| In this Chapter: | |
| B. National regimes—Instruments and measures | |
| C. Regional measures | |
| D. International instruments for TBNRM |
There are a variety of instruments for the management of transboundary natural resources in Eastern Africa. These instruments can generally be categorized as implicit or explicit. Implicit measures are those that were not instituted deliberately to address or promote transboundary natural resource management but can be or are used to achieve a certain measure of TBNRM. Such measures include national budgets, security and foreign affairs policies and laws, regional and sub-regional trade policies and laws, transport policies, and settlement policies. Explicit instruments or measures are those that are instituted with the deliberate goal of ensuring or promoting TBNRM. They can include regional and sub-regional environmental policies, national environmental policies and laws with specific clauses or provisions for TBNRM, and regional and/or sub-regional environmental impact assessment guidelines. Both implicit and explicit instruments could be are deployed at local, national, and regional levels to promote and/or achieve TBNRM.
A. Local community TBNRM instruments and activities
Local communities and their associated administrative units (i.e., village and sub-district governments) in Eastern Africa have developed and use various policy and legal measures for TBNRM. Most such measures are intra-state. Many of them are not codified and given formal expression but evolve and are utilized through fairly informal sociopolitical arrangements. These largely implicit measures for TBNRM include cross-clan taboos and associated religious beliefs. Cultural norms and values have, for centuries, been the basis for managing natural resources shared across clans and tribes. For example in Uganda, sacred forests were often established by several clans and served as boundaries as well as institutions for common religious activities. Clan leaders established and enforced rules for accessing and using resources from these forests (Kigenyi et al. 2001).
In addition to the largely informal TBNRM regimes, other relevant TBNRM measures at the local level include by-laws and related administrative guidelines that are initiated and enforced through institutions such as the local county council or district local authority levels. Many of these administrative measures are aimed at ensuring cross-border peace or good neighborliness. They are as such implicit administrative measures—such as meetings of leaders of two groups (often ethnic) sharing a common ecosystem as a boundary. The meetings are organized for the purpose of ensuring security—largely village or clan elders negotiating for peace. Natural resource management considerations, with emphasis on issues of access to and control of such resources as water, pasture, and forests, sometimes constitute the agenda of the meetings.
Local authorities have legislative powers to institute by-laws for TBNRM. For example, with support from IUCN and the Government of the Netherlands, local authorities of the Mt. Elgon area (Mt. Elgon District Council of Uganda and Kenya’s Mt. Elgon County Council) have established common by-laws to curb cross-border illegal harvesting of timber from the forest reserve. However, this effort has been constrained by the absence of a supportive policy environment and national institutional guidance. Forest policies and agencies of the two countries are under flux. In the case of Kenya, the Forest Department with the legislative mandate to oversee the management of the country’s forests has not given the local authority the necessary support through its wardens. Laxity of national forest departments has made efforts of the local authorities less successful.
Forest policies and laws of the two countries are being reviewed and revised, however, to transfer a certain measure of management authority to local people and their authorities. Kenya’s Sessional Paper No. 1 of 1968, which centralized the forest management system—as a result, the central government through the Forest Department is largely responsible for both indigenous and industrial forest estates—has been revised to provide for community participation in the management of forests (Government of Kenya 2000).
Uganda has a broad and flexible forest policy adopted in 1988; it contains a general statement on the importance of involving communities in the management of forests. The policy is currently under review, and the draft recognizes and provides for community involvement.
B. National regimes—Instruments and measures
National policies, laws, and administrative instruments for both intra-state and regional TBNRM remain largely implicit. There is no one body of policy and legislation, or even distinct sections in national policy documents and statutes of law, to promote TBNRM.
There are, however, at least six kinds of national instrument that contain implicit measures for TBNRM. These are national environmental policies, national environmental legislation, Environmental Impact Assessment (EIA) guidelines, sectoral natural resource management policies and associated laws, National Environment Action Plans (NEAPs), and National Biodiversity Strategies and Action Plans (NBSAPs). A review of these instruments across the Eastern Africa region shows that TBNRM, particularly of an intra-state nature, is not recognized in any implicit or explicit sense. The national instruments have general provisions for regional cooperation for environmental management in general, and natural resource conservation in particular—see Box 13, which discusses BSAPs in detail.
