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Critique of the Alternative Dispute Resolution (ADR) of Tax Disputes in Kenya

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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 adverse impact of resolving disputes through litigation including high cost, delays, loss of trust and relationship is what has driven Kenya to incorporate alternative dispute resolution (ADR) as one of the mechanism of resolving tax disputes in the country. There is no question that the application of ADR Framework has enabled KRA to register numerous successes which would not have been possible using the judicial and quasi-judicial processes stipulated under the law. Kenya Revenue Authority (KRA) reported collecting over KShs 21 billion through the Alternative Disputes Resolution (ADR) mechanism by resolving 393 cases vide ADR in the period between July 2020 to March 2021. That was 109% growth in number of cases and 389% growth in revenue when compared to a similar period last financial year 2019/2020.

One of the positive aspects of the KRA ADR Scheme is that many taxpayers have embraced it as evidenced by the increasing number of ADR applications being received by KRA. For instance, in the above period, KRA recorded a 56% growth in the number of ADR applications from 425 received in the financial year 2019/2020 to 661 despite the current Covid-19 pandemic related challenges. As a matter of fact, resolution of disputes through ADR remained unhampered as meetings were conducted virtually. This has further reduced the time within which the meetings are held. ADR of tax disputes is now preferred because it ensures that disputes are resolved in an expeditious and timeous manner with resolution of cases under ADR being achieved in a much shorter time span. Indeed, the speed of tax ADR in Kenya has improved tremendously and average time taken to resolve ADR cases stood at 42 days in the current financial year 2020/2021, more than half the stipulated 90 days.

The ADR of tax disputes in Kenya is also acknowledged in that unlike other dispute resolution mechanisms, it is more pocket friendly as it does not require payment of any filing fees. It is also a mediation process in which a taxpayer can opt to represent himself without the need for an Advocate or a tax representative hence saving costs. The ADR process has also proved effective in preserving the relationship between the taxpayer and the Authority. The mediator ensures that parties are not antagonized and maintain cordial relationships. The process provides a win-win outcome for the parties which leaves both parties happy with the outcome and prevents further escalation of disputes. The ADR mechanism also allows reservation of rights meaning the record of the ADR discussions cannot be used in a court of law without agreement of parties. In addition, given the relaxed procedures, a taxpayer can be allowed to present documents for verification under the ADR process which would otherwise be rejected in a Tribunal or Court hearing in strict adherence to the law governing admission of evidence.

Challenges of Use of Alternative Dispute Resolution in Tax Disputes in Kenya

The KRA Alternative Dispute Resolution (ADR) Framework and the Tax Procedures (Settlement Out of the Tribunal or Court) Regulations as they are currently framed have created challenges that bedevil ADR of Tax Disputes in Kenya. These include lack of independence of the ADR mechanism from KRA, time constraints, lack of clarity on the circumstances to settle or not to settle, need for tribunal or court permission to pursue out of court settlement, conflict of interest challenges because of the use of KRA employees as ADR facilitators and potential conflict between the ADR mechanism for out of court or tribunal settlement as envisaged under the tax laws and regulations and the existing court annexed ADR mechanisms.

The Overreaching Role of KRA in the ADR Mechanism

The role of KRA as envisaged under the KRA ADR Framework and the Settlement Out of Court or Tribunal Regulations is overreaching in that not only does KRA decide whether a matter is fit for ADR resolution but also appoints and pays the ADR Facilitator who is its employee. The decision to appoint the ADR Facilitator is communicated both to the facilitator and the taxpayer by the Commissioner. It would have been better to create an independent Dispute Resolution Unit which is not directly answerable to KRA. However, the Kenyan system is similar to what exists in South Africa where the Facilitators are staff of South Africa Revenue Authority (SARS). Further, thus far no significant complaints have arisen as to adverse effect of use of KRA paid facilitators but in the interest of fairness, in future the role of KRA as investigator, prosecutor and facilitator of ADR may need to be revisited in the interest of enhancing integrity of the ADR process.

