Member Article

Dramatic changes in global climate have helped to wake up the consciousness of States on the significance of environmental issues in the last fourty years. Before then countries focused their energies on relentless industrial development with little or no attention to its impact on the environment. Scientific evidence has shown that unbridled development leads to loss of environmental capital, sometimes an irreversible phenomenon. As a result, many treaties and a flurry of municipal legislations have come into both the domestic and international arena. A wide variety of non-legislative instruments dealing with the threat of environmental degradation resulting from economic growth have also come into play. This paper examines the place of the environmental law practitioner in the conflict between environment and development. It first outlines the ramifications of the relationship between environment and development and proceeds to analyze factors that dictate the scope of the practice of environmental law in Africa. It examines in the process how laws and other instruments, institutions, processes and citizen awareness affect the practice of environmental law. The paper finally looks at the requirements and the demands of skills for policing sustainable development, capacity building necessary to deliver the goods and the strengthening of the policy and institutional frameworks. I. ENVIRONMENTAL AND DEVELOPMENT: Siamese Twins or Half Brothers In the creation story as recorded in the Holy Bible, man was directed by God to fill the earth and to dominate it. Filling the earth suggests a form of continuous re-creation which further suggests the need for supplementing deficiencies in the physical environment. Dominating the earth connotes the subjugation of the physical environment to man’s needs (and whims). The moral of the re-creation story is that the relationship between man and the earth was intended to be symbiotic. Has it remained so? As long as the manner and extent of man’s exploitation of the earth’s resources did not exceed the capacity of the environment to self replenish, man could have a ball at nature’s expense without any long term costs. The relationship became truly symbiotic when man needed to aid the replenishment of the environment. Alas degeneration of the construct has today taken the matter beyond symbiotism. Many human activities combine to inflict irreversible harm on nature; climate change and global warming are today touted as the obvious results of the decay. By many accounts, African environment media remained in a pristine state even after centuries of human plunder, use and abuse. But as if playing catch-up with the other regions of the world, the environmental problems of the African continent in the last few decades have been exacerbated by reckless exploitation and use of non- renewable natural resources, improperly planned urbanization and industrialization. While causes so far named are all anthropogenic not all are a result of economic growth. For instance, urbanization is not directly related to development and is more likely to result from rapid population growth and lack of planning. Urban growth rate in Africa is nearly four percent per year which is about double the world average. However, development impacts the environment. This is illustrated by how the exploitation of natural resources for developmental purposes affects nature. In the Niger Delta area of Nigeria major environmental problems have been linked to oil spill, gas flaring and deforestation inherent in oil exploitation in the region. The exploitation of oil is also largely blamed for carbon emissions in Nigeria which in 2001, stood at 23.5 metric tonnes accounted for by gas (53.3%), oil (46.6%), Coal (0.1%). A similar link between development and the environment is manifest in South Africa, where air pollution and carbon dioxide emissions are caused primarily by the use of coal for electricity generation. Tanker spills, leaks at refineries and fuel plants also contribute to the pollution of South Africa groundwater and marine environment. Also, the release of oil into the marine environment in the course of transportation damages natural habitats such as seabeds, wetlands and mudlands worldwide. However, not all energy-induced environmental damage to Africa’s environment originates from within. Reduced soil fertility, reduction in biodiversity and the depletion of Africa’s water resources have been linked to climate change. A 2001 publication by the American Space Agency, NASA, shows that in 35 years, as a result of cumulative climate change, Lake Chad has been to about 1/20th of its size. Industrialized economies account for the massive carbon emission which has been held primarily responsible for climate change. The impact is global. The direct consequence of this situation is that the protection of the African environment cannot be achieved exclusively from within the continent. Proclamation 4 of the 1972 Stockholm Declaration states that “in the developing countries most of the environmental problems are caused by under-development”. Thus Africa from its internal activities inevitably contributes to the degradation of its own environment. Clear examples can be drawn from the use of fuel wood for energy generation and the poaching of endangered species. The use of fuel wood as an energy source contributes to deforestation and could result in respiratory tract infections when it is burnt in poorly ventilated areas. . Yet fuel wood is the most used source of energy in the Africa’s rural areas. The use of fuel wood is due to lack of access to modern sources of energy-another indicator of underdevelopment. Not all environmental degradation is anthropogenic. Desertification another real threat to Africa’s