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Journal of Energy & Natural Resources Law Volume 22, 2004 - Issue 2: Energy and Natural Resources in Africa
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Original Articles

Environment Protection in Africa: a Panorama of the Law and Practice

David M Dzidzornu David M Dzidzornu is JSD Candidate, Dalhousie Law School, Halifax, Nova Scotia. He can be contacted by e-mail at [email protected].
Pages 148-170 | Published online: 08 Jun 2015

  • For examination of some of these treaties, see Francis D P Situma, ‘Africa's Potential Contribution to the Implementation of International Environmental Law’ (2000) 10 Trans L & Contemp Probs 385, 395–399; Tiyanjana Maluwa, ‘Environment and Development in Africa: An Overview of Basic Problems of Environmental Law and Policy’ (1989) 1 African J Int'l & Comp L(RADIC) 650, 650–655; J D Ogundere, ‘The Development of International Environmental Law and Policy in Africa’ (1972) 12 Nat Res J 255, 255–258; Morne van der Linde, ‘African Responses to Environmental Protection’ (2002) XXXV Comp & Int'l L J Southern Africa (CILSA) 99.
  • Text of Charter of the Organisation of African Unity (OAU), in Ian Brownlie, Basic Documents in International Law (3rd edn, 1983), pp 75, 76–84. The Constitutive Act of the African Union, done at Lome, Togo, 11 July 2000, in force 26 May 2001, reprinted in (2000) 8 African Yrbk Int'l L 479 (henceforth ‘AU Act’). By it, AU members initiated an integration process like that of the European Union. For transition from OAU to AU, see African Union (AU): The Durban Declaration in Tribute to the Organization of African Unity on the Occasion of the Launching of the African Union, 10 July 2002, in (2002) 41 ILM 1029.
  • African Convention for the Conservation of Nature and Natural Resources, 15 Sept 1968, in force 16 June 1969, reprinted in International Protection of the Environment: Treaties and Related Documents Vol V (Bernd Rüster & Bruno Simma (comp and eds), 1976, p 2037.
  • African Convention on the Conservation of Nature and Natural Resources (Final Version, 2 June 2002), recommended for adoption by the OAU Council of Ministers in June 2002 (unpublished).
  • Ibid Art XXXIV.
  • Ibid, at Arts IV-XXIX, passim.
  • For detailed discussion, see below, ‘Framework environmental regime under the Algiers Convention 1968’. See also Annie P Kameri-Mbote and Phillippe Cullet, ‘Law, Colonialism and Environmental Management in Africa’ (1997) 6 RECIEL 23; T Maluwa, supra n 1, 655–671; Ogundere, supra n 1, 258–270. For a detailed account of the build-up from partition, through colonial rule to independence with emphasis on the economic structures that sustained and still uphold this situation, see Peter L Wickins, Africa 1880–1980: An Economic History (1986), Chaps 1–8.
  • Literature on the matters summarised here is immense. For some, see UNEP, Africa Environment Outlook: Past, Present and Future Perspectives (2002) (henceforth ‘AEO Report’); Lloyd Timberlake, Africa in Crisis: The Causes, The Cures of Environmental Bankruptcy (2nd edn, 1988); L A Lewis and L Berry, African Environments and Resources (1988); Tony Binns, Tropical Africa (1994), Chaps 3–5; James C McCann, Green Land, Brown Land, Black Land: An Environmental History of Africa, 1800–1990 (1999), Chaps 3–7; Julius E Nyang'oro, ‘Africa's Environmental Problems’ in Understanding Contemporary Africa (April Gordon and Donald Gordon eds, 1992), pp 151–173.
  • The foundational ones are discussed below in ‘General principles regarding environment protection in Africa’.
  • The most celebrated of these is the dumping of hazardous wastes and substances on the continent. See Organisation of African Unity: Bamako Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, Bamako, Mali, 29 Jan 1991, in force 22 April 1998, reprinted in (1991) 30 ILM 773, with Annexes in (1992) 31 ILM 163 (Bamako Convention). For background to its emergence, see Transboundary Movements and Disposal of Hazardous Wastes in International Law: Basic Documents (B Kwiatkowska and A H A Soons eds, 1993), pp 957–973.
  • See, eg, Lusaka Agreement on Cooperative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora, Lusaka, 8 Sept 1994, in force 10 Dec 1996, 1950 UNTS 35, reprinted in UNEP, Handbook of Environmental Law (1997), p 156; Sudan, Uganda, Zaire: Protocol Agreement on the Conservation of Common Natural Resources, Khartoum, 24 Jan 1982, not in force, reprinted in Harald Hohmann, ed, Basic Documents of International Environmental Law Vol 2 (1992), p 1271.
  • See, eg, Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, Harare, Zimbabwe, signed and in force 28 May 1987 (UNEP, United Nations, 1987), reprinted in (1988) 27 ILM 1109. Parties are Botswana, Mozambique, Tanzania, Zambia and Zimbabwe.
