Keywords

1 Introduction

With around 23% of total net anthropogenic emissions of greenhouse gases deriving from activities in the agriculture, forestry, and other land use sector (AFOLU),Footnote 1 increasing emphasis has been placed on land-related climate change mitigation, particularly improved stewardship of forests through reduction or avoidance of deforestation and forest degradation, and the enhancement of forest carbon stocks. Africa is home to some of the world’s most important forests, with forests covering 43.6% of land area in Central Africa, 31% in Southern Africa, 20.8% in East Africa, 14.3% in West Africa and 7.2% in North Africa.Footnote 2 However, as Moon and Solomon argue, ‘the combination of unsustainable management and uncoordinated externally driven resource extractive with the additional influence of foreign direct investment and infrastructures are influencing the forest cover’.Footnote 3 As a consequence of the aforementioned, Africa is losing more than 4 million hectares of forest every year.Footnote 4 The World Wide Fund for Nature (WFF) have identified eight deforestation fronts, or places at imminent risk of largescale deforestation on the continent of Africa. These consist of the West Africa front (Liberia, the Ivory Coast, and Ghana), four Central African Fronts (Cameroon/Gabon, the Republic of Congo and Cameroon/the Democratic Republic of Congo and the Central Africa Republic/Angola) and three East African fronts (Zambia/Mozambique/Madagascar).Footnote 5 Throughout the eight deforestation fronts in Africa, small-scale agriculture remains the main driver of deforestation. In Zambia, Mozambique and Angola, large-scale agriculture is playing an increasingly significant role in the deforestation of the Miombo forests and is also growing in the Congo Basin.Footnote 6 While fuelwood and charcoal can also be considered key drivers due to expanding urban markets, they mainly cause degradation rather than complete forest loss.Footnote 7 Furthermore, logging is a problem across all eight fronts but considerably worse in Cameroon and Angola, however, small-scale logging and chainsaw milling remains a problem throughout the Central African countries.Footnote 8 Although transport infrastructure is currently not considered to be a driver of deforestation on the continent, it is expected to become a more significant cause in the future due to rapidly developing economies.Footnote 9

Since the mechanism Reducing Emissions from Deforestation and Forest Degradation plus Conservation and Sustainable Development (REDD+) emerged as a key pillar of the international climate change regime and a potentially effective pathway for sustainable development, it has been increasingly recognised by policy makers, civil society groups and scholars that for REDD+ to be implemented successfully and deliver its objectives it must adopt a rights-based approach.Footnote 10 This position has further been cemented by the global acceptance and adoption of the United Nations 2030 Agenda for Sustainable Development as a normative framework, actualised through the Sustainable Development Goals (SDGs).Footnote 11 Adopting a green criminological perspective which allows scholars to analyse discourses related to environmental harm, laws and regulations within a model of environmental justice that places human beings and their well-being at the centre,Footnote 12 this chapter examines the linkages and synergies between REDD+ and the SDG and discusses the opportunities and challenges African states face in advancing a rights-based approach to REDD+ alongside the 2030 Agenda and fulfilling their human rights obligations.

2 Green Criminology and Human Rights

Despite the fact that there are a wide variety of environmental harms associated with climate change which impinge on humans, non-human species and the natural environmental, criminology’s traditional concern with crime per se meant that discussions on environmental crimes, laws and harms were largely absent until the relatively recent development of ‘green criminology’.Footnote 13 Furthermore, as Borràs argues ‘traditionally, legal systems have considered nature as “property” and have promoted laws to guarantee the property rights of individuals, corporations and other legal entities. Therefore, environmental laws and regulations, despite their preventive approach, have developed so as to legalise and legitimate environmental harm’.Footnote 14 Green criminology, developed by Lynch in 1990, recognises the plundering of the earth’s resources and the degradation of the environment as ‘activities that might be considered criminal or at least seriously harmful with intergenerational consequences and transnational impacts’.Footnote 15 Considered to be ‘the most pressing and important international issue facing humanity today’,Footnote 16 White argues that the issue of climate change has raised a number of existing and potential problems that need to be considered from a green criminological perspective including conflicts over environmental resources, conflicts linked to global warming, conflicts over differential exploitation of resources, conflicts over transference of harm and the criminalisation and regulation of activities relating to carbon emissions.Footnote 17 Although climate change is a transnational problem, there is a general consensus that its harmful effects will be unevenly distributed and exacerbate social inequality and environmental injustice in the coming years particularly in the global South.Footnote 18 However, the climate change crisis has also provided an opportunity for contemporary capitalism to incorporate nature through mainstream neoclassical economics into the global economy by focusing on carbon reductionism and the further commodification of nature through payments for ecosystem services schemes such as REDD+.Footnote 19 The schemes focus on the standardisation and quantification of carbon rather than the human and environmental rights implications.Footnote 20 Furthermore, despite the clear links between human rights and environmental issues, REDD+ has a ‘conceptual apparatus of domination and exploitation, which subverts the extent to which they will be ever able to protect both vulnerable elements of forest ecosystems and marginalised communities’.Footnote 21