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Box 13. National Biodiversity Strategies and Action Plans and TBNRM National Biodiversity Strategy and Action Plans (NBSAP) are mechanisms prescribed within the Convention for Biological Diversity (CBD) as to how countries will meet their obligations under the Convention. Article 6a says: “Parties will ... develop policies, strategies, and programmes as to how they address biodiversity conservation, sustainable use and equitable sharing of benefits…” Of the countries in the region, several are close to completing their BSAPs including Djibouti, Eritrea, Kenya, Rwanda, Tanzania, and Uganda. BSAPs traditionally have had three major components: an overview of biodiversity values, threats and ongoing programs; an analysis of policy and strategy options to meet those threats; and an analysis of actions needed in order to implement those strategies. Biodiversity needs follow the three principal tenets of the CBD: conservation, sustainable use, and equitable sharing of benefits arising from such sustained use. In theory BSAPs would identify key biodiversity resources and the threats facing those resources—including resources and threats that go across national borders. Later sections of the BSAP would then identify strategies and actions as to how those threats can be addressed. Strategies would include the broad policy frameworks, incentives, and capacity-building needs in order to achieve successful conservation—including TBNRM. This Box presents a preliminary analysis of the three East African BSAPs, all of which are in final draft form. In general, most recent resource policy statements, National Environmental Action Plans (NEAPs), and National Conservation Strategies (NCSs) contain some measure requiring nation states to look at TBNRM processes. These tend to be generalized, focus on TBNRM areas rather than processes, and have little detail as to how TBNRM would work. There is little analysis of why TBNRM has not been accomplished in the recent past. BSAPs are not all that different; comment, where it exists, is extremely general. For example, Uganda’s preliminary draft BSAP has a brief section on “regional agreements and cooperation,” which mentions the role of the East African Community, the importance of regional trade, and the presence of regional projects. The implementation strategy stresses Uganda’s involvement in international and regional activity. However, this does not get elaborated in the action plan. Kenya’s BSAP states, under its Guiding Principles that “long-term national commitments to integrated national biodiversity plans and programmes is indispensable [because] national, regional and international cooperation is recognised.” However, there is no mention of TBNRM or regional activity under detailed strategic direction or activity. This gap applies to crucial areas of cooperation such as invasive species and biosafety. Tanzania in a longer (150-page) BSAP draft document has more detail, and sets out a specific cross-sectoral goal: “To enhance and facilitate collaboration between national and international communities for the sustainable utilisation and conservation of biological resources.” The goal translates into an almost identically worded objective: “To strengthen and facilitate regional and international collaboration for the sustainable exploitation, management and conservation of biodiversity.” Under Terrestrial Biodiversity sections the BSAP goes on to mention “cooperating with any party including neighboring countries in the conservation of transboundary ecosystem and migratory species.” This wording is then used as Terrestrial Biodiversity Action 1.1.2. The Tanzanian BSAP states that the inadequate international and regional collaboration in managing transboundary resources is a gap. The Great Lakes, Serengeti-Mara, and Mkomazi-Tsavo ecosystems are mentioned. However, the mechanisms and responsibilities required to achieve adequate management are not covered. |
Uganda’s umbrella environmental law contains provisions that restrain it from undertaking actions that would undermine its neighbors’ environmental and natural resources. It also makes passing reference to the need for common approaches in the conduct of EIA for shared ecosystems. Ethiopia and Kenya’s environmental legislation contain provisions requiring them to engage in cooperation with their neighboring states to ensure environmental sustainability. Ethiopia’s law also refers to cooperation among its federal states.
Many of the countries in Eastern Africa are reviewing and formulating their natural resource management policies and laws as well as establishing new administrative measures to ensure the conservation and sustainable use of their resources. Some of the emerging new policies and laws explicitly provide for TBNRM, with a general emphasis on the management of shared ecosystems and the protection of the environment through regional and bilateral cooperation.
