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issue 4, July - August 2000

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LEGISLATURES, CIVIL SOCIETY AND THE ENVIRONMENT

For the people of Africa, the need for effective and equitable systems of natural resources and environmental management is more urgent than in most other parts of the world. The livelihood of the rural majority is threatened by the degradation of natural ecosystems and the dispossession of customary lands and natural resources; the health of those living in industrialised and urban areas is jeopardised by air and water pollution; while the vital contribution that nature-based tourism, agriculture, forestry, and mining can make to national economies is undermined by mismanagement and corruption. For the region's policymakers, the need to find effective responses to these and other environmental challenges is likely to intensify as population grows, consumption increases and national economies open up to private sector enterprise and foreign investment.

Recent legislative and institutional reforms in many African countries indicate that the importance of environmental issues is receiving increasing recognition from the region's policymakers. Most constitutions enacted in the last decade contain clauses guaranteeing citizens' environmental wellbeing and placing duties on them and the government to effectively manage the environment. Many countries have also passed framework environmental laws and established or strengthened co-ordinating environmental agencies within the public sector.

This upsurge in environmental awareness has coincided with the broad trend within the region toward democratisation that has been underway since the late 1980s. While the process of establishing democracies from the centralised governance systems that dominated the continent since independence is a long and continuous process, many countries have seen a loosening of the monopoly on public decision-making maintained by the executive arm of government. In terms of the potential impact on environmental management and policy, two aspects of the democratisation process are particularly noteworthy. Firstly, the legislative and judiciary branches of central government as well as various levels of local governments have been strengthened vis--vis the executive. Secondly, the room for policy advocacy by citizens and non-governmental organisations (NGOs) has expanded, as some restrictions on civil society activity have eased and governments have become more receptive to outside expertise and independent information.

These trends are beginning to coalesce into opportunities for stronger state-society relations in support of sound environmental management, social equity and justice. A number of cases of parliamentary intervention in environmental affairs that point to broader possibilities for collaboration between legislatures, citizens and civil society groups.

In many African nations, legislatures have been strengthened, as representative assemblies have been established or revivified through contested multi-party elections and revised constitutions. The functions assigned to and in practice performed by Africa's parliaments vary widely depending on national constitutional arrangements and political circumstances. Three major roles can, however, be identified: oversight of the executive; representation of electors' interests; and initiation or amendment of laws.

In each of these areas of activity legislatures can often serve the environmental interests of their constituents and the nation better through collaboration with civil society groups. NGOs can help Africa's parliamentarians overcome the limitations that their frequently weak administrative and research facilities impose on their ability to deal with the executive on equal terms, as well as in communicating with their constituents. Working with NGOs allows legislators to multiply their effectiveness by tapping their expertise, resources and commitment. Grassroots groups can help familiarise MPs with the concerns of local electors; NGOs specialised in ecological and natural resource issues may have knowledge of complex environmental matters useful for lawmaking; environmental law organisations may have the capacity to draft environmental and sectoral bills that MPs can introduce into parliament or propose amendments to executive-inspired legislative initiatives; while NGOs focused on promoting good governance can help gather information and provide testimony in parliamentary investigations of corruption and mismanagement of natural resources by the executive.

The impact of environmental degradation and disputes over natural resources is often felt most directly by communities far removed from the centres of power. Legislatures whose members are elected by local constituencies (which include most of those of Southern and Eastern Africa) are uniquely situated, compared to the other branches of central government, to bring the concerns of these communities to the attention of state officials and the national media. Again a number of the most prominent instances of African legislators exercising their representative responsibilities in the environmental field have been characterised by collaboration between MPs and civil society. In Kenya, for instance, MPs and NGO representatives stood side-by-side in the 1999 protests against the irregular alienation of the protected Karura Forest Reserve. An investigative journalist looking into the issue of forest reserve degazettment discovered in the Registry of Titles that the government had allocated several plots of land to developers in the Karura Forest Reserve. Following press coverage, members of communities surrounding the Reserve, NGO leaders and several MPs marched in protest in Nairobi and the Reserve, situated on the outskirts of the capital. The police were called in to break up the demonstrations and in the process several people were injured, some seriously. At the same time the associated files in the Land Registry disappeared, although the titles held by the developers remain valid and can be invoked at any time. Although this issue has not yet been resolved, the MPs and NGO coalition has managed to temporarily halt the decimation of the Reserve.

