutting down the 1st respondents tanning processes notgiven).

74 See Constitution of the Republic of South Africa, Act108 of 1996.

75 Jan Glazewski, Environmental Law in South Africa 76(Durban: Lexis Nexis Butterworth, 2nd ed, 2005).

76 SeeChurchill,note 71 above at 106 and van der Morne,

note 34 above at 106.


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omission, it appears that the Charter envisages socio-economic development. This is arguably based onthe premise that the drafters of the Charter bylinking the right to development, envisage thatAfrican citizens should not only be able to live in aundegraded and pollution-free environment, butalso, be able to access the resources provided by theirenvironment in order to develop to their fullpotential.83 In essence, the right to a generalsatisfactory environment under the African Charter

is a composite right, and thus, measures taken toprotect the environment in terms of this right mustalso promote poverty reduction and socio-economicdevelopment.84 This argument is not only consistentwith the principle underlying both ancient Africanconservation practices and sustainabledevelopment,85 but also, the philosophy underlyingthe adoption of the entire Charter, which is toaddress the real needs of Africa, of which economicunder-development was identified as the mostimportant. Such philosophy is evident in a morerecent declaration of the 13th Conference of Non-Aligned Countries (most African countries are

members) stating:

Sustainable development, therefore, must beconsidered in the wider context of sustainedeconomic growth. States have the sovereignright to exploit their resources in accordancewith their own environmental anddevelopment policies. [less industrialised

interpretation.77 The effect of this ambiguity is thatthe meaning of the term satisfactory is now a matterof subjective value judgement.78 Flowing from theabove, it is submitted that the best way out of thisdefinitional muddle is for the courts,environmentalist and human rights scholars in eachspecific context to adopt such meaning of the termsatisfactory that will as much as possible give effectto the intention of the Charters framers, that is,guaranteeing for average Africans, the right to an

environment of such a nature that will ensure theiroverall economic, social and cultural development.79

Such interpretation will make it possible to widenthe scope of the right to cover any instance ofenvironmental degradation that is inimical to socio-economic development of African citizens and notbe limited only to pollution, dumping of toxic wastesand wastes generally.80 This is reflected in thedecision of the African Commission on Human andPeoples Rights (African Commission) in Social andEconomic Rights Action Center (SERAC) and anotherv Federal Republic of Nigeria,81 where withoutexpressly clarifying the meaning of the term

satisfactory, the Commissions view of the meaningof the right to a satisfactory environment can begleaned to include inter alia an environment freefrom pollution and ecological degradation, andenvironment of such quality that can secure anecologically sustainable development and use ofnatural resources.82

Furthermore, the Charter linked the right to asatisfactory environment to the issue ofdevelopment. The Charter did not define themeaning of the term development. Despite this


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77Id. See also Morne van der Linde & Lirette Louw,Considering the Interpretation and Implementation ofArticle 24 of the African Charter on Human and PeoplesRights in Light of the SERACCommunication, 3African

HRLJ 174 (2003).78 Alan Boyle, The Role of International Human Rights

Law in the Protection of the Environment. in Boyle &Anderson eds.,note 71 above at 50.

79Id., 50-51.80 SeeChurchill,note 71 above at 106.81 Communication 155/96, Decision of the African

Commission on Human and Peoples Rights. (Interpretingthis right under the African Charter), available at http://www.achpr.org/english/Decison_Communication/Nigeria/Comm.155-96.pdf.

82Id., Para 52.

83 See Ouguergouz,note 31 above at 364. See also BetterEnvironment, Better Tourism: Building the Age of Hopein South Africa, (AnAddress by the Deputy Minister ofEnvironmental Affairs and Tourism, the HonourableRejoice Mabudafhasi to the National Council of Provinces(NCOP) on 8 June 2006), available at http://www.environment.gov.za//newsmedia/speeches/2006jun8/08062006_2.doc. (Admitting that unlesscommunities living in and around protected areas derivetangible benefits from natural resources, the governmentwill be failing to discharge its responsibilities to its people).