Time Constraints of the ADR Process

There is no clarity as to the time allocated for ADR Process under the KRA Alternative Dispute Resolution (ADR) Mechanism as when the process commences depends on when the application for ADR but the time allocated for it is restricted to the time remaining within the 60 days the Commissioner is required to issue the Objection Decision when KRA issues and communicates their decision. This puts pressure on the parties, especially the taxpayer, to choose between ADR and pursuing quasi-judicial process and judicial process and opting for ADR or waiting to opt for out of court settlement after the matter has been lodged with the tribunal or court. In any case, the time to lodge an appeal does not freeze against the party who has lodged an ADR process meaning they have to choose between filling an appeal and pursuing ADR only or pursuing ADR and filling an appeal at the same time. There is need to amend the law clearly stipulate the time for ADR to the scenario of parties wasting resources to first file a needless appeal and then opt for out of court or tribunal settlement just to overcome the limitations imposed by the rules as they currently are.

Lack of clarity on circumstances to settle or not to settle

There are no clear provisions in the regulations and the ADR Framework on the circumstances when to settle or when not to settle tax dispute as stipulated under the relevant tax law and the Alternative Dispute Resolution External Policy of South Africa. The assumption is that any matter that is suitable for ADR is suitable for settlement. In South Africa, it is clear that SARS has power to settle any tax dispute where doing so to the benefit of the State and such settlement may be entered at any time and not necessarily under the ADR process as part of out of court or tribunal settlement. The danger of the current arrangement is that KRA officials involved in a dispute may have to go through motions for lack of clarity on whether to settle or while waiting for bureaucratic decision to come from the top on whether to settle.

Need for Permission of Court for Out of Court Settlement

The ADR mechanism for settlement of tax disputes out of court or tribunal has been complicated further by the requirement that the Court or the Tribunal gives permission for the parties to commence the process. This removes the element of spontaneity of the agreement of parties to engage in ADR after filling of the Appeal as now a formal application has to be made to commence the process. The Court permission is required in addition to the administrative constraints that require that the taxpayer obtains the permission or at least mutual agreement of KRA to opt for out of Court or Tribunal Settlement. It is proposed that the regulations be amended to allow parties upon agreement to merely give notice to the Court or Tribunal for adjournment to pursue settlement without need for formal permission which calls for application.

Aligning the Law on ADR and Out of Court or Tribunal Settlement

There is no clarity in the tax law, in particular section 55 of the Tax Procedures Act and section 28 of the Tax Appeals Tribunal Act render clarity on the ADR procedure before referral to Appeal. There is thus need to reform the law to clearly accommodate ADR and settlement before the tax dispute is referred to the Tribunal or Court. Further, there is no clarity how the ADR process and especially the out of court or tribunal settlement integrates with the existing Court Mandated ADR which has been provided and which runs parallel to proposed ADR for tax disputes. This is necessary to extricate the out of court or tribunal settlement process from KRA control in the interest of the perception of independence and impartiality of the ADR facilitators.

*This article is part of an ongoing series on Specialized Alternative Dispute  Resolution in Kenya by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). 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 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 2022. 

References

KRA Tax Dispute Resolution Division, “Alternative Dispute Resolution (ADR) Framework,” Available at: https://kra.go.ke/images/publications/adr-framework.pdf (Accessed on 25/01/2022).

KRA, “KRA collects KShs 21B from Alternative Disputes Resolution,” Press Release Dated 16th April 2021, Available at: https://www.kra.go.ke/en/media-center/press-release/1168-kra-collects-kshs-21b-from-alternative-disputes-resolution (accessed on 25/01/2022).

KRA, “Why Alternative Dispute Resolution (ADR)?,” Available at: https://kra.go.ke/en/individual/alt-dispute-resolution-adr/learn-about-adr/benefits-of-adr(accessed on 25/01/2022).

The Tax Procedures (Settlement of Tax Disputes Out of Court or Tribunal) Regulations, 2020; Available at: http://kenyalaw.org/kl/fileadmin/pdfdownloads/ LegalNotices/2020/LN123_2020.pdf (accessed on 28/01/2022).

KRA, “KRA collects KShs 21B from Alternative Disputes Resolution,” Press Release Dated 16th April 2021, Available at: https://www.kra.go.ke/en/media-center/press-release/1168-kra-collects-kshs-21b-from-alternative-disputes-resolution (accessed on 25/01/2022).