environment occurs without any human influence. It is a fact that the environment could benefit from or be harmed by development and that environmental degradation could occur irrespective of development. It is also a fact that Africa’s transitional economies would inevitably interfere with the environment in the course of their development. Environmental management is at aimed minimizing this interference, by achieving optimum development with minimum interference to the environment. The President of the Republic of Ghana, Mr. John Kufuor embraced this ethos in a visionary preface to a recent report. ‘Our forests, our trees, our rivers and lakes are not commodities we can abuse. We do not own the land; we hold it in trust for generations yet unborn. We inherited at birth, a beautiful land, blessed with thick forests, precious minerals and varied animals. We have a right to make use of these and other natural gifts to enhance the quality of our lives. But we do not have the right to degrade the environment, we do not have the right to turn, our once forest lands into desert just because we want to sell more timber. Nor do we have the right to denude our lands or seas or rivers of the animals and fish indiscriminately. Let us learn to take care of our environment. We cannot claim to love our land, when in the pursuit of extracting precious metals, we leave the land polluted and poisoned. We cannot litter, we cannot leave our surroundings dirty and call ourselves patriots.’ His words clearly capture the vision of sustainable development, the goal of environmental law practice. Let us now examine the factors which determine the place of environmental law practice in achieving sustainable development. ENVIRONMENTAL LAW PRACTICE: (Alice in Wonderland?) In order to engender a successful environmental law practice an enabling environment is crucial. I estimate that such an environment should have in the minimum the following:- environmental laws adequate to regulate the environmental challenges; legal practitioners, other environmental consultants and regulatory personnel who are competent, sufficiently well informed and motivated to drive both the spirit and the letter of the policies and other legal instruments; institutions and processes that facilitate the wholesome implementation of laws and sanctions; and citizen’s awareness of the laws, processes, institutions and their capacity and interest in ensuring that laws have enforcement teeth. I. Environmental Laws The laws that affect the regulation of Africa’s environment can be broadly classified into international law, municipal laws, and national laws which have extra-territorial application. INTERNATIONAL LAW AND AFRICA’S ENVIRONMENT Since 1972 a number of multilateral treaties relevant to Africa have been completed in response to the problem of environmental degradation. The 1972 Stockholm Declaration declared that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” Similarly, the 1992 Rio Declaration declared. “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”. These conventions accord with the tenor of other international conventions on the environment. They declare the right to a good quality environment, but stops short of creating binding obligation on states. Moreover, non-state entities and individuals cannot enforce the right to a sound environment on the basis of these declarations. Their relevance lies in exciting the consciousness of the international community on the need to take environmental protection seriously. International environmental law therefore is largely inchoate. It is therefore not an effective legal weapon for achieving sustainable development. The Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCC) takes a different course. Annex 1 Parties to the Protocol which are constituted by the most industrialized countries of the world, were mandated to achieve certain reductions in green house gas (GHG) emissions by some target dates. If the Kyoto Protocol targets are met as intended, the harm of climate change on Africa would be reduced. However, all ratifying African states did so as non-Annex 1 Parties. As such they are under no obligation to achieve any reduction in their emissions. The Clean Development Mechanism (CDM) created under the Kyoto Protocol is defined in Article12 of the treaty. The implication of the CDM is that Annex 1 Parties may sponsor projects that reduce emissions in non-Annex 1 Party territories, in exchange for certified emission reductions (CERs). Such projects may be, for example, power generation through solar energy. The CER will then be credited to the Annex 1 Party for the purpose of meeting its Protocol emission reduction targets. For a project to qualify as CDM it must be approved by all Parties involved and this may be obtained from designated national authorities (DNAs) which are to be set up by each Annex 1 and non-Annex 1 Party. The establishment of the envisaged DNAs and the creation of the framework for CDM projects will provide for the African environmental lawyer, an opportunity to contribute to the achievement of sustainable development. The CDM is still in its developmental stages, and there is yet no known fully documented transaction. Offshore Litigation As a result of the incipient nature of environmental framework and hence the dispute resolution approaches thereto, most African countries have not evolved the jurisprudence that accords the right weight to environmental damage. This inspires ‘forum shopping’ by litigants, the most likely destination, being the United States of America. Under the Alien Torts Claims Act (ATCA) of the United States of America, non-U.S. citizens have a standing to file actions against multi-nationals (whether U.S. citizens or not) to remedy environmental damage