84 SeeCommunication 155/96,note 81 above, Para 52. Forsimilar national decision, seeHTF Developers (Pty) Ltd v.

Minister of Environmental Affairs and Tourism and Others,2006 (5) SA 512 at 518E-I;Fuel Retailers Association case,note 63 above, Para 45; and Department of Agriculture:

MEC Conservation and Environment and Another v. HTFDevelopers (Pty) Limited, Case CCT 07/32, Decided on 6December 2007, Para 24 (hereinafter HTF Developer case II).

85 SeeAmechi,note 16 above at 63.
http://www.achpr.org/english/Decison_Communication/Nigeria/Comm.155-96.pdfhttp://www.achpr.org/english/Decison_Communication/Nigeria/Comm.155-96.pdfhttp://www.achpr.org/english/Decison_Communication/Nigeria/Comm.155-96.pdfhttp://www.environment.gov.za//newsmedia/speeches/2006jun8/08062006_2.dochttp://www.environment.gov.za//newsmedia/speeches/2006jun8/08062006_2.dochttp://www.environment.gov.za//newsmedia/speeches/2006jun8/08062006_2.dochttp://www.environment.gov.za//newsmedia/speeches/2006jun8/08062006_2.dochttp://www.achpr.org/english/Decison_Communication/Nigeria/Comm.155-96.pdf


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countries] cannot forego growth andtransformation in the name of conservationof natural resources or for the sake ofpreserving an unaltered natural habitat.Actions taken to protect the environment bydiverting resources from development mightin the long run prove to be self-defeating,since they might reduce development therebylimiting the magnitude of resourcesultimately available for improving the human

environment.86

The link to socio-economic development makes thepromotion of the right relevant to the achievementof sustainable development objectives includingpoverty reduction in Africa. As observed by theConstitutional Court of South Africa in FuelRetail ers Association of SA (Pty) Ltd v Director-General, Environmental Management, Department ofAg ri cu lt ur e, Co ns er va tion an d En vi ro nm en t,Mpumalanga, and Others, dealing with a similarprovision in the South African Constitution,[s]ustainable development and sustainable use and

exploitation of natural resources are at the core ofthe protection of the environment [in SouthAfrica].87

On the other hand, the Protocol to the BanjulCharter on the Rights of Women in Africa simplyprovides that [w]omen shall have the right to livein a healthy and sustainable environment.88 Thisenvironmental provision is mandatory and differentfrom the environmental provision in the BanjulCharter, as it is not linked or made subject to socio-economic development. Despite this omission, it canbe argued that the Protocol like the Banjul Charter,

envisages that African women should not only beable live in an undegraded and pollution-freeenvironment, but also, access the resources providedby their environment in order to develop to their

full potential. This makes the provision vital to thepromotion of the socio-economic development ofAfrican women as not only do most poor householdsin Africa (especially those in the rural area) dependheavily on the environment for their income, health,dietary and energy needs,89 but also, theresponsibility of sourcing or gathering the resourcesprovided by the environment fall disproportionatelyon women.90 Thus, in instances of environmentaldegradation, African women are usually forced to

travel longer distances and spent more time inaccessing environmental resources.91 Precious timelost that would have been used in performing otherhousehold duties, and which in turn, impacts on theamount of time available for schooling and indulgingin other livelihood improvement and income-generation activities.92

It can therefore be argued that by guaranteeingAfrican womens access to a healthy and sustainableenvironment, the AU through the Protocol seeksto promote their socio-economic development. Thisperhaps explains why unlike Article 24 of the Banjul

Charter, Article 18 (2) of the Protocol expresslymandates its States parties to take appropriatemeasures towards the realisation of the womensright to environment. These include inter aliaensuring the greater participation of women in theplanning, management and preservation of theenvironment and the sustainable use of naturalresources at all levels; promoting research andinvestment in new and renewable energy sources andappropriate technologies, and facilitating womensaccess to, and participation in their control;


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86 Declaration of the 13th Conference of Non-AlignedCountries, 2000, as citedin Ouguergouz,note 31 aboveat 369.

