Wildlife Law and the Legal Empowerment of the Poor in Sub-Saharan Africa: New Case Studies
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WILDLIFE LAW AND THE LEGAL EMPOWERMENT OF THE POOR IN SUB-SAHARAN AFRICA: NEW CASE STUDIES MARIA TERESA CIRELLI ELISA MORGERA FAO LEGAL PAPERS ONLINE #79 September 2009 FAO Legal Papers Online is a series of articles and reports on legal issues of contemporary interest in the areas of food policy, agriculture, rural development, biodiversity, environment and natural resource management. Legal Papers Online are available at www.fao.org/legal/prs-ol For those without web access or email, paper copies of Legal Papers Online may be requested from the FAO Legal Office, FAO, Viale delle Terme di Caracalla 00153, Rome, Italy, [email protected]. Readers are encouraged to send any comments or reactions they may have regarding a Legal Paper Online to the same address. The designations employed and the presentation of the material in this document do not imply the expression of any opinion whatsoever on the part of the United Nations or the Food and Agriculture Organization of the United Nations concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The positions and opinions presented do not necessarily represent the views of the Food and Agriculture Organization of the United Nations. © FAO 2009 Acknowledgments The authors are very grateful to the experts who from various countries contributed useful background information for this study, and particularly to Nana Kofi Adu Nsiah from Ghana, Urbain Belemsobgo from Burkina Faso, Poonjaraj Khurun from Mauritius, Dominique Nsosso from Congo, Antoine Njiang from Cameroon, Fetene Hailu Buta, Ludwig Siege and Yeneneh Teka from Ethiopia and Jonathan Yiah from Liberia. Contacts with these experts were made possible through the kind cooperation of Kai-Uwe Wollscheid, Director General, International Council for Game and Wildlife Conservation; Michel Laverdiere, FAO Sub-Regional Forestry Officer for Eastern Africa; Fernando Salinas, Sub-Regional Forestry Officer for Western Africa; René Czudek, FAO Sub-Regional Forestry Officer for Southern Africa and Edgard Kaeslin, FAO Wildlife and Protected Areas Officer, whom the authors would also like to thank. Assistance by the following FAO Legal Interns is also gratefully acknowledged: Jacqueline Alastra, who prepared the case studies on Mauritius, Seychelles and Swaziland, Ileana Papadopoulou, who prepared the section on regional agreements, and Jesse Bellam, who provided editorial assistance. CONTENTS INTRODUCTION The contents of this study PART I – INTERNATIONAL BACKGROUND AND EMERGING TRENDS IN NATIONAL LEGISLATION 1. INTERNATIONAL LEGAL FRAMEWORK 1.1 Membership in wildlife-related international agreements 1.2 Regional wildlife-related agreements 2. EMERGING TRENDS IN WILDLIFE LEGISLATION 2.1 Wildlife legislation and other related legislation 2.2 Institutions and role of stakeholders 2.2.1 Institutional set-up 2.2.2 Public participation in decision-making 2.2.3 Funds 2.3 Wildlife tenure and use rights 2.4 Wildlife management planning 2.5 Wildlife conservation 2.6 Wildlife use 2.6.1 Authorizations, permits and concessions 2.6.2 Sharing of benefits 2.6.3 Community-based wildlife management 2.6.4 Private sector’s wildlife management 2.6.5 Eco-tourism 2.6.6 Ranching and breeding 2.7 Human-wildlife conflicts 2.8 Law enforcement and access to justice 2.9 Gender and food security 3. CONCLUSIONS AND RECOMMENDATIONS 3.1 Scope of wildlife legislation and coordination among relevant laws 3.2 Institutional setup and role of stakeholders 3.3 Wildlife tenure and use rights 3.4 Wildlife management planning 3.5 Wildlife conservation 3.6 Wildlife use 3.6.1 Issue of authorizations, permits and concessions 3.6.2 Sharing of benefits 3.6.3 Legal frameworks for community-based natural resource management 3.6.4 Legal frameworks for the private sector’s wildlife management 3.6.5 Eco-tourism 3.6.6 Ranching and breeding 3.7 Human-wildlife conflicts 3.8 Law enforcement 3.9 Gender and food security PART II CASE STUDIES: OVERVIEW OF NATIONAL LEGISLATION 1. BURKINA FASO 2. CAMEROON 3. CENTRAL AFRICAN REPUBLIC 4. CONGO 5. DEMOCRATIC REPUBLIC OF CONGO 6. ETHIOPIA 7. GABON 8. GHANA 9. KENYA 10. LIBERIA 11. MALI 12. MAURITIUS 13. SEYCHELLES 14. SUDAN 15. SWAZILAND LIST OF LEGISLATION CITED BIBLIOGRAPHY Wildlife law and the legal empowerment of the poor in Sub-Saharan Africa: new case studies INTRODUCTION access to justice and the rule of law; property rights; labour rights; and business rights. Adequate wildlife management This is the second legal study focusing on legislation may contribute to the wildlife legislation and the empowerment of implementation of at least three of these the poor in Sub-Saharan Africa. It follows up pillars: for the first, it