Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (Third Edition)
V. LEGAL AND REGULATORY ASPECTS OF CLIMATE CHANGE IN NAMIBIA AND SADC
Oliver C. Ruppel
Owing to the fact that climate change is multi-disciplinary in nature, no definite legal or policy framework related to climate change exists in Namibia. As in the case of all matters generally related to the environment, climate change issues span over a broad framework of national policy, legislation, strategies and action plans. However, developments in the past years reflect that climate change is playing a more dominant role, especially in the field of policy making and national planning. Based on local and national commitment and efforts to deal with the risks and challenges related to climate change and on international cooperation, a broad variety projects in the field of climate change have been and are being initialised and emphasise the importance of climate change mitigation and adaptation. Recent developments in climate change law and governance considered to be most relevant will be outlined in the following.
2 Climate Change Legislation
It can be argued that although Namibian environmental legislation does not explicitly address climate change, many relevant general concepts and principles applicable to climate change are contained in the legal environmental framework. This is true for framework legislation such as the Environmental Management Act No. 7 of 2007, which promotes the sustainable management of the environment and the use of natural resources by establishing principles for decision-making on matters affecting the environment. One of these principles, which is relevant for climate change is that “renewable resources must be used on a sustainable basis for the benefit of present and future generations”.1 A further example is the principle that “damage to the environment must be prevented and activities which cause such damage must be reduced, limited or controlled”.2 Climate change can thus be considered in various ways in decision-making processes. But also sectoral legislation can be applicable to climate change. The Forest Act No. 12 of 2001, which provides for the protection of the environment and the control and management of forest fires, and the Disaster Risk Management Act No. 10 of 2012, which provides “for an integrated and coordinated disaster management approach that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response to disasters and post-disaster recovery” are prominent examples of national legislation pertinent to climate change. However, Government has also recognised that “there is an urgency to review existing legislation, regulations and norms to frame these in accordance with climate change concerns.”3 Several topics have been identified as priority areas of law and/or regulation to be subject to review and update:4
- Feed-in tariffs for the general public and other organisations to supply the grid with electricity;
- Finalize Power Purchase Agreements rapidly following the delivery and signature of IPP licences;
- Implement regulations on energy efficiency, particularly energy audits in the industrial sector that are heavy consumers of energy;
- Implement the DSM strategy and set regulations to ensure import of energy efficient appliances;
- Review the taxation policy and legislation to promote the update of cleaner technologies and promote energy savings;
- Strengthen the enforcement of legislation and regulations;
- Review the legislations regulating forest exploitation to fit them to the new agenda; and
- Implement land policy reforms to promote reforestation and afforestation by the different land owner groups.
3 Namibia’s Climate Change Policy
The State’s mandate to promote the welfare of the people by adopting policies aimed to maintain ecosystems, essential ecological processes and biological diversity of Namibia and to utilise living natural resources on a sustainable basis for the benefit of all Namibians, both present and future as enshrined in Article of the Constitution is the principle foundation for Namibia’s commitment to address the challenges related to climate change. To this end, Namibia’s National Policy on Climate Change has been prepared and officially launched by the Ministry of Environment and Tourism in October 2011.
The following has been formulated as underlying rationale of the policy:5
The policy seeks to outline a coherent, transparent and inclusive framework on climate risk management in accordance with Namibia’s national development agenda, legal framework, and in recognition of environmental constraints and vulnerability. Similarly, the policy takes cognizance of Namibia comparative advantages with regard to the abundant potential for renewable energy exploitation.
The goal of the National Policy on Climate Change is to contribute to the attainment of sustainable development in line with Namibia’s Vision 2030 through strengthening of national capacities to reduce climate change risk and build resilience for any climate change shocks.
The policy also serves to guide “Government on the development and enactment of climate-specific legislation to establish appropriate legal mechanisms for policy implementation.”6 To date, no such climate-change specific legislation is on the radar.
Recognising that various Sustainable development and ensuring environmental sustainability stakeholders can contribute significantly to climate change adaptation and mitigation, the policy outlines the roles and responsibilities of stakeholders including the general public; the private sector; NGOs and faith and community based organisations; training and research institutions; the media; and international development partners.
