Abstract
Environmental Impact Assessment (EIA) is in general defined as a process and a planning tool to identify the likely consequences for the bio-physical environment and the human health and welfare, of implementing particular projects and programs and conveying this information at a stage when it can materially affect their decision, to those responsible for sanctioning the proposals for these projects and programs2. It is undisputed that EIA, like other planning and environmental management instruments, plays a critical role in ensuring the sustainable development of a country’s economy.
Laws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development policies into action” Agenda 21, Chapter 8
Senior Counsel- LEGEN, The World Bank. Previously Professor of Law, Faculty of Law (University of Oran. Algeria). Currently Senior Counsel, Environmental and International Law Unit of the Legal Department of the World Bank. The opinions expressed are those of the author and do not express those of the World Bank.
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References
See for example World Bank (1995), Environmental Assessment in Africa. A World Bank Commitment. (Proceedings of the Durban Workshop, World Bank, June 25, 1995) (Washington, D.C.; 1995). Many African countries are aware of the costs of environmental degradation and the effect of development planning, and, in some of them, there are now many years of experience in attempting to assess, mitigate, and monitor adverse environmental impacts of development projects and programs. However, in others, formative steps are only now being taken towards the introduction of an environmental impact assessment mechanism, as the potential benefits of the implementation of EIA are more widely understood.
See Faith Halter (1990), “Towards More Effective Environmental Regulation in Developing Countries” (Paper presented at OECD Development Center Seminar (August 27, 1990) (Paris: OECD).
National Environmental Policy Act (1969) § 101, 42 U.S.C. § 4331 as amended (1994).
World Commission on Environment and Development (1987).
Since then, International Financial Institutions (IFI), including the World Bank have tied the provisions of development funding to the assessment of the environmental impacts of proposed projects.
The best example is Algeria where the Decret 90–78 of July,10 1990 on environmental impact assessment provides that large development projects such as highways, dams or other infrastructure are not explicitly defined as being subject to EIA. A list of defined project does not include them although article 2 of the decree states that the Decree 90–78 which states that «Shall be submitted to environmental impact assessment: all works (travaux, amenagements et ouvrages in French) which by their size and impacts, may directly or indirectly affect the environment and notably public health, agriculture, natural landscapes, fauna, flora, sites and historical monuments conservation and neighborhood». It is only recently that the Government of Algeria decided to solve this contradiction between the general objective of article 2 and the list of defined projects and activities. The Government is preparing a new decret more in line with the objectives of a modem vision of EIA, including subjecting large development projects to prior environmental impact assessment. Another specific case is in the Kingdom of Morocco where an environmental framework law is in the process of being prepared since 1987 and a draft decree on EIA since 1991. Up to now, both texts are not yet adopted. EIA is done as part of an international financing requirement or as a pro-bono work by the developer, but not as a legal requirement under domestic law.
In fact, in French-speaking Africa, an old legislation known as “Reglementation des etablissements classées” whose introduction by the then French colonial administration goes as far back as 1926 empowers the government at local and central level to closely monitor pollutions emanating from polluting plants and/or harmful activities. In some cases, this pollution control monitoring involves a public consultation process called “enquête commodo-incommodo”. However, this legislation is far less sophisticated than the EIA mechanism and does not cover a wide range of projects and programs.
These countries and the laws and statutes considered in this study are listed in an Annex to this paper.
A good attempt to summarize such legal development on EIA has been made by MMM for the Commission for Environmental Impact Assessment of Netherlands (1998) in a document called “EIA Profiles of Developing Countries”, Leiden. Nineteen summaries for African countries are reported.
In the ICJ Decision concerning the Gabčicobo-Nagymoros (Gabčikovo-Nagymaros Project (Hungary/Slovakia) ICJ Rep. 1997, 3.)), Judge Weeramantry, in a separate opinion, considered that the principle of prior environmental assessment is part of the customary law. For further elements on customary environmental law see D. Bodanski (1995), “Customary (and not so Customary) International Environmental Law”, 3 Indiana J. of Global Legal Studies105
Among these, economic instruments, incentives and quality standards are of the greatest importance to complement environmental regulations.