  • Such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, 3 March 1973 (as amended), in force 1 July 1975, 993 UNTS 243, 244, which, as of 1 March 2003, has 49 African state parties: see, http://www.cites.org, visited 19 March 2003; United Nations Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 Dec 1993, reprinted in (1992) 31 ILM 818, accepted by every African country by Dec 2002: see http://www.biodv.org/.
  • Regarding implementation of the Bamako Convention, see Edna C Eguh, ‘Regulations of Transboundary Movement of Hazardous Wastes: Lessons from Koko’ (1997) 9 RADIC 130, 130–134, 145–154 (discussing Nigeria's failure in this regard); Francis Situma, supra n 1, 412–413 (assessing the poor continental situation). And for the hardly commendable cooperative management of Africa's rivers and lakes under treaty arrangements, see United Nations Economic Commission for Africa, Transboundary River/Lake Basin Water Development in Africa: Prospects, Problems, and Achievements. UN Doc ECA/RCID/052/00 (UNECA, Addis Ababa, 2000), passim.
  • Kevin R Gray, Multilateral Environmental Agreements in Africa: Efforts and Problems in Implementation, unpublished paper, 2001 (on file with author).
  • See Organisation of African Unity: Banjul Charter on Human and Peoples’ Rights, OAU Doc CAB/LEG/67/3/Rev 5, 27 June 1981, in force 21 Oct 1986, reprinted in (1982) 21 ILM 58 at Art 24.
  • See OAU First Ministerial Conference on Human Rights in Africa, 12–16 April 1999, Grand Bay, Mauritius: Grand Bay (Mauritius) Declaration and Plan of Action, CONF/HRA/DECL (I), adopted 16 April 1999, reprinted in (1999)11 RADIC 352, at Preamble para 3 and Points 2 and 8(n).
  • Mauritius Declaration and Plan of Action, supra n 17, Points 13–26 passim. For discussion of prospects of securing this principle under the AU, see Ademola Abass and Mashood Baderin, ‘Towards Effective Collective Security and Human Rights Protection in Africa: An Assessment of the Constitutive Act of the New African Union’ (2002) XLIX Neth Int'l L Rev 1, 27–38; M van der Linde, supra n 1, 105–07.
  • See Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the Meeting of Government Experts, Addis Ababa, 16 Nov 2001, OAU Doc CAB/LEG/66.6/Rev. 1 (2000), Arts 17, 18 and 22. For accounts of the piecemeal growth in African women's rights, see Jane L Pappart, ‘Women's Rights and the Lagos Plan of Action’ (1986) 8 Human Rights Quarterly (HRQ) 180; Claude E Welch, Jr. ‘Human Rights and African Women: A Comparison of Protection Under Two Major Treaties’ (1993) 15 HRQ 549 (comparing women's rights protection under the African Charter to that under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women).
  • African, Caribbean and Pacific States+European Economic Community: Final Act, Minutes, and Fourth ACP-EEC Convention of Lome, done at Lomé, Togo, 15 Dec 1989, reprinted in (1990) 29 ILM 783. See Final Act Annex XXIII, 29 ILM 788, 796 (henceforth ′4th ACP-EEC Convention 1989’).
  • Ibid, Part One, Chaps 1–2, Part Two, Titles I, II and III, passim. For analysis of environmental issues especially under the 4th ACP-EEC Convention 1989, see M Tsagao Traore, ‘La Politique de L'Environnement Dans Le Cadre Des Conventions de Lomé—Aspects Juridiques’ (1995) 7 RADIC 831–864.
  • See Andrea Koulaïmah-Gabriel, ‘Beyond Lomé IV: Future Challenges to EU-Africa Relations’ (1997) 6 RECIEL14, 15–16. This result is not a surprise given the performance history of the ACP-EEC Conventions. In particular, performance under the 4th Convention was expected to be modest at best. For a balanced analysis, see Douglas E Matthews, ‘Lomé IV and ACP/EEC Relations: Surviving the Lost Decade’ (1991/92) 22 Calif Western Int'l L J 1–58.
  • The 4th ACP-EEC Convention 1989 ended on 29 Feb 2000, replaced by the Partnership Agreement Between Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and Its Member States, of the Other Part, Cotonou, Benin, 23 June 2000, in force 1 April 2003, under which ‘economic partnership agreements’ would be concluded between the EC and ACP states in regional, sub-regional and single state units between Sept 2002 and 31 Dec 2007, to come into force from 1 Jan 2008, and to operate under the WTO regime: see Arts 2, 34–39, 84–90 and 95(1) of Agreement, available at http://www.ecpsec.org/, visited 15 April 2003. For discussion, see Jürgen Huber, ‘The Past, Present and Future ACP-EC Trade Regime and the WTO’ (2000) 11 Euro J Int'l L 427–438; Francis A S T Matambalya and Susanna Wolf, ‘The Cotonou Agreement and the Challenge of Making the New EU-ACP Trade Regime WTO Compatible’ (2001) 35(1) J World Trade 123–144.
