“You cannot protect the environment unless you empower people,you inform them,and you help them understand that these resources are their own,that they must protect them.” The late Nobel Laureate Prof.Wangari Maathai.
Proper management of the environment is an essential part to achieving sustainability.Environmental regulations are imperative if sustainable development has to be achieved.Kenya’s legal framework for environmental management and conservation has greatly metamorphosed in the past two decades. The main aim of these changes has been to ensure that the legal framework in place effectively addresses environmental problems such as environmental rights violations and that the environmental conservancy efforts are fully supported by the law.
It is therefore useful to point out that the current legal framework on the environment and environmental rights is a product of a prolonged clamor for a comprehensive legal regime to address these problems. In this prolonged quest, two important achievements were made as a benchmark in this struggle, first was the enactment of the 1999 Environmental Management and Coordination Act (EMCA) which recognized for the first time the right of every person to a clean and healthy environment and gave every person locus standi to institute a case for any environmental rights violation.
The promulgation of the Constitution of Kenya came in second in 2010,it effectively elevated environmental rights and environmental issues generally to constitutional status under the Bill of rights. These two significant yardsticks brought about both normative and institutional transformation to environmental rights regime. As C.O.Okidi observes,at the end of the twentieth century, the country had approximately 77 statutes dealing with environmental issues. This was because environmental legal regime was found in various sectoral legislations which were enforced by various sectoral institutions as had been established by the colonial government.
These covered a number of sectors, such as forest conservation, wildlife conservation,geology and mining, agriculture, livestock husbandry, water conservation and waste disposal. A.Ang’wenyi notes that the country’s post-colonial environmental law regime was to be understood from fragmented sectoral laws which were ill-structured to deal with the systemic environmental concerns that faced post-independence Kenya and that purported to deal with environmental conservation,improvement and protection.
Under this regime, there was no specific law or even policy that was deigned to redress violation of environmental rights. As such environmental rights could only be addressed under private law as contractual issues or under public nuisance and which action could only be brought by the Attorney General on behalf of the public. As a result, a lot of concerns were raised over the effectiveness of this regime of law to address environmental problems in the country. This therefore necessitated a new regime in which all the sectoral laws on environment would be consolidated under one comprehensive legal framework that would effectively deal with environmental rights and management.
Consequently, the country embarked on a continuous and desperate quest for a more effective legal framework on the environment. This quest culminated into two broad outcomes – the enactment of EMCA and the inclusion of environmental concerns in the Constitution as mentioned in the foregoing.
The legal framework for environmental management and governance therefore is :
i. The Constitution of Kenya, 2010;
ii. Environment Management and Co-ordination Act, 1999; and
iii. Any other law that has an impact on the environment.
The Constitution of Kenya is the Supreme law of the land and therefore any other law must be enacted in accordance with the Constitution and in furtherance of the principles and values embodied in the Constitution. In its preamble, the Constitution acknowledges the need for the protection of the environment by providing that, “We, the people of Kenya…, respectful of the environment, which is our heritage, and determined to sustain it for the benefit of future generations…”
Article 42 guarantees every person the right to a clean and healthy environment, which includes the right-
(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and
(b) to have obligations relating to the environment fulfilled under Article 70.
Article 70(1) deals with the enforcement of environmental rights. It states that, “If a person alleges that a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to court for redress in addition to any other legal remedies that are available in respect to the same matter.”
The above provision is deliberately wide in scope to ensure that any infringement of environmental rights, whether present or threatened is squarely dealt with. It also recognizes not only legal remedies but any other additional remedy.
To ensure speedy and efficient redress of environmental matters, the Constitution has established a specialized environment court – the Environmental and Land Court, a move that has been hailed as a first in Africa.
Article 69 sets out certain obligations of both the state and persons in respect of the environment. The Article creates several obligations in respect to the environment. First, it places an obligation on the state to inter laia; ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;encourage public participation in the management, protection and conservation of the environment;establish systems of environmental impact assessment,environmental audit and monitoring of the environment;eliminate processes and activities that are likely to endanger the environment; and utilize the environment and natural resources for the benefit of the people of Kenya.
