Mozambique: Environmental Law Context Report

JUDICIAL ENVIRONMENTAL LAW TRAINING

AUGUST 2019

 

Country Context Report

Mozambique

 

A series of extracts and resources compiled by Lois Chisompola, postgraduate student at the University of Cape Town, South Africa, with supervision from Amy Sinclair, Managing Editor of the African Legal Information Institute (AfricanLII).

19 August 2019

Contents

1       Sources of environmental law in Mozambique.. 1

A      Domestic constitution and legislation.. 1

B       Domestic executive decision-making.. 4

2       Environmental law topics in Mozambique.. 5

A      Energy, minerals and extractives. 5

B       Coastal, marine and fisheries. 6

C       Agriculture, plants and forestry. 8

D      Climate change, natural disasters and air quality. 10

E       Wildlife.. 11

F       Protected areas. 11

G      African customary law and rights of indigenous peoples. 12

1       Sources of environmental law in Mozambique

A       Domestic constitution and legislation

This is a non-exhaustive list of the most important legislation affecting environmental law issues in Mozambique.

Legislation title, short description and URL

Land Law Act of 1997(Law No. 19/97)

The Act is intended to promote the use and improvement of land, so that this resource, the most important that the nation makes available, may be valued and may contribute to the development of the national economy.


Environmental Law Act No. 20/97 Environment Act.

This Act establishes protective requirements to be satisfied in order to exploit the environmental sector and impact assessment conditions in order to avoid environmental disasters. It discusses the general principles of environmental management, which should be based on rational use and management, enhancement of local knowledge, awareness, integrated vision of the environment, participation wide, equal access, accountability and national and international cooperation I 


 

The Forestry and Wildlife Act (Law No.10/99)

The Act covers the Protection of forest and wildlife resources; sustainable forest resources; sustainable wildlife conservation regimes; forest and wildlife resources restocking; management of forest and wildlife resources. 


Conservation Law (Law No. 16/2014)

The Act establishes the basic principles and rules on the protection, conservation and sustainable use of biological diversity within conservation areas.


Law of fisheries (Law No. 3/90 was repealed by Law No.22 of 2013)

The Act aims at establishing the legal regime for all fishing activities and all complementary related activities performed by National or foreign fishing vessels operating in waters under Mozambican jurisdiction in order to implement measures on protection, management and sustainable use of the National biological aquatic resources

Decree No. 45/2006 approving the Regulation for the prevention of marine pollution.

This decree demand full compensation for all forms of pollution caused by ships and platforms.

https://www.ecolex.org/details/legislation/act-no-2097-approving-the-environment-act-lex-faoc015370/

Decree No. 24/2008 approving the Regulation on the management of substances damaging the ozone layer.

https://www.ecolex.org/details/legislation/act-no-2097-approving-the-environment-act-lex-faoc015370/

Decree No. 6/2009 approving the Regulation on Pesticides Management.

https://www.ecolex.org/details/legislation/act-no-2097-approving-the-environment-act-lex-faoc015370/


Environmental Impact Assessment Regulation (Decree 45/2004)

This decree that regulates the environmental licensing in Mozambique. It requires that all large-scale projects as well as all activities carried out in the protected areas (Category A projects, contained in Annex I) are subject to a detailed Environmental and Social Impact Study (ESIA).


General Regulation on Maritime Fishery Activities (Decree 43/2003)

The regulation includes some guiding elements for the conservation of biodiversity, and in particular Article 8 refers to the importance of direct and indirect management measures, Article 9 limits the fishing effort, and Article 10 limits the volume of catches.