  • See Cotonou Agreement, supra n 23, Arts 32 and 49. Declarations and action plans on Europe-Africa relations within, inter alia, the upcoming ‘partnership agreements’ in view of world trade and investment issues also affirm this: see OAU/EU: Africa-Europe Summit + Declaration of Cairo, and Cairo Plan of Action, reprinted in (2000) 12 RADIC 379 at 394–395, and 396 at 408–409. Cf A Koulaïmah-Gabriel, supra n 22, 16–21.
  • See World Charter for Nature, GA Res/37/7, 1982, reprinted in (1983) 22 ILM 456.
  • See Harold W Wood, Jr, ‘The United Nations World Charter for Nature: The Developing Nations’ Initiative to Establish Protections for the Environment’ (1985) 12 Ecology L Q 977.
  • For the African agenda, see UNECA, African Common Position on the African Environment and Development Agenda: Annex IV and Programme Briefs, UN Doc E/ECA/CM.18/CRP.1/ANNEX, March 1992.
  • See UNECA, African Common Position on the African Environment and Development Agenda, UN Doc E/ECA/CM.18/CRP.1 March 1992; ECA, Cairo Common Position on the African Environment and Development Agenda, ECA/UNCED.CAIRO/POS/1.Rev.1; OAU: Pan-African Conference on Environment and Sustainable Development in Africa, OAU/CONF/PANCOOR/ENV/EXP (1) COMMITMENT/Rev. 2, (1991) 21 Envt'l Pol'y & L 99; UNEP/WCED, Towards Sustainable Development in Africa: Agenda for Action, and Kampala Declaration on Sustainable Development in Africa, adopted at the First African Regional Conference on Environment and Sustainable Development, Kampala, Uganda, 12–16 June 1989, (1989)19 Envt'l Pol'y & L 218 and 222. For discussion, see M van der Linde, supra n 1, 101–102; John Ntambirweki, ‘The Developing Countries in the Evolution of an International Environmental Law’ (1991) 14 Hastings Int'l & Comp L Rev 905; Mutoy Mubiala, ‘La Contribution de L'Afrique et du Tiers-Monde Aux Developpements Recents du Droit International de L'Environnement’ (1993) 5 RADIC 768.
  • Because the expected international response to the UN's initiative for implementation of Agenda 21 programmes on the continent did not materialise: Dan B Ogolla, Perspective, ‘The United Nations System-Wide Special Initiative on Africa: A Global Partnership for Regional Sustainable Development’ [1997] Colo J Int'l Envt'l L & Pol'y 1996 Y B 1, 3, 8–18; African Preparatory Conference for the World Summit on Sustainable Development, Assessment of Progress on Sustainable Development in Africa Since Rio (1992), UN Doc UNEP(ROA)/WSSD/1/4, 1 Nov 2001.
  • New Partnership for Africa's Development, Abuja, Oct 2001 (NEPAD), at http://www.uneca.org/nepad, visited 17 March 2003. For the good governance, capacity building, financial support and other hurdles that NEPAD implementation faces, see Kempe Ronald Hope, Sr, ‘From Crisis to Renewal: Towards a Successful Implementation of the New Partnership for Africa's Development’ (2002) 101 African Affairs 387; Nsongurua J Udombana, ‘How Should We Then Live? Globalization and the New Partnership for Africa's Development’ (2002) 20 Boston Univ Int'l L J 293.
  • For NEPAD's environment initiative, see its sections 138–142. Its goals and the assistance needed to achieve them are more elaborately set out in the AEO Report, supra n 8, Chap 5.
  • For a detailed projection of scenarios of future environmental challenges that the continent may face, see AEO Report, supra n 8, Chap 4.
  • Algiers Convention 1968, supra n 3, Preamble para 2 and Art II.
  • Ibid, at Arts III-IX and XX(1).
  • Ibid, Art V(2) and XVI(1).
  • Ibid, Arts III-IX, XI-XV and XX(1).
  • Ibid, Art XVI(2). Cf M van der Linde, supra n 1, 102–105.
  • See, eg, Economic Community of West African States (ECOWAS): Revised Treaty, Cotonou, Benin, 14 July 1993, reprinted in (1996) 35 ILM 660, Arts 3(2)(b), 22(1)(a)-(c), 23, 25–31; East African Community Treaty, Arusha, Tanzania, 30 Nov 1999, in force 7 July 2000, reprinted in (1999) 7 African Yrbk Int'l L 421, Arts 111–116.
  • See Organisation of African Unity Member States: Treaty Establishing the African Economic Community, Abuja, Nigeria, 12 May 1994, reprinted in (1991)30 ILM 1241, at Arts 4, 6, 8–16, 25–28, 46–58,60–62, 65–66, 88, 99, passim; AU Act, supra n 2, Preamble para 6, and Arts 3, 13–16, 25–27.
  • See the Environmental Management and Coordination Act 1999, No 8 of 1999, effective 14 Jan 2000, section 3(1)-(5), and Part XIII (setting out principles of environmental governance, and creating offences and the right of redress): Kenya Gazette Supplement No 3 (Acts No 1, 2000) 43–174 (Nairobi: Government Printer, 2000).
