DISASTER RISK MANAGEMENT LAW AND POLICY
Mary Picard and Ewan Powrie
Disaster risk management (DRM) is a field of law and governance that intersects with environmental management in many ways, including managing the effects of climate change. DRM refers to systematic efforts to prevent or modify hazards where possible, and to reduce the risk that unpreventable hazards will become disasters for the people affected by them. Such hazards may be natural, human-made or mixed, including: floods, droughts, storms, wild fires, earthquakes, volcanic eruptions, crop infestations, environmental pollution, building collapse, deforestation and soil erosion.
The underlying premise of DRM is that hazards do not necessarily cause disasters if the risk is recognised and acted upon in advance, or if, when necessary, an emergency response to a hazardous event is rapid and effective so that lives and property are saved. Thus, there is a distinction made between a phenomenon that could potentially cause death, injury, displacement, loss of assets and livelihoods, and the way in which the risk of it, or the hazard itself, can be managed to ensure it does not cause a disaster for the affected population. The preventive aspects of DRM are also often described as disaster risk reduction (DRR) or ‘risk governance’ as a way of highlighting the difference between emergency response to hazardous phenomena, and the management of disaster risk. The term ‘disaster resilience’ is also used to describe the capacity of societies and communities to prevent, respond to, and bounce back from disastrous shocks.1
DRM activities cover a wide spectrum, including risk reduction, prevention, mitigation, preparedness, early warning, emergency response and reconstruction. These may take the form of social interventions, such as education and training, or physical structures such as riverside levies, or legal regulation, such as the enforcement of appropriate land zoning or safety standards in constructing new developments. DRM activities are aimed at reducing people’s exposure, removing or modifying hazards, or responding to and recovering from hazardous events when they occur; that is, managing the risk of disaster. Many aspects of DRM lie outside the realm of law and regulation, but legislation and policy is often central to establishing governmental priorities, accountabilities, specialist institutions, and resource allocation for DRM. Legislation also has a wider role in risk governance through sectoral laws that impact underlying risk, such as whether the population is more exposed to hazards through the location and planning of new settlements.
DRM as a specific form of legal regulation is primarily found in domestic law. Within countries, the main laws commonly recognised as relating to DRM are those that establish priorities, processes and institutions to prevent, manage and respond to disasters caused by natural phenomena or other hazards. Namibia’s Disaster Risk Management Act No. 10 of 2012 is an example of such a national law. However, the concept of DRM law in its broadest sense includes a number of sectors concerned with development planning. It includes building codes, land use and physical planning and general environmental management laws, because these are often the key to preventing people’s exposure to hazards, as well as social welfare laws that reduce people’s vulnerability. Too often, risk of disaster is increased through development, when either approved or informal settlements are established on high-risk land such as flood plains and beaches, unstable hillsides or contaminated sites, or when buildings are not constructed according to safe engineering standards for local risks. Laws on management of natural resources, such as water and forestry, are also central to such risk governance, as they have a role in environmental management and defining priorities for the competing uses of these resources, including questions of sustainability in the face of predicted climate change.
DRM is also part of international and regional frameworks, primarily in the form of soft law agreements,2 standards and guidelines, but some aspects of DRM are also incidentally included in binding international or regional instruments that have other primary purposes.
Part 2 of this chapter outlines the main international frameworks relevant to DRM, followed by a discussion of regional instruments from the African Union (AU) in Part 3, and the Southern African Development Community (SADC) in Part 4. It then focuses in Part 5 on the specific DRM regime in place in Namibia, both in terms of Namibia’s Disaster Risk Management Act 2012 (DRMA) and key sectoral laws.
2 International Frameworks
There is no binding international treaty regulating DRM, nor yet any clear rules of customary law specific to DRM, except to the extent that it overlaps with international environmental law concerning transboundary hazards or is included in international or regional instruments that have other primary objectives, including both human rights and customs treaties. In disasters caused by armed conflict, or in complex emergencies that include armed conflict, international humanitarian law also applies. However, as this is a substantive field of law in its own right, situations of armed conflict and the rules applicable to them are not discussed in this volume.
Although non-binding, the risk reduction aspect of DRM has been the subject of international soft law strategies and agreements since 1994,3 while the international assistance aspect of DRM has been served by state-approved guidelines since 2007, and could yet be the subject of a specific treaty in the future.4
2.1 International Response to Disasters
A range of international law rules and norms are of tangential relevance to international disaster response, including agreements on telecommunications, health, privileges and immunities, transport and weapons control, in addition to environmental law, noted above.5
However, one of the most recognised barriers to the entry of international assistance during disasters, is customs regulation. Customs procedures designed for regulatory compliance and taxation of goods entering a country are generally not well suited to humanitarian assistance in emergency situations, and have often delayed essential relief goods.6 Accordingly, the World Customs Organization (WCO) has included in the Revised International Convention on the Simplification and Harmonization of Customs Procedures (“Revised Kyoto Convention”), a set of binding rules on expedited management of relief consignments.7
A wider range of legal and policy aspects of international disaster response is also the subject of the non-binding 2007 Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (also known as the “IDRL Guidelines”).8 These have been recognised by the United Nations as a normative framework of domestic legal preparedness for states to facilitate and coordinate international assistance during major disasters.9 They include early warning and domestic institutional preparedness, the process of calling for international assistance and coordination of international actors, expedited customs and immigration procedures, as well the legal capacity for humanitarian organisations to operate within the country during a disaster. The guidelines are now supported by additional tools, including a model law, which a number of states have used while developing new DRM laws and policies.10
2.2 Disaster Risk Reduction
2.2.1 Hyogo Framework for Action
The most comprehensive international DRM agreement, both for its breadth of content and level of state participation, has been a non-binding agreement, the Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters (HFA).11 The HFA was adopted by 168 UN member states in January 2005, at the World Conference on Disaster Reduction, held in Kobe, Japan. It built upon the 1994 Yokohama Strategy.12 Under HFA states took a range of measures to support the reduction of disaster losses. It has now been replaced by a successor agreement, the Sendai Framework for Disaster Risk Reduction 2015-2030, adopted at the World Conference on Disaster Risk Reduction (WCDRR) in Sendai, Japan, in March 2015.13 Although agreed at an international level, and including commitments to international cooperation, these frameworks are primarily focused on action by states within their own territories to reduce the risk of disaster.
