Chapter IV. Political and Legal Contexts for TBNRM

A. National policy context for TBNRM

The single most important national policy issue related to TBNRM is land and resource ownership. Inability to regulate access to and the use of resources leaves an open access system within which the actions of one resource user can impinge with impunity on the needs, concerns, health, and welfare of others. The absence of transparent, representative, and accountable systems of governance and of legal recourse that is available equally to citizens, companies, and government lie at the root of the struggle for more equitable land and resource tenure rights.

Barely 100 years ago, France, Belgium, Britain, Spain, and Germany carved up the Central African landscape into colonies. The vast majority of the area was claimed by France and Belgium and incorporated into French Equatorial Africa and King Leopold’s Congo Free State, respectively (Martelli 1962). In all of the colonies, large tracts of forest were assigned to concessionaires that were intent on extracting and exporting forest products such as ivory, antelope skins, feathers, and rubber (Copet-Rougier 1998; Coquery-Vidrovitch 1998 and 1999; Hardin 1997; Hochschild 1998).

French and Belgian control over forest resources was based on the colonial extension of the principles of Roman law, which holds that any “unoccupied” land for which ownership documents do not exist belongs to the colonial state. The most extensive application of this was the Torrens Title Act of 1902. The system takes its name from Robert Richard Torrens, who steered the measure through the South Australian Parliament in 1858. The principle was later adopted by most colonizing nations in Central Africa, where land settlement and tenure was the basis of their establishment. With passage of the act, colonial governments seized sole responsibility for registering and validating title, nullifying any previous title arrangements. By claiming all land for the colonial state, government was free to grant concessions and leases without concern for traditional tenure rights. As a result, virtually all forests were opened up to colonial control, and any formal recognition of the land rights of indigenous people was lost.

With loss of traditional tenure rights, Bantu farmers and to a lesser extent the hunter-gatherers were pressed into laboring for public work projects, such as the construction of roads and railroads, and for colonial plantations cultivating export crops such as oil palm, cotton, cocoa, and coffee. At this time, the traditional exchange relationship between farmers and foragers in the Belgian Congo was formalized and institutionalized by colonial administrators based on a system known as Circonscription Indigène, whereby farmers became the de jure political authority at the local level (Wilkie and Curran 1993).

In the early 1960s, the newly independent nations typically adopted or copied the acts of their colonial predecessors. In Gabon and the Republic of Congo, for example, governments continue the colonial French policy of denying the validity of customary titles to land, on the grounds that undeveloped primary forests are “vacant” and thus the sole property of the state. In the Democratic Republic of Congo, the General Property Law of 1973 abolished the category of “native lands” that had earlier been recognized under customary tenure (BSP 1993). Secure private titles or leases to land can be obtained only through written application to the state authorities. Individual titles are granted by the state for an initial five-year period; definitive title can be acquired only once the land has been shown to be “developed”—usually implying the conversion of primary forest to agriculture. This mise en valeur ownership requirement is a common feature of land tenure in Central Africa. Not only is this process contentious, it provides a strong incentive to clear idle land or forest, and has adverse environmental consequences in cases where it encourages speculative land clearing that is followed by poor management and unproductive land use (Kaimowitz and Angelsen 1998).

Throughout Central Africa, land use and ownership is far more complicated and contradictory than suggested by the legal principles codified in national law. In many cases, the state, despite its legal authority, has neither the ability nor the desire to exercise effective control over lands used by local people. The de facto authority over use and management of the region is a complex mix of customary-use practices and rules, modern statutes and laws, legal and business agreements with foreign timber and mineral companies, and a wide variety of culturally and socially mediated tenure arrangement between adjacent ethnic groups.