News & Analysis

Way Forward in Achieving Net Zero Carbon Emissions

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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 Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

In order to achieve net zero emissions, it is necessary to accelerate the energy transition by embracing clean and green sources of energy such as renewable energy. The energy sector has been identified as a major contributor to climate change. For example, the extraction and burning of fossil fuels which are the major source of global energy supply has serious environmental consequences including climate change. It has been pointed out that when fossil fuels are burned, the stored carbon and other greenhouse gases are released into the atmosphere.

An excess buildup of greenhouse gases in the atmosphere as a result of burning of fossil fuels has resulted in dramatic changes to Earth’s climate— a trend that will worsen as more fossil fuels are burned. It has been observed that fossil fuels including coal, oil and natural gas are by far the largest contributor to global climate change, accounting for over 75 per cent of global greenhouse gas emissions and nearly 90 per cent of all carbon dioxide emissions.

According to the International Energy Agency (IEA), as the major source of global emissions, the energy sector holds the key to responding to climate change. Achieving net zero therefore demands transitioning from fossil fuels to clean sources of energy such as renewable energy. IEA points out that achieving net zero emissions by 2050 will require nothing short of the complete transformation of the global energy system towards renewable sources of energy.

These sources of energy which include wind and solar are vital in achieving net zero since they emit little to no greenhouse gases. Further, these sources of energy are readily available and in most cases cheaper than coal, oil or gas. For example, it has been pointed out that Africa has an abundance of renewable energy (including wind, solar, hydro, bioenergy, ocean tidal waves, geothermal and other renewables) which can be vital in confronting climate change if well harnessed.

According to the African Union, the availability of abundant renewable energy resources on the continent such as hydropower, solar, wind, geothermal and bio-energy can transform Africa’s energy sector to modern and sustainable energy through both grid and off-grid systems and contribute to the fight against climate change. It is therefore necessary for Africa and the rest of the world to embrace renewable sources of energy in order to achieve net zero emissions. Further, it is important to embrace nature based solutions towards climate change.

Nature-based Solutions have been defined as actions to protect, sustainably manage and restore natural or modified ecosystems, which address societal challenges such as climate change, food and water security and natural disasters effectively and adaptively, while simultaneously providing human well-being and biodiversity benefits. They adopt the use of ecosystems and their services towards addressing societal challenges such as climate change. It has been asserted that nature based solutions have significant yet underutilized potential to address global threats including climate change, loss of biodiversity, food and water security, human health and natural disasters.

It has further been argued that nature based solutions are key to many countries’ and companies’ plans to achieve net-zero in the coming decades. For example, nature based solutions play a crucial role in achieving net-zero emissions by sequestering carbon and mitigating the effects of climate change. One key nature based solution that is vital in achieving net zero is regrowing natural forests, which can help to sequester and store carbon dioxide in their biomass. It has been observed that this approach involves restoring degraded or deforested areas with native species, increasing biodiversity, improving soil health, and enhancing the community’s resilience to climate change.

Further, embracing other nature based solutions such as the sustainable management of ecosystems, improving soil health, and using agroforestry practices, can help to sequester carbon, protect biodiversity, and improve the resilience of communities in the face of climate change. It has been pointed out that projects that embrace nature based solutions help to generate carbon credits that provide an income stream for local communities, incentivise environmental protection, provide an opportunity for investors, and help organisations and governments reach net zero. It is thus essential to embrace nature based solutions in order to achieve net zero emissions.

Achieving net zero emissions also requires implementing and fostering effective utilization of carbon markets. It has been observed that by purchasing permits or credits generated from emissions-reduction projects, emitting companies can unlock funding for the net-zero transition through carbon markets.

According to OECD, international carbon markets could potentially help countries enhance the ambition of their climate commitments and achieve their net-zero targets with greater economic efficiency, complementing domestic emission reduction efforts while providing other sustainable development co-benefits. In particular, international carbon markets could be useful for countries that are not able to achieve net-zero emissions through domestic mitigation actions alone.

Carbon markets are increasingly being seen as an essential part of efforts to reach net zero emissions by around 2050. It is therefore necessary to effectively utilize carbon markets in order to achieve net zero emissions. It is also imperative for all countries to promote low carbon development strategies across all sectors.

