This article is the first in a two-part series analyzing environmental, health, and safety (EHS) laws and regulations in Africa. This installment identifies potential causes of recent improvements in the EHS regulatory frameworks in African countries. The second article analyzes recent EHS trends in Africa and predicts future developments.

Recent Changes in EHS Regulations in Africa

Historically, EHS laws and regulations did not exist or were not effectively enforced in African countries. However, within the past two years, several African countries have moved to strengthen their EHS regulatory frameworks. Consider the following changes that have been made since 2010:

• Ghana has implemented an environmental rating and disclosure scheme that indicates how companies are meeting environmental commitments
• The Democratic Republic of the Congo’s National Assembly passed environmental legislation that would create a national agency for environmental protection and require mandatory environmental impact statements for certain activities
• Algeria passed a decree establishing rules and conditions for granting wastewater discharge authorizations
• Morocco reached an agreement that would create an institute to monitor health and safety conditions in workplaces

What’s Driving Regulatory Change in Africa?

Although a number of factors could explain the recent actions taken by African countries to strengthen their EHS regulatory frameworks, the leading causes seem to be related to:

• pressure to modernize EHS regulatory frameworks caused by increased foreign investment
• desire for transparency within African countries
• pressure from governments outside of Africa on companies that operate in Africa

Industries such as energy, information technology, mining, finance, infrastructure, and pharmaceuticals have seen substantial growth in recent years in Africa. Countries such as Ghana, Nigeria, and South Africa have been targeted for investments by foreign countries, with China, Brazil, and India currently investing or planning to invest in a variety of projects. Some of these investments are sizable. For example, on 15 January 2010, it was announced that the Indian government may invest US$ 1.5 trillion on infrastructure development in Nigeria and other parts of Africa.[1] This combination of private and public investment has led to considerable growth in some countries. According to the International Monetary Fund (IMF), countries such as Nigeria, the Democratic Republic of the Congo, and Kenya have experienced an average gross domestic product (GDP) growth of 6 percent to 10 percent in the last decade.[2]

As money flows into Africa from international corporations and foreign governments, more attention is being paid to EHS considerations. Concern for basic human rights, worker health and safety, and potential environmental impacts of increased and expanded industrial operations have resulted in a new desire for operational transparency within Africa. This drive for transparency has also resulted in the need to improve EHS regulatory frameworks.

Foreign Pressure

In addition to the internal pressures caused by investments flowing into Africa, the efforts of non-African countries to increase the transparency of their companies’ operations abroad is a factor driving EHS regulatory change in Africa.

France

For example, French companies have been required since 2002 to include sustainability information for all countries where they operate in an annual report.[3] Information to be provided in the annual sustainability report includes:

• measures taken to ensure compliance with applicable environmental legislation
• measures taken to improve energy efficiency and the use of renewable energy
• conditions of soil, air, and water use, as well as soil discharges having a serious effect on the environment
• measures taken to avoid threats to biological balance, nature, and protected animal and plant species
• investments made to prevent adverse impacts of operations on the environment
• training and other internal environmental management services
• steps taken for environmental evaluation or certification
• environmental communication to workers
• measures for reducing risk and responding to off-site pollution

On 14 March 2011, amendments were proposed that would expand the number of companies that are required to report sustainability information. The current requirement applies only to companies listed on the French stock exchange; the revised code would require companies within a specified tax category having more than 500 employees to comply with the annual sustainable reporting requirements.

United States

In July 2010, United States President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (The Act).[4] The Act requires companies involved in the commercial development of oil, natural gas, or minerals to report annually to the U.S. Securities and Exchange Commission (SEC) information about payments made to the U.S. government and foreign governments for such development. The Act also authorized the SEC to adopt rules requiring any company for whom conflict minerals are necessary to the functionality or production of a manufactured product to disclose annually whether conflict minerals have originated in the Democratic Republic of the Congo or any adjoining country.

On 23 December 2010, the SEC proposed rulemaking that would amend SEC reporting requirements to incorporate the reporting of conflict mineral use as authorized by the Act.[5] Conflict minerals include columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives; or any other mineral or its derivatives determined by the Secretary of State to be financing conflict in the Democratic Republic of the Congo, Angola, Central African Republic, Sudan, Uganda, Rwanda, Burundi, Tanzania, and Zambia. The aforementioned conflict minerals are used in a variety of products including electronics, capacitors, aerospace components, and medical devices.

The proposed rulemaking describes a three-step process to ensure compliance with the reporting of conflict mineral use:

• Determine whether conflict minerals are necessary to the functionality or production of a manufactured product
• Determine whether the conflict minerals originated in the Democratic Republic of the Congo or neighboring countries by making a reasonable country-of-origin inquiry
• Comply with conflict minerals report content and supply chain due diligence requirements. Note that a manufacturer need only comply with this step if it has determined that the necessary conflict minerals originated in the conflict mineral countries

Regulations implementing conflict mineral report requirements are scheduled to be adopted between August and December 2011.

These efforts to increase transparency about operations located beyond domestic borders may continue to be a factor as African countries strengthen their EHS regulatory structures.

Enhesa Webinar

In March 2011, Enhesa presented a webinar titled “EHS On The Rise In Africa: Letting You Know Before It Is Too Late”.[6] The webinar explored recent developments and future trends in EHS requirements in Africa. It attracted participants from South Africa, Nigeria, Kenya, and Egypt. Participants were polled on a variety of subjects and their responses provide insight into the patterns of African investment and future growth. For example,

• 71 percent work for companies that own or operate facilities in Africa
• 73 percent are considering expansion of existing operations or construction of new facilities in Africa
• 67 percent operate businesses that are subject to environmental impact assessments or audits
• 56 percent report information on the EHS compliance of their African operations to their shareholders or government

Participants were also asked to note their companies’ operating locations in Africa. The top ten countries are depicted on the following chart.

Summary

Although EHS regulations in African countries have trailed behind those in the more developed countries for decades, recent events show this situation is changing. Investment money flowing into Africa from multinational companies and foreign governments has led to a wave of development, much of it associated with industries that have large EHS footprints. To better protect their people and the environment, governments throughout Africa are enhancing their EHS regulatory frameworks. This trend has been further supported by non-African governments putting pressure on their companies to report the EHS impacts of business operations in Africa. Taken together, investment and increasing transparency have fueled the trend toward increasing EHS regulations in Africa, a trend that is likely to continue and accelerate.

About the Author

Jonathan Nwagbaraocha, Esq. is an environmental health and safety regulatory consultant with Enhesa, a global EHS regulatory consultancy firm based in Brussels, Belgium. At Enhesa, he focuses on environmental and occupational health and safety laws and regulations in the U.S. and Nigeria. Prior to joining Enhesa, he worked as a family advocate attorney at the Coalition to End Childhood Lead Poisoning where he represented families with lead-poisoned children and assisted in researching and drafting legislation related to unsafe residential and occupational exposure to lead. He holds a B.A. in Environmental Science and Policy from Duke University and a joint J.D. and master’s in public policy from the University of Maryland with a concentration in environmental law and policy. He has been a member of the Maryland Bar since December 2005.

Photographs: Cape Unreal Near Cape Town, South Africa by Nicolas Raymond, Montreal, Canada.

Normafa Jungle by Vince Pataky, Budapest, Hungary.

Other Articles by Jonathan Nwagbaraocha in the EHS Journal

Africa: EHS Trends and Future Developments

Footnotes