A Collaborative Approach To Environmental Governance in East Africa

Journal of Environmental Law 22:1 ß The Author [2009]. Published by Oxford University Press.
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doi:10.1093/jel/eqp031 Advance Access published on 22 October 2009
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A Collaborative Approach to
Environmental Governance in
East Africa
Nicholas Kimani*
Abstract
The article reflects upon a collaborative approach to environmental

governance undertaken by Kenya, Uganda and Tanzania under the
auspices of a United Nations Environment Programme-administered
project—the Partnership for Development of Environmental Law in
Africa. On the basis of practical lessons highlighted through fieldwork
conducted between 2005 and 2007, an exploration is made of the
relationship between the ‘new’ regional collaborative approach to
environmental law and policy-making, and the earlier ‘conventional’
approaches. Also examined are prospects for both state and non-state
actors to successfully collaborate in structuring regional developments.
It raises the conceptual question,‘once regulation is supposed to loosen
its analytical link to the state, yet only partially does so, what has it
become?’ One emerging insight concerns the need for normative
theories to highlight what non-legal mechanisms are necessary to
secure meaningful participation by non-state actors in regional
decision-making.
Keywords: PADELIA, regulation, institutional and regulatory design,

governance, East Africa
1. Introduction
In recent years, there has been a growing recognition that the need to design
optimal (or at least better) environmental instruments is a vitally important
*Regulatory Institutions Network, Australian National University, College of Asia and the Pacific,
RSPAS,The Australian National University, Canberra ACT 0200, Australia (nick@nkimani.com,
nicholaskimani@hotmail.com)
...........................................................................
Journal of Environmental Law 22:1 (2010), 27^57
28 Nicholas Kimani
issue of environmental policy.1 Dissatisfaction with the regulatory status quo

has spawned a number of suggestions about how we can and should cope
with the pressing environmental problems of our time. In Africa, as well as
other parts of the developing world, diverse United Nations (UN) organisations
have been influential in supporting efforts concerned with how better to
harness the knowledge and capacities of both state and non-state actors in
solving their complex environmental and other social problems.2 An important
motivation has been the failure of colonial-era command and control (CAC)
regulation in Africa to successfully address problems of pollution, land
degradation, deforestation and the loss of biological diversity.3 In this respect,
the command refers to the prescriptive nature of the regulation, which is
supported by the imposition of some negative sanction, namely the control.
The term CAC regulation, it is observed, has become shorthand for all that
can be bad about regulation, including poorly targeted rules, rigidity, ossifica-
tion, under-or-over enforcement and unintended consequences.4 Another
equally important motivation has come from the recognition of the regional
scope of many environmental problems; in other words, problems whose
causes are rooted in the activities of one country, but whose costs are borne
by its neighbour(s) on the other side of an international border.5 Finally,
although states remain powerful and pivotally important actors in the global
arena and within their own territorial jurisdictions, they have come to recog-
nise that some environmental problems lie beyond the limits of ordinary state
competence. Consequently, they are joining with non-state actors in ambitious
experiments seeking to address problems of this character through multi-party
collaborative governance arrangements that pool, recombine and co-ordinate
the deployment of the varied resources and competencies of the multiple
actors.6
However, it is still unclear whether collaboration in the area of environ-
mental governance, which involves geographically contiguous developing
countries, will in fact ‘work’ and if so, when and how. For present purposes,
the term ‘region’ is conceived as a geographic clustering of contiguous nation-
states which share a number of common attributes, have significant levels of
interaction and which enjoy institutionalised co-operation through a multilat-
eral structure.7 The article explores a unique approach to collaborative
1 N Gunningham and D Sinclair, ‘Regulatory Pluralism: Designing Policy Mixes for

Environmental Protection’ (2005) 21 Law & Pol. 49.
2 B Boer, ‘The Rise of Environmental Law in the Asian Region’ (1999) 32 U Rich L Rev 1503.
3 P Kameri-Mbote and P Cullet, ‘Law, Colonialism and Environmental Management in Africa’
(1997) 6 RECIEL 23.
4 J Black, ‘Critical Reflections on Regulation’ (2002) 27 Aus J Legal Philos 1.
5 J Barnes, ‘The Growing International Dimension to Environmental Issues’ (1987^1988)
13 Colum J Envtl L 394.
6 B Karkkainen, ‘Post-Sovereign Environmental Governance’ (2004) 4 Global Envtl Politics 1.
7 D Held and A McGrew, ‘The Great Globalization Debate: An Introduction’ in D Held and
A McGrew (eds), The Global Transformations Reader (Polity Press, Cambridge 2000).
A Collaborative Approach to Environmental Governance in East Africa 29
environmental governance in East Africa, which has taken place under the
auspices of a United Nations Environment Programme (UNEP)-administered
projectçthe Partnership for the Development of Environmental Law in
Africa, or PADELIA. This project draws together a large number of African
countries, diverse UN agencies, NGOs and individuals in an orderly, transpar-
ent yet synergistic manner. On the basis of fieldwork conducted between
2005 and 2007, lessons are identified, which form the basis for examining the
relationship between the ‘new’ regional collaborative approach to environmen-
tal law and policy-making, and the earlier ‘conventional’ approaches. Also
explored is the extent to which experiences in East Africa under PADELIA
can tell us about prospects for state and ‘responsibilised’ non-state actors in
successfully collaborating in regional governance.
There is good reason for focussing scholarly attention on empirical experi-
ences in East Africa.8 If regional collaborative environmental governance
approaches involving developing countries are to result in critical renewal,
re-invention and re-orientation of their respective environmental regulatory
regimes, and if they are to be replicated and successfully applied elsewhere in
the developing world, then it is necessary to understand what underlying
principles and practical conditions contribute to the success and failure of
collaborative environmental governance. In Africa, much environmental
legislation is said to be characterised by two elements. The first relates to the
rule-oriented CAC legislation used to facilitate allocation and exploitation of
natural resources. The second element relates to the sectoral orientation of
the environmental legislation developed. In other words, environmental
legislation has typically addressed specific natural resource sectors, such as
land, water, forests, fisheries or wildlife.9 In addition, it is important to draw
normative insights from the inclusive processes and principles articulated
under PADELIA that could be applied more broadly towards solving other
common problems in the region.10 It is contended that environmental gover-
nance in Africa during the pre-colonial milieu was characterised by collective
decision-making11 and reference to common sets of values, which were
displaced by the advent of colonial rule, thus creating ecological imbalances
8 Evaluations of PADELIA, including experiences in East Africa, have been chronicled most
recently by P Kameri-Mbote and H Ouedraogo, United Nations Environmental Program,
‘Partnership for the Development of Environmental Law and Institutions in Africa
(PADELIA): Evaluation Report’ (Nairobi 2006). This covered Phase 2 of PADELIA. Details of
an earlier evaluation (Phase 1 of PADELIA) are found in S Doumbe¤-Bille¤ and E Sinatambou,
United Nations Environmental Program, ‘External Evaluation: UNEP/UNDP Joint Project on
Environmental Law and Institutions in Africa (Nairobi 1997).
9 D Bondi-Ogolla, ‘Environmental Law in Africa: Status and Trends’ (1995) IBL 412.
10 A Conley and M Moote, ‘Evaluating Collaborative Natural Resource Management’ (2003) 16
Soc Nat Resour 371.
11 H Ogendo, ‘The Tragic African Commons: A Century of Expropriation, Suppression and
Subversion’ (2003) 1 Univ Nairobi LJ 1.
30 Nicholas Kimani
which persist to the present day.12 Consequently, experiences of PADELIA in

formulating co-operative approaches to environmental governance, could use-
fully inform efforts made elsewhere to foster multi-stakeholder participation
in collective decision-making.
The first section explores the context and concepts under which a regional
approach to ‘collaboration’ and ‘environmental governance’ is understood to
have taken place in East Africa. The following section will highlight the legal
and institutional design of PADELIA, as it specifically relates to Kenya,
Uganda and Tanzania. The final section draws normative insights from the
practical experiences underlying the collaborative approach taken to facilitate
a collaborative approach to regional environmental governance.
2. Concepts and Contexts

Given that PADELIA seeks to assist African governments in building capacities
for developing, strengthening, implementing and harmonising their environ-
mental legislation as well as the related institutions, it is necessary to explore
a number of important concepts relating to governance and collaboration
from the perspective of the environmental literature, as well as elsewhere in
the social sciences. That is, while the environmental literature is largely
concerned with individuals collaborating, given that PADELIA concerns
collaboration between states, it is necessary to have recourse to New
Regionalism literatures as a basis for better understanding governance in a
regional setting in Africa.
2.1 Understanding ‘Governance’

