When it comes to protecting the environment, African countries perform very poorly. The unsustainable use of biodiversity, pollution of water resources and failures to mitigate against the effects of climate change are three examples.
Much of the blame for this can be laid at the door of governments and organisations such as the African Union (AU), as well as the legacy of colonial rule. But another key factor is a legal framework that has failed to keep pace with current environmental challenges.
Any threat to the environment is particularly significant in Africa because around 70% of people still live primarily off the land. Many African countries also depend on tourism as one of their primary sources of foreign currency earnings. Wildlife-based tourism ranks among the top three contributors to the GDP of most countries in southern Africa.
A legacy of colonial rule
Colonialism played a key role in creating the framework for conservation on the continent by dividing up Africa, thereby confining biodiversity to man-made boundaries. As colonial rule faded and countries gained independence, many were pre-occupied with their sovereign status and not interested in a common approach to conservation.
To avoid further damage to the environment a different approach is needed. In their 1996 book, International Law and the Conservation of Biological Diversity, Michael Bowman and Catherine Redgwell argued for an end to resource exploitation driven by a focus on national territorial sovereignty. They called for a more collective approach.
Efforts to forge a pan-African way
Since the end of colonial rule, there have been a number of attempts to introduce a pan-African approach to conservation. The African Charter on Human and Peoples’ Rights and the Africa Convention set the parameters for conservation efforts on the continent.
Article 24 of the African Charter on Human and Peoples’ Rights, introduced in 1981, contains an “environmental right” that states:
All peoples shall have the right to a general satisfactory environment favourable to their development.
At the time it was introduced in 1981, Article 24 was seen as a pioneering development in international environmental law. The African Commission on Human and Peoples’ Rights interpreted it as placing a duty on countries to “secure ecologically sustainable development and use of natural resources.”
However, Article 24 has been superseded by the 1968 African Convention on Nature and Natural Resources. The 1968 African Convention is the current applicable framework governing environmental conservation. It prescribes and guides countries as to what is expected of them in terms of conservation.
When the African Convention was first adopted, “fortress conservation” – fenced conservation without considering adjacent or other interdependent processes or role-players – was accepted as the norm. Today, many other conservation approaches are considered better. This is but one example of the outdated content in the African Convention.
Perhaps one of the convention’s greatest shortcomings is the lack of institutional arrangements, such as a Conference of Parties and Secretariat. There are also no mechanisms to ensure that the convention can be updated and that the provisions in it can be enforced. Accordingly, countries that are not abiding by the convention cannot be brought to task.
The revised convention must be ratified
To address these shortcomings, a more comprehensive version of the African Convention was adopted in 2003. It provides a potentially solid framework for conservation and sustainable development in Africa. However, the revised convention is not yet in force and has no legal effect.
Fifteen AU countries need to ratify it for it to come into effect. But so far, only 12 – Angola, Burundi, Côte d'Ivoire, Comoros, Congo, Ghana, Libya, Lesotho, Mali, Niger, Rwanda, and South Africa – have done so. It is unfortunate that the urgency to protect Africa’s biodiversity is lost on the countries that have not ratified it.
The revised convention is more in line with contemporary environmental law and is much better suited to meeting present day challenges. It recognises issues such as protecting the environment for future use, the importance of protecting plant and wildlife specific to a certain region, community involvement and rights and trade in natural resources.
Emphasis is placed on co-operation in harmonising laws and policies, particularly where natural resources or ecosystems cross national borders. Under the convention governments have a duty to co-operate in conserving areas that go across national boundaries. This creates a mandate for conservation approaches that go beyond domestic politics.
The colonial legacy of rigid approaches to sovereignty continue to hinder co-operative approaches to conservation at a pan-African level. It is important that co-operative approaches are found to conservation as the natural environment knows no political boundaries.