The HFA’s three strategic goals were to support the reduction of disaster losses through the integration of disaster risk into development planning, the development and strengthening of institutions, mechanisms and capacities for building resilience, and the incorporation of DRR into emergency management and recovery programmes. Of its five priority areas for action the first priority, to make DRR “a national and a local priority with a strong institutional basis for implementation”, was the most relevant to law and regulation.
During the term of the HFA, a significant amount of new legislation was adopted in countries around the world aimed at strengthening the focus on risk reduction, but significant gaps remained.14 For most countries, reform of law and policy to support DRR has occurred over a number of years. Many are still engaged in this process, and some countries – especially in Africa – have only recently begun to establish specific DRM laws and institutions to manage the risk of multiple hazards. The DRMA has undoubtedly been influenced by the HFA, as well as national factors such as recurring drought and the 2009 floods. However, during the HFA implementation process, in general less attention was given to the other legal frameworks that would also help to reduce underlying risk, such as development planning and environmental management laws.15
Extensive reviews and consultations during the HFA’s term saw a general consensus emerge that there should be a successor agreement, that should largely continue the work of the HFA, rather than taking a radically different approach.16 The final assessment report in 2015 also highlighted evidence that sustainable development cannot actually be achieved unless disaster risk is reduced, that climate change will increase expected future losses, and that these losses will not be evenly spread, as there is evidence of growing ‘risk inequality’.17 It highlighted that DRR still needs to be better understood, that there is a need to think about managing risks rather than managing disasters, and that risk is currently being under-priced in decisions about development investment, meaning that new risks are being created faster than countries can keep up with them.
2.2.2 Sendai Framework for Disaster Risk Reduction 2015-2030
In March 2015, the HFA was replaced by the Sendai Framework for Disaster Risk Reduction 2015-2030 (“the Sendai Framework”), at the Third United Nations World Conference on Disaster Risk Reduction, held in Sendai, Miyagi, Japan.
The Sendai Framework is more clearly aligned with international development goals, recognising disaster risk as a major threat to sustainable development. Its principal goal is to:
Prevent new and reduce existing disaster risk through the implementation of integrated and inclusive economic, structural, legal, social, health, cultural, educational, environmental, technological, political and institutional measures that prevent and reduce hazard exposure and vulnerability to disaster, increase preparedness for response and recovery, and thus strengthen resilience.18
However, it then recognises that this will require enhanced implementation capacity in the least developed countries, and more generally in African countries.
The Sendai Framework lists broad global targets to substantially reduce the impact of disaster mortality, the number of people affected, economic losses, and damage to critical infrastructure. Other targets are to increase the number of countries with DRR strategies, to enhance international cooperation and to increase the availability of early warnings and risk information.19 These provide guidance for the type of targets and monitoring state signatories should establish at national level, rather than a set of measurable targets at the global level.
The Sendai Framework establishes four priority areas for “focused action within and across sectors by States at local, national, regional and global levels.” 20 These are:
Law and regulation is central to both Priority 2 and Priority 4. However, while the fourth priority relates more to the traditional understanding of DRM law, guidance on the second priority focuses on the need to “mainstream and integrate disaster risk reduction within and across all sectors”, entailing a review of the coherence of “national and local frameworks of laws, regulations and public policies…”22 Part of this effort is also to establish mechanisms and encourage compliance with existing safety provisions in sectoral laws and regulations, including those related to “land use and urban planning, building codes, environmental and resource management and health and safety standards”, as well as updating these codes and laws.23 This aspect is particularly relevant to Namibia, as discussed below, where for example building regulations are reportedly well enforced in Windhoek, but less so in other urban settings.