It is important at the outset to clarify what the term ‘environmental gover-
nance’ means. For the present purposes, it may be understood in reference to
the various structures, processes and relationships that have materialised,
or are materialising, for the securing of institutional, legal, planning, training
and capacity-building requirements necessary to facilitate stakeholders’ efforts
in relation to the environment.13 There are, therefore, ‘relational foundations’,
which refers to how well states can mobilise and work productively with
societal groups, and draw on societal resources, including knowledge
resources, as well as ‘institutional foundations’, which involve questions about
the available financial and bureaucratic resources, as well as the knowledge
and expertise available to the various actors.14
12 J Middleton and D Tait (eds), Tribes Without Rulers (Routledge and Kegan Paul, London 1958).
13 C Holley,‘New Environmental Governance’ (PhD Thesis, Australian National University 2008).
14 N Kimani, ‘Environmental Governance in East Africa: Explanatory and Normative
Dimensions’ (PhD Thesis, Australian National University 2008).
More fundamentally, the term ‘governance’ involves reference to some notion

of order, or a set of explicit or implicit normative prescriptions or rules about
the way things ought to be.15 It is defined as the management of the course of
events in a social system, and is about how people exercise power to achieve
the ends they desire.16 In addition, governance at all levels of social organisa-
tion is typically complex, given that governing has multiple forms and loca-
tions17, and its constituent domains (like legal institutions and rules, social
norms, information gaps and economic conditions) interact in complex ways,
changes in any one may create new constraints, or alter the potency of existing
constraints.18 Finally, much has been said about the emergence of new, non-
state institutions of governance19, where the focus of analysis has shifted from
state law20 to the wider range of agencies and sites of governance, which
govern through a variety of forms of power and largely in their own interests
with far reaching collective impacts.21
Beyond the challenge of grasping ‘governance’ from an empirical perspec-
tive, it is also necessary to reflect upon what the shift of power and control
from some governors to others in defining, protecting and supporting collec-
tive interests22 entails normatively. Expressed differently, given the empirical
reality that to the extent that the modern state ‘rules’, it does so on the basis
of an elaborate network of relations formed among the complex of institutions,
organisations and apparatuses that make it up, and between state and non-
state institutions23, the normative question which arises is this: ‘to what to
extent can we or should we think of regulatory governance functioning in
a manner not dependent on state law or which state law is not central?’24
An important consideration for environmental governance theorists is where
‘commons’ stretch across national boundaries and different sovereign states
must, therefore, cooperate among themselves and with diverse non-state
actors to provide the necessary governance regimes.25
15 R Rhodes, ‘The New Governance: Governing without Government’ (1996) 44 Pol Stud 652.
16 S Burris, M Kempa and C Shearing, ‘Changes in Governance: A Cross-Disciplinary Review of
Current Scholarship’ (2008) 41(1) Akron LR 1.
17 J Rosenau,‘Governance Order and Change in World Politics’ in J Rosenau and E Czempiel (eds),
Governance Without Government: Order and Change in World Politics (CUP, Cambridge 1992).
18 S Burris and C Shearing, ‘Nodal Governance’ (2005) 30 Aus J Legal Philos 30.
19 P Haas, ‘Addressing the Global Governance Deficit’ (2004) 4 Global Envtl Politics 1.
20 B Hindess, Discourses of Power: From Hobbes to Foucault (Wiley^Blackwell Publishers, Oxford
1996).
21 AM Slaughter, A New Word Order (Princeton University Press, Princeton 2004).
22 I Loader and N Walker,‘Necessary Virtues: The Legitimate Place of the State in the Production
of Security’ in J Wood and B Dupont (eds), Democracy, Society and the Governance of Security
(CUP, Cambridge 2005).
23 N Rose and P Miller,‘Political Power Beyond the State: Problematics of Government’ (1992) 43
Br J Sociol 173.
24 J Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self Regulation in
a ‘‘Post Regulatory’’ World’ (2002) 54 CLP 103.
25 E Weiss, ‘International Environmental Law: Contemporary Issues and the Emergence of the
New World Order’ (1992) 81 Georgetown LJ 675.
32 Nicholas Kimani
These insights are revisited elsewhere in this article when exploring how
the knowledge and capacities of various stakeholders have been mobilised to
collaboratively govern environment issues and problems in Kenya, Uganda
and Tanzania, and with what impacts.
2.2 Understanding ‘Collaboration’

Collaboration may be viewed as a means of solving shared problems, where
parties get together to define the problem, establish an agenda and implement
a solution. The parties may pool resources like information, money or labour
to solve a set of problems that neither can solve individually.26 Collaboration
may also be used with reference to co-operative relationships that involve
mixes of higher agencies and local-level actors actively negotiating rules, and
implementing and monitoring activities over the longer term.27 Among the
benefits associated with collaboration, are that by harnessing the unique
information, resources and capacities of diverse actors who are closer to the
problem, collaboration fosters more creative approaches to planning and imple-
menting solutions.28 In addition, democracy is enhanced through allowing
the various stakeholders to interact co-operatively, thereby reducing existing
conflict and enhancing ownership through forming consensus around the
problem being faced.29
Experience and theory suggest that notwithstanding its benefits, there are
few guarantees that collaboration will emerge, let alone be successful. The
fundamental problem of collective action by potential collaborators is high-
lighted in Mancur Olson’s ‘collective action problem’, a construct which reveals
the perceived tension between individual and collective best interests. That is,
we believe we can do better as individuals by deserting the socially optimal
solution, despite the fact that what is best for society or the group is best for
us as part of it. People, thus, are essentially self-interested beings whose inter-
ests make it more rational to behave in a competitive rather than a co-operative
manner. Olson used this argument to suggest that collective action by rational
self-interested individuals will never occur unless the number of individuals
in a group is quite small, or unless there is coercion or some other special
device to make individuals act in their common interests.30 Similar observa-
tions are found in Garrett Hardin’s ‘Tragedy of the Commons’, which argued
26 B Gray, Collaborating: Finding Common Ground for Multi Party Problems (Jossey-Bass,
San Francisco 1989).
27 M Dorf and C Sabel, ‘A Constitution of Democratic Experimentalism’ (1998) 98 CLR 267.
28 J Freeman and D Farber, ‘Modular Environmental Regulation’ (2005) 54 Duke LJ 877.
29 B Karkkainen, A Fung and C Sabel, ‘After Backyard Environmentalism: Toward a
Performance-Based Regime of Environmental Regulation’ (2000) 44 Am Behav Scientist 690.
30 M Olson, The Logic of Collective Action Public Goods and the Theory of Groups (Harvard
University Press, Cambridge 1965).
that where there is unrestricted access to a resource owned by no one, there

will be an incentive for individuals to grab as much as they can and, if the
resource is finite, there will come a time when it is ruined by over-exploitation
as the short-term interests of individual users overwhelm the longer-run
collective interest in sustaining the resource.31 Closely related to this tragedy
is the question of free-riders: whenever some parties take on more than a fair
share, or refuse to be bound by the collective arrangements, this can destroy
the local commons regime because other parties will then see no reason to
restrain themselves either.32
This situation highlights the importance of co-operation in order to ensure
that the commons are not misused and subjected to tragic collapse. In local
commons regimes, inquisitive neighbours may well deter rule-breaking, while
in other instances, the administrative state may protect the commons from
further desecration, supported by access to coercion.33 However, in respect of
collaborative approaches to regional environmental governance, glaring
knowledge-gaps arise as to whether, when and how effective collaboration in
environmental governance can be sustained in the long-term without suc-
cumbing either to collective action problems or other challenges associated
with consensus decision-making processes.34 Three observations inform this
position. First, where a large number of heterogeneous stakeholders is
involved, or where the environmental problems under consideration are signif-
icant, it appears likely that there will be conflicts of power-sharing between
uncooperative agencies or governments, and uncertainty about what constitu-
tes accountability, and to whom.35 Critics would also lament the high transac-
tion costs, for example, time, resources and travel expenses associated with
negotiation, building consensus and sharing information.36 Finally, it is
unclear as to the background and contextual conditions under which non-
state actors may successfully secure representation of their environmental
interests in the face of wider dominant social and political powers.37
Accordingly, concerns all highlight the necessity of shedding light on the prac-
tical conditions under which collaborative environmental governance occurs
between geographically contiguous countries in East Africa, and with what
impacts.
31 G Hardin, ‘Tragedy of the Commons’ (1968) 162 Science 1244.

32 E Ostrom, ‘Coping with Tragedies of the Commons’ (1999) 2 Annu Rev Pol Sci 498.
33 B Crowe, ‘The Tragedy of the Commons Revisited’ (1969) 166 Science 1104.
34 R Steinzor, ‘The Corruption of Civic Environmentalism’ (2000) 30 ELR 1909.
35 Freeman and Farber (n 28).
36 R Margerum,‘Overcoming Locally Based Collaboration Constraints’ (2007) 20 Soc Nat Resour
135.
37 J Defillipis, R Fisher and E Shragge, ‘Neither Romance Nor Regulation: Re-evaluating
Community’ (2006) 30 Intl J Urban Reg Res 687.
34 Nicholas Kimani
2.3 Understanding ‘New Regionalism’

The term ‘technologies of government’ is used to refer to the toolsçor the
complex assemblage of diverse forces (legal, architectural, professional,
administrative and financial)çthrough which political rationalities and the
programmes of government that articulate them become capable of deploy-
ment.38 Accordingly, an understanding of the governmental technologies
deployed under PADELIA necessarily calls for examination of the political con-
textçhere, understood as the structural, organisational and ideological
aspects of the environment relevant to those interactions39çmilitating for
and against states collaborating on a regional basis on environmental matters.
This necessitates an understanding of the impacts and policy implications of
regionalisation, with a particular focus on the local, national and region-
specific circumstances that determine where and when regionalisation takes
place, how far, in what forms and at what speeds.40
It is perhaps fortuitous, then, for this article that East Africa has also been
highlighted as a site where ‘old’, or earlier Cold War-era approaches to regional-
ism failed.41 New regionalism literatures are often contrasted with earlier
studies of regions, which centred on the significance, or otherwise, of political
and economic integration in developing parts of the world42 in locations such
as East Africa. Here, colonialism is said to have bequeathed an impressive
degree of functional co-operation to the East African countries. Apart from
enjoying geographic neighbourhood, prior political association and roughly
similar colonial institutions, they were motivated by desires to attain and
maintain their independence, to gain economically and to have a stronger
defence through political federation.43 The three countries enjoyed a long
history of regional integration, including the (old) East African Community
(1967^1977), which was regarded as one of Africa’s most successful examples
of regional integration.44 Its unfortunate collapse was attributed to political
differences between ‘capitalist’ Kenya and ‘socialist’ Tanzania, as well as to
38 Rose and Miller (n 23).

