News & Analysis

The Law and Recent Jurisprudence on Need for Communities’ Consent in Extractives Industry in Kenya

Published

2 years ago

November 18, 2021

Admin

By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*

Despite the continued development in the policy and legal framework on public participation and inclusive decision-making processes and the development of international law on the right to free, prior, and informed consent (FPIC), the level of openness of the government to citizen engagement in policy and development decision making is largely insufficient and sometimes completely missing even in cases where their livelihoods and rights to property and environment are at stake. There many cases where communities and groups of persons in Kenya have sought court intervention, both locally and regionally, to have their right to participation in decision-making processes affecting their lands. There are also instances where either consent is inappropriately obtained or the government invokes its powers on compulsory acquisition of land with or without adequate compensation. The extractives industry is the best example to in demonstrating the prevailing dynamics of communities’ consent in Kenya.

As a matter of fact, the extractive industry projects place intense pressure on land. At the same time, FPIC introduces heightened social performance requirements at a time where many mining companies are still grappling with the fundamentals of their corporate social responsibilities (CSR). Section 37 of the Mining Act 2016 stipulates that prospecting and mining rights should not be granted under the Act with respect to private land without the express consent of the registered owner, and such consent should not be unreasonably withheld. Consent is deemed to be given for the purposes of the Act where the owner of private land has entered into a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows for the conduct of prospecting or mining operations; or an agreement with the applicant for the prospecting and mining rights concerning the payment of adequate compensation.

The Mining Act also provides that prospecting and mining rights should not be granted under the Act or any other written law over community land without the consent of the authority obligated by the law relating to administration and management of community land to administer community land or the National Land Commission in relation to community land that is unregistered. For this purpose, consent should be deemed to be given for the purposes of the Act where the registered owners of community land have entered into a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows the conduct of prospecting or mining operations; or an agreement with the applicant for the prospecting and mining rights concerning the payment of adequate compensation. It is however worth pointing out that the Cabinet Secretary responsible for mining is entitled to take steps under Compulsory acquisition of land or rights or interests in land, to vest the land or area in question, or rights or interests in such land or area, in the Government or on behalf of the Government, where the consent required under sections 36, 37or 38 of the Mining Act 2016 is unreasonably withheld or the Cabinet Secretary considers that withholding of consent is contrary to the national interest.

Courts in Kenya have demonstrated willingness to uphold the requirement for seeking community consent where the same was not sought. For instance, in the case of Mohamed Hussein Haji v Issa Kuno & 4 others [2018] eKLR36, the petitioner sought a declaration that the Petitioner was entitled to information from the Respondents to verify and confirm whether constitutional and statutory regulatory requirements were complied with before the 1st and 2nd Respondents began their mining activities in the Ali Jibril area, within Wabari Ward in Garissa County, amongst other reliefs. The Court, ruling in favour of the petitioner, observed that in the case of a community land which falls within the ambit of customary law ownership which is neither public nor private, before any interest is acquired by any individual, the persons who ordinarily use that particular land must be consulted. The Court added that development that threatens life is not suitable development and it must be halted.

In environmental law, intergenerational equity involves the application of equity within the present and future generation such that each member has an equal right to access the earth’s natural and cultural resources. The land in question had not been acquired by the government from the community concerned by way of compulsory acquisition. The land belonged to the community and was held by the County Government of Garissa in trust for the affected community. There was no indication that consent was sought and obtained from the said County Government of Garissa. The land in question was an unregistered community land held in trust by the County Government of Garissa on behalf of the communities and as seen from the decision above, the consent of the county government must be obtained on behalf of the community. While the finding in this case is a step in the right direction by Kenyan courts to protect the interests of communities, there is still the risk of investors directly seeking the consent of county governments who then ignore communities and purport to grant consent on behalf of such communities. This may be done without the County government in question first engaging the communities to help them appreciate the whole project and the process in question and how the same might affect their livelihoods.

