lead- - poverty, socio-political factors and degradation of the environment in sub

LEADLawEnvironment and

DevelopmentJournal

VOLUME

52

POVERTY SOCIO-POLITICAL FACTORS AND DEGRADATION OF THE ENVIRONMENT INSUB-SAHARAN AFRICA THE NEED FOR A HOLISTIC APPROACH TO THE PROTECTION

OF THE ENVIRONMENT AND REALISATION OF THE RIGHT TO ENVIRONMENT

Emeka Polycarp Amechi

ARTICLE

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 wwwlead-journalorgISSN 1746-5893

The Managing Editor LEAD Journal co International Environmental Law Research Centre (IELRC) International EnvironmentHouse II 1F 7 Chemin de Balexert 1219 Chacirctelaine-Geneva Switzerland Telfax + 41 (0)22 79 72 623 infolead-journalorg

This document can be cited asEmeka Polycarp Amechi lsquoPoverty Socio-Political Factors and Degradation of

the Environment in Sub-Saharan Africa The Need for a Holistic Approach to theProtection of the Environment and Realisation of the Right to Environmentrsquo

52 Law Environment and Development Journal (2009) p 107available at httpwwwlead-journalorgcontent09107pdf

Emeka Polycarp Amechi Unit 27 the Bridles Douglas Crescent Sundowner Johannesburg 2161 South AfricaEmail em_amechiyahoocom

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 20 License

LLB (UNN) BL (Abuja) LLM (Wits) PhD (Wits) This article is grained from chapters three and five of my PhD thesis titled TheMillennium Development Goals and National and International Policy Reform Realising the Right to a Healthy Environment in Africa Thefinancial assistance of the Department of Science and Technology (DST) towards this research is hereby acknowledged Opinionsexpressed and conclusions arrived at are those of the author and are not necessarily to be attributed to the DST

ARTICLE

POVERTY SOCIO-POLITICAL FACTORS AND DEGRADATIONOF THE ENVIRONMENT IN SUB-SAHARAN AFRICA THE NEED

FOR A HOLISTIC APPROACH TO THE PROTECTION OFTHE ENVIRONMENT AND REALISATION OF THE

RIGHT TO ENVIRONMENT


TABLE OF CONTENTS

1 Introduction 109

2 Factors Responsible for Environmental Degradation in Sub-Saharan Africa 11021 Poverty 11122 Lack of access to information and public participation 11323 Lack of access to justice 11524 Lack of political will 11725 Weak institutional capacity 119

3 A Holistic Approach to Environmental Protection in Sub-Saharan Africa 12131 Strengthening rule of law 12232 Promoting respect for human rights 12333 Promotion of democratic governance 12534 Promotion of education health and other socio-economic reform 127

4 Conclusion 128

1INTRODUCTION

The environment is a vital component of Africarsquos questto achieve sustainable development The new partnershipfor Africarsquos Development (NEPAD) in its EnvironmentalInitiative recognises that a healthy and productiveenvironment is a prerequisite for NEPAD as it is vital tocreating the social and ecological base upon which thepartnership can thrive1 Prior to NEPAD African leadershave since the late 1960 recognised the importance ofthe environment and its resources to their developmentand have undertaken measures for its protection andconservation as evidenced by the adoption of the AfricanConvention on the Conservation of Nature and NaturalResources (Algiers Convention) in 19682 The AlgiersConvention was followed by other regional and sub-regional environmental agreements such as the BamakoConvention on the Ban of the Import into Africa andthe Control of Transboundary Movement andManagement of Hazardous Wastes within Africa3 theNairobi Convention for the Protection Management andDevelopment of Marine and Coastal Environment ofthe Eastern Africa Region4 and Convention forCooperation in the Protection and Development of theMarine and Coastal Environment of the West and CentralAfrican Region5 The situation is not different at the

national level where a plethora of environmentalinstruments has been adopted to protect theenvironment and enhance socio-economicdevelopment6

In addition to these environmental instruments varioushuman rights instruments in Africa have provided forthe right to environment In providing for this rightAfrican nations have recognised that the right soprotected must contribute to the promotion of socio-economic development in the region This is apparentfrom the provisions of article 24 of the African Charteron Human and Peoplesrsquo Rights which provides lsquo[a]llpeoples shall have the right to a general satisfactoryenvironment favourable to their developmentrsquo7 Itshould be noted that the Banjul Charter is the foremostregional human rights instrument and has been ratifiedby virtually every African nation At the national levelseveral African nations have followed the example ofthe Banjul Charter in explicitly tying the right to thepromotion of socio-economic development8 Forexample section 24 of the South African Constitutionsnot only provides that lsquo[e]veryone ndash h as the right to anenvironment that is not harmful to their health or well-beingrsquo but also lsquoto have the environment protected forthe benefit of present and future generations throughreasonable and other measures that hellip secureecologically sustainable development and use of naturalresources while promoting justifiable economic andsocial developmentrsquo9

However it appears that these legal instruments as wellas institutional frameworks for the protection of theenvironment have not had the desired effects on the

Law Environment and Development Journal

109

1 Organisation of African Unity The New Partnership forAfricarsquos Development (NEPAD) adopted at the 37th summitof Organisation of African Unity 2001 (HereinafterNEPAD framework document)

2 See African Convention on the Conservation of Nature andNatural Resources Algiers 15 September 1968 OAU DocNo CABLEG241

3 See Bamako Convention on the Ban of the Import intoAfrica and the Control of Transboundary Movement andManagement of Hazardous Wastes within Africa Bamako30 January 1991 30 ILM 775 (1991)

4 See Nairobi Convention for the Protection Management andDevelopment of Marine and Coastal Environment of theEastern Africa Region New York 1985 available at http w w w u n e p o r g N a i r o b i C o n v e n t i o n d o c s English_Nairobi_Convention_Textpdf

5 See Convention for Cooperation in the Protection andDevelopment of the Marine and Coastal Environment ofthe West and Central African Region Abidjan 1981 availableat httpwwwopcworgchemical-weapons-conventionrelated-international-agreementstoxic-chemicals-and-the-environmentmarine-and-coastal-environment-west-and-central-africa

6 For eg see National Environmental Management Act(NEMA) No 107 of 1998 (South Africa) EnvironmentalManagement and Coordination Act (EMCA) No 8 of 1999(Kenya) and Federal Environmental Protection Agency(FEPA) Act Cap F10 LFN 2004 (Nigeria) now supersededby National Environmental Standards and RegulationsEnforcement Agency (Establishment) Act No 25 of 2007

7 See African Charter on Human and Peoplesrsquo Rights Nairobi27 June 1981 OAU DocCABLEG673 rev5 21 ILM 58(1982) (Hereinafter Banjul Charter)

8 For these constitutional or legal provisions see the Appendixto Earth Justice Environmental Rights Report HumanRights and the Environment 86-108 (Oakland Earth Justice2005) (Hereinafter Earth Justice Report)

9 See Constitution of the Republic of South Africa Act No108 of 1996 See also Environmental Management andCoordination Act (Kenya) note 6 above

conservation or protection of the environment in sub-Saharan Africa This is due to the fact that despite theexistence of these regulatory frameworks sub-SaharanAfricarsquos environment is heavily degraded with adverseconsequences for both the achievement of sustainabledevelopment and realisation of the right to environmentSuch degradation is apparent from the findings ofvarious regional and national state of environment (SoE)reports such as the two volumes of the AfricanEnvironmental Outlook10 the 2003 Kenyan SoE11 andthe 2006 South African SoE12 Since the problem ofenvironmental degradation and consequent non-realisation of the right to environment in Africa is notdue to the absence of regulatory frameworks the issuetherefore is what isare the cause(s) of environmentaldegradation in Africa and what approach can be adoptedto tackle the problem of environmental degradation inorder to enhance not only the realisation of the right toenvironment but also the overall achievement ofsustainable development in the region

This article aims to proffer a holistic or integratedapproach to tackle the problem of environmentaldegradation in order to enhance realisation of the rightto environment and overall sustainable development insub-Saharan Africa It commences with a discussion ofthe factors responsible for environmental degradationin the region Such discussion is necessary as any holisticapproach towards arresting environmental degradationand enhancing the realisation of the right to environmentin sub-Saharan Africa needs to take cognisance of thefactors militating against the protection or conservationof the environment in the region This will be followedby a discussion of the core components of the holisticor integrated approach to be adopted by sub-SaharanAfrican governments in order to enhance the protectionof the environment and realisation of the right toenvironment in the region Finally the article is

concluded with some recommendations on how theinternational community can help sub-Saharan Africancountries in protecting their environment and enhancingthe realisation of the right to environment in the region

2FACTORS RESPONSIBLE FORENVIRONMENTAL DEGRADATIONIN SUB-SAHARAN AFRICA

The degraded state of sub-Saharan Africarsquos environmenthas been attributable to mostly non-natural or man-madeincidents such as inter alia climate change invasive alienspecies over-harvesting deforestation charcoalproduction and consumption pollution hazardous anduntreated wastes and land cover change13 Themillennium Ecosystem Assessment (MA) describesthese incidents as direct drivers of environmentaldeterioration14 It should be noted that with theexception of climate change that has been attributed toanthropogenic greenhouse gases (GHGs) emission byindustrialised countries15 most of these environmentallydevastating incidents are caused or exacerbated byhuman and industrial activities within Sub-SaharanAfrica The emergence or occurrence of these incidentsor direct drivers is in turn influenced by human acts oromissions that are mostly socio-economic and politicalin nature16 These socio-economic and political issueswhich are interlinked include17

Sub-Saharan Africa - Holistic Approach to the Realisation of the Right to Environment

110

10 See United Nations Environment Programme AfricanEnvironmental Outlook 2 Our Environment Our Wealth (NairobiUNEP 2006) (hereinafter AEO 2) and United NationsEnvironment Programme African Environmental Outlook PastPresent and Future Perspectives (Nairobi UNEP 2002)(hereinafter AEO I)

11 See National Environmental Management Authority(NEMA) State of Environment (SoE) Report for Kenya2003 (Nairobi NEMA 2003)

12 See Department of Environmental Affairs and Tourism(DEAT) South Africa Environment Outlook A Report onthe State of the Environment (Pretoria DEAT 2006)

13 See AEO I note 10 above chapter 2 AEO 2 note 10 abovechapter 2 and National Environmental ManagementAuthority note 11 above at 9-16

14 World Resource Institute Millennium Ecosystem Assessment 2005Ecosystem amp Human Well-Being Synthesis 67-70 (WashingtonDC Island Press 2005) (hereinafter MA General Synthesis)and Don Melnick et al Environment and Human Well-Being APractical Strategy (London Earthscan 2005)

15 Africarsquos contribution to global GHG emission is negligibleSee AEO 2 note 10 above at 59

16 See Johan Hattingh and Robin Attfield lsquoEcologicalSustainability in a Developing Country such as South AfricaA Philosophical and Ethical Inquiryrsquo 6(2) The InternationalJournal of Human Rights 65 86-87 (2002)

17 Note that these socio-economic and political issues may alsooverlap among the factors The MA has referred to thesefactors and issues as indirect drivers See World ResourceInstitute note 14 above at 64-66