Contradictions between oral customary law and the various written codes, regulations, and statutes that concern tenure rights to forests and other natural resources are exacerbated by conflicting interests between local people and government authorities. Functionaries are charged with increasing government revenues, especially in the wake of recent economic crises. Local forest dwellers, on the other hand, depend on the forest resources for daily consumption. These conflicting interests often lead to a reluctance by local resource users and government authorities to work out equitable arrangements for managing primary forests for sustainable use and conservation, and militate against development of formal TBNRM.

The persistence of this dual system means that rational land management, such as zoning and land-use planning, is ineffective in putting into place resource management rules and sanctions. Confusion over ownership and authority has produced open-access situations in much of the region, paving the way for the exploitation of natural resources.

The recent establishment of community forestry laws in Cameroon and Gabon, although flawed and implemented poorly, has begun to provide a legal framework for positive change. In other countries, experience has shown that the first round of decentralization is typically marked by laws that are nonparticipatory, bureaucratic, poorly grounded in knowledge of local institutions, dominated by an elite, and politically controversial (Ribot 1999). Nevertheless, even these can open up—often for the first time since the arrival of colonialism—opportunities for local-level negotiation for greater right. This process takes time and is likely to be marked by political turmoil. Poor and marginalized communities and interests, including women and ethnic minorities, are also unlikely to see significant benefits until they are able to advocate and build alliances with more powerful groups.

Realistically, unless the public sector becomes more transparent, representative, and accountable to its citizens, and unless civil society grows in strength to counterbalance the power of its leaders, the capacity of citizens to negotiate improvements in resource management practices with corporate or government land managers in adjacent landscapes will continue to be exceedingly limited.

B. Regional policy context for TBNRM

1. Historical attempts at regionalization

Regionalization is a reality in Africa, as in most other parts of the world, and is a key factor in the evolution of national and intergovernmental policies. Forty years after independence, the boundaries of Central Africa states, inherited from the colonial period, remain unchanged despite their ecological, cultural, and economic arbitrariness. Worse, the break-up at independence of colonial federations such as Afrique Equatoriale Francaise (AEF) and the Central African Federation has had a lasting effect on moves to revive regional cooperation and integration.

The Union Dounière des Etats de l’Afrique Centrale (UDEAC) was formed by Cameroon, Chad, the Republic of Congo, Gabon, Equatorial Guinea, and the Central African Republic in 1964 to replace the AEF. In 1968 the poorest members, Chad and the Central African Republic, left briefly to join what was then Zaire in the short-lived Union des Etats de l’Afrique Centrale (UEAC). Rebuffed by the former French colonies to the west, Zaire, with French and Belgian support, worked toward establishment of the Communauté Economique des Pays des Grands Lacs (CEPGL) with Burundi and Rwanda, in 1976. Seven years later, the UDEAC and CEPGL nations, along with São Tomé, formed the Communauté Economique des Etats de l’Afrique Centrale (CEEAC). None of these regional organizations originated from “an endogenous philosophy” or from an “internal will shared by all actors.” Rather, “the concept meant little more than France, its principle architect, was trying to find a formula to reorganize its former Central African colonies into the grouping that would be most suitable to its own interests” (Ropivia 1999). Not surprisingly, these regional organizations have failed to achieve any tangible results (Kennes 1999). Similarly, nine years after the member states of the Organization for African Unity (OAU) signed the Treaty of Abuja, there is no evidence that they are any closer to their goal of establishing a continental common market by 2035 (Bach 1999).

That said, the Franc Zone (CFA, or Communauté Financière d’Afrique), is one of only two African regional institutions where integration does exist. The decision to preserve the Franc Zone was not an active sign of regional cooperation by the newly sovereign states, however, but was more a passive renunciation of total independence, because monetary integration within the Zone is guaranteed and controlled by a foreign state, France, as opposed to the members themselves of CFA (Pourtier 1999).