  • For details, see Laurence Juma, ‘Environmental Protection in Kenya: Will the Environmental Management and Co-ordination Act (1999) Make a Difference?’ (2002) 9 South Carolina Envt'l L J 181–218 at 191–198, 212–218.
  • Godber Tumushabe, ‘Environmental Governance, Political Change and Constitutional Development in Uganda’ in H W O Okoth-Ogendo and Godber W Tumushabe (eds), Governing the Environment: Political Change and Natural Resources Management in Eastern and Southern Africa (1999), pp 63, 73–88.
  • For detailed discussion drawing on constitutional provisions from, inter alia, 53 African states and global environmental jurisprudence, see Carl Bruch et al, ‘Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa’(2001) 26 Columb J Envt'l L 131, 132–133, 140–147, 150–151, 162–167, 174–184, 186–192, 198–211; Peigi Wilson et al, ‘Emerging Trends in National Environmental Legislation in Developing Countries’, in Sun Lin et al (eds), UNEP ‘s New Way Forward: Environmental Law and Sustainable Development (1995), pp 185, 191–94 (henceforth ‘UNEP's New Way Forward’).
  • Cf Tobias P van Reenen, ‘Constitutional Protection of the Environment: Fundamental (Human) Right or Principle of State Policy?’ (1997) 4 South Africa J Envt'l L & Pol'y (SAJELP) 269. See also C O Okidi, International Perspectives on the Environment and Constitutions, 15 Sept 2001, and, ibid, Environmental Rights and Duties in the Context of Management of National Resources, 12 Nov 2000, both available at http://www.kenyaconstitution.org/, visited 20 April 2003 (surveying the issue through environmental provisions in constitutions around the world).
  • See, eg, Minister for Environment and Natural Resources, Kenya National Report, United Nations Conference on Environment and Development 1992 (UNEP, Nairobi); The Federal Environment Protection Agency, Achieving Sustainable Development in Nigeria—National Report for the Conference on Environment and Development (Lagos, Nigeria, August 1991) (Nairobi: UNEP).
  • For UNEP's role in this, see Donald Kaniaru and Charles O Okidi, ‘Partnership in Action: UNEP/UNDP Joint Project on Environmental Law in Africa’ in UNEP's New Way Forward, supra n 43, 227–235; Donald Kaniaru et al, ‘UNEP's Programme of Assistance on National Legislation and Institutions’, and D Kaniaru and Lal Kurukulasuriya, ‘Capacity Building in Environmental Law’, both in UNEP's New Way Forward, Chaps 10 and 11 respectively.
  • For more detailed discussion, see Charles O Okidi, ‘Incorporation of General Principles of Environmental Law into National Law with Examples from Malawi’ (1997) 27 Envt'l Pol'y & L 327, 332–335.
  • For accounts of this process in Kenya, see Bondi D Ogolla, ‘Kenya: Environmental Management Policy and Law’(1992) 22 Envt'l Pol'y &L 164–175 (discussing the sector-by-sector structure and evolution of Kenya's environmental regime as at the time); Rose J Ayugi, ‘Law Reform Initiatives in Kenya: The Environmental Management and Co-ordination Bill, 1995’ (1998) 5 SAJELP 157 (assessing the Bill that became the 1999 Act, supra n 40).
  • The Burkina Faso and Ugandan regimes typify this change: see for Burkina Faso, Amidou Garane, ‘Le Cadre Juridique de la Protection L'Environnement Au Burkina Faso’ (1996) 4 African Yrbk Int'l L 153. For Uganda, see National Environment Management Agency (NEMA), State of the Environment Report for Uganda 1996, Chap 9, available at http://easd.org.za/Soe/Uganda/, visited 25 April 2003.
  • See http://www.un.org/esa/sustdev/natlinfo/natlinfo.htm for current information on the socioeconomic context of natural resources use, management and environment protection, national legislation and institutional arrangements in African states based on their national reports. See also Peigi Wilson, supra n 43, 186–191, 194–213 (surveying 20 African and other developing states’ structures on this).
  • See Marceil Yeater and Lai Kurukulasuriya, ‘Environmental Impact Assessment Legislation in Developing Countries’ in UNEP's New Way Forward, supra n 43, 257–275 (analysing the increasingly comprehensive content of EIA legislation in, among others, 15 African states); John O Kakonge, ‘EIA in Lesotho: Prospects and Challenges’ (1997) 17 Environ Impact Assess Rev 109 (discussing bases on which viable EIA law can be designed for Lesotho in possible cooperation with South Africa).
  • See, eg, Kenyan Environmental Management and Coordination Act, supra n 40, Part VI; Fed Rep of Nigeria: Environmental Impact Assessment Decree, No 86, Dec 1992 (Gazette 79(73)), and Fed Env't Protection Agency (FEPA), Environmental Impact Assessment Procedure for Nigeria (Abuja, Nigeria, 1994), discussed in E E Okon, ‘The Legal Framework of Environment Impact Assessment in Nigeria’ (2001) 26(1) and (2) West Indian L J 51–84; Uganda, The Environmental Impact Assessment Regulations, 1998, Parts VI and VII (Supplement to The Uganda Gazette No 28 Vol XCI, 8 May 1998), at http://www.ECOLEX.org/national/africa/UGAN/UGAN.001 visited 20 April 2003.
