Title of paper

6. Make a difference

“If we take care of nature, nature will take care of us.”
Everyone can contribute to a change by these actions:

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  Know the rules: It is illegal to recharge refrigerators, freezers and home/vehicle air conditioners with CFCs.
  
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  If you have an older vehicle with an air conditioner, have it serviced by a qualified technician and make sure the CFC is recaptured and recycled by a technician who is specifically certified to do this work. If you don’t use your air conditioner – of if the vehicle is about to be scrapped – make sure a qualified technician recaptures and recycles the CFC.
  
• 
  Don’t buy or use portable fire extinguishers that contain halons.
  
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  Unplug electronics from the wall when not in use.
  
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  Don’t use regular incandescent bulbs, switch to compact fluorescent light bulbs instead.
  
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  Follow the 3R Rule – recycle, reduce, reuse!
  
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  Avoid heavily packaged products.
  
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  Carpool, bike or walk instead of driving alone.
  
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  Plant a tree.
  
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  Buy fresh products at your local farmer’s market.
  
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  Use energy efficient appliances.
  

The Climate Change Legal Regime

By Natalie A Renkhoff

1. Introduction

This paper examines both the Namibian and international climate change legal regimes. While there is a legislative framework in place, the implementation of it is still a mammoth task.
The paper introduces the relevant terminology necessary to follow the discussion on climate change issues. What definitions and terms appear regularly? What do they stand for? The aim of this paper is to familiarize the reader with the legal vocabulary.

2. Namibian climate change law

The topic of climate change is closely linked to the environment. There are different sources of national environmental law that deal with climate change.

The following table gives an overview of the most important:

Constitution - art. 95	Vision 2030
Environmental Management Act (EMA)	National Development Plans (NDP)
	National Policy on Climate Change for Namibia
	Draft Namibia Climate Change Policy, Strategy and Action Plan

A lot more laws deal indirectly with climate change. Sectoral legislation covering the protection of the environment is wide-ranging. These are, among others, the Agricultural Commercial Land Reform Act, the Communal Land Reform Act, the Forest Act, the Nature Conservation Ordinance and the Water Resources Management Act. Moreover, there are regulations such as the Regulations for Strategic Environmental Assessment and Environmental Impact Assessment.

It is often complained that there is not enough legislation in Namibia and that new legislation, with regard to the environment, is necessary. It is indeed true that many important issues concerning the protection of the environment are not covered by existing legislation and we still have not found a definite answer in the existing laws on how to protect the environment against the impacts of climate change. However, it is by no means the case that Namibia has, in comparison to other countries, no environmental legislation in place. Currently, there are more than a hundred statutes, regulations and policies that deal with environmental issues. The big challenge Namibia has to face is the implementation of all these laws together with the lack of knowledge in administrative bodies. Often, laws contradict each other or one and the same issue is regulated by more than one law.

2.1 The legal hierarchy

The legal hierarchy can be easily shown by using a pyramid:

2.1.1 The Constitution

The Namibian Constitution is the ‘mother of all laws’ and is the apex of the pyramid. The adoption of the Constitution on 9 February 1990 came about after a long struggle for independence. Because the constitution is the law above all laws, all legislation ought to be consistent with the provisions of the constitution. It is the foundation for all legislation and policies in Namibia.
The Namibian Constitution contains three environmental clauses that are important with regard to climate change issues:

Article 95 (l)	The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following: maintenance of ecosystems, essential ecological processes and biological diversity in Namibia and utilization of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future; in particular, the Government shall provide measures against the dumping or recycling of foreign nuclear and toxic waste on Namibian territory.
Article 100	Land, water and natural resources below and above the surface of the land and in the continental shelf and within the territorial waters and the exclusive economic zone of Namibia shall belong to the State if they are not otherwise lawfully owned.
Article 91(c)	The functions of the Ombudsman shall be defined and prescribed by an Act of Parliament and shall include the following: the duty to investigate complaints concerning the over-utilization of living natural resources, the irrational exploitation of non-renewable resources, the degradation and destruction of ecosystems and failure to protect the beauty and character of Namibia.

It is often said that Namibia has a very modern constitution due to the fact that the protection of the environment is a constitutional issue. Indeed, the protection of the environment is not mentioned in many constitutions throughout the world. However, the environmental issue is placed in the chapter of principles of state policy and thus as a mere principle which is not enforceable.

2.1.2 Statutory law and regulations

Statutory law is placed second in the legal hierarchy. These are acts of parliament and come, therefore, from the only democratically elected legislative authority. Issues with a great impact on society have to be regulated by Parliament itself, less important issues can be regulated by regulation. The government authority in charge of a regulation is the respective ministry. With regard to climate change, this will usually be the Ministry of Environment and Tourism. Section 56 of the Environmental Management Act states that the minister may make regulations concerning listed activities with regard to the environment.
Not all sources of law are authoritative, which means not all are binding law. Courts are only bound by authoritative sources of law. Anyone violating a right can be taken to court and the judge will apply the infringed statute law or regulation. Besides statutory law and regulations, (former) judgements of the courts are also an authoritative source of law.

2.1.3 Policies

A policy is a deliberate plan of action to guide decisions and achieve rational outcomes. Policies differ from rules or laws. While laws can compel or prohibit behaviours (e.g. a law requiring permits to open a uranium mine), policies merely guide actions to achieve a desired outcome (Ruppel, 2013: 122). It is fair to say that a policy is a declaration of intent. It is a non-binding source of law and no one can be taken to court if he or she is in violation with that which is stated in a policy.
The Vision 2030 and Namibia’s Green Plan are not policies per definition. They can be considered as the ‘development framework’. Within their broad scope, policies address a special topic.

Namibia’s Green Plan is the nation’s common vision with regard to its environmental issues, priorities and future actions.

Vision 2030 provides long-term policy scenarios on the future course of development in the country at different points in time up until the target year 2030. The so-called NDPs – National Development Plans – are based on Vision 2030. The sequential five-year National Development Plans are the main vehicle for achieving the long-term objectives laid down in Vision 2030.
The foundation for the Namibian environmental policy framework is Article 95 (l) of the Constitution. Environmental policy determines the objectives guiding, and the strategies to be used in order to strengthen the respect for environmental values, taking into account the existing social, cultural and economic situation (Ruppel, 2013: 122).