on the basis of the provision that District Courts shall have original jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. Certain conditions however must be fulfilled for U.S. courts to assume jurisdiction under ATCA. They are • The balance of the interests of the United States and of the foreign state to keep jurisdiction must tilt in favour of the former. This determination is purely at the discretion of the courts. • Plaintiff must show that United State courts are the more adequate forum to litigate the matter. Corruption, weak, judicial systems, or dictatorship could make the country where the tort took place inappropriate. Since the courts in the country where damage the damage occurred are in a better position to assess the harm, plaintiff must prove in what way the U.S is a better forum, otherwise the doctrine of forum non-convenience would be invoked to decline jurisdiction. • In addition, the plaintiff must prove the existence of a customary international right to a healthy environment (RHE) which has been violated. The text of the conventions mentioned above indicates that opinio juris among states is yet to emerge as there is no duty to protect a right to a healthy environment. Opinio juris is a psychological element which approximates to the consideration by states that an existing rule of law requires it to act in a certain way. In Florez v. South Peru, jurisdiction was declined under ATCA on the ground that general principles of environmental law as embodied in international instruments and treaties do not constitute international norms enforceable for ATCA purposes. It is uncertain whether having regard to the decision in Florez case, the medium presented by ATCA is still open to African causes of action. Africa’s Policy and Legislative Response The attitude of African countries to environmental damage may have remained the same, if certain events did not trigger a change. It took the surreptitious dumping of toxic wastes in Koko, in 1987 for Nigeria to make its first environment legislation, the Harmful Waste (Special Provisions, etc.) Act. The Act prohibited the carrying, depositing, and dumping of harmful waste within Nigeria or in its territorial waters. A federal regulatory body, the Federal Environmental Protection Agency (FEPA) was created in 1988. FEPA is responsible for developing and managing the Nigerian environment. Of all the principal instruments churned out subsequent to FEPA, perhaps the best known is the Environmental Impact Assessment Decree No. 86 of 1992. The Act provides for mandatory environmental impact assessment (EIA) for certain processes and activities and the procedure governing same. A welter of other legislation and regulations followed these instruments in quick succession. The Nigerian environmental sector has attempted to keep pace with the evolution of new environmental paradigms worldwide, utilizing comparative texts and principles to formulate its building blocks. Most commentators say that today Nigeria has all the environmental law it requires, but none of the enforcement it direly needs. With regard to the oil industry, the Department of Petroleum Resources (DPR) developed in 1991, the Environmental Guidelines and Standards (EGAS) which oil companies must comply with in their operations. State governments also have through the instrumentality of State Environmental Protection Agencies, sought to capture the authority rightly accorded to them under the constitution to regulate the environment. A criticism of Nigeria environmental laws is the emphasis of mechanisms such as EIA to the detriment of other control measures. With this emphasis many sources of environmental damage are left unregulated. Another bogey in the path of Nigeria’s environmental stewardship is the lack of will on the part of government to enforce its laws and regulations. These criticisms of Nigeria’s environmental law are fairly representative of most African countries except perhaps South Africa. Prior to 1994 South African’s Environmental management had depended largely on non-binding guidelines . It was with the democratic elections of that year that environmental groups began campaigning for stricter environmental regulation. In 1998, the National Environment Management Act was passed. The Act consolidated legislation and established national standards. It covers such issues as air, water, marine pollution, waste management, deforestation, energy efficiency and the conservation of biodiversity. Further legislation, the Air Quality Act, aims to control air pollution, emission of greenhouse gases and ozone-depleting pollutants. The later Act extends civil and criminal penalties for polluters, initially provided for in Section 34 (7) of the Natural Environment Management Act. South Africa’s legislation is fairly comprehensive and its emission control provisions are particularly instructive. Notwithstanding, South African courts still come under criticism for their lenient enforcement posture which is capable of rendering legislation ineffective. It will be uncharitable not to quickly touch upon the score-card for the Republic of Ghana. The holistic incorporation of the environment into Ghana’s development strategy started in 1991 with the adoption of National Environmental Action Plan (1990-2000). The Environmental Agency Act of 1994 created the Environmental Protection Agency (EPA). The EPA was tasked to work within the framework of the National Environmental Policy to secure sound environmental management. Thus from 1994 it, became legally mandatory to conduct an environmental impact assessment prior to receiving a mining approval. In spite of this Ghana’s environmental policy has been criticized for: • Weak enforcement of environmental standards and regulations owing to the lack