The concept of low carbon development which is also expressed using the term Low-Emission Development Strategies (LEDS) also known as low-carbon development strategies, or low-carbon growth plans refers to forward-looking national economic development plans or strategies that encompass low-emission and/or climateresilient economic growth. Low carbon development has also been defined as forwardlooking, climate-friendly growth strategies that can highlight a country’s priority actions for climate mitigation and adaptation, and a country’s role in the global effort against climate change.

The idea of low-carbon development aims to achieve the goals of reducing greenhouse gas emissions, exploiting low-carbon energy, and ensuring economic growth. Low carbon development strategies can help achieve net zero by reducing greenhouse gas emissions. It has been pointed out that reducing emissions at the source is the most effective way to achieve net zero.

It is therefore necessary for countries to embrace low carbon development strategies such as embracing renewable sources of energy including solar, wind and hydropower, adopting climate smart agricultural techniques, fostering sustainable cities, transport and infrastructure and adoption of sustainable waste management techniques in order to achieve net zero.

Further, in order to achieve net zero, it is crucial to invest in carbon removal technologies. It has been suggested that the deployment of greenhouse gas removal technologies can help to achieve net zero across an economy. For example, technologies like Direct Air Capture and Storage (DACS) can help achieve net zero by scrubbing carbon directly from the atmosphere. However, it has also been noted that the technologies in question, which include DACS and Bioenergy with Carbon Capture and Storage (BECCS), are not yet proven at scale, can be expensive and energy-intensive, and have their own unwanted negative impacts. It is therefore necessary to embrace technology with caution and give priority to abating domestic emissions as the primary way to bring emissions to net zero.

Finally, it has correctly been pointed out that in addition to governments, other entities including organisations, cities, and regions have a role to play in achieving net zero. It has been argued that businesses and organizations are vital in achieving net zero since the private sector development is the anchor that facilitates the knowledge, skills and infrastructure needed for sustainable practices within developing economies.

It has been correctly observed that many companies rely heavily on fossil fuels for their energy needs, and the transition to clean energy may require significant changes to their supply chains and business models. However, there are also significant opportunities for businesses that embrace the transition to net zero such as new markets, reduced regulatory risks and more reliable energy. It is therefore necessary for organizations to play their role towards achieving net zero.

Further, it has been pointed out that cities have a crucial role to play in achieving net zero since more than half of the global population live in cities, consuming 78% of the world’s primary energy and generating more than 70% of global carbon emissions. It is therefore necessary to catalyze urban decarbonization and resilience by improving energy efficiency, enhancing clean electrification and promoting resource circularity solutions. The foregoing among other measures are vital in achieving net zero emissions.

*This is an extract from the Article: Achieving Net Zero Emissions- A Reflection, Available at: http://kmco.co.ke/wp-content/uploads/2024/02/ Achieving-Net-Zero-Emissions-A-Reflection.pdf (29th February 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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.

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News & Analysis

Progress Towards Achieving Net Zero Emissions

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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 Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

Achieving net zero carbon emissions has become a central paradigm in global climate policy, and increasingly drives both analysis and action. It has been identified as the only way to stop a rise in global temperatures and presents many opportunities for development, economic diversification, and growth. Achieving net zero creates economic opportunities by developing new industries and jobs in various sectors such as energy, transport, and agriculture.

Achieving net zero emissions has numerous benefits for both nature and humanity. There have been commitments and some progress made towards achieving net zero emissions. However, achieving net zero is hindered by challenges such as costs, inadequate political will, and unsustainable business practices.

Achieving net zero calls for acceleration of the energy transition by embracing clean and green sources of energy such as renewable energy; embracing nature based solutions towards climate change; implementing and fostering effective utilization of carbon markets; promoting low carbon development strategies across all sectors including agriculture, energy, infrastructure, transport, and waste management; and investing in carbon removal technologies. Needless to add, achieving net zero is the way to go in our fight against climate change.

There has been some progress towards embracing the idea of net zero and implementing measures towards net zero transition. It has been observed that governments are increasingly accepting that net zero targets need to be included in their Nationally Determined Contributions (NDCs), and a growing number are legislating for net zero. For example, China which is one of the biggest emitters of greenhouse gases has committed to achieving ‘climate neutrality’ by 2060 – a crucial pledge for enabling the world as a whole to limit temperature rise to 1.5 or 2°C.