B       Domestic executive decision-making

1.   Ministry for the Coordination of Environmental Affairs[1]

·    Center for Sustainable Development - Coastal Zones

·    National Directorate for Environmental Impact Assessment

·    Center for Sustainable Development – Natural Resources

2.   Ministry of Agriculture

·    National Directorate of Lands and Forests

3.   Ministry of Tourism

·    National Directorate of Conservation Areas For Tourism

·    National Directorate of Conservation Areas (DINAC)

4.   Ministry of Fisheries

·    National Directorate of Fisheries Administration

·    Department of Aquaculture

5.   Ministry of Mineral Resources

·    Inspector-General of Mineral Resources

·    National Institute of Petroleum

6.   Ministry of Public Works and Habitation

·    National Directorate of Water

7.   Ministry of Science and Technology

·    National Directorate of Research, Innovation and Technological Development (DIIDT)

8.   Ministry of Finance

·    National Directorate of Budget

9.   Ministry of Foreign Affairs and Cooperation

·    Affairs Directorate of the SADC

10. Ministry of Industry and Trade

·    National Institute of Standards and Quality

11. Ministry of Plan and Development

·    National Directorate of Planning

12. Ministry of Education and Culture

·    National Directorate of Culture (DINAC)

13. Ministry of Health

·    National Directorate of Public Health (DNSP)

2       Environmental law topics in Mozambique

A       Energy, minerals and extractives

Mozambique has significant deposits of gas, titanium, aluminum, coal and diamonds. The civil war prevented the development of the minerals sector, but this has changed since 2000. Historically, most mining has been done by small-scale and artisanal miners, who continue to operate without effective environmental and health safeguards. Although not directly considered a resource provided by biodiversity, mineral extraction is considered one of the main threats to local biodiversity because it leads to the removal of large areas of natural ecosystems, and to high levels of pollution. Artisanal mining (e.g gold mining in Manica and Sofala) is certainly one of the activities that most endangers biodiversity, in that it is performed using unsustainable practices such as the use of mercury, deforestation and lack of rehabilitation plans.[2] The Fifth National Report identifies non-planned expansion of the extractive industry, determining unsustainable patterns of resource consumption and use as an indirect threat to biodiversity in Mozambique.

Several very large investments in coal and natural gas have transformed the sector, along with 2014 revisions to the Mining Law intended to protect small operators while also creating the conditions for large-scale enterprises. A notable feature of the legislation is that it effectively overrules local land rights through what is essentially a ‘national interest’ approach. The government has invested in major public infrastructure to facilitate the growth of the mining sector, although the economic crisis has impacted plans to consolidate this investment.[3] Mozambique has a large artisanal and small-scale mining sector. The formal law supports the sector by restricting activities to nationals, designating specific areas for artisanal and small-scale mining, and imposing regulations on working conditions. However, at least in some areas, the regulations are not enforced, and the majority of the sector (as much as 70 percent in central Mozambique) operates informally. The new Mining Law does not provide a strong focus on environmental protection, whilst stating that mining activities should consider, among others, the conservation of biodiversity. The act refers to environmental issues inherent to mining, but not explicitly in relation to biodiversity.[4]

Absent government control, artisanal miners are subjected to exploitative working conditions, including health hazards from the use of mercury to extract gold from mineral ore. In addition, soil and water sources are polluted with heavy metal and chemicals used for processing. Technicians working for entities that buy gold from artisanal miners are also exposed to levels of mercury vapor up to 35 times higher than WHO guidelines. Artisanal mining for gold and precious stones has also been done under precarious security conditions and several fatal accidents caused by collapse of ill-prepared underground tunnels have been reported.[5]In addition to the current projects, the African Development Bank is in the process of preparing a Domestic Resource Mobilization and a Geological and Mineral Study for Mozambique.[6]

United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016.[7]