39 J Wright, J Parry and J Mathers, ‘What to Do About Political Context? Evidence Synthesis, the
New Deal for Communities and the possibilities for Evidence-Based Policy (2007) 3 Evid
Policy 253.
40 JA Scholte, ‘Globalization and Governance: From Statism to Polycentrism’ (2004) Centre for
the Study of Globalisation and Regionalisation Working Paper No. 130/04 February 2004
5http://www2.warwick.ac.uk/fac/soc/csgr/research/workingpapers/2004/wp13004.pdf4
accessed 11 August 2009.
41 R Ajulu (ed), ‘The New East African Community: Linking Subregional and Continental
Integration Initiatives’ in The Making of a Region: The Revival of the East African Community
(Institute for Global Dialogue, Midrand South Africa 2005).
42 J Mittelman, Rethinking the ‘New Regionalism’ in the context of Globalization’, (1996) Global
Govern 189.
43 J Nye, ‘Patterns and Catalysts in Regional Integration’ (1965) 19 Intl Organ 870.
44 J Grant and F Soderbaum (eds), The New Regionalism in Africa (Ashgate Publishing, Aldershot
2003).
perceptions of unequal distribution of the economic benefits of political and

social integration.45
By contrast, new regionalism is related to structural transformations in the
world,46 which include erosion of the Westphalian nation-state system and
changing attitudes towards economic development and the associated political
system in developing countries.47 As a consequence, understanding why new
regionalism’ in Africa is ‘new’ and is important: it has the advantages of func-
tionality and solidarity for weak States and it may be used to avoid the
danger of great power domination that may result from participating in global
or otherwise wider spheres of co-operation.48 In addition, it provides a richer
empirical and analytical understanding of how African individuals and
policy-makersçwho are linked together in a hybridity49 of networks and
coalitionsçhave constructed creative and original responses to meet their
political, economic and social needs.50 Finally, it has developed not within the
framework of one rationality, but in several localised rationalities. In this
regard, Fredrik Soderbaum identifies three distinct modes of regional
governance where state and non-state actors receive different configurations.
In ‘neo-liberal regional governance’ the focus is on market-driven regional
economic integration, for instance in Southern Africa,51 with a particular
focus on free movement of goods, services, capital and investment within the
region as well as to the rest of the world. Second, he identifies ‘sovereignty-
boosting regional governance’, where ruling governments pool sovereignty
and power in order to strengthen their own and their neighbours’ weak gov-
ernments and regimes against domestic opposition and national disintegration.
Finally, Soderbaum identifies ‘regional shadow governance’ to identify
particularly malign systems of goal achievement through gun-running, drug
trafficking and criminal networks in such places as Africa’s Great Lakes
region to promote self-interests.52 Some understanding of what these modes of
regional governance portend for Africa reveals much cause for optimism. The
shift towards market-driven economies spearheaded by democratically elected
leaders promises to herald a more peaceful, prosperous future with renewed
45 A Hazlewood, ‘The End of the East African Community: Lessons for Regional Integration
Schemes (1979) 28 J Com Mar St 40.
46 M Marchand, M Boas and T Shaw, ‘The Political Economy of New Regionalisms’ (2000) 20
Third World Quart 897.
47 B Hettne and F Soderbaum, ‘Theorising the Rise of Regionness’ (2000) New Pol Econ 457.
48 H Bull, The Anarchichal Society: A Study of Order in World Politics (Macmillan, London 1977).
49 B De Sousa Santos, ‘The Heterogeneous State and Legal Pluralism in Mozambique (2006) 40
Law Soc Rev 39.
50 T Shaw, ‘New Regionalisms in Africa in the New Millennium: Comparative Perspectives on
Renaissance, Realisms and/or Regressions’ (2000) 5 New Pol Econ 399.
51 Ian Taylor, ‘Globalization and Regionalization in Africa: Reactions to Attempts at Neo-liberal
Regionalism’ (2003) 10 Rev Intl Polit Economy 310.
52 F Soderbaum, ‘Modes of Regional Governance in Africa: Neo-liberalism, Sovereignty-Boosting
and Shadow Networks’ (2004) 10 Global Govern 419.
36 Nicholas Kimani
optimism about the prospects of an African ‘renaissance’, where state and non-
state actors both collaborate under the banner of civil society, to promote
both peace building and emerging markets. 53
Relating collaborative approaches to environmental governance in East
Africa to new regionalism literatures is beneficial in two inter-related respects.
First, it extends understandings of new regionalisms to East Africa, a region
that up to now has been synonymous with an ‘old’ state-centric and
uni-dimensional approach to regionalism, and demonstrates a more multi-
dimensional ‘new’ regionalism where state and non-state actors successfully
collaborate in environmental governance. Experiences in East Africa, if suc-
cessful, would thus help one to assess the potentials54 and limitations55 of region-
alism. Second, given East Africa’s long history of state-led regionalisation
processes, successes and limitations encountered by non-state actors in structur-
ing regional developments enables other regions in Africa to evaluate and learn
from East African experiences in collaborative environmental governance.56
In summary, the focus so far has been on understanding theory and
research underlying ‘collaboration’ from the perspective of the environmental
literature, as well as that relating to new regionalism. An emerging insight
from both literatures is that functional co-operation between partiesç
whether state and non-state actors, or individualsçis likely to continue
where there are obvious functions that different parties can agree upon and
share. For the East African countries, this would require more stable and
durable regional governance systems to emerge, ones in which state power is
consolidated, in which rivalries (if any) are mitigated and in which shared
interests can be identified and fostered.57 It thus becomes a matter of empirical
inquiry to determine what new legal rules and steering mechanisms have
been adopted to collaboratively govern shared environmental issues and
problems in Kenya, Uganda and Tanzania, and with what impacts.
3. PADELIA
In order to evaluate and learn from collaborative approaches to environmental
governance in East Africa from the perspective of PADELIA, it is necessary to
illuminate the processes and mechanisms used in enlisting the capabilities,
experiences and understandings of the various state and non-state actors
53 T Shaw and J Nyang’oro, ‘African Renaissance in the New Millennium? From Anarchy to
Emerging Markets?’ (2000) 5 African J Pol Sci 14.
54 A Waal, ‘What’s New in the New Partnership for Africa’s Development?’ (2002) 78 Intl Affairs
463.
55 L Fawcett,‘Exploring Regional Domains: A Comparative History of Regionalism’ (2004) 80 Intl
Affairs 429.
56 Shaw (n 50).
57 Fawcett (n 55).
involved during Phases 1 and 2 of the Project.58 This is a necessary first step, if
normative insights are to be derived from empirical experiences, both from
what has already been reported upon,59 as well as from fieldwork data, which
is highlighted elsewhere in this article.
3.1 Overview of PADELIA

The Project started in 1994, and was at that time known as UNEP/UNDP60/
Dutch Government Joint Project on Environmental Law and Institutions in
Africa before it was re-named as ‘PADELIA’. The overall vision of PADELIA is
to enhance the capacity of African countries in sound environmental manage-
ment practices through the development and implementation of environmental
laws. Its mission is to assist these countries in building capacity for develop-
ment, implementation and enforcement of environmental laws and also to
strengthen environmental institutions for sustainable development and
poverty reduction. The first phase covered seven countries, namely Burkina
Faso, Kenya, Malawi, Mozambique, Sao Tome and Principe, Tanzania and
Uganda. As of the end of the second phase (31 December 2006), a total of
13 African countries were involved in PADELIA. They were grouped into
three sub-regions, namely the SAHEL sub-region comprising Mali, Niger,
Senegal and Burkina Faso; the Southern African Development Community
(SADC)61 sub-region comprising Botswana, Lesotho, Swaziland and Malawi,
and the East African sub-region comprising Kenya, Uganda and Tanzania.
In addition, the Portuguese-speaking countries of Mozambique and Sao Tome
and Principe carried out country-specific activities.
The main features of PADELIA are, first, that it links all activities to poverty
reduction strategies and sustainable development. Second, it is country-driven
58 PADELIA has been divided into several phases: Phase 1 (1994^2000); Phase II (2001^2006).
As of my third fieldwork trip in February 2007, Phase III was proposed to run from 2007 to
2011, but as of August 2009 it was not yet fully operational, as fundraising efforts by UNEP
were still ongoing.
59 Kameri-Mbote and Ouedraogo (n 8).
60 UNEP/ UNDP/Dutch Government Joint Project on Environmental Law and Institutions in
Africa.
61 The SADC has been in existence since 1 April 1980, when it was known as the Southern
African Development Coordination Conference (SADCC), with the main aim of coordinating
development projects in order to lessen economic dependence on the then apartheid South
Africa. The transformation of the organisation from a Coordinating Conference into a
Development Community (SADC) took place on 17 August 1992. As provided for in Article 5
of the SADC Treaty, the SADC objectives include the achievement of development and eco-
nomic growth through regional integration, and the sustainable utilisation of natural
resources and effective protection of the environment. Current Member States are: Angola,
Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius,
Mozambique, Namibia, Seychelles, South Africa, Swaziland, United Republic of Tanzania,
Zambia and Zimbabwe. Source: SADC Website 5http://www.sadc.int4 accessed 13 August
2009.
38 Nicholas Kimani
and highly participatory in nature, where beneficiary countries identify their

own environmental problems, determine their priorities, build national con-
sensus and implement activities using national expertise, thus ensuring
national ownership. Third, and related to this, it operates based on the concept
of capacity-building, where nationals are trained to identify environmental
problems requiring legal intervention, and to review and prepare their own
laws. All the activities are undertaken with back-up and guidance from the
project management team at UNEP in partnership with United Nations
Development Programme (UNDP), and other co-operating agencies, and with
the participation of local NGOs.
3.2 Institutional Members