The question of consent has not only been arisen in the Kenyan context only. In South Africa’s case of Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another 2019 (2) SA 1 (CC), the Constitutional Court overruled an eviction order, issued by a lower court to a mining company, permitting it to evict 13 families from a farm in the Lesetlheng Community, North West Province, where the company had mining rights. Significantly, the court upheld a provision in the Interim Protection of Informal Land Rights Act, a law enacted to protect land rights after apartheid, which says that no person may be deprived of any informal right to land without his or her consent. The mining company had secured consent to the granting of the right from the minister who held the land in a trust and the traditional council but those living on the land were not consulted, as the Interim Protection of Informal Land Rights Act and the Mineral and Petroleum Resources Development Act required. The Constitutional Court ruled they could not be evicted because they had not been consulted and consented, nor were mechanisms for resolving disputes under the Mineral and Petroleum Resources Development Act exhausted.

This issue was also canvassed before the Pretoria High Court, in Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP) where court ruled that companies must first seek permission from local communities if they plan to mine on their ancestral land (the famous Xolobeni judgment). There are, however, those who have challenged the High Court decision as one that would make it practically impossible to get mining rights on traditional land because of the numbers of people affected. The critics of the South African High Court’s decision did not however see any problem with the Constitutional Court’s decision which is seen as one with two sides of the requirement for consent of the occupiers: The first is the consent of the traditional authority as the lawful representative of the community; and the second is the consent of those directly affected, both of which do not require the consent of every single occupier and makes a provision for majority consent under common law. The problem with requiring consent of every person living within an area, even those not directly affected by any proposed development project is that one faction of the community in question may be in favour of the mine because of the potential economic benefits as a result of compensation and the other would be opposed because it would affect their traditional way of life.

Last year in September, the Pretoria High Court, again in Baleni and Others v Regional Manager Eastern Cape Department of Mineral Resources and Others [2020] 4 All SA 374 (GP), handed down yet another landmark judgment confirming that mining-affected communities have the right to access information about the projects that impact them. In a case filed by the Leaders of the Umgungundlovu community which had for the last five years been concerned about the impacts of titanium mining proposed in the Xolobeni area of the Eastern Cape and were refused access to the mining rights application. They approached the High Court under the Promotion of Access to Information Act (PAIA) of South Africa arguing that the usual process for requesting that kind of information places communities at a disadvantage and may prevent them from exercising their constitutional rights. High Court ruled in favour of the Community ordering that interested and affected parties, the Community must be furnished with a copy of an application for a mining right to have meaningful consultation on an equal footing. What this means is mining community members will by default have access to the information to participate fully in discussions with mining companies and the state in their quest to realise other constitutional rights.

The Court, in the case of Patrick Musimba v National Land Commission & 4 others [2016] eKLR, opined that it had no doubt that the State under Article 69 of the Constitution is enjoined to ensure sustainable development and is also bound to ensure that every person has a right to a clean and healthy environment. However, physical development must also be allowed to foster to ensure that the other guaranteed rights and freedoms are also achieved. Such physical development must however be undertaken within a constitutional and statutory framework to ensure that the environment thrives and survives. It is for such reason that the Constitution provides for public participation in the management, protection and conservation of the environment. It is for the same reason too that the Environmental Management and Coordination Act (“the EMCA”) has laid out certain statutory safe guards to be observed when a person or the State initiates any physical development.

The Court went on to state that at the core is the Environmental Impact Assessment and Study which is undertaken under Section 58 of the EMCA and the regulations thereunder. Under Regulation 17, the Environmental Impact Assessment Study must involve the public. The inhabitants of any area affected by a physical development must be given an opportunity to air their views on the effects of any such development. After the Environmental Impact Assessment Study report is compiled, the same report must be circulated to the affected persons. The challenge is thus balancing the interests of both groups while ensuring that the ensuing court battles do not affect the country’s development agenda. This defines the burden on the states which, in addition to securing a balance between corporate and citizen rights, must grapple with the challenge of creating and fostering conditions for sustainable and diversified economic growth if they are to avoid the so-called ‘resource curse.’