See especially the Convention on Environmental Impact Assessment in a Transboundary Context (1991), 30 I.L.M. 802 (Espoo Convention), which is the most comprehensive international instrument on EIAs. In addition, other instruments make reference to EIAs. See, for e.g., Article 14 (1) (a) of the United Nations Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818; Article 4 (1) f. of the United Framework Convention on Climate Change, 31 I.L.M. 849 (entered into force Mar. 21, 1992) that suggests means for complying with the provision; Article 206 of the United Nations Convention on the Law of the Sea (UNCLOS), Dec. 10, 1982, UN Doc. A/CONF. 62/122 (1982), 1295 U.N.T.S. 211, 21 I.L.M. 1261 (entered into force on Nov. 16, 1994), and Article 13 of the West and Central African Marine Environment Convention (1981).
United Nations Convention on the Law of the Sea (UNCLOS), adopted in Montego Bay in December 1992, especially its article 206 which states that:”When States have reasonable grounds for believing that planned activities under their jurisdiction and control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.”
Adopted at Rio during the UNCED, 1992. Article 14 states that: “Each contracting party, as far as possible and as appropriate, shall: (a) introduce appropriate procedures requiring environmental impact assessment of its proposed projects, that are likely to have significant adverse effects on biological diversity...”.
United Nations Framework Convention on Climate Change (UNFCCC),, adopted in Rio during UNCED, 1992, which stipulates in article 4 that: “ All parties...shall (f) take climate change considerations into account, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessment, formulated and determined nationally, with a view of minimizing adverse environmental effects...”
United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994) 13 ILM 3328. See for example article 10
It is clear that the private sector especially in relation to large development projects is willing to undertake EIAs to respond to the growing demand for better environmental management and sustainable development of natural resources. The business community is seeking governments to develop regulatory frameworks including sound EIA procedures and review processes, as well as pollution control guidelines to avoid environmental risks and high cost insurance for their development projects. For the private sector, EIA procedures may also be seen as an instrument to: (1) prevent delays in obtaining authorizations; (2) identify mitigation measures involving recycling and recovery of components of waste streams; (3) create a cleaner working environment; and, (4) identify cheaper alternatives.
Shihata, I.F.I (1996), Implementation, Enforcement and Compliance with International Environmental Agreements: Practical Suggestions in Light of the World Bank’s Experience, (Paper presented before the Expert Meeting with international Environmental Agreements, held at Georgetown University Law Center, in Washington D.C., on May 20–21, 1996).
Nigeria, Decree # 86 of 1992 Section 56 “International Agreement”.
See for example article 77.2 of the Code of Forestry of Burkina Faso (Loi 005/97/ADP portant Code Forestier) which states “En application des conventions internationales dûment ratifiées par le Burkina Faso et selon les besoins, il peut être créé d’autres types d’aires de protection faunique”.
N. Robinson (1995) “IUCN’s Proposed Covenant on Environment and Development”, 13 (1995) Pace Environmental Law Review 133.
UNEP, Council decision 14/25 of June 17, 1987, “Principles and Goals of EIA” defined by a group of experts. See UNEP Environmental Law Series No. 9.
Nigeria, EIA Decree, section 36.
See for example the (1971) Convention on Wetlands of International Importance Especially as waterfowl habitat (1972) ILM 698.(Ramsar Conventon).
World Bank (1995).
This includes all sub-Saharan countries. Information about current environmental impact assessment legislation was gathered from governmental agencies, academia and local NGOs. Information has also been gathered from the UNEP/UNDP Joint Project on Environmental Law and Institutions in Africa, which published a Four-Volume Compendium of Environmental Law of African Countries (including North Africa).
This is the case of Burkina Faso, Benin, Gabon, Kenya, Lesotho, Senegal, Uganda and Cameroon, Niger where draft legislation on EIA was circulated for comment and discussion among stakeholders including ministries, NGOs, development agencies, academia, etc. Many of these are being prepared with the assistance of bilateral donors, or in the framework of Bankfinanced projects.