2.3 State DRM Obligations under Human Rights Law
Binding international treaties of relevance to DRM include the key human rights instruments, particularly those on race and sex discrimination, civil and political rights, economic, social and cultural rights, refugees, and the rights of children and people with disabilities.24 Namibia has acceded to all of the key human rights treaties, and they are thus part of Namibian law in accordance with the Constitution.25 These treaties and customary international human rights law are especially relevant to states’ duties to protect people’s lives and health, livelihoods and assets, based on need and without unlawful discrimination on the grounds of status such as gender, ethnicity, age or disability. The state’s human rights obligation to protect encompasses positive obligations to prevent, as well as respond to, disasters in their territory within the resources and capacity available to them.26
So far, the treaty bodies associated with the international human rights treaties have not considered cases involving claims of injury from disasters. However, a line of case law from the European Court of Human Rights (ECtHR) since 2004 – considering similar provisions in the European Convention on Human Rights – may indicate the likely direction such decisions could take in either international or other regional human rights tribunals.27 These are of relevance because the African Human and Peoples’ Rights Commission (and Court) have tended to take a universalist approach to the interpretation of human rights treaties, frequently citing UN treaty bodies and also ECtHR decisions.28
The ECtHR has clearly held that deaths and property destruction caused by a human made hazard controlled by Government authorities occurred in violation of the European Human Rights Convention rights to life and enjoyment of property.29 However, it has gone further and held in Budayeva v Russia that death and destruction from a natural hazard – in this case mudslides – was also a violation in a situation where the authorities had the requisite knowledge of the risk, and the time and capacity to act, but failed to do so.30 The Government “failed to discharge its positive obligation to protect the right to life” even though the original hazard was a natural phenomenon.31 This principle was reaffirmed in the 2012 case of Kolyadenko & Ors v Russia, in a situation where both flooding and exposure of residents could have been avoided with appropriate and timely action.32 In this case there was a mix of human made and natural hazard, concerning the urgent release of large quantities of water from a dam in response to exceptionally heavy rains beyond forecast levels. The avoidable aspects were the Government’s failure to maintain the riverbed channel, which it knew was overgrown and cluttered with debris, and failure to warn residents and manage evacuations to prevent loss of life and property. By contrast, the Court held inadmissable a subsequent action where there was no causal link between the action (or inaction) of the authorities and property damage caused by floods.33
The ECtHR has applied a higher standard of care for states concerning the right to life, as a fundamental right, compared with the right to enjoyment of property, which is a qualified right.34 It has also been clear that human caused hazards are more likely to result in violations of state positive obligations to protect residents, but that natural hazards can also lead to a violation if a Government knew of the risk and had the time and means to reduce it. However, it may well prove difficult to sustain a distinction between human caused hazards, and entirely natural events, especially for situations such as flooding in urban areas where homes have been authorised without adequate flood risk assessment, or else corruptly, in defiance of such assessments. For example, in 2009 Tempest Cynthia caused drowning deaths due to flooding in two seaside towns in France. The low-lying location and type of dwellings had been approved by the local authorities, but a 2013 judicial investigation concluded the deaths could, and should, have been prevented.35 The mayor and two others were later convicted of negligent manslaughter because, for motivations of personal profit, they had deliberately concealed the flood risks and thereby breached their “duty to protect and safeguard the population.”36
State human rights obligations concerning disasters have also been the subject of a major initiative by the UN’s International Law Commission (ILC), which is not yet complete.37 The ILC has so far approved twenty-one draft articles, including a proposed state obligation to accept international disaster assistance when a disaster exceeds national capacity, and a duty to take action to prevent disasters.38 The draft articles are currently being circulated for state and expert comment until 1 January 2016, and could eventually form the basis for a treaty or some other type of guidance on human rights in disasters.39 In the meantime, the draft articles represent a consensus view of a key group of UN international law experts, and states may find them useful as normative statements of their likely international human rights obligations concerning disasters.
3 Disaster Risk Management Law and Policy in the African Union
3.1 Africa Regional Strategy for Disaster Risk Reduction
The Africa Regional Strategy for Disaster Risk Reduction was formulated in 2004 by the African Union and its economic development programme, the New Partnership for Africa’s Development (NEPAD).40 It predates the Hyogo Framework, but has many of the same objectives, with an overall focus on DRR in sustainable development. Its main aims are to increase political commitment to DRR, and to improve identification and assessment of disaster risks, DRR knowledge management, public awareness, and risk governance and institutions for disaster risk reduction, as well as integrating DRR into emergency response.
3.2 Human Rights and Internal Displacement
The 1986 African Charter on Human and Peoples’ Rights (also known as the Banjul Charter) – includes the rights to life and property, but in addition includes the right of peoples to development, and to an environment that is favourable to their development, which is of relevance to DRM .41 For example, in a case concerning oil pollution in Ogoniland, Nigeria, the African Commission on Human and Peoples’ Rights stated that this right “to a general satisfactory environment” requires the State to take measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources. 42 The Commission said that such measures included: risk and environment monitoring, environmental and social impact studies, monitoring and information provided to exposed communities, as well as including locals in the decision-making.43
Some aspects of DRM are also included in the 2012 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (“the Kampala Convention”).44 The Kampala Convention applies to displacement, whether due to armed conflict, human made or natural hazards, including climate change. Unlike the African Convention on Refugees, which is focused entirely on international refugees (defined by reasonable fear of persecution), the Kampala Convention includes state obligations to protect people from internal displacement from a range of causes.45 It includes state obligations to take measures such as early warning, disaster risk reduction, disaster preparedness and management, and immediate protection and assistance to internally displaced persons, and to seek international cooperation when it is required.46 It also clarifies that states have the primary obligation to provide protection and assistance, without unlawful discrimination, but notes that international and regional cooperation are often required, in which case the state should also ensure other actors provide humanitarian assistance that is impartial and neutral.47 These are in fact the first legally binding rules on disaster response for the African region.48 The African Union has also developed a Model Act to assist states parties in implementation of the Kampala Convention.49
4 Disaster Risk Management Law and Policy in the SADC Region
SADC does not have any specific regional treaty or protocol concerning disasters, although based on its Disaster Risk Reduction (DRR) Strategic Plan 2006-2010, it established a Disaster Risk Reduction Unit in 2009, responsible for coordinating regional preparedness and response programmes for transboundary hazards and disasters.50 In 2011 it also established a SADC Regional Platform for Disaster Risk Reduction, which at its November 2013 meeting emphasised the importance of integrating risk reduction into development.51 SADC’s Regional
Indicative Strategic Development Plan also emphasises that co-operation on food security policies has led to an effective disaster preparedness and management mechanism by implementing programmes and projects aimed at early detection, early warning and mitigation of disaster effects.52 These include programmes on drought monitoring, natural resource management, agriculture, early warning (Remote Sensor Unit) and assessment of vulnerability. The objectives of the SADC Treaty include aiming for regional development and cooperation in a range of areas, including inter alia: food security, land and agriculture; infrastructure and services; and natural resources and environment.53 All of these are highly relevant to regional disaster risk reduction, considering the impact of drought on food security in the region, and the long-term importance of cross-border management of waterways and the environment.