The policy identifies five objectives, sets out a set of guiding principles and proposes a framework for sectoral strategies to address the impacts of climate change. The table below summarises the objectives of the policy and the methods by which these objectives are to be achieved:
Objectives of the National Climate Change Policy
TO BE ACHIEVED THROUGH
To develop and implement appropriate adaptation strategies and actions that will lower the vulnerability of Namibians and various sectors to the impacts of climate change.
Adoption and successful implementation of appropriate and effective climate change adaptation measures.
To develop action and strategies for climate change mitigation.
Development and implementation of renewable energy and energy use efficiency, Clean Development Mechanism (CDM) and enhanced carbon sinks.
To integrate climate change effectively into policies, institutional and development frameworks in recognition of the cross-cutting nature of climate change.
Harmonisation of policies and laws to reflect an integrated approach in planning, decision-making and implementation with respect to climate change.
To enhance capacities and synergies at local, regional and national levels and at individual, institutional and systemic levels to ensure successful implementation of climate change response activities.
Increase awareness and knowledge about climate change, as well to empower people to participate in the planning, development and implementation of appropriate responses to climate change.
To provide secure and adequate funding resources for effective adaptation and mitigation investments on climate change and associated activities.
Namibia’s treasury budgetary allocation using set procedures.
Access funding through international bodies like the UNFCCC.
The guiding principles of the policy relate to the following:
- Mainstreaming climate change into policies, legal framework and development planning;
- Sustainable development and ensuring environmental sustainability;
- Stakeholder participation in climate change policy implementation;
- Awareness generation, education, training and capacity building;
- Human rights-based development;
- Promote and address ‘adaptation’ and ‘mitigation’ as key approaches;
- Public, Private Partnership.
The policy paves the way for a framework of strategies to deal with the impacts of climate change in Namibia. Strategies are to be developed in a range of sectors. As these envisaged strategies are of utmost relevance, they are summarised in the following table.
Selected Envisaged Strategies
Sustainable access to water
Food security and sustainable resource base
Biodiversity and ecosystem services
Human health and wellbeing
Fisheries and marine resources
Sustainable energy and low carbon development
Education, training, capacity building and institutional strengthening
Research and information needs
Public awareness, participation and access to information
Disaster reduction and risk management
Financial resource allocation, mobilisation and management
International cooperation and networking
Technology development and transfer
Policy and legislative development
Gender issues and child welfare
Summarising it can be stated that – although the Policy has been criticised for being “in conflict with existing sectoral policy instruments and even sectoral national development aspirations”7 – it is an important instrument to further Namibia’s commitment to addressing the multi-faceted challenges related to climate change. It is founded in the multidisciplinary nature of climate change that conflicts or overlaps with other policy instruments and strategies arise. This also applies to the question of institutional responsibility for issued related to climate change. Although it could be argued that virtually every ministry is somehow concerned with issues related to climate change, the Ministry of Environment and Tourism is the key responsible line ministry for climate change.8
To implement the Climate Change Policy, a Climate Change Strategy and Action Plan (NCCSAP) for the period 2013 to 2020 has been developed and approved by Parliament in 2014. The NCCSAP contains guiding principles relating to climate change, identifies priority action areas for adaptation and mitigation and pinpoints various funding mechanisms.
4 Namibia and the United Nations Convention on Climate Change (UNFCCC)
Namibia is a Non-Annex I Party (group of Parties mostly developing countries) to the UNFCCC. To date, Namibia has submitted two national communications under the UNFCCC, in 20029 and in 201110 respectively. Namibia’s first Nationally Appropriate Mitigation Action (NAMA) and National Adaptation Plan (NAP) are in the process of being developed with the objective to “better guide the country on its way to mitigate and adapt to climate change.”11 Furthermore, Namibia has submitted its Intended Nationally Determined Contribution (INDC) in September 2015.12 Within the INDC, Namibia has stated that it “aims at a reduction of about 89% of its GHG emissions at the 2030 time horizon compared to the BAU scenario.”13 The INDC covers four sectors, namely energy; industrial production and product use; agriculture forestry and other land use (AFOLU) changes; and waste. Identified measures contributing to climate change mitigation with the highest amount of GHG include: to reduce the deforestation rate by 75 %; to reforest 20,000 ha per year; to restore 15 M ha of grassland; and to increase the share of renewables in electricity production from 33% to 70%. In the INDC it is stated that considering the following facts, namely
- Percentage contribution in Global emissions – 0.059% in 2010;
- Per capita emissions decreased from 0.0146 Gg CO2-eq to 0.0130 Gg CO2-eq from 2000 to 2010; and
- GDP production increased from about US$ 200 to 300 per unit emission.
