Environmental Impact Assessment of Foreign Investment Projects:

A Study in the Law, Policy and Governmental Decision-making in Tanzania*

March 1999
By Tundu Antiphas Lissu**

INTRODUCTION

The concept of Environmental Impact Assessment (EIA) refers to the examination, analysis and assessment of planned activities with a view to ensuring their environmental soundness and sustainable development. It is said to be a valuable means of promoting the integration of environmental and natural resource issues into planning and program implementation (see UNEP, 1987 as discussed by Lissu and Magabe, 1994:18-20). The purpose of incorporating EIA approaches has been described as subjecting a proposed action to an examination of what the possible environmental impacts of that action would be and to find ways to mitigate any negative long term impacts.

EIA may also be a process which brings the proposed action into the public forum and provides an opportunity for comment and feedback (MTNRE, 1994:42). In this sense, and depending on the nature and extent of that participation, EIA processes are seen as mechanisms for public participation and the democratization of decision-making processes in matters of environmental governance and natural resource allocation and use. As such, EIA processes may result in a proposed project being abandoned, but in most cases they result in a better project more in harmony with longterm needs and with little negative environmental impact (MTNRE, loc. cit.)

This brief intends to examine environmental law and policy in Tanzania particularly in respect of foreign investment in Tanzania with a view to showing the manner in which social and environmental considerations have been integrated in the decision-making processes regarding foreign investment and the regulation thereof. The taste of the pudding is, as a saying goes, in the eating and one cannot judge the efficacy of the law without examining what goes on in the world of practice. The brief honours this tradition by examining the practice which has evolved in recent years as regards the EIA processes.

The central argument that is pursued herein is to the effect that in the current climate of economic liberalization and re-regulation of the state, policy pronouncements and legal provisions in respect of environmental protection may in fact count for little. That in an all pervasive neo-liberal, neo-corporate paradigm which is bent on securing and protecting the interests of - largely foreign - investors and the bureaucratic interests of those in the positions of power and influence within the Tanzanian state, the ends of the law may actually be sabotaged or selectively and cynically manipulated to serve other ends.

These are all very important questions given the nature and character of Tanzania's economy, which is basically rural and predicated on the exploitation of natural resources. Foreign investment which is flowing into the country is also based on the exploitation of the finite natural resources such as minerals, wildlife/forestry and coastal and marine resources. Therefore, the nature and character of the regulatory system for this investment has significant impacts not only on the management and ultimate sustainability of the natural resources but also on the livelihood of various rural communities who depend on the natural resource bases for both their physical and cultural survival. It also has significant impacts in the political sphere as economic deregulation in Tanzania also seems to have gone hand in hand with the 'deregulation' of the political morals of public officials and public institutions.

Running through the analysis like a red thread is a realization that issues of environmental management are not just legal or technical issues to be left to the bureaucrats and "experts". They can only be properly understood in the light of the ongoing socio-economic and political processes; and in the current dispensation they must be seen against the background of the deregulation and re-regulation of the state to serve capital and 'the market'. These issues represent the central questions of politics and exercise of state power in the allocation and distribution of resources to various social groups in the country. These points are illustrated in Part Two by examples of foreign investment projects which have gone through EIA processes and were approved for implementation in the country.

ABOUT THE AUTHOR

Tundu Antiphas Lissu graduated with an honours degree in law from the Faculty of Law of the University of Dar es Salaam in 1994. He also holds a degree of Master of Laws with distinction from the School of Law of the University of Warwick in the United Kingdom. As an activist and researcher, Mr. Lissu's work has dealt with issues of environment and natural resource policy and practice and its implications on the rights and livelihoods of rural communities in Africa. He has written on the legal, socio-economic and environmental aspects of the mining industry in Tanzania and the political economy of wildlife and nature conservation in the African rangelands. He was recently nominated as Commissioner of the Africa Jubilee 2000 Movement - a global coalition of activists and NGOs who seek the cancellation of Africa's crippling foreign debt.

LAWYERS' ENVIRONMENTAL ACTION TEAM

The Lawyers' Environmental Action Team is the first public interest environmental law organization in Tanzania. It was established in 1994 and formally registered in 1995 under the Societies Ordinance. Its mission is to ensure sound natural resource management and environmental protection in Tanzania. It is also involved in issues related to the establishment of an enabling policy environment for civil society, including civil liberties and human rights. LEAT carries out policy research, advocacy, and selected public interest litigation. Its membership largely includes lawyers concerned with environmental management and democratic governance in Tanzania.

* This policy brief is partly based on an unpublished research report titled 'The Mad Rush for "Pink Gold": A Socio-Legal Study of the Rufiji Delta Prawn Farming Project, Tanzania', prepared by the author for LEAT and SRDA.

** LLB (Hons.) Dar; LLM (Distinction) Warwick, UK. The author is a LEAT member who specializes on legal and policy issues in natural resource management and their impacts on the rights and livelihoods of rural communities. His other areas of interest are in critical socio-legal studies and the development prob-lems of Southern countries.