  • See John O Kakonge, ‘Dilemmas in the Design and Implementation of Agricultural Projects in Various African Countries: The Role of Environmental Impact Assessment’ (1995) 15 Environ Impact Assess Rev 275.
  • John O Kakonge, ‘EIA and Good Governance: Issues and Lessons from Africa’ (1998) 18 Environ Impact Assess Rev 281. For discussion regarding a variety of projects in Kenya with suggestions to reform EIA administration, see Patricia Kameri-Mbote, Strategic Planning and Implementation of Public Involvement in Environmental Decision-Making as they Relate to Environmental Impact Assessment in Kenya, IELC Working Paper No 2000–3 (2000).
  • See Environmental Management and Coordination Act 1999, supra n 40, Part III. This is a carry-over from colonial resources use and protection policies: see L Juma, supra n 41, 183–190, 199–201; Kenneth K Orie, ‘Kenya + Constitutional Approach to Sustainable Environmental Management: Experience and Change’ (1995) 25 Envt'l Pol'y & L 43–51 (suggesting streamlining which the reform has provided on paper but not quite in practice).
  • Wetlands conservation in both countries evidences this: see Benjamin J Richardson, ‘Scales of Environmental Management: Wetlands Conservation in Kenya and Uganda’ (1996) 8 RADIC 904, 904–909, 912–922; G Tumushabe, supra n 42, 63–73. More generally, see George W Okoth-Obbo, ‘Kenya/Uganda: The Need to Rethink Approaches and Strategies’ (1989) 19 Envt'l Poi'y & L 170–182.
  • See R M K Silitshena and A Masaeorale, ‘Aspects of Environmental Governance in Botswana’ in Okoth-Ogendo and Tumushabe eds, supra n 42, 191, 204–222; Elisha N Toteng, ‘Urban Environmental Management in Botswana: Toward a Theoretical Explanation of Public Policy Failure’ (2001) 28 Envt'l Mgmt 19–30.
  • See the Environment Management Act 1996 discussed above, supra n 47 and accompanying text.
  • For discussion and analysis, see W M Kasweswe-Mwafongo, ‘Legal, Policy and Institutional Framework for Environmental Management in Malawi’ in Okoth-Ogendo and Tumushabe eds, supra n 42, 89–121.
  • Cf Chris Okeke, ‘Africa and the Environment’ 3 Annual Survey Int'l & Comp L 37, 52–56 (surveying the situation through a few African states’ laws and practices).
  • See Charles M Fombad, ‘Overcoming the Legal and Institutional Challenges to Implementing Cameroon's National Environmental Management Plan’ (1997) 27 Envt'l Pol'y & L 489.
  • See Egbe Samuel Egbe, ‘The Concept of Community Forestry Under Cameroonian Law’ (2001) 45 J African L 25–50; and Charles M Fombad, ‘The Effectiveness of Environmental Protection Measures in Cameroon's 1994 Law Laying Down Forestry, Wildlife and Fisheries Regulations’ (1997) 9 J Envt'l L 43–58.
  • See Jon C Cooper, ‘Environmental Laws in the Gambia’ (1996) 5 Tilburg Foreign L Rev 335–48 and (1997) 6 Tilburg Foreign L Rev 51–68 (discussing the issues and suggesting changes).
  • For the daunting picture of ecological degradation, see Michael Anibogu, ‘Environmental Laws of Nigeria’ in Nicholas A Robinson (ed), Comparative Environmental Law and Regulation (Release 98–1, March 1998), pp 49–65; Nigeria, in Int'l Envt Rep'r (BNA, Washington), p 279: 0101–0107; Nigerian Environmental Study/Action Team, Nigeria's Threatened Environment: A National Profile (1991) passim.
  • M Anibogu, supra n 64, at 114.
  • For accounts of the influence of those factors in Nigerian environment governance, see J A Omotola (ed), Environmental Laws in Nigeria Including Compensation (1990), Chaps 1–13; Folarin Shyllon (ed), The Law and the Environment in Nigeria (1989) passim; A Uchegbu, ‘The Legal Regulations of Environmental Protection and Enforcement in Nigeria,’ (1990) 8 & 9 J of Pte & Prop L (JPPL) 57–74.
  • Patrick D Okonmah, ‘Right to a Clean Environment: The Case for the People of Oil Producing Communities in the Nigerian Delta’ (1997) 41 JAL 43, 45–46 and 53–54; Alicia Fentiman, ‘The Anthropology of Oil: The Impact of the Oil Industry on a Fishing Community in the Niger Delta’ (1996) 23(4) Social Justice 87–99; F Emile Asuquo, ‘Tar Balls on Ibeno-Okposo Beach of South-east Nigeria’ (1991) 22 Mar Pol Bull 150; O Osibanjo and O Bamgbose, ‘Chlorinated Hydrocarbons in Marine Fish and Shellfish of Nigeria’ (1990) 21 Mar Pol Bull 581 (offering data and analysis).
