Abstract
Nuclear energy has become an issue of debate, especially in light of the need for electricity production on the African continent. However, concerns have been raised regarding African States’ ability to effectively sustain safe nuclear programs for the purpose of energy production. These include financial, political and security concerns. It appears that there is a balance to be struck between pursuing the potential sustainable source of energy that nuclear energy could provide, and managing the risks associated with this kind of technology. Another possible pitfall of nuclear energy in Africa has been illustrated by the recent South African nuclear deal with Russia. This deal has clearly demonstrated the potential for corruption and foreign influence in future nuclear projects in African States. This chapter aims to briefly investigate the potential for nuclear energy in Africa, and elucidate how other African States can draw on the South African experience to ensure that any future nuclear projects occur in a safe and sustainable manner.
LLB LLM LLD. Post-Doctoral Research Fellow, South African Research Chair in International Law, University of Johannesburg. This chapter is based on research supported by the National Research Foundation of South Africa (Grant Number 85104).
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Notes
- 1.
- 2.
International Atomic Energy Agency (3 September 2018) Is Africa Ready for Nuclear Energy? https://www.iaea.org/newscenter/news/is-africa-ready-for-nuclear-energy.
- 3.
Id.
- 4.
Fabricius 2016. With regard to security concerns, South Africa has had a few incidents of security breaches at its Koeberg nuclear reactor site. In 1982, members of the ANC’s armed group uMkhonto weSizwe planted bombs at the nuclear station, which detonated and caused significant damage to the site. In 2002, Greenpeace activists gained access to the Koeberg facility displaying banners protesting the use of nuclear energy in South Africa; however, authorities at the time claimed that it was a planned protest and there was no risk of a security breach. In 2007 intruders broke into the Pelindaba nuclear facility, gaining access to a control room and shooting an employee stationed in the control room. The intruders fled without taking anything valuable and authorities claimed that the incident was crime related. See Bamford 2006; Louw 2002; Nuclear Threat Initiative (24 November 2008) ‘South African Nuclear Plant Raiders May Have Had Inside Help’. https://www.nti.org/gsn/article/south-african-nuclear-plant-raiders-may-have-had-inside-help/.
- 5.
Fig 2005, 9.
- 6.
International Atomic Energy Agency (3 September 2018) ‘Is Africa Ready for Nuclear Energy?’, https://www.iaea.org/newscenter/news/is-africa-ready-for-nuclear-energy.
- 7.
World Nuclear Association (2018) Nuclear Power in South Africa, http://www.world-nuclear.org/information-library/country-profiles/countries-o-s/south-africa.aspx.
- 8.
Department of Energy (2018) Integrated Resource Plan 2018, http://www.energy.gov.za/IRP/irp-update-draft-report2018/IRP-Update-2018-Draft-for-Comments.pdf. See also Creamer 2018.
- 9.
Business Tech (14 January 2019) ANC drops Zuma’s nuclear plans—and embraces renewable energy instead, https://businesstech.co.za/news/energy/293324/anc-drops-zumas-nuclear-plans-and-embraces-renewable-energy-instead/. See also politics web (13 January 2019) The ANC’s 2019 election manifesto, https://www.politicsweb.co.za/documents/the-ancs-2019-election-manifesto.
- 10.
Rosatom (30 October 2017) Russia and Nigeria signed nuclear project development agreements. https://www.rosatom.ru/en/press-centre/news/russia-and-nigeria-signed-nuclear-project-development-agreements/.
- 11.
Ibid.
- 12.
Rosatom (25 June 2018) Russia and Rwanda signed a Memorandum of Understanding on cooperation in the field of peaceful uses of atomic energy. https://www.rosatom.ru/en/press-centre/news/russia-and-rwanda-signed-a-memorandum-of-understanding-on-cooperation-in-the-field-of-peaceful-uses-/.
- 13.
Ibid.
- 14.
Rosatom (15 May 2018) Rosatom and the Republic of Zambia signed a general contract for the construction of a Centre for Nuclear Science and Technology. https://www.rosatom.ru/en/press-centre/news/rosatom-and-the-republic-of-zambia-signed-a-general-contract-for-the-construction-of-a-centre-for-nu/.
- 15.