The need for public participation and regional cooperation in the conduct of environmental impact assessments has also been explicitly embodied in domestic laws. Uganda’s National Environment Statute provides that one of the principles of environmental management should be to encourage the maximum participation by people in the development of policies, plans, and processes for the management of the environment.14 This legislation also provides for regional cooperation, with emphasis on ensuring that the behavior of the neighboring countries does not destroy the environment of Uganda.
Kenya’s proposed forest law makes explicit reference to TBNRM. The Kenya Forestry Bill 2000 has two articles that address cross-border issues. Article 61 states that the provisions of the Act shall be carried out in accordance with Kenya’s obligations under any treaty or international agreement concerning forests or forest resources, to which Kenya is a party. Article 62 allows the Chief Conservator to develop management plans and enter into joint management arrangements for the purposes of the proper management of cross-border forests and forest products.
There are national policies and laws that affect TBNRM—including those on natural resource tenure. In most of Eastern Africa, tenure policy and legislation generally have vested ownership of natural resources to governments and the state. They often deny communities control of the resources, and act as a disincentive to local community participation in natural resource management. For example, trees on public land in some countries of the region (Sudan, Tanzania, and Ethiopia) belong to the state and it is illegal to utilize them without a permit. In other countries including Kenya, Tanzania, and Uganda, there are reserved tree species on public and private land, which can only be utilized by permit and royalty payment to the government. In addition, land tenure systems of these countries lack clarity and often favor privatization and government holding. They do not provide the necessary basis for TBNRM. Wiley and Mbaya (2001) provide a detailed review of land and resource tenure across Africa.
Up to this point TBNRM has been partially addressed by some earlier regional environment and natural resource management conventions. Countries in Eastern Africa are parties to such instruments, including:
All of the above contain measures for TBNRM. Box 14 Describes the Lusaka Agreement in more detail:
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Box 14. Transboundary Wildlife Cooperation in Eastern and Central Africa—The Lusaka Agreement The Lusaka Agreement, signed in 1998, provides for cooperation between the Wildlife Sectors of several Eastern and Central African countries as a measure to reduce cross-borders trophy smuggling, and facilitate cross-borders antipoaching. A small secretariat is based in Nairobi (headed by a senior Tanzanian Wildlife Officer) to service the Agreement. The Tanzania-Kenya border has many transboundary wildlife systems (see Box 1) and smuggling and poaching are major concerns. Kenya Wildlife Service (KWS) has recently (March 2001) developed MoU protocols with Tanzanian wildlife authorities—Tanzanian National Parks Authority (TANAPA). This is aimed at security issues, including joint patrols and wildlife surveys. However, the initiative is not funded as yet—and activities are expensive. Cooperation is complex as on the Tanzanian side there are several separate wildlife authorities, all with distinct mandates. Apart from TANAPA, there are the Wildlife Division of Government, Ngorongoro Conservation Area Authority, and several district wildlife authorities. As a TBNRM mechanism, however, the Agreement is working, and offers a framework in which other more site-specific agreements can be developed. One such set of agreements is being developed through a GEF project within the greater Amboseli-Monduli area (see the Kilimanjaro Heartland case study in this volume). |
The 1985 Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region adopted as a protocol to the 1985 Nairobi Convention for the Protection, Management and Development of Marine and Coastal Environment of the Eastern African Region has a number of provisions on TBNRM. The protocol committed parties to “take all appropriate measures to maintain essential ecological processes and life support systems, to preserve genetic diversity, and to ensure the sustainable utilization of harvested natural resources under their jurisdiction. The protocol provides for meetings of the parties to review the implementation of the protocol, assess the need for further measures, and adopt or amend annexes. It requires a joint or common program for the management of marine and coastal ecosystems. Parties are expected to develop common research and exchange information for the conservation of shared marine and coastal resources. The implementation of these provisions suffers from weak secretarial and administrative oversight, limited financial base, and inadequate political support for the protocol.