This is the case for Burkina Faso (Loi 97/005 du 17 Mars 1997 portant Code de l’environnement), Comoros (Loi-cadre 94–018 du 22 Juin 1994 relative à l’environnement), of Gabon (Loi 16/93 du 26 Août 1993 relative à la protection et à l ‘amélioration de l’environnement), Gambia (Environmental Management Act # 13 of 1994), Ghana (Environmental Protection Agency Act No. 490 of 1994), Malawi (EEnvironmental Management Act of 1996), Mauritius (Environmental Protection Act # 34 as amended in 1993), Seychelles (Environmental Protection Act of 1994), Swaziland (Swaziland Environment Authority Act # 15 of 1992), Togo (Loi 88–14 du 3 Novembre 1988 relative au Code de l ‘environnement), and Uganda (National Environmental Statutes of May, 17, 1995).
This is the case for Congo (Rep. Pop. du) with Décret 86–775 du 7 Juin 1986 rendant obligatoires les études d’impact sur l’environnement, Côte d’Ivoire with Décret 96–894 du 8 Novembre 1996 déterminant les règles et procédures applicables aux études relatives à l’impact environnemental des projets de développement, Madagascar with Décret 92–926 du 21 Octobre 1992 relatif à la mise en compatibilité des investissements avec l’environnement, Nigeria, Decree #86 of December 10, 1992 on EIA, South Africa, Environmental Conservation Act(regulations R.1182, Identification under section 21 of activities which may have a substantial detrimental effect on the environment) and Regulations regarding activities identified under section 21 (1). See also for South Africa the Explanatory Memorandum regarding Government Notice 1750, 1752 and 1751 of November 1, 1996, on proposed actions in terms of section 21, 22 and 26 of the Environmental Conservation Act, 1989. See also Zambia, The Environmental Protection and Pollution Control (Environmental Impact Assessment) Regulations, 1997.
This is the case for Namibia. See the Environmental Assessment Policy, Cabinet resolution 002 of August, 16, 1994. For Zimbabwe, see Environmental Impact assessment Policy of July 1994.
South Africa, Environmental Conservation Act #73 of 1989, Zambia, Environmental Protection and Pollution Control Act of 1990, and Côte d’Ivoire, Loi 96–766 du 3 Ooctobre 1996 portant Code de l ‘environnement (See reference to implementing decrees in supra note 2).
This has now been adopted.
In Kenya, at the cross-sectoral level, an EIA process is administered by an inter-ministerial committee, which has developed administrative guidelines and questionnaires. The guidelines’ coverage is adequate to facilitate informed decision-making by relevant authorities on the environmental impact of the proposed projects. However, this procedure is purely administrative with no legal ground and it is implemented in the context of wide discretionary powers. It is clear that the desire to attract investments may override ecological considerations. See Bondi D. Ogolla (1992), “Kenya. Environmental Management Policy and Law”, 3 IEPL 22, 1992 pages 164–174.
Projet de decret sur les etudes d ‘impact sur l’environnement dans les zones adjacentes des aires protégées, Oct. 1999
Law 83–03 of February 1983 related to the protection of environment
World Bank (1991), Operational Policy OP 4.01 Environmental Assessment.
See also, William Sheate (1996), “From Environmental Impact Assessment to Strategic Environmental Assessment: Sustainability and Decision-Making” in Jane Holder, Impact of EC Environmental Law in the UK, (New York: J. Wiley & Sons).. 268–289. The precise language of World Bank’s OP 4.01 on Environmental Assessment and EIA is “the EA report for a Category A project is normally an environmental impact assessment, with elements of other instruments included as appropriate. Any report for a Category A operation uses the components described in this annex, but Category A sectoral and regional EAs require a different perspective and emphasis among the components”.
The World Bank views adopting an EIA legislation as the first, major and indispensable step towards putting in place an EA system.
See for example, the World Bank Operational Policy on Environmental Assessment, which defines different categories of projects: (1) Category A for projects “likely to have significant adverse environmental impacts that are sensitive, diverse or unprecedented”; (2) Category B, for projects that “potential adverse environmental impacts on human populations or environmentally important areas … are less than those of category A projects”; (3) Category C for projects that are “likely to have minimal or no adverse environmental impacts”, and finally (4) Category FI for projects that involve “investment of Bank funds through a financial intermediary, in sub-projects that may result in environmental impacts”.