Some relevant protocols under the SADC treaty include: the Protocol on Politics, Defence and Security Cooperation, Article 2 of which states that a specific objective is to “enhance regional capacity in respect of disaster management and co-ordination of international humanitarian assistance;” the Protocol on Forestry (2002); the Revised Protocol on Shared Watercourses (2000); and, especially with regard to disease and epidemics, the Protocol on Health (1999). The Protocol on Gender and Development (2008) should also now be influencing SADC institutions and member states’ approaches to DRM since its entry into force in 2013, as it is a set of cross-cutting principles on gender equity in development, with specific targets on participation of women in relevant institutions.
SADC therefore has binding protocols, policy and institutional mechanisms in place that have the potential to enhance regional disaster risk reduction and management, although there is room for a stronger legal and policy basis, and also for these issues to be made a higher priority in practice. In particular, SADC has not yet addressed specifically, two key elements of the changing risk profile of Southern Africa - urbanisation and climate change. In addition to well-documented risk from drought and floods, there is increasing evidence of more extreme weather events, and the likely increase of these due to climate change.54 But there are also risks emerging from a steady population increase, and especially redistribution to urban areas within the region. It is estimated that 73.7 million southern Africans lived in urban areas in 2010, but that by 2025 this will be 110.4 million, or 52% of residents living in cities or towns.55 Already this trend is reflected in the growth of large, informal settlements whose residents face numerous livelihood, health and security risks, as these areas do not have adequate services and many are located on high-risk land.56
5 Disaster Risk Management Law and Policy in Namibia
Historically, Namibia’s efforts to combat the impact of disasters have been focused almost exclusively on relief efforts for flooding and drought. This strategy was governed by a legal framework – the Civil Defense Act and the Civil Defense Ordinances –57 that was inherited from the South African colonial administration. Namibia now has a relatively new national framework for DRM and DRR, which includes the Disaster Risk Management Act of 2012, the Disaster Risk Management Regulations of 2013, the National Disaster Risk Management Plan of 2011 and the National Disaster Risk Management Policy of 2009. This framework is representative of the wider global paradigm shift away from a disaster response approach to one of comprehensive DRM that takes account of a wide range of hazards and stakeholders. The framework is aligned with relevant international agreements such as the Hyogo Framework for Action 2005-15, the Kyoto Protocol, and the Africa Regional Strategy for Disaster Risk Reduction. This section provides an overview of this framework, as well as some examples of Namibian sectoral laws and policies that support DRM.
5.1 Disaster Risk Management Act No. 10 of 2012
The Disaster Risk Management Act of 2012 is the main legal instrument governing disaster risk management in Namibia. 58 It has four main objectives: firstly, to provide for the establishment of DRM institutions in Namibia; secondly, to provide for an integrated and coordinated DRM approach that focuses on (among other things) preventing or reducing risks, emergency preparedness, response and recovery; thirdly, to provide for declarations of disasters; and fourthly, to establish the National Disaster Risk Management Fund.59
The Disaster Risk Management Act is notable for its progressive drafting and its relatively full integration of the concept of DRR: it is a clearly defined term60 that corresponds to the internationally accepted definition of the term used by UNISDR.61 As a further example, the National Disaster Risk Management Committee’s functions and powers include: ensuring that the core concepts of disaster risk reduction are integrated into the activities of relevant Government institutions; that DRR is integrated into all development policies, strategies and programs at national, regional, constituency and local levels; promoting and strengthening scientific, research and technical capacity for DRR; and supporting the integration of DRR into tertiary and school education curricula.62 The Directorate of Disaster Risk Management, meanwhile, is mandated to, among other things, facilitate and coordinate specific DRR strategies,63 whilst National Focal Persons (officials of Government institutions designated as DRM focal points) are charged with facilitating the training of national and regional staff in DRR.64 Regional, Local Authority and Settlement DRM Committees are mandated with similar responsibilities.
Current institutional responsibility for DRM in Namibia rests with the Office of the Prime Minister (OPM).65 The Disaster Risk Management Act also creates a number of specific institutions that are to be responsible for DRM in Namibia, namely:
Figure 1: Institutional Framework for DRM in Namibia67
Perhaps the most strategically important of these institutions is the Directorate of Disaster Risk Management, which is responsible for coordinating DRM activities and executing the decisions of the National DRM Committee. Its main function is the coordination of stakeholders and to that end, at least at national level; it has an effective system in place. Whilst the National DRM Committee is the highest-level body that drives policy and decision-making, the Directorate of Disaster Risk Management coordinates with both the Namibia Vulnerability Assessment Committee as well as the National Focal Persons Forum. Although not specified within law or policy, the Directorate also oversees several sector-specific working groups that feed into its decision-making processes and focus on areas such as health, education, water and sanitation. Largely consisting of Government representatives, the working groups also contain representatives from NGOS and civil society.
At the regional level, the Disaster Risk Management Act requires each Regional Council to establish a Regional DRM Committee, which is responsible for coordinating DRM among institutions in various sectors, local authorities, communities and other stakeholders in the region.68 Regional DRM Committees have been established in each region within Namibia. However, the establishment of the required DRM Committees at constituency, local authority and settlement levels is currently a work in progress.
A number of provisions in the Disaster Risk Management Act focus on the requirement for DRM plans, at national, regional and local levels, as well as requiring various bodies (including Government ministries) to develop their own DRM and contingency plans. At the national level both a National DRM Framework69 and a National DRM Plan70 are required. A detailed National DRM Plan was developed in 2011, in parallel to the development process for the Disaster Risk Management Act: please see section 5.3.2 below for further analysis of the Plan.
