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*
Strategic Environmental Assessment (SEA) was not always part of the Environmental Management and Coordination Act (EMCA) 1999, the framework law on environmental management and conservation in Kenya. EMCA establishes among others the National Environment Management Authority as the principal institution of government charged with the implementation of all policies relating to the environment, and to exercise general supervision and coordination over all matters relating to the environment. In consultation with the lead agencies, NEMA is empowered to develop regulations, prescribe measures and standards and, issue guidelines for the management and conservation of natural resources and the environment. The Act provides for environmental protection through inter alia, Environmental impact assessment (EIA) and Environmental audit and monitoring.
While the parent Act (EMCA) was initially silent on Strategic Environmental Assessment (SEA), the same was introduced via the Environmental Management and Co-ordination (Amendment) Act, 2015 (Amendment Act 2015). The Amendment Act 2015 introduces a definition of SEA under section 2 thereof to mean a formal and systematic process to analyse and address the environmental effects of policies, plans, programmes and other strategic initiatives. The Amendment Act also amended EMCA by introducing section 57A (1) which provides that all Policies, Plans and Programmes for implementation should be subjected to Strategic Environmental Assessment.
Specifically, the Amendment Act 2015 provides that the plans, programmes and policies are (a) subject to preparation or adoption by an authority at regional, national, county or local level, or which are prepared by an authority for adoption through a legislative procedure by Parliament, Government or if regional, by agreements between the governments or regional authorities, as the case may be; (b) determined by the Authority as likely to have significant effects on the environment. Further, all entities are to undertake or cause to be undertaken the preparation of strategic environmental assessments at their own expense and should submit such assessments to the Authority for approval. The Amendment Act 2015 requires the Authority, in consultation with lead agencies and relevant stakeholders, to prescribe rules and guidelines in respect of Strategic Environmental Assessments.42
The Environmental (Impact Assessment and Audit) Regulations, 2003, Legal Notice No. 101 provide for SEA and interprets it to mean the process of subjecting public policy, programmes and plans to tests for compliance with sound environmental management. Regulation 42 (1) thereof obligates lead agencies in consultation with the Authority to subject all proposals for public policy, plans and programmes for environmental implementation to a strategic environmental assessment to determine which ones are the most environmentally friendly and cost effective when implemented individually or in combination with others. This has to consider the effect of implementing alternative policy actions taking into consideration: the use of natural resources; the protection and conservation of biodiversity; human settlement and cultural issues; socio-economic factors; and the protection, conservation of natural physical surroundings of scenic beauty as well as protection and conservation of built environment of historic or cultural significance. The Regulations also require the Government and all the lead agencies to incorporate principles of strategic environmental assessment in the development of sector or national policy. The content of a strategic environmental impact report are provided under Regulation 43 (1) thereof.
Principle 10 of the Rio Declaration states that environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, it states that each individual should have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. Accordingly, States are to facilitate and encourage public awareness and participation by making information widely available. It also provides that effective access to judicial and administrative proceedings, including redress and remedy, should be provided.
In light of the foregoing, Access to Information Act 2016 was enacted to, inter alia, to give effect to Article 35 of the Constitution of Kenya on the right of access to information. The Act provides that subject to the Act and any other written law, every citizen has the right of access to information held by — (a) the State; and (b) another person and where that information is required for the exercise or protection of any right or fundamental freedom. The term ‘information’ is interpreted to include information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety.
It is evident that the elements of SEA have slowly but surely found their way from international legal instruments on environmental management into national laws. This means that Strategic Environmental Assessment (SEA) can no longer be carried out as matter of choice but law. SEA is now entrenched in the environmental legal framework requiring that all their plans, policies and programmes are compliant with the international and national environmental goals for realization of the global agenda on sustainable development. In Kenya, SEA was formally recognizing in the EMCA Amendment Act 2015 which makes SEA mandatory in particular plans, policies and programmes. It is hoped that as more countries embrace SEA and integrate environmental management and national development goals, SEA will be as tool to complement EIA and even meet the shortcomings that might have existed with the use of EIA alone in environmental management.
*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
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