87 SeeFuel Retailers Association of SA (Pty) Ltd v Director-General, Environmental Management, Department of

Agri cu lt ur e, Co nser va ti on an d En vi ro nm en t,Mpumalanga, and Others, note 63 above.

88 See Protocol to the African Charter on Human andPeoples Rights on the Rights of Women in Africa, note

40 above, Art. 18.

89 For example, in rural Zimbabwe, one third of totalhousehold income stems from the bulk of environmentalresources. SeeUnited Nations Development Programme(UNDP), The Poverty-Environment Nexus: ReinforcingLinkages 6(New York: UNDP, Practice Note, 2004) andMohammed-Katerere et al, note 10 above at 13.

90 See Tim Hirsch, Ecosystem Protection, a Key toDevelopment, 4Environment & Poverty Times 1 (2005).

91 See Irene Dankelman, No Hope without GenderEquality, 4Environment & Poverty Times 14-15 (2005).

92 SeeRoe & Elliott, note 4 above at 15; Peter Hazlewood,Geeta Kulshrestha & Charles McNeill LinkingBiodiversity Conservation and Poverty Reduction toAchieve the Millennium Development Goals, in Roe ed.,note 4 above at 147; and Balakrishna Pisupati & EmilieWarner, Biodiversity & the Millennium Development Goals

13 (Gland: IUCN, 2003).


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protecting and enabling the development ofwomens indigenous knowledge system; andregulating the management, processing, storage anddisposal of domestic wastes.

3.3 The Bamako Convention on the

Ban of the Import into Africa and

the Control of Transboundary

Movement and Management of

Hazardous Wastes within Africa

This Convention was adopted on 30 January 1991and entered into force on 22 April 1998.93 It wasadopted under the auspices of the defunct OAU asan alternative to the Basel Convention. It should benoted that in the build-up to the Basel Convention,OAU member States were concerned about the issueof toxic colonialism whereby foreign companies willexploit their countries as cheap disposal sites fortoxic wastes.94 This concern was not misplaced asduring the same period, an unscrupulous Italianbusinessman dumped five shipload of hazardous

waste in the small coastal town of Koko, Nigeria,while there were reports of similar dumping inDjibouti, Equatorial Guinea and Sierra Leone.95 Inaddition, there were also reports of some Africancountries entering into dubious agreements withunscrupulous western companies for the dumpingof toxic wastes in their territories.96 The BaselConvention by regulating, rather than prohibitingtrade in hazardous wastes, was felt by the OAU

member States as not stringent enough to assuagetheir concerns.97 Thus, by signing the BamakoConvention, OAU member States with theexception of South Africa, which was then not amember, seek to ban the import of all hazardouswaste into Africa, as well as the imposition of stricterstandards on transboundary movement.98

The purpose of the Convention is principally toprotect the region from the growing threat to human

health and the environment posed by the increasedgeneration and the complexity of hazardous wastes.The Convention therefore has a vital link to thepromotion of poverty reduction and achievementof socio-economic development in Africa. Thelinkage may not be readily discernible as there is noexpress mention of poverty reduction or sustainabledevelopment in either the preamble or in the bodyof the Convention. However, it can be argued thatthe link can be implied in the provisions of preambleto the Convention which not only recalled relevantenvironmental provision of the Banjul Charter, butalso, were mindful of the spirit, principles, aims and

functions of the Algiers Convention, instrumentswhich as earlier discussed are vital to the reductionof poverty in Africa.99 In addition, the linkage isimplicit in the determination of the parties to protectthe human health of the African population and theenvironment against the adverse effects which mayresult from hazardous waste pollution.100 It shouldbe noted that the protection of human health andenvironment from the adverse effects of hazardouswastes is very important in reducing or preventingthe prevalence of diseases which usually causes or


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93 See Convention on the Ban of the Import into Africaand the Control of Transboundary Movement andManagement of Hazardous Wastes within Africa, note43 above.

94 David Hunter, James Salzman & Durwood Zaelke eds.,International Environmental Law & Policy 852 (NewYork: Foundation Press, 2002).