The third key function of parliaments is the approval and amendment of laws. Although even in some established democracies it is the executive that often takes the lead in introducing and formulating major legislation, elected assemblies possess constitutional powers to draft, debate and reject proposed bills and to amend, enact and repeal existing legislation. While in practice, lawmaking remains the executive's prerogative, primarily the Office of the Attorney General; some of Africa's newest legislatures have assumed an active role with remarkable rapidity. The processes by which the Electricity Act and the associated Bujagali Power Purchase Agreement were prepared in Uganda in 1999 demonstrate the positive role that civil society-legislature collaboration can play. Firstly, the legislative research report requested by the parliament comparing proposals for the Bujagali and the Karuma Hydroelectric Power projects made extensive use of information from citizens and NGOs. Information was recognised from NGOs against the construction of the dam, such as the National Association of Professional Environmentalists, Save the Bujagali Crusade, and Basogo-Nseete University Students Association, as well as from groups in favour of the dam, such as the Uganda Manufacturing Association and the National Chamber of Commerce. Secondly, NGO-initiated activities on the proposed Bujagali dam orchestrated by GreenWatch, Uganda Wildlife Society and other public interest groups, including multiple public debates, litigation and related activities informed the subsequent debates in committee and the full House. Ultimately, input from NGOs had significant impact and led to a number of changes in the Electricity Act and the Bujagali Power Purchase Agreement, including a mandate in the Act that the government support the development of alternative energy sources, particularly for rural electrification.

Given the contribution that NGOs can make to the work of environmentally committed legislators, MPs have a strong stake in defending the legal and political enabling conditions for civil society advocacy. These include fundamental civil liberties, such as the freedom of association and expression, and the array of critical procedural rights, including access to information, access to justice in a court of law, and rights to participate in decision-making in environmental matters - agreed to by most African governments at the Rio Earth Summit of 1992 and in other international environmental and human rights agreements. So important are good governance systems to sound natural resource management that some environmentalists argue that promoting democracy should be the primary focus of attention. Unfortunately however, as NGOs with environmental interests have expanded their policy and compliance roles, the executive in a number of countries has shown a marked tendency to seek to circumscribe their activities through a variety of means. These measures include the establishment or re-imposition of cumbersome and arbitrary NGO registration procedures and the threat of deregistration without adhering to the due process. Governments also withhold environmental information from NGOs by stamping it confidential or releasing it too late for them to make good use of.

Clearly, Africa's legislators face major obstacles in living up to their constitutional mandate of ensuring governmental accountability in environmental affairs. In many countries, the majority of MPs owe their seats more to ruling-party patronage than to popular support; in some, procedures that should theoretically offer legislators influence over the lawmaking process, such as amendment by committee and presentation of private bills, are - for various reasons - untried or underused. However, as the examples cited above indicate, legislators can have an impact on environmental decision-making even where the full panoply of institutions, procedures and capacities associated with established democracies are not in place. Indeed, so central are natural resources to the wellbeing of ordinary Africans and national economies that any actions elected representatives and environmental NGOs undertake to promote and defend sound environmental management and justice, play a vital part in consolidating and legitimising the institution of democracy itself.

Peter G. Veit, George Faraday and Godber Tumushabe, World Resources Institute, Washington D.C.

Public Participation and International Agreements, Opportunities for Parliaments

International conventions and treaties are rapidly becoming major influences in domestic policy and legislation in many African countries. These agreements are likely to become more influential as these countries enter further into the global arena.

