News & Analysis

Legal and Policy Framework on Energy Justice in Kenya

Published

2 years ago

November 22, 2021

Admin

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

The legal and policy framework for energy justice in Kenya includes the provision of the Constitution on energy resources, energy policy and regulation and the respective rights tied to provision of energy in the country. The Energy Act, 2019 and the institutional framework established under it as well as the National Energy Policy, 2018 are also important in safeguarding and guaranteeing the realization of energy justice in the country. Further, the legal and constitutional provisions outlining the respective roles of the two levels of Government and how they may exercise their mandates contain crucial guidelines on energy justice.

Constitution of Kenya, 2010

The Constitution enshrines economic and social rights of all in Kenya. In particular, Article 43 of the Constitution provides for the economic and social rights of all persons. It provides for the rights of all persons to: to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and to education. Access to energy is crucial for the realisation of most of these rights.

This provision was tested recently in the ongoing case where, in the quest for energy justice, the Kenya Human Rights Commission (KHRC) has sued the Ministers of Energy and National Treasury over the escalation of Energy Prices in Kenya. KHRC states in its pleadings that “the sharp rise in fuel can be attributed to a policy shift where the State abruptly suspended a fuel subsidy designed to cushion customers from higher fuel prices. The rise in fuel costs is expected to hurt Kenyans as the cost of living surges, with the prices of other commodities rising as a result of higher petrol cost.” KHRC also notes that the fuel taxes in the country are half the total amount charged at the pump and argued that the move to overtax fuel and energy is an impediment to basic rights such as food, housing, healthcare and water.

In addition to the KHRC, two private Kenyans, Isaiah Odando and Wilson Yata have moved to court to challenge the recent hike in fuel prices and seeking to quash the decision by Kenya Revenue Authority (KRA) to adjust petroleum excise duty rates on the basis that it was made without public participation. AS stated in their petition: “The decision by the Commissioner General of the Kenya Revenue Authority to adjust excise duty rates for petroleum products though discretionary has been described as a burden by the already overtaxed Kenyans and was devoid of proper public participation at a time when Kenyans are reeling from the economic consequences of the Covid-19 pandemic thereby compromising the people’s entitlement to social justice under Article 10 of the constitution.”

Further, the Constitution recognises energy as part of natural resources. Indeed, Article 260 recognizes energy as part of the natural resources in Kenya by defining natural resources as including physical non-human factors and components, whether renewable or non-renewable, including inter alia rocks, minerals, fossil fuels and other sources of energy. In turn, Article 69 of the Constitution guarantees the right of access to natural resources including energy for the people of Kenya. Equitable sharing of the accruing benefits of these natural resources is also guaranteed. Energy can be seen as an accruing benefit and therefore, Kenyan people are entitled to the benefits of the same. Thus, Article 69 (h) of the Constitution obligates the state to energy resources for the benefit of the people of Kenya and guarantee access to energy.

Consequently, the state has an obligation to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources including energy, and ensure the equitable sharing of the accruing benefits from such resources. The Constitution further identifies sustainable development as one of the national values and principles that is to guide the development agenda in the country. Sustainable exploitation and utilisation of energy as a natural resource will guarantee energy justice by achieving intra and inter-generational equity.

In addition, the Constitution provides for a two tier structure of government, that is, the National and the County Governments. It distributes the functions and powers between the two levels as outlined in Chapter Eleven and the Fourth Schedule. Fourth schedule specifically provides that the national Government is mandated with the protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, in particular inter alia energy policy including electricity and gas reticulation and energy regulation. This function is not exclusive to the national Government since under county planning and development, the counties are also charged with inter alia electricity and gas reticulation and energy regulation.

Energy Act, No. 1 of 2019

The Energy Act mandates the government to facilitate the provision of affordable energy services to all persons in Kenya. In Part III, the Act establishes National Energy Entities which are the Energy and Petroleum Regulatory Authority, Energy and Petroleum Tribunal, Rural Electrification and Renewable Energy Corporation and Nuclear Power and Energy Agency. The Energy and Petroleum Regulatory Authority is mainly tasked with regulatory activities related to inter alia the generation, importation, exportation, distribution and supply of electric energy, petroleum and petroleum products, renewable energy and other forms of energy.

The Rural Electrification and Renewable Energy Corporation is tasked with overseeing the implementation of the rural electrification programme and promoting the use of renewable energy and technologies among other functions. The Nuclear Power and Energy Agency is tasked with inter alia implementation of the nuclear energy programme and promoting the development of nuclear electricity generation in Kenya. Implementation of the Act is important in enhancing energy justice in Kenya as the National Energy Entities established under the Act have the ability to promote attainment of the right to energy in Kenya. The Energy and Petroleum Tribunal is established for purposes of hearing and determining disputes and appeals relating to the energy and petroleum sector in accordance with the Act.

As stipulated under section 25 of the Act, there is no doubt the jurisdiction of the Energy and Petroleum Tribunal is capable of significantly contributing to the enhancement of energy justice in Kenya through its decisions and pronouncements. In particular, the Tribunal has jurisdiction to hear determine all matters referred to it relating to the energy and petroleum sector arising under the Energy Act or any other Act with exception of the trial of any criminal offence. It also has original civil jurisdiction on any dispute between a licensee and a third party or between licensees. Further, the Energy and Petroleum Tribunal bears appellate jurisdiction over the decisions of the Energy and Petroleum Regulatory Authority (EPRA) and any licensing authority. It is entitled to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance.