95 See United Nations Commission on Human Rights(UNCHR), Economic, Social and Cultural Rights:Adverse Effects of the Illicit Movement and Dumping ofToxic and Dangerous Products and Wastes on theEnjoyment of Human Rights (Report Submitted by theSpecial Rapporteur on Toxic Waste, Mrs. Fatma-ZohraOuhachi-Vesely, Doc. E/CN.4/2001/55, 19 January2001), and James Brooke, Waste Dumpers Turning toWest Africa, The New York Times, 17 July 1988, availableat http://www.nytimes.com/1988/07/17/world/waste-dumpers-turning-to-west-africa.html.

96Id.

97 See John Ovink, Transboundary Movement ofHazardous Waste, the Basel and Bamako Conventions:Do Third World Countries Have a Choice?, 13Dick. J.

Intl of Law 285 (1995).98 However, the Convention complements the Basel

Convention as the later makes provision for regionaland stricter treaties. See Art. 11(1), Basel Conventionon the Control of Transboundary Movement ofHazardous Waste and their Disposal, Basel, 22 March1989, 28Intl. Leg. Mat. 649 (1987).

99 See Convention on the Ban of the Import into Africaand the Control of Transboundary Movement andManagement of Hazardous Wastes within Africa, note43 above, Preamble, Paras 5 & 12.

100Id. Para 16.
http://www.nytimes.com/1988/07/17/world/waste-dumpers-turning-to-west-africa.htmlhttp://www.nytimes.com/1988/07/17/world/waste-dumpers-turning-to-west-africa.htmlhttp://www.nytimes.com/1988/07/17/world/waste-dumpers-turning-to-west-africa.html


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exacerbates poverty in Africa.101 Hence, it can beargued that the implementation of the Conventionis vital to the achievement of poverty reduction inAfrica as a hazardous waste-free environment willenable people to enjoy their basic rights to life,health, adequate food and housing, education,satisfactory environment, and traditional livelihoodand culture in the region.102 As observed by Madava,[h]azardous wastes are potential pollutants of thehuman and biophysical environment. Waste

pollution can cause death as well as rashes, lung andother cancers... Dumping toxic wastes in developingcountries where poverty is high is a major drawbackin the struggle to catch-up with the developedworld.103

3.4 Revised African Convention on

the Conservation of Nature and

Natural Resources

The Revised Nature Convention was adopted on 11July 2003 and is not yet in force. The Conventionwhen in force will replace the original AlgiersConvention for those African States that haveratified it.104 The Convention was borne out of the


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need to update and strengthen the AlgiersConvention, in order to bring it in line with thelatest developments and thinking in internationalenvironmental law and sustainable development aswell as the latest scientific and technologicaldevelopments in the environmental field.105 Thisrevision became necessary as the Algiers Conventionwas adopted before the hosting of the UnitedNations Conference on the Human Environment,1972,106 which catalysed decades of rapid

development of environmental thought and treatylaw subsequent to the adoption of theConvention.107 The end product of this revision isa comprehensive regional convention on naturalresources, environment and development, andwhich has aptly been described as a road map108

for the management of Africas natural resources.The Convention which when in force shall applyto all areas which are within the limits of national

jurisdiction of any Party; and to the activities carriedout under the jurisdiction or control of any Partywithin the area of its national jurisdiction or beyondthe limits of its national jurisdiction.109

The Convention reveals a strong commitment tothe achievement of poverty reduction and socio-economic development in the region.110 Thisapparent from the Conventions preamble under101 For example, the MA estimates that Africas GDP could

have been $100 billion larger in 2000 if malaria which isresponsible for 11 per cent of Africas disease burdenhad been eliminated 35 years ago. SeeReid et al, note 6above at 61.

102It is estimated that about 5.2 million people die eachyear from waste-related diseases in developing countries.See Gary D. Meyers, Glen McLeod, and Melanie A.Anbarci, An International Waste Convention: Measuresfor Achieving Sustainable Development, 24 (6) Waste

Management and Research 505 (2006).103Tinashe Madava, Illicit Dumping of Toxic Wastes

Breach of Human Rights, 28Review of African PoliticalEconomy 288 (2001). See also Ariana Balestrieri, IllegalToxic Trading: The Exchange of a Deadly Good,Brown

Policy Review 2-3 (2006); and Anne Daniel, HazardousSubstances and Waste, Other Than Nuclear, availableat http://www.jus.uio.no/forskning/grupper/intrel/YBIEL/Reports2 Check/0603Transboundary%20Movement%20of%20Haz%20Waste.doc.