International agreements and conventions are having important consequences locally, especially in the economic, environmental and social arenas. International trade agreements are affecting the way people do business, a trend that will only grow stronger in the years ahead. Environmental agreements are becoming integrated into domestic law, and impacting on all facets of human existence. As a growing number of people are impacted on by these agreements, greater efforts should be made to provide the public with an opportunity to make meaningful input into the nature and content of these agreements.

At present, the opportunity for timely input from the public into international agreements is not being facilitated. While many Southern African countries have introduced extensive public participation processes into the development of domestic policy and legislation, this culture of participatory democracy has not extended into the arena of international agreements.

Part of the reason for this lack of opportunity for participation is inherent in the nature of the processes surrounding conventions. The meetings are international, with a multitude of states all striving to put their points across. In most cases there is little possibility and probably little value at this stage of the process, in having vast international public participation exercises for local groupings throughout the world.

However there is certainly scope for public participation processes in each participating country during the initial stages of drawing up a country’s position. Prior to ministries and departments finalising their positions for the international meetings, the public should be provided with an opportunity to raise issues to the government.

Why Parliamentary Committees?

Parliamentary Committees are ideally situated to facilitate public participation in the development of international conventions. In South Africa, for example, parliamentary structures are designed to facilitate the interaction of people, the government departments and the politicians.

A process utilising the Parliamentary Committees to help facilitate a dialogue between members of the public, government departments and parliamentarians should be initiated by countries that are parties to international conventions.

An example of how such a process could work is as follows. Prior to government finalising its position on international conventions, the relevant parliamentary committee invites the public and the government departments to a meeting to hear inputs on the particular convention or agreement. The parliamentary committee can then summarise the various inputs and submit a report to the relevant minister and government department, along with any committee recommendations.

The report that will be generated on COP’s, outlining public opinion and parliamentarians' recommendations, will provide a more formal mandate for the departments and ministries to consider, adding a level of accountability and importance. In turn, the public can have confidence that their concerns are duly noted.

A government department will then be able to come up with its final position document for the international convention or agreement, taking into account the report from the parliamentary committee. The department will therefore be able to take a position on the key issues having been informed by both the public and the political input from Parliament.

Before the department leaves to attend the meeting or negotiations, the government should return to the parliamentary committee to present their final position. This would provide an opportunity for them to present the key areas of agreement and disagreement in respect of the major positions that emerged from the public participation process. Providing this feedback to parliament and the public is a vital part of the process, and it enables them to realise that their concerns were heard and processed.

Ideally, this type of process should begin approximately eight months prior to the international meeting on the agreement or Conference of the Parties (COP). This would allow time for the public hearings, and provide the ministers and government departments the opportunity to critically analyse the comments, taking from the public those view points it can work with and incorporate, while acknowledging those it disagrees with or which are against government policy.

Benefits

Most people would agree that public participation is a critical part of a democracy. Provided with an opportunity for discussion, public participation gives added momentum to government positions, resulting in a strong political mandate. Public participation helps governments to identify the concerns of people and communities that stand to be affected. Furthermore, receiving input from organisations with specific interests and skills on issues adds strength to the process.

Public participation aids in building a culture of democracy and good governance. A sound public participation process for international conventions is not necessarily about making everybody happy with the final position that a government takes to the bargaining table. Rather, it is about expanding the range of the debate and identifying important issues. Participatory democracy is as much about a citizen feeling satisfied that even though their view may not have been accepted and incorporated into the government’s position, at least it was heard, duly considered and responded to.

The Road Forward

Setting up parliamentary driven public participation on international conventions will require that the relevant parliamentary committees have the capacity to implement the processes.

The committees will need to be kept regularly informed on the status of the various agreements. They need to know when an agreement is coming up for negotiation, or when the next COP is going to take place. This information could be provided to committees by the government departments, civil society organisations or the committee staff. Organisations like GLOBE Southern Africa and The Contact Trust, aid in keeping committee members informed on the latest developments, and help identify the key issues that need to be grappled with.