B       Coastal, marine and fisheries

Recognizing the value of biodiversity, Mozambique has focused on conservation measures, especially in-situ, which is demonstrated by the fact that 26% of the country is covered by Conservation Areas (CAs), being 13 inland and 2 marine.[8]The fisheries sector in Mozambique is an important source of animal protein and employment. Total marine products are estimated at between 100 000 to 120 000 tonnes per year and consumption is estimated at 7.5 kg per capita. The fisheries industries provide direct employment for around 90 000 people, excluding those involved in trading and processing. The current Marine Fisheries Regulation (REPMAR) was adopted in December, 2003 and is based upon modern management concepts and established the use of co-management in fisheries management, the obligatory use of devices to protect endangered species (TEDs) and to reduce the bycatch, and, for first time, the possibility to create artificial reefs. [9]In terms of regulations, Mozambique has an appropriate system but does not have enough enforcement and capacity to control this regulation.[10] Although the country has in its fisheries Plan of Action (1996) implemented some global initiatives such as vessel monitoring system (VSM), monitoring and control of fishing activities (MCS), and devices to protect endangered species (TEDs), implementation capacity remains questionable, principally in terms of specialized human resources.[11] The Fifth National Report identifies factors such as by-catch by trawls and other rudimentary methods of marine mammals as well as the capture of sea turtles to serve as food, crafts and jewelry, and destruction of their nesting habitats due to the movement of vehicles on the beaches, as a direct threat to biodiversity. The overexploitation of marine species is also a serious problem, mainly due to the illegal fishing for international trade, with negative impacts on their populations.[12]

The Artisanal Fisheries Strategic Plan 2012 includes the principle of the necessity of the strengthening of the existing good practices of the traditional fishing and of the marine conservation areas and the co-management with the communities. On the other hand, the Strategic Plan for Tuna Fishing, 2013 contains the principle of the obligatory observance of the agreements ratified by the country with regard to scrupulous compliance of the measures to protect the species.[13]

Mozambique’s main interest under the SADC Protocol on Transboundary Water Resources is ensuring equitable access and cooperative management of resources (as a downstream nation it has the greatest interest of all SADC countries in this), mobilising support for water management and development as well Limpopo, Save, Pungue, Zambezi, Rovuma as disaster management and developing hydropower for export. Mozambique seeks to exploit its substantial water-related potential to promote development. It is also vulnerable to extreme climate events (primarily tropical cyclones – in 1984 and 2000, Maputo had its water supplies cut off due to flooding) so it seeks to ensure that its infrastructure can deal with extreme floods as well as droughts. With regards to the SADC water agenda, Mozambique is very active in promoting its complex sets of interests at the regional level - this involves trying to influence discussions as a downstream riparian subject to significant flood risks. Mozambique is also part of LIMCOM the Limpopo Watercourse Commission and is engaged in intergovernmental arrangements on joint technical data sharing and modelling of catchment for disaster management purpose.

The National Assistance Strategy for Water Resources in Mozambique (2007), has as one of its strategic objectives to contribute to productive and sustainable use of natural resources and biodiversity. In this sense, the strategy prioritizes the assessment and monitoring of biodiversity loss and degradation of the environment in order to protect, rehabilitate and manage the ecosystems; the development of collection, characterization, conservation and use of germplasm to support the effort of the improvement of the propagating materials and of the biodiversity; the development of the knowledge of management of sustainable use of natural resources; the development of knowledge of the biodiversity products and their economic and sustainable use as well as to increase the potential use of timber and non-timber species by the development of agro-industrial processing technologies.

Paula S. Alfonso, Institute of Fisheries Research: County Review, Mozambique, September 2009[14] and Sean Woolfy and Mike Muller, Understanding The SADC Water Agenda, Managing Or Developing Regional Water Resources.[15]

C       Agriculture, plants and forestry

About a half of the land area in Mozambique is forest area, and the country’s legal framework supports traditional uses of forest and forest resources, the harvesting of timber and non-timber forest products, and the creation of community-based forest enterprises. However, the regulatory framework tends to favor big national and international companies over small and medium businesses. Poor rural populations have strong incentives to work with illegal operators who are looking to extract high value lumber at minimum cost, resulting in a rate of deforestation that has reached alarming levels in many areas.[16]

In 2012 the government issued a decree with tighter requirements for timber exploration and a national audit was ordered. In 2013 it rejected a proposal for a complete moratorium, but in 2015 the issuing of licenses for logging was suspended. Log exports were also suspended. A special closed season for particularly endangered species, such as the Swartzia madagascariensis (locally know as pau-ferro) was enacted. In December of the same year Mozambique’s parliament passed new legislation, in the form of amendments to the Conservation Law of 2014, banning exports of unprocessed timber logs and levying an export tax on unfinished or semi-processed timber products.