Concerns have been raised over the potential loss of forest people’s territories to large-scale commercial forest operations, the restriction of access and use of natural resources by these communities, the lack of equitable benefit-sharing of REDD+ activities, exclusion of forest communities from the design and implementation of REDD+ policies and the increase in carbon piracy.Footnote 22 Moreover, other observers have highlighted REDD+ poor track record, with rising deforestation rates in REDD+ model countries such as Brazil and Indonesia, and its failure to address the root causes of deforestation as well as its poor implementation at the national level.Footnote 23 Therefore, incorporating human rights institutions, practices and discourses into debates on environmental harm, laws and regulations is essential to ensure that the most vulnerable members of society do not bare the negative costs of REDD+.Footnote 24

The development of a green perspective in criminology has played a critical role in rethinking human legal systems and developing alternative ‘benchmarks’ to legal definitions of crime, including, human rights abuses and social harm as advocated by Potter.Footnote 25 As Potter further points out, ‘some have argued that we should think of crime differently – in terms of human rights abuses or in terms of social harm […] Green criminologists make the point that most, if not all, environmental harms incorporate harms to individuals and social groups and that many entail human rights abuses.’.Footnote 26 Taking Potter’s observation further, Raftopoulos and Short have argued for muti-disciplinary approaches to the study of environmental harm and the incorporation of a variety of rights-based analytical and methodological tools such as the Human Rights Impact Assessment as ‘a useful benchmark sitting somewhere between legally codified, national and internationally defined “crime” and the much more nebulous notion of “harm”’.Footnote 27

Despite these emerging critical perspectives in criminology over recent years, traditional legal understandings of ‘crime’ and ‘just’ responses still dominate criminological research. Taking the latter insight as a core ontological assumption, green and critical criminologists argue that ‘many conventional, and legal, forms of human production and interaction do far worse things to the natural environment than those activities which are deemed illegal’.Footnote 28 Consequently, social and/or ecological harm is worthy of criminological research and analysis even if the state does not acknowledge the phenomenon as illegal, while some would argue that such analysis is needed precisely because of that fact.Footnote 29 Furthermore, the development of the 2030 Agenda, which provides a universal normative framework for the realisation of economic, social and environmental sustainability across a range of issues, provides an important lens for green criminologists to critique discourses related to environmental harm, laws and regulation within a model of human rights and sustainable development. As Blaustein et al. argue, there are two principal ways that criminologists can support the 2030 Agenda. First, they can play a supportive role by actively ‘contributing to the the design, implementation and evaluation of projects that support safe, just and environmentally sustainable societies’.Footnote 30 Second, they can assume a critical role by ‘helping development actors and their intended beneficiaries including domestic policy makers, criminal justice practitioners and citizens of the Global South identify and resist attempts by international organizations, sovereign donors, national governments and other empowered stakeholders to politicize criminological elements of this agenda for self-interested strategic and political purposes’.Footnote 31 With environmental sustainability at the core of the SDG’s and the increasingly apparent implications of climate change, it is critical to consider the impact of mitigation policies and mechanisms such as REDD+ within the global framework of sustainable development to place human-beings and their well-being at the centre of analysis. A green criminology and rights-based perspective provides a useful lens to understand and respond to REDD+ within a model of environmental justice that places human beings and their well-being at the centre both in terms of human rights abuses and social harm.