In 1992, in an attempt to avoid devaluation of the CFA franc, the members of the Franc Zone created the Conférence Interafricaines des Marchés d’Assurance (CIMA), followed in 1993 by the Conférence Interafricaines de Prévoyance Sociale (CIPRES) and the Organisation pour l’Harmonisation des Droit des Affaires en Afrique (OHADA). These programs were launched to help harmonize insurance, social welfare, and business regulations. Though they failed to prevent devaluation, the intergovernmental relations that developed as a consequence may have helped avoid the break-up of the Franc Zone. In September 1993, the permanent security committee of CEEAC recommended the creation, by all member states, of specialized crisis management units and the adoption of a nonaggression pact. Neither of these progressed beyond mere signatures on paper, nor did they prevent the conflict that now continues between Rwanda and what was formerly Zaire.

Devaluation of the CFA franc was followed by a restructuring of the inherited colonial institutions. The Economic and Customs Union of Central Africa (UDEAC) was replaced by the Central African Monetary Community (CEMAC, or the Communauté Economique et Monetaire d’Afrique Centrale) in a treaty that was signed in 1994 but which remains unratified. Both the CEMAC treaty and its West African Franc Zone counterpart (UEMOA) were based loosely on the European Union’s Maastricht Treaty and the Treaty of Rome. As such all have similar provisions, such as the institution of a common market, the elimination of internal customs duties, the establishment of common external tariffs and trade policies and of common rules of competition, the free movement of workers, the right of establishment and freedom of provision of services, and the harmonization and mutual recognition of standards. The treaties additionally touch on the harmonization of economic, agricultural, transportation, teaching and vocational training, and environmental policies. The CEMAC treaty furthermore provides for the creation of a judicial chamber (i.e., an interstate court) and an audit office.

Given that UDEAC fell short of its objectives, it may be unrealistic to expect regional integration to improve within CEMAC, which is built on the same foundation—i.e., was initiated by outside agencies (the World Bank and the French Ministry of Cooperation), with largely the same provisions, and without the inclusion of the Democratic Republic of Congo (Pourtier 1999).

The reluctance of member states to harmonize their fiscal and customs policies is maybe not surprising. The assumption that international borders are costly impediments to the flow of goods, capital, and labor ignores the large number of people at the frontiers who depend on tax and price disparities among nations for their livelihood. For example, in the early 1990s the reexport by smugglers of commodities from Gambia into Senegal accounted for 85 percent of Gambian imports and a substantial percentage of the economy of the capital, Banjul (Sall and Sallah 1994). In direct contrast to regular trade, trans-state trade (smuggling) depends on the lack of harmonization of customs tariffs, taxes, and commodity price subsidies; far from being an incentive for regional cooperation, it therefore contributes to isolationism. Dissolution of the seven-year-old Senegambian Confederation in 1989 occurred largely as a result of Gambian traders lobbying against a customs union that would end their lucrative but illegal trade with Senegal (Sall and Sallah 1994).

Concerns about barriers to regional cooperation that trans-state trade represents are most valid when considering the relationship between the Franc Zone countries and other countries. Even within the France Zone itself, however, differences in forest policies and taxation of the logging sector encourage trans-state timber smuggling and relabeling.

In essence, regional integration and cooperation is predicated on the existence of real political will, on comparable levels of development and volume of intraregional trade, and on the availability of affordable and reliable forms of communication (Ropivia 1999). None of these are currently assured in Central Africa.

2. New regional natural resource policy initiatives

Aware of the threats confronting Central African ecosystems and biodiversity, especially in transboundary areas, the countries of the region, in collaboration with donors and conservation organizations including IUCN, WWF, the European Commission, GTZ, the Government of the Netherlands, ECOFAC, BSP, CARPE, WCS, and GEF have launched several initiatives to promote more collaborative management of shared ecosystems. With these initiatives, decision makers in Central Africa have clearly signaled their interest in taking a leadership position in the sustainable management of transboundary natural resources. Their vision is expressed in the Brazzaville Declaration that launched the Conference on Central African Moist Forest Ecosystems (CEFDHAC), created by nine Central African countries: Burundi, Cameroon, the Central African Republic, the Republic of Congo, the Democratic Republic of Congo, Equatorial Guinea, Gabon, Rwanda, and Sao Tomé and Principe. This executive branch process, led by the Ministers of the Environment of the countries involved, has helped characterize the interests and concerns of Central Africans and has taken the preliminary steps toward identifying priorities for a concerted forest management action across the region. CEFDHAC meetings bring together government representatives, parliamentary representatives, field practitioners, and representatives of local and international NGOs to discuss issues related to the cooperative management of Central African ecosystems and to explore ways and means to harmonize resource use policies and management interventions.