Rosatom (1 June 2016) ROSATOM and Kenyan Council for nuclear energy signed a Memorandum of understanding in the field of peaceful use of nuclear energy, https://www.rosatom.ru/en/press-centre/news/rosatom-and-kenyan-council-for-nuclear-energy-signed-a-memorandum-of-understanding-in-the-field-of-p/; Rosatom (16 May 2018) ROSATOM and the Ministry of Water Resources, Irrigation and Electric Power of the Republic of Sudan signed a number of documents for the cooperation development in the field of the peaceful use of nuclear energy of the Republic of Sudan, https://rosatom.ru/en/press-centre/news/rosatom-and-the-ministry-of-water-resources-irrigation-and-electric-power-of-the-republic-of-sudan-s/; see also Rosatom (19 June 2017) Russia and Uganda sign a Memorandum of understanding on cooperation in peaceful uses of atomic energy, https://www.rosatom.ru/en/press-centre/news/russia-and-uganda-sign-a-memorandum-of-understanding-on-cooperation-in-peaceful-uses-of-atomic-energ/; Rosatom (26 April 2016) Russia and Algeria signed a Memorandum of understanding on the cooperation on peaceful use of nuclear energy. http://www.rosatominternational.com/en/news/2016/04/28-04-1; Rosatom (13 October 2017) Rosatom International Network and the National Centre of Nuclear Energy Science and Techniques of the Kingdom of Morocco signed a memorandum of cooperation, https://rosatom.ru/en/press-centre/news/rusatom-international-network-and-the-national-center-of-nuclear-energy-science-and-techniques-of-th/.
- 16.
Winkler 2018.
- 17.
Winkler 2018.
- 18.
Ibid. The projected debt amount for the Egyptian project is 25 billion dollars and this amount only covers construction costs and does not include interest, decommission costs, operation costs and overrun costs, which could almost double the initial lending amount. See also The Economist (2 August 2018) ‘The world relies on Russia to build its nuclear power plants: And Russia is happy to oblige’, https://www.economist.com/europe/2018/08/02/the-world-relies-on-russia-to-build-its-nuclear-power-plants, where the author states that nuclear plants ‘offer an obvious diplomatic lever in the form of sway over a large portion of a country’s electricity-generation capacity’. In this case Russia could use energy as a ‘geopolitical weapon’.
- 19.
Sah et al. 2018. The intergovernmental nuclear agreement between South Africa and Russia does not adequately address these concerns. The only regulatory measures in the agreement are measures relating to non-proliferation and the physical protection of nuclear facilities, as well as development and implementation of an emergency response system, which are only mentioned and not elaborated on in detail. The only measure that is discussed in some detail, is the clause on non-proliferation according to the provisions of the NPT and a provision that nuclear material should be subject to IAEA safeguards and not be used for military purposes. See Articles 3 and 13 of the Intergovernmental Agreement between the Government of the Russian Federation and the Government of the Republic of South Africa on Strategic Partnership and Cooperation in the Fields of Nuclear Power and Industry (21 September 2014), http://www.ee.co.za/wp-content/uploads/2015/02/amaBhungane-English-translation-of-Russian-nuclear-cooperation-agreement.pdf.
- 20.
The Economist (2 August 2018) ‘The world relies on Russia to build its nuclear power plants: And Russia is happy to oblige’, https://www.economist.com/europe/2018/08/02/the-world-relies-on-russia-to-build-its-nuclear-power-plants. See also The Japan Times (27 July 2017) ‘Russia unrivaled in nuclear power plant exports’, https://www.japantimes.co.jp/opinion/2017/07/27/commentary/world-commentary/russia-unrivaled-nuclear-power-plant-exports/#page.
- 21.
De Clerq 2018.
- 22.
The Economist (2 August 2018) ‘The world relies on Russia to build its nuclear power plants: And Russia is happy to oblige’, https://www.economist.com/europe/2018/08/02/the-world-relies-on-russia-to-build-its-nuclear-power-plants.
- 23.
Ibid.
- 24.
Ibid; see also The Japan Times (27 July 2017) Russia unrivaled in nuclear power plant exports. https://www.japantimes.co.jp/opinion/2017/07/27/commentary/world-commentary/russia-unrivaled-nuclear-power-plant-exports/#page.
- 25.
See media statement ‘Russia and South Africa sign agreement on Strategic Partnership in Nuclear Energy’, http://www.energy.gov.za/files/media/pr/2014/MediaRelease-Russia-and-SA-sign-agreement-on-Strategic-Partnership-in-Nuclear-Energy-22September-2014.pdf.
- 26.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others (19529/2015) [2017] ZAWCHC 50; [2017] 3 All SA 187 (WCC); 2017 (5) SA 227 (WCC) (26 April 2017).
- 27.