Initiating and supporting a participation process requires staff capacity above that of many parliamentary committees'. A concerted effort should be made by parliaments, civil society organisations and funding sources to support parliaments in undertaking these hearings. Committees should be offered assistance in documenting the hearings and in the writing of a report summarising the different viewpoints and stating the views of the committee. Only through these efforts can we ensure that these vital processes succeed.

Organisations and individuals in civil society stand to benefit from being able to contribute to the development of government policy on international conventions and agreements. However, given the lack of resources among many parliaments and committees, civil society needs to acknowledge that it has a role to play in assisting parliaments with the processes. Assistance can be given by providing information and helping the committees to find neutral funds specifically aimed at facilitating the processes.

Parliamentarians therefore stand to play a significant role in developing a culture of participatory democracy in international conventions. Key players in Parliament can play a vital function in promoting the importance of public participation by generating acknowledgement that an opportunity to participate in international agreements is critical to upholding democracy. Given that parliamentarians are the elected representatives of the people of their country they are ideally situated to take ownership of the process.

Linden Booth and Sarah Davie, The Contact Trust

Contact Trust is an NGO located in Cape Town and committed to increasing public participation in the development of natural resource policy and legislation.

Towards an African Voice on Environmental Governance

 Ensuring citizens and other members of civil society the rights of access to information, public participation, and access to justice is indispensable to sustainable development. This article explores ways in which these procedural rights can assist African governments in protecting their natural patrimony; highlights how international conventions and regional initiatives have given form to the general principles; and outlines opportunities for promoting environmental governance throughout Africa. Particular attention is paid to regional and sub-regional opportunities for improving environmental governance on the continent.

How can procedural rights protect the environment and promote sustainable development?

Protecting the environment and promoting sustainable development are in many instances co-operative processes, requiring government, private individuals, non-governmental organisations, businesses, and other sectors of society to work together. Civil society is one of a nation’s greatest resources in helping to formulate and implement environmental laws, policies, and projects. Public involvement enhances these processes in many ways (ELI: 1991, 1992, 1993):

• Allowing all members of the public to express their views regarding environmental conditions in their communities and taking those views into consideration in the governmental decision making process expands the knowledge base for decisions, resulting in better implementation of environmental goals.

• Public input supplements scarce government resources for developing laws, as well as for monitoring, inspection, and enforcement, by identifying environmental threats or violations of applicable laws.

• Public participation can identify and address problems at an early stage, saving time, energy, and scarce financial resources in the long run.

• Access to information, public participation, and access to justice improves the credibility, effectiveness, and accountability of governmental decision-making processes. Public participation at the outset of the decision-making process helps to build broad-based consensus on environmental programmes.

Broad access to information is the foundation for sound environmental governance, since it enables the public to learn about environmental threats, allowing them to decide how best to respond to them. This principle also ensures that citizens have a right to obtain information about the state of the environment and human health; factors affecting or potentially affecting the environment (such as sources of pollution); proposed projects that could impact on the environment; and laws, policies, and international agreements potentially affecting the environment. In some cases, governments simply commit themselves to providing information on request. In other cases, governments actively collect, synthesise, and disseminate environmental information in the form of periodic "State of the Environment" reports, as well as in registries and indexes that track releases of pollutants into the environment. One such example is the pollutant release and transfer registry (PRTR) pilot program in Nakuru, Kenya (Hurst et al., 1997).

By allowing for public participation in decisions that could impact on the environment, governments can enhance their final position by broadening the information available and generating public support through offering people the opportunity to have their opinions heard. Already, most African countries have started to involve the public through environmental impact assessments (EIA) of specific projects and activities. Additionally, governments can and do incorporate public input into the development of larger programmes and plans, as well as in the drafting of rules and regulations. For public participation to be effective, government agencies need to provide citizens with a detailed and timely notice of the proposed project, programme, or regulation; grant access to information about the project and its potential impacts; as well as an opportunity to submit written or oral comments. Frequently, government agencies must also indicate how they accounted for public comments before making their final decision.

"access to justice should be fair, timely, affordable, and include effective remedies".