The term ‘institutional members’ is used with reference to the various actors
serving on PADELIA’s Steering Committee.62 Apart from UNEP, there is also
UNDP, IUCN (the International Union for the Conservation of Nature and
Natural Resources, or the World Conservation Union), the World Bank, and
the Food and Agricultural Organization (FAO) of the UN. Although UNEP was
designated as the institutional home of PADELIA, it was established in 1973 to
play a ‘catalytic’ role,63 meaning that it is intended to facilitate activities at
national level and not directly to carry them out. As most activities
under PADELIA require considerable co-ordination at national level, it was
necessary to bring in the UNDP64 in view of its long experience in
co-ordinating technical assistance and capacity building at national level.
The Environmental Law Centre of the IUCN was included in recognition of its
valuable contributions to environmental conservation. The World Bank was
also included in view of its role in resource mobilisation and support for the
development of national environmental action plans in Africa. Finally,
the Development Law Service of the FAO was added, given its active role in
Africa in developing laws on natural resource sectors65 such as water,
land use, forestry and fisheries.66
62 Also represented on the Steering Committee are donor countries. The project countries had
no seat on the Steering Committee during Phase I, so an independent African lawyer who
sits in the Steering Committee Meetings as the Chair, was added to represent their interests.
Source: personal interview, PADELIA Project Task Manager, 20 December 2005).
63 P Haas, ‘Addressing the Global Governance Deficit’ (2004) 4 Global Envtl Politics 1.
64 The nature of the relationship between UNEP and UNDP under PADELIA has been articu-
lated through a MoU.
65 FAO Development Law Office Website 5http://www.fao.org/Legal/index_en.htm4 accessed 18
August 2009.
66 UNEP, Special Issue Bulletin of Environmental Law (United Nations Environment Programme
Nairobi 1998) 3.
3.3 Operational Modalities

The Project Task Manager guides implementation of PADELIA activities, albeit
under the guidance of the PADELIA Steering Committee. Activities implemen-
ted by each state under PADELIA are selected through stakeholder consulta-
tions organised as a National Task Force (NTF). Each state has its own NTF,67
which is normally composed of 15^20 individual experts drawn from relevant
government ministries involved with the particular environmental issue
under considerationçfor example, wildlife, fisheries and forestry. Also
involved are the civil society organisations likely to be involved with implemen-
tation.68 The respective NTF members are largely autonomous actors, who
specify national environmental priorities, develop project plans and review
activities. However, their autonomy is subject to supervision by the Project
Task Manager, under the direction of the PADELIA Project Steering
Committee, which reviews and approves progress, provides technical assis-
tance and ensures that those who participate actually represent a full range
of interests on those issues. Further, each country designates a National
Project Coordinator (NPC), who plays a variety of administrative roles,
including liaison with UNEP, and serving as secretary to the NTF.69
Environmental legislation is developed as follows. First, a national consul-
tant’s review of national environmental law and policy takes place, which is
followed by a draft law. Next, a national consensus-building workshop is held
to review the draft law’s overall normative prescriptions, procedural require-
ments and institutional arrangements. Here, the national consensus-building
workshop offers the 40^60 individuals, drawn from different sectors such as
agriculture, wildlife and fisheries, an opportunity to make recommendations
for improvement of the draft law. Finally, following satisfactory review by
national stakeholders, the final legislative report is submitted to the respective
government ministries for eventual presentation to Parliament in accordance
with the national constitutional procedures. The development of sectoral laws
and implementing regulations also undergoes similar stages. The major differ-
ence is that the first stage entails a detailed review of the respective country’s
sectoral laws or regulations. Next, the consultant’s recommendations indicate
how these legal instruments can be strengthened. Finally, the national
workshop then reviews the substantive recommendations, proposes modalities
for streamlining the laws and regulations, and concentrates on priority areas
for sectoral legislation.
67 PADELIA Website 5http://www.unep.org/padelia/structure/structure.htm4 accessed 18

August 2009.
68 UNEP (n 66).
69 Ibid.
40 Nicholas Kimani
For the East Africa sub-region, the procedures vary slightly. After undertak-
ing national processes to review existing laws, prepare draft reports and/or
draft laws and their review by the national consensus building workshops, a
broad-based sub-regional meeting is convened by UNEP, whose staff members
are also in attendance. Next, the sub-regional meeting reviews the draft
reports and laws already prepared and reviewed by the respective NTFs of
Kenya, Uganda and Tanzania. Following the identification of synergies,
interlinkages and issues for harmonisation, each country is expected, upon
return, to prepare draft laws, which are expected to result in the enactment
of new environmental laws or amendment of existing ones.
By way of illustration, one may consider the respective countries’ framework
environmental laws. These were not developed under PADELIA, but have
close association with PADELIA in two respects. First, these laws were
developed with support from the Steering Committee Members, notably the
World Bank in Kenya,70 Uganda and mainland Tanzania, while the FAO
supported the development of the framework law in Zanzibar Island. The
irony with Tanzania is that in one country two different framework laws were
developed by two separate UN institutions. This apparent anomaly, however, is
attributable to Tanzania’s unique constitutional framework which accords the
Zanzibar Island an identity which is distinct from that of mainland
Tanzania.71 Also, as the various Steering Committee members were already
involved in various environmental governance activities in East Africaçsuch
as the FAO in Zanzibar Island, and the World Bank in Tanzania, Uganda and
Kenyaçit made sense for their activities to be coordinated in a synergistic
manner. As a Kenyan respondent from UNEP pointed out:
. . . I happened to know that as our African governments often circulate
the same project proposals to several donors, resources can easily get
wasted. So when I got on board PADELIA, I made sure that the main UN
agencies all ‘talked’ to one another, so that they could all co-ordinate
their work more efficiently, and avoid duplication . . . .72
The close association of the respective framework environmental laws with
PADELIA is also seen in the fact that they were intended to possess comparable
features in order to facilitate the supervision, regulation and coordination of
70 During interviews with a Tanzanian environmental lawyer based at UNEP, it was pointed out
that the first draft of Kenya’s framework environmental law was ready in the early-1990sç
roughly the same time as the inception of PADELIA projectçbut owing to political issues,
plus the fact that the national environmental policy framework was not yet in place, it was
not until 1999 that the law was finally enacted. Source, personal interview, 16 February 2007.
71 I Majamba, ‘A n Assessment of the Framework Environmental Law of Zanzibar’ (2005) 1 Law
Environ Dev 15.
72 Personal Interview, 16 February 2007.
national environmental issues by the respective apex environmental agencies,

as well as to facilitate the harmonisation of environmental legislation of
cross-border significance across the region.73 In this respect, the framework
environmental laws play an integral part in implementing the sectoral legisla-
tion developed under PADELIA (as will be seen further below in discussing
priority areas agreed-upon in PADELIA, and the relevant epistemic
communities).
In brief, Kenya’s framework environmental law is the 1999 Environmental
Management and Coordination Act, which was enacted in December 1999
and came into effect on 14 January 2000.74 Uganda’s law is the National
Environmental Statute, 1995, while Tanzania’s law is the Environmental
Management Act, 2004, which came into force on 8 February 2005. While
these framework environmental laws are comparable in form and function,
their structures are also slightly dissimilar. For example, while the Kenyan
and Ugandan framework laws both establish a National Environmental
Management Agency (NEMA), in Sections 7 and 5, respectively, Section 16 of
Tanzania’s framework law establishes the National Environmental
Management Council (NEMC). In addition, differences may be found in terms
of their functions. Section 7 of Uganda’s framework law empowers NEMA^
Uganda to, among other things, co-ordinate implementation of government
policy and initiate legislative proposals, standards and guidelines on the
environment. Similarly, Kenya’s framework law, in Section 9(2), empowers
NEMA^Kenya to carry out the same functions. However, in Tanzania’s case,
these functions are not carried out by the NEMC, but by the office of Director
of Environment (DoE) established under Section 14 of the Act. The functions
of this office include, by Section 15, co-ordination of government policy and
advising the government on environmental legislation.75
73 E Kamau, ‘Environmental Law and Self Management by Industries in Kenya’ (2005) 17 JEL
229.
74 Despite the speedy enactment of a framework law, the actual implementation is often much
slower. In Kenya, for instance, core staff were only seconded to NEMA^Kenya on 1 July
2002, while the board of NEMA^Kenya was only appointed in April 2003. Worse, due to logis-
tical and financial limitations, bodies such as the National Environment Tribunal did not
commence determining disputes until 2005 when the first appeal was lodged (see A
Mumma, ‘The Place of Culture in the Enforcement of Environmental and Natural Resources
Management Laws: The Case of Kenya’ IUCN Academy of Environmental Law Colloquium,
‘Implementing Environmental Legislation: The Critical Role of Enforcement and Compliance’
Pace University, New York, 16^20 October 2006).
75 It was observed during interviews that respondents took great exception to the fact that while
the apex environmental agencies of Kenya and Tanzania (ironically, both named the
National Environmental Management Authority, or NEMA) were nominally independent
from day-to-day control by central government, in Tanzania the central government has
only ceded marginal decision-making powers to its apex environmental agency, the National
Environmental Management Council.
42 Nicholas Kimani
3.4 The East African Sub-Regional Project Component