21 Poverty

Poverty is prevalent in sub-Saharan Africa This can beseen from the fact that the bottom 25 spots of theUnited Nations (UN) quality of life index are regularlyfilled by Sub-Saharan African nations18 while Sub-Saharan African nations usually constitute two-third ofthe 50 nations on the UN list of least developedcountries19 Poverty as used in this article ismultidimensional20 and goes beyond lack of incometo include as proposed by the United NationsDevelopment programme (UNDP) lsquothe denial ofopportunities and choices most basic to humandevelopment - to lead a long healthy creative life andto enjoy a decent standard of living freedom dignityself-esteem and the respect of others21 The NEPADEnvironmental Action Plan (NEPAD-EAP) hasidentified poverty as the main cause and consequenceof man-made environmental degradation and resourcedepletion in Africa22 Thus it can be argued thatenvironmental degradation and poverty are inextricablyintertwined23 The consequence of this linkage is avicious cycle in which poverty causes the degradationof the environment and such degradation in turnperpetuates more poverty24 As aptly observed by Fabralsquohellippoverty and environmental degradation are oftenbound together in a mutually reinforcing vicious cycle

and thus human rights abuses related to poverty can beboth cause and effects of environmental problemsrsquo25

The effects of poverty in perpetuating environmentaldegradation and non-realisation of the right toenvironment can be seen at both public and private levelsin sub-Saharan Africa At the public level it adverselyaffects the stringency of environmental regulations inorder to attract more investments into sub-SaharanAfrican countries the amount of public fund spent onenvironmental protection by these countries and inextreme cases encourages States complicity or activeparticipation in the degradation of their environment asevidenced by some sub-Saharan African governmentssigning agreements with American or Europeancompanies to dispose hazardous wastes in theirterritories26 At the private level it leads to the poor beingforced to rely heavily on the ecosystem for theirnutritional and energy needs thereby leading in mostcases to the degradation of the environment27 As aptlyobserved by Johnson lsquo[t]he very poor were driven to destroythe environment because they had no other possibilitiesIt was a question of sheer survival The only hope is toimprove their lot dramaticallyrsquo28 The issue ofdeforestation in Africa exemplifies the effect of incomepoverty on the environment29 Rising demand for fuelwood and charcoal for energy needs has been identifiedas one of the major causes of deforestation in the region30


111

18 See United Nations Development Programme (UNDP)Human Development Indices A Statistical Update 2008 27-28(New York UNDP 2008) List shows that African countriescomprise 25 out of 26 countries with low humandevelopment

19 For current list of the Least Developed Countries as on 22August 2009 see httpwwwunohrllsorgenldcrelated62

20 For a comprehensive treatment of the nature dimensionand manifestation of poverty see Focus on Global SouthAntipoverty or Anti Poor The Millennium DevelopmentGoals and the Eradication of Extreme Poverty or Hunger2003 available at httpfocusweborgpdfMDG-2003pdf

21 United Nations Development Programme (UNDP) HumanDevelopment Report Human Development to Eradicate Poverty 5(New York UNDP 1997) For similar definition see para 3of United Nations Administrative Committee onCoordination Statement of Commitment for Action toEradicate Poverty UN Doc E199873 (1998)

22 See New Partnership for Africarsquos Development (NEPAD)Action Plan of the Environment Initiative of the NewPartnership for Africarsquos development 2003 para 23(Hereinafter NEPAD-EAP)

23 Id para 124 Id para 3 See also World Resource Institute note 14 above

at 62

25 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 January2002) available at httpuchchrchenvironmentbp3pdf

26 See James Brooke lsquoWaste Dumpers Turning to West AfricarsquoThe New York Times 17 July 1988 available at httpwwwnytimescom19880717worldwaste-dumpers-turning-to-westafricahtml pagewanted=all

27 See AEO 2 note 10 above at 1328 Stanley P Johnson ed The Earth Summit The United Nations

Conference on Environment and Development (UNCED) 145(London Graham amp Trotman 1993)

29 Other adverse effect of income poverty on the environmentin Africa include atmospheric pollution through burning ofunclean fuel biodiversity loss through the bush meat tradeand other forms of overexploitation and slums See AEO 2note 10 above chapter 2

30 See AEO 2 note 10 above at 204 213-214 amp 221 See alsoAEO I note 10 above at 225 and Rasheed Bisiriyu TheConnection between Energy Poverty and EnvironmentalDegradation 2004 available at httpwwwgasandoilcomGOCnewsnta42939htm

Such rising demand is due to the inability of the poor inAfrica to access modern and cleaner energy sourcescaused principally by lack of income31 It should benoted that the adverse effects of the rising demand forfuel wood and charcoal for energy purposes is notrestricted to deforestation alone as it has equally led toloss of biodiversity as well as increased atmospheric airpollution in Africa32 With regard to the latter in Kenyafor example charcoal production and consumption arebelieved to be emitting more GHGs than the industryand transport sectors combined33

The effect of income poverty is not restricted tooverexploitation or degradation of the environment asit equally affects demand for better environmental qualityby citizens from their governments34 This is based onthe assumption that at low levels of income people inpoor countries are more likely to be preoccupied withsustenance and achieving their basic needs than to botherwith environmental quality However the reverse is thecase when such countries became high-income economiesas such high income would lead to citizensrsquo demand forstricter and better environmental control from their policymakers35 Ruttan observed this relationship in hispresidential address to the American AgriculturalEconomics Association in 1971 when he stated

lsquoIn relatively high-income economies the incomeelasticity of demand for commodities andservices related to sustenance is low and declinesas income continues to rise while the incomeelasticity of demand for more effective disposalof residuals and for environmental amenities is

high and continues to rise This is in sharpcontrast to the situation in poor countries wherethe income elasticity of demand is high for sustenanceand low for environmental amenitiesrsquo36

The issue of access to court by litigants exemplifies therelationship between a rise in per capita income anddemand for environmental quality It should be notedthat legal remedies constitute one of the means by whichenvironmentally conscious citizens can force theirgovernment to adopt more stringent environmentalregulations or to strictly apply existing environmentalregulations and standards37 However access to legalremedies is dependent on the litigants being able toafford it38 This invariably means having the financialwherewithal to hire lawyers and use legal institutions aswell as offsetting the opportunity cost generated by beingaway from income-generating activities in the courseof the litigation39 Such resources are not available topoor people40 The situation is more critical where the


112

31 Id See also Maureen Cropper and Charles Griffith lsquoTheInteraction of Population Growth and EnvironmentalQualityrsquo 84(2) American Economic Peer Review Papers and Proceedings250 (1994) and United Nations Environment Programme(UNEP) and International Institute for SustainableDevelopment (IISD) Human Well-Being Poverty amp EcosystemServices Exploring the Link 18 (Nairobi UNEP amp IISD 2004)

32 See AEO 2 note 10 above at 60 65 213 amp 25133 Republic of Kenya National Energy Policy Draft (Nairobi Ministry

of Energy 2002) as cited in AEO 2 note 10 above at 6534 See David Hunter James Salzman and Durwood Zaelke (eds)

International Environmental Law amp Policy 2ed 1128-1129 (2002)35 Id See also Gene M Grossman and Alan B Krueger

lsquoEconomic Growth and Developmentrsquo 110 Quarterly Journalof Economics 353 (1995) and M Munasinghe lsquoCountrywidePolices and Sustainable Development Are the LinkagesPerversersquo International Yearbook of Environmental and ResourceEconomics 19981999 ndash A Survey of Current Issues 33 (1998)

36 Vernon W Ruttan lsquoTechnology and the Environmentrsquo 53American Journal of Agricultural Economics 707 (1971)

37 For example in India the court has been used by public-spirited individuals to force the government to strictlyenforce environmental law See Michael Anderson lsquoIndividualRights to Environmental Protection in Indiarsquo in Alan Boyleand Michael Anderson eds Human Rights Approaches toEnvironmental Protection 211 (Oxford Oxford University press1998) Such potential also exist in South Africa See alsoGovernment of the Republic of South Africa and others v Grootboomand others 2001 (1) SA 46 (CC) Minister of Health and others vTreatment Action Campaign and others No 2 2002 (5) SA 721Earthlife Africa (Cape Town) v Director-General Department ofEnvironmental Affairs and Tourism and another 2005 (3) SA 156(C ) and Director Mineral Development Gauteng Region andAnother v Save the Vaal Environment and Others 1999 (2) SA709 (SCA) However such opportunity is highly restrictedin Nigeria See Oronto-Douglas v Shell Petroleum developmentCorporation and 5 Others Unreported Suit No FHCCS 57393 Delivered on 17 February 1997

38 See Michael Anderson Access to Justice and Legal ProcessMaking Legal Institutions Responsive to Poor People in theLDC 1999 available at httpsiteresourcesworldbankorgINTPOVERTY ResourcesWDRDfiD-Projectpapersandersonpdf (Hereinafter Anderson II)

39 Id at 1840 See Engobo Emeseh The Limitation of Law in Promoting

Synergy Between Environment and Development Practicesin Developing Countries A Case Study of the PetroleumIndustry in Nigeria available at httpuserpagefu-berlindeffuakumweltbc2004downloademeseh_fpdfand World Resources Institute et al The Wealth of thePoor - Managing Ecosystems to Fight Pover ty 76(Washington DC World Resources Institute 2005)

state agency in Nigeria44 According to Ayode lsquoIf youwant useful information from a government departmentthey will not give it to you They will tell you it is classifiedinformation45 It should be noted that the refusal bypublic authorities to grant access to information inNigeria is supported by a plethora of laws most notablythe Official Secret Act46 It is however not only Nigeriathat has sought to restrict access to information as mostcountries in sub-Saharan Africa are equally guilty of thisrestrictive practice47 This has led to a situation where inthe whole of sub-Saharan Africa it is only lsquoSouth Africawhich remains the only African country that has passedand implemented an Access to Information law Uganda andAngola have also passed FOI legislation but these havenot been brought into force yet The Zimbabwean Accessto Information and Protection of Privacy Act is a classic exampleof what an FOI law should not be48

Lack of access to information contributes directly andindirectly to the degradation of the environment in sub-Saharan Africa It is direct where it limits the ability ofthe poor to protect the environment upon which theydepend for their sustenance by affecting either theirability to be effective players in environmental policyand decision-making processes that affect them49 ortheir ability to mobilise support to demand sustainablesolutions to their environmental problems50 Theindirect effect of lack of access to information onenvironmental degradation is through its contributionin exacerbating poverty which as earlier identified in this

litigation is in the public interest and may not yield anypersonal gain to the litigants in the form of adequatemonetary compensation when successful The positionis more likely to change as their per capita income risesas they can now afford to not only demand betterenvironmental standards from both government andpolluting industries but also use the instrumentality ofthe court in such pursuit where necessary41 In additionbetter income level will help in pursuing the case to itsconclusion thereby avoiding a situation whereby thepolluters will avoid prosecution by offering gratificationsto the poor plaintiffs to withdraw the suit42

22 Lack of Access to Informationand Public Participation

The rights of public access to information andparticipation in governance decision-making process areessential for empowering poor people as such rightsenhance their abilities as well as opportunities toparticipate in the decisions that affect their well-beingand livelihood Thus in the absence of these proceduralrights the prospects of achieving sustainabledevelopment objectives such as environmentalprotection and poverty reduction and sustainabledevelopment will be adversely affected43 This ispresently the situation in sub-Saharan Africa whereaccess to information held by public authorities isrestrictively regulated under the guise of safeguardingpublic security and safety As aptly complained by LongeAyode of Media Rights Agenda (MRA) a Lagos-basednon-governmental organisation (NGO) this veil ofsecrecy makes it difficult to get information from any