capacity of enforcement agencies. • Bias for development at the expense of environmental protection as shown by the peripheral role environmental protection played in the adoption of Ghana’s Poverty Reduction Strategy (GPRS). • Limited involvement of stakeholders and communities in the formulation of environmental protection policies. PRIVATE LAW RIGHTS AND ENVIRONMENT PROTECTION: CAN THE CAPTAIN SAIL THESE WATERS? Under the principles of common law environmental damage could either be litigated as negligence, as nuisance or as contractual obligations. Nuisance is an unreasonable disturbance of the comfortable enjoyment of property. Remedies of injunction and damages are available if the tort of nuisance is established. An obvious restriction on the use of nuisance for the management of the environment is the condition that an action for nuisance may be brought only be those with a recognized interest in the land affected by the nuisance. The remedy of injunction available in nuisance is sometimes used to force a defendant to adopt clean technology by prohibiting the continuation of a particular process until the method of carrying out the activity is changed. Another inadequacy of the current state of the law is that in a preponderance of cases damages is only awarded for injury to affected land as some authorities maintain that damages is not recoverable for personal injury or damage to moveable property that is not connected with injury to land. Liability in negligence arises if a person fails to exercise reasonable care, where there is foreseeable risk of injury. For liability to arise, one person must owe the other a duty of care. In the context of environmental protection, it may be onerous to establish the requisite degree of proximity that will prove the existence of the duty of care. For instance, would a court ever hold that a duty of care exists between a company in South Africa which emits greenhouse gas and a farmer in Ghana whose cattle suffer the impact of the emissions? Another question is whether a person who breaches his duty of care but meets the statutory standard is still liable? In Nigeria, negligence has provided a platform for defendants to recover damages following an oil spill. In Shell Petroleum Development Company Nigeria Ltd V Chief T Kille , the Plaintiff recovered damages for injury caused to the environment for oil spillage from the Defendants’ flow station. The same result was achieved in Shell Petroleum Development Ltd. V Amao and in Nigeria National Petroleum Corporation (NNPC) V Chief Stephen Sele. In all these cases the Plaintiff’s losses were made good by the courts. However, in none was any order made for the clean-up of the spillage or the defendant required to apply the sum recovered as damages to remediation of the environment. As such action in negligence is usually of limited value to the impacted or damaged environment. A contractual nexus is sometimes valuable as a route. In recent times various contracts and memoranda have been exchanged between stakeholders in the government, industry and community. These contracts generally set out a scheme of the relationship among stakeholders and form the basis of the interaction. Concession agreements, production sharing contracts may also be utilized to impose environmental protection mechanisms. Uniquely, contracts present an opportunity for the government (protector of the environment) and the private developer (essentially much interested in profit) to achieve a synergy as to how much interference with the environment is permissible. It is evident from the above discourse that while created norms on which the principles of sustainable development can be built, it has not initiated the rules by which enforcement can be based especially in emerging economies such as Africa. International law has not evolved norms which could be enforced by environmental lawyers in Africa for the purpose of environmental protection. The limitations of the Kyoto Protocol and the Alien Torts Claims Act have already been noted. With the coming into force of the Kyoto Protocol and its flexible mechanisms of Joint implementation and emission trading should constitute a nice playground for the lawyer in Annex 1 Parties to participate in achieving sustainable development. A panoramic view of the national laws of Nigeria, South Africa, and Ghana shows that environmental regulation in Africa is still emerging. Another common denominator is the command and control structure of environmental governance entailing the establishment of institutions with seemingly overbearing powers. This structure which has many upsides, suffers some peculiar downsides in terms of ability of the institutions to cope with their remit. Preponderantly, assigned functions are not performed except they lend themselves to other uses of a-not-strictly enviro-centric nature. The lack of sanctions or the non-enforcement of those existing in the statute books, severely short changes the environment and persons having a professional interest in the enforcement of rules. In South Africa, for instance, an international NGO, the Environmental Investigation Agency says local authorities have done little in the way of monitoring air pollution and enforcing environmental standards. It records that in 2001, of the 284 South African municipalities, only 131 performed air quality monitoring and of those, only 97 took steps to assure compliance and there was no penalty imposed for no-compliance. In Nigeria, the Ogoni Community has protested against what they perceive as government acquiescence to environmental degradation by non-enforcement of environmental law and regulations . If this setting is representative of the African attitude, the environmental lawyer has a severely diminished place in the