Mozambique has more than 70% of its territory covered by forest ecosystems, of which about 50% is productive forests for wood production[17]. The timber production was estimated in 2014 at 150.000 m3, representing an increase in 50,000 in relation to 2013.[18]  The Agency for Environmental Research indicates that 93% of the volume from illegal logging is done unsustainably. The agency refers that if the current logging levels continue, the commercial stock will disappear in the next 15 years.[19]  Human subsistence activities, such as land opening to agriculture, most often associated with fires, charcoal production and artisanal fisheries can be considered as the main causes of the direct loss and degradation of natural ecosystems. Agricultural practices currently used by most of the Mozambican population are rudimentary, and therefore unsustainable.[20] According to Marzoli, the annual rate of deforestation in Mozambique is estimated at around 219,000 hectares per year, corresponding to a 0.58% rate of change for the country, which means that the country loses between 45,000 to 120,000 ha of forest/year[21]. Thus, the natural forest cover area reduced in the last few years is estimated at about 40 million hectares.[22] The Fifth National Report on Biological Diversity in Mozambique examines, in detail, the over-exploitation of certain forest species.

United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016[23] and Secretariat of the United Nations Convention on Biological Diversity Country Profile, 2019.[24]

D       Climate change, natural disasters and air quality

The Fifth National Report on Biodiversity notes that climate change is of concern as it may lead to an increased vulnerability of certain ecosystems (for example by enhancing the magnitude and the frequency of extreme events as draughts, floods and cyclones or other events like wildfires or coastal erosion) leading to the loss of biodiversity and some habitat areas if effective measures are not undertaken. One important aspect identified is the need to engage the private sector in climate change mitigation, especially related to green / clean technology and investments in the national climate change adaptation and resilience building strategy, especially given the current expansion of investments in oil, natural gas and coal extraction.[25] The Fifth National Report on Biological Diversity in Mozambique identifies climate change as one of the main direct threats to biodiversity in Mozambique. According to the National Strategy and Action Plant for biodiversity in Mozambique, pollution and contamination of natural habitats or species in Mozambique are still unknown, although four types of pollution are formally recognized: (i) atmospheric; (ii) edaphic; (iii) aquatic; and (iv) marine. Further, Costa and Soto state that the estimates of the costs of water and air pollution represent about 260 million USD per year (or 70% of the total cost of pollution in Mozambique), representing a strong impact on depreciation of human capital in the country, in addition to the direct implications for biological diversity.[26] The country also intends to integrate gender and climate change issues in the NBSAP revision, and its national biodiversity targets into local development plans.

Ministry for Coordination of Environmental Affairs, Fifth National Report on the Implementation of Convention on Biological Diversity in Mozambique, 2014.[27]

E        Wildlife

The Fifth National Report on Biological Diversity in Mozambique states that poaching mainly for rhino and elephant, to acquire trophies of international importance, has led to a reduction in the populations of these species, and is currently one of the national priorities. In 2010, the Government approved the National Strategy and Action Plan for the Management of the Elephant, in order to improve the conservation of this species in the country.  Further, demand for wet areas for the practice of agriculture results in immediate ecological alteration of ecosystems, which undermines the species that depend on them for their existence. Particular focus is given to species of migratory birds that depend on wetlands, but also species of plants and animals dependent on these habitats.