The importance of the CEFDHAC process was confirmed during the Heads-of-State Summit on Conservation and Sustainable Management of Central Africa Tropical Forests held in Yaoundé in March 1999 (for the main points of the Yaoundé Declaration see the Annex in the Trinational Initiative case study in this volume). Each country representative at the summit affirmed the importance of forest resources to local and national economies, the importance of protected areas to conserve the region’s unique biodiversity, and the need for transboundary management of shared ecosystems. Neighboring countries were invited to join this initiative to accelerate the creation of transboundary protected areas (WWF 2000).

Commitments made at the Heads-of-State Summit—for example, to establish joint management by WWF and WCS of the trinational Park between Cameroon, the Central African Republic, and the Republic of Congo, and to implement a landscape approach for the management by WWF, ECOFAC, GTZ, and SNV of the zone connecting Cameroon, Gabon, and the Republic of Congo—have already started to be implemented on the ground. Lack of financial resources is, however, limiting the extension of these principles to other critical transboundary sites for environmental conservation in Central Africa.

C. International policy context for TBNRM

The nations of Central Africa are signatories to a wide array of international conservation and international resource management treaties, including the following (see also Table 8):

• African Convention on the Conservation of Nature and Natural Resources, Algiers, 1968;
• Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar Convention), signed in Ramsar, Iran, 1971;
• Convention Concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention), adopted by the General Conference of UNESCO (United Nations Educational, Social, and Cultural Organization) in Paris, 1972;
• Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES Convention), 1975;
• Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention, or CMS), adopted in Bonn, 1979;
• Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention), Basel, 1989;
• United Nations Framework Convention on Global Climate Change, Rio de Janeiro, 1992;
• Convention on Biodiversity, Rio de Janeiro, 1992; and
• Lusaka Agreement on Cooperative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora, Lusaka, 1994.

Note: Dates indicate the yearwhen a country accededto or ratified a convention.

These environmental treaties provide a framework for national-level management of natural resources and, in the case of CITES and the Basel and Bonn conventions, for formal discussions with neighboring states concerning the transboundary management of resources and resource uses. Because few if any international conventions mandate sanctions against signatories that fail to comply with convention provisions, however, the only mechanism that can promote effective implementation is adverse international opinion and the embarrassment of the head of state. For example, while UNESCO can bestow on a nation the prestige of establishing a World Heritage Site, it has no means of enforcing the effective management of the site—World Heritage Site status has never, in fact, been revoked for failure to effectively conserve the site’s resources. While establishment of World Heritage Site status signifies that an area has been recognized as being of global biodiversity or cultural importance, it does nothing to ensure the long-term persistence of the site.

Despite ratification by Central African nations of a range of different international and regional conventions, the text of these treaties often conflicts with or is countermanded by national resource management policies, laws, and regulations. For example, though all Central African nations are signatories to CITES, it is still legal in some countries to hunt, as trophies, wildlife species listed by CITES. Even the 1994 Lusaka Agreement— signed by the Republic of Congo, Kenya, Lesotho, Tanzania, Uganda, Ethiopia, Swaziland, South Africa, and Zambia—that established an international task force to combat illegal trafficking in African wildlife, has, at least in the case of the Republic of Congo, done little to strengthen the implementation of CITES and the Convention on Biological Diversity.