3 The 2030 Agenda for Sustainable Development and REDD+

In 2015, the United Nations General Assembly adopted the 2030 Agenda for Sustainable Development (Agenda 2030). At its core are 17 Goals and 169 related targets that capture a range of economic, social, and environmental issues. Widely accepted as the current global development agenda by governments, the normative framework addresses ending poverty and hunger, promising to leave no one behind. Moreover, recognising planetary boundaries and explicitly incorporating the commitments expressed in the Paris Climate Agreement, Agenda 30 aims to protect the planet from degradation through the promotion of sustainable consumption and production practices, the sustainable management of natural resources and climate change measures.Footnote 32 Explicitly grounded in and underpinned by human rights norms and standards, more than 92% of SDG targets are linked to specific provisions of international human rights instruments.Footnote 33 Furthermore, the four basic objectives of a good society—economic prosperity, social inclusion and cohesion, environmental sustainability and good governance—which are promoted alongside Agenda 2030 are centred on Human Rights-based Approach (HRBA) and encompass the principles of universality, inalienability, indivisibility, inter-dependence, inter-relatedness, equality and non-discrimination and also participation and inclusion.

Since its conception, REDD+ has become an important policy tool for mainstreaming international agreements, conventions, and strategic action plans—including Agenda 30, the Paris Agreement, and the Aichi Biodiversity Targets—providing a practical means of adapting international mechanisms to national contexts and into national development plans and planning processes through both vertical and horizontal policy coherence. The alignment of the vision and strategic goals of REDD+ plays a critical role in enhancing and accelerating progress towards the SDGs targets and supporting trans-boundary actions in climate change mitigation and adaptation efforts, the sustainable use of ecosystems and management and maintenance of biodiversity. This is particularly relevant in Africa, which despite serving as a major carbon sink, biodiversity continues to decline, with ongoing losses of species and habitats, and deforestation and forest degradation continues to increase, threatening the flow of environment goods and services.Footnote 34 While most African countries involved with REDD+ programmes are in the readiness and implementation stage, in 2020, Uganda became the first African country to submit results for REDD+. Seen as a significant development on REDD+ for Africa, the results produced by the National Forest Authority showed that deforestation had reduced to 28,095 hectares (ha) per year over a 2-year result period (2015–2017) from a 50,147 ha per year average over a 15-year reference period (2000–2015), leading to a 44% reduction in the country’s rate of deforestation annually between 2015 and 2017.Footnote 35

REDD+ is increasingly recognised as an instrument to help achieve the objectives of Agenda 30, the SDGs which through their mutually supportive linkages, provide further institutional incentives for effective implementation, cross-sectoral coordination, coherent and inclusive outcomes of REDD+ activities.Footnote 36 However, as Milbank et al. contend, ‘both REDD+ and the SDGs represent aspirational ambitions for the global community, but much of their potential depends on the ways in which these goals are translated into meaningful (and verifiable) local actions’.Footnote 37 Although REDD+ is most closely related to SDG 13 (take urgent action to combat climate change and its impacts) and SDG 15 (protect, restore and promote sustainable use of terrestrial ecosystems), as Table 1 shows, there are significant synergies between REDD+ objectives and the SDGs.

Table 1 Significant synergies between REDD+ objectives and the SDGs
Full size table

