Rethinking Transnational Environmental Health Governance in Africa: Can Adaptive Governance Help?

AuthorWilliam Onzivu
Date01 April 2016
Published date01 April 2016
Rethinking Transnational Environmental Health
Governance in Africa: Can Adaptive Governance
William Onzivu*
This article explores options to strengthen environ-
mental law to maximize its health impact in the devel-
oping world. A review of environmental treaties,
including their domestic implementation, reveals the
weak synergies between health and environmental
objectives. The article advances adaptive governance
as a framework for rethinking international environ-
mental law to improve health in Africa, but argues
that it has its limits. It analyses these strengths and
limits in the context of evolving regional environmen-
tal health governance in Africa, and proposes four
principles environmental justice, multi-sectoral col-
laboration, evaluation and environmental ethics to
reinforce its potential to improve health and the envir-
onment in Africa.
The progressive development of environmental law
highlights the efforts of States and non-State actors
to enhance the protection of the environment and
human health. However, there is a need to rethink
the importance of environmental law for health pro-
tection. This need is particularly high in Africa,
where increasing environmental degradation has
impacted both human health and the environment.
While other scholars have explored the contribution
of environmental law in the protection of public
health and the mutually reinforcing linkages between
environmental and health protection,
this article
argues that there is a need to reinforce the connec-
tion between environmental and health governance to
improve the protection of the environment and
human health, and to help prevent fragmentation in
contemporary environmental governance.
Macrory identif‌ies some of the complexities relating to
the governance of the oldenvironmental law concerns
such as water pollution, waste and species protection,
as well as the newenvironmental concerns such as cli-
mate change, where the underlying knowledge and
science is uncertain and legal and policy solutions are
These complexities are particularly profound
in Africa. The major factors causing environmental dis-
in Africa are traditional, oldenvironmental
health hazards such as the lack of access to safe water,
indoor air pollution and lack of sanitation and hygiene.
With recent economic growth, urbanization and contin-
uing industrialization in Africa, modern environmental
health hazards such as climate change and transbound-
ary waste have emerged as critical contributors to envir-
onmental disease.
Improving population health
therefore depends on how well both traditional and
modern environmental challenges are coherently gov-
Morgan and Yeung refer to the new govern-
ance, which emphasizes tools, networks, public and
private actors, persuasion and negotiation and enable-
ment skills.
This is a stark contrast to the old
governancethat focuses on programmes, hierarchies,
public versus private actors, command-and-control
* Corresponding author.
UNEP, Africa Environment Outlook 3: Our Environment, Our Health
(UNEP, 2013), at 3; UNEP, Africa Environment Outlook: Our Environ-
ment, Our Wealth (UNEP, 2006), at 911.
Ibid.; Y. Von Schirnding, W. Onzivu and A.O. Adede, ‘International
Environmental Law and Global Public Health’, 80:12 Bulletin of the
World Health Organization (2002), 970, at 972973.
D.P. Fidler, ‘Challenges to Humanity’s Health: The Contributions of
International Environmental Law to National and Global Public Health’,
31:1 Environmental Law Reporter (2001), 10048. For a discussion in
the context of global environmental governance, see J.G. Speth and
P.M. Haas, Global Environmental Governance (Island Press, 2007),
at 7174, 113 and 135.
On this issue, see S. Bernstein and M. Ivanova, ‘Institutional Frag-
mentation and Normative Compromise in Global Environmental
Governance: What Prospects for Re-embedding?’, in: S. Bernstein
and L.W. Pauly (eds.), Global Liberalism and Political Order: Towards
a New Grand Compromise (SUNY Press, 2007), 163.
R. Macrory, ‘Maturity and Methodology: A Personal Ref‌lection’, 21:2
Journal of Environmental Law (2009), 251.
A. Pr
un and C. Corval
an, Preventing Disease through
Healthy Environments: Towards an Estimate of the Environmental
Burden of Disease (World Health Organization (WHO), 2006).
O.C. Nweke and W.H Sanders III, ‘Modern Environmental Health
Hazards: A Public Health Issue of Increasing Signif‌icance’, 117:2
Environmental Health Perspectives (2009), 863.
WHO, Environmental Health: A Strategy for the African Region
(WHO Regional Committee for Africa, 2002).
B. Morgan and K. Yeung, An Introduction to Law and Regulation:
Texts and Materials (Cambridge University Press, 2007), at 110112.
ª2016 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
RECIEL 25 (1) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12147
Review of European Community & International Environmental Law
regulation and managerial skills.
Importantly, the old
regulatory tools continue to dominate environmental
health regulation in Africa.
Therefore, in Africa, tran-
sitioning from oldto newgovernance calls for a
rethinking of pathways to tackle policy incoherence and
institutional fragmentation in the area of health and
environmental protection.
This article argues that a clear health objective in
environmental law, informed by the concept of adaptive
governance, can provide a pathway to policy coherence.
Despite its limits, adaptive governance is a promising
model for Africa for several reasons. First, Africa faces
pre-existing acute public health and environmental
threats which require a robust and f‌lexible governance
frameworkthat evolves with thesemounting threats. Sec-
ond, adaptivegovernance can mitigatethe tortured polit-
ical participatory democracy in Africa and strengthen
communitarian structures for environmental manage-
ment on the continent through its emphasis on public
participation. Participation in environmentalhealth deci-
sion making by cross-sectoral communities can enhance
policy development and implementation. Third, environ-
mental health law in Africa requires reform to keep pace
with emerging and new challenges, and adaptive govern-
ance offerspathways to improvement.
