News & Analysis

The Legal Framework on Management of Shared Resources in East Africa

Published

1 year ago

April 16, 2022

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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).

News & Analysis

Why is THE LAWYER AFRICA Listing Top Law Firms and Top Lawyers?

Published

1 day ago

June 5, 2023

Admin

The Litigation Hall of Fame | Kenya in 2023 (The Most Distinguished 50 Litigation Lawyers in Kenya).

We live in the age of information overload where too much information (TMI) is increasingly making it difficult to find actionable legal data about a good law firm or lawyer. At the same time, legal services are increasingly going digital and finding your next lawyer is a now a matter of a few clicks. Many existing, new and potential clients are interested to know more about the lawyer handling or likely to handle their next case or transaction as every HR Manager seeks to know how their In-house Lawyer or next hire compares to peers.

The biggest dilemma especially for commercial consumers of legal services is where to begin the journey in finding the law firm or the lawyer to meet their immediate legal need created by their new venture, business, transaction or dispute. In-house counsel are also called upon to justify opting for one lawyer or law firm or over the other. Hence, the rise in the popularity of international law directories rankings as an attempt to fill the yawning gap by listing a few dozen lawyers and law firms in esoteric categories that often don’t align with the legal needs of the domestic legal market.

But ranking two dozen elite lawyers or big law firms in a big jurisdiction like Kenya there are over 20,000 lawyers is merely a drop in the ocean. The result is the same candidates are listed year after year and an In-house Legal Team looking to infuse new blood in their external counsel panel is left very little discretion. At best, International legal ranking only succeed to tilt the scales in favour of few big firms and their lawyers and to aid the choice of International Legal buyers who are constrained for time in picking their External Counsel in jurisdictions where they cannot find referrals.

The questions that beg are: What about the other top law firms and lawyers who are equally good if not better but don’t have the time to fill the technical paperwork that comes with International Legal Directories rankings? What about Domestic Legal Buyers who simply want to justify why they prefer a lawyer or law firm not listed in the International Directory? Can increasing the number of listed lawyers or law firms from less 0.1% of the profession (as captured by International Law Directories) to at least 1% of the profession or higher for those specializing in the practice area help in enhancing access to justice in Africa? Can ranking law firms by number of fee earners help in the quest for a more accurate bird’s eye view of a country’s legal landscape?

At THE LAWYER AFRICA, we have set out to list Top Law Firms and Top Lawyers in the various practice areas in a way that democratizes law rankings and listings and brings this essential value add within reach of most lawyers and every law firms doing top legal work. We don’t promise to list all the top lawyers or law firms, but we commit to make sure every lawyer or law firm we list is at the top of the game in the listed practice area. We aim to help both little known and already known law firms and lawyers doing top legal work in their area of specialization get discovered by discerning clients and possibly get more opportunities to do great work.

THE LAWYER AFRICA is looking to list up to Top 200 Law Firms in every African Jurisdiction based on their reputation and number of fee earners headcount with a goal of listing at least Africa’s Top 1,000 Law Firms which are leaders in their respective countries. We also seek to list up to Top 1,000 Lawyers in every country in Africa in at least five main practice areas, namely, Litigation, Commercial Law, Property law, In-house and Private Sector or more.

THE LAWYER AFRICA categorizes law firms in large jurisdictions as Top 5, Top 10, Top 20, Top 50 and Top 100 (and allow tying where number of counsel is equal). The Top Lawyers are listed in three categories, namely, Hall of Fame (the Distinguished Top 50 or 75 Practitioners in a Practice Area), Top 100 (the Leading Top 100 Practitioners in a Practice Area) and Up-and-Coming (the promising Top 50 or 75 Practitioners in a Practice Area). The placing of a listings depends on a number of key factors including the number of key matters or transactions handled, years in practice and experience, size of team working under a counsel, reputation and opinion of peers (where available) as established by THE LAWYER AFRICA.

THE LAWYER AFRICA prefers to list a counsel in only one listing, as far as possible. The Team tries (as far as possible) not to contact listed law firms or lawyers before the listing is finalized in the first. However, a listed law firm or lawyer may be contacted at the pre-launch stage of a list for purposes of selling merchandise relating to the launch but such engagement will not affect the listing. In case of future listings, it is expected that interested lawyers or law firms who feel they were previously left out of the list may to provide information for consideration to determine if they qualify for the next listing but that will not guarantee any listing.

THE LAWYER AFRICA undertakes not to charge for listing any lawyer or law firm. However, upon publication of a listing, as part of recovering the sunk costs we incur in the research and publication of the listings, we shall charge a token for printing and shipping of Quality A3 Certificate for listed Law Firms and/or A4 Certificate for listed Lawyers who wish to have or display the branded souvenirs or to use our proprietary digital materials in their business branding. We may also charge listed and unlisted law firms and lawyers an affordable fee for limited banner advertising or publishing of enhanced profiles next to the listings.

For any question or feedback on any list or listing, feel free to contact THE LAWYER AFRICA PUBLISHER at info[at]thelawyer[dot]africa.

News & Analysis

The Roles of the Three Parts of the Permanent Court of Arbitration

Published

1 week ago

May 30, 2023

Admin

H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

(more…)

News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)

Published

2 weeks ago

May 26, 2023

Admin

By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20^th Century during the first Hague Peace Conference held between 18^th May and 29^th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.

Reference

PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25^th May 2023).