113

41 See Anderson II note 38 above at 942 In the Tiomin case in Kenya there was the allegation that

some of the parties were bought off thereby facilitating easyextra-judicial settlement of the dispute See Patricia Kameri-Mbote lsquoTowards Greater Access to Justice in EnvironmentalDisputes in Kenya Opportunities for Interventionrsquo(Geneva International Environmental Law Research CentreWorking Paper1 2005) available at wwwielrcorgcontentw0501pdf

43 See AEO 2 note 10 above at 34 and Department forInternational Development United Kingdom (DFID)Directorate General for Development EuropeanCommission (EC) United Nations DevelopmentProgramme (UNDP) amp The World Bank Linking PovertyReduction and Environmental Management PolicyChallenges and Opportunities 32-33 (Washington DC TheWorld Bank 2002)

44 See Sam Olukoya lsquoNigeria Freedom of Information BillProves Elusiversquo Inter Press Service 21 June 2004 available athttpwwwafrikanoDetailed5699html

45 Id46 The Official Secret Act Cap 335 LFN 199047 See Lawrence Carter lsquoFeature Ghana Needs to Enact

Freedom of Information Lawrsquo Joyonline 25 August 2009available at httpnewsmyjoyonlinecomfeatures20090834344asp Anne Nderi lsquoAfrica Freedom of Information isDemocracyrsquos Cornerstonersquo Pambazuka News 25 September2008 available at httpallafricacomstories200809250776html and Mukelani Dimba lsquoThe Right toInformation in Africarsquo Pambazuka News 23 September 2008available at httpwwwafricafilesorgarticleaspID=19044

48 Id49 See AEO 2 note 10 above at 3450 See Jona Razzaque lsquoImplementing International Procedural

Rights and Obligations Serving the Environment and PoorCommunitiesrsquo in Tom Bigg and David Satterthwaite edsHow to Make Poverty Histor y The Central Role of LocalOrganizations in Meeting the MDGs 175 (London InternationalInstitute of Environment and Development 2006)

article is the main cause of environmental degradationin Africa This is evident from the fact that lack of accessto information affects the ability of the poor to makeinformed livelihood choices as they are unable to accessinformation regarding market prices for their cropsalternative cropping or pest control options availabilityof government assistance or training programs oropportunities for developing new products or marketsfor environmental goods51 Thus it can be argued thatlack of access to such information affects their prospectsof escaping the poverty trap since they are unable totake advantage of new opportunities for generatingincome and increasing their assets52 In addition lackof information exacerbates poverty as it affects thepeoplersquos knowledge of their right to land and itsresources As aptly observed by UNDP et al53 lsquo[f]or thepoor it is their rights and the enforcement of thoserights within the law that usually determine whether theywill plant husband harvest and successfully managethe natural resource base for environmental income andenvironmental wealth or work on the margin ofsubsistence54

Furthermore lack of access to information also affectspeoplersquos ability to fight corruption that deepens povertyby demanding transparency and accountability ingovernance from their government This is due to thefact that in countries where their citizens are uninformedor lacked access to information there is generally lowawareness of what the governments are doing and howthey spent their national resources55 The low awarenessin turn promotes corruption as governments have littleincentive to improve performance deliver on theirpromises or even provide basic services at adequatelevels as the possibility of holding them accountable isvirtually non-existent56 As observed by Transparency

International lsquo[c]orruption thrives in environmentswhere information is either too segregated or aggregatedis not comparable and prevents conclusions on financialresource utilisation from being drawn57 This is evidentfrom the findings of Reinikka and Svenson that anewspaper campaign in Uganda informing parents andschools of the fund provided by the government foreducation substantially reduced the fraction of the fundscaptured by bureaucrats and politicians and increasedtrue spending in educational infrastructure58

Coupled with the issue of lack of access to informationin exacerbating the degradation of the environment insub-Saharan Africa is lack of public participationespecially by the poor in the decision-making processthat affects both their livelihood and well-being includingdecisions on how government resources are to bedistributed and the environment on which they dependfor their sustenance59 With regard to the latter it shouldbe noted that their participation in the policy andplanning process is essential to ensuring that keyenvironmental issues that affect their livelihoods andwell-being are adequately addressed60 In the absenceof such participation not only will development projectssuch as industries and dams adversely affect the poorthrough displacement and loss of livelihood but alsorules intervention and processes otherwise designed toprotect the environment may end up depriving poorpeople or communities of their livelihood by denyingthem access to environmental resources or underminingtheir traditional tenure rights61 This in turn stimulates


114

51 See World Research Institute et al note 40 above at 7352 Id53 UNDP et al Assessing Environmentrsquos Contribution to

Poverty Reduction (New York UNDP 2005)54 Id at 1255 See World Research Institute et al note 40 above at 73 See

also Transparency International Poverty Aid and Corruption9 (Berlin Transparency International Policy Paper No 012007)

56 Id See also Nurhan Kocaoglu and Andrea Figari eds Usingthe Right Information as an Anti- Corruption Tool (BerlinTransparency International 2006) available at httpw w w t r a n s p a r e n t n o s t o r g y u a k t i v n o s t i s l o b o d a n _ p r i s t u p _ i n f TI2006_europe_access_informationpdf

57 See Transparency International note 55 above at 958 R Reinikka and J Svenson lsquoFighting Corruption to Improve

Schooling Evidence from a Newspaper Campaign inUgandarsquo 3 Journal of the European Economic Association 1(2005)

59 See World Resources Institute et al note 40 above at 75 Seealso UNEP and IISD note 31 above at 23

60 See DFID et al note 43 above at 32 Dilys Roe lsquoTheMillennium Development Goals and Natural ResourceManagement Reconciling Sustainable Livelihoods andResource Conservation or Fuelling a Dividersquo in DavidSatterthwaite ed The Millennium Development Goals and LocalProcesses Hitting the Target or Missing the Point 55 (LondonIIED 2003) and Sonja Vermeulen lsquoReconciling Global andLocal Priorities for Conservation and Developmentrsquo in DilysRoe ed Millennium Development Goals and ConservationManaging Naturersquos Wealth for Societyrsquos Health 74 (London IIED2004)

61 See Razzaque note 50 above at 175-176 Roe note 60 aboveat 61 and Daniel W Bromley Environment and Economy PropertyRights and Public Policy 131-132 (Oxford Blackwell 1991)

resentment and low support for the environmental rulesinterventions and processes from the affectedsurrounding communities62 Such resentment and lowsupport will adversely affect the implementation or long-term viability of the environmental rules and processesas the affected communities will resort to underminingthem63

23 Lack of Access to Justice

The right of access to justice when onersquos right is infringedor threatened is as much important in empoweringpeople as the rights of public access to information andpublic participation The absence of this rightcontributes to lsquolawlessnessrsquo in a society and this in turncauses or exacerbates poverty with adverse consequencefor the protection or conservation of the environmentand its resources in Africa64 Lack of access to justicemay be due to either corruption or procedural injusticesin the legal or court systems With regard to the formercitizens especially the poorest may be denied access tojustice when they are unable or unwilling to cough upthe money needed to speed up the judicial proceedingsor to influence its outcome65 When this occurs the


ability of the judiciary to render impartial and fairdecisions is usually compromised while justice is for saleto the highest bidders or bribers66 In such a situationthe enjoyment of the democratic right to equal accessto courts guaranteed in most African constitutionsbecomes a mirage As aptly stated by De SwartTransparency International Managing Director lsquo[a]s longas the machinery of law enforcement remains taintedthere can be no equal treatment before the law -as statedin the Declaration- nor can there be any real guaranteeof human rights more broadlyrsquo67

The procedural injustice in the legal systems in sub-Saharan Africa that affects access to justice is evidencedby the procedural requirement of locus standi in publiclaw litigation This rule of locus standi has been employedby the governments or their agencies to frustrate thechallenges of their citizens who have resorted to thecourts to demand accountability68 The effect of thisdenial of access to judicial remedy is rampant abuse ofpower and corruption as public officials are not legallybound to be accountable to their citizens As observedby Odje regarding the effect of lack of access to justiceon corruption in Nigeria

lsquoSome of the consequences of this restrictionon access to Court include unbridled profligacyperfidy and corruption in high places Thuselected officials are no longer accountable to thepeople whilst the president becomes vested withunlimited powers The cumulative result beingthat today Nigeria is voted by TransparencyInternational as the sixth most corrupt countryin the world Previously Nigeria had the WorldSilver Medal for corruption being placed on anlsquoenviable second positionrsquorsquo69

115

62 Neema Pathak Ashish Kothari and Dilys Roe lsquoConservationwith Social Justice The Role of Community ConservedAreas in Achieving the Millennium Development Goalsrsquo inBigg and Satterthwaite eds note 50 above at 67 amp 71

63 This is exemplified by the recent report of the poisoning ofcarnivores by Basongora herdsmen occupying part ofUgandarsquos second largest game park See lsquoCarnivores Poisonedin Ugandarsquo 24ComNews 26 July 2007 available at httpwww24comnews=afaamp1=607720

64 Anderson listed several ways in which lawlessness contributesto poverty These include unchecked abuse of political poweras evidenced by restrictions on freedom of the press andexpression that affects global action in response to famineor other major threats to human life unchecked violence bypublic officials that deprives poor household of essentialincome increase costs and exacerbate indebtedness anddeprivation of access to public goods as a result of the poorbeing unable to pay the bribe demanded by officials SeeAnderson II note 38 above at 3-4

65 See Transparency International Report on the TransparencyInternational Global Corruption Barometer 2007 6-7 (BerlinTransparency International 2007) TransparencyInternational Summary Report of National Integrity SystemStudies of DRC Mauritius South Africa MozambiqueBotswana Zambia and Zimbabwe 12-14 (BerlinTransparency International 2007) and TransparencyInternational The Kenya Bribery Index 2006 (BerlinTransparency International 2006) (Ranked Kenya Judiciaryas the worst sixth offender)

66 Transparency International Report on the TransparencyInternational Global Corruption Barometer 2007 6 (BerlinTransparency International 2007) and lsquoKenya Wields Axeon Judgesrsquo BBC News 16 October 2003 available at httpnewsbbccoukgoprfr-2hiAfrica3195702stm

67 Quoted in Transparency International lsquoNo Guarantee ofHuman Rights While Corruption Persistsrsquo Press Release 10December 2007 available at httpwwwtransparencyorgnews_room l a t e s t_newspre s s_ r e l e a s e s20072007_12_10_cape_town_ceremony

68 See Akpo Mudiaga Odje lsquoAbuse of Power and Access toCourt in Nigeriarsquo ThisDay 16 November 2004 available athttpwwwthisdayonlinecomarchive2004102620041026law05html