It is now necessary to reflect on reasons why the Steering Committee grouped
together Kenya, Tanzania and Uganda. First, it was thought that as most
environmental problems have a regional effect, even through the origins are
national, efforts should be made to deal with the problem on a regional basis.
Second, the Committee emphasised the significance of the common legal
heritage shared by the three countries, which have legal systems based on
common law traditions and a history of close interaction on legislative and
judicial matters. Third, their people have comparable socio-cultural traditions,
which may be presumed to influence their perception of environmental
problems and possible remedies. Finally, the three countries have a long
experience with regional co-operation, which could be built upon by new
initiatives. The presumption, then, was that East African experience could
then be replicated to other regions in Africa.76 These assumptions are
not without foundation. Discussions elsewhere in this article on ‘old’
regionalism have already highlighted the fact that formal East Africa
regional integration arrangements date back to the 1960s. Others, however,
would argue that regional integration in East Africa actually predates colonial
rule.77
Two important observations should be made regarding the harmonisation
of sectoral environmental laws in seven priority areas (outlined below), which
were intended to be enacted pursuant to the respective national framework
national environmental legislation. First, although they were intended to
address issues of regional environmental significance, this was not always
the case. In some instances, they address issues of purely country-level
significance. Second, in some instances, the development of sectoral legis-
lation was undertaken before (emphasis added) the enactment of national
framework environmental legislation. These contradictions are commented
upon in subsequent discussions. The seven priority areas relate to the
development and harmonisation of methodology for measuring water, air and
soil pollution; environmental Impact Assessment (EIA) regulations; a legal
framework for the sorting, disposal, movement, licensing and storage of
wastes; trans-boundary movement of hazardous wastes; forestry legis-
lation; wildlife legislation and legislation relating to toxic and hazardous
chemicals.
76 Interview with Professor Charles O Okidi, former PADELIA Project Task Manager, and
Director of the Centre for Advanced Studies on Environmental Law and Policy (CASELAP)
(University of Nairobi), (8 January 2006).
77 H Ochwada, ‘Rethinking East African Integration: From Economic to Political and from State
to Civil Society’ (2004) 22 Africa Dev 53.
As a follow-up to the development and harmonisation of laws relating to the

above-mentioned priority activities, a workshop of Permanent Secretaries
responsible for the environment in the three countries signed a Memorandum
of Understanding (MoU) for Co-operation on Environmental Management
between the Partner States on 22 October 1998, which called for a legally
binding protocol on the environment under the auspices of a regional treaty,
which was by then under development. The 1999 Treaty establishing the East
African Community (EAC) Treaty was signed in Arusha on 30 November
1999, and entered into force on 7 July 2000. Given the acrimonious break-up
of the old EAC, the signing of the 1999 Treaty constituted a significant step
towards closer regional integration; Article 5 of the Treaty, provides that the
broad goal of the EAC is to widen and deepen co-operation among Partner
States in the political, economic and social fields for the mutual benefit of
their over 125 million people.78 Since the launch of the EAC, regional integra-
tion has proceeded with the establishment of the East African Customs
Union, the enlargement of the Community with admission of Rwanda and
Burundi, the ongoing negotiations of the East African Common Market as
well as the consultations on fast tracking the process towards East African
Political Federation.79 Another significant achievement in the EAC integration
process is the conclusion of the Protocol for Environment and Natural
Resources, which is discussed below.
3.5 Overview of the Protocol for Environment and Natural Resources

From the outset, it should be observed that the Protocol for Environment and
Natural Resources (hereinafter Environmental Protocol) is not as yet opera-
tional. Reasons for this unfortunate situation are discussed elsewhere in this
article, but it is nonetheless important, as it clearly highlights the common
vision of the Partner States to collaborate on regional environmental issues.
The Protocol is attributable to para 1 of Article 151 of the Treaty, where the
Partner States undertake to conclude such Protocols as may be necessary for
co-operation and integration. By Article 142(1)(i), the Treaty provided that the
1998 MoU between the three countries (discussed above) would be among
the tripartite agreements that would not be affected by the coming into
force of the Treaty, but instead would be brought into conformity with it.
By Article 3(1) of the MoU, the Partner States recognised the need to conclude
78 T Kibua and A Tostensen, Fast-Tracking East African Integration: Assessing the Feasibility of a
Political Federation by 2010 (Chr Michelsen Institute Nairobi and Bergen, 2005) 5http://
www.cmi.no/publications/publication/?2088¼fast-tracking-east-african-integration4
79 EAC Website 5http://www.eac.int/about-eac.html4accessed 18 August 2009.
44 Nicholas Kimani
a Protocol on Environment and Natural Resources Management. This

provision is reflected in Chapters 19 and 20 of the Treaty, which provides for
cooperation on environment and natural resources management.80
A review of Article 2 of the Environmental Protocol reveals an intention by
the Partner States that it should inform their efforts to facilitate collaborative
management of the environment and natural resources over areas within
their jurisdiction. Article 3 highlights the Environmental Protocol’s extensive
scope in regards to all activities, matters and areas of management of the
environment and natural resources of the Partner States. These include the
following: conservation of biological diversity; management of forestry,
wildlife, water, wetland and coastal and marine resources; combating desertifi-
cation and mitigating the effects of drought; mitigation of climate change and
environmental impact assessment. Among the objectives highlighted in
Article 5 of the Environmental Protocol are the promotion of sustainable use
and management of environmental and natural resources, capacity building
and environmental awareness in environment and natural resources manage-
ment, shared responsibility and cooperation in environment and natural
resources management, and the development and harmonisation of policies,
laws and strategies for environment and natural resources management.
The second chapter of the Environmental Protocol affirms the commitment
of the Partner States, as well as their agreement to co-operate, and to uphold
the principle of sustainable development. By Article 6, Partner States commit
themselves to ensure sound environment and natural resources management
in the Community and to co-operate among themselves in observing
international norms regarding sound environmental and natural resources
management, carrying out and supporting scientific studies and seeking to
harmonise relevant environmental policies, laws and strategies in their
national jurisdictions. By Article 7, the Partner States agree to co-operation in
environment and natural resources management through, among others,
development of common policies and co-ordination of actions aimed at protec-
tion and conservation of the environment and natural resources against all
forms of degradation and pollution arising from developmental activities. By
Article 8, the Partner States commit themselves to, among others, ensuring
that development activities are based on sound environmental policies and do
not have adverse impacts on natural resources and the environment in gen-
eral, and to take all measures at local, national and regional levels, that are
80 Evidence of such co-operation is also evident elsewhere in the EAC Treaty. Article 38(1)(a) of
the Protocol on the Establishment of the East African Customs Union, which was signed on
2 March 2004, takes cognisance of inter-linkages between the Customs Union and environ-
ment and natural resources management. In addition, Partner States on 30 June 1994
signed the Convention for the Establishment of the Lake Victoria Fisheries Organization.
More recently, the Partner States on 29 November 2003 signed the Protocol on the
Sustainable Development of Lake Victoria Basin 5http://www.eac.int/about-eac.html4
conducive to sustainable development and elimination or eradication of

poverty in the East African Community as a means of protecting the environ-
ment and natural resource base. The final chapter of the Environmental
Protocol concerns questions of compliance. By Article 38, Partner States are
required to take appropriate measures within their competence, including the
adoption of laws and regulations, administrative actions and enforcement
measures, to ensure compliance with the Protocol. In addition, Article 43
requires the Partner States individually or collectively, to adopt appropriate
measures, compatible with international law, to dissuade non-Partner States
from undertaking activities which undermine the effectiveness of the Protocol.
In summary, this section has highlighted a number of relevant considera-
tions. By indexing the processes and mechanisms used to operationalise
PADELIA, an emerging insight is that lawmaking under PADELIA is under-
taken through a complex, if not unwieldy, bureaucratic approach. In other
words, while there are demonstrable lines of control and accountability
between UNEP and the NTFs, it is not particularly clear how the NTF relates
with central government in terms of ensuring legislative and other outputs
are acted upon. Another insight is that some countries have developed
country-specific environmental legislation, despite PADELIA’s focus on regional
environmental issues. Finally, insights may also be drawn from the multi-
stakeholder approach to law-making; while on the one hand it may be emblem-
atic of an emerging regional environmental governance regime, the exact
nature of its relationship within the broader- state-centric model of gover-
nance, first seen with the ‘old’ EAC and then by its successor, the 1999 EAC
Treaty, requires clarification. Whether the idea of broader-based bottom-up
participation of civil actors in shaping environmental governance will eventu-
ate despite, or perhaps because of, the influence of state-actors remains an
important concern, which will be addressed shortly below.
4. Learning from Experiences in East Africa