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD: Muigua, K., “Maximising the Right to Free, Prior, and Informed Consent for Enhanced Environmental Justice in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/ 2019/03/Maximising-the-Right-to-FPIC-in-Kenya-Kariuki-Muigua-29th-March-2019. pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.

References

Booysen, M., ‘Mining Rights and Communities – Does The Xolobeni Judgment Take South Africa Forwards Or Backwards?’ iAfrica, February, 4, 2019.

Bruce, L.A., “Game-changing judgment for Xolobeni community on mining rights applications,” available at: https://www.wits.ac.za/news/sources/cals-news/2020/game-changing-judgment-for-xolobeni-community-on-mining-rights-applications.html (accessed on 18/11/2021).

Mavhinga, D., “South Africa’s Constitutional Court Protects Land Rights: Landmark Rulings Protect Women and Communities Affected by Mining Companies,” Human Rights Watch, November 6, 2018. Available at https://www.hrw.org/news/2018/11/06/south-africas-constitutional-court-protects-land-rights [Accessed on 18/11/2021].

United Nations Environmental Programme, “South African indigenous community win environmental rights case over mining company,” December 7, 2018. Available at https://www.unenvironment.org/ news-andstories/story/south-african-indigenous-community-win-environmental-rights-case-over-mining [18/11/2021].

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News & Analysis

The Scope and Indicators of Sustainability Audit

Published

1 month ago

October 28, 2023

Admin

By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023) and Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023)*

In 2015, the member states of the United Nations unanimously agreed to adopt the 2030 Agenda for Sustainable Development. This agenda includes 169 objectives and 17 goals related to sustainable development. The United Nations General Assembly announced in resolution 70/1 that the Sustainable Development Goals and Targets would be monitored and evaluated using a set of global indicators that would concentrate on quantifiable results. Therefore, the reporting done by companies is a significant data source for the framework used to track progress towards the Sustainable Development Goals. Reporting, which serves as a primary source of information on company performance, has the potential to enrich and enhance the monitoring mechanisms for the Sustainable Development Goals. It does this by providing stakeholders, such as governments and providers of capital, with the means to evaluate the economic, environmental, and social impact that companies have on sustainable development.

Risk assessment based on sustainability from the perspectives of all stakeholders, including financial, social, environmental, and technical ones, and risk management are the main areas of attention for sustainability accounting and auditing. The technocratic paradigm, which places an emphasis on hard data and its potential to give comprehensive control over persons, institutions, and systems, predominates in contemporary sustainability auditing. The use of indicators may enhance the quality of decisions and trigger more effective actions by simplifying, clarifying, and making aggregate information more available to decision-makers. This can lead to improvements in both choice quality and action effectiveness. In this particular setting, the SI have been used as instruments with the purpose of assisting in gaining an understanding of the idea of sustainability. This awareness has been achieved via the utilisation of a methodological approach that is tied to the new paradigms of Sustainable Development.

Indicators of Sustainability (SI) are metrics that aim to quantify the degree of sustainability and gather information for improved decision-making about policies, programmes, initiatives, and activities linked to sustainability. The SI looks to be a vital instrument for assessing development objectives as a sustainable proposition now that its significance has been shown with regard to public policy. Indicators of sustainability are an important tool for businesses to have. Concerns over the environment have been more prevalent throughout the years. These companies have a lot to offer, particularly in the area of minimising the negative externalities they cause. This must be accomplished via their plans and tactics, but it is very necessary that there be a technique that is adequate for judging how effective these measures have been. These are the techniques that may be used to evaluate how well a company’s strategy has been implemented. These actions are tied to certain goals and are outlined in a strategy for the corporate sustainability of the organisation. For instance, cutting down on waste or one’s carbon impact throughout the manufacturing process. Implementation of these standards is used to determine whether or not progress is being achieved in the desired direction.

