Governance in Africa: Access to Information, Public Participation, and Access to Justice

Promoting Access to Information, Public Participation, and Access to Justice in Africa

International and regional agreements, as well as popular pressure to open up governmental decision-making processes, are spurring national governments to take steps to improve transparency, participation, and accountability. In 1992, nations from around the world adopted Principle 10 of the Rio Declaration, which recognized the critical role that civil society plays in protecting and managing the environment. Principle 10 emphasizes the importance of public access to information, participation in decision-making processes, and access to judicial procedures and remedies. In 1998, the UN Economic Commission for Europe adopted the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (or “Århus Convention”). This binding convention establishes minimum legal and institutional requirements to ensure that citizens have the opportunity to obtain environmental information, participate in decision-making processes, and have access to judicial and administrative redress to protect the environment. The Århus Convention has energized countries and organizations around the world seeking to promote environmental governance. Adopted in December 1999, the Inter-American Strategy for the Promotion of Public Participation in Decision-making for Sustainable Development (or “ISP”) offers another approach, in this case non-binding, for advancing environmental governance. African countries and regional organizations are considering ways to incorporate these environmental governance principles into national legislation and regional initiatives.

In response to requests for assistance from many African organizations, ELI has been working on a range of initiatives in this area. ELI has collaborated with African non-governmental, quasi-governmental, and governmental organizations to support initiatives on national and regional environmental governance.

Africa-wide Initiatives

In response to various inquiries that ELI has received from African NGOs and governments regarding the Århus Convention and the ISP, ELI authored a paper on options for an African initiative on procedural rights and environmental governance. The paper summarizes the goals and requirements of the Århus Convention and the ISP, as well as the processes by which they have been negotiated, adopted, and implemented; discusses the particular African context and challenges associated with an environmental governance initiative; and outlines some options for promoting environmental governance in Africa. The paper, “African Environmental Governance: Opportunities at the Regional, Subregional, and National Levels,” appeared as a chapter in a book on African Environmental Law and Policy, which was published by Kluwer in 2003.

At the World Summit on Sustainable Development, ELI released a volume on The New “Public”: The Globalization of Public Participation, which includes chapters on public participation initiatives in Africa (authored by Collins Odote and Maurice O. Makoloo of Institute for Law and Environmental Governance, based in Nairobi); implementing public participation in African Development Bank operations (authored by Aboubacar Fall, a legal consultant with the AFDB Group); and the East African Memorandum of Understanding on Environment Management (authored by Godber Tumushabe of the Advocates Coalition for Development and Environment, based in Kampala). Another chapter, authored by Ali Ahmad of Bayero University in Kano, Nigeria, explores the Islamic law foundations for public access to information, participation, and justice generally as well as in the particular context of natural resource management.

Recognizing the importance of procedural rights for sustainable development, the United Nations Environment Programme invited ELI to participate in the AMCEN meeting of African environmental ministers, held in Abuja, Nigeria from April 3-6, 2000. While there, ELI gave a presentation on the national, sub-regional, and regional opportunities that African countries have to help shape and implement the emerging international norms of access to information, public participation, and access to justice. A version of this presentation was also published as “Towards an African Voice on Environmental Governance” in the July-August 2000 newsletter of Global Legislators Organisation for a Balanced Environment (GLOBE) — Southern Africa.

In September 1999, the Network for Environment and Sustainable Development in Africa (NESDA) launched a Network of African Environmental Lawyers. At NESDA’s invitation, ELI participated in the launch of the network and presented a paper on the role of networks in promoting public participation regionally.

Building on these activities and related ELI work in the Americas and Europe, ELI participated in a UNEP/UNECE Consultation on Promoting the Application of Principle 10 of the Rio Declaration, held May 20, 2000 in Rome. This consultation included governmental, nongovernmental, and intergovernmental representatives from around the world who met to seek means of promoting transparency, participation, and accountability in environmental matters at the national, regional, and global levels. ELI staff assisted in the development of the workshop, prepared the background paper, and served as the rapporteur for the session. The meeting paid particular attention to ways to develop initiatives in Africa, as well as globally.

At the invitation of UNEP-Infoterra, ELI participated in its Global Conference on Access to Environmental Information, held in Dublin Castle, Ireland on September 11-15, 2000. There, ELI staff spoke on the “Comparative Experiences in Developing the Right to Know,” with an emphasis on African experience in promoting access to information.

East African Initiatives

In May 1999, ELI made two presentations introducing the Århus Convention and its principles to East African audiences of NGO, quasi-governmental, and governmental attorneys and experts. The first presentation was made at a conference on Access to Environmental Information in East Africa, held May 6-7, 1999 in Arusha, Tanzania. Participants expressed the strong desire to advance environmental governance principles and procedural rights in Africa, and they recognized the significant opportunity for NGO capacity building that the Århus Convention afforded European NGOs. East African advocates suggested that a similar African initiative could build the capacity of African NGOs, and such an initiative would have more support from African governments than a European convention. The second presentation was an INFOTERRA/UNEP/Environmental Liaison Centre International seminar on the Århus Convention, held May 13, 1999 in Nairobi. At this presentation, some participants emphasized the need for specific, concrete national and subnational projects to implement the principles so that at the end of the day real progress would be made. Others believed that comparable regional or subregional conventions would spur African governments to enact national legislation.