In addition, the European Union set out its bloc-wide net zero target for 2050 in its European Green Deal. Under the Deal, the European Union seeks to be the first climate-neutral continent in the world. Further, the United States of America (USA) has also committed to net zero emissions by 2050 at the latest. It has been pointed out that many countries with net zero targets are beginning to incorporate them directly into their NDCs, particularly now that the Glasgow Climate Pact “notes the importance of aligning nationally determined contributions with long-term low greenhouse gas emission development strategies.

It has been pointed out that there are several opportunities that can be unlocked in order to achieve net zero emissions. These include accelerating the energy transition and embracing renewable sources of energy; investing in nature-based solutions; and embracing the use of sustainable materials and reducing waste. However, despite the importance and opportunities available for achieving net zero, several challenges are hindering the transition towards net zero emissions. It has been argued that the primary challenge of achieving a zero-carbon future is the cost involved.

Achieving net zero requires transformation in key sectors including energy, agriculture, and transport which entails significant costs that may overburden or be out of reach for developing countries. In addition, it has been argued that from a political perspective, achieving net-zero carbon emissions requires strong policies and regulations that incentivize the transition to clean energy sources.

As a result, governments must set clear targets and provide financial support to drive investment in clean energy technologies. However, it has been correctly pointed out that political will is often constrained by competing interests such as economic growth, staid policy influence and social welfare.

It has been argued that carbon markets can play a vital role in achieving net zero. For example, by purchasing permits or credits generated from emissions reduction projects, emitting companies can unlock funding for the net-zero transition.

It is therefore necessary to actualize carbon markets in Kenya as envisaged under the Climate Change (Amendment) Act in order to accelerate the journey towards net zero emissions. The need to achieve net zero is therefore well captured at the global, regional, and national levels.

Further, organisations face several barriers in achieving net zero emissions such as creating realistic carbon targets, making carbon reduction a reality, supporting and streamlining supply chains, and choosing the right offsetting method. OECD, further points out that there is a growing gap between the various net-zero commitments put forward and concrete actions being implemented in the near-term. It is therefore necessary to implement net zero commitments and address the underlying challenges in order to effectively confront the problem of climate change.

 

*This is an extract from the Article: Achieving Net Zero Emissions- A Reflection, Available at: http://kmco.co.ke/wp-content/uploads/2024/02/ Achieving-Net-Zero-Emissions-A-Reflection.pdf (29th February 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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

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African Union., ‘Is Energy Transition the Answer to Africa’s Climate Change and Socio-Economic Development? What will it Take for Africa to Reach Net-Zero Emissions?’ Available at https://au.int/en/pressreleases/20211109/energy-transition-answer-africas-climate-change-and-socioeconomic (Accessed on 27/02/2024).

Carbon Brief., ‘Can ‘Nature-Based Solutions’ Help Address Climate Change?’ Available at https://www.carbonbrief.org/qa-can-nature-based-solutions-help-address-climate-change/ (Accessed on 27/02/2024).

Climate Change (Amendment) Act, 2023, Government Printer, Nairobi.

Climate Change Act., No. 11 of 2016, Government Printer, Nairobi.

Climate Change., ‘Meaning, Definition, Causes, Examples and Consequences.’ Available at https://youmatter.world/en/definition/climate-change-meaning-definition-causes-and-consequences/ (Accessed on 26/02/2024)

DGB Group., ‘Net Zero: Benefits, Challenges, Strategies, and the Power of Nature-Based Solutions’ Available at https://www.green.earth/blog/net-zero-benefits-challenges-strategies-and-the-power-ofnature-based-solutions (Accessed on 26/01/2024).

East African Community., ‘East African Community Climate Change Policy.’ Available at https://www.eac.int/environment/climate-change/eac-climate-change-policy-framework (Accessed on 27/02/2024).

Energy for Growth Hub., ‘Who Decides Africa’s Net Zero Pathways?’ Available at https://energyforgrowth.org/wp-content/uploads/2022/10/Who-Decides-Africas-Net-ZeroPathways_-2.pdf (Accessed on 26/02/2024).

Environmental and Energy Study Institute., ‘Fossil Fuels.’ Available at https://www.eesi.org/topics/fossil-fuels/description (Accessed on 27/02/2024).

European Commission., ‘The European Green Deal’ Available at https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en (Accessed on 27/02/2024).