The use of these indicators is done mostly for the purpose of determining whether or not the organisation is successful in achieving its goals. In the event that there is a deviation, appropriate remedial actions may be taken. Therefore, sustainability indicators are used to assess not only the profitability of the organisation but also how well it carries out its aims. The process of developing indicators is always a two-way affair. Indicators are not only sought by policy goals, but they also serve to concretize and shape those goals in many ways. As a result, the process of producing indicators cannot be limited to a strictly technical or scientific scope; rather, it need to be characterized by open communication and a focus on policy.

Indicators that are acceptable for this function need to be straightforward and unambiguous about their purpose: a) the number of indicators should be kept to a minimum, and the process of calculating them should be made public; b) the indicators should be directionally clear, which means that they should point out items and trends that are obviously relevant in terms of their importance for sustainability, and they should be sensitive, which means that they should be able to signal either progress or the absence of progress. While there may be challenges in development of these indicators, stakeholders from different sectors can work together to develop a set of indicators that are both relevant to the country and easy to follow up on. Thus, such challenges should not be used as a hindrance to not promoting development of the SI for promoting sustainability audit in the country.

It has been pointed out, and properly so, that sustainability consists of environmental, economic, and social aspects (occasionally institutions are mentioned as the fourth dimension), each of which contains a lot of components that make it up. Therefore, indications of sustainability may be as varied as the components of the system, and they can also differ with respect to worldviews, objectives, and scales of time and space. There are a lot of indicators, but most of them only reflect some elements of human–environmental systems. Some of them are more integrative than others, but none of them are sufficient to measure all of the characteristics of sustainability by itself. In addition, It is becoming more widely acknowledged that the most significant value of the terms “sustainability” and “sustainable development” rests in their focus on uniting the various aspects, the most prevalent classifications of which are environmental, economic, and social. In light of this, efforts to promote sustainability need to centre on the holistic, integrated totality of human and environmental systems.

Sustainability indicators must be more than environmental indicators; they must be about time and/or thresholds. Development indicators should be more than growth indicators; they should be about efficiency, sufficiency, equity, and quality of life. Development indicators should be more than growth indicators; they should be about efficiency, sufficiency, equity, and quality of life. When it comes to our attempts to make sustainable development a reality, indicators and indices are very necessary for developing a scientific knowledge and formulating effective policies. These measurements will need to continue to increase in complexity and sophistication as time goes on in order for them to keep up with the demands placed on them by the ever-worsening state of environmental and socioeconomic issues. The process of discovering suitable and efficient indicators of sustainability is one that involves evolution as well as learning new things.

*This is an extract from the Book: Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) by Dr. Kariuki Muigua, PhD, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

APLANET. Sustainability indicators: definition, types of KPIs and their use in the sustainability plan. APLANET. https://aplanet.org/resources/sustainabilityindicators/ (accessed 2023-06-28).

Batalhao, A., de Fatima Martins, M., van Bellen, H.M., Ferreira Caldana, A.C. and Teixeira, D., ‘Sustainability Indicators: Relevance, Public Policy Support and Challenges’ (2019) 9 Journal of Management and Sustainability 173.

Fagerström, A.; Hartwig, G. Accounting and Auditing of Sustainability: A Modelnter Title; 2016.

Reid, J.; Rout, M. Developing Sustainability Indicators–The Need for Radical Transparency. Ecological Indicators 2020, 110.

United Nations Conference on Trade and Development. Guidance on Core Indicators for Sustainability and SDG Impact Reporting; 2022, p. 1.

Valentin A and Spangenberg JH, ‘A Guide to Community Sustainability Indicators’ (2000) 20 Environmental Impact Assessment Review 381.

Wu J and Wu T, “Sustainability indicators and indices: an overview.” Handbook of sustainability management (2012): 65-86.

Waas, T.; Hugé, J.; Block, T.; Wright, T.; Benitez-Capistros, F.; Verbruggen, A. Sustainability Assessment and Indicators: Tools in a Decision-Making Strategy for Sustainable Development. Sustainability 2014, 6 (9), 5512–5534. https://doi.org/10.3390/su6095512.