Finally, recourse to administrative remedies and judicial review, commonly termed "access to justice," empowers citizens and civil society organisations to assist governments in enforcing environmental laws and ensuring environmental rights. Often, citizens have access to administrative or judicial review of a private or governmental action that violates a national environmental law, and some countries have guaranteed citizens the right to seek judicial review when access to information or public participation is wrongfully denied or incomplete. To be effective, access to justice should be fair, timely, affordable, and include effective remedies like an injunctive relief.

How are procedural rights emerging as global norms to protect the environment?

Procedural rights of access to information, participation, and justice have evolved from general declarations to more concrete commitments by governments. As early as 1948, the Universal Declaration on Human Rights provided the kernels for generalised rights of access to information (Article 19) and justice (Articles 8 and 10). Similarly, Article 19(2) of the 1966 International Covenant on Civil and Political Rights guarantees citizens the "freedom to seek, receive and impart information and ideas of all kinds." The 1981 African Charter on Human and Peoples’ Rights guarantees that citizens have the rights of access to information (Article 9(1)), participation (Article 13), and justice (Articles 3 and 7), as well as "the right to a general satisfactory environment favourable to their development" (Article 24). In fact, many African constitutions have incorporated these provisions explicitly or by reference (Bruch et al.: 2000).

"Environmental issues are best handled with the participation of all concerned citizens"

Increasingly, governments have come to recognise the important role that these procedural mechanisms play in environmental protection. The 1982 World Charter for Nature requires public disclosure of conservation information "in time to permit effective consultation and participation" (Article 16), as well as "the opportunity [for all persons] to participate, individually or with others, in the formulation of decisions of direct concern to their environment, and [to] have access to means of redress when their environment has suffered damage or degradation" (Article 23). The 1992 Rio Declaration crystallised emerging public participation norms in its Principle 10:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Agenda 21, the "Blueprint for Sustainable Development," was adopted in 1992 to implement the principles of the Rio Declaration, and it has significantly shaped the activities of the United Nations Environment Programme and other international organisations. Agenda 21 relied heavily on the role of civil society in developing, implementing and enforcing environmental laws and policies. Access to information, public participation, and access to justice appear throughout Agenda 21.

The 1992 Convention on Biological Diversity (CBD) similarly incorporated public participation principles in Article 14(1)(a), encouraging public participation in "environmental impact assessment of proposed projects that are likely to have significant adverse effects on biological diversity", and Article 17 which, deals with promoting the exchange of publicly available information. The 2000 Biosafety Protocol to the CBD also relies on access to information (Articles 20, 23(1), and 23(3)) and public participation (Articles 23(2) and 29(8)).

Since 1992, various international conventions addressing specific environmental problems have incorporated public participation principles. For example, the 1994 Convention to Combat Desertification adopted a model that emphasised "the participation of populations and local communities" in developing and implementing national action programmes, which provide a framework for identifying, combating, and mitigating the causes of desertification. Article 10(2) required those programs to "facilitate access by local populations to appropriate information and technology," and "provide for effective participation at the local, national and regional levels of non-governmental organisations and local populations . . . in policy planning, decision-making, and implementation and review of national action programmes."

Regional initiatives promoting environmental governance have complemented the development of global norms and continue to be important in clarifying and implementing those norms. For example, the 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), initiated by the United Nations Economic Commission for Europe (UN/ECE), provides minimum standards for the state parties to adopt in their domestic legislation. The Convention emphasises enforceable citizens’ rights and obligations of governmental bodies and individuals at the national, sub-national, and local levels, as well as natural and legal persons "performing public administrative functions" and European Union institutions. The Convention includes detailed provisions laying out rights and obligations relating to access to information, public participation, and access to judicial and administrative remedies. The process leading up to the Aarhus Convention provides an example of how governments and civil society can jointly develop regional norms for environmental governance, as the process included an unprecedented level of NGO involvement in its conceptualisation, drafting, signing, ratification, and implementation. Signed by 39 European and Central Asian countries and the European Community, eight countries have ratified and acceded to the Convention (as of July 2000) and it is expected to come into force in early 2001. In the meantime, the Aarhus Secretariat is co-ordinating with other convention secretariats in the region, such as the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context. In fact, the 1999 (London) Protocol on Water and Health became the first international instrument to expressly incorporate the provisions of the Aarhus Convention.

