Abstract
At the United Nations Conference on Environment and Development (UNCED) the significance of citizen participation in environmental decision-making was set out in the Rio Declaration1 and Agenda 212 the two key UNCED instruments. The Rio Declaration recognizes the contribution individuals can make towards tackling environmental issues. It therefore enunciates the right of individual access to environmental information held by public authorities.3 The Rio Declaration also urges States to facilitate public participation by making information on the environment widely available and, by ensuring individual access to judicial and administrative proceedings.4 In addition it underscores the importance of women,5 the youth,6 and indigenous people7 in decision-making on matters relating to the environment.
Research for this chapter has benefited from interviews with staff at the following organizations in Ghana: the Environmental Protection Agency, Friends of the Earth, and Green Earth Organization. A generous grant from the University of East London’s Law School made the trip to Ghana possible.
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References
Declaration of the UN Conference on Environment and Development, 1992, reprinted in P.W. Birnie and A. Boyle (eds.), Basic Documents on International Law and the Environment, (Clarendon Press, 1995), 9 (text begins at 10).
Programme of Action for Sustainable Development: Report of the United Nations Conference on Environment and Development, Rio de Janeiro 3–14 June 1992, United Nations: New York (1993), 9 (hereinafter Agenda 21).
Ibid. Principle 10.
Ibid. Principle 10.
Ibid. Principle 20.
Ibid. Principle 21.
Ibid. Principle 22.
Agenda 21, n. 2, above, para. 23.2.
Ibid. paras. 27.10 and 27.13.
B. M. Hayward, “The Greening of Participatory Democracy: A Reconsideration of Theory”, 4:4 Environmental Politics, (1995), 215, 221.
Ibid. 220.
T. Webler and O. Renn, “A Brief Primer on Participation: Philosophy and Practice”, in Fairness and Competence in Citizen Participation: Evaluating Modules for Environmental Discourse, O. Renn, T. Webler and P. Wiedemann (eds.), Kluwer, 1995) 17, 21.
B.M. Hayward, n.10 above, 216.
Ibid.
H. G. White, “Including Local Communities in the Negotiation of Mining Agreements: The Ok Tedi Example”, 8:2. The Transnational Lawyer(1995), 303.
E. Rehbinder, “Ecological Contracts Agreements between Polluters and Local Communities”, in Environmental Law and Ecological Responsibility: The Concept and Practice of Ecological Self Organization, G. Tuebner, L. Farmer and D. Murphy, (eds.) (John Wiley & Sons, 1994), 147, 15354.
R. Coase, “The Problem of Social Cost”, 3:1 Journalof Law and Economics, (1960), 1.
H.G. White, n.15 above, at 336.
B.M. Hayward, n.10 above, at 220.
Ibid.221.
Ibid.
Environmental Protection Council Decree, 239 (1974).
Ibid. Article 2 (1) (b).
Ibid. 2 (1) (e).
G. Porter and J.W. Brown, Global Environmental Politics 2nd ed, (Westview Press, 1996), 23.
Ibid.
Ibid.
For attitudes by national authorities in Ghana towards the protection of the environment see, J.R.A Ayee, “The Formulation and Implementation of Environmental Policy in Ghana”, XXIII: 2 Africa Development (1998), 99, 114.
I. Shivji, The Concept of Human Rights in Africa, (CODESRIA, 1989), 83–84.
H. Gouldbourne, “The State, Development and the Need for Participatory Democracy in Africa”, in P. A. Nyong’s, Popular Struggles for Democracy in Africa, (Zed Books, 1987) 26, 35.
A. Seidman and R. Seidman, State and Law in the Development Process: Problem-Solving and Institutional Change in the Third World, (MacMillan, 1994), 186.
, J. R. Macey, “Promoting Public- Regarding Legislation Through Statutory Interpretation: An Interest Group Model”, 86:2 Columbia Law Review, (1986) 223. On Public Choice theory in general see, J. Buchanan & G. Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy, (University of Michigan Press, 1962).
J.R. Macey, n.32 above, 230.
D. A. Dana, “Overcoming the Political Tragedy of the Commons: Iessons Learned from the Reauthorization of the Magnuson Act”, 24: 4 Ecology Law Quarterly, (1997), 823, 834.
See, P. L. Khan, “The Politics of Unregulation: Public Choice and Limits on Government”, 75:2 Cornell Law Review, (1990), 280, 289.
Ibid. 291–292.
G. Porter and J.W. Brown, n.25 above, 28. This attack began in the United States, where it had its most articulate advocates, and then spreading to Europe and other regions. The main forerunners of this paradigm were the Limits to Growth study by the Club of Rome in 1972 and the Global 2000 Report released by the US Council of Environmental Quality and the Department of State in 1980. Both studies predicted that the earth’s natural resources faced depletion and also the degradation of ecosystems. Ibid.