The Mauritius Environmental Protection Act of 1991, Section 13 (1) mentions that “notwithstanding any license, permit or approval granted under any other enactment, any person being a proponent who commences, proceeds with, carries out, executes or conducts, or causes to commence, proceed with, carry out, execute and conduct, an undertaking: (a) without an EIA license; or (b) in breach of any condition of the license, shall commit an offense....” See also The Seychelles, Section 15 (1) of the Environmental Protection Act(1994).
The last Malian enactment on EIA, the Mali Decree of July 5, 1999, Art. 4 provides a list of 32 activities, projects and programs which are subject to EIA. Also, Article 5 of this Decree states that non-prescribed projects are subject to “une notice d’etude d’impact sur l’environnement” (i.e.; environmental impact study note), which summarizes the likely impacts of the project on the environment and the mitigating measures to be undertaken and implemented to reduce or eliminate them.
Comoros, Loi-cadre 94–018 which stipulates “un décret du conseil des ministres : arrête la liste des travaux et projets soumis à l’étude d’impact préalable, en raison de la nature des activités projetées” (article 14.1).
Malawi, 1996, Environmental Management Act, s. 24. As of January 1998, no notice had been issued. It is interesting to note that in the Namibia EIA Policy, a list is provided in an Appendix, but the Policy states that this list “should be used to guide” the Board when it decides on whether a “policy, program or project requires an EA or not” (sect. 4). To be effective, this approach requires that the specifications should be broad enough and detailed to cover all projects likely to have significant harmful impacts on the environment.
Article 20 of the 1997 Code de l’environnement of Burkina Faso states that: “un décret pris en conseil des ministres … établit la liste des travaux, ouvrages, aménagements et activités, ainsi que les documents de planification assujettis à l’étude ou à la notice d’impact sur l’environnement.” However, the Décret is not yet enacted. Article 67 of the Environmental Code of Gabon states that “les travaux, ouvrages ou aménagements industriels, agricoles, urbains, ruraux, miniers ou autre, entrepris par les collectivités publiques, les entreprises publiques ou privées qui risquent, en raison de l’importance de leur dimension ou de leurs incidences écologiques, de porter atteinte à l’environnement, doivent donner lieu à une étude d’impact préalable....” The same provision is found in Togo, Code de l’environnement de 1988, article 22.
In Côte d’Ivoire, the Décret 96–894 on EIA is followed by two annexes. Annexe I includes “projets soumis à étude d’impact environnemental” which is comprised of a wide range of activities including projects in the sectors of (a) agriculture, (b) forest management plans, (c) extractive industries, (d) energy and industry, (e) waste management, (f) food processing industry, (g) chemical industry, (h) manufacture, and (i) infrastructure, including cement plants, tourist resorts, arm industry. Annexe II includes “projets soumis au constat d’impact environnemental” comprising a list of activities in the same sectors as in one, but of smaller size and with less harmful effect on the environment. This Annex II includes also “urban planning and land use planning documents”, and also projects modifying previous projects that were subjected to a full EIA. Congo (Rep. Pop. du), Décret 88/775 has a single Annex on “liste des travaux, ouvrages et aménagements soumis à l’étude d’impact” focusing on infrastructure activities. The Gambia Environmental Management Actincludes a Schedule which Part A deals with “Projects to be considered for environmental impact assessment” comprising a wide range of activities classified into fourteen (14) categories of sectors. In Madagascar, the Décret 92–926 includes an Annex listing 22 categories of activities to be subject to EIAs, one of which is resettlement of population. See Nigeria, Décret #86, Schedule (section 13) on “Mandatory Study Activities”, Uganda, Third Schedule of the national Environmental Statutesof 1995, South Africa, Identification of Activities Which May Have a Detrimental Effect on the Environment under Section 21 (1) of the Environment Conservation Act, 1989 Official Notice 1182, of 1997, and the Notices 1750, 1751, 1752 and their Explanatory Memorandum of November 1996. The case of South Africa is interesting because of the division of the activities subject to EIAs between those activities that will impact on more than one province, on an international treaty or agreement and neighboring country, and those activities that will have an impact on a single province.
Côte d’Ivoire, Annexe III to the above-mentioned décret which lists six (6) categories of areas including (a) protected areas, (b) wetlands and mangroves, (c) areas of scientific, cultural and/or tourist interest, (d) ecologically sensitive areas, (e) watershed buffer zones and (f) marine areas whether domestic or international.
