Africa’s ambitious new biodiversity laws have teeth and will protect people too

Africa is known for its rich biodiversity. On a continent where people depend on this biodiversity for their daily subsistence, the question of how the animals and plants that live there will be protected remains crucial. A difficult question to a lofty ideal. Holding leaders accountable for national efforts affecting the environment is a good start.

In 2016, the 2003 Revised African Convention on the Conservation of Nature and Natural Resources, also known as the Maputo Convention, entered into force. This is a document adopted exclusively for the African continent.

Why did it take 13 years to come into force? The most obvious reason is that it contains strong provisions that could create accountability and also slow down social and economic development.

Necessary change

During colonial rule, Africa had two regional conventions focused on conservation. The first was created in 1900 and was called the Convention for the Preservation of Wild Animals, Birds and Fish in Africa. It was practical and aimed to control the exploitation of wildlife at the time. But the signatories did not ratify it and it never entered into force.

A second attempt was the Convention on the Conservation of Fauna and Flora in their Natural State. This convention came into effect in 1936. As the name suggests, resources of plant origin have been included here. Similar to the first convention, human use of animals and plants was a major concern.

After decolonization and independence, a new conservation document was needed that meets the needs of the people. This resulted in the revision of the aforementioned 1936 Convention with the help of UNESCO and other bodies. It also resulted in the 1968 African Convention on the Conservation of Nature and Natural Resources, or Algiers Convention. Although this convention was welcomed, it did not have enough teeth to enforce what was in the convention.

As a result, various attempts have been made to revise it. Finally, in 2003, the Maputo Convention was adopted. This is the first revision of the African Environmental Framework Law in 48 years. This event provides a much needed injection of contemporary environmental standards into African environmental law.

The Maputo Convention contains a number of new provisions, but most importantly, it also contains progressive content. The main difference between the Maputo Convention and its predecessors is its ability to enforce the convention. In addition, its recognition of sustainable development and the concept of sustainable use.

Also, the recognition of prevention and precaution as a fundamental obligation goes hand in hand with the importance of nature as a finite resource. We are clearly moving away from the pure utilitarianism contained in the conventions of 1900 and 1933.

New and progressive content

Ironically, the strong provisions of the Maputo Convention could be its downfall. History shows that regional legal instruments containing strict enforceable provisions are rejected by Member States. Proof of this is that it took 13 years for 16 Member States to ratify the Convention.

This may be due to potential accountability as well as the perceived idea that development will suffer setbacks. The Convention includes the right to a satisfactory environment, a right to development and the concept of sustainable development. These are guiding principles that include modern environmental approaches.

Another progressive inclusion is the “fundamental obligation” where parties are required to follow preventive and precautionary approaches. They must take into account the interests of present and future generations.

Recognition of military and hostile activities as harmful to the environment is also new and progressive. This was not the case in the predecessors and the inclusion is welcome as Africa suffers from many internal conflicts. According to the Convention, measures must be taken by States to ensure that the environment is not damaged during a conflict. But when it is damaged, the parties must restore and rehabilitate the damaged areas.

Recognize people and their rights

The Maputo Convention obliges States to adopt legislative and regulatory measures for the dissemination of environmental information. Access to this information, public participation in cases with potentially significant environmental impact and access to justice must be guaranteed.

A final right is given to people affected by cross-border issues as it is given to those where the conflict began. This means that people may have access to justice where their own legal system may not be able to help them.

The Maputo Convention also recognizes the importance of the people and aims to empower them through education and training as well as the recognition of the traditional rights of local communities and indigenous knowledge.

There is a dedicated section regulating the relationship between sustainable development and natural resources. In doing so, a mandate is given to ensure that development is sustainable.

Giving teeth to environmental law

One of the major drawbacks of the Algiers Convention was that it lacked the power to enforce laws. By establishing both a Conference of Parties and a Secretariat for implementation and administration, the Maputo Convention can enforce its provisions.

According to this provision, signatories must develop and adopt rules, procedures and institutional mechanisms to deal with damages and compensation. However, it is not possible to determine whether these bodies have already been created. These provisions give it the necessary teeth to potentially make it a successful and effective addition to environmental law in Africa.

Considering that the Algiers Convention remains in force for the Member States and not yet the Maputo Convention, the effectiveness of the latter remains to be seen. This is especially true considering that only 30% of African states have ratified the Maputo Convention to date. Some of the major countries that have ratified the Convention include: South Africa, Lesotho, Angola, Rwanda, Chad, Burkina Faso and Burundi. Countries with large and growing economies that have not yet ratified the Convention are: Botswana, Egypt, Equatorial Guinea, Nigeria, Libya and Gabon.

Despite the uncertainties about its effectiveness, the Maputo Convention is bound to have some influence on African states. It could even become a topic in the African legal system that could greatly contribute to regional environmental jurisprudence.

William L. Hart