104 For those that have not ratified it, and are parties to theAlgiers Convention, they are only bound by theprovisions of the Algiers Convention. The provision ofthe original Convention will also govern their relationshipwith parties to the revised Convention. See AfricanConvention on the Conservation of Nature and Natural

Resources (Revised Version), note 44 above, Art. XXXIV.

105 SeeDecision on the Revised 1968 African Convention(Algiers Convention) on the Conservation of Natureand Natural Resources, Doc. EX/CL/50(III), Assembly/AU/Dec.9 (II), available at http://www.africa-union.org/official_documents/Decisions_Declarations/Assembly%20AU%20Dec% 209%20II.pdf. See alsoAfrican Convention on the Conservation of Nature andNatural Resources (Revised Version), note 44 above,Preamble, Para 13; International Union forConservation of Nature,note 24 above at 5 and AfrolNews, Africa to Enhance Nature Conservation, 18 July2003, available at http://www.afrol.com/articles/10361.

106Note that the adoption of the Convention coincidedwith the decision of the UN General Assembly toconvene the United Nations Conference on HumanEnvironment.

107 See International Union for Conservation of Nature,note 24 above at 4-5.

108 SeeAfrol News,note 105 above.109 SeeAfrican Convention on the Conservation of Nature

and Natural Resources (Revised Version), note 44 above,Art. I.

110 See International Union for Conservation of Nature,

note 24 above at 3.
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which the Heads of States and Government of theAU acknowledge that Africas natural environmentand its resources are an irreplaceable part of theAfrican heritage and constitute a capital of vitalimportance to the continent and mankind as awhole, as well as the ever-growing importance ofnatural resources from economic, social, cultural andenvironmental points of view.111 The memberStates also re-affirmed the sovereign right of Statesto exploit their natural resources pursuant to their

developmental and environmental policies, andfurther reaffirmed that States are responsible for theprotection, conservation and management of theirenvironment and natural resources as well as thesustainable utilisation of such resources in order tosatisfy human need.112 Most importantly, theConvention states its objectives as enhancingenvironmental protection, fostering theconservation and sustainable use of naturalresources; and harmonising and coordinatingpolicies in these fields with a view to achievingecologically rational, economically sound andsocially acceptable development policies and

programmes.113 These objectives correspond to keyelements of a sustainable development approach andhence, measures adopted towards realising theseobjectives must enhance and not hinder theachievement of poverty reduction and socio-economic objectives such as the MDGs in Africa.114

The commitment to the achievement of povertyreduction and socio-economic development isfurther evidenced by the Conventions guidingprinciples which include the right of all peoples to asatisfactory environment favourable to their

development; the duty of States, individually andcollectively to ensure the enjoyment of the right todevelopment; and the duty of States to ensure thatdevelopmental and environmental needs are met ina sustainable, fair and equitable manner.115 Theseprinciples are mandatory and hence, States partiesmust observe them in the course of taking actionsor implementing programmes towards theconservation, management and sustainable use ofland, soil, water, vegetation cover; maintaining and

enhancing species and genetic diversity of plants andanimals; or in establishing and maintainingconservation areas.116 Thus, it would be contraryto the spirit of the Convention if member States wereto adopt conservation measures without assessingthe potential socio-economic impacts of suchenvironmental projects on the surroundingcommunities.117

The Convention also mandates its members Statesnot only to ensure that conservation andmanagement of natural resources are treated as anintegral part of national and/or local development

plans, but also, in the formulation of all developmentplans, full consideration is given to ecological, as wellas to economic, cultural and social factors in orderto promote sustainable development.118 These


111 SeeAfrican Convention on the Conservation of Natureand Natural Resources (Revised Version), note 44 above,Preamble, Paras 2 & 4.