South Africa, Regulation 1182 of September 1997 on “identification under section 21 of activities which may have a substantial detrimental effect on the environment”, section 4 (“the intensive husbandry of, or importation of, any plant or animal that has been declared a weed or an invasive alien species”), section 5 (“the release of any organism outside its natural area of distribution that is to be used for biological pest control”) and section 6 (“the genetic modification of any organism with the purpose of fundamentally changing the inherent characteristics of that organism”).
See, for example, Zambia, Second Schedule (regulation 7.2) of the EPPC (EIA) Regulations, 1997.
Nigeria, Décret 86 of 1992 Schedule, Section 13 which listdetailed activities under headings such as agriculture, airport, drainage and irrigation, land reclamation, fisheries, forestry, housing, industry, infrastructure, ports, mining, petroleum, power generation and transmission, quarries, railways, transportation, resort and recreational development, waste treatment and disposal and water supply.
Zimbabwe, EIA Policy, (1994), section 6.2 and the annexed list of prescribed activities in Table 3.
See for example Madagascar Law 99–021 of August 19, 1999 related to “la politique de gestion et de contrôle des pollutions industrielles” and the Decret 99–954 of December, 15, 1999 related to EIA.
See for example, the requirement of the “permit de construire” (i.e.; building permit which require an evaluation of the land use change and impact on the neighborhood of all construction projects.
Gabon, Loi 16/93, article 68 states that EIA would analyze and identify the likely harmful impacts “directs et indirects, des projets … sur la santé, la qualité de l’environnement, les ressources naturelles et les équilibres écologiques”; Gambia, Environmental Management Act of 1994, Section 23 (3) e “environmental impacts of the proposed activity including the direct, indirect, short term and long-term effects...”; Mauritius,EPA 1991 Section 14. c. “the direct and indirect effects that the undertaking is likely to have on the environment”; Côte d’Ivoire, Décret 96–894 Article 12.2 is as a complete checklist of EIA-related issues as the one enacted in the Zambian Regulations (see Box) and may be considered as a good practice.
Zambia, EPPC (EIA) Regulations, 1997 Sect. 4. See box in the main text.
It is always interesting to evaluate the magnitude of these impacts not only in biophysical terms but also in monetary terms
Article 9..5 of the Decree of July 5, 1999 states that EIA should have the following elements: “une identification et une evaluation des impacts positifs et negatifs potentiels, directs et indirects, immediats et long terme, importants et secondaires, locaux et loigns du projet propos sur l’environnement”. Only an estimation of the amount of wastes and emissions is required under article 9.7. There is no explicit reference to social and or human impacts of the proposed project.
See the legislation of Burkina Faso, Cameroon, Uganda and Kenya.
In general, all EIA-related legislation focuses on the external environment -that is the environment outside project site limits. This is part of the fact that African countries often copied EIA legislation from industrialized countries that have an enabling legal framework for occupational health protection and working environment. In African countries, where the legal framework dealing with the working environment and health is generally weak, it is important to refocus EIA-related legislation on a comprehensive definition of the environment, which includes the internal and external environment. It is important to consider, for example, the change of air quality of noise level on the health of workers and their families.
Not to mention specifically the AIDS problem, which should not be ignored during the EIA process.
The World Health Organsiation (WHO), the Food and Agriculture Organisation (FAO) and other international institutions and business organisations have developed specific standards for water, waste, noise, etc.
LI 1652, date of Gazette Notification, 26 February, 1999
There are number of laws governing water resources, i.e.; Rivers Ordinance, 1903, Volta River Development Act, 1961, Ghana Water and Sewage Act, 1965, Oil in Navigable Waters Ac,t 1964, but they re all too outdated to be of any useful and practical application.
Although a marginal improvement was provided under the Mineral and Mining Law, 1986, which require the licensee to protect the environment from adverse mining effects (Section 72 of the Law), the Small-scale Gold Mining Law, 1989 allows people to undertake what is usually defined as surface operations that are a real threat to the environment through chemical pollution, stream siltation, soil erosion and open ditches in the mining areas. See G.A Sarpong (1999), The Ghanaian Environmental Law Regime, paper presented at the Launching of the Network of African Environmental Lawyers, Nairobi, Kenya, 12 September 1999.