This section draws from the thoughts, views and attitudes of respondents in
the three countries, which arose primarily from semi-structured interviews,
and highlights a number of ‘lessons from the field’. To corroborate findings
and contribute to improved validity, these data were triangulated against docu-
mentary collections held by UNEP, as well as universities in Dar-es-Salaam,
Nairobi and Kampala, and the three countries’ apex environmental agencies.
Through the data collection, interpretation and analysis, two issues will be
highlighted. From these empirical and normative insights, the article will
attempt to account for reasons why, in practice, there is often a difference
between aspirations and mechanisms designed to achieve them, and the
actual results.
46 Nicholas Kimani
4.1 Relationship Between the ‘New’ Regional Collaborative Approach and

Earlier ‘Conventional’Approaches
From an empirical perspective, there is little to say about the relationship
between the ‘new’ regional collaborative approach and the earlier ‘conven-
tional’ approaches. By the time Phase 2 of PADELIA was drawing to a close, it
had become clear that developing and harmonising environmental laws on a
regional basis is difficult, when countries are not at the same level of environ-
mental law development and appear to have national agendas that differ from
the aims and objectives of the regional initiative.81 It was assumed for instance,
that the East African countries were at about the same level of development
for their environmental governance frameworks. This was not the case;
Uganda’s framework environmental law was enacted in 1995, Kenya’s in 1999
and Tanzania’s in 2004. It also assumed that the three countries would imple-
ment new, agreed initiatives at the same speed and pace in accordance with
an agreed timetable. This, too, was not the case; by the mid-2000s, there was
a deviation towards country-specific priorities and away from the initial focus
on regional issues in the late-1990s. These trends are apparent from the
following Table 1:82
Table 1.
Country Adopted laws and regulations Draft laws and regulations
Kenya Environmental Management and Draft Environmental Standards (Air Quality,

Coordination Act No. 8 of 1999. Water and Soil)
The Water Act No. 8 of 2002 Draft Regulations on Toxic and Hazardous
Environmental (Impact Assessment and Chemicals, 2004.
Audit) Regulations No. 101 of 2003. Draft Wildlife Law, 2004
The Forest Act, No.7 of 2005 Draft Regulations on Hazardous and Non-
Hazardous Wastes.
Draft Environment Management and
Coordination, (Water Quality)
Regulations, 2005.
Draft Environmental Management and
Coordination (Conservation of Biological
Diversity and Resources, Access to Genetic
Resources and Benefit Sharing)
Regulation, 2005.
Draft Environmental Management and
Coordination (Waste Management
Regulations) 2005
Uganda Environmental Impact Assessment Draft Environmental Impact Assessment
Regulations No. 13/1998 Regulations, 1997
The Environmental Standards Forestry and Tree Planting Act No. 8 of 2003
Regulations, 1998 Draft Regulations on Soil Management.
(continued)
81 Kameri-Mbote (n 8).
82 Source: PADELIA Website 5http://www.unep.org/padelia/activities/draft_laws.html4 accessed
21 August 2009.
Table 1 Continued
Country Adopted laws and regulations Draft laws and regulations
The National Environment (Noise Control Draft Regulations Implementing CITES and
Standards) Regulations, 1998 the Lusaka Agreement.
The National Environment Standards Draft Regulations on Toxic and Hazardous
(Discharge of Effluent into Water or Chemicals.
on Land) Regulations, 1998
The Air Quality (Pollution Control in the
Occupational and Ambient
Environment) (Licensing and Emission
Standards) Regulations, 1998
The National Environment (Waste
Management) Regulations No. 52/1999
Hazardous and Non-Hazardous Wastes
Regulations, 1999
Tanzania ForestryAct No.7 of 2002 Draft Regulations on Toxic and Hazardous
Environmental Management Act No. 20 Chemicals.
of 2004 Draft Environmental Standards (Air quality,
Water and Soil)
Draft Wildlife Bill
Draft EIA Regulations
Draft Hazardous and Non- Hazardous
Wastes Regulations
Table 1 demonstrates that despite PADELIA’s impressive legislative output,

questions nonetheless arise. First, many of the laws and regulations developed
reflect national rather than the regional priorities highlighted in the 1998
MoU (already discussed). Second, some countries have been more active than
others in developing laws and regulations. Finally, many of the legislative
outputs have remained in draft form for inordinately long periods of time.
Respondents offered different perspectives on reasons for this poor state of
affairs. A Tanzanian lawyer working as a Task Manager for PADELIA suggested
that poor communication and co-ordination between relevant government
offices was a cause:
Whenever environmental issues were discussed, we knew that some-
times the Foreign Affairs ministry was rarely involved, and at other
times the delegates were not always the most suitable for the task.
We therefore funded the attendance of delegations, which were drawn
from different yet relevant government departments to ensure they
‘talked to one another’.83
Another possible reason arose from the complex bureaucratic procedures
associated with law-making in the respective countries. In Kenya, for instance,
a legal officer at NEMA^Kenya explained that once the NTF handed over
completed draft laws and regulations to the relevant government offices in
order to be enacted into law in line with national law-making procedures,
83 Personal Interview, 16 February 2007.

48 Nicholas Kimani
difficulties arose. This was because draft laws and regulations prepared under
PADELIA were not considered ‘official’, notwithstanding the rigorous proce-
dures underlining their preparation. She acknowledged that law-making pro-
cesses always started ‘afresh’, in order to adhere with the procedures outlined
in Kenya’s framework environmental law. However, the draft laws and regula-
tions were nonetheless used as a basis for whatever law was subsequently
enacted.84 Others felt that the problem arose from historical factors. A
Kenyan environmental lawyer argued that the sectoral nature of colonial-era
environmental legislation had led national environmental law and policy-
makers to narrowly construe environmental issues, rather than adopt holistic
or regional perspectives. Terming the problem as a basic constraint in enforce-
ment and compliance of environmental laws in Africa, he argued:
. . . it is also necessary for people at national level to change their modes
of operation. If they do not consult effectively at the national level,
they will not do so either at the regional . . . level. The issue of ‘total
integration’ is another matter to keep constantly in mind, and to keep
reminding the people about. Thus, principles of consultation and integra-
tion . . . must be viewed as ongoing obligations, rather than one-off
practices.85
Similar sentiments are expressed regarding the countries’ capacity and com-
mitment to create the right kind of enabling environment, for collaborative
approaches to environmental governance to thrive. One theorist, for instance,
argues that the question is whether these policy positions, which enunciate
lofty expectations, are matched by proportionate action with respect to their
implementation.86 Others have pointed to the importance of focusing on the
mechanisms (legal and otherwise) that are developed to implement visionsç
as there is often a ‘vision gap’ or a ‘vision deficit’ in translating the vision,
through institutional mechanisms, to practice. They argue that an important
source of this gap is that those who are charged with developing implementa-
tion mechanisms are often embedded in a culture of how things are done
that arises out of an older set of understanding and visions.87As a Tanzanian
respondent pointed out, the key question is whether African countries have in
fact made the link between environment and development:
Africa has never been short of environmental initiativesçTreaties,
Conventions, and soft-law instrumentsçbut each time they meet to
84 Personal interview, 24 August 2006.

85 Personal interview, 16 February 2007.
86 F Situma, ‘Africa’s Potential Contribution to Environmental Law’ (2000) 10 Transnat’l L &
Contemp Probs 408.
87 N Gunningham, C Holley and C Shearing, ‘Neighbourhood Environment Improvement Plans:
Community Empowerment, Voluntary Collaboration and Legislative Design’ (2007) 24
Environ Planning L Journal 150.
conclude a legal instrument, it is almost as though they are signing

something new, since they have ignored previous instruments already
concluded over the same issue.88
From a normative perspective, it is premature to draw definitive insights about
how the ‘new’ collaborative approach to environmental governance relates to
earlier ‘conventional’ approaches. The environmental literature reviewed
earlier in this article has highlighted several important issues, for instance
benefits of collaboration between individuals and potential difficulties that
may arise. How these issues relate to PADELIA’s law-making processes remains
unclear given the three countries’ poor record in enacting environmental
legislation. A possible way forward is to refocus attention on framework
environmental legislation, as this has been enacted by the three countries,
and has comparable features. Consequently, it would be necessary to high-
light the manner in which non-state actors have collaborated with one
another, and with state actors, to create and shape environmental law and
policy-making using ‘spaces’ created by the respective framework environmen-
tal laws, for example, in seeking access to environmental justice or environ-
mental information, or securing public participation in environmental
decision-making.89 It is possible that the resulting insights would have
the benefit of indexing the manner in which environmental governance is
shifting from a regulatory government paradigm to a pluralist model where
environmental law and policy-making is predominantly shaped and reshaped
by actors operating from positions both within and outside official and
public-governing institutions.90 This issue, however, falls outside the present
scope of this article and it will thus be necessary to return to it in future
studies.
4.2 Prospects for Successful Collaboration in Structuring Regional

Developments
Successful collaboration between state and non-state actors in structuring
regional developments appears to be a distinct possibility. The following
empirical insights, or lessons, highlight why there is cause both for great
expectations as well as guarded optimism. This is followed by an exposition of
some normative issues which consequently arise.
88 Personal interview, 21 August 2006.