112Id., Paras. 5 & 6.113Id., Art. II.114 SeeInternational Union for Conservation of Nature,note

24 above at 6. See alsoHTF Developers (Pty) Ltd v. Ministerof Environmental Affairs and Tourism and Others, note84 above at 518E-H;Fuel Retailers Association of SA (Pty)

Ltd v. Director-General, Environmental Management,De partme nt of Agri cu ltur e, Conser va tion andEnvironment, Mpumalanga, and Others, note 63 above atpara 65; and BP Southern Africa (Pty) Ltd v. MEC for

Agriculture, Conservation and Land Affairs, 2004 (5) SA124 at 151 D-G, (interpreting a similar provision of s 24(a)

of the South African Constitution).

115 SeeAfrican Convention on the Conservation of Natureand Natural Resources (Revised Version), note 44 above,Art. III.

116 SeeFuel Retailers Association of SA (Pty) Ltd v. Director-General, Environmental Management, Department of

Agri cu lt ur e, Co ns er va ti on an d En vi ro nm en t,Mpumalanga, and Others, note 63 above, paras 71-97 andBato Star Fishing (Pty) Ltd v. Minister of Environmental

Affai rs and Others, 2004 (4) SA 490 (upholding theobligatory nature of similar fundamental principlesunder chapter 2 of National EnvironmentalManagement Act, and section 2 of the Marine LivingResources Act of 1998 respectively).

117 SeeFuel Retailers Association of SA (Pty) Ltd v. Director-General, Environmental Management, Department of

Agriculture, Conservation and Environment, Mpumalanga,and Others, note 63 above and Abdikadir Sheikh Hassanand 4 others v Kenya Wildlife Service, note 60 above.

118 SeeAfrican Convention on the Conservation of Natureand Natural Resources (Revised Version), note 44 above,Art. XIV. SeeMEC for Agr icult ure , Con ser vat ion,

Environment & Land Affairs v. Sasol Oil (Pty) Limitedand Another, 2006 (5) SA 483 (SCA), (the South AfricanCourt of Appeal upheld the decision of the MEC not togrant the respondent an authorisation to build a petrol

station on environmental grounds).

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provisions further evidence the desire of Africanleaders to integrate environmental considerationswith socio-economic concerns including thereduction of poverty.119 In addition, the Conventionobligates its member States to promote proceduralrights by adopting legislative and regulatorymeasures necessary to ensure timely and appropriatedissemination of environmental information; accessof the public to environmental information;participation of the public in decision-making with

a potentially significant environmental impact; andaccess to justice in matters related to protection ofenvironment and natural resources.120 Theseenabling rights are not only essential toenvironmental protection, but also, povertyreduction as they encourage an integration ofdemocratic values and promotion of the rule of lawin broad-based structures of governance, therebyensuring empowerment, voice, access to socialservices, and equality before the law.121

Other relevant provisions of the Convention vitalto the reduction of poverty and promotion of socio-

economic development in Africa relate to thecontrol of pollution and waste management;122

protection of the environment during military andhostile activities; and promoting respect fortraditional rights and intellectual property rights oflocal communities including farmers rights.123

4CONCLUSION

The article shows that the various regional legalinterventions for the protection of the environmentin Africa recognise the linkage between povertyreduction and environmental protection as they

were adopted within the context of promotingpoverty reduction and overall socio-economicdevelopment in the region. Thus, it can be arguedthat Africas attempt to protect the environment(including the provision of the human right toenvironment), is overtly anthropocentric as Africanleaders subscribe to the view that environmentalconservation must not be inimical to, but shouldcontribute to the overall socio-economicdevelopment of their citizens. This view while it maybe criticised, is however consistent with traditionalAfrican notion of conservation which not onlyemphasise unity of nature and humanity, but also,

conservation and utilisation of natural resources byman.124 The fact that these legal interventions reflectthis view means that their successful implementationcan contribute effectively to the achievement ofsocio-economic developments objectives such aspoverty reduction in Africa. This situates theenforcement and implementation of theseenvironmental legal instruments within the questto achieve the MDGs in Africa. The MDGs as earliernoted constitute a strategy for the reduction ofpoverty in developing countries by 2015.