Nigerien Initiative

Working with Nigerien Visiting Scholar Abani Ibrahim, ELI researched the needs and identified options for access to information, public participation in decisionmaking, and access to justice in Niger and Africa generally. This research focused on possibilities for implementing the principles of the Århus Convention in Niger including: (1) outlining the steps that would be necessary to accede to and implement the Århus Convention in Niger; (2) negotiating and implementing an African or West African convention that is similar to the Århus Convention; and (3) incorporating the principles directly into Nigerien national legislation. The research illustrated the importance of the Convention in promoting genuine sustainable development in Niger and throughout Africa. Abani and former ELI Senior Attorney Brian Rohan authored an article based on this work that appeared in the African environmental journal Innovation.

Access to Information in East Africa

ELI has initiated work on a key issue for African environmental advocates: access to information. Secrecy laws in many African countries currently limit public access to relevant environmental information. At the request of the Lawyers’ Environmental Action Team (LEAT) of Tanzania and the World Resources Institute (WRI), ELI participated in an East African conference on access to environmental information held in Arusha, Tanzania on May 6-7, 1999. ELI assisted in the preparation of the conference and participated as a technical and legal resource, drawing upon its experience with international, national, and local legal mechanisms and implementing tools employed around the world to ensure citizens’ access to information. Participants used the conference to launch initiatives in their respective countries to improve citizens’ and NGOs’ access to information.

Helping East African Lawyers Use Legal Tools to Protect the Environment

For environmental protection to be effective in Africa, civil society and governments must possess the technical and organizational capacity to address legal challenges on their own. Yet, environmental law courses are still just emerging at most African law schools. As a result, few practicing lawyers have the experience or knowledge to effectively argue environmental cases or otherwise implement environmental law.

In response to requests from East African NGOs to build the capacity of East African government and non-government lawyers to effectively bring and argue environmental cases, ELI and its partners (Greenwatch, Advocates Coalition for Development and Environment, the African Centre for Technology Studies, the Lawyers’ Environmental Action Team, and the World Resources Institute) held a workshop on “Access to Environmental Justice in East Africa." The workshop was convened June 18-21, 2000 in Jinja, Uganda. This workshop brought together more than 30 litigators from Kenya, Tanzania, and Uganda to share strategies and lessons learned and to expand their knowledge of substantive environmental law. In preparing for this workshop, ELI and its partners collected the important environmental laws and cases from the three countries and prepared additional analytical materials, all of which were distributed in a three-volume reference set. Access to legal precedents is particularly important for lawyers in these common-law countries, which lack comprehensive case reporters and digests, and as a result do not have ready access to judicial decisions bearing on the environment. In East African legal systems, judges and advocates rely on, and defer to prior cases, yet neither judges nor lawyers seeking to protect the environment have practical access to these cases.

Judicial Training
Strengthening the Capacity of Uganda’s Judiciary: Symposiums on Environmental Law

On May 13-15, 2001, ELI, in partnership with Greenwatch and the Advocates Coalition for Development and Environment, developed and convened a symposium to strengthen the capacity of the judiciary of Uganda to decide cases with environmental implications. The two-and-a-half day judicial symposium on “Environmental Law, Policy, and Access to Justice” took place in Jinja, Uganda. The participants included 16 judicial officers, among them one Supreme Court justice, nine High Court judges, three magistrates, and three registrars, as well as representatives and resource persons from ELI, Ugandan NGOs, Uganda’s National Environmental Management Authority, the United Nations Environment Programme, and the U.S. Agency for International Development. On the first day, the symposium addressed substantive topics, including the development of environmental law from the common law, principles of environmental law and policy, the institutional framework in Uganda, and multilateral environmental agreements. On the second day, the symposium focused on procedural and practical aspects of environmental cases, with presenters covering topics such as locus standi, the role of the judiciary, the relevance of science and economics, and judgment and remedies.

On September 1-3, 2002, ELI participated in a regional judicial symposium in Entebbe, Uganda entitled “Fostering East African Cooperation through Access to Environmental Justice." Greenwatch sponsored the event, which was attended by eight Ugandan judges, two Supreme Court and six High Court, and two Kenyan judges, one of whom also serves on the new East African Court of Justice (EACJ). Building on the 2001 judicial symposium, this advanced symposium explored the new roles of national and EACJ judges in the context of the East African Community. The Deputy Chief Justice of Uganda opened the symposium and gave the keynote address, emphasizing the importance of environmental law and of courts upholding environmental rights. Course faculty, which included representatives and resource persons from Uganda’s National Environmental Management Authority, the United Nations Environment Programme, Makerere University (Uganda), the University of Dar Es Salaam (Tanzania), and ELI, presented an overview of the legal and institutional framework governing environmental issues in East Africa. Participants then discussed an array of topics, among them the legal challenges arising from transboundary environmental matters, the experience of countries outside the region with access to information and environmental justice, and how the East African Treaty and implementing legislation at the national level can serve to promote access to justice, public participation, and the enforcement of environmental rights.