Authors mention that EIA is a process that relies on the expression of public communication. The main benefit of EIA may be to advance mutual communication and understanding. See W.A. Tilleman (1995), “Public participation in the EIA Process: A Comparative Study of Impact Assessment in Canada, the United States and the European Community”, in 33 Columbia J’l of Transitional Law 337–439.
Some of the African countries’ legislation state that a public inquiry may be requested by the relevant authority to confirm EIA Report conclusions and recommendations (for example Burkina Faso, Côte d’Ivoire, Zambia).
In many countries the right to participate in the decision-making process affecting the environment is grounded on the right of citizens to a clean environment, the freedom of expression and association. Do citizens of African countries enjoy a right to a clean and healthy environment under the public law of their respective countries? It is very difficult to answer such a question especially when it cones to differentiate between an enjoyable and enforceable right under the public law of a given African country and a commonly shared legal rhetoric, which does not confer any enforceable right to citizens. The right to participate in environmental decision-making process appears to be one of the most difficult to evaluate, because it is very narrowly drawn in the various legislation examined here. However, it is the practice that will help determine the real extent of such a right.
Where no legislation exists, it might be difficult to assess how governments define public participation. But in many projects and as part of donor agencies requirements an EIA has to be conducted and a public consultation process to be implemented. The consequences may be very important for both the proponent and the affected public. In the Chad-Cameroon pipeline, Chad and Cameroon have no legislative requirements for public participation. However, under Bank policy requirement, a full public consultation has been conducted during project design and the final environmental management plan for the project requires a continuing consultation process in order to ensure that the affected public would not be negatively impacted from project implementation and that mitigation measures would be defined with the participation of affected populations. See Chad Export Project, Environmental Assessment, disclosed on June 25, 1999 through World Bank InfoShop.
Act No. 5 of 1969 last amended in 1992 and revised in 1998
Wamukoya, G.M. & Situma, F.D.P. (eds.) (2000) Environmental Management in Kenya: A Guide to the Environmental Management and Coordination Act, 1999 (Centre for Research and Education Environmental Law (CREEL), Nairobi,) at 2.
Joseph Kessy & Ors v. Dar es Salaam City Council 70 and Festo Balegele and 794 Ors v. Dares Salaam City Council.
Misc. Civil Application No. 28 of 1983 High Court of Tanzania at Arusha (Unreported), where the justice stated: “I will say at once that I have never heard it anywhere for a public authority, or even an individual, to go to court and confidently seek for permission to pollute the environment and endanger people’s lives, regardless of their number. Such wonders appear to be peculiarly Tanzanian, but I regret to say that it is not given to any court to grant such a prayer. Article 14 of our Constitution provides that every person has a right to life and protection of his life by the society. It is therefore a contradiction in terms and denial of this basic right to deliberately expose anybody’s life to danger or what is eminently monstrous, to enlist the assistance of the Court in this infringement.”
One interesting example is Uganda where the local by-laws making process in the Local Government Act requires the dissemination of information procedures to follow the traditions of the locality where the by-laws or local law is made. This is also likely to apply to the EIA process. (Information provided by Nightingale Rukuba-Ngaize, LEGEN)
Section 2 of the EPPC (EIA) Regulations, 1997.
Section 10 (1) of the EPPC (EIA) Regulations 1997.
Section 16 (2) of the EPPC (EIA) Regulations 1997.
Section 17 (2) a and b. of the EPPC (EIA) Regulations 1997.
Section 3 (1) f of Regulation 1182 of September 5, 1997 regarding activities identified under section 21 (1) of the Environmental Conservation Act of 1989.
Section 11 of Regulation 1182.
Cases include Seychelles and South Africa legislation. See Annex on Public Consultation/Participation.
Article 35.6 reads “toute personne a le droit d’être informée sur l’etat de l’environnement et de participer aux procedures préalables à la prise de decisions susceptibles d’avoir des effets préjudiciables à l’environnement.”
Decree 96–894 of 8 November 1996 on environmental impact assessment, article 12.
See Algeria: article 12 of Decree 87–143, which states that a registry is made available to the public in order to fill comments on the proposed classified plants for a period of 45 days.