69 Id

Lack of access to justice contributes to the degradationof the environment in sub-Saharan Africa as it affectsnot only the ability of the citizens especially the poor todemand for the protection of the environment that isessential to their sustenance but also hampers the effortsof persons or organisations interested in the protectionof the environment This is more critical where theenvironmental resources being degraded are nationalresources for which no particular person can claim aspecific tenure rights such as forests and water resourcesThe lack of access to justice in such a scenario may notbe unconnected with the procedural requirement of locusstandi as most people interested in protecting theirnational environmental resources may not be able todischarge its onerous requirement This is apparent inthe Nigerian case of Oronto-Douglas v Shell PetroleumDevelopment Company Ltd and 5 others70 where the plaintiffan environmental activist sought to compel therespondents to comply with provisions of theEnvironmental Impacts Assessment (EIA) Act beforecommissioning their project (production of liquefiednatural gas) in the volatile and ecologically sensitive NigerDelta region of Nigeria The suit was dismissed on thegrounds inter alia that the plaintiff has shown no legalstanding to prosecute the action

Lack of access to justice also contributes toenvironmental degradation in sub-Saharan Africa byundermining the enjoyment of property right especiallyfor the poor It should be noted that when the poorcannot access the machinery of justice in order to defendthemselves against the polluting or degrading activitiesof individuals multinational corporations or Statesponsored companies it constitutes a disincentive forthem to either take action against persons whose actionsdegrade their property values or invest in naturalresource management71 The latter may lead to poor

people prioritising short-term gains in the face ofuncertainty over long-term sustainability thereby causingenvironmental degradation and exacerbating theirpoverty72 As observed by the World Resource Institute(WRI) lsquohellipappropriate property rights regimesarehellipcentral to encouraging the poor to invest in theirland or in resource management in ways that bringeconomic development and poverty reductionrsquo73

Finally lack of access to justice contributes toenvironmental degradation in sub-Saharan Africa bypromoting corruption that deepens in the region as itaffects the ability of the poor to fight corruption bydemanding political accountability from their leaders Thisis due to the fact that access to administrative or judicialjustice is vital if citizens are to challenge abuse of powerand corruption by their public officials74 It should benoted that administrative justice is obtained by way ofpetitioning the appropriate agency for redress or sanctionsagainst the corrupt public officials75 while judicial justiceis by way of petitioning the courts With regard to thelatter Anderson has identified two important functionsof the courts or judiciary with respect to ensuring politicalaccountability vis-agrave-vis answerability and enforcement76

The former refers to the obligation placed upon publicofficials to make information available about theiractivities and to give valid reasons for their action77 Thelatter refers to the ability to impose sanctions on politicalleaders and other public officials who have acted illegallyor otherwise violated their public duties or to give anauthoritative pronouncement on which governmentactions are legal and which are not78 The judiciaryexercise these accountability functions principally bymeans of judicial review of either legislation oradministrative actions79 Judicial review is vital to curbingcorruption by acting as a check on the excesses oflegislative and executive arms of government80


116

70 See Oronto-Douglas v Shell Petroleum Development Company Ltdand 5 Others note 37 above For an equivalent Ugandandecision see Byabazaire Grace Thaddeus v Mukwano IndustriesMisc Application No 909 OF 2000 High Court of Uganda(Kampala Division)

71 See Daniel H Cole Pollution and Property Comparing OwnershipInstitutions for Environmental Protection 6 (CambridgeCambridge University Press 2002) and Bruce Yandle MayaVijayaraghavan and Madhusudan Bhatarai TheEnvironmental Kuznets Curve A Primer 14 (BozemanMontana Property and Environment Research Centre2002) available at httpwwwmacalesteredu~westsecon231yandleetalpdf

72 See Pathak et al note 62 above at 5673 See World Resources Institute et al note 40 above at 7574 See Odje note 68 above at 275 Such bodies include the Independent Corrupt Practices

Commission (ICPC) and Economic and Financial CrimesCommission (EFCC) in Nigeria Kenya Anti-CorruptionAuthority (KACA) and the Anti-Corruption Authority ofKenya

76 See Anderson II note 38 above at 677 Id78 Id79 Id80 Id at 7

24 Lack of Political Will

Another important factor responsible for causing theenvironmental degradation in sub-Saharan Africa is theissue of lack of political will on the part of Africangovernments to enforce environmental regulations orto adopt new and proactive regulations that willsafeguard the environment from degradation81 Thisreluctance may be due to the economic benefits derivedfrom the activities of the degrading industries in formof revenues and employment opportunities With regardto the latter it should be noted that many pollutingindustries have threatened job cuts when forced toadhere to environmental regulations like changing tocleaner production methods as it would involve heavyfinancial expenditure that will render their operationsuneconomical82 The use of this threat is implicit in thestatement of the then Group Managing Director of ShellInternational Petroleum Company at the parallel annualgeneral meeting of the Company held in the Netherlandsin May 1996 when he asked lsquo[s]hould we apply thehigher-cost western standards thus making the operationuncompetitive and depriving the local work force ofjobs and the chance of development Or should weadopt the prevailing legal standards at the site whilehaving clear plans to improve lsquobest practicersquo within areasonable timeframersquo83

Regarding the reluctance of the governments in sub-Saharan Africa to enforce or adopt more stringentenvironmental regulations due to economic reasons itis more pronounced where the activities of the pollutingor degrading industries is vital to the economy of the

country in question Thus the fear that the pollutingindustries may pull out of the country if required topay huge environmental costs or adopt more stringentenvironmental procedure is enough to deter thegovernment84 As observed by Professor Onokerhorayewith regard to the enforcement of environmentalregulations against oil companies in Nigeria lsquo[a] numberof environmental laws geared towards protecting theenvironment exist but are poorly enforced Theeconomic importance of petroleum to nationaldevelopment is such that environmental considerationsare given marginal attentionrsquo85 This is more pronouncedwhere the government is actively involved as a majorplayer in the polluting activities through its agencies orpublic companies In such a situation the governmentwill have less incentive to adopt a rigid and effectiveenforcement of environmental regulations against itselfor its joint venture partners86 The setting up of theNigeria Liquefied Natural Gas (NLNG) project at theBonny Rivers State of Nigeria evidences this reluctancewhen the government is economically actively involvedin a project87 According to Emeseh

lsquohellipthe mandatory environmental impactassessment required for the establishment of theproject was not done until after the project wasunder way hellip None of the regulatory agencies[involved] attempted to enforce the law andwhen community problems broke out later thefederal government was actively involved inassisting to a memorandum of understanding(MOU) between the NLNG and the communityso that the first shipment of LNG would notbe delayedrsquo88


117

81 See Soji Awogbade lsquoWhat is the Place of EnvironmentalLaw in Africarsquos Developmentrsquo AELEX 9 November 2006at pp 4-5 available at httpwwwworldservicesgroupcompublicationspfaspId =1597

82 See Adegoke Adegoroye lsquoThe Challenge of EnvironmentalEnforcement in Africa The Nigerian Experiencersquo ThirdInternational Conference on Environmental Enforcementavailable at httpwwwineceorg3rdvol1pdfAdegoropdf and Ifeanyi Anago Environmental Assessmentas a Tool for Sustainable Development The NigerianExperience (paper prepared for FIG XXII InternationalCongress Washington DC USA 19-26 APRIL 2002)available at httpwwwfignetpubfig_2002Ts10-3TS10_3_anagopdf

83 Quoted in Human Rights Watch The Price of OilCorporate Responsibility and Human Rights Violations inNigeriarsquos Oil Producing Communities (Washington DCHuman Rights Watch 1999)

84 See Joshua Eaton lsquoThe Nigerian Tragedy EnvironmentalRegulation of Transnational Corporations and the HumanRight to a Healthy Environmentrsquo 15 Boston UniversityInternational LJ 261 291 (1997)

85 Andrew G Onokerhoraye lsquoTowards EffectiveEnvironmental and Town Planning Polices for Delta Statersquoavailable at httpwwwdeltastategovngenviromentalhtm

86 See Eaton note 84 above at 289 amp 291 and Nelson EOjukwu-Ogba lsquoLegal and Regulatory Instruments onEnvironmental Pollution in Nigeria Much Talk Less Teethrsquo89 International Energy law amp Taxation Review 201 206 (2006)

87 This project resulted in the Oronto-Douglas case where theplaintiff sought to compel the defendants to observe therequirements of the EIA Act in Nigeria see Oronto-Douglasv Shell Petroleum development Corporation and 5 Others note 37above

88 See Emeseh note 40 above at 18-19

corruption on environmental policy-making is that itaffects the stringency of environmental policies orregulations Thus the higher the rate of corruption orrent-seeking the lower the stringency of theenvironmental policies adopted by the State94 Thissituation subsists despite the fact that citizens as a resultof an increase in their per capita income levels may havedemanded for improved environmental quality fromtheir government The reason for this state of affairs isthat the ability of the citizens to influence higherenvironmental quality as their income increases isdependent on the responsiveness of theirgovernments95 As articulated by Pellegrini and Gerlaghin their seminal article

lsquohellipcorruption levels negatively affect thestringency of environmental policies Ourestimates suggest that at a cross-country levela one standard deviation decrease in thecorruption variable is associated with a morethan two-thirds improvement in theEnvironmental Regulatory Regime Index Thisassociation appears to be statistically significantand robust The income variable is associatedwith less variation of the EnvironmentalRegulatory Regime Index a one standarddeviation increase in the income proxy isassociated with 016 times one standarddeviation increase in the ERRI in regression (4)and the statistical significance ranges from fiveto ten per centrsquo96

The governmentrsquos reluctance to strictly enforce or adoptnew and proactive environmental regulations may alsobe driven by the need to attract foreign investments89

The quest to attract foreign investments in this mannermay be motivated by the need to increase the revenuebase of the government as well as to provide jobs forcitizens90 It may also be motivated by the need tocomply with its mandatory economic liberalisation andderegulations requirements the centre piece of thestructural adjustment programmes (SAP) imposed ondebtor countries of which most sub-Saharan Africancountries fall into the category by the internationalfinancial institutions spearheaded by the InternationalMonetary Fund (IMF) and the World Bank91 Whateverthe reason or reasons for attracting foreign investmentsinto sub-Saharan Africa in this manner may be the endresult is that it has led to the transfer of environmentallypolluting or lsquodirtyrsquo industries and technologies into Africawith adverse consequences for its environment92

Furthermore the reluctance to strictly enforce or adoptnew and proactive environmental regulations may bedue to corruption This corruption is mostly in the formof either grand or petty corruption The former affectsenvironmental policy-making while the latter affectsenvironmental policy implementation93 The effect of


118

89 See Ojukwu-Ogba note 86 above at 20790 See Eaton note 84 above at 277 Abdulai Darimani lsquoImpacts

of Activities of Canadian Mining Companies in Africarsquo ThirdWorld Network ndash Africa Secretariat 31 October 2005 availableat httpwwwminingwatchcasitesminingwatchcafilesAfrica_case_studypdf and Basil Enwegbara lsquoTheGlobalization of Povertyrsquo The Tech 15 May 2001 available athttptechmiteduV121N26col26basil26chtml

91 Id at 2 amp 7 See also United Nations Commission on HumanRights (UNCHR) Economic Social and Cultural RightsAdverse 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 UN Doc ECN4200155 19 January2001 at pp 15-16 18 amp 22-23 paras 35 39 45 amp 64respectively and Femi Olokesusi and Osita M Ogbu lsquoDirtyIndustries A Challenge to Sustainability in Africarsquo in OsitaM Ogbu Banji O Oyeyinka and Hasa M Mlawa edsTechnology Policy and Practice in Africa (Ottawa InternationalDevelopment Research Centre 1995)