Reprinted in P.W. Birnie and A. Boyle, n.1 above, 1, (text begins at 2).
Ibid. Proclamation, para. 7.
Ibid.
Ibid. Principle 19.
Ghana Industrial Free Zone Authority Decree, 157, (1978).
Investment Code, Act 437, (1981).
Industrial Free Zone Authority Decree, n.42 above, Article 3 (1) (j).
Investment Code, n.43 above, Article 11 (2).
Forest Protection Decree, 243 (1974).
Ibid. Article 1.
See, G. Myrdal, “The “Soft State” in Underdeveloped Countries”, 15:4 UCLA Law Review, (1968) 1118, 127. Although Myrdal’s analysis is with respect to the underdeveloped countries of South Asia, he notes that his analysis has validity for other parts of the developing world including Africa. Ibid. 1121. The shortcomings of legislative and policy initiatives in developing countries are highlighted when compared with similar developments in the developed world. Myrdal points out how greater equality of women in civil law matters was gradually attained after a struggle stretching over a long period. These rights-based struggles implied that when rights were finally granted that there were eager and mostly organized groups of citizens prepared to make use of them. Ibid.
G. Porter and J.W. Brown, n.25 above, 24–25, describing how the rise of an alternative social paradigm in environmental thought (sustainable development) did not occur overnight.
These organs of popular participation were to replace the middle class alliances that had consistently dominated Ghanaian politics since independence with a different coalition made up of the radical intelligentsia, the lower ranks of the petty bourgeoisie, the urban workers and the peasants. The revolutionary government claimed that the traditional poltical models had failed the country on 3 counts including reducing Ghanaians to the role of passive spectators while most meaningful decisions were taken in Accra (the capital) by politicians who were beyond public scrutiny once they had secured their election. P. Nugent, Big Men, Small Boys and Politics in Ghana: Power, Ideology and the Burden of History, 1982–1994, (Mansell, 1995), 47–48.
G.A. Sarpong, “From Stockholm to Rio: Some Ghanaian Responses to the Problems of the Environment”, XIX University of Ghana Law Journal, (1993–1995), 53, 81–82. The list of laws I cite below are drawn from Sarpong’s observations, ibid.
Timber Concessions (Revesting Law), 1982, Law 17.
Timber Concessions (Revesting) Amendments Law, 1982, Law 35.
Road Traffic (Amendment) Law, 1983, Law 43.
Gold Mining Products Protection Ordnance (Amendment) Law, 1983, Law 54.
Wild Animals Preservation (Amendment) Law 1983, Law 55.
National Energy Board Law, 1983, Law 62.
Ghana National Petroleum Corporation Law, 1983, Law 64.
Factories, Offices and Shops Act (Amendment) Law, 1983, Law 66.
Mining Rights, Licenses and Certificates (Imposition of Fees) (Consolidated Amendments) Law, 1983, Law 67.
Control of Bush Fires Law, 1983, PNDC Law 46.
Ibid. Article 5 (2–3).
Ibid. Article 6.
J. Haynes, “Power Politics and Environmental Movements in the Third World”, 8:1 Environmental Politics, (1999), 222, 225.
“Darkness in Accra & Abidjan”, New African (February 1994), 37.
Friends of the Earth, Plunder in Ghana’s Rainforest for Illegal Profit: An Expose of Corruption, Fraud and Other Malpractices in the Timber Trade, Vol. (Friends of the Earth, 1992), 4.
World Commission on Environment and Development, Our Common Futur (Oxford University Press, 1987).
See G. Porter and J.W. Brown, n.25 above, 2425.
The Brundtland Report noted how NGOs and citizen’s groups pioneered in the creation of public awareness and political pressures that stimulated governments to act on enviromental issues. NGOs also identify risks, assess environmental impacts, publish State of the Environment Reports, and provide an efficient and effective alternative to public agencies in the delivery of programmes and projects. See, World Commission on Environment and Development, n.67 above, 326329.
Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, 31ILM (1992), 881.
Ibid.
Convention on Biological Diversity, 31ILM, (1992), 822.
Ibid. Preamble
Ibid. Preamble.
Ghana Environmental Action Plan (Environmental Protection Council, 1991).
Ibid. 25.
Local Government Act, 462 (1993) Article 10 (3) (e).
Ibid. Article 5 (1) (b).
Ibid. para. (d).
Constitution of the Republic of Ghana, 1992 (Ghana Publishing Corporation, 1992), Article 41 (k).