Adaptive governance can thus facilitate public health
improvement in Africa. In the same way that public
health law has been a driver of environmental law in
the developed world,
the health objective of inter-
national environmental conventions can be a powerful
driver of environmental law in Africa.
Yet in the
context of sustainable management of shared
the transboundary movement of
hazardous waste and its disposal,
and climate
international environmental regimes have
not optimized health protection in developing coun-
tries. For example, despite the increasing discourse
on social sustainability, the interaction between the
environmentaland the socialin the context of
some environmental treaties continues to be largely
Yet, for ordinary Africans, social and
economic concerns often surpass environmental
as was demonstrated by African support for
the elevation of health as a social issue in the 2002
Johannesburg Plan of Implementation.
This article reconceives health protection in environ-
mental law, using the concept of adaptive governance,
which emphasizes proactive rather than reactive policy
making. This ref‌lects public health governance where
programmes, services and institutions emphasize the
prevention of disease.
It further echoes the precau-
tionary approach in international environmental law,
which encourages action to protect the environment
and human health despite limited scientif‌ic evidence.
This highlights the importance of upstream environ-
mental factors in promoting health,
which are cur-
rently insuff‌iciently addressed in environmental health
law and governance in Africa.
The article discusses
the scope of adaptive governance and options to rein-
force its eff‌icacy in improving environmental health
governance in Africa.
S. Wolf and N. Stanley, Wolf and Stanley on Environmental Law,
5th edn (Routledge, 2011), at 612; D. Driesen, ‘Alternatives to Regu-
lation? Market Mechanisms and the Environment’, in: R. Baldwin,
M. Cave and M. Lodge (eds.), The Oxford Handbook of Regulation
(Oxford University Press, 2012), 203, at 204205.
W. Onzivu, ‘Tackling the Public Health Impact of Climate Change:
The Role of Domestic Environmental Health Governance Mechanisms
in Developing Countries’, 43:3 The International Lawyer (2009), 1311.
See, e.g., S. Bell and D. McGillivray, Environmental Law (Oxford
University Press, 2008), at 1723; R.J. Lazarus, The Making of Envir-
onmental Law (University of Chicago Press, 2004); E. Fee and T.M.
Brown, ‘The Public Health Act of 1848’, 83:11 Bulletin of the World
Health Organization (2005), 866.
P.H. Sand, Effectiveness of International Environmental Agree-
ments: A Survey of Existing Legal Instruments (Cambridge University
Press, 1992), at 415.
See, e.g., W. Onzivu,‘The Long Road to Integrating Public Healthin
the Sustainable Management of Shared Freshwaters: Lessons from
LakeVictoria in East Africa’, 46:3 TheInternational Lawyer (2012),867.
See, e.g., W. Onzivu, ‘(Re)invigorating the Health Protection Objective
of the Basel Convention on Trans-boundary Movement of Hazardous
Waste and their Disposal’, 33:4 Legal Studies (2013), 621; K. Morrow,
‘The Traf‌igura Litigation and Liability for Unlawful Trade in Hazardous
Waste: Time for a Rethink?’, 18:6 Environmental Liability (2010), 219.
See also the Bali Declaration on Waste Management for Human Health
and Livelihood (2008), found at: <
W. Onzivu, ‘Health in Global Climate Change Law: The Long
Road to an Effective Legal Regime Protecting Public Health and
the Climate’, 4:4 Carbon and Climate Law Review (2010), 364; L.F.
Wiley, ‘Moving Global Health Law Upstream: A Critical Appraisal of
Global Health Law as a Tool for Health Adaptation to Climate
Change’, 22:3 Georgetown International Environmental Law Review
(2010), 439.
W. Onzivu, ‘International Environmental Law, the Public’s Health
and Domestic Environmental Governance in Developing Countries’,
21:4 American University International Law Review (2006), 597;
M. Lehtonen, ‘The EnvironmentalSocial Interface of Sustainable
Development: Capabilities, Social Capital, Institutions’, 49:2 Ecologic-
al Economics (2004), 199.
United Nations Economic Commission for Africa (UNECA), Sus-
tainable Development Report on Africa: Managing Land-based
Resources for Sustainable Development (UNECA, 2008), at 2335.
Johannesburg Plan of Implementation, in: Report of the World
Summit on Sustainable Development (UN Doc. A/CONF.199/20, 4
September 2002), at Chapter VI; see also Y. von Schirnding, ‘The
World Summit on Sustainable Development: Reaff‌irming the Central-
ity of Health’, 1:8 Globalization and Health (2005), 1.
J.M. Last et al. (eds.), A Dictionary of Epidemiology, 3rd edn
(Oxford University Press, 1995), at 134.
See, e.g., Rio Declaration on Environment and Development, in:
Report of the UN Conference on Environment and Development (UN
Doc. A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992), Annex, Principle 15.
J.C. Nkomo, A.O. Nyong and K. Kulindwa, ‘The Impacts of Climate
Change in Africa. Report Submitted to the Stern Review on the Eco-
nomics of Climate Change’ (2006).
C. Bruch, ‘Adaptive Water Management: Strengthening Laws
and Institutions to Cope with Uncertainty, Water Resources Devel-
opment and Management’, in: A.K. Biswas et al. (eds.), Water Man-
agement in 2020: Water Management and Development (Springer,
2009), 89.
ª2016 John Wiley & Sons Ltd

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