framework. PROFESSIONAL COMPETENCE A Lawyer’s competence is anchored on, the knowledge gained in the course of qualification; post qualification knowledge acquisition and experience gained in the ordinary course of practicing his profession. With Nigeria’s 120 million people and over 68 universities, no university offers a degree programme in environmental law or environmental management. The situation is not known to be any different in other parts, with the possible exception of South Africa. With environmental law in Africa at its infancy and enforcement weak, acquisition of expertise in practice is an illusory goal for the environmental lawyer. Perhaps as a reaction to the imperative that lawyers need to be trained to obtain the much needed expertise, in October, 2003, senior judges from 10 African countries met in Kenya and reaffirmed their conviction that there is an urgent need to strengthen the capacity of judges, prosecutors, legislators and persons who play a critical role at national level in environmental law process. In Ghana where this capacity building has started, private legal practitioners, journalists, and members of the civil society appear not to have been beneficiaries. Such training is yet to take place in Nigeria. On the website of an American law firm, one finds listed the following subjects as constituting its environmental law practice: environmental counseling, environmental compliance and auditing, acquisitions and divestitures, site remediation, brownfields, natural resource damages, bankruptcy, occupational safety and health, environmental litigation, civil and criminal enforcement, toxic tort claims, citizen suits, administrative law, environmental insurance coverage and international environment law. This kind of listing will leave most African legal practitioners in wonderland, as they may not even be aware of the existence of those disciplines let alone come across them in practice. Perhaps by putting up this workshop, GCLME has picked up the gauntlet. African countries and other stakeholders in a healthy African environment should also take up the challenge. Expertise in environmental law needs law to be developed now, before we are overrun with environmental practices already rejected by other countries of the world. RAISING AWARENESS The abysmal ignorance of basic issues of environmental significance at all levels in the continent is a major cause of the problems hitherto highlighted in this paper. Where awareness exists, the willingness to do what is right is the next obstacle. The reasons for this reluctance are invariably subjective. What is clear, is that by the combined effect of both low levels of knowledge and unwillingness to act, a lot of harm is done not just to environmental media, but to people as well. In most of the world, expressions such as not in my back yard otherwise known as the nimby ensure that environmental damage is keenly watched and the perpetrator pays fully for it. Where the damage can be prevented, stringent action is taken to ensure that the harm is not done. Ordinarily innocuous activity such as the erection of a new building may be obstructed by neighborhood groups because of their concern for the likely environmental impact. NIMBY reflects a level of environmental consciousness yet to be reached in Africa. Let me illustrate this with an event described by a FEPA official in the extract the follows: “In 1991, during one of the early widely publicized inspections of highly polluting industrial facilities in Nigeria, the Chief Executive of FEPA personally led a team to a detergent factory which was discharging its effluents into an open drain. The drain in turn empties into a river used as drinking water some 600 metres downstream. The facility was given a maximum of 90 days to correct the situation and the news about the inspection which was to serve as a warning to other polluting facilities, was meant to be carried out that night on the national television networks and newspapers the following morning. But the unusual happened. First twenty minutes later as we proceeded to the next town, my boss’ car in the middle of our convoy of cars suddenly veered off the road, hit a rock embankment and somersaulted! (Unseen forces at play you might say?) Second, the owner of the facilities ensured that the news of the inspection was blacked out. He followed with a telephone call two days later to confirm that he was responsible for the news blackout and to warn he was going to report the Agency to the President of the Federal Republic for (a) daring to embarrass him by saying his facility was polluting and (b) trying to frustrate his efforts at providing jobs – for his people!” If the media which should be in the forefront of creating awareness could be so easily intimidated as shown in the extract; if an elite with direct access to the sovereign regard enforcement of environmental rules as persecution of his people; if the regulator thinks his car’s accident was caused by unseen forces deployed by an alleged offender then we lack environmental awareness indeed. EPILOGUE My last illustration clearly establishes that sustainable development has many obstacles in the peculiar setting of African governance. When a structural problem manifests in this manner all cognate disciplines must be deployed to tackle and reduce its effects and design a framework which achieves the best in the circumstances. Happily, sustainable development is itself not a fixed quantum of values, it admit subjective features obtaining from one jurisdiction to another. This is the concert to which environmental consultants and professionals and lawyers are invited. The role may be that of a conductor; it might be in the rhythm but the music must soothe the environment and uplift development.