4 Advancing a Rights-Based Approach Within a Green Criminology Framework

To deliver meaningful environmental and social benefits, REDD+ initiatives must consider the environmental and social harms connected to the programme and manage the risks by considering the wider socio, political, economic and legal context attributed to the harms including regulations and mechanism as well as the limits of the law as discussed below. With many environmentally destructive development practices taking place on traditional lands and severely impacting on native and indigenous communities’, the struggle to conserve the environment is very often intertwined with social and ecological justice, including the protection and promotion of both human and environmental rights. Factors such as geographical location, natural-resource dependency, historical marginalisation from decision-making and public policies, insecurity of rights to lands, territories and resources, low income, and institutions and customary laws that are not respected by dominant governance systems, make Indigenous People and forest communities highly vulnerable to mitigation strategies like REDD+. If designed and governed well, REDD+ has the potential to positively affect the livelihoods of forest dwellers as well as preserve or enhance their fundamental rights. However, its success will largely rely on (1) the acknowledgment of the connected social and environmental harms and (2) the incorporation of a HRBA and the alignment with the SDGs into the design and implementation scheme to act as an alternative benchmark to legal definitions of crime in counteracting these harms. As Hunter notes, ‘the rights-based approach brings perspective and expertise that holds the promise of setting adaptation priorities in a way that meets the twin goals of reducing climate change impacts while progressively fulfilling economic, social, and cultural rights’.Footnote 38 To date, few African countries, the exceptions being Cote d’Ivoire, DRC, Ethiopia, Ghana, Republic of Congo, Tanzania, Uganda, and Zambia, have anchored their REDD+ strategies on a rights-based approach. To follow and incorporate a HRBA into REDD+ alongside Agenda 2030, REDD+ needs to address several critical challenges.

4.1 Political and Institutional Challenges

Although REDD+ presents an opportunity to clarify and strengthen individual and communal land rights, tenure security and forest user rights as well as address inequality in land ownership in Africa, the protection of forest communities and Indigenous Peoples’ substantive rights remains one of the biggest challenges for the programme. REDD+ risks exacerbating issues related to unsecured rights and pre-existing conflicts such as the dispossession of marginalised people, exclusion of forest dwellers from the planning and implementation, as well as corruption and land grabbing either by national elites or foreign investors.Footnote 39 To secure substantive rights, effective and equitable local property rights are needed as well as a review of current land tenure reforms in order for local communities to claim property or collective tenure rights on the forest land and its resources. However, within the context of REDD+ in Africa, this is particularly difficult given that prevailing land tenure is characterised by various overlapping forms which simultaneously allocates various levels of legal land titles to the state, community, and the individual, making it incompatible with the conventional concept property rights. Furthermore, many African states have built political systems in which politics and land are heavily intertwined. Therefore, many governments are likely to find land reform an ‘unacceptable trade-off between their political interests in land and the benefits of REDD+ for local communities’.Footnote 40 Although land remains the most important resource for development on the continent, with sub-Saharan Africa home to over 202 million hectares or around half the world’s total holdings of useable uncultivated fertile land, only 10% of Africa’s rural land is registered, with the remaining 90% undocumented and informally administered.Footnote 41 As Gizachew et al. note, ‘in most African countries, the state claims legal title over land, especially forested-land, but often appears to have weak control over the forests themselves. On the other hand, a great majority of the rural population, including both individuals and communities, depends on forests that they do not legally own’.Footnote 42

While African countries such as Tanzania have undertaken policy reforms to improve land governance and forest management practices over the last two decades,Footnote 43 landownership inequalities and land tenure security remain an issue. Although provisions for tenure rights remain vague, Cameroon, which has been engaged in developing REDD+ since 2005, has explicitly included community forestry, adopted as part of its 1994 decentralised forestry law 94/01, as one of its strategies in its REDD+ readiness preparations.Footnote 44 This involves ‘reserving a community forest area, allocating the forest to the local community after the preparation of a simple management plan (SMP), and sustainably exploiting the forest resources for the benefit of the community on the basis of a management agreement’.Footnote 45 While community forestry has gone some way to addressing forest user rights, covering around 1364.203 ha or 9% of the national forest estate,Footnote 46 securing and enforcing nondiscretionary forest tenure rights remains an issue in Cameroon.Footnote 47 Moving away from top-down approaches by strengthening national and sub-national institutional capacity and performance as well as implementing a cross-sectoral and inter-ministerial approach to REDD+ through the coordination and cooperation among multiple government agencies is critical to developing truly inclusive forest management programmes and to enforcing forest laws. However, among African countries, REDD+ planning and decision-making processes tend to be highly centralised and the capacity of different stakeholder groups to engage in governance processes is limited. In Kenya, preparation of national REDD+ strategies were coordinated by the Kenyan forestry sector.Footnote 48 The lack of consultation with other key sectors such as land and agriculture as well as sectoral competition for climate finance led to a negative vertical policy interplay which impeded the implementation of policies and participatory forest management.Footnote 49 Tanzania on the other hand has adopted a multilevel governance approach. To facilitate multilevel and multi-sector REDD+ processes, the National REDD Task Force (NRTF) was set up to oversee the implementation of technical and operational issues in relation to REDD+ readiness in 2009. This was later replaced by the National Climate Change Technical Committee (NCCTC) and National Climate Change Steering Committee (NCCSC).Footnote 50 Despite opening up, new opportunities for civil society to participate and influence the national REDD+ strategy, the process was still largely dominated by government representatives.Footnote 51