News & Analysis

The Basics of Environmental Auditing and Monitoring in Kenya

Published

1 month ago

October 28, 2023

Admin

The Constitution of Kenya requires the State to establish systems of environmental impact assessment, environmental audit and monitoring of the environment. In particular, Article 69 obligates the State to set up the systems for, among other, “environmental audit and monitoring of the environment.” At the same time, the State is bound to ensure “to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment.” There is no doubt that such action which any public officer may be compelled do in include environmental audit and monitoring especially where omission to undertake is clearly harmful to the environment.

EMCA defines “environmental audit” to mean the systematic, documented, periodic and objective evaluation of how well environmental organisation, management and equipment are performing in conserving or preserving the environment. An initial environmental audit and a control audit are conducted by a qualified and authorized environmental auditor or environmental inspector who is an expert or a firm of experts registered by NEMA. In the case of an ongoing project, NEMA requires the proponent to undertake an initial environmental audit study to provide baseline information upon which subsequent environmental audits shall be based. The proponent shall be issued with an acknowledgement letter and an improvement order where necessary.

Environmental audits and monitoring act as follow up tools to determine the extent to which activities being undertaken conform to the environmental impact assessment study report issues in respect of the particular project. The aim of this process is to guard against deviation from the study report which could have detrimental effects on the environment. NEMA is mandated under EMCA to undertake environmental audits of all activities that are likely to have significant effect on the environment and in consultation with lead agencies, monitor all environmental phenomena with a view to making an assessment of any possible changes in the environment and their possible impacts.

Indeed, National Environment Management Authority (NEMA) is obligated under EMCA to identify projects and programmes or types of projects and programme, plans and policies for which environmental audit or environmental monitoring must be conducted under this Act. NEMA or its designated agents is responsible for carrying out environmental audit of all activities that are likely to have significant effect on the environment. An environmental inspector appointed under the Act may enter any land or premises for the purposes of determining how far the activities carried out on that land or premises conform with the statements made in the environmental impact assessment study report issued in respect of that land or those premises under section 58(2) of EMCA.

The owner of the premises or the operator of a project for which an environmental impact assessment study report has been made is bound to keep accurate records and make annual reports to the Authority describing how far the project conforms in operation with the statements made in the environmental impact assessment study report. At the same time, the owner of premises or the operator of a project is enjoined to take all reasonable measures to mitigate any undesirable effects not contemplated in the environmental impact assessment study report submitted and to prepare and submit an environmental audit report on those measures to the Authority annually or as the Authority may, in writing, require.

With respect to environmental monitoring, NEMA is empowered to, in consultation with the relevant lead agencies, monitor: all environmental phenomena with a view to making an assessment of any possible changes in the environment and their possible impacts; or the operation of any industry, project or activity with a view of determining its immediate and long-term effects on the environment. In addition, environmental inspectors are entitled to enter upon any land or premises for the purposes of monitoring the effects upon the environment of any activities carried on that land or premises. The Environment (Assessment and Audit) Regulations, 2003 provide the necessary guidelines on the procedure.

NEMA is still facing challenges in discharging its mandate as it is currently and there is a need to work closely with the county governments in order to be in touch with what is happening across the country. Many of these challenges came to the public limelight on 10th May, 2018, when Kenyans woke up to the shocking news of the collapse of Milmet Dam – also known as Solai Dam – in Nakuru County. Adjacent farms and villages had been washed away in the onrush of the water’s break. Hundreds of people were caught up in the consequent muddy sludge, claiming 47 lives in the downstream flood chaos. The subsequent cases brought against NEMA officials by the Director of Public Prosecutions to hold them liable for the disaster highlighted the challenges that NEMA is facing in discharging its mandate across the country. This, therefore, calls for concerted efforts from all lead agencies under the direction of NEMA to ensure that environmental standards are upheld and enforced across the various sectors.