Commitments made in both the National DRM Policy of 2009 and the National DRM Plan of 2011 regarding funding and budgeting for DRM and emergency response were given a legal basis in the Disaster Risk Management Act, which establishes a National Disaster Fund.71 The Constitution gives the Government the right to establish funds designated for such special purposes.72 The Fund is administered by the National DRM Committee, and draws its income from various sources. Its objective is to serve as a contingency fund for the development and promotion of DRM in Namibia.73 The Fund may be used, amongst other things, to fund research, capacity building and training programs, acquiring relief, recovery and rehabilitation assistance, as well as land, materials and equipment.74
5.2 Disaster Risk Management Regulations 2013
The Disaster Risk Management Regulations entered into force in December 2013 and are intended not only to expand upon the provisions of the Disaster Risk Management Act, but also to regulate new areas relevant to DRM, including customs exemptions, codes of practice, the establishment of training institutions, and administrative penalties for officials who contravene provisions of the Act or Regulations. The Regulations set out in greater detail what is to be included in the DRM Plans required under the Act, including content detailing an inclusive and participatory approach to ensure the involvement of all stakeholders involved in DRM, development of forecasting and early warning systems, establishment of coordination mechanisms and the promotion of partnerships with relevant stakeholders (including media, meteorological and hydrology services), and more general requirements for disaster prevention and mitigation activities.75
The Regulations require both Regional Councils and other institutions involved in DRM to budget specifically for DRM activities,76 a measure designed to ensure that monies in the national disaster fund should only be used as a measure of last resort.77 The Regulations also set out provisions relating to the establishment of training institutions for DRM, 78 the exemption of relief goods from custom excise duty and the granting of work permits for international relief personnel,79 and relatively detailed requirements for the establishment of volunteer DRM units.80
The Regulations are however most notable for dealing with issues of accountability and liability for DRM in Namibia. This places Namibia in a relatively small group of states that have enacted legislation covering these issues. The Regulations establish a code of practice for DRM, whereby anyone involved in DRM in Namibia is required to, among other things: perform his or her duties with due care, skills, diligence and professionalism; act fairly and unbiased in dealing with people affected by a disaster; be familiar with and abide by the Disaster Risk Management Act; and promote accountability, efficiency, effectiveness and transparency in implementing disaster risk management programmes.81 The code of practice also prohibits those involved in DRM to seek or obtain financial or other advantages, and requiring them to share disaster related information in a transparent way in order to promote co-ordination and more coherent disaster response.82
Importantly, the Regulations cover personal and institutional liability in a section on administrative penalties and offences. The Prime Minister is empowered to impose administrative penalties on persons “responsible for disaster risk management”, disaster institutions, or governmental institutions, for contravening, or for delaying compliance with, the provisions of the Disaster Risk Management Act or with the provision of a general or specific policy directive issued under the Act.83 The Regulations also set out a number of offences that carry the penalty of a fine not exceeding N$10,000 or two years imprisonment, or both.84 There are fourteen separate offences listed, and these include: action or omission that endangers life, property or environment; misrepresentation for the purposes of acquiring disaster funds or disaster relief items; theft of disaster relief items; and refusing relocation or preventing any other person to be relocated from an area where disaster occurs or is about to occur.85 The last offence is notable as many local authorities in Namibia are regularly faced with the challenge of relocating families and communities due to flooding.
5.3 Relevant Policy Framework for DRM in Namibia
5.3.1 National Disaster Risk Management Policy 2009
The National DRM Policy of 2009 provided the policy basis for the development of the DRMA. The National DRM Policy started the practical transformation of Namibia’s former National Emergency Management System into the National Disaster Risk Management System.86 Prior to the new framework being given legislative effect under the Disaster Risk Management Act, this was achieved through a Cabinet Action Letter that effectively restructured the institutional provisions for DRM and DRR.87 The Policy also sets out the proposed legal and regulatory framework that served as the basis for the Act and the Regulations. Overall, the 2009 Policy was an important milestone, symbolising a shift in official thinking away from disaster response, and engaging with longer-term issues of preparation, risk management and reduction.
5.3.2 National Disaster Risk Management Plan 2011
The National DRM Plan is an extremely detailed document that is concerned with two major themes: providing an ‘all hazard framework’ for DRM planning, and setting out the Emergency Management Operational Procedures to guide stakeholders in disaster response activities. It is issued primarily under the auspices of the National DRM Policy, which requires the development and dissemination of a National DRM planning framework and guidelines to facilitate the development and integration of disaster risk management planning into the development plans and programs of all sectors.88
Although the National DRM Plan was developed in 2011, in parallel with the development process for the DRM Act, the link between this document and the requirements of the Act are not entirely clear. Whilst the National DRM Plan states that it provides “a framework for sectoral and regional disaster risk management”, it does not appear to meet all the specific requirements of the Act. Taking one specific example, the Act requires the introduction of mechanisms for setting and implementing minimum building standards89 and the National DRM Plan makes reference to the need to employ sufficient building standards. However the references are general (e.g. to “develop and enforce building codes and regulations for health and safety”90) and no specific mechanisms are mentioned. Neither does the National DRM Plan technically meet the very wide requirement under the Act that it must comprise “all the disaster risk management plans developed for Namibia”91; although exactly what is meant by this requirement remains unclear. There appears to be a need to properly harmonise the overarching legislation with the underlying plans and programs.
The National DRM Plan is notable for promoting and utilising disaster risk reduction (DRR) as a key concept. DRR is a guiding principle for the Plan:92 it intends to make DRR a priority at all levels in Namibia through establishing sound, integrated and functional legal and institutional capacity within the National DRM system.93 Further provisions break down the responsibilities of various sectors and it is clear that, at least at policy level, DRR has been actively considered and attempts made to provide for the mainstreaming of DRR at various levels – for example, in the section on the health and nutrition sector’s roles and responsibilities, a local and national gap analysis of capacities in health is to be initiated, with a focus on risk reduction,94 whilst for the environmental sector, DRR should be integrated into climate change adaptation.95
5.3.3 National Development Plan and Vision 2030
Whilst the impact of disasters on Namibia’s population and economy is often noted in policies and Government documents, DRM and/or DRR is not prioritised as an objective in its own right in either of the two major national policies which guide Namibian development; the Fourth National Development Plan 2012/13 to 2016/17 (NDP4), and the Vision 2030 Policy.