89 This approach is explored in Kimani (n 14).
90 Z Plater,‘From the Beginning, a Fundamental Shift of Paradigms: A Theory and Short History
of Environmental Law’ (1994) 27 Loyola Los Angeles LR 981.
50 Nicholas Kimani
5. Epistemic Communities
The first lesson concerns the importance attached to epistemic communities.
Earlier empirical studies of PADELIA have already identified the utility of the
stakeholder forums which brought together both state and non-state actors
under PADELIA auspices for the purpose of helping the respective States
identify their interests, frame issues for collective debate, propose specific poli-
cies and identify salient points for negotiation.91 In the course of interviews
with the first Project Task Manager of PADELIA, it was made clear that an
important benefit of PADELIA was the creation of local capacity to develop,
implement and enforce environmental laws, which would outlive the duration
of the project.92 An important source of this local capacity is found in episte-
mic communities, or networks of professionals with recognised expertise,
and authoritative claims to policy-relevant knowledge within the relevant
issue area.93
Evidence of the impacts of these communities of specialists was seen in
at least two respects: ‘trans-governmental’ and ‘trans-judicial’ networks.
As regards the former, these are important means of government officials
exchanging information and co-ordinating activities with their counterparts,
whether at bilateral, regional or global levels.94 In this respect, respondents
from the three countries contended that they had much to learn from the
experiences in the other countries in institutionalising the framework environ-
mental laws. One Tanzanian respondent, credited with drafting the country’s
framework environmental law, for instance, noted that:
Our framework law was drafted after carefully noting weaknesses with
similar laws in Kenya and Uganda. Kenya’s law, for instance, has many
layers of bureaucracy, which may hamper swift and cost-effective
implementation. Meanwhile Uganda’s law, although good, is largely
underwritten by the World Bank. A heavy reliance on donor funding is
not sustainable . . . .95
Other respondents noted that as Uganda was the first to enact its framework
environmental laws, the country’s apex environmental agency had the most
experience in setting up the necessary legal and institutional mechanisms,
which other neighbouring countries could learn from and evaluate. A
Ugandan Project Task Manager of PADELIA pointed out that NEMAÛganda’s
experiences with operationalising its environmental laws was often shared in
regional workshops, where civil servants from neighbouring countries would
91 Kameri-Mbote and Doumbe¤-Bille¤, and Sinatambou (n 8).

92 Personal interview, 8 January 2006.
93 P Haas, ‘Epistemic Communities and International Policy Co-ordination’ (1992) 46 Intl
Organization 1.
94 AM Slaughter, A New World Order (Princeton University Press, Princeton 2005).
95 Personal interview, 1 September 2006.
be made aware of the approaches taken and with what impacts or results.96
A Uganda respondent from NEMAÛganda observed that while sharing experi-
ences, it was often found necessary to exercise care so as not to sound like
they were ‘lording it over’ the other countries.97 This risk, however, proved
unnecessary; respondents in both Kenya and Tanzania clearly noted with
approval, if not envy, the level of professionalism exhibited by NEMAÛganda
as it undertook its activities.
Evidence of the emergence of ‘trans-judicial’ networks98 was seen in respon-
dents’ contentions that their knowledge of environmental law was enriched
through participating in PADELIA-organised workshops, which highlighted
developments in developing and developed parts of the world. In the words of
a Kenyan environmental lawyer who had participated in several PADELIA
training workshops:
We find that jurisprudence emanating from Asia is of local relevance
here in East Africa, as compared to what comes from Europe and North
America. This is because it has the most advanced corpus of law relating
to sustainable development, most notably concerning indigenous
capacity and inter-generational succession.99
By this he meant that the cross-fertilisation of ideas does not necessarily have
to occur vertically between developed and less-developed countries. Rather,
interactions could also occur ‘horizontally’ between developing jurisdictions,
provided that they share common social, political and legal values.100 This
view is confirmed by the experiences of a Ugandan environmental lawyer
who had successfully sought a court injunction requiring NEMAÛganda to
ban smoking in public on grounds that it contravened non-smokers’ rights
to a clean and healthy environment. In his words:
We heavily relied on Indian jurisprudence that we learnt about through
attending a UNEP-organized training workshop. We obtained the Indian
case that set the crucial legal precedent relied upon in court, through
liaison with a legal website based in Kenya. When we succeeded in our
action, we shared our judgments with other lawyers in the region who
were involved in similar cases.101
The upshot of these observations is that present-day challenges, such as
environmental problems, are contributing to the disaggregation of the
96 Personal Interview, 25 August 2006.

98 A Slaughter, ‘A Typology of Transjudicial Communication’ (1994) U Rich L Rev 29.
100 L Helfner and A Slaughter, ‘Towards a Theory of Effective Supranational Adjudication’ (1997)
107 Yale LJ 273.
52 Nicholas Kimani
modern-day state, which is disaggregating into separate, functionally distinct

parts. These partsçcourts, regulatory agenciesçare networking with their
networks abroad, creating a dense network of relations that constitute a new
trans-governmental world order.102
6. Institutions Matter
A second lesson is that without effective legal institutional arrangements in
place, narrow national interests may easily trump broader regional considera-
tions. Simply, put institutions matter. Respondents who highlighted this point
invariably pointed to experiences in Lake Victoria, where the three countries
had already signed and ratified the 1994 Convention for the Establishment of
the Lake Victoria Fisheries Organization, as well as the 2003 Protocol on the
Sustainable Development of the Lake Victoria Basin. In doing so, respondents
alluded to the fact that PADELIA’s scope initially covered legal and institutional
arrangements on Lake Victoria (an issue subsequently taken up by the EAC
Secretariat). In addition, respondents made reference to the commonly held
perception in the region that because of the central position between the
three countries, there was nothing more East African than Lake Victoria.103
That being the case, a tension was observed to exist between rhetoric and real-
ity, a tension that invariably calls for further in depth study to the governance
arrangements underpinning this important trans-boundary regional resource.
Despite the acknowledgement that the region’s leadership had generously
provided the necessary resources and political goodwill required to operatio-
nalise the 1994 Convention and 2003 Protocol, there was a need to ensure
that the regional institutions charged with upholding the regional collabora-
tion remained unaffected by short-term national imperatives. According to an
environmentalist interviewed in Uganda, extensive water usage by Ugandan
hydropower dams was thought to be the cause of drastic falls in water levels
in neighbouring Kenya, by up to 1 metre in depth, with the shoreline receding
by up to 100 metres, in some places.104 Although regional scientific research
organisations were then charged with collaborating to establish possible
causes and solutions, national political considerations could influence the
collecting and disseminating of ‘objective’ research data. In the words of a
Kenyan scientist who worked for a research institute concerned with fisheries
in Lake Victoria, this situation bore an ill-wind for regional ecosystem manage-
ment approaches which relied on collaboration between the respective coun-
tries’ research institutions. He contended that ‘National politics appears to be
102 A Slaughter, ‘The Real New World Order’ (1997) 76 Foreign Affairs 184.
103 Personal interview, 20 December 2005.
our biggest problem: our politicians destroy whatever has been done, and they
do not see the need for building institutions and policies anew . . .’.105
Finally, it is noted that while the above discussion on Lake Victoria draws
attention to challenges of collaboration between states, an important issue
which remains as yet unanswered, concerns the challenges of collaboration
between individuals in the case of trans-boundary natural resources. Given
tensions between individual rationality and collective outcome, highlighted in
Olson’s collective actions problems and in Hardin’s ‘Tragedy of the Commons’,
it is unclear how effective collaboration is sustainable in the long-term without
succumbing either to collective action problems or other challenges associated
with consensus decision-making processes. This is an important issue which
future studies must address.
7. The Wider Regional Political Context

A final lesson is that the region’s top political leadership can either remain
impervious to developments in the environmental arena or give support
where it accords with their own regional interests. A resulting implication is
that policy-makers should align regional environmental collaboration activities
with the wider priorities and interests of their political leaders, especially
where it can be clearly shown that the environmental issues in question
present an imminent or visible threat to their leaders’ own regional interests.
Two observations support this view. The first concerns the failure to ratify
the regional Environmental Protocol (already highlighted). Although approved
by the East African Council of Ministers in 2001, it has yet to be ratified at
national level,106 a step which should have been initiated by the respective
national heads of state and government. Fieldwork was unable to establish
why this was the case. A Tanzanian national working for the EAC Secretariat
in Arusha, Tanzania, averred that it was unfortunate that the Environmental
Protocol had yet to be given legal effect because, as he put it, ‘matters of
environmental degradation do not wait for political federation’.107 By this state-
ment, he was referring to the intense debates taking place in East Africa
regarding political federation, which tended to overshadow the fact that the
region was facing serious regional environmental challenges, which simply
could not wait for debates on political ideology to be first resolved. At the time
of interviews held between 2005 and 2007, the leaders of Kenya, Uganda and
Tanzania had set out to solicit views from their citizens on how soon they
would like closer integration in the region. The resulting feedback indicated

106 At the time of writing this article (23 August 2009) the above position remained unchanged.
107 Personal interview, 20 December 2005.
54 Nicholas Kimani
that while leaders preferred a regional political federation,108 East African

residents preferred functional forms of economic integration in place before-
hand, whether in trade or better infrastructure such as roads. As regards
collaboration on environmental issues, specifically the Environmental
Protocol, a respondent observed:
We cannot understand why they would tell us to go ahead, and then set
out in the opposite direction. While we bureaucrats must accept that we
cannot go ahead of our political masters, the reverse is also true.
Political masters must also accept they cannot move forward unless
they have their bureaucrats behind them.109
It is not clear why the region’s political leadership is preoccupied with political
federation, and why they do not view integration in terms of transferring
exclusive expectations of benefits from the nation-state to some larger entity,
where national actors (such as government officials, interest group spokesmen,
politicians, as well as ordinary people) cease to identify themselves and their
future welfare entirely with their own national government and its policies.110
A possible explanation is the sense of history arising from East Africa’s long
experience with regionalism where it has been suggested that members of the
national elites, who are old enough to remember, tend to share memories and
a sharp sense of loss regarding the rise and eventual dissolution of the former
Community.111 This sense of history combines easily with the motivations of
ambitious East African politicians to act on the regional state in order to
project themselves as statesmen of a higher order. In addition, for the national
leaderships, EAC institutions constitute an additional resource for rewarding
political loyalty, creating obligations and generating support.112 These observa-
tions echo the contentions of a Kenyan environmental lawyer:
I am not surprised about our political leaders. Governments only create
regional structures that they are comfortable with. If governments are
not ready to cede certain powers then they will not do so. It is not
a legal decision but a political one.113
A second observation is that policy-makers in the region can count on the full
support of their political leaders where it is clearly observable that the regional
environmental challenges constitute a clear and present danger to their
108 Hazlewood (n 46).