The Inter-American Strategy for the Promotion of Public Participation in Decision-Making for Sustainable Development (or "ISP") is an independent regional initiative of the Organisation of American States (OAS) to promote environmental governance. While the Aarhus Convention is a binding treaty with concrete obligations, the ISP is a "Strategy." This Strategy encourages, but does not require, signatories to undertake similar legal and institutional reforms. The ISP consists of two documents: a short, general Policy Framework and detailed Recommendations for Action. The Policy Framework, which OAS member states adopted in April 2000, established the basic elements that member states are encouraged to implement, including recommendations to (1) improve communication mechanisms to share information; (2) establish legal and regulatory frameworks to ensure public access to information, decision-making, and justice; (3) promote institutional structures, policies, and procedures for expanding public participation; (4) advance education and training programmes; (5) dedicate funding for public participation in decision-making; and (6) promote fora for consultation. In contrast, the Recommendations for Action – annexed to the Policy Framework – provides many different, specific actions that the nations can adopt. The OAS initially drafted the ISP, which was then frequently revised to incorporate comments from consultations with national "focal points," from hemispheric conferences, and from public comments received.

Other regional organisations have promoted transparency, access, and accountability in environmental matters among their member states. For example, the North American Commission for Environmental Cooperation (CEC) – created as a side agreement to the North American Free Trade Agreement – promotes and develops recommendations for Canada, Mexico and the United States on environmental issues. These issues include public access to environmental information held by the government and public participation in decision-making processes, transboundary environmental impact assessment, and access to administrative and judicial bodies in transboundary pollution cases. Through the CEC’s organic statute, the North American Agreement on Environmental Cooperation, Member States have committed to publicly releasing environmental non-compliance information (Article 5.1(d)), ensuring that interested persons may petition the competent authorities to investigate alleged violations of environmental legislation (Article 6.1), providing persons who have legally cognisable interests with access to judicial, quasi-judicial or administrative bodies in order to enforce the environmental legislation (Article 6.2), and ensuring that the proceedings are "fair, open and equitable" (Article 7.1). Citizens and organisations can also file complaints with the CEC alleging that a Member State is not enforcing its environmental laws. The CEC investigates the complaint and is able to develop a "factual record" that can be made publicly available.

Why is an African initiative on procedural rights important?

In the context of emerging international norms on environmental governance, an African voice is particularly important. Evolving international duties, rights, and procedures on citizen participation have potential impacts for African countries at the national and international levels, as countries adopt them in developing and implementing conventions, multilateral development banks incorporate them into their practices, and international trade discussions highlight public participation. These international fora also tend to exert pressure on the national level, as public participation requirements are increasingly attached to international loans and financing, and treaties incorporate civil society into their implementation. As a result, international norms are not just something "out there," but ultimately can directly impact on Africa.

African participation in the development of international norms on access to information, process and justice is necessary to ensure that the norms are relevant to the African context. Language can pose special challenges for a government that seeks to provide effective access to environmental information. For example, Tanzania alone has over 132 different recognised living languages and dialects. Even in countries with a single official language, rural people usually have, at best, a rudimentary grasp of that language. Few governments have the resources necessary to translate important documents into all relevant languages. There are also technological challenges, as the possibility of establishing publicly accessible electronic databases remains problematic, despite lower maintenance costs. The frequent absence of newspapers and other written media outside the cities and low literacy rates mean that other avenues (such as radio) are necessary for disseminating environmental information.

African countries also face overwhelming pressures to develop. In terms of human development – accounting for income, life expectancy and education – the United Nations found that 28 of the lowest 35 countries were in Africa, including all of the lowest 24 (UNDP: 2000). Citizens and governments usually are more focused on meeting daily needs – firewood, food, water and forage – than contemplating about participatory principles. Environmental education will be critical in making the link between today’s practices and tomorrow’s harm.