However, while it is obvious that African leaders

recognise the importance of the conservation andmanagement of the environment to the achievementof socio-economic development objectives includingpoverty reduction for their citizens, theirimplementation of the various legal instruments forthe protection of the environment is at bestlukewarm. This is best illustrated by the non-ratification by most African countries of the RevisedNature Convention, a document which as earliernoted constitutes a roadmap for the management ofAfricas natural resources. Such non-ratification has


119 See International Union for Conservation of Nature,note 24 above at 7-8.

120 SeeAfrican Convention on the Conservation of Natureand Natural Resources (Revised Version), note 44 above,Art. XVI.

121 See Shadrack C. Agbakwa, A Path Least Taken:Economic and Social Rights and the Prospects ofConflict Prevention and Peacebuilding in Africa, 47 (1)

JAL 58-62 (2003); and Dinah Shelton, Human Rights,Health and Environmental Protection: Linkages in Lawand Practice (A Background Paper for the World HealthOrganization), available at http://www.who.int/hhr/infor mation/en/series_1%20%20 %20Human_Rights_Health_Environmental%20protection_Shelton.pdf.

122 SeeAfrican Convention on the Conservation of Natureand Natural Resources (Revised Version), note 44 above,Art. XIII.

123Id., Art. XVII. 124SeeAmechi, note 16 above at 62-63.

128
http://www.who.int/hhr/Series_1%20%20Sheltonpaper_rev1.pdfhttp://www.who.int/hhr/Series_1%20%20Sheltonpaper_rev1.pdfhttp://www.who.int/hhr/Series_1%20%20Sheltonpaper_rev1.pdfhttp://www.who.int/hhr/Series_1%20%20Sheltonpaper_rev1.pdf


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been a stumbling block towards the coming intoforce and subsequent implementation of theConvention.125 Even for the conventions that arein force, they have not adequately implemented asmost African nations have evidenced a lack ofpolitical will to domestically enforce the provisionsof these conventions in their jurisdictions. Such lackof effective implementation has led to a situationwhere they have ended up as paper tigers. The questto promote economic growth and poverty reduction

has been cited as some of the reasons for the non-enforcement of environmental regulations byAfrican countries.126 However, this is very ironicas most of poor Africans especially in the rural areasare dependent for their sustenance on the samedegraded environment caused or exacerbated by non-implementation of environmental regulations.

Thus, in view of the heavy reliance of millions ofpoor Africans on the environment for theirsustenance, there is a need for African countries tostop relying on these outdated excuses as basis fornot implementing environmental regulations. In

essence, it would be counterproductive to theachievement of poverty reduction initiatives like theMDGs in Africa if governments were to ignore theprotection of the environment in order to promoteeconomic growth and development. It is hearteningto note that the Environmental Initiative of the NewPartnership for Africas Development (NEPAD), apolicy document adopted by African leaders toenhance the achievement of the MDGs in theregion,127 recognises that a healthy and productiveenvironment is a prerequisite for the success ofNEPAD as it is vital to creating the social andecological base upon which the partnership can

thrive.128 What is needed is the necessary politicalwill towards the protection of the environment in

Africa by the effective implementation of these legalinstruments.


125As on 30 January 2009, only 8 nations have ratified theConvention.

126 SeeEmeka Polycarp Amechi, Poverty, Socio-PoliticalFactors and Degradation of the Environment in Sub-Saharan Africa: The Need for a Holistic Approach tothe Protection of the Environment and Realisation ofthe Right to Environment, 5 (2)Law, Environment and

Development Journal117-118 (2009).127 See the New Partnership for Africas Development

(NEPAD): Framework, note 46 above, Para 68.

128Id., Para 138.

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LEAD Journal (Law, Environment and Development Journal)is jointly managed by theSchool of Law, School of Oriental and African Studies (SOAS) - University of London

http://www.soas.ac.uk/lawand the International Environmental Law Research Centre (IELRC)

http://www.ielrc.org


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