Intergovernmental Panel on Climate Change., ‘Glossary’ Available at https://www.ipcc.ch/site/assets/ uploads/sites/2/2022/06/SR15_AnnexI.pdf (Accessed on 26/02/2024).

International Energy Agency., ‘Net Zero by 2050’ Available at https://www.iea.org/reports/net-zeroby-2050 (Accessed on 27/02/2024).

International Organization for Standardization., ‘Embracing Net Zero: A Crucial Step Towards a Sustainable Future’ Available at https://www.iso.org/climate-change/embracing-net-zero#:~:text=Emission%20red uctions%3A%20Reducing%20emissions%20at,innovating%20processes%20to%20reduce%20waste. (Accessed on 27/02/2024).

International Union for Conservation of Nature, ‘Nature-Based Solutions’ available at https://www.iucn.org/our-work/nature-based-solutions (Accessed on 27/02/2024).

Kyriacou. G., & Burke. J., ‘Why is Net Zero so Important in the Fight Against Climate Change?’ Available at https://www.lse.ac.uk/granthaminstitute/explainers/why-is-net-zero-so-important-in-the-fightagainst-climate-change/ (Accessed on 27/02/2024).

Levin. K et al., ‘What Does “Net-Zero Emissions” Mean? 8 Common Questions, Answered’ Available at https://www.wri.org/insights/net-zero-ghg-emissions-questions-answered (Accessed on 26/02/2024).

Muigua. K., ‘Achieving Sustainable Development, Peace and Environmental Security.’ Glenwood Publishers Limited, 2021.

Muigua. K., ‘Actualizing Africa’s Green Dream.’ Available at http://kmco.co.ke/wpcontent/uploads/ 2023/07/Actualizing-Africas-Green-Dream.pdf (Accessed on 27/02/2024).

Muigua. K., ‘Enhancing Low Carbon Development for Sustainability’ Available at https://kmco.co.ke/wp-content/uploads/2023/09/Enhancing-Low-Carbon-Development-forSustainability-.pdf (Accessed on 27/02/2024).

Muigua. K., ‘Transitioning from Fossil Fuels to Clean Energy’ Available at https://kmco.co.ke/wpcontent/uploads/2023/12/Transitioning-from-Fossil-Fuels-to-Clean-Energy.pdf (Accessed on 27/02/2024).

Murray. S., ‘Can Carbon Markets Accelerate Progress Towards Net Zero?’ Available at https://www.ft.com/content/5349cb46-4c33-4a2e-840a-b8fc94de7254 (Accessed on 27/02/2024).

Nordloh. D., ‘The Challenges to Achieving Net Zero Carbon Emissions’ Available at https://energybyentech.com/blog/the-challenges-to-achieving-net-zero-carbon-emissions/ (Accessed on 26/02/2024).

Nordloh. D., ‘The Challenges to Achieving Net Zero Carbon Emissions’ Op Cit 122 Ibid 123 World Economic Forum., ‘Net Zero Carbon Cities’ Available at https://www.weforum.org/nzcc/ (Accessed on 27/02/2024).

Nwokolo. S et al., ‘Introduction: Africa’s Net Zero Transition’ Available at https://www.researchgate.net/ publication/376294551_Introduction_Africa’s_Net_Zero_Transition (Accessed on 26/02/2024).

Organisation for Economic Co-operation and Development., ‘Understanding Countries’ Net-Zero Emissions Targets’ Available at https://www.oecd-ilibrary.org/docserver/8d25a20cen.pdf?expires =1708951187 &id=id&accname=guest&checksum=440237330830E3DE611AA54BC67A4665 (Accessed on 26/02/2024).

PwC Kenya., ‘Private Sector Development – Catalyst of a Sustainable Africa?’ Available at https://www.pwc.com/ke/en/blog/private-sectordevelopment.html#:~:text=As%20the%20world%20 looks%20to,sustainable%20practices%20within%20de veloping%20economies. (Accessed on 27/02/ 2024).

Renne. D., ‘Progress, Opportunities and Challenges of Achieving Net-Zero Emissions and 100% Renewables’ Solar Compass, Volume 1, 2022.