92 Id at 2-6 and See also United Nations Commission on HumanRights note 91 above at 13-16 paras 22-36

93 See JK Wilson and R Damania lsquoCorruption PoliticalCompetition and Environmental Policyrsquo 49(5) Journal ofEnvironmental Economics and Management 516 (2005) as citedin Pellegrini and Gerlagh note 72 above at 337

94 See Edward B Barbier Richard Damania and Daniel LeonardlsquoCorruption Trade and Resource Conversionrsquo 50 Journal ofEnvironmental Economics and Management 276 277 (2005)

95 See Lorenzo Pellegrini and Reyer Gerlagh lsquoCorruption andEnvironmental Policies What are the Implications for theEnlarged EUrsquo 16 Europe Environment 139 142-147 (2006)See also Lorenzo Pellegrini and Reyer Gerlagh lsquoCorruptionDemocracy and Environmental Policy An EmpiricalContribution to the Debatersquo 15(3) The Journal of Environmentand Development 332336-337 amp 340-344 (2006) (hereinafterPellegrini and Gerlagh II) Lorenzo Pellegrini CorruptionEconomic Development and Environmental Policy 2003available at httpwwwfeem-webitessess03studentspellegrpdf and Jessica Dillon et al Corruption and theEnvironment 13 (A project for Transparency InternationalEnvironmental Science and Policy Workshop ColumbiaUniversity School of International amp public affairs April 2006)available at httpwwwwatergovernanceorgdownloadsCorruption_amp_the20Environment_Columbia_Univ_WS_May2006pdf

96 See Pellegrini and Gerlagh note 95 above at 146

When corruption or rent-seeking influences thestringency of environmental regulations or policies itleads to a form of lsquoState capturersquo97 State capture refersto the actions of individuals groups or firms in boththe public and private sectors to influence the formationsof environmental laws regulations decrees and othergovernment policies to their own advantage as a resultof the illicit and non-transparent provision of privatebenefits to public officials98 This evidenced by thedecision of the government in Ghana to open up itsremaining pristine forest reserves for surface miningirrespective of the ecological consequences99 Accordingto Darimani the intense corporate lobbying of fivemultinational mining companies in Ghana principallyinfluenced the governmentrsquos decision100

Petty corruption on the other hand affects theenforcement of environmental policies or regulations101

Such corruption occurs mostly at the level ofenvironmental inspections and policing of illegal actssuch as poaching illegal logging resource traffickingdischarges and emissions102 Several studies have shownthat environmental regulations are ineffective andunlikely to be enforced if the bureaucrats and politicaloffice holders are corrupt103 Therefore it will appearthat the implementation of environmental regulationscannot thrive in a polity where there is pervasivecorruption104 As stated by the Environmental PublicProsecutor of Madrid lsquo[t]he non-compliance withenvironmental laws has its roots in the corruption ofthe political systemhellip Non-compliance withenvironmental laws is the best barometer of corruptionin a political systemrsquo105

The effect of corruption in the implementation ofenvironmental regulations is evidenced by thecontroversy surrounding the building of the NGLGproject in Nigeria It should be noted that the mandatoryEIA procedures before a project of such magnitude canbe carried was not done while none of the regulatoryenvironmental agencies intervened While it has beenargued in this article that the lack of regulatoryintervention is motivated by the need to protectgovernment revenue earning capacity recent events haveshown it goes beyond that This is due to the recentlyuncovered evidence of massive corruption by politicaloffice holders including the then Military Head of Stateand Oil Minister with regard to the awarding of thecontract for the construction of the NGLG facility106

This corruption even though on a grander scale maybest explain the reason why officials of both theerstwhile Federal Environmental Protection Agency(now National Environmental Standards andRegulations Enforcement Agency) which was then anintegral part of the presidency and the Department ofPetroleum Resources which is under the supervisionof the oil minister did not intervene107

25 Weak Institutional Capacity

Even if there is the political will the ability of thegovernment to enforce environmental regulations or to


119

97 See World Bank Anti-Corruption in Transition A Contributionto the Policy Debate (Washington DC World Bank 2000) ascited in Svetlana Winbourne Corruption and the Environment12 (Washington DC Management Systems International2002) available at httppdfdecorgpdf_docsPNACT876pdf

98 Id99 See Darimani note 90 above at 5100 Id101 See UNCHR note 91 above at 25 para 75102 See Winbourne note 97 above at 15-16103 See Pellegrini and Gerlagh II note 95 above at 335-336104 See Eaton note 84 above at 219 and P Robbins lsquoThe Rotten

Institution Corruption in Natural Resource Managementrsquo19 Political Geography 423 (2000) as cited in Pellegrini andGerlagh II note 95 above at 336

105 As quoted in Pellegrini and Gerlagh II note 95 above

106 See Anonymous lsquoHalliburton and Nigeria A Chronologyof Key Events in the Unfolding of Key Events in theUnfolding Bribery Scandalrsquo Halliburton Watch available ath t t p w w w h a l l i bu r t o n wa t ch o rg a b o u t _ h a l nigeria_timelinehtml For instances of corruption in theNigerian oil sector see Anonymous lsquoPDP KupolokunObaseki may Appear in US Court - Over N750m BriberyAllegation - FG to Probe Top Officialsrsquo Nigerian Tribune 8November 2007

107 Assuming that the corruption is vertical in which thepolitical office holders in turn bribe the public officialsFor instances of such corruption in South Africa seeInstitute for Security Studies lsquoCrook Line and Stinker theStory of Hout Bay Fishingrsquo ISS Newsletter 26 June 2003available at httpwwwissafricaorgPubsNewsletterUmqolissue0503html and Business Anti-CorruptionPortal South Africa Country Profile available at httpwwwbusiness-anti-corruptioncomcountry-profilessub-saharan-africasouth-africapageid=98 (reporting thestory of a former deputy Minister who after accepting adonation on behalf of his party granted the permissionfor the building of a golf estate despite the result ofenvironmental impact studies showing that environmentallysensitive areas would suffer from the estate)

adopt new and proactive regulations may be affected bythe weak institutional capacity of its regulatory agenciesSuch weak institutional capacity is manifested by theirlack of scientific and technical expertise108 It shouldbe noted that institutional scientific and technicalexpertise are necessary to monitor compliance withenvironmental regulations by the regulated industriesor to adopt new regulation as the need arises Wheresuch expertise is lacking the regulatory agencies maybe forced to rely on self-monitoring by the regulatedindustries or on the expertise of the regulated industriesthat can hardly be expected to give honest assistance109

As observed by the Special Rapporteur on toxic wastewith respect to the illicit trafficking of toxic waste

lsquoWaste tends to move towards areas with weakor non-existent environmental legislation andenforcement Many developing countries[including Africa] are unable to determine thenature of substances crossing their borderDeveloping countries often lack adequatelyequipped laboratories for testing and evaluationand the requisite specialised data systems orinformation on the harmful characteristics ofwastes In a number of cases offers made todeveloping countries by waste traders either didnot divulge vital information on the nature ofthe wastes or the information was distortedwaste brokers mixed one toxic waste with othersor redefined the waste as resource lsquogoodrsquorsquo110

In addition such expertise is necessary for a successfulprosecution of those found infringing environmentalregulations as it will enable the discharge of the stringentburden of proof in criminal cases As stated by Kidd

discharging this burden involves proving technical andscientific facts where it involves failure to meetprescribed standards of mens rea unless expresslyexcluded by legislation and actus reus which be mightdifficult especially in cases of multiple polluters111

The weak institutional capacity of most environmentalregulatory agencies may be caused by the lack ofadequate funding by their various African governmentsLack of adequate funding is mostly due to the fact thatAfrican nations like other developing nations withdevelopmental needs and declining national revenuesmost often push environmental issues down to thebottom of their national policy agenda while attachinga higher priority to economic and social issues112 Insuch a situation the funding of environmentalmanagement conservation and enforcementinstitutions is usually insufficient113 When under-funded these regulatory agencies lack the ability toacquire and retain the requisite scientific and technicalskills114 Furthermore it may lead to corruption bycreating a situation where poorly paid and unmotivatedofficials have an incentive not only to exploit loopholesin laws and regulations but also to take bribes duringenvironmental inspections and the policing of illegalenvironmentally related activities115

In addition weak institutional capacity may due tocorruption by public officials This usually occurs whenpublic officials divert fund allocated for environmentalprogrammes or projects to private pockets116 Such fund


120

108 See Ernest M Makawa Experience of Malawi Public Rolein Enforcement Fifth International Conference onEnvironmental Compliance and Enforcement available athttpwwwineceorg5thvol1makawpdf

109 See OA Bowen lsquoThe Role of Private Citizens in theEnforcement of Environmental Lawsrsquo in J A Omotola edEnvironmental Law in Nigeria Including Compensation 165-166(Nigeria Faculty of Law University of Lagos 1990) andAnthony Uzodinma Egbu lsquoConstraints to Effective PollutionControl and Management in Nigeriarsquo 20 The Environmentalist1315 (2000) (observing that neither the FMErsquos Port Harcourtzonal office or the Rivers State Environmental ProtectionAgency has a laboratory for water and soil analyses in casesof oil pollution making them to rely on the polluting oilcompanies for such determination)

110 See UNCHR note 91 above at 16-17 para 36

111 Michael Kidd lsquoEnvironmental Crime-Time for a Rethinkin South Africarsquo 5 SAJELP 181198 (1998)

112 For instance in Nigeria only 392 million Naira of the totalfund meant for environment in the First NationalDevelopment Plan 1962-1968 was disbursed Similarly only145 per cent of environmental fund in the Third NationalDevelopment Plan 1975-1980 See Environmental RightAction (ERA) lsquoInstitutional Framework for the Protectionand Management of the Environmentrsquo The Guardian 8December 2003 page 72 See also Adegoroye note 82 aboveat 48

113 See Dillon et al note 95 above at 14114 See Wilson MK Masilingi lsquoSocial-Economic Problems

Experienced in Compliance and Enforcement in TanzaniarsquoFourth International Conference on EnvironmentalEnforcement available at httpwwwineceorg3rdvol2masiligipdf

115 See Dillon et al note 95 above and Winbourne note 97above at 8

116 See Kingsley Nweze lsquoSenate Govs Spend Ecological Fundson Entertainmentrsquo ThisDay 3 January 2008

may be from budgetary or statutory allotment donationsand grants from other bodies This is exemplified bythe action of a former governor in Nigeria whomisappropriated N100 million from his Statersquos ecologicalfund to fund an unknown endeavour of the immediatepast president of Nigeria117 Finally armed conflictcontributes to low institutional capacity in most Africancountries by diverting funds mostly to war efforts aswell as facilitating loss of enforcement personnelthrough either death or displacement118

3A HOLISTIC APPROACH TOENVIRONMENTAL PROTECTION INSUB-SAHARAN AFRICA

It is apparent from the above discussion that the factorsresponsible for the degraded state of sub-SaharanAfricarsquos environment and consequent non-realisation ofthe right to environment are varied and go beyond purelyenvironmental issues to include wider socio-economicand political issues Thus any approach towardsenhancing the protection of the environment andrealisation of the right to environment in sub-SaharanAfrica must take cognisance of these issues in order toeffectively tackle the underlying causes of environmentaldegradation In essence any approach for the protectionof the environment in sub-Saharan Africa must not onlytarget the conservation of the environment but alsomust seek to address poverty and other causes ofenvironmental degradation in the region Hence theneed for sub-Saharan African countries to adopt aholistic or integrated approach in addressing the problemof environmental degradation in the region In adoptingsuch approach this article advocates the promotion ofgood governance and sound socio-economic reform in