NDP4 focuses on four ‘foundation issues’; logistics, tourism, manufacturing, and agriculture. There is no explicit acknowledgement that effective DRR practices and legislation can contribute to the growth of these sectors. Some relevant references are included, for example responsibility is assigned to the Ministry of Agriculture, Water and Forestry for the high-level strategy of developing drought-resistant crops and livestock. Namibia’s Third National Development Plan (NDP3), covering the period 2007/8 to 2011/12, was more explicit in its promotion of the need to develop DRR and DRM capacities, noting that “disasters, both man-made and natural, undermine the country’s development efforts and place communities at risk of displacement, hunger and poverty”.96 It is curious that the emphasis on DRR and DRM activities has been largely omitted from NDP4.
Vision 2030, originally published in 2004, sets out a wider policy framework for Namibia’s long-term development and makes several references to the challenges of disasters as well as the need, for example, to “identify cost-effective, flexible and adaptable management approaches and national disaster response strategies to the potential impacts of climate change”97. NDP4 was developed within the broader vision of Vision 2030, so arguably the disaster management and response language used in Vision 2030 continues to guide Namibia’s development, even if this is not explicitly acknowledged in the latest NDP.
5.4 Disaster Risk Reduction in Key Sectoral Laws in Namibia
The following section sets out a brief overview of some of the most relevant sectoral laws and policies that help to reduce the risk of disasters by reducing the creation of new risks through development in Namibia. It is notable that several of these laws and policies prioritise community participation in resource management and development, highlighting a positive trend in the Namibian legal framework that could (given appropriate support and implementation) contribute significantly to reducing the risks communities face from natural hazards.
5.4.1 Building Codes
Namibia’s National Building Regulations of 1991, combined with the Local Authorities Act of 1992, establish a relatively comprehensive framework for building safety. Implementation is a local Government responsibility, with different levels of oversight from the Ministry of Regional and Local Government, Housing and Rural Development, depending on the type of local Government. Large urban municipalities have greater autonomy, and at least in the case of the capital city Windhoek this has resulted in a relatively robust and well-enforced permitting scheme. Outside of Windhoek levels of effective implementation and enforcement are notably weaker, however, as a lack of trained staff and funding for building control means that the national laws are often applied inconsistently, and in many remote areas not at all.
5.4.2 Environmental Resource Management
Under the overall obligation to adopt policies aimed at the “maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilisation of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future” set out in Article 95 of the Namibian Constitution, the Government has developed a number of laws and policies that are relevant for the purposes of DRM. The Environmental Management Act of 2007 not only sets out a new institutional structure for the sector in Namibia, but it also gave legislative effect to the Environmental Assessment Policy of 1994, therefore placing the environmental assessment process on a formal, legal footing. Community involvement in natural resource management and the sharing of benefits arising from the use of resources are listed as some of the key principles of environmental management.98 However, the system suffers from gaps in capacity and funding: the Government openly acknowledges that it possesses limited capacity to enforce Environmental Management Plans (part of the wider Namibian environmental impact assessment regime), for example.99 Gaps in capacity extend from national to regional level, and outside of Windhoek it is difficult to uphold official procedures.
Namibia’s National Policy on Climate Change 2011 specifically addresses the issue of disaster reduction and risk management, including a commitment to international risk reduction initiatives such as the Hyogo Framework for Action and the Africa Regional Strategy for Disaster Risk Reduction, and recognising DRR as “a frontline defence in adapting to the impacts of climate change”. 100 The Government has committed to developing and implementing a ‘climate change induced DRM strategy’, establishing and strengthening climate change induced disaster management institutions at regional and national levels, as well as providing relief to the victims of climate change induced disaster.101
Forest management and exploitation in Namibia is primarily governed by the Forest Act No. 12 of 2001, which replaced the Preservation of Trees and Forests Ordinance No. 37 of 1952 and the Forest Act No. 72 of 1968, and built upon the content of the Forest Policy Statement of 1992. The Forest Act establishes a regime for authorisation of the harvesting of trees102 in order to combat deforestation and thereby prevent the exacerbation of related natural hazards such as flooding. Illegal harvesting is a major problem throughout Namibia, especially in the north-eastern regions where forest cover is thicker. The recent Forest Regulations of 2015 now provide a more detailed legal framework for the prevention of illegal harvesting. The Regulations expand on the foundations laid by the Forest Act, and regulate matters including the marking of forest produce, measures to be taken for forest protection, and the permits, licences and other documents required for the harvesting, transportation, processing, sale, importation, transit, and exportation of forest produce. The Regulations also set out a detailed list of protected plant species.103
The Development Forestry Policy of 2001 acknowledges the shortcomings in Namibia’s framework for forest management, by concluding that the implementation of effective property rights, a more supportive regulatory framework, the strengthening of extension services and the promotion of community forest management, is critical to sustainable forest management in Namibia. To some extent, the implementation of the Forest Act 2001 and an increasing uptake of community forests have helped to change this situation.