The Intergovernmental Panel on Climate Change., ‘Special Report: Global Warming of 1.5 ºC’ Available at https://www.ipcc.ch/sr15/ (Accessed on 27/02/2024).

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The Global, Regional and National Framework for Achieving Net Zero

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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 Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

The need to reduce emissions from greenhouse gases is set out under the United Nations Framework Convention for Climate Change (UNFCCC). The Convention seeks to achieve the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system (Emphasis added). It further urges countries to undertake several measures in order to reduce greenhouse gas emissions such as implementing national and regional measures aimed at mitigating climate change by addressing anthropogenic emissions; and promoting and cooperating in the development, application and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases.

Further, the Kyoto Protocol commits industrialized countries and economies in transition to limit and reduce greenhouse gases emissions in accordance with agreed individual targets. It requires these countries to implement measures and policies geared towards achieving their emission limitation and reduction commitments towards combating climate change. These measures include enhancement of energy efficiency; promotion of sustainable forms of agriculture in light of climate change considerations; fostering research on, and promotion, development and increased use of, new and renewable forms of energy, of carbon dioxide sequestration technologies and of advanced and innovative environmentally sound technologies and cooperation between states to enhance the individual and combined effectiveness of their policies and measures adopted towards confronting climate change.

The idea of achieving net zero is enshrined under the Paris Agreement. The objective of the Agreement is to strengthen the global response to the threat of climate change, in the context of Sustainable Development and efforts to eradicate poverty through holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels; increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.

The Paris Agreement provides that in order to achieve the long-term temperature goal set out in Article 2, Parties shall aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of the 21st century, on the basis of equity, and in the context of Sustainable Development and efforts to eradicate poverty. It has been argued that in order to achieve the target set out under the Paris Climate agreement to limit global warming to no more than 1.5°C, greenhouse gas emissions need to be cut in half by the year 2030, and to reach net-zero, by the year 2050. IPCC further points out that the world needs to reach net zero by around 2050 if it is to meet the Paris Agreement target of limiting global warming to 1.5°C.

Achieving net zero is envisaged under the Glasgow Climate Pact which was adopted at COP 26. Under the Pact, Parties recognize that limiting global warming to 1.5 °C requires rapid, deep and sustained reductions in global greenhouse gas emissions, including reducing global carbon dioxide emissions by 45 per cent by 2030 relative to the 2010 level and to net zero around midcentury as well as deep reductions in other greenhouse gases. The Pact also requires Parties to implement and communicate long term low greenhouse gas emission development strategies referred to in Article 4, paragraph 19, of the Paris Agreement towards just transitions to net zero emissions by or around midcentury, taking into account different national circumstances. Actualizing the aspirations of the Glasgow Climate Pact is vital in achieving net zero emissions.

At a regional level, the East African Community (EAC) Climate Change Policy recognizes the adverse impacts of climate change as a major challenge to socio-economic development globally. The Policy’s overall climate change mitigation objective is to promote Sustainable Development in the region while contributing to the global efforts of reducing emissions of greenhouse gases through the Clean Development Mechanisms, Nationally Appropriate Mitigation Actions, Reducing Emissions from Deforestation and Forest Degradation or through any other future agreements.

The Policy notes that although the EAC region has negligible contribution to global greenhouse gases emissions, it is still important for the region to contribute to the reduction of greenhouse gases through the preparation of Nationally Appropriate Mitigation Actions (NAMAs) for sectors with potentially high emission factors and take other relevant measures. These include sectors such as energy, transport, agriculture, waste management and industry. Implementing this Policy can accelerate the race towards net zero emissions within the EAC.

At a national level, the Climate Change Act of Kenya seeks to enhance the national response to climate change and achieve low carbon climate development for Sustainable Development. The Act sets out several ways of achieving this goal which include reducing emissions intensity by facilitating approaches and uptake of technologies that support low carbon, and climate resilient development. The Climate Change Act has since been amended by the Climate Change (Amendment) Act59 of 2023 in order to enhance climate change mitigation and adaption measures in Kenya through the concept of carbon markets.

*This is an extract from the Article: Achieving Net Zero Emissions- A Reflection, Available at: http://kmco.co.ke/wp-content/uploads/2024/02/ Achieving-Net-Zero-Emissions-A-Reflection.pdf (29th February 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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

Africa Union., ‘Agenda 2063: The Africa we Want.’ Available at https://au.int/sites/default/files/documents/33126-doc-framework_document_book.pdf (Accessed on 27/02/2024).