121

sub-Saharan Africa as the core elements This is due tothe fact that good governance and sound socio-economic reform are vital and complementaryingredients in creating the enabling environment for theachievement of sustainable development objectivesincluding poverty reduction environmental protectionand realisation of the right to environment in sub-Saharan Africa119 Promoting good governance andsound socio-economic reform for the achievement of

117 See Victor E Eze lsquoMonitoring the Dimensions ofCorruption in Nigeriarsquo Nigeria Village Square Monday 25September 2006 available at httpwwnigeriavi l lagesquarecomar t iclesvictordikemonitoring-the-dimensions-of-corruption-in-nihtml

118 This is exemplified by the impacts of armed conflict onthe national parks in the Great Lakes Region of Africa SeeAEO 2 note 10 above at 400-403 and Reuters lsquoGunmenKill Ranger in DRCrsquo News24com 31 August 2007

119 See United Nations Development Programme (UNDP)Governance for Sustainable Human Development 9-11 (NewYork UNDP Policy Document 1997) available at httpwwwpogarorgpublicationsotherundp governanceundppolicydoc97-epdf We the People The Role of theUnited Nations in the 21st Century UNDoc GA9704available at httpwwwunorgNewsPressdocs200020000403ga9704dochtml United Nations GeneralAssembly Resolution 552 United Nations MillenniumDeclaration UN Doc ARes552 (2000) (hereinafterMillennium Declaration) In Larger Freedom TowardsDevelopment Security and Human Rights for All Reportof the Secretary-General UN Doc A592005 21 March2005 Road Map Towards the Implementation of theMillennium Declaration Report of the Secretary-GeneralUN Doc A56326 6 September 2001 (hereinafter MDGroadmap) Monterrey Consensus on Financing forDevelopment UN Doc ACONF 19811 22 March 2002at paras 11 40 amp 61 Plan of Implementation of the WorldSummit on Sustainable Development in Report of the WorldSummit on Sustainable Development Johannesburg 26August ndash 4 September 2002 UN Doc ACONF 19920(2002) at paras 4 62(a) 138 amp 141 2005 World SummitOutcome ARES601 24 October 2005 at paras 11 24(b)39 amp 68 and United Nations Economic Commission forAfrica Governance for a Progressing Africa Fourth AfricanDevelopment Forum (Addis Ababa United NationsEconomic Commission for Africa 2005) (where theExecutive Secretary of UNECA acknowledged that lsquonomatter what sectoral problem or national challenge we faceover and over again governance turns out to be pivotalrsquo)See also Shadrack Gutto lsquoModern lsquoGlobalisationrsquo and theChallenges to Social Economic and Cultural Rights forHuman Rights Practitioners and Activists in Africarsquo AfricaLegal Aid 12 13 (Oct-Dec 2000) Nsongurua J UdombanalsquoHow Should We then Live Globalization and the NewPartnership for Africarsquos Developmentrsquo 20 Boston UniversityIntrsquol LJ 293 320-345 (2002) Shedrack C AgbakwalsquoReclaiming Humanity Economic Social and Cultural Rightsas the Cornerstone of African Human Rightsrsquo 5 Yale HumRts amp Dev LJ 177 181 (2002) and Ministerial StatementConference of African Ministers of Finance Planning andEconomic DevelopmentFortieth session of theCommission Addis Ababa Ethiopia 2-3 April 2007 at paras7-9 available at httpwwwsarpnorgzadocumentsd0002484 Ethiopia_Conference_Apr2007pdf

sustainable development objectives in sub-SaharanAfrica implicates the following

31 Strengthening Rule of Law

Rule of law which is a vital aspect of good governanceguarantees to the citizens and residents of the countrylsquoa stable predictable and ordered society in which toconduct their affairsrsquo120 The key elements of the ruleof law include inter alia the making or existence ofreasonable and fair laws and regulations including humanrights environmental and economic laws that arerelevant to the social needs and aspirations of societyreasonable degrees of understanding and generalcommitment in the society as a whole (institutions andentities public and private including the State itself ) tothe principle of governance in accordance with the lawequality before the law and non-discrimination ofcitizens and independent efficient and accessiblejudicial systems121 The rule of law is very important tothe achievement of sustainable development objectivesincluding environmental protection and realisation ofthe right to environment in sub-Saharan Africa As aptlyargued by Shelton

lsquohellipthe rule of law ndash provides the indispensablefoundation for achieving all three ofthehellipessential and interrelated aspects ofsustainable development If economichellipandsocial development and environmentalprotection are visualised as the rings of theplanet Saturn then the rule of law forms the

planet itself its gravitational pull holds therings together and ensures their continuedexistence stability and functioningrsquo122

Strengthening the rule of law for the achievement ofsustainable development objectives includingenvironmental protection in sub-Saharan Africa requiresthe establishment and maintenance of the independenceand integrity of the judiciary It should be noted that acorrupt and politicised judiciary is a weak link in thegovernance structure as it erodes the citizensrsquo confidencein the State123 In addition laws and regulations nomatter how good or benign to citizens well-being anddevelopment are meaningless and cannot contribute tosustainable development without a transparent efficientand effective judicial system to enforce them124 This isof particular importance to the implementation andenforcement of environmental constitutional provisionsand laws which are not only susceptible to violation byprivate individuals but also by the State for variousreasons enumerated in the preceding section of thisarticle The importance of a transparent effective andindependent judicial system to the achievement ofsustainable development objectives includingenvironmental protection is that it offers lsquoan arena inwhich people can hold political leaders and publicofficials to account protect themselves from exploitationby those with more power and resolve conflicts thatare individual or collectiversquo125

In addition strengthening the rule of law in sub-SaharanAfrica requires the promotion or improvement ofaccountability and transparency in the conduct ofgovernmental affairs which is essential for tackling the

122


120 See Gita Welch and Zahra Nuru eds Governance for theFuture Democracy and Development in the LeastDeveloped Countries 41-42 (New York UN-OHRLLS ampUNDP 2006)

121 Id at 181-182 See also Sachiko Morita and Durwood ZaelkelsquoRule of Law Good Governance and SustainableDevelopmentrsquo available at httpwwwineceorgconference7vol105_Sachiko _Zaelkepdf Shadrack BO Gutto The Rule of Law Human and Peoplesrsquo Rights andComplianceNon-Compliance with Regional and InternationalAgreements and Standards by African States (paper preparedfor presentation at the African Forum for EnvisioningAfrica Nairobi Kenya 26ndash29 April 2002) available at httpwwwworldsummit2002orgtexts ShadrackGutto2pdf(hereinafter Gutto II) and Swiss Agency for Developmentand Cooperation (SDC) Governance ndashHuman Rights ndashRule of Law a Glossary of some Important Termsavailable at http wwwdezaadminchressourcesresource_en_24370pdf

122 See Dinah Shelton lsquoSustainable Development Comes fromSaturnrsquo 15(3) Our Planet 20 available at httpwwwuneporgOurPlanetimgversn153sheltonhtml Seealso Welch and Nuru note 120 above at 30 Morita andZaelke note 121 above at 1 Tommy Koh lsquoRule of Man orRule of Lawrsquo 15(3) Our Planet 14 available at httpwwwuneporgOurPlanetimgversn153kohhtml

123 See Aisha Ghaus-Pasha Governance for the MillenniumDevelopment Goal Core Issues and Good Practices 58(UNDESA 2006)

124 See Morita and Zaelke note 121 above at 1 and Welch andNuru note 120 above at 126-127

125 See Anderson II note 38 above at 1 See also Welch andNuru note 120 above at 118 and United Nations Reportof the International Conference on Financing forDevelopment UN Doc ACONF19811 (2002)

hydra-headed problems of corruption and other abusesof power that deepen poverty and environmentaldegradation in the region Accountability andtransparency requires the presence of democraticmechanisms that can prevent concentrations of powerand encourage accountability in a political system Suchmechanisms include the right to vote and othermechanisms for promoting or encouraging citizensrsquoparticipation and voice in governance126 a clearconstitutional separation of power between the differentbranches of government coupled with effective checksand balances so that no branch of government exceedsits authority and dominates the others127 establishmentof right of access to information and promoting thewatchdog role of civil society in a political system byremoving restrictive legislation that not only tightensgovernment control over the civil society but alsoreduces their ability to check nepotism corruption andlsquoelite capturersquo through monitoring the public and privatesector at all levels128

Furthermore strengthening the rule of law in sub-Saharan Africa requires an efficient responsivetransparent and accountable public administration129

Such a public administration system is not only ofparamount importance for the proper functioning of acountry it is also the basic means through whichgovernment strategies to achieve sustainabledevelopment objectives including poverty reduction andthe protection of the environment can beimplemented130 This is evident from the fact that askilled and properly managed public administrationsystem is not only efficient in the use of public resourcesand effective in delivering public goods but also iscapable of meeting the public expectations with regardto ensuring equitable distribution and access toopportunities as well as the sustainable managementof natural resources131 The latter will include theenforcement of environmental regulations or theadoption of new and proactive regulations when the

123


need arises Also such a public administration systemsignificantly improves the chances of preventingcorruption from taking root and from flourishing132

32 Promoting Respect for Humanrights

Promoting respect for human rights for the achievementof sustainable development objectives includingenvironmental protection in sub-Saharan Africademands that States respect not only civil and politicalrights but also social economic cultural andenvironmental rights133 This is because these rightsensure empowerment voice access to social servicesand equality before the law134 Thus respect for certaincivil and political rights such as access to informationincluding environmental information publicparticipation in governance including environmentaldecision-making process and access to justice ininstances of environmental harm is essential toenvironmental protection and realisation of the right toenvironment In addition promoting respect for allhuman rights including socio-economic andenvironmental rights is essential to the prevention ofarmed conflicts and civil wars one of the causes ofpoverty in sub-Saharan Africa as it not only providescitizens with political stability but also socio-economicsecurity including employment healthcare andshelter135 As aptly observed by Agbakwa lsquo[d]enial ofsocio-economic rights (or any rights at all) is hardlyconducive to peaceful co-existence It is usually a

126 See Ghaus-Pasha note 123 above at 55127 Id at 28128 See Welch and Nuru note 120 above at 92-93129 See Shelton note 122 above130 See Ghaus-Pasha note 123 above at 24 See also United

Nations General Assembly Resolution 57277 PublicAdministration and Development UN Doc ARES 57277 (2003)

131 Id

132 See Welch and Nuru note 120 above at 65133 See United Nations General Assembly Resolution 552 note

119 above para 24 Monterrey Consensus on Financing forDevelopment note 119 above para 11 Plan ofImplementation of the World Summit on SustainableDevelopment note 119 above paras 5 amp 138 and 2005 WorldSummit Outcome note 120 above paras 12 amp 24 (b)

134 See Shadrack C Agbakwa lsquoA Path Least Taken Economicand Social Rights and the Prospects of Conflict Preventionand Peacebuilding in Africarsquo 47(1) Journal of African Law38 58-62 (2003) (Hereinafter Agbakwa II)

