TOGO - ENVIRONMENTAL REGULATION
Togo, officially the Togolese Republic (République Togolaise) is located in West Africa, between Benin to the east and Ghana to the west, with Burkina Faso to the north and the Gulf of Guinea to the south. The country stretches through six geographic regions, and its climate varies from tropical to savanna. Togo’s terrain is generally rolling savanna in the north, with central hills, a southern plateau, and a low coastal plain.
Togo's natural hazards include hot, dry harmattan winds, which can reduce visibility in the north during the winter, and periodic droughts. The country has an abundance of bird species including numerous species of pelican, cormorant, heron, egret, stalk and ibis; Togo is also home to over 190 species of mammal, several of which are considered endangered or vulnerable including the cheetah, red-bellied monkey, African elephants and West-African manatee.
The country heavily relies on both commercial and subsistence agriculture, and its agricultural products include coffee, cocoa, cotton, yams, cassava, corn, beans, rice, millet, sorghum, livestock and fish. Current environmental issues include deforestation attributable to slash-and-burn agriculture and the use of wood for fuel, as well as water and air pollution.
PRINCIPAL LEGISLATION AND REGULATOR
Togo’s principal environmental legislation is the Environment Framework Law (Loi no. 2008-005 portant loi-cadre sur l’environnement) and its implementing regulations, including the National Environment Management Agency Decree (Décret no. 2009-090/PR du 22 avril 2009 portant attributions, organisation et fonctionnement de l’Agence Nationale de Gestion de l’Environnement (ANGE)), the National Environment Fund Decree (Décret no. 2009-091/PR portant attributions, organisation et fonctionnement du Fonds national de l’environnement), and the Environmental Audit Decree (Décret no. 2011-041/PR du 16 mars 2011 fixant les modalités de mise en œuvre de l’audit environnementale). The Environmental Framework Law provides that everyone has the right to a healthy environment and the obligation to protect the environment (Art. 3). The law also provides for, among other things, the principles of sustainable development and polluter pays (Art. 5).
The environmental impact assessment process is detailed in the EIS Decree (Décret 2006-058/PR du juillet 2006 fixant la liste des travaux, activités et documents de planification soumis à étude d’impact sure l’environnement et les principales règles de cette étude) and in ministerial orders, including Order No. 013/MERF portant réglementation de la procédure, de la méthodologie et du contenu des études d’impact sur l’environnement (2006) and Order No. 18/MERF fixant les modalités et les procédures d’information et de participation du public au processus d’étude d’impact sur l’environnement.
The Ministry of Environment and Forestry Resources (MERF, in French) is responsible for administering Togo’s environmental policy. The ministry is divided into several directorates, including the Environment Directorate (DE, in French), and two related agencies/institutions, the National Environment Management Agency (ANGE, in French), and the Forest Development and Exploitation Office (ODEF, in French). The ANGE is responsible for the national system of environmental impact studies and environmental audits.
Article 41 of the Togolese Constitution guarantees the right to a healthy environment and states that the government shall ensure the protection of the environment. Other relevant legislation includes the Forestry Code (Loi no. 2008-09 portant code forestier), which requires that forest clearing or woodcutting for mining or other development projects have the prior authorisation of the minister responsible for forestry resources (Art. 68), and the Water Code (Loi no. 2010 portant code de l’eau). Finally, the Mining Code (Loi no. 96-004 du 26 février 1996 portant code minier as amended by the Loi no. 2003-012 du 4 octobre 2003), Article 35, provides that mining titleholders must avoid harming the environment, including causing land, atmosphere and water pollution, as well as damage or destruction of flora and fauna.
The Environmental Framework Law indicates that activities, projects, programs and plans of development that, by their scale or impact on the environment or human population, may adversely affect the environment must be authorised by the Minister of Environment; authorisation will only be given following an environmental impact study (Art. 38). Mining installations are included on the list of classified installations that are likely to cause nuisance or threaten the environment. The law further requires that companies conduct mining operations in a sustainable manner, take necessary measures to avoid pollution and conserve Togo’s natural resources, and rehabilitate mining sites. Article 129 of the Environmental Framework Law also provides that prior authorisation for prescribed facilities or installations must be obtained on the basis of an environmental impact study, which involves an assessment of the risks and measures to avoid accidents, consultation with the local authorities or, in exceptional cases, the authorities of adjacent communities or prefectures and the relevant ministries, and the relevant local population. Such projects must also have an environmental management plan and an emergency plan.
The phases of the EIA process include the environmental impact study; the review and evaluation of the environmental impact study report; issuance of an environmental compliance certificate; monitoring of the implementation of the environmental management plan; and issuance of a final environmental compliance certificate (quitus environnementale). The project promoter submits a notice of project to the Minister of Environment detailing: the basic project and site information; technical procedures; principal social, economic and environmental impacts; estimated costs; timeline; and other complementary information to begin the procedure to establish the terms of reference. Relevant stakeholders and the local populations must be consulted prior to validation of the terms of reference for all large-scale projects.
There are two forms of EIA studies: a simplified and a detailed EIA study. Within the mining sector, a detailed EIA is required for all mines (except artisanal mines, which require a simplified EIA), as well as exploration activities (recherché minière) (see Decree No. 2006-058, Tableau VII – Secteur Minier). The environmental impact study must include the direct and indirect short-, medium-, and long-term impacts of the project and indicate the proposed measures to avoid, mitigate, or compensate for any negative impacts. As well, the environmental management plan must include appropriate mitigation measures, identification and responsibilities of the relevant actors, the timeline, budget and financing mechanisms, and any monitoring and testing indicators to ensure the implementation of the plan.
The project promoter submits the EIS report to the DE with a request for review and payment of the applicable fees. The DE has seven days to determine the admissibility of the report in accordance with applicable law and the terms of reference. The DE then coordinates the review of the EIS report in concert with the relevant institutions, in addition to on-site document consultation, the public inquiry or public hearing, and the organisation of the report analysis workshop. The result of the DE review is submitted to the MERF within 30 days for examination.
An ad hoc technical evaluation committee (CTE, in French) assists in the review of EIS reports and environmental audits and ensures that environmental interests and the interests of local populations are taken into account throughout the process. Ad hoc committees are composed of representatives from the DE, relevant technical directorates, local populations, NGOs, and EIS specialists. The environmental compliance certificate is delivered on the basis of the conclusions of the ad hoc CTE and the opinion of the DE, and specifies any relevant conditions. It is delivered within 15 days after the receipt of the final EIS report, taking into account the observations from the evaluation process. The environmental compliance certificate can be revoked at any time for failure to follow the environmental management plan after no action is taken after proper notice is delivered.
All projects requiring an in-depth EIE or projects requiring a simple EIE that may cause pollution, nuisance or environmental degradation, also require an environmental audit. Environmental audits allow for the periodic assessment of a project’s environmental management, and can include internal and external audits. The environmental audit process is within the purview of the ANGE, and any violations of the Environmental Audit Decree can lead to a range of sanctions, as requested by the Minister of Environment, ranging from a formal notice to revocation of the environmental compliance certificate or the closure of the enterprise. The MERF issues a quitus environnementale, acknowledging that the project has been carried out in conformity with the environmental management plan, upon receipt of the project promoter’s final report and the report of the DE.