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African Regional Framework for Protection of the Environment

African Regional Framework for Protection of the Environment

The first regional attempt to address environmental concerns in Africa was the adoption of the African Convention on the Conservation of Nature and Natural Resources, by the defunct Organisation of African Unity (OAU) on 15 September 1968 at Algiers, Algeria.

It should be noted that while the adoption of the Convention by the then newly independent African nations constituted the first regional attempt to address environmental concerns in the region, it was not the start of environmental protection in Africa as the protection of the environment was an integral part of the religious, cultural and social life of Africans before their colonisation and subsequent independence.

This was evident in the adoption of environmental conservation and management practices such as the designation of sacred forests, groves, rivers, and animals; designated market periods and locations; designated bathing and laundry places in streams and rivers; and prohibition of defecating or urinating in village amenities like roads, rivers and stream.

These practices which to a certain extent, account for the pristine condition of the natural environment in Africa before colonisation, were based on the traditional African notion of the unity of humanity and nature, and therefore, emphasised conservation and sustainable utilisation of natural resources by man.

The increase in environmental consciousness among African leaders led to the establishment of legal, institutional and policy frameworks for the protection of the environment at the regional, sub-regional and national levels. These include the adoption in June 1981 of the African Charter on Human and Peoples’ Rights and its 2003 Protocol on the Rights of Women in Africa, which not only provides for the right of all people to a generally satisfactory environment favourable to development, but also, enforcement mechanisms such as the African Commission on Human and Peoples Rights, and the African Court on Human and Peoples’ Rights.

In addition to providing for the right to environment, the OAU in 1991 adopted the Convention on the Ban of Import into Africa and the Control of Trans-boundary Movements of Hazardous Waste within Africa, to control the influx and dumping of toxic wastes in the region. To ensure a holistic approach to the protection of the environment in Africa, the African Union (AU) which replaced the OAU, at its second Summit held on 11 July 2003 in Maputo, Mozambique adopted the Revised African Convention on the Conservation of Nature and Natural Resources.

The Revised Nature Convention improves on the original Algiers Convention by providing not only the conservation and management of natural resources, but also, provides for institutional structures to facilitate implementation by the States parties as well as establishes mechanisms to encourage compliance and enforcement.

The AU and its predecessor OAU also adopted a number of resolutions and declarations with regard to the protection of the environment in Africa. In addition, several policy documents were adopted for the conservation and management of the environment in Africa. The most recent of such documents is the New Partnership for Africa’s Development (NEPAD), and its environmental action plan, NEPAD-EAP, which emphasise that the environment must be conserved in such a way that it accelerates poverty reduction and sustainable development in the region.

Further progress towards environmental protection in Africa was made by the establishment of the African Ministerial Conference on the Environment (AMCEN) in December 1985, to promote regional cooperation in addressing environmental issues confronting the region. AMCEN is an inter-governmental body on environment and development and presently the main policy-making forum for addressing or discussing Africa’s environmental problems. In furtherance of its objectives, AMCEN has adopted a number of declarations relating to the promotion of environmental protection and sustainable development in Africa.

The African Convention on the Conservation of Nature and Natural Resources (Algiers Convention)

The Algiers Convention before the 2003 revision was described as the ‘most comprehensive multilateral treaty for the conservation of nature yet negotiated’. The Convention which was adopted before the hosting of the first global conference on environment, the 1972 United Nations Conference on Human Environment (UNCHE), covers a wide range of environmental issues such as soil, water, fauna and flora, protected species, traffic in specimens and trophies, and conservation areas.

The intention of contracting parties to integrate environmental protection and achievement of sustainable development objectives including poverty reduction in Africa is given concrete prominence in the overriding principle of the Convention which provides that ‘the contracting States shall undertake to adopt the measures necessary to ensure conservation, utilisation and development of soil, water, flora and faunal resources in accordance with scientific principles and with due regard to the best interests of the people’.

The reference to ‘the best interests of the people’ can be construed as referring to their economic, nutritional, scientific, educational, social, cultural and aesthetic interests. Hence, it can be argued that African leaders envisage that the implementation of the provisions of the Convention must not only foster the conservation and management of environmental resources in Africa, but also, promote poverty reduction and overall socio-economic development in the region.

This intention runs through the entire provisions of the Convention relating to the conservation and management of water, flora, and faunal resources. For example, the Convention requires that its parties in establishing policies for conservation, utilisation and development of underground and surface water, must endeavour to guarantee for their populations a sufficient and continuous supply of suitable water. Furthermore, parties are required to ‘ensure conservation, wise use and development of faunal resources and their environment, within the framework of  economic and social development’.

Therefore, it will be contrary to the spirit of the Convention if States parties were to adopt or promote conservation measures and policies that focus exclusively on protectionism and human exclusion from ecological resources.

It should be noted that while this principle has not yet been interpreted judicially at the regional level, similar decisions supporting this argument exist at the national level in Africa. For example, this principle can be inferred from the decision of the Kenyan High Court in Abdikadir Sheikh Hassan and 4 others v Kenya Wildlife Service, where the applicants sought an injunction preventing the respondent, from the translocation of a rare endangered species of animals called the ‘hirola’ on the ground that such action would deprive their local community of a species that forms part of their natural heritage and local ecology.

The injunction was granted, but on the ground that the Kenyan Constitution and other relevant statutes relied upon by the respondent did not entitle it to translocate the animals. In addition, while South Africa has neither signed nor ratified the Convention, it provided for a similar principle amongst the fundamental principles under Chapter two of the National Environmental Management Act (NEMA). This principle was considered in Fuel Retailers Association of SA case, where the South African Constitutional Court held that:

One of the key principles of NEMA requires people and their needs to be placed at the forefront of environmental management batho pele. It requires all developments to be socially, economically and environmentally sustainable…. NEMA therefore requires the integration of environmental protection and economic and social development. It requires that the interests of the environment be balanced with socio-economic interests…. In this sense, it contemplates that environmental decisions will achieve a balance between environmental and socio-economic developmental considerations through the concept of sustainable development.

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