Kenya and South Africa have enacted some laws that inculcate economic incentives schemes as key elements of their environmental regulatory terrain. While Kenya has advanced the use of Environmental Performance Deposits (EPDBs), South Africa has adopted the use of the Financial Provisioning Regulations, applied specifically for the upstream mining sector. This article reviews the use of financial assurance schemes in environmental management and their specific application to the upstream mining sectors in the two countries. The data used in the analysis is from literature review, key informant interviews, interview schedules, and focus group discussions. Results indicate that while the use of financial provisioning is a well-established practice in South Africa, in Kenya only one company has deposited funds to the environmental regulator as a security for good environmental practices. A comparative analysis of the regulatory framing for financial assurance instruments in Kenya and South Africa demonstrates some similarities in terms of requirement for public participation, requirement for periodic review of the bonds, use of the bonds for environmental rehabilitation; and some differences such as requirement for use of cash and/or financial instruments, how to treat the accrued interest from the deposited funds, and how the deposit bond amounts are set. Largely, both countries acknowledge the importance of economic incentives in their environmental management frameworks. The article recommends strengthened regional cooperation to enhance the application of financial assurance in the law for effective environmental management in Africa.
The Constitution of Kenya, 2010, envisions a prominent role for alternative dispute resolution, including traditional dispute resolution mechanisms. This is in addition to other legislative frameworks which provide for non-formal methods of dispute resolution. A thesis is made that formal forums such as litigation through courts of law have various disadvantages including complexity, high costs, and technical procedures, delays, amongst others, which make a strong case for the usually convenient and available ADR mechanisms. Put to good use, these mechanisms have potential to spur economic development through enhanced access to justice and the rule of law. The authors, indeed, argue that there is a golden thread that weaves across the themes of rule of law, human rights and access to justice and development.
Beach Management Units (BMUs) in Kenya were established to ensure sustainable utilization and management of the fishery resource. BMUs as co-management institutions were conceptualized after the failed state-controlled fisheries management. Sustainable management by the BMUs has however not been realized, years after the institution’s inception. The study aimed to assess the management of Migingo BMUs; establish the effects of management of BMUs on the implementation of the regulations; and assess the implementation of regulations with regards to fish stocks. The study was done in Migingo Island, Lake Victoria which borders Kenya and Uganda. Data was collected from the BMU committee members and stakeholders at the fish landing site along the island’s shores. This was done through a questionnaire based survey; semi structured interviews from key informants and; focus discussion groups. Results revealed that the three out of seven functions were performed satisfactorily by the Migingo BMU. These were revenue collection, confiscation of illegal gears and arrest of offenders, as depicted by the satisfaction of respondents at 42%, 38%, and 68%, respectively. The other functions - conducting meetings, patrol of the lake, formulation of bylaws and inventory keeping had poor performance. Migingo’s BMU structure was found to be wanting as it lacked the assembly branch. Implementation of regulations by the BMU faced various challenges; lack of support from the government, inadequate funds and equipment and inadequate knowledge to operate its functions. This study shows that BMUs are viable institutions however the poor structure and management of Migingo’s BMU along with the challenges faced in implementing the stipulated regulations led to its ineffectiveness. Capacity building is therefore needed on the BMU’s management and governance at large, provision of relevant skills, equipment and funds and improved support from the government for the BMU to be efficient and effective.
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