135 See preambular paragraph 3 Universal Declaration onHuman Rights (UDHR) GA Res 217 UN DocA810(1948) Agbakwa II note 134 above at 38-47 Rachel MurraylsquoPreventing Conflicts in Africa The Need for a WiderPerspectiversquo 45(1) Journal of African Law 13 (2001) andUnited Nations Development Programme (UNDP)Human Development Report 2005 InternationalCooperation at a Crossroads-Aid Trade ad Security in anUnequal World 165-167 (New York UNDP 2005)

wellspring of popular discontent and violentconflictsrsquo136 This is evident from the present situationin the Niger Delta region of Nigeria where theenvironmentally degrading activities of multinational oilcompanies in collaboration with the State as well as theoverall neglect of the socio-economic needs of theregion by successive governments in Nigeria has led toarmed conflict and other social ills such as kidnappingsand armed robberies137

Promoting respect for human rights is only possiblewhen States establish transparent and accountablesystems of governance grounded in the rule of lawand provide access to justice for all members ofsociety138 With regard to the latter providing access tojustice involves not only strengthening the judicialsystem but also guaranteeing or facilitating access tojustice for all citizens especially the most vulnerableindividuals in society139 This will involve improving orreforming the judiciary in Africa in order to make thempro-poor Required actions in this area include the widedistribution of adequately funded and staffed courts inlocal communities and rural areas in order to minimisethe long delays in procuring justice access to legal aidand tackling judicial corruption by demanding judicialaccountability140 Judicial accountability is essential ifjudges are to decide cases fairly and impartially and forthe public including the poor to perceive the judiciaryas an impartial accessible body that strives to protecttheir rights and not that of vested interests141 Asobserved by Welch and Nuru lsquoif the judicial system isweak and unpredictable then efforts to provide remediesthrough the courts will be problematic It is at the judicial

level that corruption does the greatest harm [to the poor]and where reforms have the greatest potential to improvethe situationrsquo142

There is also the need for States in sub-Saharan Africato undertake legal reforms that will enhance the poorrsquosaccess to legal and administrative remedies This willinclude liberalising the locus standi rule to create greateraccess for individuals and NGOs acting in the publicinterest in instances of environmental degradationcorruption and other abuses of office eliminatingantiquated laws with anti-poor bias and reducing legaltechnicalities and simplifying legal language143

Furthermore increasing the poorrsquos access to legalinformation including environmental information aswell as raising their legal literacy level is vital toimproving their ability to access legal remedies144 Alsothe role of civil society organisations including NGOsin promoting or procuring access to justice for the poorshould be supported and strengthened145 This is veryimportant as in most instances of environmentaldegradation the hope of the poor in getting legal orjudicial redress rests mostly on the activities of theNGOs146 In addition to the courts the establishmentof independent human rights institutions orombudsman offices as well as effective law enforcementoutfits are equally relevant This is very important aslsquo[p]ublic access to information is vital for effectiveenvironmental management A free media has beeninstrumental in highlighting environmental problems inboth the public and the private sectors In somecountries the State has effectively used public pressureby making information publicly available in order toencourage greater pollution compliancersquo147

136 See Agbakwa II note 134 above at 42137 For a detailed discussion of the situation in the Niger Delta

region of Nigeria See Victor Ojakorotu Natural Resourcesand Conflicts within African States Oil Niger Delta andConflict in Nigeria (Paper Presented at the United NationsUniversity (UNU) Global Seminar on lsquoAfricarsquos NaturalResources Conflict Governance and Developmentrsquo heldat the Wits Club University of the Witwatersrand JohannesburgSouth Africa 29-30 October 2008) (not yet published)

138 See Welch and Nuru note 120 above at 118139 Id at 127140 See Njuguna Ngrsquoethe Musambayi Katumanga and Gareth

Williams Strengthening the Incentives for Pro-Poor PolicyChange An Analysis of Drivers of Change in Kenya 2004available at httpwwwgsdrcorgdocsopenDOC24pdf

141 See Welch and Nuru note 120 at 135-136 and ANSA-AfricalsquoKenya PM Criticizes the Judiciaryrsquo Kenya BroadcastingCorporation 24 October 2008

142 Id at 135143 See Anderson II note 38 above at 24144 Id145 Id See also Ghaus-Pasha note 123 above at 60146 For example the communication brought against the

Nigerian government for environmental and other abusesagainst the Ogoni minority group of Nigeria was institutedon their behalf by an NGO Social and Economic Rights ActionCenter (SERAC) and another v Federal Republic of NigeriaCommunication 15596 Decision of the AfricanCommission on Human and Peoplesrsquo Rights (Interpretingthis right under the African Charter) Available at httpw w w c e s r o r g t e x t 2 0 f i l e s f i n a l20Decision200020theEcosoc20matterpdf(Hereinafter SERAC communication)

147 See Department for International Development et al note43 above at 32


124

In addition States must promote and ensure theexistence or promulgation of laws consistent withinternational human rights standards This will includelaws that are not discriminatory but instead empowerthe vulnerable groups in society such as those providingfor their or their representativesrsquo access to informationand participation in governance including environmentaldecision-making process With regard to access toinformation required actions include publishing orproviding inter alia public access to laws and regulationsbudgets official data and performance indicators fullyaudited account of the central bank and of the mainstate enterprises such as those related to extractiveindustries procurement rules and incomes and assetsof public officials and parliamentarians148 In additiongovernment are required to provide legal protection forthe press and strengthen media freedom in order tofacilitate public access to a flow of information includingenvironmental information149

33 Promotion of DemocraticGovernance

The promotion of democratic governance is vital as theexistence of democratic processes principles andinstitutions which enable and promote pluralistic andnon-discriminatory participation is indispensable to theachievement of sustainable development objectivesincluding poverty reduction environmental protectionand realisation of the right to environment150 TheUNDP has identified the promotion of participationthrough democratic governance as the third pillar of a21st century human development strategy151 Similarlythe 2005 South African MDG Report states that the key tothe institution of policies and programmes for theimprovement of the quality of life of all people of South

Africa is the creation of a democratic state and theextension of a universal franchise152 The link betweendemocratic governance and the achievement ofequitable socio-economic development has beencomprehensively analysed by the UNDP in its 2002Human Development Report The Report finds thatlsquo[a]dvancing human development requires governancethat is democratic in both form and substancemdashfor thepeople and by the peoplersquo153 This finding is based onthe premise that democratic governance is not onlyvaluable in its own right but also can advance humandevelopment154

The promotion of democratic governance is also vitalfor the third aspect of sustainable development ndashenvironmental protection which is essential to therealisation of the right to environment155 This is dueto the fact that the protection or conservation of theenvironment generally fares badly under autocraticgovernments than under democratic ones as evidencedby the poor environmental performance of both theapartheid and military regimes in both South Africa andNigeria respectively156 Furthermore the environmentalcalamity of the former Soviet Union and the EasternCommunist Bloc attests to the negative effects ofautocratic regimes on the protection of the environmentSuch poor environmental performance is mostly due toautocratic governmentsrsquo abject disregard for the naturalenvironment in preference for political and economicconsiderations157 This is exacerbated by lsquoa [general] lackof transparencymdashautocratic governments arenotoriously poor in monitoring environmental pollutioncollecting information about polluters tabulating the

148 See UN Millennium Project Investing in Development APractical Plan to Achieve the Millennium DevelopmentGoals 116-118 (New York UNDP 2005)

149 Id See also Ghaus-Pasha note 123 above at 19150 See Monterrey Consensus on Financing for Development

note 119 above paras 11 amp 61 2005 World SummitOutcome note 120 above para 24 (a) and United NationsGeneral Assembly Resolution 552 note 119 above paras6 amp 13

151 The first two being investing in education and health andpromoting equitable economic growth See United NationsDevelopment Programme (UNDP) Human DevelopmentReport 2002 Deepening Democracy in a Fragmented World53 (New York Oxford University Press 2002)

152 See Government of the Republic of South AfricaMillennium Development Country Report 2005 2005available at httpwwwundporgzamdgcrdoc(hereinafter South African MDG Report 2005)

153 See United Nations Development Programme note 151above at 3 See generally Chapter two of the Report dealingwith lsquo[d]emocratic governance for human developmentrsquo

154 Id155 See James C Kraska lsquoGlobal and Going Nowhere

Sustainable Development Global Governance amp LiberalDemocracyrsquo 34 Denver J Intrsquol L amp Policy 247 279 (2006)

156 See South African MDG Report note 152 above at 45-46Raewyn Peart and Jessica Wilson lsquoEnviron- mental Policy-making in the New South Africarsquo 5 SAJELP 237 238-240(1998) and Eaton note 84 above at 266-271

157 See Kraska note 155 above at 156 See also Peart and Wilsonnote 156 above at 239 and Eaton note 84 above at 289 amp291


125

data and releasing it to the publicrsquo158 In contrastdemocratic governance by encouraging political freedomand participation in the decisions that shape onersquos life ndashunderpinned by freedom of speech and thought freedomof information free and independent media and openpolitical debate gives citizens a voice that allows them tobe heard in public policy-making159 The resultant publicpressure can influence decisions and actions of publicofficials as well as private agents with regard toenvironmental pollution and other environmentalabuses160 As aptly observed by James Kraska

lsquohellipopen societies are far more likely to produceeffective political counterweights to pollutingcommercial enterprisehellip This is because thetransparency and the widespread distribution ofinformation in a free society encourage betterenvironmental practiceshellip Democratic regimestend to distribute information about theenvironment around which popular expressionsof concern can collect In a free society peoplemay gather unhindered to form interest groupsand to lobby for stricter regulations Principlesof open debate permit environmentalists todistribute educational materials and promotenew ideas The flow of information in ademocracy also informs a free media making itmore likely that the government will bechallenged on environmental issuesrsquo161

Promoting democratic governance for sustainabledevelopment in sub-Saharan Africa requiresstrengthening democratic institutions and promotingdemocratic politics162 Strengthening democraticinstitutions is necessary as they implement policies thatare necessary to democracy and development163 Most

importantly they constitute formal accountabilitymechanisms through which citizens can check thepowers of their elected leaders and influence decisionsincluding those relating to the protection of theirenvironment thereby forcing governments tolsquointernalisersquo the social costs of their opportunisticbehaviour164 Strengthening democratic institutionsrequires Africans leaders to inter alia develop strongervehicles for formal political participation andrepresentation through political parties and electoralsystems strengthen checks on arbitrary power byseparating powers among the executive an independentjudiciary and the legislature as well as by creatingeffective independent entities such as ombudspersonselectoral commissions and human rightscommissions165 and develop free and independentmedia as well as a vibrant civil society able to monitorgovernment and private business and provide alternativeforms of political participation166

Democratic politics on the other hand is essentialtowards enabling citizens especially the poor and themarginalised to claim their rights and overcomeinstitutional obstacles167 In the absence of democraticpolitics public decisions in democracies including thoserelating to the protection of the environment as well asthe utilisation of the resources may end up respondingmore to interest groups such as big business or thecorrupt elite than to the public168 When people enjoycivil and political liberties they can put pressure onpublic decision-making for their interests169 Asobserved by the UNDP in its 2002 Human DevelopmentReport lsquo[a]n alert citizenry is what makes democraticinstitutions and processes work Political pressure from

158 Id See also Cynthia B Schultz and Tamara Raye Crockett lsquoEconomicDevelopment Democratization and EnvironmentalProtection in Eastern Europersquo 18 B C Envtl Aff L Rev 5362 (1990) See also Peart and Wilson note 156 above at 239-240