As a result of Africa’s unique and diverse heritage and needs, African nations may emphasise different facets of the various principles. For example, access to information may have a strong component of environmental education. Alternatively, African nations could focus on a different set of principles that may include all or some of the three discussed in this paper – access to information, participation, and justice – as well as other principles, such as the freedom of association that is important in ensuring the continued operation of civil society organisations.

An African voice on these procedural rights is also important for the rest of the world. The African experience with community participation is very valuable for other regions, and African views of property and community governance can help other regions – particularly the United States and Europe – address environmental challenges. African mechanisms for promoting community participation in a strongly pluralistic society can be particularly illuminating in this age of growing internationalisation. However, these African experiences will not find their way into the international norms without active African participation. To be relevant, international norms on access to information, participation, and justice need as much input as possible from practitioners around the world, including Africa.

What are the opportunities for promoting environmental procedural rights in Africa?

Environmental governance in Africa can be promoted by incorporating participatory principles into domestic laws and institutions, acceding to an existing environmental governance convention, developing African or sub-regional declarations or conventions, or participating in the development of a global convention. In fact, the different approaches can complement one another, and a combination of activities can synergistically advance environmental governance locally, nationally, regionally and globally.

Firstly, improving environmental governance at the national level can learn from experiences at the local level. Countries throughout Africa increasingly are devolving powers to local authorities to manage natural resources. The increased transparency, access and accountability have established valuable precedents for environmental governance at the local level. Similarly, customary law and institutions can provide models for community participation.

When incorporating participatory principles into domestic legal and institutional frameworks, nations may consider the Aarhus Convention and the ISP as reflective of emerging norms in international law, but African nations will need to determine how different principles or institutions may best be adapted to their needs and constraints. Indeed, many African countries have already incorporated different participatory provisions in their constitutions, environmental laws (including EIA), decentralisation policies, and institutions. Despite this, there often remains a need to implement the principles in practice, to expand them, and to extend them to other areas. This approach has the benefit of not conditioning action on participation of other nations. In addition, if the nation subsequently accedes to a convention or participates in developing a convention, much of the principles will have already been implemented, and the nation will be well prepared to contribute its experiences to developing a regional or sub-regional initiative.

Secondly, African nations could accede to the Aarhus Convention, pursuant to Article 19.3. This approach would take advantage of an instrument that includes concrete obligations and that can reflect growing international consensus on the topic; with funding and technical assistance possibly forthcoming for nations that pursue this path. Various African environmental advocates have, however, expressed reservations about acceding to a public participation convention in which their governments have not participated. Not only does the Aarhus Convention fail to incorporate the particular African context, but these advocates also express concern that accession could bypass the collaborative relationship between governments and NGOs that a regional negotiating process could engender.

Thirdly, a group of African nations or an intergovernmental organisation may undertake a new regional initiative on environmental governance, either a convention, a "strategy," or something else. The United Nations Environment Programme in Nairobi has an ongoing program to develop environmental laws in countries throughout Africa, and INFOTERRA has extensive experience in promoting access to information in Africa (and globally) through technology transfer, development of policy and legal frameworks, and general capacity building. Other possible bodies to undertake a regional convention could be the Organisation for African Unity (OAU), the UN Economic Commission for Africa (UN/ECA), or the UN African Ministerial Conference on the Environment (AMCEN). This initiative could build on past declarations and experiences such as the 1990 African Charter on Popular Participation in Development and Transformation, as well as other regional initiatives from around the world. If this option is pursued, then one supporting component – which was useful in developing the Aarhus Convention – would be a country-by-country survey of the status of the relevant African laws and institutions, as well as a manual of best practices. Similarly, on-the-ground pilot projects, used effectively in the ISP process, could provide African experiences upon which to build.

