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 2030 Agenda for Sustainable Development Goals captures the states’ pledge to foster intercultural understanding, tolerance, mutual respect and an ethic of global citizenship and shared responsibility, and their acknowledgement of the natural and cultural diversity of the world and recognition that all cultures and civilizations can contribute to, and are crucial enablers of, sustainable development. The twin aspects of Environmental justice, namely, access to information and public participation, are crucial in tapping indigenous knowledge as a means to an end in the attainment of sustainable development agenda.

Environmental Justice and Access to Information

In order to contribute to the protection of the right of every person to live in an environment adequate to his or her health and well-being, there is need to guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters. The Constitution guarantees the right of access to information held by the State, any other person and required for the exercise or protection of any right or fundamental freedom. It also obligates the State to publish and publicise any important information affecting the nation. Guaranteeing access to relevant information, is imperative in facilitating access to environmental justice and enabling the communities to give prior, informed consent in relation to exploitation of natural resources.

With regard to informed consent, ‘informed’ has been defined to mean that all information relating to the activity is provided to indigenous peoples and that the information is objective, accurate and presented in a manner or form that is understandable to indigenous peoples. Relevant information includes: the nature, size, pace, duration, reversibility and scope of any proposed project; the reason(s) or purpose of the project; the location of areas that will be affected; a preliminary assessment of the possible economic, social, cultural and environmental impacts, including potential risks and benefits; personnel likely to be involved in the implementation of the project; and procedures that the project may entail. This informed consent cannot therefore be given without first ensuring that the concerned communities have access to relevant information.

In Friends of Lake Turkana Trust v Attorney General & 2 others, the court was of the view that access to environmental information was a prerequisite to effective public participation in decision making and monitoring governmental and public sector activities on the environment. The Court, in Friends of Lake Turkana Trust case, also observed that Article 69(1) (d) of the Constitution of Kenya 2010, placed an obligation on the state to encourage public participation in the management, protection and conservation of the environment. Public participation would only be possible where the public had access to information and was facilitated in terms of their reception of different views. Such community-based forums and Barazas can effectively facilitate this. Such public meetings should, as a matter of practice, be conducted in a manner that would ensure full and meaningful participation of all the concerned communities. Well conducted, these are viable forums through which access to environmental information can be realized and consequently enhance access to environmental justice.

Environmental Justice and Public Participation

Meaningful involvement of people in environmental matters requires effective access to decision making processes for all, and the ability in all communities to make informed decisions and take positive actions to produce environmental justice for themselves. The Vienna Declaration and Programme of Action states that all peoples have the right of self-determination. By virtue of that right, they freely determine their political status, and freely pursue their economic, social and cultural development. This calls for free prior and informed consent from the affected communities in relation to exploitation of natural resources in their areas.

Free, prior and informed consent is a collective right of indigenous peoples to make decisions through their own freely chosen representatives and customary or other institutions and to give or withhold their consent prior to the approval by government, industry or other outside party of any project that may affect the lands, territories and resources that they customarily own, occupy or otherwise use. It is, thus, not a stand-alone right but an expression of a wider set of human rights protections that secure indigenous peoples’ rights to control their lives, livelihoods, lands and other rights and freedoms and which needs to be respected alongside other rights, including rights relating to self-governance, participation, representation, culture, identity, property and, crucially, lands and territories.

The Guidelines call for consultation and participation which entails engaging with and seeking the support of those who, having legitimate tenure rights, could be affected by decisions, prior to decisions being taken, and responding to their contributions; taking into consideration existing power imbalances between different parties and ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decision-making processes. The Constitution of Kenya provides that the objects of devolved government are, inter alia, to promote democratic and accountable exercise of power; to foster national unity by recognising diversity; to give powers of self-governance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them; to recognise the right of communities to manage their own affairs and to further their development; to protect and promote the interests and rights of minorities and marginalised communities; to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; to ensure equitable sharing of national and local resources throughout Kenya; and to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya.

The Constitution provides for participation of persons with disabilities, youth, minorities and marginalized groups, and older members of society, in governance and all other spheres of life. The foregoing provisions are important especially in relation to the provisions of the County Governments Act, which are to the effect that citizen participation in county governments shall be based upon the principles of, inter alia, timely access to information, data, documents, and other information relevant or related to policy formulation and implementation; reasonable access to the process of formulating and implementing policies, laws, and regulations; protection and promotion of the interest and rights of minorities, marginalized groups and communities; legal standing to interested or affected persons, organizations, and where pertinent, communities, to appeal from or, review decisions, or redress grievances, with particular emphasis on persons and traditionally marginalized communities, including women, the youth, and disadvantaged communities; reasonable balance in the roles and obligations of county governments and non-state actors in decision-making processes; promotion of public-private partnerships; and recognition and promotion of the reciprocal roles of non-state actors’ participation and governmental facilitation and oversight.

These provisions have an implication on natural resources management. It means that the devolved governments must not purport to make unilateral decisions especially with regard to the management of natural resources. They must recognize the centrality of people in natural resources management, since these resources have an impact on the economic, social, cultural and even spiritual lives of the diverse communities in Kenya. As such, they must ensure their active participation in coming up with legislative and policy measures to govern their management and utilisation for the benefit of all. They must also be alive to the fact that any negative impact on the environment directly affects these communities and ultimately has an adverse effect on the sustainable development agenda. The Constitution of Kenya requires Parliament to conduct its business in an open manner, and its sittings and those of its committees to be open to the public; and to facilitate public participation and involvement in the legislative and other business of Parliament and its committees.

The proposed law, The Natural Resources (Benefit Sharing) Bill, 2018, also seeks to have established by each affected local community a Local Benefit Sharing Forum comprising of five persons elected by the residents of the local community. Every affected local community is also to enter into a local community benefit sharing agreement with the respective county benefit sharing committee. Such local community benefit sharing agreement is to include non-monetary benefits that may accrue to the local community and the contribution of the affected organization in realizing the same. It is, therefore, imperative that such communities be involved in the whole process to enable them air their views on the same and where such negative effects are inevitable due to the nature of exploitation of the natural resources, their appreciation of such impact is the ultimate key to winning social acceptance of these projects.

Indeed, participation will bring the most benefit when the process is seen as fair, and processes are seen as more fair, if those who are affected have an opportunity to participate in a meaningful way and their opinions are taken seriously. Indicators of procedural justice have been identified as: presence of local environmental groups, public participation or consultation on local developments and initiatives, access to information, and responsiveness by public bodies. Indeed, those affected by environmental problems must be included in the process of remedying those problems; that all citizens have a duty to engage in activism; and that in a democracy it is the people, not the government, that are ultimately responsible for fair use of the environment. Active and meaningful public participation, therefore, through such means as suggested in the indicators of procedural justice are important in enhancing community participation in realization of the sustainable development agenda.

*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), ADR Publisher of the Year 2021 and Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Revisiting the Place of Indigenous Knowledge in the Sustainable Development Agenda, Available at: http://kmco.co.ke/wp-content/uploads/2020/09/Revisiting-the-Place-of-Indigenous-Knowledge-in-the-Sustainable-Development-Agenda-Kariuki-Muigua-September-2020.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. 

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