See Annex on “Public Consultation/Participation in EIA-related legislation of African Countries”.
It may be interesting to look at the way industrialized countries, where EIA related Laws are more developed, have been dealing with the issue of people’s right to participate in the EIA process and to stand before court to protect their rights to a clean and healthy environment; see H. Ward (1993)„ “The Right to an Effective Remedy in European Community Law and Environmental Protection: A case Study of United Kingdom Decisions Concerning the Environmental Assessment Directive”, 4(2) JEL 221.
Togo, article 30 of the 1988 Code de l’environnement which states that: “Le promoteur indiquera au bureau [des études d’impact] les noms du ou des consultants qu’il aura choisi pour effectuer l’étude.... [Le ministre] pourra recuser par une décision motivée les consultants qui auraient montré une incompétence préjudiciable à la bonne exécution des études d’impact”; South Africa, Reg. 1183 of 1997 Sect. 3 which states that (1) an applicant (a) must appoint an independent consultant who must on behalf of the applicant comply with these regulations”. The case of Côte d’Ivoire stresses the need to use national capacity for EIA, see Décret 96–894, article 9 which states that the proponent “peut recourir à un organisme ou consultant indépendant de son choix.... Mais l’utilisation partielle ou entière des capacités nationales est obligatoire. Elle devra, dans la mesure des comptences disponibles, être conforme à la répartition 2/3 experts et/ou consultants nationaux, 1/3 experts et/ou consultants non nationaux.”
This is the case of Tunisia, Czech Republic, Mexico and Thailand. In a draft decree on EIA, circulated in February 2000 by the Government of Cameroon, a rough procedure for EIA consultant certification is being developed.
Zambia, EPPC (EIA) Regulations, 1997, Schedule 5 on Fees. See Côte d’Ivoire, Décret 96–894, article 17 which states that “l’examen des études d’impact par le Bureau d’étude d’impact donnera lieu au versement d’une taxe, au fonds de l’environnement” and Madagascar, article 12 of the Décret which provides that the proponent will be charged 0.5% of the amount of the investment, but that the fees are tax-deductible.
The IUCN (1994), Draft International Covenant on Environmental and Development prepared by the IUCN Commission on Environmental Law mentions a non-exhaustive list of factors that may be taken into consideration in the definition of the scope and content of the EIA Report. These factors ensure that every possible type of significant impact is considered during the EIA process including long-term, cumulative and transboundary effects and is properly documented in the EIA report.
It is worth mentioning here that at the international level, it is widely accepted that the content of an EIA Report depends on whether the matter in question is an activity, project, policy or plan.
Article 37.2 “The Assessment shall include: (a) cumulative, long-term, indirect, long-distance and transboundary effects, (b) the possible alternative actions, including not conducting the proposed activity, and (c) measures to avert or minimize the potential adverse effects.
South Africa, Environmental Conservation Act, 1989, Regulations regarding activities identified under section 21. Regulations 1183 of1997.
Gabon, Loi 16/93 relative à la protection de l’environnement, article 68 and ff..
Uganda, The National Environmental Statutes, 1995, section 21 (2) reads: “An environmental impact statement shall be made according to guidelines established by the Authority”.
Some legislation lack provisions on review of the EIA Report. This is the case of Seychelles, Environmental Protection Act, 1994 Section 15.6 stating that the “Authority shall be responsible for the monitoring of the conclusions of the EIA Study and to ensure that the necessary conditions are complied with.” No mention of any review is made in the Act.
Togo, Loi 88–14, article 26.2.
South Africa, Environment Conservation Act, 1989. Regulations Regarding Activities identified under section 21 (1), of September 1997, see Reg. 4,5, 6,7.
Nigeria, EIA Decree of 1992 provides for the option to call for mediation between the Authority and the proponent, or to establish a review panel, or to hear experts to make sure that the EIA documents reflect the reality by providing the needed information and drawing sound conclusions.
We should mention here that the review is not only a desk task, but involves monitoring the physical, social and economic variables associated with project impacts. To help weak or newly-established government environmental agencies, an outside and independent review process of the EIA report might always contribute to the successful completion of the review procedure, in particular in the case of large infrastructures and other development projects. However, even where such solution is an adopted effort to build capacity at central and local government and private sector levels, it is a critical exercise without which an effective EIA Report review and monitoring could not be appropriately done.