159 See United Nations Development Programme note 151above at 56-57

160 Id See also South African MDG Report note 152 above at 45161 See Kraska note 155 above at 304162 See United Nations Development Programme note 151

above at 64 See also Patrick Chabal lsquoThe Quest for GoodGovernment and Development in Africa is NEPAD theAnswerrsquo 73(3) International Affairs 447 456 (2002)

163 Nsongurua J Udombana lsquoArticulating the Right toDemocratic Governance in Africarsquo 24 Michigan J Intrsquol L1209 1271 (2003) (Hereinafter Udombana II)

164 Id at 1272 See also United Nations DevelopmentProgramme note 151 above at 64 and Rod Alence lsquoPoliticalInstitutions and Developmental Governance in Sub-Saharan Africarsquo 42(2) Journal of Modern African Studies 163166-167 amp 173-176 (2004)

165 See United Nations Development Programme note 151above at 71-74 See also Alence note 164 above at 175-177and Udombana II note 163 above

166 Id at 75-79 See also Chabal note 162 above at 452 amp 457and Udombana II note 163 above at 1274-1276

167 Id at 79 See also Alence note 164 above at 176-178 andUdombana II note 163 above at 1283

168 See Sakiko Fukuda-Parr The Millennium Development Goalsand Human Development International Symposium Tokyo 9October 2002 at 5

169 Id


126

below is usually the most effective trigger of changersquo170

Such pressure can crystallise into new environmentalactivism that leads to greater government responsivenessto environmental matters171 It can also influence thedevelopment of macro-economic policies thatcontribute to enhancing the basic capabilities of the poorsuch as the allocation of an adequate proportion ofpublic expenditure for basic education and healthservices the channelling of more credit to sectors likeagriculture and promoting development of small andmedium-scale enterprises and micro-credit orand theinstitution of pro-poor trade policy that would focuson providing incentives for the export of labour-intensive manufactures and providing some protectionto small farmers to ensure food security and rurallivelihoods172 As observed by Ghaus-Pasha animportant issue in the promotion of pro-poor policiesis lsquothe nature of political and economic institutionsThose in which policy making is transparent andparticipatory are more likely to promote the adoptionof pro-poor policiesrsquo173

34 Promotion of Education Healthand Other Socio-economic Reform

Sub-Saharan African governments must also promotesound socio-economic reform in order to enhance theachievement of sustainable development objectivesincluding environmental protection and realisation ofthe right to environment in the region This requiresrestructuring and reinvigorating their regulatory andeconomic policies in order to reduce theirmarginalisation speed up their integration into theglobalisation process and combat poverty174 Requiredactions in this area include removing obstacles to privateinvestment by streamlining and strengthening theirdomestic legal frameworks for doing business improvingpublic investment in infrastructure and providingeducation to ensure that domestic firms respond to new

opportunities associated with greater integration175 Inaddition African countries need to invest in their healthand educational infrastructures as improving both healthand education of their citizens will lead to higherproductivity and per capita income and which in turnwill positively affect the protection of the environmentSome sub-Saharan African countries like South Africahas to a certain extent improved its health andeducational facilities while others like Nigeria haswitnessed a steady deterioration of such facilitiesthereby depriving poor Nigerians access to goodeducation and healthcare176

Furthermore they should reform their agriculturalpolicies including promoting agricultural research sinceagriculture is the dominant sector of the regionrsquoseconomy177 This is necessary to avoid a situation wherea country like Nigeria has gone from being the majorexporter of palm products to being a net importer ofthe same product incidentally from both Malaysia andIndonesia that acquired the technical knowledge relatingto its cultivation probably from Nigeria178 Mostimportantly sub-Saharan African countries need toentrench the human dimension in all their developmentpolicies As aptly argued by Udombana lsquo[h]umanity mustbe the objective and supreme beneficiary ofdevelopment otherwise development becomes ameaningless vanity and vexation of the spiritrsquo179 Toachieve this African countries must take tangiblemeasures that will deliver to its citizens basic needs suchas nutritional food affordable housing clean drinkingwater effective and affordable drugs reliable electricityand telecommunications functional educational systemsand efficient transportation networks180

170 See United Nations Development Programme note 151above at 79

171 See Kraska note 155 above at 279 amp 304172 See Ghaus-Pasha note 123 above at 23-24 Lorna Gold

lsquoAre the Millennium Development Goals Addressing theUnderlying Causes of Injustice Understanding the Risksof the MDGsrsquo Trocaire Development Review 23 33-35 (2005)and Fukuda-Parr note 168 above

173 Id at 24174 See Udombana note 119 above at 54

175 World Bank Global Economic Prospects 2004 Realizing theDevelopment Promise of the Doha Agenda xv-xvi (WashingtonDC World Bank 2003)

176 Some commentators may contest the issue of South Africaimproving its educational and health facilities Howeverwhen compared to most African countries it can be arguedthat the government of South Africa has really tried in thisregard

177 See Udombana note 119 above at 56-57178 See United Nations Food and Agriculture Organisation

(FAO) Small Scale Palm Oil Processing in Africa (RomeFood and Agriculture Organisation FAO AgriculturalServices Bulletin No 148 2002) available atftpftpfaoorgdocrepfao005y4355Ey4355E00pdf

179 See Udombana note 119 above at 57180 Id at 59


127

4CONCLUSION

This article shows that despite the existence of variousregulatory frameworks for the protection of theenvironment in sub-Saharan Africa most of the citizensdo not enjoy a right to environment as a result ofenvironmental degradation It further discusses thevarious factors responsible for the degradation ofAfricarsquos environment It should be noted that thesefactors are not only interlinked but also complementeach other in contributing to environmental degradationin sub-Saharan Africa This can be seen from the factthat poverty not only affects the willingness of Africancountries to adopt and enforce environmentalregulations but also the capacity of their regulatoryagencies to enforce such regulations In addition eventsor issues that causes or exacerbates poverty in Africamay also be responsible for the reluctance of Africangovernments to enforce existing environmentalregulations or adopt new regulations as the need arisesDue to the multidisciplinary nature of these militatingfactors this article suggests sub-Saharan Africancountries adopt a holistic or integrated approach towardsaddressing the problem of environmental degradationand non-realisation of the right to environment in AfricaIt further suggests that good governance and soundsocio-economic reform should form an integral coreof such approach as they are vital ingredients in tacklingthe root causes of environmental degradation in Africa

It appears that African leaders have realised the need topromote good governance and socio-economic reformin the region by their adoption of NEPAD The NEPADinitiative despite its shortcomings offers a commonprogrammatic tool for the achievement of goodgovernance and socio-economic reform in Africa Itsmajor problem is whether member States of the AfricanUnion can mobilise enough political will to translate theirprovisions into concrete results181 Presently despite the

pledge of African leaders under NEPAD to holdthemselves accountable for creating the enablingenvironment for the achievement of sustainabledevelopment the problem of bad governance is stillafflicting many countries in the region This isexemplified by the Zimbabwe crisis where RobertMugabe its 84-year old dictator expressed his contemptfor democracy in the wake of the March 2008 generalelection which he lost that lsquo[w]e are not going to give upour country for a mere X on a ballot How can a ballpointpen fight the gunrsquo182 He went on to declare that onlyGod would dethrone him183 These chilling words camefrom a man whose brutal regime and repressive policeshave not only decimated the economy but also haveplunged a country once hailed as the lsquofood basketrsquo ofsouthern Africa into a country where most of its citizensare dependent on food aid It should be noted in asituation of bad governance as currently beingexperienced in Zimbabwe while the resulting povertydisease and hunger grab world attention theenvironment is usually the silent victim orconsequence184

The commitment of African nations must be matchedby equivalent commitment on the part of developednations towards meeting their millennium commitmentto create the global enabling environment for theachievement of poverty reduction and sustainabledevelopment in Africa This implies meeting not onlytheir commitments under various multilateralenvironmental agreements but also their commitmentson aid debt and trade as concretised under theMillennium Development Goals (MDGs) and otheragreements especially in relation to Africa So manypromises have been made by developed nations inrelation to Africa as evident by the G8 African Action

181 See Chabal note 163 above and Okey Onyejekwe in lsquoAFRICAInterview with governance expert Prof Okey Onyejekwersquo IRINHumanitarian News and Analysis 16 October 2003 availableat httpwwwirinnewsorgreportaspxreportid=46722(both arguing that African leaders are half-heartedly committedto multiparty democracy was a way to access foreign resourcesand even sometimes a mechanism for self-perpetuation)

182 Quoted in Rt Hon Raila A Odinga Prime Minister of theRepublic of Kenya Democracy and the Challenge of GoodGovernance in Africa (Paper Delivered at the 25thAnniversary of the Guardian Newspaper in Lagos Nigeria9 October 2008) available at httpwwwafricanloftcomraila-odinga-africa-is-a-continent-of-huge-contrasts-kenyan-prime-ministeraddresses-nigerian-media-house

183 See Rt Hon Raila Odinga Prime Minister of Republic ofKenya Leadership and Democracy in Africa 22 July 2008available at httpwwwchathamhouseorgukfiles11845_22070 8odingapdf (Hereinafter Odinga II)

184 See Anonymous lsquoEconomic Woes Take Toll onEnvironment in Zimbabwersquo Business Report 30 August 2007and Masimba Biriwasha lsquoZimbabwe A Cry for theEnvironmentrsquo Ecoworldly 30 July 2008


128

Plan and the supporting Gleneagles Communiqueacute185

However recent evidence has shown that while therehas some progress in reducing Africarsquos debt burden theattitude of developed countries towards meeting theiroverall commitments have at best been tepid186 Themajor challenge is for developed nations to concretisetheir commitments into actions as such is critical forthe achievement of sustainable development objectivesincluding poverty reduction environmental protectionand realisation of the right to environment in Africa

185 See G8 Africa Action Plan Sommet Kananaskis SummitCanada 2002 at para 1 and lsquoThe Gleneagles Communiqueacuteon Africarsquo 12 Law and Business Review of the Americas 245(2006)

186 See United Nations Millennium Development Goals Report44-48 (New York United Nations 2008) and UnitedNations Economic and Social Council EconomicCommission for Africa amp African Union CommissionAssessing Progress in Africa Towards the MillenniumDevelopment Goals Report 2008 UN Doc EECACOE2710AUCAMEFEXP10(III) 6 March 2008at pp 18-19


129

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

httpwwwsoasacuklawand the International Environmental Law Research Centre (IELRC)

httpwwwielrcorg

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 wwwlead-journalorgISSN 1746-5893

The Managing Editor LEAD Journal co International Environmental Law Research Centre (IELRC) International EnvironmentHouse II 1F 7 Chemin de Balexert 1219 Chacirctelaine-Geneva Switzerland Telfax + 41 (0)22 79 72 623 infolead-journalorg







ARTICLE





TABLE OF CONTENTS

1 Introduction 109



4 Conclusion 128

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httpwwwielrcorg







ARTICLE





TABLE OF CONTENTS

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4 Conclusion 128

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21 Poverty





111







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TABLE OF CONTENTS

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4 Conclusion 128

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109
















110









21 Poverty





111







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69 Id







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69 Id







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69 Id







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169 Id


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69 Id







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169 Id


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169 Id


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131 Id



















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lead- - poverty, socio-political factors and degradation of the environment in sub

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