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What are the Main Transboundary/Shared Natural Resources in Kenya?

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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.*

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 ArticleManaging 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).

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

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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.

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

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

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Brief History of the Permanent Court of Arbitration (PCA)

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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 20th Century during the first Hague Peace Conference held between 18th May and 29th 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 25th May 2023).

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