4.2 Social and Economic Challenges

As REDD+ projects continue to gather momentum across Africa its success will largely depend on whether Indigenous Peoples and local communities’ interests are integrated into policy deliberations and decision-making processes and if their participatory rights, including their right to give or withhold Free Prior Informed Consent (FPIC) as well as respect for customary land rights, are respected. Although the legal status of FPIC has been strengthened through the adoption of the UNDRIP in 2007 and the ILO Convention No. 169, its application has proved to be extremely difficult. Currently, only the Central African Republic (2010) has ratified ILO 169, however, only three of the 53 African states abstained from the UNDRIP vote, despite being under substantial pressure from the United States and Canada to join the anti-UNDRIP vote.Footnote 52 Furthermore, in 2009, the African Commission adopted a Resolution on Climate Change and Indigenous Peoples which called upon African states to pay particular attention to the vulnerability of indigenous communities to climate change. While some countries such as the Republic of Congo, the Central African Republic, and Cameroon have begun to introduce legal or policy frameworks dealing specifically with Indigenous Peoples and engage in dialogue over indigenous issues, Indigenous Peoples are still yet to be recognised in many African states and are often referred to as forest dependent, forest adjacent people or marginalised groups. Although the implementation of FPIC remains a key challenge,Footnote 53 it is also an opportunity to enhance support for the recognition and compliance of indigenous rights and their incorporation into legal norms within Africa.

In the context of REDD+, FPIC is addressed indirectly though the text on safeguards in Annex 1 of the Cancun Agreements which notes that the General Assembly has adopted UNDRIP and requires REDD+ partner countries to promote and support ‘the knowledge and rights of Indigenous Peoples and members of local communities’ and ensure ‘the full and effective participation of relevant stakeholders, inter alia, Indigenous Peoples and local communities’.Footnote 54 In the absence of a legal land title, indigenous communities face an uphill struggle to assert FPIC and the run the risk that land could be taken away from them by governments to capture REDD+ revenues. Indigenous Peoples and local communities in Africa, regardless of gender, age or standing, must be informed, consulted and able participate in decision-making at all levels and phases of the REDD+ process free from coercion, bias, conditions, bribery, or rewards. However, increasing evidence demonstrates the lack of effective actions to ensure the rights of Indigenous Peoples in the planning and implementation of REDD+ projects as well as access to information and transparency about the processes and outcomes of REDD+.Footnote 55

In their study of the TFCG/Mjumita REDD+ project in Lindi, Tanzania, Schebaa and Rakotonarivo reported that REDD+ project staff had used the issue of rainwater, whereby it was ‘emphasised to villagers that protecting trees could “drag and pull in clouds” and therefore attract rain’ to create a sense of urgency for farmers who were reliant on rain-fed agriculture to sell the project. Furthermore, false expectations over future carbon income and other development benefits such as tenure security, agricultural improvements and increased production were raised among the villagers and played a substantial role in incentivising the community to approve the project.Footnote 56 In instances when consultations have taken places, communities have complained that the consultation periods were too short, lasting as little as one hour as in the case of the Amerindian community of Chenapou in Guyana and preventing residents from actively participating and having their opinions heard.Footnote 57

