By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021.*
The East African Community (EAC) as established by the East African Community Treaty78is the regional intergovernmental organization of the Republics of Kenya, Uganda, the United Republic of Tanzania, Republic of Burundi and Republic of Rwanda with its headquarters in Arusha, Tanzania. The EAC aims at widening and deepening co-operation among the partner states and other regional economic communities in, among others, political, economic, and social fields for their mutual benefit.
The objectives of the Community, as outlined in the treaty are, inter alia, to ensure sustainable growth and development among the partner states and to promote the sustainable utilization of the natural resources of the partner states and to take measures that would effectively protect the natural environment of the Partner States. Articles 111 and 114 of the EAC Treaty provides for joint management and utilization of natural resources within the Community for the mutual benefit of the partner States.
In particular, the Partner States are to: take necessary measures to conserve their natural resources; co-operate in the management of their natural resources for the conservation of the eco-systems and the arrest of environmental degradation; and adopt common regulations for the protection of shared aquatic and terrestrial resources. Kenya has lived up to its obligations in accordance with this provision, as it has enacted various laws and policies which guide the manner in which the country is to utilize the transboundary resources that it has.
The adoption of the Fisheries Policy is a good example of this. With regard to conservation of these transboundary resources, the actions by the community shall have the objective: ensuring sustainable utilization of natural resources like lakes, wetlands, forests, and other aquatic and terrestrial ecosystems and to jointly develop and adopt water resources conservation and management policies that ensure sustenance and preservation of ecosystems.
The East African Court of Justice is established under the treaty as the judicial body of the Community, and is mandated with ensuring the adherence to law in the interpretation and application of and compliance with the Treaty. In this regard, the Court is to ensure that the objectives of the Community are met. One such is ensuring the sustainable utilization of resources found within the Community. In this regard, the court has ensured sustainable utilization of resources in the Community and the protection of transboundary resources.
In African Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, it was the Applicant’s contention that the construction of a trunk road across the Serengeti National Park would have deleterious effects on the Serengeti and also on the adjoining ecosystems such as Masai Mara in Kenya. It was therefore the submission of the Applicant that; The actions of the Respondent are a violation of Article 114 (1) (a) of the Treaty which enjoins all Partner States to conserve, protect and manage the environment and natural resources and Articles 5 (3) (c), 8 (1) (c) and 111 (2) of the Treaty which obligates Partner States to co-operate in the management and utilization of natural resources within the Community and to abstain from any measures that would jeopardise the attainment of the objectives of the Treaty in that regard.
The Court held that the actions by the Respondent were unlawful and contrary to the Treaty and a permanent injunction was thus issued to the respondent restraining it from operationalizing its initial proposal for the construction of the road. The Court in this regard took cognizance of the fact that the construction of the road had potentially negative effects on the Serengeti-Mara ecosystem, which is a transboundary natural resource and hence it was imperative for the court to take some measures towards its protection in line with the Treaty.
In 2003, the member states of the EAC adopted the Protocol for the Sustainable Development of Lake Victoria Basin, in realization that there was need for sustainable utilization of the waters in the Lake Victoria basin and to introduce an integrated approach in the management of this resource. The Partner states thus sought to cooperate in the conservation and sustainable utilisation of the resources of the basin. Member states of the EAC have further taken cognizance of the need to ensure the protection of the resources that are shared among these countries and in this regard they have adopted the Transboundary Environmental Assessment Guidelines for Shared Ecosystems in East Africa.
It is acknowledged that effective management of the transboundary resources within the Community has the potential effect of reducing poverty in the region. The guidelines seek to ensure that member states of the EAC participate in common environmental assessments, have common regulations, procedures and guidelines for shared ecosystems. These guidelines have further taken into consideration the need to ensure that citizens of the EAC member states are also provided with opportunities to participate in the environmental assessment processes.
The Protocol on Environment and Natural resources Management This protocol86 was adopted to govern cooperation among partner states in the management of the environment and natural resources over the area of their jurisdiction and also including the governance and management of transboundary resources. Article 9 of the Protocol requires that the Partner States are to develop mechanisms meant to ensure sustainable utilization of transboundary ecosystems. The Protocol in particular provides for the cooperation in Environment and natural resources management. More specifically, on its Article 13 on management of water resources, the protocol provides that; the partner States are to develop, harmonize and adopt common national policies, laws and programmes relating to the management and sustainable use of water resources and to utilize water resources, including shared water resources, in an equitable and rational manner.
As stated in the Kenyan Water Policy, the formulation of the Policy took into consideration principles derived from international resolutions and treaties including the EAC treaty. Similarly, the National Water Policy of Tanzania takes cognizance of the fact that the country shares water resources with other countries and hence the need to ensure that approaches are adopted to conserve these water resources. These initiatives by the EAC countries are seen to go a long way in ensuring the conservation of the water resources shared by these countries.
Article 18 of the Protocol is related to the management of mineral resources. It requires, inter alia, that: the Partner States should develop and harmonize common policies, laws and strategies for access to exploitation of mineral resources for the socio-economic development of the Community. This is further buttressed by the provisions of Africa Mining Vision particularly in Annex 1 which requires mining policies in different countries to be harmonized in order to ensure that there is sustainable exploitation of the mineral resources.
The EAC Regional Environment Impact Assessment Guidelines for Shared Ecosystems were developed in response to the urgency to institute measures, policies, guidelines, laws and programmes that will promote their cooperation in the conservation and sustainable use of the shared ecosystems EAC has developed the regional EIA Guidelines for shared ecosystems. The regional EIA Guidelines are for enabling the identification and application of environmentally sound approaches to management and ensure the sustainability and biophysical integrity of the shared ecosystems within the East African region.
The activities that are to be considered for transboundary environment impact assessments have been said to be those that are implemented in the geographical area of the transboundary ecosystem and include such activities that are likely to involve major changes in land use and likely to cause transboundary impacts in neighbouring countries. A criterion has thus been established for determining transboundary environmental impacts and the costs associated with conducting of these assessments are to be met by the developer of a certain project in these areas. The Guidelines play an important role in the management and conservation of the shared ecosystems such as fresh water, forests and protected areas.
*This article is an extract from the Article “Managing Transboundary Natural Resources in Kenya” by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Managing Transboundary Natural Resources in Kenya,” (KMCO, 2021), Available at: http://kmco.co.ke/wp-content/uploads/2021/03/Resource-Mobilization-for-Sustainable-Development-in-Kenya-Kariuki-Muigua-24th-March-2021.pdf (accessed on 16/04/2022).