Namibia’s INDC is “fair, equitable, ambitious and adequate”, given Namibia’s development status and national circumstances.14
Namibia has committed itself in the INDC to ensure political stability, good governance, an independent efficient judicial system, appropriate legislation, provision of incentives, and implementation of robust awareness campaigns as prerequisites for a successful and quick implementation of the INDC.
5 Climate Change Governance in the Southern African Development Community (SADC)
The SADC region is home to a large number of poor people; and although poverty in proportionate terms has been declining in most SADC countries, food insecurity, poverty and malnutrition remain major challenges to socioeconomic development.15 Climate change can be considered to be one of the drivers in this regard.
The SADC has embarked on new policy pathways to accommodate climate change more effectively in future. These pathways and recent developments are reflected on as they are not only deemed to become more and more relevant in a changing climate, but at the same time promise to enfold potential and new opportunities for economic and sustainable development for Africa on regional and sub-regional levels.
Despite Africa’s relatively low contribution to the world’s total greenhouse gas (GHG) emissions, it is one of the most vulnerable continents to climate change.16 In the same light, Africa is particularly vulnerable due to a combination of stresses, and especially due to poverty. The complexity of climate change involves a diverse range of institutions and regimes.17 It is expected that climate change will generate a significant impact on national, regional and global economies, and it is also not unlikely that this will result in increased local and international conflict.18
For Africa, climate change continues to prompt significant challenges.19 In this context, the draft decision, the so-called Durban Platform for Enhanced Action by the Conference of the Parties, recognises that –20
… climate change represents an urgent and potentially irreversible threat to human societies and the planet and thus requires to be urgently addressed by all Parties, and acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response …
SADC does not have a specific agenda on climate changeper se , though several of its provisions address climate change either directly or indirectly, and the current institutional structure supports climate change related action to a certain extent.21 Interrelating issues pertaining to climate change include water stress, land degradation, food security, health security and environmentally induced migration, amongst many others. As such, the negative effects of climate change, and thus climate change adaptation and mitigation, must be analysed against the backdrop of SADC environmental law in its entirety.22 Although the number of climate change related programmes and initiatives23 is increasing in SADC, much still needs to be done in SADC when it comes to the implementation and enforcement of policy and law.24
The SADC Treaty as amended by the SADC Amendment Treaty is the constitutive document from which all subsequent instruments are derived. In its preamble, the SADC Treaty determines,inter alia , to ensure, through common action, the progress and well-being of the people of southern Africa, and recognises the need to involve the people of the SADC region centrally in the process of development and integration. Ensuing legal instruments are the SADC protocols25 and legally non-binding instruments such as memoranda of understanding,26 other agreements,27 charters28 and pacts.29 Among others, the SADC’s objectives include the achievement of development and economic growth, the alleviation of poverty, the enhancement of the standard and quality of life, support of the socially disadvantaged through regional integration, the evolution of common political values, systems and institutions, the promotion and defence of peace and security, and the achievement of the sustainable utilisation of natural resources and the effective protection of the environment.30 Food security; land and agriculture and natural resources; and the environment have been identified as areas of cooperation by the SADC Treaty (Article 21.3).
The SADC Protocols are instruments through which the SADC Treaty is implemented. They have the same legal force as the Treaty itself. A protocol legally binds its signatories after ratification.