Ministry for Coordination of Environmental Affairs, Fifth National Report on the Implementation of Convention on Biological Diversity in Mozambique, 2014.[28]

F        Protected areas

Recognizing the national and global value of biodiversity in Mozambique, the government has focused mainly on in-situ conservation strategies. Therefore, for the past five years the national network of conservation areas (CAs) increased substantially to include the ecosystems that were not previously represented, now representing about 26% of the country's surface. In this context, the only protected water area of freshwater was created, the Partial Reserve of Lake Niassa. Marine protected areas were also expanded with the creation of the Environmental Protection Area of the Primeiras and Segundas Islands and the Partial Marine Reserve Maputo - Ponta do Ouro. Some marine sanctuaries were also declared. In relation to terrestrial areas, the Mágoè National Park was established as well as several game reserves. In terms of representativeness, the terrestrial, aquatic and marine ecosystems are adequately represented in the CA system, and most of the wealth of hotspots and species endemism is within this network.[29]Cooperative efforts between bordering countries have led to the creation of new Transfrontier Conservation Areas (Libombos, Great Limpopo and Chimanimani), and two other Transfrontier Conservation Areas (Rovuma - Mozambique/Tanzania and Zimoza - Mozambique/Zimbabwe/Zambia) are proposed. Notably, Mozambique and South Africa have also recently designated Ponta do Ouro a marine conservation area, making it Africa’s largest marine protected area.[30]

United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016[31]

G       African customary law and rights of indigenous peoples

There is no private ownership of land in Mozambique. Land and its associated resources are the property of the State. The Land Law, however, grants private persons the right to use and benefit from the land known as Direito do Uso e Aproveitamento da Terra (DUAT). Although the land itself cannot be sold, mortgaged or alienated in any way, buildings, infrastructure and improvements built on land may be mortgaged and sold[32]. In April 2015, the Government of Mozambique launched a large-scale program – Terra Segura – to secure land rights and issue DUATs to five million individuals and four thousand communities by 2019.[33] The Fifth National Report on Biodiversity indicates that battle against wildfires is still not effective in Mozambique, soliciting finding ways to control and seize offenders who commit infractions. These should include a greater empowerment of traditional authorities, so that they have the ability to apply the existing customary rules of prevention and control.

United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016[34]


[2] Ministry for Coordination of Environmental Affairs, Mozambique National Biodiversity Strategy and Action (2015-2035)  January 2014 available at https://nbsapforum.net/knowledge-base/peer-review/mozambique-national-biodiversity-strategy-and-action-plan accessed on 3 August 2019.

[3] United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016 available at https://www.land-links.org/wp-content/uploads/2011/02/USAID-Land-Tenure-Mozambique-Profile-FINAL.pdf accessed on 3 August 2019.

[4] Ministry for Coordination of Environmental Affairs, Mozambique National Biodiversity Strategy and Action (2015-2035)  January 2014 available at https://nbsapforum.net/knowledge-base/peer-review/mozambique-national-biodiversity-strategy-and-action-plan accessed on 3 August 2019.

[5] United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016 available  https://www.land-links.org/wp-content/uploads/2011/02/USAID-Land-Tenure-... accessed on 3 August 2019.

[6] African Development Bank Group, Mozambique Economic Outlook available at https://www.afdb.org/en/countries/southern-africa/mozambique/mozambique-and-afdb accessed on 1 August 2019.

[8] Ministry for Coordination of Environmental Affairs, Mozambique National Biodiversity Strategy and Action (2015-2035)  January 2014 available at https://nbsapforum.net/knowledge-base/peer-review/mozambique-national-biodiversity-strategy-and-action-plan accessed on 3 August 2019.

[9] Castiano, M. 2004. O regime Juridico da Pescaria de Camarão em Moçambique. (internal report). Ministério das Pescas. Maputo cited by Paula S. Afonso Institute for Fisheries research, Country Review: Mozambique,September 2009 available http://www.fao.org/3/a0477e/a0477e10.htm accessed on 1 August 2019.