The Constitution also provides for the principle of public participation as one of the Principles and Values of governance under Article 10.
The 2010 Constitution requires parliament to seek the input of the public before enacting legislation. Previously, legislation in the country was enacted without the input of the public.
To enhance public participation, the Constitution has established a devolved system of governance which gives every citizen at the lowest level of the society an opportunity to participate in governance process including environmental governance.
The Fourth Schedule to the Constitution details the distribution of functions between the national and county governments. With regard to the environment, the national government is responsible for, first, the protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, in particular (a) fishing, hunting and gathering; (b) protection of animals and wildlife; (c) water protection, securing sufficient residual water, hydraulic engineering and the safety of dams; and (d) energy policy and secondly the ‘implementation of specific national government policies on natural resources and environmental conservation, including (a) soil and water conservation; and (b) forestry’.
Public participation creates an avenue for stakeholder consultations thus making enforcement of environmental rights easier and faster without necessarily having to resort to court.
The Environmental Management & Coordination Act (EMCA) 1999
Prior to the promulgation of the Constitution of Kenya, 2010, the main legislative framework for environmental management and conservation was the 1999 Environmental Management and Coordination Act (EMCA). The Act establishes the legal framework for the appropriate management of the environment including the necessary structural and institutional framework.
It provided for the integration of environmental concerns in national policies,plans, programmes and projects. Under the Act, a 5-year Environmental Action Plan at National, Provincial and District levels was laid down as a guideline to steer the country towards achieving its long term environmental agenda.
The enactment of this Act was a great milestone in the history of environmental management in Kenya. Its key elements include:
a) A declaration that “Every person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard and enhance the environment” and that anyone has the locus standi before the court on matters of environmental protection and conservation. These were rights that were hitherto only recognized in policy documents and could not be enforced in a court of law. These provisions were later given constitutional….
b) The law extended the meaning of illegal activities within a number of areas, including waste management and pollution and degradation of rivers, lakes, wetlands, coastal zones, agricultural areas, forests and biodiversity.
c) The law also sets down the principles for Environmental Impact Assessment, and for the development of 5-year National Environmental Action Plans and similar plans to be developed at provincial and district level.
In addition to these key elements, it also establishes a strong and comprehensive institutional framework for environmental management. This includes:
i. The National Environment Management Authority (NEMA), as the principal government institution charged with overall co-ordination and supervision of environmental management in Kenya. NEMA is established under the Act as the principal institution responsible for supervising and coordinating the implementation and enforcement of the Act.
ii. The National Environment Council (NEC), chaired by the Cabinet Secretary is responsible for national environmental policy formulation;
iii. Provincial and District Environment Committees, composed of sector agencies, local government authorities and representatives of the public, are charged with carrying out environmental management at the local levels;
iv. The Public Complaints Committee is charged with investigating citizens’ complaints over violations of the EMCA;
v. The National Environment Tribunal whose mandate is to decide on grievances and appeals against decisions made by NEMA with respect to issues such as environmental licensing.
Effective implementation of environmental regulations is essential to improving and safeguarding a healthy and hospitable environment for all to enjoy.Kenya’s environmental legal regime is adequate for effective conservation of the environment and enforcement of environmental rights. The shortcomings in the environmental conservation in this country can be attributed to the failure to adequately implement exiting environmental laws. This failure is due to a range of factors: weaknesses in institutional capacities of governmental institutions mandated to enforce laws, lack of political will and inadequate funding of government institutions that enforce environmental law.
A Angwenyi: An overview of the Environmental Management and Co-ordination
Act in CO Okidi et al (eds) Environmental governance in Kenya: Implementing the
framework law (2008) 143.
CO Okidi: Review of the policy framework and legal and institutional arrangement for the management of environment and natural resources in Kenya,1994.
The Constitution of Kenya,2010.
The Environmental Management and Coordination Act,1999.