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Brief Introduction to Strategic Environmental Assessment (SEA)



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) has been hailed as a key means of integrating environmental and social considerations into policies, plans and programs, particularly in sector decision-making and reform, and the World has even demonstrated its commitment to promoting the use of SEA as a tool for sustainable development. Notably, since the inception of SEA in the early 1990s, it has globally received adoption for environmental assessment of strategic decisions – Policies, Plans and Programs, (PPPs).  However, one of the contentious issues in SEA amongst environmental law scholars is whether it should be founded in legislation or left as a non-statutory administrative tool. Despite this lack of common ground on the legal status of SEA, many developed and developing countries have either national legislative or other provisions for SEA, e.g. statutory instruments, cabinet and ministerial decisions, circulars and advice notes.

It is also noteworthy that increasingly, developing countries are introducing legislation or regulations to undertake SEA – sometimes in EIA laws and sometimes in natural resource or sectors laws and regulations. This development illustrates the fact that SEA has become an important part of both international and domestic legal framework on environmental management. This paper examines the legal aspects of SEA and environmental management and highlights the prominent provisions from both international and domestic environmental law framework.

Strategic Environmental Assessment- A Definition

One of the conceptual definitions of SEA is a process directed at providing the proponent (during policy formulation) and the decision-maker (at the point of policy approval) with a holistic understanding of the environmental and social implications of the policy proposal, expanding the focus well beyond the issues that were the original driving force for new policy. The Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context defines strategic environmental assessment to mean the evaluation of the likely environmental, including health, effects, which comprises the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations, and the taking into account of the environmental report and the results of the public participation and consultations in a plan or programme. Thus, it may be said that Strategic environment assessment is all about ensuring that public policy, programmes and plans are compliant with sound environmental management.

Locating Strategic Environmental Assessment Within the Environmental Assessment Continuum

Environmental Impact Assessment (EIA) is one of the tools for environmental management, a procedure for evaluating the likely impact of a proposed activity on the environment. Its object is to provide decision-makers with information about the possible effects of a project before authorizing it to proceed.8 It can be defined as a process which produces a written statement to be used to guide decision-making, which provides decision makers with information on the environmental consequences of proposed activities, programmes, policies and their alternatives; requires decisions to be influenced by that information and ensures participation of potentially affected persons in the decision-making process.

The need for EIA was succinctly expressed in Principle 17 of the 1992 Rio Declaration on Environment and Development which affords the strongest evidence of international support for EIA in the following terms; Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant impact on the environment and are subject to a decision of a competent authority. It has been argued that since policies, plans and programmes (PPPs) are more “strategic” as they determine the general direction or approach to be followed towards broad goals, SEA is applied to these more strategic levels while Environmental Impact Assessment (EIA) is used on projects that put PPPs into tangible effect.

Strategic environmental assessment (SEA) is undertaken much earlier in the decision-making process than project environmental impact assessment (EIA). However, SEA is not a substitute for EIA or other forms of environmental assessment, and should be seen as a complementary process and one of the integral parts of a comprehensive environmental assessment tool box. In the Gabcikovo-Nagymaros Case it had been alleged that an adequate EIA had not been carried out before proceeding with a hydro-electric project. The Court’s view was that EIA is a continuum which will operate throughout the life of a project. Thus, whereas EIA concerns itself with the biophysical impacts of proposals only (e.g. effects on air, water, flora and fauna, noise levels, climate etc), SEA and integrated impact assessment analyze a range of impact types including social, health and economic aspects.

Need for Strategic Environmental Assessment

SEA is believed to provide the potential to incorporate new objectives and constraints in policy formulation, the substitution of alternative objectives, policy instruments and implementation strategies, and the identification, clarification and resolution of conflicts, compromises and interlinkages. Further, it provides an opportunity to internalize externalities often not adequately considered in much sectoral policy formulation and decision-making. Thus, the intention of SEA is moving policy (and PPP generally) towards sustainable outcomes. Overall, it is arguable that the main rationale for applying SEA is to help create a better environment through informed and sustainable decision making. Further, SEA helps to ensure that many of the environmental issues of global importance are considered in policies, plans and programmes at different administrative levels (i.e. national, regional, local).

While strategic environmental assessment can be a powerful tool for fostering progress towards sustainability, effective implementation involves confronting a set of substantial challenges. It has been observed that an important reason for applying SEA is the expectation that if socioeconomic and environmental effects are properly considered on top of the decision making hierarchy in a publicly accountable fashion, there should be less friction and fewer problems at decision making levels further down the decision making hierarchy. There is a need to ensure that SEA is not just an option in development policies, plans and programmes but is mandatory. Capturing SEA requirements and clearly defining what it entails, as demonstrated in both international and national frameworks discussed in the previous section will ensure that the public does not get shortchanged or they are not placed in harm’s way by the relevant authorities through negligence.

*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: 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. 


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.

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 [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.

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 assessment [Accessed on 04/12/2021].

World Bank, ‘Strategic Environmental Assessment,’ September 10, 2013, available at [Accessed on 04/12/2021].

News & Analysis

The Roles of the Three Parts of the Permanent Court of Arbitration




H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

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Brief History of the Permanent Court of Arbitration (PCA)




By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.


PCA Website: (accessed on 25th May 2023).

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Former KCB Company Secretary Sues Over Unlawful Dismissal




Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for Unlawful Dismissal

Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.

Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.

In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.

He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.

“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.

Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.

Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.

He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.

“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.

Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.

He wants  further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.

Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.

He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.

He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.

He adds that at that point his roles were given to Okumu for reasons that were not related to work demands.  He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.

Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.

“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.

He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.

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