The Water Resources Management Act No. 11 of 2013 has repealed the previous Water Resources Management Act No. 24 of 2004, although the latter never technically entered into force. The 2013 Act is also not in force as the Minister has not yet set a date for the Act to come into operation, and therefore strictly speaking the Water Act of 1956 (as amended) is still in operation. Part 17 of the 2013 Act (Dams, Dam Safety and Flood Management) is of particular importance for DRM in Namibia. This section prohibits construction work or other activity that causes, or is likely to cause, the natural flow conditions of water in, to or from a watercourse to be modified without the Minister’s written approval.104 Safety measures for dams also come under scrutiny, requiring professional engineers’ reports regarding the safety of dams and creating a duty of care on the part of the engineer towards the public and the State,105 and requiring the owners of dams with potential safety risks to register them with the Minister.106 The Minister also has relatively extensive powers aimed at the prevention of flood risk.107
The Act is also notable for its emphasis on community and stakeholder involvement in, and management of, water resources, in particular through the establishment of basin management committees,108 several of which were operative for some time prior even to the development of the Water Resources Management Act of 2004. For example, the committee for the Kuiseb River Basin was formed in 2003, with its own water resources management plan being developed in 2007. Included in a long list of duties of committees are obligations to promote community participation in the protection, use, development, conservation, management and control of water resources, to promote community self-reliance including the recovery of costs for the operation and maintenance of waterworks, and to prepare an integrated water resources management plan which will feed into an overall Integrated Water Resources Management Plan.109 The establishment of basin management committees is representative of a wider impetus for the decentralisation of Government functions in Namibia, especially relating to water resources management. However the majority of river basins in Namibia currently have no committee in place and only the Kuiseb committee appears to have a management plan in place.110 Namibia’s Integrated Water Resources Management Plan of 2011 notes the need to increase the number and capacity of committees in order to improve equitable access to water.
1 This discussion is based on a broad consensus on definitions captured in UNISDR (2009).
2 The term ‘soft law’ describes international agreements or declarations that are negotiated and agreed by states as instruments that establish norms and/or principles, but which do not include binding obligations on state signatories. It is distinguished from ‘hard law’, which refers to binding obligations found in treaties or customary international law.
3 Yokohama Strategy and Plan of Action for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation, (“Yokohama Strategy”), World Conference on Natural Disaster Reduction, Yokohama, Japan, 23 to 27 May, 1994.
4 Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (“IDRL Guidelines”) (IFRC 2007). Unanimously adopted 30 November 2007, at the 30th International Conference of the Red Cross Red Crescent Movement, consisting of state parties to the Geneva Conventions and the components of the International Red Cross Red Crescent Movement. Available at http://www.ifrc.org/what-we-do/disaster-law/about-disaster-law/international-disaster-response-laws-rules-and-principles/idrl-guidelines/; accessed 30 September 2015.
5 IFRC (2007a:33-60).
7 Specific Annex J, Chapter 5, Relief Consignments: 71-72; available at https://docs.unocha.org/sites/dms/Documents/Model_en_2011.pdf; accessed 30 September 2015.
8 IFRC (2007b).
9 Many UN General Assembly resolutions encouraging states to make use of the IDRL Guidelines have been passed since Resolution 63/141 and Resolution 63/137, both 11 December 2008. The most recent was Resolution 68/102 of 12 February 2014.
10 The 2013 Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance – a tool for states wishing to implement the IDRL Guidelines – drafted by the International Federation of Red Cross Red Crescent Societies (IFRC), the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the Inter-Parliamentary Union (IPU) is available at http://www.ifrc.org/what-we-do/disaster-law/about-disaster-law/international-disaster-response-laws-rules-and-principles/model-act-on-idrl/; accessed 30 September 2015.
11 Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters (“HFA”). 2005. Adopted at the World Conference on Disaster Reduction, 18 -22 January 2005, Kobe, Hyogo, Japan. Subsequently endorsed by UN General Assembly Resolution A/RES/60/195. Available at www.unisdr.org/wcdr; accessed 30 September 2015.
12 Yokohama Strategy and Plan of Action for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation, (“Yokohama Strategy”). 1994. World Conference on Natural Disaster Reduction, Yokohama, Japan, 23 to 27 May, 1994.
13 Sendai Framework for Disaster Risk Reduction 2015-2030 (“the Sendai Framework”). 2015. Adopted at the Third United Nations World Conference on Disaster Risk Reduction, 14-18 March, 2015, Sendai, Miyagi, Japan. Subsequently endorsed by UN General Assembly Resolution A/RES/69/315, 3 June 2015. Available at the WCDRR website at http://www.wcdrr.org/uploads/Sendai_Framework_for_Disaster_Risk_Reduction_2015-2030.pdf; accessed 30 September 2015.
14 Most recently IFRC / UNDP (2014).
15 Highlighted in IFRC / UNDP (2014:45-69).
16 UNISDR (2011); GNDR (2009 and 2011); Chair’s Summary, Fourth Session of the Global Platform for Disaster Risk Reduction, Geneva, 21-23 May 2013; and Preparatory Committee of the Third United Nations World Conference on Disaster Risk Reduction. Proceedings available at http://www.wcdrr.org/preparatory; accessed 30 September 2015.
17 UNISDR (2015).
18 Sendai Framework para. 17.
19 Sendai Framework para. 18.
20 Sendai Framework para. 20.
21 Sendai Framework para. 20.
22 Sendai Framework paras. 26, 27(a).
23 Sendai Framework para. 27(d).
24 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1966 International Covenant on Civil and Political Rights (ICCPR), 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1990 Convention on the Rights of the Child (CRC), 2006 Convention on the Rights of Persons with Disabilities (CRPD) and the 1951 Convention Relating to the Status of Refugees. OHCHR Core Human Rights Instruments available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx; accessed 30 September 2015. Namibia has acceded to all of the treaties mentioned.
25 Accessions listed in https://treaties.un.org, accessed 13 March 2015; Namibian Constitution Article 144
incorporates international law as the law of the land.
26 See Harper (2009); IFRC / UNDP (2014:72-74).
27 Based on Renold (2012).
28 Killander (2011:163).
29 Öneryildiz v Turkey (30 November 2004) app no 48939/99, § 18 ECHR 2004-XII.