It has rightly been pointed out that virtually all companies face the possibility of environmental liability costs and as such, it is imperative for the management to make at a least a general estimate of their company’s potential future environmental liability be it from legally mandated cleanup of hazardous waste sites or from lawsuits involving consumers, employees, or communities. Such information could be useful in the following to encourage defensive and prudent operations and waste reduction; improve manufacturing, waste disposal and shipping practices; negotiate and settle disputes with insurance carriers; influence regulators and public policy makers; determine suitable levels of financial resources; reassess corporate strategy and management practices (think green); articulate a comprehensive risk management program; improve public relations and public citizenship; and assess hidden risks in takeovers and acquisitions. Companies and organisations are to engage in proactive environmental risk management as part of their strategic plans in order to avoid costly environmental liability mistakes.

Strengthening environmental compliance and enforcement requires renewed efforts by individuals and institutions everywhere. Government officials, particularly inspectors, investigators, and prosecutors, must exercise public authority in trust for all of their citizens according to the standards of good governance and with a view to protecting and improving public well-being and conserving the environment. The judiciary has a fundamental contribution to make in upholding the rule of law and ensuring that national and international laws are interpreted and applied fairly, efficiently, and effectively. The public as a way of enhancing identification of activities that violate environmental laws as well as increasing the rate of enforcement and compliance with court decisions, by bodies and individuals.

References

Environmental (Impact Assessment and Audit) Regulations, 2003, Legal Notice 101 of 2003, Laws of Kenya (Government Printer, Nairobi, 2003).

Environmental Management and Co-Ordination Act (EMCA), No. 8 of 1999, Government Printer,
Nairobi.

News & Analysis

The Definition of Climate Justice

Published

1 month ago

October 26, 2023

Admin

It has been pointed out that climate change has had uneven and unequal burdens across the globe with nations and communities that contribute the least to climate change suffering the most from its consequences. In 2022, Pakistan which contributes less than 1 % of global greenhouse gases which lead to climate change suffered extreme flooding which resulted in the deaths of over 1,700 people, destroyed around 2 million homes, and swept away almost half the country’s cropland. There is a general consensus in the scientific community that the flooding was made worse by climate change since global warming makes air and sea temperatures rise resulting in more evaporation taking place thus increasing the intensity of rainfall. The melting of glaciers in the country’s northern region, again due to the increase in global temperatures, compounded the problem by releasing even more water and debris into the floods.

Further, it has been observed that the Horn of Africa, a region with very little contribution to the climate change problem, is facing a severe drought following the worst performing rains in 73 years and five successive failed rainy seasons. It has also been pointed out that the frequency and severity of the drought is likely to increase affecting more than 36 million people due to food insecurity, with women and girls disproportionately affected by the direct and indirect impacts of the drought. Further, small island nations in the Caribbean and Pacific islands such as Vanuatu and the Solomon Islands have suffered from severe impacts of climate change cyclone that killed residents, displaced thousands and damaged infrastructure. Despite their little contribution to climate change, sea level rise, increasing temperatures and frequency and intensity of tropical cyclones, and storm surges are some of the climate change impacts facing island nations, some of which are in low-lying areas of just 5 meters above sea level at the highest point making them more vulnerable to these impacts.

It is thus evident that the climate change has adverse impacts especially on nations and communities that contribute the least to its threat. The concept of Climate Justice acknowledges this concern. It recognizes that some countries mainly the large industrialized economies of Europe and North America have benefitted much more from the industries and technologies that cause climate change than have developing nations in places such as Africa, Asia, the Caribbean Islands and the Pacific Islands which due to an unfortunate mixture of economic and geographic vulnerability, continue to shoulder the brunt of the burdens of climate change despite their relative innocence in causing it. It seeks to promote justice in climate related concerns.