At the program level, TBNRM issues are now on the agenda of the Inter-Governmental Authority on Development (IGAD). Established in 1986 by the six African states of Djibouti, Ethiopia, Kenya, Somalia, Sudan, and Uganda,15 IGAD has made attempts at integrating issues of transboundary land management and drought and watershed management into its program. IGAD is largely a forum for discussing regional issues, problems, policies, and concerns in its mandated areas of interest of food security, environmental and natural resource management, economic cooperation, and conflict management. Its programs also aim at promoting harmonization of environmental policies, with emphasis on those pertaining to drought and water and land management. IGAD provides a mechanism for instituting common policies and programs for TBNRM. However, its secretariat lacks the necessary human and financial resources to take on this responsibility.
TBNRM is finding an articulate reference in many of the emerging regional environmental programs and treaties. The Treaty for the Establishment of the East Africa Community (EAC) contains a series of provisions that would be invoked to promote TBNRM (see Box 5). These provisions can be invoked at both national and regional levels to solicit common approaches to the management of such transboundary ecosystems as Lake Victoria.
Partner states of the EAC have made a number of decisions to implement the provisions of the Treaty. In November 1998, the Council of Ministers of the EAC directed that a more comprehensive program on the control of invasive weeds be initiated. A team of experts developed a Regional Strategy for the Control of Water Hyacinth and Other Invasive Aquatic Weeds and a Regional/Harmonized Action Plan for Implementation. In the team’s report, it was recommended that a regional environmental impact assessment be conducted for the control of the water hyacinth. Since 1996 the partner states have been investing in processes to harmonize laws, policies, and methodologies for environmental impact assessments. This harmonization process was initiated under the auspices of a UNEP/UNDP/Dutch Project on Environmental Law; coordinated in East Africa by UNEP Nairobi, Kenya. This project has the objective of building capacity among the three EAC countries in the harmonization of environmental laws.
In October 1996 the three countries of the EAC signed an MOU on Cooperation in Environmental Management covering, among other areas, agreement on the development and harmonization of environmental impact assessment processes (Article 14). Among actions agreed upon is the development of common programs on the operation of environmental impact assessment processes. The MOU suggests strong linkages with the EAC Secretariat in matters of environmental impact assessments for shared ecosystems. A protocol is to be developed to replace the MOU.
D. International instruments for TBNRM
A variety of international environmental agreements ratified by Eastern Africa countries aim at promoting TNRM. These agreements include the Convention on Biological Diversity (CBD), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Convention on Wetlands of International Importance especially as Waterfowl Habitat (the Ramsar Convention), and the United Nations Convention to Combat Drought and Desertification (UNCCDD).
The CBD has several provisions that are implicitly about regional TBNRM. The first is Article 3 (the principle of sovereignty over natural resources). It states that “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” The duty of states to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States is recognized as a customary principle of international environmental law.
Other provisions of the Convention that refer to and can be interpreted to refer to TBNRM include Article 5 on cooperation, Article 14 on environmental impact assessments, and Article 19 on the handling of biotechnology and distribution of its benefits. The text of each of these articles appears below.
Article 5. Cooperation. Each Contracting Party shall, as far as possible and as appropriate cooperate with other Contracting Parties, directly or, where appropriate, through competent international organisations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity.
Article 14. Impact Assessment and Minimising Adverse Impacts. Each Contracting Party, as far as possible and as appropriate, shall … (c) Promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate.
Article 19. Handling of Biotechnology and Distribution of Its Benefits. The Parties shall consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity.
CITES aims at regulating cross-border trade in endangered wildlife species. It does not focus on TBNRM areas as such but is a vital instrument for TBNRM. It requires bilateral and multilateral cooperation to control illegal trade in endangered species. The Ramsar Convention also has provisions for TBNRM. Article 5 states that “Contracting Parties shall consult with each other about implementing obligations arising from the Convention especially in the case of a wetland extending over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties. Parties shall endeavor to coordinate and support present and future policies and regulations concerning the conservation of wetlands.
14. Article 3.2.b of the Ugandan National Environmental Statutes, 17 May 1995.
15. In 1993 Eritrea became the seventh member state of IGAD.