National Energy Policy, 2018

The National Energy Policy, 2018 recognises energy as a critical component in the economy, standard of living and national security of a country. It is geared towards achieving several objectives which include inter alia improving access to affordable, competitive and reliable energy services, promoting energy efficiency and conservation and promoting diversification of energy supply sources in Kenya to ensure security of supply. It sets out several policies and strategies towards the use, development and conservation of energy sources in the country such as coal resources, renewable energy and electricity. The Policy also contains Energy efficiency and conservation measures aimed at reducing energy consumption without sacrificing productivity or increasing costs. It is an ambitious policy document that is central to the attainment of the national development blueprint, Kenya Vision 2030 and the Government‘s Big Four Agenda. Effective implementation of the Policy may promote energy security and justice in the country.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., Towards Energy Justice in Kenya, Available at: http://kmco.co.ke/wp-content/uploads/ 2020/02/Towards-Energy-Justice-in-Kenya-00000005.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

Bildirici. M & Ozaksoy.F., ‘Woody Biomass Energy Consumption and Economic Growth in Sub-Saharan Africa’ Procedia Economics and Finance 38 (2016) 287 – 293.

Constitution of Kenya, 2010, Government Printer, Nairobi

Energy Act, No.1 of 2019, S 7(1), Government Printer, Nairobi.

Guruswamy. L, ‘Energy Justice and Sustainable Development’ Colorado Journal of International Environmental Law & Policy, Volume 21, No. 2.

Goldthau. A & Sovacool. B., ‘The Uniqueness of the Energy Security, Justice and Governance Problem’ Energy Policy, 41 (2012) 232-240.

Heffron. J.R., & McCauley. D., ‘The Concept of Energy Justice across the Disciplines’ Energy Policy 105 (2017) 658-667, available at: http://hdl.handle.net/10023/12969 (Accessed on 22/11/2021).

Jenkins. K, et al, ‘Energy Justice: A Conceptual Review’ Energy Research & Social Science 11 (2016) 174- 182.

Kihiu, N., “Two in Court Over Hiked Fuel Prices as Outcry Rages on,” (Capital FM, September 2021), Available at: https://www.capitalfm.co.ke/news/2021/09/two-in-court-over-hiked-fuel-prices-as-outcry-rages-on/ (Accessed on 21/11/2022).

Ministry of Energy, National Energy Policy, 2018, Government Printer, Nairobi.

Muigua. K., ‘Access to Energy as a Constitutional Right in Kenya’, available at http://kmco.co.ke/wpcontent/uploads/2018/08/Access-to-Energy-as-a-Constitutional-Right-in-Kenya-NOVEMBER-2013.pdf (Accessed on 22/11/2021).

Muthoni, K., “Human Rights Body Asks Court to Force State to Reduce Fuel Prices,” (The Standard, October 2021), Available at: https://www.standardmedia.co.ke/national/article/ 2001425587/human-rights-body-asks-court-to-force-state-to-reduce-fuel-prices (Accessed on 21/11/2022).

Newell. P. & Philips. J., ‘Neoliberal Energy Transitions in the South: Kenyan Experience’ Geoforum, 74 (2016) 39-48.

Njiru. C.W & Letema. S.C., ‘Energy Poverty and its Implication on Standard of Living in Kirinyaga, Kenya’ Journal of Energy, 2018, Available at: https://www.hindawi.com/journals/jen/2018/3196567/ (accessed on 22/11/2021).

Sovacool,B.K. & Dworkin, Global Energy Justice: Problems, Principles and Practices (Cambridge Univ. Press, 2014).

Sovacool. B.K., ‘Energy Decisions Reframed as Justice and Ethical Concerns’ Energy Justice 1, available at https://core.ac.uk/download/pdf/42579074.pdf (Accessed on 22/11/2021).

United Nations Development Programme, ‘Sustainable Development Goals’ available at https://www.undp.org/content/undp/en/home/sustainable-development-goals.html (Accessed on 23/01/2020).

United Nations Sustainable Development Goals, ‘Goal No. 7: Ensure Access to Affordable, Reliable, Sustainable and Modern Energy’ available at https://www.un.org/sustainabledevelopment/energy/ (accessed on 22/11/2021).

United Nations Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ 1992, Principles 3 and 4.

World Bank, ‘Sustainable Development Goal on Energy (SDG7) and the World Bank Group, available at https://www.worldbank.org/en/topic/energy/brief/sustainable-development-goal-on-energy-sdg7-and-the-world-bank-group (Accessed on 22/11/2021).

Yoshida. T., & Zusman. E., ‘Achieving the Multiple Benefits of a Sustainable Development Goal for Energy’ Available at https://www.iges.or.jp/en/publication_documents/pub/bookchapter/en/4934/08_Ch8_ Achieving_ the_SDGs_.pdf (Accessed on 22/11/2021).

Up Next

Recent Jurisprudence on Public Participation in Energy Matters in Kenya

Don't Miss

The Concept of Energy Justice and Why it is Important Today

Click to comment

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).

UNICEF., ‘What is Climate Justice? and What can we do Achieve it?’ Available at https://www.unicef.org/globalinsight/what-climate-justice-and-what-can-we-do-achieveit#:~:text=Utilizing%20a%20 climate%20justice%20approach,vulnerability%20to%20the% 20climate%20crisis. (Accessed on 28/07/2023).