It is not required that such experts be permanent staff of the relevant authority. Rather it is a good option to have a list of national experts (in universities, consulting firms, industry, other government agencies) and of international experts (with a proven expertise of the country) that the relevant authority may use on contractual basis to review EIA reports and/or to provide any necessary input during the EIA process.
Environmental impact auditing involves comparing the impacts predicted in the EIA report and those that actually occur after implementation, in order to assess whether the impact prediction performs satisfactorily. Environmental auditing also focuses on institutions and programs for environmental management and the associated risks and liabilities.
The compatibility of national EIA procedures with those of international donor’s agencies is intended to support funding investment initiatives. An EIA of such investments may be carried out at the time when funds are to be approved, in accordance with the Agency’s own procedures. If the domestic EIA procedures are fully compatible with those of the funding agency, it may be possible to avoid the extra cost and delay of involving the funding agency in these EIA. Harmonisation may help ensure full compliance of the EIA procedures with those of the funding agencies.
Nigeria, EIA Decree, 1992, sections 11 and 49.
South Africa, Environmental Conservation Act. Regulations Regarding Activities Identified under Section 21 (1), which clearly states that the “ relevant authority” in charge of the environmental impact assessment process implementation, review and monitoring may be the Minister of Environmental Affairs, provincial or local authority. See sections 1, 3 (3), 5 (1), etc.
Zambia, EPPC (EIA) Regulations, 1997, section 7 (2) “To ensure that public views are taken … the developer shall ORGANISE a public consultation process involving … local authorities....”
MELISSA, (1999), Knowledge & Expertise Resource Network (KERN) (1998 Forum — The poverty, environment, governance trilogy, MELISSA (Managing Environment Locally In Sub-Saharan Africa).
The trend to finance projects through Social Development Funds is now established, and community action programs represent the next logical step.
We use the concept of “cascade” arrangement to describe those arrangements needed from the top of the government to grassroot level which include government, private sector, NGOs, communities and so on in order to organise and implement EIA capacity-building activities in the country.
In January 2000, a small group of mostly African EA professionals met at CSIR, Stellenbosh in South Africa to discuss a long simmering idea in the SADC region to build a regional resource center for capacity building in environmental assessments (SAIEA). The idea was hatched during the African EA Stakeholder meeting in Nairobi in July 1998, then brought to the forefront during the IAIA meeting in Glasgow last June 1999. From there the idea went for endorsement from IAIA (International Association for Impact Assessment) during a meeting in Montreal late last year, and then proceeded to Stellenbosch for a reality check and more detailed planning.
R. Goodland, J.R Mercier, S. Mutemba (1995), Environmental Assessment (EA) in Africa. A World Bank Commitment. Proceedings of the Durban, World Bank Workshop, June 25, 1995.
GEOPLAN International (1999), Environmental Assessment Capacity Development in Africa (draft final report).
The Project is funded by the Dutch Government and located within UNEP. The Project has a steering Committee which includes UNDP, UNEP, FAO and the World Bank. It is headed by an eminent Kenyan lawyer, Prof. Charles Okidi.
To this end a special emphasis should be put on methodologies, techniques and skills adapted to the concerned country’s needs and capacity. In particular, simpler EIA mechanisms that can determine the impact on the environment and can be implemented by local staff of environmental and line agencies at all levels should be developed. Local knowledge and experience should be taken into account, and effort should be made by environmental agencies and government to develop and release baseline data and databanks on environment.
The Government of Netherlands is assisting in this project. The Project is headed by Professor Charles Okidi, from the University of Nairobi.
As member of the steering committee for this project, World Bank lawyers assisted in various fora where EIA draft statutes for Kenya, Tanzania, Burkina Faso, Uganda and Lesotho have been discussed.
Other laws, statutes and regulations may contain specific provisions on EIA. This might be the case of construction laws, planning laws, forestry and water-related laws and statutes. They are not listed here above.
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Bekhechi, M.A. (2003). Legal and Regulatory Framework for Environmental Impact Assessment in African Countries. In: International Environmental Law and Policy in Africa. Environment & Policy, vol 36. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0135-8_13
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