This article is the second in a two-part series analyzing environmental, health, and safety (EHS) laws and regulations in Africa. The first installment, Africa: Strengthening the EHS Regulatory Framework, identified three important factors that are contributing to EHS improvements in African countries:

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

This article examines likely future EHS developments in Africa.

Webinar on African EHS Regulations

In March 2011, Enhesa, a global EHS consulting firm, presented a webinar titled EHS on the Rise in Africa: Letting You Know Before It Is Too Late.[1] This webinar, which explored recent EHS developments and future trends in Africa, was attended by more than 250 individuals involved in the chemical, telecommunication, electronic and electrical equipment, and oil and gas industries.

The participants identified several challenges to operating a facility in Africa, including:

a lack of infrastructure, regulations, and stability;
differences in safety culture and risk tolerance;
deficient employee education and training programs; and
absence of consistent and established regulations.

Despite these challenges, some African countries have improved their EHS regulatory frameworks.

Recent EHS Developments in Africa

Over the past two years, a number of African countries have proposed or adopted laws and regulations intended to improve EHS regulatory frameworks in their countries. Consider the following examples:

Algeria: Since 2010, a company has been required to obtain authorization for wastewater discharges.[2]
Namibia: The 2007 Labour Act established minimum basic conditions of service for all employees and also empowers health and safety representatives to carry out inspections and accident investigations and to object to unsafe working procedures.[3]
South Africa: As of June 2010, South Africa became one of the few countries in the world to require compulsory sustainability reporting for a company listed on the Johannesburg Stock Exchange. This integrated sustainability report must have sufficient information to record how the company has positively and negatively affected the economic life of the community in which it operated during the year under review.
Ghana: Since 2009, Ghana has been implementing a new environmental rating program (AKOBEN) to disclose a company’s environmental rating by means of a website that is fully searchable against a set of performance indicators.[4] If a company has a rating of RED, it has poor environmental performance (e.g., exceeding emissions or effluent standards associated with discharging toxics into the environment, engaging in on-site hazardous waste management practices that can cause serious risk to physical or human environments). In contrast, a GOLD rating means that a company is going beyond compliance and applying international best practices for environmental management.

Analysis of Regulations and Enforcement

To gain a better understanding of the developments and trends in EHS requirements in Africa, Enhesa’s EHS consultants analyzed the number of EHS requirements identified in its regulatory database and developed an EHS regulatory and enforcement matrix. Factors that were considered in the analysis included:

the existence of environmental or occupational health and safety enforcement authorities in a country;
jurisdictional powers assigned to enforcement authorities in a country; and
administrative powers delegated to internal facility and corporate EHS positions for companies operating facilities in a country.

The analysis focused on the content of applicable EHS laws and regulations without considering the degree of implementation or effectiveness of the regulations. Non-African countries such as England, France, and the United States were included for comparative analysis. The results are shown on the figure below.

Figure 1: Enhesa's EHS Regulatory and Enforcement Matrix

Countries with weak EHS regulatory frameworks and enforcement are shown in the bottom left quadrant, while countries with strong EHS regulations and enforcement are depicted in the top right quadrant. South Africa has strengthened its EHS regulations and enforcement capabilities the most in recent years compared with other African countries, but several countries are not too far behind.

Future EHS Trends in Africa

Enhesa’s analysis also suggests several future EHS regulatory trends. These trends can be divided into three regulatory frameworks: environmental, occupational health and safety, and products.

Environmental Trends

Environmental topics, including air quality, water quality, and waste disposal, are experiencing the fastest rate of improvement among the regulatory topics. Strengthening of the environmental regulatory framework will likely result in additional facility-level requirements, as well as potential fines, facility shutdowns, and cleanup costs for a noncompliant facility. For example, in Nigeria, a recently adopted regulation requires a permit for all discharges into surface water and requires compliance with all permit conditions.[5] The aforementioned regulation also requires a facility to notify the national environmental enforcement agency and obtain authorization before using an injection well.

One can also expect improvements as African countries address the illegal importation of waste electrical and electronic equipment (EEE).[6] Specifically, in Nigeria, the national environmental enforcement agency adopted a regulation that requires importers, exporters, manufacturers, and distributors to participate in an EEE product take-back scheme. Also, EEE producers are required to comply with new environmental impact assessment, discharge and emission, and underground storage tank requirements.

Trends in Occupational Health and Safety

Occupational health and safety regulatory frameworks in African countries continue to improve because of the visibility of poor labor conditions. Strengthening regulations will result in more court cases, punitive damages, and compensation payouts as a result of noncompliance. Countries in Africa will continue to take the first steps to implement the requirements of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) and will likely base their actions on the GHS groundwork already laid by Mauritius, which implemented the first edition of the GHS in 2004.[7]

In 2011, Kenya took initial steps to implement a national chemical risk management program that requires a facility using, handling, or producing a chemical to have a correct Material Safety Data Sheet and to conduct a chemical risk analysis.[8] In Zambia, the 2010 Occupational Health and Safety Bill was introduced. This bill would establish health and safety committees and introduce general health and safety requirements, such as the regular medical surveillance of employees.[9]

Trends in Product Regulation

Product-related regulatory frameworks are being established, albeit at a slower pace than in the aforementioned areas. Noncompliance with these emerging regulations can result in fines, shutdowns, and product recalls. In South Africa, the Consumer Protection Act, 2008 was adopted to modernize and integrate consumer protection provisions.[10] The Act is intended to promote socially responsible choices among consumers of goods and services through increased labeling and information that must be provided by parties who market or provide goods and services.

There is also evidence that some African countries are taking a more proactive role in the product arena. In April 2010, the Standards Organization of Nigeria (SON) closed eight steel manufacturing companies because the companies continuously produced steel rods and other products that failed yield strength, tensile strength, and chemical property tests.[11] SON shut down the facilities after the companies refused to improve product quality voluntarily.

Finally, in February 2011, the Nigerian National Environmental Standards and Regulations Enforcement Agency (NESREA) published a guide intended to clarify requirements for companies importing used electrical and electronic equipment into Nigeria.[12] The guide is intended to help companies comply with existing requirements and to differentiate between used electrical and electronic equipment (UEEE) and waste electrical and electronic equipment (WEEE). The latter is prohibited from import into Nigeria. The guide contains guiding principles, requirements for the importation of UEEE into Nigeria, and a list of items that cannot be imported.

Summary

The trend towards developing EHS regulatory frameworks and strengthening enforcement will likely continue throughout Africa. Although current efforts seem to be focused on environmental regulations, regulatory frameworks in the areas of occupational health and safety and product regulations are also improving. Companies that operate in Africa will need to monitor changing regulatory expectations carefully and be prepared to take action to meet new regulatory requirements.

About the Author

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

Photograph: Zebra’s Skin by Bartek Wilk, Wielun, Lodzkie, Poland.