  • Applicable legislation includes the Oil in Navigable Waters Act, No 34 of 1968, Cap 337, 22 April 1968; Petroleum Act, No 51 of 1969, Cap 350, 27 Nov 1969; Petroleum (Drilling and Production) Regulations, LN 69 of 1969, 27 Nov 1969; Harmful Waste (Special Criminal Provisions) Decree 1988, Decree No 42, 25 Nov 1988.
  • See Jennifer Baker, ‘Nigerian Oil Spill Contingency Plan’ (1991) 22 Mar Poll Bull 166.
  • For analysis in historical setting, see J A Omotola ed, supra n 66, Chaps 15–17; Omobolaji Adewale, ‘Rylands v Fletcher and the Nigerian Petroleum Industry’ (1990) 8 and 9 JPPL 37–56; Akpezi E Ogbuigwe, ‘Compensation and Liability for Oil Pollution in Nigeria + Need for a Positive Approach’ (1985) 3 JPPL 31–33 (all discussing inadequacies of criminal and civil bases of oil pollution liability under Nigerian law).
  • See Jedrzej G Frynas, ‘Legal Change in Africa: Evidence from Oil-Related Litigation in Nigeria’ (1999) 43 JAL 121–150; Ambrose O Ekpu, ‘Environmental Impact of Oil on Water: A Comparative Overview of the Law and Policy in the United States and Nigeria’ (1995) 24 Denver J Int'l L & Pol'y 55, 79–93.
  • Cf P Okonmah, supra n 67, 46–67 (arguing for human rights approach as solution).
  • For some evidence, see Aaron Sachs, ‘Dying for Oil’, World Watch, May/June 1996, 10–21; Gilbert Da Costa, ‘Nigeria: oil first, Ogonis second’, New African No 322, Sept 1994, 19; Amos A Idowu, ‘Human Rights, Environmental Degradation and Oil Multinational Companies in Nigeria: The Ogoniland Episode’ (1999) 17(2) Neth Q Hum Rts 161–184; Ibibia L Worika, ‘Deprivation, Despoliation and Destitution: Whither Environment and Human Rights in Nigeria's Niger Delta?’ (2001) 8 ILSA J Int'l & Comp L 1–30; Fr Kevin O'Hara, ‘Niger Delta: Peace and Co-operation Through Sustainable Development’ (2001) 31 Envt'l Pol'y & L 302–308 (also discussing some informal solutions).
  • See Nigeria, in Int'l Envt Rep'r (BNA, Washington) 279: 0101.
  • See Chijioke E Emole, ‘Nigeria: Regulation of Oil and Gas Pollution’ (1998) 28 Envt'l Pol'y & L 103–112: Oluwale Akanle, Pollution Control Regulation in the Nigerian Oil Industry 1–30 (Nigerian Institute of Advanced Legal Studies, Occasional Paper 16, 1991).
  • See, eg, Lanre Fagbohun, ‘Foul Fuel in Nigeria's Air: Nigerian Environmental Law’ (1999) 17 JERL 251 (reviewing a serious oil-induced air pollution incident in 1997 which, contrary to the law and for political reasons, was downplayed and not investigated by the responsible agencies).
  • Ambrose Ekpu, supra n 73, 96–107; African Environment Pollution: UK Expert Offers Panacea to Nigeria's Oil Pollution, at http://www.newafrica.com/ visited 2 Oct 2001.
  • For details of the powers and responsibilities of the Agency which the Ministry has now assumed, see Federal Environmental Protection Agency Act, No 58, 1988, Cap 131, 30 Dec 1988, as amended by the Federal Environmental Protection Agency (Amendment) Decree 1992, Decree No 59, 2 Aug 1992; Anibogu, supra note 64, 70–74, 77, 91–92, 108–110; Ameze Guobadia, The Nigerian Federal Environment Protection Agency Decree No 58 of 1988: An Appraisal, 5 RADIC 408 (1992); Chris Okeke, supra n 60, 46–51.
  • See Anibogu, supra n 64, 106–115; A Ekpu, supra n 71, 84–88.
  • For accounts of the record, see Adegoroye Adegoke, ‘The Challenges of Environmental Enforcement in Africa: The Nigerian Experience’ in International Network for Environmental Compliance and Enforcement (INECE), Third International Conference on Environmental Enforcement Vol 1 (1994), pp 43–54; Modupe T Odubela and Isaac I Omoniyi, ‘Compliance Monitoring in Nigeria's Industries’ in ibid, Vol 2, pp 123–27; Nigeria: The Mounting Environment Threat, West Africa, 22–28 April 1996, pp 625–626.
  • For the state of environmental law and regulation before the promulgation of the Constitution on 8 May 1996, in force 4 Feb 1997, see Environmental Management in South Africa (R F Fuggle and M A Rabie eds, 1992) passim; Carola Glinski, ‘Environmental Litigation in South Africa’ (2000) 2 Recht in Afrika 107, 107–113.