[10] Massinga, A. & Hatton, J. 1996. Status of the Coastal Zone of Mozambique. Pp. 7-68, in Integrated Coastal zone Management in Mozambique. World Bank cited by Paula S. Afonso Institute for Fisheries research, Country Review: Mozambique, September 2009 available http://www.fao.org/3/a0477e/a0477e10.htm accessed on 1 August 2019.

[11] Paula S. Afonso Institute for Fisheries research, Country Review: Mozambique, September 2009 available http://www.fao.org/3/a0477e/a0477e10.htm accessed on 1 August 2019.

[12] Ministry for Coordination of Environmental Affairs, Fifth National Report on the Implementation of Convention on Biological Diversity in Mozambique, 2014 available at https://www.cbd.int/doc/world/mz/mz-nr-05-en.pdf accessed on 1 August 2019.

[13] Ibid.

[14] Available at http://www.fao.org/3/a0477e/a0477e10.htm accessed on 1 August 2019

[16] United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016 available  https://www.land-links.org/wp-content/uploads/2011/02/USAID-Land-Tenure-... accessed on 3 August 2019

[17] Marzoli, A. 2007. Relatório do Inventário Florestal Nacional. Direcção Nacional de Terras e Florestas. Ministério da Agricultura. Maputo, Moçambique cited by Paula S. Afonso Institute for Fisheries research, Country Review: Mozambique,September 2009 available http://www.fao.org/3/a0477e/a0477e10.htm accessed on 1 August 2019.

[18]Ibid.

[19]Ministry for Coordination of Environmental Affairs, Mozambique National Biodiversity Strategy and Action (2015-2035)  January 2014 available at https://nbsapforum.net/knowledge-base/peer-review/mozambique-national-biodiversity-strategy-and-action-plan accessed on 3 August 2019.

[20] Ibid.

[21] Ibid.

[22] Sitoe, A.; Salomão, A.; Werte-Kanounnikoff. 2012. O contexto de REDD+ em Moçambique: Causas, actores e instituições. Universidade Eduardo Mondlane, Centro Terra Viva, Center for International Forestry Research (CIFOR) (Publicação ocasional 76) cited by cited by Paula S. Afonso Institute for Fisheries research, Country Review: Mozambique,September 2009 available http://www.fao.org/3/a0477e/a0477e10.htm accessed on 1 August 2019.

[25] Heila Lotz-Sisitka and Penny Urquhart, Southern African Regional Universities Association (SARUA) Climate Change Counts mapping study 2014 available at https://www.sarua.org/files/SARUA-Vol2No5%20Mozambique-Country-Report.pdf accessed on 1 August 2019.

[26] Costa, D.; Soto, B. 2012. Meio Ambiente em Moçambique: Notas para reflexão sobre a situação actual e os desafios para o future cited by Paula S. Afonso Institute for Fisheries research, Country Review: Mozambique,September 2009 available http://www.fao.org/3/a0477e/a0477e10.htm accessed on 1 August 2019.

[27] Available at https://www.cbd.int/doc/world/mz/mz-nr-05-en.pdf accessed on 1 August 2019.

[28] Ibid.

[29] Alves, T e Sousa, C. 2009. Avaliação dos Ecossistemas Montanhosos em Moçambique. IIAM cited by Paula S. Afonso Institute for Fisheries research, Country Review: Mozambique,September 2009 available at http://www.fao.org/3/a0477e/a0477e10.htm accessed on 1 August 2019.

[30]The Secretariat, the United Nations Convention on Biological Diversity Country Profile, 2019 available at https://www.cbd.int/countries/profile/default.shtml?country=mz accessed on 1 August 2019.

[32] Zaida Kathrada, Acquiring Land Rights in Mozambique 26 August 2014 available at https://www.financialinstitutionslegalsnapshot.com/2014/08/acquiring-land-rights-in-mozambique/ accessed on 1 August 2019.

[33] United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016 available at https://www.land-links.org/wp-content/uploads/2011/02/USAID-Land-Tenure-Mozambique-Profile-FINAL.pdf accessed on 3 August 2019.