Another option is incorporating environmental governance elements into existing conventions. The 1968 African Convention on the Conservation of Nature and Natural Resources is currently under review, and it could be amended (or a protocol developed) to incorporate information, participation, and administrative remedies as a way to implement the substantive provisions of the original convention. For example, the UN/ECE adopted the 1999 (London) Water and Health Protocol, discussed above, to incorporate procedural rights more fully into the 1992 UN/ECE Convention on the Protection and Use of the Transboundary Watercourses and International Lakes. On a global scale, for example, the Desertification Convention already advances environmental governance principles to some degree, and it could be amended to further develop these principles.

If a pan-African convention is not yet feasible, African nations, NGOs, and international organisations could pursue initiatives through sub-regional bodies, such as the East African Community, Southern African Development Community (SADC), or Economic Community of West African States (ECOWAS). Thus, the African Centre for Technology Studies and other organisations have started working with the East African Community to promote public participation principles through sub-regional development of environmental impact assessment. Similarly, the SADC Protocol on the Environment that is being drafted could emphasise the process of environmental governance, as well as the likely substantive environmental provisions. In fact, a December 1998 UNEP/INFOTERRA meeting on "Building Bridges for the Aarhus Convention" in Gaborone, Botswana, examined the potential relevance of environmental governance initiatives such as the Aarhus Convention to the SADC region.

Finally, another option is to participate in negotiating a possible global convention on environmental governance, which could harmonise the principles developed regionally. It has the added benefit that much of the world – indeed the Americas, Europe, the former Soviet Union, Australia, Israel, and Japan – has already been exploring possible international instruments for promoting environmental governance through procedural rights.

Ultimately, a combination of different approaches may be the best option. Parallel activities at the national, sub-regional, regional, and/or global levels can complement one another. At the national level there is the most flexibility to experiment with different mechanisms. Experiences from countries with similar cultural values, legal systems, and states of economic development can provide invaluable political capital for adopting similar mechanisms, let alone for negotiating an international instrument. At the same time, supranational declarations can – even if they are soft laws – provide legitimacy for domestic initiatives. Sub-regional initiatives can also lead to an overarching regional or global initiative.

The time is ripe for an African voice on environmental governance.

Africa has an opportunity to contribute to the development of emerging international norms on environmental governance. This may be accomplished through simultaneous activities at the national, sub-regional, and regional levels that help clarify the role that access to information, participation, and justice have in environmental protection and sustainable development. While these norms are still taking shape, Africa has the opportunity to highlight its experiences for the rest of the world to learn from, while ensuring that the emerging norms take into account the African context and are therefore relevant to Africa. Through this process, African governments and citizens can help promote principles that will protect the environment of Africa as well as the world.

Carl Bruch, Staff Attorney and Director of the Africa Program, Environmental Law Institute, Washington D.C.

This article is based on a paper delivered at the 8th Session of the African Ministerial Conference on the Environment (AMCEN), held 3-6 April 2000 in Abuja, Nigeria. Resources for research conducted under this project, were provided by the World Resources Institute's Institutions and Governance Program and the United States Agency for International Development.

References

Bruch, Carl E., Wole Coker, and Chris VanArsdale. 2000. Constitutional Environmental Law: Giving Force to Environmental Principles in Africa. ELI, Washington, DC.

Environmental Law Institute (ELI). 1993. Information Access Mechanisms: Collecting and Disseminating the Information Necessary for Environmental Protection. ELI, Washington, DC.

Environmental Law Institute (ELI). 1992. The Role of the Citizen in Environmental Enforcement. ELI, Washington, DC.

Environmental Law Institute (ELI). 1991. Public Participation in Environmental Regulation. ELI, Washington, DC.

Hurst, Peter, Paul Chege, Leif John Fosse, Emily Taruru, and Ramesh Thampy. 1997. Taking the Toxics out of the Environment: Establishing a Pollutant Release & Transfer Register for Nakuru, Kenya. World Wildlife Fund.

United Nations Development Program (UNDP). 2000. Human Development Report 2000. Oxford University Press, New York & Oxford.