See Fin24 (30 January 2018) Rosatom signs first deal in South Africa. https://www.fin24.com/Companies/Industrial/rosatom-signs-first-deal-in-south-africa-20180130.
- 28.
Ibid. Licksay 2018.
- 29.
Ibid. Kilian 2018.
- 30.
Kilian 2018; Fin24 (30 January 2018) Rosatom signs first deal in South Africa. At https://www.fin24.com/Companies/Industrial/rosatom-signs-first-deal-in-south-africa-20180130.
- 31.
Kilian 2018.
- 32.
Kilian 2018; Harris 2018; see also Rosatom (2018) Hydro-electric power. https://rosatom.ru/en/rosatom-group/non-nuclear-equipment-manufacturing/hydro-electric-power/; Fin24 (30 January 2018) Rosatom signs first deal in South Africa. https://www.fin24.com/Companies/Industrial/rosatom-signs-first-deal-in-south-africa-20180130.
- 33.
Rosatom (2018) Hydro-electric power.
- 34.
Okechukwu 2018.
- 35.
Ibid.
- 36.
Ibid.
- 37.
Fin24 (30 January 2018) Rosatom signs first deal in South Africa. https://www.fin24.com/Companies/Industrial/rosatom-signs-first-deal-in-south-africa-20180130.
- 38.
Rosatom (29 January 2018) Rosatom signs contract for small scale hydro facility in the Republic of South Africa. https://www.rosatom.ru/en/press-centre/news/rosatom-signs-contract-for-small-scale-hydro-facility-in-the-republic-of-south-africa/.
- 39.
Gosling 2018.
- 40.
The president of the Goldman Environmental Foundation, Susie Gelman, stated that McDaid and Lekalakala ‘epitomised what the foundation stood for: courage, compassion, vision, collaboration and hard work in the name of environmental justice…Their significant achievements in South Africa inspire people all over the word and we’re proud to recognise the efforts of these dynamic environmental leaders’, see Gosling 2018; Chutel 2018.
- 41.
- 42.
Gosling 2018.
- 43.
Ibid. See also Chutel 2018.
- 44.
Gosling 2018.
- 45.
Ibid. See also Chutel 2018. The deal would have cost the South African government 76 billion dollars for the nuclear power plant. However, in the Court judgment it was stated that the ultimate cost of the project as estimated by the applicants, which would have to be paid by the public through taxes and electricity charges, would be approximately 1 trillion dollars. The respondents did not dispute this estimated amount. The applicants further noted that ‘the allocation of such significant resources to the project will inevitably effect spending on other social programs in the field of education, social assistance of health services and housing.’ See Earthlife Africa Johannesburg and Another v Minister of Energy and Others (19529/2015) [2017] ZAWCHC 50; [2017] 3 All SA 187 (WCC); 2017 (5) SA 227 (WCC) (26 April 2017) para 44.
- 46.
Gosling 2018.
- 47.
Ibid. See also Sections 59, 72, 118 and 195 of the Constitution of the Republic of South Africa.
- 48.
See Public Protector: South Africa (2016) State of capture: Report on an investigation into alleged improper and unethical conduct by the President and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of Ministers and Directors of State-Owned Enterprises resulting in improper and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses. http://saflii.org/images/329756472-State-of-Capture.pdf.
- 49.
Chutel 2018.
- 50.
Gosling 2018.
- 51.
Chutel 2018.
- 52.
Gosling 2018.
- 53.
Chutel 2018; see Earthlife Africa Johannesburg and Another v Minister of Energy and Others (19529/2015) [2017] ZAWCHC 50; [2017] 3 All SA 187 (WCC); 2017 (5) SA 227 (WCC) (26 April 2017), paras 141–143.
- 54.
Botha 2017.
- 55.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others (19529/2015) [2017] ZAWCHC 50; [2017] 3 All SA 187 (WCC); 2017 (5) SA 227 (WCC) (26 April 2017).
- 56.
Ibid.
- 57.
Id., para 1; see also Section 34 of the Energy Regulation Act 4 of 2006 which states: ‘(1) The Minister may, in consultation with the Regulator (a) determine that new generation capacity is needed to ensure the continued uninterrupted supply of electricity; (b) determine the types of energy sources from which electricity must be generated, and the percentages of electricity that must be generated from such sources; (c) determine that electricity thus produced may only be sold to the persons or in the manner set out in such notice; (d) determine that electricity thus produced must be purchased by the persons set out in such notice; (e) require that new generation capacity must (i) be established through a tendering procedure which is fair, equitable, transparent, competitive and cost-effective; (ii) provide for private sector participation. … (3) The Regulator, in issuing a generation licence (a) is bound by any determination made by the Minister in terms of subsection (1); (b) may facilitate the conclusion of an agreement to buy and sell power between a generator and a purchaser of that electricity.’.