  • See, eg, Denis Victor Cowen, ‘Distinctive Principles of South African Environmental Law and Policy and the Quest for a Philosophy Which Should Inform Them’ (1997) 4 SAJELP 147; Robyn Stein, ‘Regulation of Waste Management in South Africa + A Case for Integration’ (1997) 4 SAJELP 253.
  • See, eg, Cheryl Loots, ‘The Effect of the Constitution on Environmental Management’ (1997)4 SAJELP 223; South Africa, in Int'l Envt Rep'r (BNA, Washington) 287: 0101–0102.
  • Norman Brauteseth, ‘Possibilities for Coastal Zone Management in the Proposed Planning and Development Act in Kwazulu-Natal’ (1997) 4 SAJELP 207.
  • See National Heritage Resources Act 1999 Act No 25 of 28 April 1999. See also the National Heritage Council Act 1999, Act No 11 of 23 April 1999, which establishes the National Heritage Council at the apex of the administrative structure, and the World Heritage Convention Act 1999, Act No 49 of 9 Dec 1999, which incorporates the World Heritage Convention into South African law. For a detailed overview, see John McConnachie, ‘Environmental Conservation in South Africa and Its Application to the Built Environment’ (1998) 5 SAJELP 99.
  • National Environmental Management Act 1999, promulgated 27 Nov 1998, in force 29 Jan 1999.
  • See Nazeem Goolam, ‘Recent Environmental Legislation in South Africa’ (2000) 44 JAL 124–128 (offering highlights of environmental legislation passed since the promulgation of the 1996 Constitution).
  • For assessment of the Act reaching this conclusion, see Carola Glinski, supra n 81, 113–132.
  • For detailed discussion of the shortcomings of the liability provisions of the Act, see Friedrich Soltau, ‘The National Environmental Management Act and Liability for Environmental Damage’ (1999) 6 SAJELP 33.
  • Zada Lipman, ‘Corporations, Crime and the Environment’ (1997) 4 SAJELP 69 (advancing thoughts on possible lines of improvement).
  • Charles Crothers, ‘Environmental Management's Views and Structures in South African Companies’ (1998) 5 SAJELP 149 (in interviews with the responsible personnel in a number of medium-sized companies).
  • Johan van den Berg, ‘Environmental Dispute Resolution in South Africa and Towards Sustainable Development’ (1998) 5 SAJELP 71 (arguing that mediating disputes would promote the Act's sustainable development objective).
  • Alan Rycroft et al, ‘Environmental Mediation: A Case Study on Conflict Over Marine Resources’ (1998) 5 SAJELP 87 (discussing mediated decision that kept jobs in exchange for observance of control measures by polluter).
  • South Africa, in Int'l Envt Rep'r, supra n 83, 0102–0106; André Rabie, ‘Governmental Policy Reviews and Reforms Relating to the Environment’ (1999) 6 SAJELP 121, 121–147.
  • See S M Schneier, ‘A Coastal Zone Management Policy for South Africa: Some Perspectives’ (1997) 4 SAJELP 167.
  • Bruce C Glavovic, ‘A New Coastal Policy for South Africa’ (2000) 28 Coastal Mgmt 261–271.
  • André Rabie, supra n 94, 147–148; ibid, ‘The Development of Environmental Policy in South Africa’ (1997) 4 SAJELP 315, 319–323; Ralph Lawrence, ‘How Manageable is South Africa's New Framework of Environmental Management?’ (1999) 6 SAJELP 61–65. For further information, visit http://www.environment.gov.za.
  • Though expressed here in relation to environment protection regulation and administration, this point applies with equal force to the general nature of political and institutional administration across Africa, notwithstanding averred democratic changes. For an incisive analysis of the political economy that sustains this situation, see Patrick Chabal, ‘The Quest for Good Government and Development in Africa: Is NEPAD the Answer?’ (2002) 78 Int'l Affairs 447 (arguing that the democratic imperatives that led to the emergence of NEPAD remain contained within the traditional framework of elitist and sycophantic political recruitment and organisation in African states, such that NEPAD fits in as a legitimising mechanism and instrument of its continuation).
  • This is not to deny that there are distinctly marginal and disadvantaged ethnic entities, such as the San (Bushmen), the Hottentots and pygmies in southern and central Africa that may fall into the category of ‘indigenous’ peoples as understood in international law: see S K Date-Bah, ‘Rights of Indigenous People in Relation to Natural Resources Development: An African's Perspective’ (1998) 16 JERL 389, 389–396; Benjamin J Richardson, ‘Indigenous Peoples, International Law and Sustainability’ (2001) 10 RECIEL 1, 2–4 passim.
  • Cf Richardson, supra n 99, 3–12; Anja Meyer, ‘International Environmental Law and Human Rights: Towards the Explicit Recognition of Traditional Knowledge’ (2001) 10 RECIEL 37–46.