Although REDD+ can potentially provide new opportunities for generating income and enhance resilience of vulnerable livelihoods, ensuring equitable benefits and shared growth alongside reducing deforestation and degradation remains a key challenge. Despite recognition that it is important to include local communities and customary practices and values in efforts to sustainable manage forests, decentralise forest management rights and responsibilities and align the SDGs with the interests of local groups, the increase in the value of forests due to REDD+ has led to an increase in the number and size of forest reserves and national parks by governments.Footnote 58 This has caused a growing number of conflicts between conservation policies and communities’ rights and concerns have been raised over equitable access to forests and how different communities and households can benefit equally from the financial payouts.Footnote 59 As the case of Kenya demonstrates, although the design of projects may be attentive to equity concerns, REDD+ can reinforce inequality because of existing land tenure regimes. Consequently, benefits tend to be concentrated in the hands of a few, namely ranch owners and private companies, while local people only benefit from the revenue allocated to their community and are negatively impacted by the restrictions imposed on access to land for cultivation, hunting, charcoal production, and firewood collection.Footnote 60

The failure of REDD+ to clarify the nature of carbon rights in legal terms has raised questions about who holds the rights to emissions reductions and the associated benefits, whether carbon rights should be considered as a land interest separate from the land upon which the carbon is situated and how rights should be assigned in countries that allow private and community forest ownership as well as state ownership of forest resources. The issue of carbon rights questions the established common-law presumption that the carbon contained within those trees is a natural part of the land and therefore belongs to the landowner.Footnote 61 Currently, there are very few countries which have developed laws relating to carbon sequestration as an environmental service or as a resource produced by forests, one of the few exceptions being Australia.Footnote 62 Furthermore, only a few cap-and-trade systems cover the land sector with New Zealand’s emission trading system being one.Footnote 63 Although the establishment of carbon rights is requirement to access results-based finance, few African states have yet addressed the controversial issue of carbon rights and there is little guidance on benefit sharing. In Kenya for example, carbon rights are linked to ownership of land.Footnote 64 While in the DRC, following the passing of a Homologation Decree in 2018, the national government has the primary right to all carbon units although rights can be transferred to private project developers through a Homologation Certificate. Mozambique has followed a similar approach to the DRC while Madagascar has gone further by proposing in a draft REDD+ decree that the government hold all the rights to the emission reductions and the right to commercialise such rights.Footnote 65 The lack of clarity on carbon rights has made REDD+ more susceptible to unfair practices such as carbon piracy, which has been compounded by the fact that land tenure systems tend to be unclear, contested or poorly enforced. Parties have entered and continue to enter into carbon rights agreements without a legal framework or independent support in place to safeguard against the exploitation of those parties involved. Therefore, to ensure equitable and transparent sharing of benefits and prevent carbon contracts from being signed without guaranteeing and safeguarding fundamental rights, forest communities need to be established as legal owners of carbon credits generated from within their lands.

5 Conclusion

This chapter has highlighted concerns over the harmful impacts of REDD+ activities at a local level on the protection and promotion of indigenous and forest peoples’ rights and welfare whose livelihoods, culture and way of life rely on forests. The insights of green criminology can be invaluable in framing such assessments and addressing the environmental and social harms connected to REDD+, the current legal duties and safeguards placed on African states and developing appropriate safeguards and incorporating procedural standards into the rhetoric of REDD+ in the future. To deal successfully with existing and emerging social and environmental harms related to REDD+, a regulatory approach that recognises all stakeholders and is intertwined with social and environmental justice and operationally engaged in the promotion of human and environmental rights is critical. Concerns about the social impact of REDD+ demonstrate the urgent need to incorporate HRBA into its design and implementation and strengthen the programmes alignment with the SDGs with which is shares clear synergies. While human rights are socially constructed, they are codified legal norms and relatively universal in acceptance and widely endorsed. Therefore, when thinking of environmental harm, human rights can act as an alternative benchmark to legal definitions of crime, offering both an important means for analysing REDD+ and tools for acting on that analysis. As human rights move into new areas such as the environment and development, the human rights discourse must move beyond identifying the problem and make a greater contribution to the solution. Therefore, adopting such an approach is critical to identifying the harms of REDD+ and developing effective policies and measures to prevent such harms, measuring human rights standards and the gap between those standards and the reality on the ground for REDD+ to contribute to achieving the SDGs and fulling human rights, ensuring the participation of marginalised groups, fostering strategies that empower rights-holders as well as holding systems and duty-bearers accountable.