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.*
Transboundary or shared natural resources are resources that cross the political boundaries of two more States. They are natural resources that are transected in their natural state by a political boundary such as a national frontier. Plants, animals, micro-organisms, waters, weather systems, and other elements that constitute the environment, including people, do not remain within jurisdictional boundaries. Therefore, issues of common concern arise out of shared natural area, resource system, or migratory species. A good example is the Mara-Serengeti wildebeests which migrate annually from Kenya to Tanzania and back.
As a matter of international law, every state has the right to exercise sovereignty over its natural resources found within its territorial borders. However, natural resources that cross political borders, present a complex challenge particularly in managing environmental threats, and in regulating access to and use of the accruing benefits. As such, international environmental law comes in since no single State can allege to be solely entitled to access, use or manage such shared resources to the exclusion of all the others. All the concerned States must be involved in the management of shared natural resources. In the Kenyan case, there are various transboundary natural resources located within the territorial boundaries of Kenya that are shared with other states. These include lakes, mountains, rivers and river basins, aquifers, wildlife among others. Kenya shares most of her natural resources with countries such as Tanzania, Uganda, South Sudan and Ethiopia.
Serengeti-Mara Ecosystem
The Serengeti-Mara Ecosystem is a trans-boundary ecosystem between Tanzania and Kenya. It is located on south-western Kenya and north-central Tanzania and comprises of ecological units within and outside the Protected Area (PA) systems of the Serengeti National Park (SNP) in Tanzania and the Maasai Mara National Reserve (MMNR) in Kenya. The Serengeti-Mara Ecosystem is believed to support the most diverse migration of grazing mammals on earth. The Mara, although only a quarter of the total ecosystem area, is the most crucial to the survival of the entire system because it is the source of forage for wildlife migrating through the Serengeti during critical points in the dry season. Further, according to statistics, only 25% of the wildlife habitat in the Mara part of the ecosystem is protected (in the Mara Reserve), while the rest lies within pastoral and agricultural areas north of the reserve. These lands outside the reserve are also under more pressure than the rest of the ecosystem, with recent unprecedented human population growth, expansion of wheat farming in wildebeest calving grounds and expansion of tourism facilities. All these issues have an impact on sustainable management of these ecosystems by the member States.
The need for cooperation in managing shared wildlife resources is, for instance, captured under the Wildlife Conservation and Management Act 2013, which requires the Cabinet Secretary in charge to, subject to subsection (5), formulate and publish in the Gazette a national wildlife conservation and management strategy at least once every five years, in accordance with which wildlife resources shall be protected, conserved, managed and regulated. The national wildlife conservation and management strategy shall prescribe the principles, objectives, standards, indicators, procedures and incentives for the protection, conservation, management sustainable utilization and control of wildlife resources and shall, in particular prescribe, inter alia— reflection on regional cooperation and common approaches for enhancing protection, conservation and management of shared wildlife resources.
Lake Victoria Basin
The Lake Victoria basin is located in the central region of East Africa and covers an estimated area of 194,000 square Kilometers of which 7% is in Burundi, 22% in Kenya, 11% in Rwanda, 44% in Tanzania and 16% in Uganda. The lake basin contains Lake Victoria, the second largest lake in the world with an area of 68,800 Km2 and a number of satellite lakes and rivers. The main lake and satellite lakes are fringed in many places by extensive wetlands. About 35 million people (about 30% of the entire population of East Africa) are estimated to live and derive their livelihood directly or indirectly from the basin.15 Lake Victoria also supports one of the largest freshwater fisheries in the world. By 2007, the lake was producing about one million tons of fish annually valued between 300-400 million US dollars. The lake had a high fish species diversity of over 500 species of fish most of which were endemic to the lake and were of economic and scientific value. The lake provides water for irrigation, hydropower generation, industrial and domestic use, and modulates local climate.
Nile River Basin
The Nile River, with an estimated length of over 6800 km, is the longest river in the world flowing from south to north over 35 degrees of latitude. It is fed by two main river systems: the White Nile, with its sources on the Equatorial Lake Plateau (Burundi, Rwanda, Tanzania, Kenya, Zaire and Uganda), and the Blue Nile, with its sources in the Ethiopian highlands. The sources are located in humid regions, with an average rainfall of over 1000 mm per year. The arid region starts in Sudan and can be divided into three rainfall zones: the extreme south of the country where rainfall ranges from 1200 to 1500 mm per year; the fertile clay-plains where 400 to 800 mm of rain falls annually; and the desert northern third of the country where rainfall averages only 20 mm per year. Further north, in Egypt, precipitation falls to less than 20 mm per year. The total area of the Nile basin represents 10.3% of the continental area and spreads over ten countries. For some countries, like Zaire, the Nile basin forms only a very small part of their territory while others like Burundi, Rwanda, Uganda, Sudan and Egypt, are almost completely integrated into the Nile basin. However, all the waters in Burundi and Rwanda and more than half the waters in Uganda are produced internally, while most of the water resources of Sudan and Egypt originate outside their borders: 77% of Sudan’s and more than 97% of Egypt’s water resources.
*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).