Climate justice links human rights and development to achieve a human-centred approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. It entails understating climate change as an issue that relates to equity, fairness, ethics and human rights and not just an environmental phenomenon. Climate Justice is a framework that focuses on the intersection between climate change and social inequalities. This is achieved by linking the effects of climate change to the notions of justice particularly environmental and social justice by examining the concepts of equality and human rights within the lens of climate change. It focuses on how climate change impacts people differently, unevenly and disproportionately and seeks to address the resultant injustices in fair and equitable ways.

Climate Justice encapsulates various facets of justice including distributive justice, procedural justice and justice as recognition. Distributive justice concerns itself with the disproportionate impact that climate change has on the people, communities and countries that are least responsible for climate change and its impacts. Climate Justice seeks to ensure the just distribution of the burdens and benefits of climate change among nations. It further insists on redressing the imbalances caused by the effects of climate change by imposing what is sometimes referred to as a climate debt on those nations primarily responsible for causing climate change.

Procedural justice on the other hand is aimed at addressing distributive climate injustices by creating processes that are participatory, fair, inclusive and accessible. Procedural justice requires that citizens be informed about and involved in decision-making on climate change matters. Justice as recognition on its part seeks to give a voice to people who have been traditionally marginalized in climate change matters as a result of structural inequality.

Climate Justice is thus a multidimensional idea that requires the various facets of justice to be recognized and upheld simultaneously. The idea of Climate justice is therefore significant for the entire world since it stands seeks to achieve an agenda that links the struggle for a prosperous, safe future for all with a fight against inequalities and exclusion. It envisages linking human rights with development and climate action, having a people centred approach to climate action, understanding that not everyone has contributed to climate change in the same way and combatting injustices resulting from climate change social, gender, economic, intergenerational and environmental injustices. It seeks to achieve equal access to natural resources, fair and effective solutions in response to climate change and the assigning of responsibility for those who contribute most to the global threat of climate change.

Climate Justice is thus guided by several principles including the protection and empowering of vulnerable individuals and communities, promoting public participation in decision making, fostering global collaboration in the response to climate change, achieving intergeneration equity in order to protect future generations from the effects of climate change and assigning of responsibility to nations that contribute most to global greenhouse gas emissions. Climate Justice is thus vital in ensuring effective climate change mitigation and adaptation towards Sustainable Development.

References

Bafana. B., ‘Climate Change is No ‘Future Scenario’ for Pacific Island Nations; Climate Change is ‘Real’ Available at https://reliefweb.int/ report/world/climate-change-nofuture-scenario-pacific-island-nations-climate-change-real (Accessed on 28/07/2023).

Foundation for European Progressive Studies., ‘United for Climate Justice.’ Available at https://fepseurope.eu/wpcontent/uploads/ downloads/publications/short%20united%20for%20climate%2 0justice%20-%204.pdf (Accessed on 28/07/2023).

Giles. M., ‘The Principles of Climate Justice at CoP27.’ Available at https://earth.org/principles-ofclimatejustice/#:~:text=That%20 response%20should%20be%20based,the%20consequences %20of%20climate%20change. (Accessed on 28/07/2023).

Mary Robinson Foundation Climate Justice., ‘Principles of Climate Justice.’ Available at https://www.mrfcj.org/principles-of-climate-justice/ (Accessed on 28/07/2023).

New Internationalist., ‘Four Principles for Climate Justice.’ Available at https://newint.org/features/2009/01/01/principles-climate-justice (Accessed on 28/07/2023)

United Nations Development Programme., ‘Can Groundwater act as a Catalyst for Sustainable Development in Africa’s borderlands?’ Available at https://www.undp.org/africa/africa-borderlands-centre/blog/can-groundwater-act-catalystsustainable-developmentafricasborderlands?gclid=EAIaIQobCh MIpM6GnoGxgAMV1uZ3Ch0bkAPOEAMYAyAA EgLKG_D_BwE (Accessed on 28/07/2023).

United Nations Environment Programme., ‘Climate Justice.’ Available at https://leap.unep.org/knowledge/glossary/climate-justice (Accessed on 28/07/2023).

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