Report of the Committee of Experts (Constitution), Proposals for a Draft Constitution of Ghana, (Ghana Publishing Corporation, 1991). The Directive Principles of State Policy are for the guidance of Parliament, the President, the Council of Ministers, Political Parties and other bodies and persons in making and applying public policy for the establishment of a just and free society. The Principles should not of and by themselves be legally enforceable by any Court. The Courts should, however, have regard to them in interpreting any laws based on them. Ibid. 49.
See, New Patriotic Party v Attorney General, (1997), The Supreme Court of Ghana Law Reports (hereinafter New Patriotic Party case), 729.
Ibid. 802–803. See also the dicta of Justice Bamford Addo, ibid, 745.
Ibid. p.747.
Ibid. See, also, S.Y. Bimpong-Buta, The Law of Interpretation in Ghana, (Advanced Legal Publications, 1995), 128–133.
Ibid.
See the following: N. A.F. Popovic, “In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment”, 27 Columbia Human Rights Law Review, (1996), 487; C. E. Akello, “The Right to Environment and Generational Equity” 4:2East Africa Journal of Peace and Human Rights, (1998), 125–138; E. Kasimbazi, “The Environment as a Human Right: Lessons from Uganda”, Proceedings of the Tenth Annual Conference of the African Society of International and Comparative Law (1998), 145; G. Alfredsson and A. Ovsiouk, “Human Rights and the Environment”, 60:1 Nordic Journal of International Law, (1991) 19; D. Shelton, “Human Rights, Environmental Rights and the Right to the Environment”, 28:1 Stanford Journal of International Law (1991), 103.
For instance see, Declaration of The Hague on the Environment, 11 March 1989, 28ILM, (1989), 1308; UN General Assembly Resolution 45/94 (1990). The Rio Declaration also asserts that “human beings are entitled to a healthy and productive life in harmony with nature”. See Rio Declaration, in P.W. Bimie and A. Boyle, n.1 above, Principle 1. The participants at UNCHE also declared tlat Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. See Stockholm Declaration, ibid. Principle 1.
African Charter on Human and Peoples’ Rights, 21:1 ILM, (1982) 59, Article 24.
Ibid. Article 1.
Ghana’s Mining and Environmental Guidelines(1994), Prepared by the Minerals Commission and the Environmental Protection Council, 21, and 32.
Environmental Protection Agency Act, 1994, Act 490.
Environmental Assessment Regulations, 1999, Legislative Instrument 1652
Undertakings are defined under the Regulations as “any enterprise, activity, scheme of development, construction, project building, work, investment, plan, programme and any modification, extension, abandonment, demolition, rehabilitation or decommissioning of such undertaking, the implementation of which may have a significant impact”. Ibid. Regulation 30 (1).
Ibid. Schedule 2.
Ibid. Regulation 17 (1) (a)-(c).
Ibid. 17 (2).
Ibid. 17 (3).
Ibid. 17 (5)
Ibid. Regulation 5 (1) (c).
Ibid. Regulation 16 (5).
Ibid.
Ibid. Regulation 27 (1).
Ibid. Regulation 27 (5).
This was pointed out to me during interviews with EPA officials.
Interview at EPA.
Interview at EPA
Interview at Green Earth Organization.
Interview at Green Earth Organization.
Interview at Green Earth Organization.
Interview at Friends of the Earth
Proposed O’ Sullivan Housing Estate, Environmental Impact Assessment Report (January 1999).
Ibid. 4.
Resolute Amansie Limited, Environmental Impact Assessment: Manso Nkran Air Strip (no date).
Ibid. 32.
Ibid. Appendix IV.
NTHC Properties Ltd., Environmental Impact Assessment for the Proposed Site —and — Service Scheme at East Legon, Adjirigano, Greater Accra (December 1998).
Ibid. 21.
There are measures underway to pass a right to information act in Ghana. See, The Right to Information Bill, 1999 (Draft), reprinted in Justice P.D. Anin, The Right to Information Bill (Draft) (Institute of Economic Affairs, 1999).
Rio Declaration, in P.W. Bimie and A. Boyle, n.1, above, Principle 10.
Phillipe Sands, Principles of International Environmental Law, vol. I: Frameworks Standards and Implementation, (Manchester University Press, 1995), 144.
Environmental Protection Agency Act, n.94 above Article 2 (a).
Ibid. Article 2 (f).
The EPA has the power to issue an enforcement notice where it appears to it that the activities of any undertaking threaten the environment or public health. Ibid. Article 13.
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Kufuor, K.O. (2003). The Evolution and Structure of Popular Participation in Environmental Decision-Making: The Case of Ghana. In: International Environmental Law and Policy in Africa. Environment & Policy, vol 36. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0135-8_12
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