110 E Haas and P Schmitter, ‘Economics and Differential Patterns of Political Integration:
Projections about Unity in Latin America’ (1964) 18 Intl Organization 705.
111 D Booth D Cammack T Kibua, J Kweka and N Rudaheranwa, ‘East African Integration: How
Can it Contribute to East African Development? Briefing May 2007’ (2007) 5http://www
.odi.org.uk/resources/details.asp?id¼100&title¼east-african-integration-can-contribute-east-
african-development4accessed 18 August 2009.
112 Booth and others (n 111).
113 Personal interview, 16 February 2007.
wider regional interests. One research scientist, who was based with the
Kenyan Marine Fisheries Organization made reference to the invasion of Lake
Victoria by the invasive hyacinth weed in the mid-1990s as well as a ban
on fish exports to the lucrative EU market in the late-1990s. The threat of
ecological catastrophe and loss of livelihoods galvanised local communities,
politicians and policy-makers in the three countries into finding ways to
resuming fish exports. In his words:
In those days, the only thing that the politicians and policy makers were
interested in hearing about was the progress being made to solve those
two problems. They were prepared to spend any amount to ‘fix the
problem’ . . ..114
The presence, or absence, of political will is, therefore, an important con-
sideration as to whether countries will agree to collaborate in governing
environmental challenges that they have in common. One important implica-
tion, to be discussed shortly, concerns the questionable nature of the East
African Community’s democratic and participatory nature, which encroaches
on the effectiveness of the regional environmental legal instruments. The
partial progress made by the three countries towards implementing the vision
of collaborative environmental governance conceptualised and articulated
under PADELIA auspices presents an obvious basis for questioning how the
EAC works as a decision-making system, about how democratic its decision-
making procedures are, and about how democratic they should be. Given this,
there is an obvious need to understand the extent to which diverse non-state
actors can actually succeed in securing representation of environmental
interests in the face of wider dominant social and political powers.
Finally, for governance theorists seeking to understand the normative
implications of the above-cited shift, as it were, from ‘great expectations’ to
‘guarded optimism’, there is a clear sense of bewilderment regarding what role
governments should play in encouraging, facilitating, rewarding and shaping
regional collaborative outcomes.115 Given East Africa’s regional governance
architecture, it is necessary to privilege the stateçboth empirically and
normativelyçamong the multiplicity of actors who may contribute to environ-
ment as a valued human good, whether as a sponsor, regulator or provider.
On the other hand, the various bodies of literature reviewed in this article
appear to suggest otherwise. The governance literature suggests that govern-
ments do not, and should not, have a monopoly on regulation, as regulation is
occurring within and between other social actors, often within a polycentric
relationship whereby the roles of governors and governed are both shifting

115 N Gunningham, ‘Environmental Law, Regulation, and Governance: Shifting Architectures’
(2009) 21 JEL 179.
56 Nicholas Kimani
and ill-defined. In this respect, the state is effectively ‘decentred’, becoming one
of a number of actors involved in governance but no longer privileged in
terms of power and influence.116 In addition, the environmental literature
reviewed in this article points out that the likelihood of functional co-operation
is greater where there are obvious functions that different parties can agree
upon and where governing power is consolidated, rivalries (if any) are miti-
gated, and in which shared interests can be identified and fostered. Finally, lit-
erature on regionalism suggests that while East Africa is synonymous with
an ‘old’ state-centric approach, the participatory PADELIA method of drawing
multi-stakeholder involvement in collective decision-making is emblematic of
a ‘new’ regionalism approach to environmental governance.
On the other hand, the tardy efforts by Kenya, Uganda and Tanzania in
implementing the PADELIA vision of collaborative environmental governance
renders it difficult to conceptualise a decentred understanding of regulation,
which embraces a multiplicity of actors in regional environmental governance,
yet is unable to unshackle itself from conceptual ties to the state, in whom
governing power remains consolidated. This scenario raises a fundamental
conceptual question. Once regulation is supposed to loosen its analytical link
to the state, yet only partially does so, what has it become? In seeking to
answer this question, one emerging insight concerns the insufficiency of law
to structure regional outcomes. To understand how regional collaborative
environmental governance arrangements eventuate in developing parts of the
world, therefore, one must have regard to the role and influence of the region’s
political context.
8. Conclusion
This article has sought to open a space for practitioners and scholars to pause
for thought, reconsider and reformulate their understanding of the conditions
under which collaborative approaches to environmental governance take
place between geographically contiguous developing countries. The primary
message can be stated thus: ‘regional approaches to collaborative environmen-
tal governance can work, but they may not be as straightforward or as effective
as initially expected’. There are also a number of important observations.
First, it is clear that international agencies have played an essential role in
encouraging and facilitating regional environmental governance. Without
financial resources provided under PADELIA to underwrite the transaction
costs (personal time, resources, travel expenses, national experts’ fees, per
diem payments and so on) associated with the interactive process, these
would have been beyond the ability of individual countries. Second, a number
116 Kempa and Shearing (n 16).

of empirical and normative questions arise out of the fact that the three coun-
tries are at different stages of environmental law development, and appear to
have divergent national priorities. In this respect, a number of issues have
been highlighted to which future studies must return. Finally, there is still
much to understand about how the political context of a region impacts upon
the prospects of state and non-state actors successfully collaborating in struc-
turing regional developments. It is already clear that there are both benefits
and risks associated with state involvement in collaborative approaches to
environmental governance. For this reason, if, as already pointed out, experi-
ences in East Africa are to inform collaborative environmental governance
approaches elsewhere in the developing world, then there is an obvious need
for normative theories to better understand what non-legal mechanisms are
required to secure meaningful participation by non-state actors in regional
decision-making.

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Journal of Environmental Law 22:1 ß The Author [2009]. Published by Oxford University Press.

All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

The article reflects upon a collaborative approach to environmental

Keywords: PADELIA, regulation, institutional and regulatory design,

issue of environmental policy.1 Dissatisfaction with the regulatory status quo

1 N Gunningham and D Sinclair, ‘Regulatory Pluralism: Designing Policy Mixes for

which persist to the present day.12 Consequently, experiences of PADELIA in

2. Concepts and Contexts

2.1 Understanding ‘Governance’

More fundamentally, the term ‘governance’ involves reference to some notion

2.2 Understanding ‘Collaboration’

that where there is unrestricted access to a resource owned by no one, there

31 G Hardin, ‘Tragedy of the Commons’ (1968) 162 Science 1244.

2.3 Understanding ‘New Regionalism’

38 Rose and Miller (n 23).

perceptions of unequal distribution of the economic benefits of political and

3.1 Overview of PADELIA

and highly participatory in nature, where beneficiary countries identify their

3.2 Institutional Members

3.3 Operational Modalities

67 PADELIA Website 5http://www.unep.org/padelia/structure/structure.htm4 accessed 18

national environmental issues by the respective apex environmental agencies,

3.4 The East African Sub-Regional Project Component

As a follow-up to the development and harmonisation of laws relating to the

3.5 Overview of the Protocol for Environment and Natural Resources

a Protocol on Environment and Natural Resources Management. This

conducive to sustainable development and elimination or eradication of

4. Learning from Experiences in East Africa

4.1 Relationship Between the ‘New’ Regional Collaborative Approach and

Country Adopted laws and regulations Draft laws and regulations

Kenya Environmental Management and Draft Environmental Standards (Air Quality,

Country Adopted laws and regulations Draft laws and regulations

Table 1 demonstrates that despite PADELIA’s impressive legislative output,

83 Personal Interview, 16 February 2007.

84 Personal interview, 24 August 2006.

conclude a legal instrument, it is almost as though they are signing

4.2 Prospects for Successful Collaboration in Structuring Regional

88 Personal interview, 21 August 2006.

91 Kameri-Mbote and Doumbe¤-Bille¤, and Sinatambou (n 8).

96 Personal Interview, 25 August 2006.

modern-day state, which is disaggregating into separate, functionally distinct

7. The Wider Regional Political Context

105 Personal interview, 8 September 2006.

that while leaders preferred a regional political federation,108 East African

108 Hazlewood (n 46).

114 Personal interview, 8 September 2006.

116 Kempa and Shearing (n 16).

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