On May 11-14, 2003, ELI, UNEP, Greenwatch, and the Judicial Training Committee convened a third judicial symposium on environmental law in Uganda. This was the first of the symposiums to focus specifically on building the capacity of Uganda’s magistrates. Chief Justice Odoki delivered the keynote address at this symposium, emphasizing the importance of environmental law to the sustainable future of Uganda.

Enhancing the Capacity of Tanzania’s Judiciary: Judicial Symposium on Environmental Law and Policy

In partnership with the Judiciary of Tanzania, UNEP, and the University of Dar es Salaam Faculty of Law, ELI developed and convened a judicial symposium on “Environmental Law and Policy” for Tanzanian High Court Justices. The symposium was held June 25-27, 2003, in Arusha, and Chief Justice B.A. Samatta delivered the keynote address. The symposium was a dramatic success.

Environmental Litigation Study Tour for Cameroonian Jurists and Magistrates

In January 2005, ELI hosted a visiting delegation of four Cameroonian jurists and magistrates for a two-week study tour on environmental litigation and oil pipeline issues. The goal of the study tour was to prepare the delegation to handle possible environmental claims arising from the operation of the World Bank-funded oil pipeline constructed in 2003 between Chad and Cameroon.

The participants included the President of the Court of Appeal of the South Province, Ebolowa (Ministry of Justice); the General Prosecutor of the Centre Province, Yaounde (Ministry of Justice); the Sub-Director of the Ministry of Justice, Civil Matters and the Seal; and a jurist on the Pipeline Steering and Monitoring Committee.

While in Washington DC, participants met with representatives of the World Bank and the Bank Inspection Panel; Department of Justice; Environmental Protection Agency; National Oceanic and Atmospheric Administration; U.S. Department of Transportation; U.S. Coast Guard; Department of the Interior; U.S. Senate Committee on Commerce, Science, and Transportation; and representatives of nonprofit environmental organizations and private law firms. The study tour included an overview of the United States environmental legal and regulatory system as well as targeted sessions on topics ranging from oil spill and leak clean up and remediation to natural resource damage assessment, enforcement, and access to justice and to evidentiary issues pertaining to liability for environmental damage. Participants also traveled to the Chesapeake Bay region to learn about the Chalk Point oil spill from officials with the Maryland Department of Natural Resources and to visit NOAA’s Damage Assessment Center to discuss the scientific basis of risk assessments following oil spills or ruptures.

Promoting the Ability of African Judiciaries to Implement Constitutional Environmental Protections

ELI staff participated in the Global Judges Symposium on Sustainable Development and the Role of Law, held in Johannesburg, South Africa on August 18-20, 2002. This event, which was sponsored by the United Nations Environment Programme and ELI, among others, involved more than 120 Supreme Court Justices from 59 nations, making it the largest-ever gathering of its kind. ELI supported the participation of judges from Nigeria, Senegal, Tanzania, and Uganda. During the Symposium, ELI staff disseminated research aimed at improving the implementation of African constitutional provisions ensuring people’s rights to health, to a healthy environment, and to participate in decisions that affect them.

Seminars on Environmental Law

At the invitation of the U.S. Information Agency, ELI staff delivered the keynote address at the seventeenth annual American Studies Colloquium on “Environmental Law and Policy in the United States” on May 3, 2000 in Dakar, Senegal. The colloquium included French-speaking NGOs, academics, government officials, and private sector representatives from throughout West Africa. Additionally, ELI met with government officials, environmentalists, representatives of non-profit organizations, academics, and journalists in Senegal. Discussions covered such topics as environmental governance and the rule of law, improving environmental protection through public participation in environmental decision-making and access to information, alternative dispute resolution, and preserving special natural resources.

ELI has convened seminars in Washington, DC on a variety of topics in African environmental law and policy. These seminars raise the awareness of U.S. governmental and non-governmental institutions on pressing issues in African environmental law and policy, as well as providing an opportunity to disseminate research and seek further input from different viewpoints. Seminars have addressed:

  • the implementation of environmental governance principles and procedural rights in Niger;
  • implementing constitutional environmental protections in Africa;
  • opportunities for promoting public participation in environmental decision-making throughout Africa and elsewhere;
  • new models for addressing environmental health issues, with a particular view toward their relevance to the social, cultural, political, and financial contexts in Africa;
  • public participation in African Development Bank operations;
  • improving the compensation system for damage caused by elephants in Kenya; and
  • the environment and political unrest in the Democratic Republic of the Congo.