By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The establishment of Strategic Environmental Assessment (SEA) in Kenya has been attributed to the recognition of the fact that the existing Environmental Impact Assessment (EIA) tool was unable to respond to environmental integration needs at strategic levels of decision-making. Before the promulgation of the current Constitution of Kenya 2010, there was little or inadequate formal and systematic integration of environmental considerations into Kenya’s decision-making for developmental activities was generally. Notably, the Constitution treats environmental matters as central to decision-making processes especially with regard to the national development agenda. This is in line with the global environmental agenda of promoting sustainable development in all spheres of development. Most of the post-Constitution 2010 policies and legislation on environment are required to incorporate the Constitutional provisions.
The Constitution of Kenya 2010 saw a paradigm shift in environmental management in Kenya by dedicating substantive provisions on the conservation and management of the environment and natural resources in Kenya. To begin with, there is the preambular declaration which partly affirms the people’s respect of the environment, being their heritage, and the determination to sustain it for the benefit of future generations. One of the national values and principles of governance as outlined in the Constitution is sustainable development. The values and principles of governance are to bind all State organs, State officers, public officers and all persons whenever any of them–– applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions.
Sustainable development encompasses social, economic and environmental management, amongst other elements and the import of the foregoing values and principles is that environmental considerations must be central to enactment, application or interpretation of any law; or making or implementation of public policy decisions. It has been pointed out that, applied as a systematic process, SEA leads to more pro-active decision making in support of sustainable development, ensuring that ethical principles are considered in policy, plan and programme making and different paths on how to achieve overall goals and objectives can be mapped out. Furthermore, it is noteworthy that over the past decade, an important rationale for applying SEA has been planning for sustainable development.
Besides considering environmental and socio-economic aspects and pro-active objectives-led decision making, this also includes the consideration of the quality of life of future generations. This, therefore, means that SEA finds its way in some of these governance decisions and it becomes an indispensable part of these processes, considering that it concerns itself with public programmes, plans and policies. Art. 42 thereof provides for the right of every person 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.
SEA is one of the tools to be used for the protection of the environment. Of particular relevance to this discussion are the State obligations to, inter alia—(a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources; (d) encourage public participation in the management, protection and conservation of the environment; (f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment; and (g) eliminate processes and activities that are likely to endanger the environment. Environmental assessment is expressly recognised under this provision alongside the principle of public participation which is central to such processes. It has been observed that public participation in SEA provides a crucial [political] view of people’s ways of understanding problems connected with policy, plan and programme making and can rationalise the decision process. This is because it can make the whole planning process more efficient and reliable, improving the possibility of reaching formal agreement.
With regard to eliminating processes that are likely to endanger the environment, it has been argued that SEA should apply the precautionary principle: if the value of development and its impacts are uncertain there should be a presumption in favour of protecting what exists. It is suggested that impact mitigation in SEA could include changing aspects of the strategic action to avoid the negative impact, influencing other organizations to act in certain ways, or setting constraints on subsequent project implementation.33 Article 70(1) provides that if a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.
On application under clause (1), the court may make any order, or give any directions, it considers appropriate–– (a) to prevent, stop or discontinue any act or omission that is harmful to the environment; (b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or (c) to provide compensation for any victim of a violation of the right to a clean and healthy environment. While it is NEMA that is obligated to carry out SEA, where it fails to carry out its mandate on SEA, any person who is dissatisfied with the manner in which the same has been done or where it has not been done can approach the court to have them compelled to fulfill their statutory obligations for environmental management.
This provision read together with Regulation 43(2) of Legal Notice 101 of 2003 which requires incorporation of summary of views of key stakeholders consulted into an environmental analysis suggests that one can challenge the validity of such PPPs. Considering that the Constitution provides environmental obligations for both the national and county levels of government, differing and inconsistent goals and objectives can be a major challenge to decision making for sustainable development. These include goals and objectives of: different administrative tiers, the three main systematic decision making levels (i.e. policies, plans and programmes), and different sectors. As such, it has been argued that SEA application helps reconciling differing goals and objectives through integration, thus uncovering inconsistencies and providing a platform for suggestions on how to achieve sustainable development. Furthermore, SEA application at the regional level allows reconciling national and local levels of decision making.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards) and Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Legal Aspects of Strategic Environmental Assessment and Environmental Management, Available at: http://kmco.co.ke/wp-content/uploads/2018/08/Legal-Aspects-of-SEA-and-Environmental-Management-3RD-December-2016.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.
References
Birnie, P. & Boyle, A., International Law and the Environment, (2nd ed., Oxford University Press, 2002), p.131-132.
Brown, A.L. & Thérivel, R., ‘Effective methodologies: Principles to guide the development of strategic environmental assessment methodology,’ Impact Assessment and Project Appraisal, vol. 18, No. 3, September 2000, pp. 183–189.
Constitution of Kenya, Laws of Kenya, Government Printer, Nairobi (2010).
Fischer, T.B., ‘Strategic environmental assessment in post-modern times,’ Environmental Impact Assessment Review, Vol.23, 2003, pp.155–170.
Mutui, F.N., ‘The Development and Practice of Strategic Environmental Assessment (Sea) In Kenya,’ European Scientific Journal, October 2013, vol.9, No.29, pp. 165-185.
Organization for Economic Co-Operation and Development, ‘Applying Strategic Environmental: Assessment Good Practice Guidance for Development Co-Operation,’ DAC Guidelines and Reference Series, 2006. Available at http://www.oecd.org/environment/environment-development/37353858.pdf [Accessed on 04/12/2021].
Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I) / 31 ILM 874 (1992).
Sands, P., Principles of International Environmental Law, (2nd edn, Cambridge University Press,2003), pp.799-800.
Therivel, R., Strategic Environmental Assessment in Action, (Earthscan, London and VA, 2004), p. 8.
United Nations Economic Commission for Europe, Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, Art. 2(6). Available at https://treaties.un.org/doc/source/RecentTexts/27_4bE.pdf assessment [Accessed on 04/12/2021].
World Bank, ‘Strategic Environmental Assessment,’ September 10, 2013, available at http://www.worldbank.org/en/topic/environment/brief/strategic-environmental-assessment [Accessed on 04/12/2021].
Lawyers6 months ago
News & Analysis2 years ago
News & Analysis2 years ago
News & Analysis1 year ago
News & Analysis2 months ago
News & Analysis2 years ago
News & Analysis3 months ago
Uncategorized2 years ago