One climate change relevant instrument is the SADC Protocol on Energy, which outlines ways of cooperation in the development of energy to ensure the security and reliability of energy supply and energy cost reduction. The Protocol emphasises that the development and use of energy are to be environmentally sound.31 To achieve this objective, the Protocol provides for, among other things, cooperation in the development and utilisation of energy in the sub-sectors of wood fuel, petroleum and natural gas, electricity, coal, new and renewable energy sources, and energy efficiency and conservation. The Protocol formulates SADC states’ intention to promote the increased production of new and renewable sources of energy in an economically and socially acceptable manner. On the basis of the SADC Treaty and the Protocol on Energy, the SADC Energy Corporation Policy and Strategy (1996), Energy Action Plan (1997), and the Energy Sector Activity Plan (2000) have been drafted to position the energy sector in such a way that the region can derive maximum benefit from a rationalisation of resources and facilities within it, and to develop initiatives that contribute to building the capacity of the region’s energy institutions so that they can participate effectively in the future liberalisation of the energy sector as well as in the regional economy.32
Energy, which is a crucial policy defining issue, is closely linked to key contemporary global challenges in the SADC region, including social development and poverty alleviation, environmental degradation, climate change, and food security. Energy efficiency plays an important role in sustainable growth and development. Better energy efficiency can produce substantial benefits both for global economic growth and poverty reduction as well as for mitigating climate change. In the household energy consumption sector, improved energy efficiency can directly reduce household expenditure on energy services and, therefore, directly help to reduce poverty. Laws governing sustainable energy development and supply cut across many sectors, including agriculture, electricity, environment, forestry, industry, mining, petroleum and water, and, hence, require coordination – a complex challenge that is not easily overcome. The energy sector and the provision of electricity for southern Africa’s population and industries constitute a complex issue without including the spectre of climate change to the equation. If SADC intends reducing its GHG emissions, a transition to sustainable energy is inevitable. This requires redefining SADC’s competitive advantage from attracting energy intensive sectors on the back of non-renewable energy sources, such as coal, to constructing a new advantage around climate-friendly technology and energy. Something that remains a challenge and needs to be researched more intensely is how emerging regional and national legislation can harmonise and coordinate the work around the myriad issues surrounding sustainable energy. Cross-sectoral coordination and responsibilities need to be streamlined in order to ensure decisions are made to promote future energy security in the region through more effective energy trade mechanisms. In the same context, policymakers and bureaucrats need to be capacitated to translate international policy to national and local levels, and vice versa. Further research needs to emphasise linking national, regional and international policymaking, especially in relation to all emerging climate change related issues, such as the Green Climate Fund.33
SADC states acknowledge that they are members of the World Meteorological Organisation (WMO) and, through their national meteorological services, constitute an integral part of the regional and global system or network of the WMO’s programmes and structures, particularly the World Weather Watch Programme (Article 12.1). Within the WMO’s regional and international cooperative system, states are encouraged to provide adequate legal frameworks and appropriate financial support to national meteorological services to establish an integrated network of observation, data processing and communications systems; and enhance the provision of meteorological services for general and specialised applications in the region and internationally (Article 12.2). This cooperation framework obliges states to, amongst other things:
- strengthen their weather and climate monitoring systems;
- improve public and specialised weather services;
- promote sustainable development with the emphasis on climate change and protection of the environment; and
- strengthen the meteorological research capacity in the region.
The SADC Protocol on Transport, Communications and Meteorology underlines that sustainable development is to be promoted with an emphasis on climate change and protection of the environment. In terms of Article 12.6 (4), these aims are to be achieved by means of:
- strengthening the capabilities of national meteorological centres in climate applications and advice;
- enhancing existing environmental monitoring activities;
- optimising the use of regional structures; and
- fostering an awareness of the contributions which can be made by national meteorological centres to planning sustainable development in agriculture forestry and related areas.
In the forest sector, SADC states have resolved to participate in a process to develop a programme that addresses the common problems of deforestation and degradation in the region, and to formulate joint climate change mitigation measures in order to contribute to the sustainable management of the forests within SADC and, thus, to promote poverty reduction and sustainable development. To this end, SADC ministers responsible for environment and natural resource management approved the SADC Support Programme on Reducing Emission from Deforestation and Forest Degradation (REDD+)34 during the SADC Ministerial Meeting in Windhoek, Namibia, on 26 May 2011. REDD+ supports states in their efforts to combat climate change and achieve their development goals through reduced emissions in the forestry sector. A comprehensive framework for the region to actively participate in and benefit from the carbon market is also provided, in a bid to contribute to member states’ social and economic development. Draft Decision -/CP.17 by COP 17 also produced several agreements that could eventually be helpful in implementing a more comprehensive international solution to climate change in respect of technology transfer, reference standards to be used, and source of funding for REDD+.35
Aside from the sector specific institutions that are established by the various SADC protocols, one important cross-sectoral entity with regard to climate change within the SADC institutional framework is the Food, Agriculture and Natural resources (FANR) Directorate under the umbrella of the SADC Secretariat. Its functions include the coordination and harmonisation of agricultural policies and programmes in the SADC region, in line with priorities in the RISDP. Focus areas of the FANR are agricultural research and development; environment and sustainable development; food security; and natural resources management.