- 58.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 1.
- 59.
Id. para 3.
- 60.
Id. para 4.
- 61.
Ibid. The 2013 determination states the following: ‘The Minister of Energy … in consultation with … (“NERSA”), acting under Section 34(1) of the Electricity Regulation Act 4 of 2006 … has determined as follows: (1) that energy generation capacity needs to be procured to contribute towards energy security and to facilitate achievement of the greenhouse gas emission targets for the Republic of South Africa, accordingly, 9600 megawatts (MW) should be procured to be generated from nuclear energy (“nuclear programme”), which is in accordance with the capacity allocated under the Integrated Resource Plan for Electricity 2010–2030 …; (2) electricity produced from the new generation capacity (“the electricity”), shall be procured through tendering procedures which are fair, equitable, transparent, competitive and cost-effective; (3) the nuclear programme shall target connection to the Grid as outlined in the IRP2010-2030 (or as updated), taking into account all relevant factors including the time required for procurement; (4) the electricity may only be sold to the entity designated as the buyer in para 7 below, and only in accordance with the power purchase agreements and other project agreements to be concluded in the course of the procurement programmes; (5) the procurement agency in respect of the nuclear programme will be the Department of Energy; (6) the role of the procurement agency will be to conduct the procurement process…’ (emphasis added), see Government Gazette of 21 December 2015, http://www.energy.gov.za/files/policies/2015-Gazetted-Nuclear-Programme-Determination.pdf. See also Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 26.
- 62.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 4.
- 63.
Id., para 5.
- 64.
Id., para 6.
- 65.
Id., para 14, para 28; see also Section 33 of the Constitution which states that: ‘Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.’
- 66.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 28; see also Section 1 of the Promotion of Administrative Justice Act 3 of 2000.
- 67.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 29; Section 85(2)(b) of the Constitution of the Republic of South Africa.
- 68.
Id., para 30.
- 69.
Id., para 32.
- 70.
Id., para 46.
- 71.
Id., para 47, 50.
- 72.
Id., para 16; see also Section 217(1) of the Constitution which states: ‘When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.’
- 73.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 54.
- 74.
Id., para 58.
- 75.
Id., para 59.
- 76.
The applicants averred that according to Sections 3 and 4 of PAJA and Section 10(1)(d) of NERA, the 2016 determination was rendered procedurally unfair due to the lack of a public participation process prior to the determination being made. See Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 66.
- 77.
Id., para 75.
- 78.
Id., paras 80, 81.
- 79.
Section 231(2) and (3) of the Constitution of the Republic of South Africa.
- 80.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 11; see also Department of International Relations and Cooperation South African Treaty Register, Agreement on Cooperation in the Peaceful uses of Atomic Energy (20 November 2004). https://treaties.dirco.gov.za/dbtw-wpd/images/20041120RussiaAtomicEnergy.pdf. Accessed 21 January 2019.
- 81.
Id., para 12.
- 82.
Id., para 106.
- 83.
Ibid.
- 84.
Id., para 107.
- 85.
Ibid. See also Article 7 of the Agreement between the Government of the Russian Federation and the Government of the Republic of South Africa on Strategic Partnership and Cooperation in the Fields of Nuclear Power and Industry (21 September 2014), https://treaties.dirco.gov.za/dbtw-wpd/images/20140921RussiaNuclearEnergy.pdf.
- 86.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 107; Articles 9 and 15 of the Government Agreement of 21 September 2014.
- 87.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 11.
- 88.
Id., para 112.
- 89.
Ibid.
- 90.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 115.
- 91.
Id. para 116.
- 92.
Ibid.
- 93.
Ibid.
- 94.
Earthlife Africa Johannesburg and Another v Minister of Energy and Others, para 135.
- 95.
Gosling 2018.
- 96.
Ibid.
- 97.
Gosling 2018.
- 98.
According to Lekalakala: ‘The nuclear deal was—and potentially still is—a major threat to the livelihood of South African citizens and our quality of life…There are other ways of generating energy, ways that are clean and affordable, and puts the power in the hands of the people.’ See Chutel 2018.
- 99.
Khumalo 2018.
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Meyer, Y. (2020). Foreign Assistance in Establishing and Operating Nuclear Power Plants: The South African Experience. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume V. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-347-4_10
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