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Environmental Law and Policy in Namibia

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Environmental Law and Policy in Namibia ENVIRONMENTAL LAW AND POLICY IN NAMIBIA TOWARDS MAKING AFRICA THE TREE OF LIFE Fully Revised Second Edition Edited by OLIVER C. RUPPEL & KATHARINA RUPPEL-SCHLICHTING Environmental Law and Policy in Namibia TOWARDS MAKING AFRICA THE TREE OF LIFE Edited by Oliver C. Ruppel Professor of Law, Faculty of Law, University of Stellenbosch, South Africa Katharina Ruppel-Schlichting Director, Legal Research and Development Trust of Namibia (LRDT) Fully Revised and Updated Second Edition 2013 Hanns Seidel Foundation Legal Research and Development Namibia Office Trust of Namibia Dr. Frans Indongo St. 70-72 P.O. Box 11334 P.O. Box 90912 Windhoek Klein-Windhoek Namibia Namibia Tel. +264-61-237373/4 Fax. +264-61-237375 [email protected] http://www.hsf.org.na Ruppel & Ruppel-Schlichting (eds.) Environmental Law and Policy in Namibia Second Edition 2013 First Edition 2011 For additional materials and information see www.environment-namibia.net ISBN 978-3-939886-03-7 (Germany) ISBN 978-99916-849-9-4 (Namibia) Copyright Hanns Seidel Foundation (2013) and authors The content of the articles, including any final errors or omissions that remain, is the sole responsibility of the individual contributors. The editors have made every effort to acknowledge the use of copyright material. Should any infringement of copyright have occurred, please contact the editor, and every effort will be made to rectify omissions or errors, in the event of a reprint or new edition. Language editing: Graham Hopwood and Frederico Links Co-published by OrumbondePress.na Welwitschia Verlag Dr. A. Eckl, Essen Printed by John Meinert Printing (Pty) Ltd TABLE OF CONTENTS FOREWORD V PREFACE VII PREFACE TO THE FIRST EDITION IX ACKNOWLEDGEMENTS XI THE EDITORS XIII THE CONTRIBUTORS XV EXECUTIVE SUMMARY XXI LIST OF ABBREVIATIONS XXV CHAPTER 1 - NAMIBIA AND ITS LEGAL SETUP 1 by Oliver C. Ruppel & Katharina Ruppel-Schlichting 1 Namibia in a Nutshell: Facts and Figures 1 2 The Legal Setup in Namibia 5 3 The Laws 6 4 The Court System 7 4.1 The Supreme Court 8 4.2 The High Court 9 4.3 The Lower Courts 9 4.4 The Magistrates’ Courts 10 4.5 The Community Courts 10 4.6 The Ombudsman 11 CHAPTER 2 - INTRODUCING ENVIRONMENTAL LAW 13 by Katharina Ruppel-Schlichting 1 Terminology 13 2 Foundations of Environmental Protection 15 3 Functions of Environmental Law 17 4 Historical Development of Environmental Law 18 5 Major Environmental Concerns in Namibia 27 5.1 Land Degradation and Soil Erosion 28 5.2 Deforestation 28 5.3 Water Management 29 5.4 Climate Change 29 5.5 Waste and Pollution 30 CHAPTER 3 - INTERNATIONAL ENVIRONMENTAL LAW 33 by Oliver C. Ruppel 1 The Application of International Law in Namibia 33 2 Sources of International Environmental Law 34 2.1 International Conventions: Multilateral Environmental 35 Agreements (MEAs) 35 iii 2.1.1 How MEAs are made 36 2.1.2 The General Scope of MEAs 36 2.1.3 Typical Structure of MEAs 37 2.1.4 Compliance and Enforcement of MEAs 37 2.2 International Customary Law 39 2.3 General Principles of International Environmental Law 41 2.4 Judicial Decisions and Teachings 43 3 Multilateral Environmental Agreements Relevant to Namibia 44 3.1 Namibia’s Membership to Global MEAs 44 CHAPTER 4 - Environmental Law IN THE AFRICAN UNION (AU) 53 by Oliver C. Ruppel 1 Introduction 53 2 Structure of the AU 53 3 The African Union’s Judicial System and Consideration of Environmental Rights 55 4 Environmental issues within the AU’s general legal framework 57 5 Specific Environmental Conventions 59 5.1 The African Convention on Conservation of Nature and Natural Resources, 1968 60 5.2 The Revised Algiers Convention, 2003 60 5.3 Bamako Convention on the Ban of the Import into Africa and the Control of Trans-boundary Movement and Management of Hazardous Wastes within Africa 62 5.4 The Revised African Maritime Transport Charter 63 5.5 The African Nuclear Free Zone Treaty (Treaty of Pelindaba) 63 5.6 The Phyto-Sanitary Convention for Africa 64 5.7 The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa 64 6 Selected Institutions and Initiatives Particularly Relevant for Environmental Protection 65 6.1 The African Ministerial Conference on the Environment (AMCEN) 65 6.2 The Peace and Security Council (PSC) 66 6.3 The New Partnership for Africa’s Development (NEPAD) 66 CHAPTER 5 - Environmental Law IN THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC) AND CROSS- CUTTING regimes 69 by Oliver C. Ruppel 1 Introduction 69 2 Heterogeneity of SADC States 70 3 Institutional Structure of