Furthermore, the SADC Climate Services Centre (CSC), which falls under the auspices of the SADC Secretariat in Gaborone, Botswana, has the mandate to contribute to mitigation strategies of adverse impacts of extreme climate variations on socio-economic development.
Among the multiple institutional and financial challenges in SADC, one major weakness within its framework in respect of climate change related issues is the lack of a clear climate change agenda. Although some relevant provisions can be found in various sectoral legal instruments, at this stage, there is no clear road map, such as a consolidated climate change strategy or action plan charting the course on how to deal with climate change. Some important topics related to the effects of climate change, such as environmentally induced migration, are not covered by any SADC Protocol, and SADC institutions seem to be poorly funded and, thus, not as responsive as they need to be.
One further challenge, namely implementation and enforcement is closely related to the lack of financial and human resources. National forest assessments, for example, as encouraged by Article 9 of the Protocol on Forestry, which would be supportive in terms of climate change adaptation and mitigation, are subject to the availability of funds and human resources. This unfortunately makes it rather unlikely that such measures will ever be taken. The non-binding character of legal instruments, other than the SADC Treaty and the protocols, is a further obstacle. With regard to climate change, this is particularly true for the provisions contained in the RISDP and the Declaration on Food Security.
1 See Section 3(2)(a).
2 See Section 3(2)(l).
3 See GRN (2015:17).
5 See GRN (2011b:iii).
7 Zeidleret al. (2014:23).
9 GRN (2002d).
10 GRN (2011a).
11 GRN (2015:5).
12 GRN (2015).
13 See GRN (2015:2); BAU is the abbreviation for Business As Usual.
14 See GRN (2015:4).
15 SADC (2011b:iii).
16 Bokoet al . (2007).
17 Keohane / Victor (2010:9).
18 Scholtz (2010).
19 Ruppel / van Wyk (2011).
20 Cf. http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/cop17_durbanplatform.pdf; accessed 23 December 2011.
21 See Ruppel / Ruppel-Schlichting (2012).
22 See the Chapter 7 in this volume.
23 An overview of sub-regional climate change programmes in Southern Africa can be found in Chishakwe (2010).
24 Also see Ruppel / Ruppel-Schlichting (2012).
25 SADC protocols are legal instruments of implementation of the SADC Treaty and it is required that two-thirds of member states ratify a protocol before it becomes legally binding.
26 A Memorandum of Understanding (MoU) is a preliminary legal document describing an agreement between parties.
27 An agreement is a less formal document dealing with a more specific subject, or narrower range of issues, than a protocol. It is generally used for outlining technical or administrative areas of cooperation. One such example is the Agreement on the Establishment of the Zambezi Watercourse Commission.
28 A charter is a document incorporating an institution and specifying its rights, privileges and responsibilities. It usually includes the set of principles that form the constitution of the organisation.
29 A pact is similar to an agreement, although its contents are usually defence or security related.
30 Article 5 of the SADC Treaty.
31 Article 2.8.
32 SADC (2009).
33 Decision -/CP.17, the so-called Durban Platform for Enhanced Action by the Conference of the Parties, moved the new Green Climate Fund forward as the financial mechanism under the UNFCCC in regard to mitigation and adaptation in developing countries. Several European countries together pledged more than US$50 billion in seed money to establish the Fund. This amount is expected to rise to US$100 billion a year by 2020.
34 Cf.http://www.sadc.int/REDD/index.php/document-bank/documents/; accessed 18 October 2011.
35 Cf. “Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, Draft decision -/CP.17”, available at http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/cop17_durbanplatform.pdf; “Green Climate Fund – Report of the Transitional Committee, Draft decision -CP.17”, available at http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/cop17_gcf.pdf; “Durban decisions”, available athttp://unfccc.int/2860.php/; all accessed 28 December 2011.