  • For an interesting survey of how the sacred regard for forests, plant and animal species in Cameroonian folklore and beliefs has been, and could be instrumental in biodiversity conservation, see Samuel Tepi, ‘Traditions et Droit de L'Environnement en Afrique: Le Cas du Cameroun’ (1999) 11 RADIC 516–21. See also Brian W Walker, ‘The African Environment and the Aid Process’ (1986) XLI Int'l J 734–747 (showing, inter alia, that all across Africa, traditional ecological knowledge and survival skills fashioned ways of living in harmony with nature).
  • Sometimes this is due to the need for survival: see J M T Labuschagne and C C Boonzaier, ‘African Perceptions and Legal Rules Concerning Nature Conservation’ (1998) 5 SAJELP 53 (South African examples); Doyle G Hatt, ‘Establishing Tradition: The Development of Chiefly Authority in the Western High Atlas Mountains of Morocco 1880–1990’ (1996) 37–38 J Leg Pluralism & Unofficial L 123, 144–147.
  • See references at supra n 8.
  • For a detailed discussion, see Joel Ngugi, ‘The Decolonization-Modernization Interface and the Plight of Indigenous Peoples in Post-Colonial Development Discourse in Africa’ (2002) 20 Wis Int'l L J 297, 300–326.
  • M-T Sarch, ‘Fishing and Farming at Lake Chad: Institutions for Access to Natural Resources’ (2001) 62 J Envt'l Mgmt 185–99.
  • See, eg, Date-Bah, supra n 99, 396–410.
  • Gordon R Woodman, ‘Accommodation Between Legal Cultures: The Global Encounters the Local in Ghanaian Land Law’ [2001] Recht in Africa 57–75 (explaining how this dichotomy is absorbed and retained through the practice of the legal profession and the judiciary in dealing with land transactions).
  • Sidney L Harring, ‘”God Gave Us This Land”: The OvaHimba, the Proposed Epupa Dam, the Independent Namibian State, and Law and Development in Africa’ (2001) XIV Geo Int'l Envt'l L Rev 35–106.
  • For details of the Maasai experience, see J Ngugi, supra n 104, 326–348; Joy K Asiema and Francis D P Situma, ‘Indigenous Peoples and the Environment: The Case of the Maasai of Kenya’ (1994) 5 Colo J Int'l Envt'l L & Pol'y 149, 155–167.
  • For across-continent examples, see AEO Report, supra n 8, 189–226. See also J Ngugi, supra n 104, 344–350 (in reference to the Maasai case).
  • For a catalogue of cooperation between the Maasai and the Kenyan Governments on account of the skills of the former, see Asiema and Situma, supra n 109, 167–171.
  • Africa Endangered Species: Maasai Want A Say in Mara Cheetah Project, at http://www.newafrica.com/, visited 4 Oct 2001.
  • Communities to be Involved in Protecting Kilimanjaro, at http://www.newafrica.com, visited 4 Oct 2001.
  • The experience of the San or Bushmen is also classic in this respect: see Clement Ng'ong'ola, ‘Land Rights for Marginalized Ethnic Groups in Botswana, With Special Reference to the Basarwa’ (1997) 41 JAL 1.
  • See B Richardson, supra n 56, 922–925; Benjamin J Richardson, ‘Environmental Management in Uganda: The Importance of Property Law and Local Government in Wetlands Conservation’ (1993) 37 JAL 109, 113–145.
  • See Charles Fombad, supra n 61, 494–496; E S Egbe, supra n 62, passim.
  • See Silitshena and Masacorale, supra n 57, 200–204, 214–222.
  • See Girma Taddese, ‘Land Degradation: A Challenge to Ethiopia’ (2001) 27 Envt'l Mgmt 815–24 (suggesting that traditional techniques could be usefully employed along with others to deal with water scarcity).
  • B T Constantinos, ‘Alternative Natural Resources Management Systems: Processual and Strategic Dimensions’ in Okoth-Ogendo and Tumushabe eds, supra n 42, 163, 172–188 (using the Borena example to show that government could save the heavy expenditure involved in dealing with resources use conflicts if it incorporates such systems).
  • J C Murombedzi, ‘Devolution and Stewardship in Zimbabwe's Campfire Programme’ (1999) 11 J Int'l Dev 287.
  • Brian J Nickerson, ‘The Environmental Laws of Zimbabwe: A Unique Approach to Management of the Environment’ (1994) 14 Boston College Third World L J 189–230.
  • For details, see Tenkir Bonger, ‘The CAMPFIRE Programme in Zimbabwe: Institutional Innovation and Implications for Environmental Governance’ in Okoth-Ogendo and Tumushabe eds, supra n 42, 253, 265–287.
  • Cf M van der Linde, supra n 1, 111–13.
  • Cf Tracy Dobson, ‘Community Participation in Natural Resources Management in Malawi: Charting A New Course for Sustainability’ [1999] Colo J Int'l Envt'l L & Pol'y 1998 Y B 153–178.
  • See M L Daneel, ‘Environmental Reform: A New Venture of Zimbabwe's Traditional Custodians of the Land’ (1996) 37–38 J Leg Pluralism & Unofficial L 347–376. For other examples, see AEO Report, supra n 8, 291.

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