by Jennifer Mohamed-Katerere
Abstract
A widely held assumption about environmental management is that its success is dependent upon its relationship to the political process. This is expressed in the emerging but as yet inadequately defined concept of “environmental governance.” A recurring issue, in practice and in the literature, is the value and role of traditional institutions and systems in natural resource management. In particular, the relationships of accountability and representation between such institutional systems and local communities are questioned. This paper examines the relationship between formal and informal norms and institutions as an aspect of governance in environmental decentralization initiatives within Zimbabwe’s communal lands.
It addresses this issue from a legal perspective and in particular a human rights paradigm. It considers both well established human rights and emerging rights with in the new generation of multi-lateral environmental treaties. It is argued that the international legal regime creates a framework for participation and defines fundamental principles for the realization of environmental objectives. These rights must be recognized within national systems if they are to be consistent with emerging international regimes.
The paper explores the nature and status of customary law in Zimbabwe and its interaction with state institutions and formal rule systems. It considers whether the recognition of customary law is fundamental to good governance and, in particular, for creating viable systems for meaningful local level participation. It is demonstrated that the status of customary law, and the level of participation provided for, falls short of developments in international law and seriously undermines environmental governance that is capable of realizing sustainable development objectives.
Jennifer Mohamed-Katerere is a constitutional lawyer specializing in Environmental Law. She is particularly interested in the involvement of local communities in natural resource management. She has done considerable research and policy work in this area, which includes advising a Zimbabwean NGO on using by-laws at district level to promote natural resource use. She is also engaged in law reform and development initiatives, including the development of a Forest Protocol to the Southern African Development Community (SADC) Treaty. She has recently completed editing a book on “Environmental Law in Zimbabwe”. She is a member of the IUCN Commission on Environmental Law.