may set out measures on FAO Legal Paper Online 77 “Wildlife law to promote equality under the law, clear and the legal empowerment of the poor in rights and obligations, and facilitate access Sub-Saharan Africa” that was published in to justice; for the second, it may allocate May 2009 (www.fao.org/Legal/prs- 1 property rights, or related use rights, in such ol/lpo75.pdf). The purpose of this second a way that benefits are equitably shared, paper is to analyze wildlife legislation in an taking into account subsistence additional fifteen African countries, and requirements, traditional titles and practices, assess how similar issues (such as wildlife and disadvantages faced; for the fourth, it tenure, community-based wildlife may regulate contracts and other management, benefit-sharing, public arrangements for utilization so that participation in decision-making and law opportunities are available for all. enforcement, and human-wildlife conflicts) have been addressed. The lens through In particular, ownership of wildlife resources which available legislation has been or other management rights over wildlife analyzed is the concept of “legal resources, and security of their tenure, are empowerment of the poor,” as developed by key legal tools for the empowerment of the the Commission on Legal Empowerment of poor that have been identified by this study. the Poor, established under the aegis of the 2 Legal tools to ensure overall good United Nations between 2005 and 2008. governance for the recognition, allocation Accordingly, national legal frameworks were and possible revocation of these rights have examined in their potential to support the also been underscored, where possible. objective of effective regulation of wildlife Public participation in decision-making and management to promote environmental in management planning, as well as access sustainability and socio-economic to justice, are significant contributing factors development with a view to allowing all in ensuring that governance of wildlife members of society, and particularly resources is transparent, authorities are disadvantaged people, to directly benefit accountable, and that the diverse interests from sustainable wildlife management. Thus, of society – in particular those of the poor, the study sought to evaluate whether wildlife other disadvantaged groups, and of local legislation can significantly contribute to and indigenous communities – are duly improving food security, alleviating poverty taken into account. Finally, legal tools that and enhancing rural livelihoods, by fulfilling may facilitate the access to financial international obligations and following best services, the easy and affordable setting-up practices related to the conservation and of business operations as well as the exit sustainable use of biodiversity. from a business as necessary, have been, to a lesser extent, detected in the legislation Several of the legal tools for sustainable of some of the countries analyzed in this wildlife management identified in the study. The question of benefit-sharing is previous study were considered significant also critical in having the poor profiting from in contributing to the empowerment of the or being compensated for the conservation poor. According to the Commission on the and management of wildlife resources. Legal Empowerment of the Poor, four pillars Building upon the findings of the previous sustain the concept of legal empowerment: legal study, the present paper thus identifies further legal tools for empowering the poor 1 The countries covered in the previous legal study in sustainable wildlife management, as well were: Angola, Botswana, Lesotho, Madagascar, as singling out shortcomings and challenges Malawi, Mozambique, Namibia, South Africa, Tanzania, that may provide useful food for thought for Uganda, Zambia and Zimbabwe. 2 The Commission completed its mandate in 2008. wildlife legislators around the world. Available at www.undp.org/Legalempowerment. At its sixty-third session on 11 December 2008, the UN General Assembly, in a brief resolution (63/142), took note of the final report of the Commission, stressing the importance of sharing best national practices in the area of legal empowerment of the poor. FAO Legal Papers Online September 2009 1 Wildlife law and the legal empowerment of the poor in Sub-Saharan Africa: new case studies THE CONTENTS OF to be described comprehensively. In some cases, the presentation includes provisions THIS STUDY relating to natural resources other than wildlife (such as forestry), where they set out Part I of the previous study (Part I, institutions or procedures that can be chapter 1) included an overview of the considered as useful examples or may be international legal instruments related to otherwise