SADC 72 4 Environmentally Relevant Legal Framework 73 iv 4.1 The SADC Treaty 73 4.2 The SADC Protocols 74 4.2.1 The Protocol on Energy 75 4.2.2 The Protocol on Fisheries 77 4.2.3 The Protocol on Forestry 78 4.2.4 The Protocol on Health 79 4.2.5 The Protocol on Mining 79 4.2.6 The Revised Protocol on Shared Watercourses 80 4.2.7 The Protocol on Tourism 83 4.2.8 The Protocol on Trade 84 4.2.9 The SADC Protocol on Wildlife Conservation and Law Enforcement 84 4.2.10 The SADC Protocol on Transport, Communications and 85 Meteorology 85 4.3 Other SADC Legal and Institutional Instruments Relevant for the Environment 85 4.3.1 The Regional Indicative Strategic Development Plan (RISDP) 85 4.3.2 The SADC Declaration on Agriculture and Food Security 87 4.3.3 The SADC Charter of Fundamental and Social Rights 87 5 SADC Law Enforcement and Relevant Case Law 88 5.1 The SADC Tribunal 88 5.2 Mike Campbell: An Environmentalist 90 5.3 Swissbourgh and the Lesotho Highlands Water Project (LHWP) 92 6 SADC and Cross-cutting Regimes 93 6.1 The Southern African Customs Union (SACU) and SACU Related Trade Agreements 93 6.2 The EAC-COMESA-SADC Tripartite Initiative 94 6.3 The BRICS Partnership 95 7 Concluding Remarks 98 CHAPTER 6 - ENVIRONMENTAL LAW IN NAMIBIA: AN OVERVIEW 101 by Oliver C. Ruppel 1 The Namibian Constitution 101 2 Roman-Dutch and Common Law 103 3 Statutory Law 105 3.1 The Environmental Management Act 106 3.2 The Nature Conservation Ordinance 110 3.3 Legislation on Water 111 3.4 Legislation on Fisheries and Marine Resources 112 3.5 Legislation on Land and Agricultural Production 113 3.6 Legislation on Forestry 114 3.7 Legislation on Energy and Mining 114 4 Selected Environmental Legislation in Preparation 115 v 5 Customary Law 116 6 Criminal Aspects of Environmental Law 116 7 Development Framework 118 7.1 Namibia’s Green Plan 118 7.2 Vision 2030 and the National Development Plans 119 7.3 Funding Mechanisms 122 8 Policy Framework 122 8.1 Policies on Environmental Assessment and Biotechnology 123 8.2 Policies on Land and Agriculture 124 8.3 Policies on Water 126 8.4 Policy on Forests 127 8.5 Policies on Tourism 128 9 Selected Strategies and Action Plans 129 9.1 National Biodiversity Strategy and Action Plan 129 9.2 Namibia’s Proposed Climate Change Strategy and Action Plan 129 9.3 Aquaculture Strategic Plan 130 9.4 Strategic Action Plan for the Implementation of Renewable 130 Energy Policies 130 9.5 Forestry Strategic Plan 131 CHAPTER 7 - PRACTICAL IMPLICATIONS OF ENVIRONMENTAL MANAGEMENT IN NAMIBIA: THE CASE STUDY OF OHORONGO 133 by Peter Koep & Meyer van den Berg 1 Background 133 2 Ohorongo’s mining activities 133 3 The Environmental Impact Assessment 134 3.1 Water 135 3.2 Vegetation 135 3.3 Animals 136 3.4 Dust 136 3.5 Noise 136 3.6 Air Pollution 136 4 Rehabilitation 136 CHAPTER 8 - LEGAL PROTECTION OF BIODIVERSITY IN NAMIBIA 143 by Manfred O. Hinz & Oliver C. Ruppel 1 Introduction 143 2 Biodiversity in Perspective 143 3 International Environmental Law Pertinent to Biodiversity Protection in Namibia 147 4 Biodiversity Protection under National Environmental Law 151 vi CHAPTER 9 - Water AND FISHERIES Related StatutorY Law AND POLICY IN NAMIBIA 157 by Shirley Bethune & Oliver C. Ruppel 1 The Policy Framework 157 1.1 The Water Supply and Sanitation Policy 157 1.2 The National Water Policy White Paper 157 1.3 Namibia’s Draft Wetland Policy 160 1.4 Namibia’s Marine Resources Policy 161 1.5 Namibia’s Aquaculture Policy 161 2 The Statutory Framework 162 2.1 The Water Act 162 2.2 The Water Resources Management Act 164 2.3 The Namibia Water Corporation Act 167 2.4 Marine Resources Act 168 2.5 The Aquaculture Act 168 2.6 The Inland Fisheries Resources Act 169 2.7 Prevention and Combating of Pollution at Sea by Oil Act 169 CHAPTER 10 - REFORM OF RURAL Water SUPPLY IN NAMIBIA 171 by Thomas Falk, Bernadette Bock & Michael Kirk CHAPTER 11 - LAND AND Agricultural Laws AND POLICIES Relevant FOR Environmental PROTECTION IN NAMIBIA 175 by Shirley Bethune & Oliver C. Ruppel 1 Land and Agricultural Policies 175 1.1 Land-use Planning: Towards Sustainable Development 175 1.2 The National Land Policy 175 1.3 The National Resettlement Policy 176 1.4 The National Land Tenure Policy 176 1.5 The National Agricultural Policy 176 1.6 The National Drought Policy and Strategy 177 1.7 The Regional Planning and Development Policy 177 2 Land and Agriculture Related Legislation 177 2.1 The Communal Land Reform Act 177 2.2 The Agricultural (Commercial) Land Reform Act 178 2.3 In the Pipeline: The Land Act 179 2.4 The Agricultural Pests Act 179 2.5 The Soil Conservation Act 179 CHAPTER 12 - MINING AND ENERGY 181 I.
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