30 Budayeva and others v Russia (29 September 2008) app no 15339/02, § 267 ECHR 2008-II.
31 Ibid:Reasons for judgment.
32 Kolyadenko and others v Russia (28 February 2012) app no 17423/05.
33 Hadzhiyska v Bulgaria (15 May 2012) app no 20701/09, para. 16.
34 Discussion based on Renold (2012) and Kälin / Haeni Dale (2008).
35 Le Monde 27 August 2013.
36 Cour d’appel de Poitiers, Tribunal de grande instance des Sables-d’Olonne, Jugement Correctionnel du 12 décembre 2014, at 180 (“Pour des mobiles personnels inacceptables, les prévenus ont violé leur obligation de protection et de sauvegarde de la population, ont mis des vies en danger”), cited in Wentz (2015).
38 ILC Protection of persons in the event of disasters. Texts and titles of the draft articles adopted by the Drafting Committee on first reading. UN Doc. A/CN.4/L.831, 14 May 2014.
39 Any draft treaty from the ILC normally requires approval and recommendation from the UN General Assembly’s Legal Committee (the Sixth Committee), a period of a year or more for state consultations, and then approval by states in the UN General Assembly. An advocate state could also take the initiative on a treaty, either using the UN organs or establishing its own process.
40 Africa Regional Strategy for Disaster Risk Reduction: Disaster Risk Reduction for Sustainable Development in Africa (African Union, July 2004), available at http://www.unisdr.org/files/4038_africaregionalstrategy1.pdf; accessed 30 September 2015.
41 African Commission on Human and Peoples’ Rights Articles 20, 22 and 24. Ratified by Namibia in 1992. See also Article 1 of the UN Declaration on the Right to Development (4 December 1986) UNGA Res. 41/128.
42 African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (27 May 2002) Communnication No. 155/96, § 52-3; cited in Renold (2012).
43 Renold (2012).
44 Endorsed at the AU Special Summit in Kampala, Uganda 2009 and as of 30 September 2015 signed by 40 of the 53 member states of the African Union. Entered into force on 6 December 2012 after 16 ratifications.
45 Convention Governing the Specific Aspects of Refugee Problems in Africa; signed in Addis Ababa 1969; entry into force 20 June 1974. Available at http://www.au.int/en/sites/default/files/Convention_En_Refugee_Problems_in_Africa_AddisAbaba_10Sept ember1969_0.pdf; accessed 30 September 2015.
46 Articles 4(2) and (3).
47 Articles 5 and 6.
48 Boswijk (2012).
50 Geographic Information System (GIS) Portal: http://gisportal.sadc.int/drru/?q=node/2; accessed 30 September 2015.
52 Formulated in March 2001, adopted and approved by the SADC Summit in August 2003. SADC website: http://www.sadc.int/about-sadc/overview/strategic-pl/regional-indicative-strategic-development-plan/; accessed 30 September 2015.
53 Articles 4 and 5 of the SADC Treaty.
54 Tadross et al. (2011).
55 Holloway et al. (2013) Table 184.108.40.206, p. 64, citing UN-Habitat (2010).
57 Civil Defence Act No. 39 of 1966, Civil Defence Proclamation AG 54 of 1978, and Civil Defence Ordinance No. 3 of 1979.
58 The Disaster Risk Management Act came into operation on 31 December 2013; see Government Notice No. 348 on the Commencement of Disaster Risk Management Act, 2012, Government Gazette No. 5380 (2013).
59 Preamble of the Disaster Risk Management Act No. 10 of 2012.
60 Article 1.
61 UNISDR (2009).
62 Article 5(n), Disaster Risk Management Act No. 10 of 2012.
63 Article 11(4)(d)(i).
64 Article 12(4)(i).
65 Article 2.
66 Article 3.
67 Source: UNDP (2014:26).
68 Article 14.
69 Article 20.
70 Article 21.
71 Article 45.
72 Article 125(3) of the Constitution of the Republic of Namibia.
73 Article 48 of the Disaster Risk Management Act No. 10 of 2012.
74 Article 49.
75 Article 2(1) of the Disaster Risk Management Regulations, 2013.
76 Part 4.
77 Article 9(1).
78 Part 5.
79 Part 6.
80 Part 9.
81 Article 17(1).
82 Article 17(3).
83 Article 31(1).
84 Article 30(1).
85 Article 32(1).
86 The National Emergency Management System was a structure created by a Cabinet Memorandum issued by the President of Namibia in 1994.
87 Cabinet Action Letter 5TH/15.02.94/006.
88 Section 8.3.1 of the National Disaster Risk Management Policy, 2009.
89 Article 20(2)(f) of the National Disaster Risk Management Plan. 2011.
90 Table 2 of the National Disaster Risk Management Plan.
91 Article 21(1)(b) of the Disaster Risk Management Act No. 10 of 2012.
92 Section 1.4.2 of the National Disaster Risk Management Plan. 2011.
93 Section 3.2.
94 Table 3.
95 Table 9.
96 NPC (2008:284).
97 GRN (2004a:146, 161 and 172).
98 Article 3(2), Environmental Management Act No. 7 of 2007.
99 GRN (2012:Section 4.1).
100 Section 4.13 of the National Policy on Climate Change. 2011.
101 Section 4.13.
102 Article 27 of the Forest Act No. 12 of 2001.
103 See Annexure 2 of the Forest Regulations: Forest Act 2001, Government Notice No. 170 on the Forest Regulations: Forest Act 2001, Government Gazette No. 5801 (2015).
104 Article 92 of the Water Resources Management Act No. 11 of 2013.
105 Articles 79 and 80.
106 Article 97.
107 Article 100.
108 Part 5.
109 Article 23.
110 Section 4.2 of the Integrated Water Resources Management Plan for Namibia, 2011.
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