African Union., ‘Is Energy Transition the Answer to Africa’s Climate Change and Socio-Economic Development? What will it Take for Africa to Reach Net-Zero Emissions?’ Available at https://au.int/en/pressreleases/20211109/energy-transition-answer-africas-climate-change-and-socioeconomic (Accessed on 27/02/2024).

Carbon Brief., ‘Can ‘Nature-Based Solutions’ Help Address Climate Change?’ Available at https://www.carbonbrief.org/qa-can-nature-based-solutions-help-address-climate-change/ (Accessed on 27/02/2024).

Climate Change (Amendment) Act, 2023, Government Printer, Nairobi.

Climate Change Act., No. 11 of 2016, Government Printer, Nairobi.

Climate Change., ‘Meaning, Definition, Causes, Examples and Consequences.’ Available at https://youmatter.world/en/definition/climate-change-meaning-definition-causes-and-consequences/ (Accessed on 26/02/2024)

DGB Group., ‘Net Zero: Benefits, Challenges, Strategies, and the Power of Nature-Based Solutions’ Available at https://www.green.earth/blog/net-zero-benefits-challenges-strategies-and-the-power-ofnature-based-solutions (Accessed on 26/01/2024).

East African Community., ‘East African Community Climate Change Policy.’ Available at https://www.eac.int/environment/climate-change/eac-climate-change-policy-framework (Accessed on 27/02/2024).

Energy for Growth Hub., ‘Who Decides Africa’s Net Zero Pathways?’ Available at https://energyforgrowth.org/wp-content/uploads/2022/10/Who-Decides-Africas-Net-ZeroPathways_-2.pdf (Accessed on 26/02/2024).

Environmental and Energy Study Institute., ‘Fossil Fuels.’ Available at https://www.eesi.org/topics/fossil-fuels/description (Accessed on 27/02/2024).

European Commission., ‘The European Green Deal’ Available at https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en (Accessed on 27/02/2024).

Intergovernmental Panel on Climate Change., ‘Glossary’ Available at https://www.ipcc.ch/site/assets/ uploads/sites/2/2022/06/SR15_AnnexI.pdf (Accessed on 26/02/2024).

International Energy Agency., ‘Net Zero by 2050’ Available at https://www.iea.org/reports/net-zeroby-2050 (Accessed on 27/02/2024).

International Organization for Standardization., ‘Embracing Net Zero: A Crucial Step Towards a Sustainable Future’ Available at https://www.iso.org/climate-change/embracing-net-zero#:~:text=Emission%20red uctions%3A%20Reducing%20emissions%20at,innovating%20processes%20to%20reduce%20waste. (Accessed on 27/02/2024).

International Union for Conservation of Nature, ‘Nature-Based Solutions’ available at https://www.iucn.org/our-work/nature-based-solutions (Accessed on 27/02/2024).

Kyriacou. G., & Burke. J., ‘Why is Net Zero so Important in the Fight Against Climate Change?’ Available at https://www.lse.ac.uk/granthaminstitute/explainers/why-is-net-zero-so-important-in-the-fightagainst-climate-change/ (Accessed on 27/02/2024).

Levin. K et al., ‘What Does “Net-Zero Emissions” Mean? 8 Common Questions, Answered’ Available at https://www.wri.org/insights/net-zero-ghg-emissions-questions-answered (Accessed on 26/02/2024).

Muigua. K., ‘Achieving Sustainable Development, Peace and Environmental Security.’ Glenwood Publishers Limited, 2021.

Muigua. K., ‘Actualizing Africa’s Green Dream.’ Available at http://kmco.co.ke/wpcontent/uploads/ 2023/07/Actualizing-Africas-Green-Dream.pdf (Accessed on 27/02/2024).

Muigua. K., ‘Enhancing Low Carbon Development for Sustainability’ Available at https://kmco.co.ke/wp-content/uploads/2023/09/Enhancing-Low-Carbon-Development-forSustainability-.pdf (Accessed on 27/02/2024).

Muigua. K., ‘Transitioning from Fossil Fuels to Clean Energy’ Available at https://kmco.co.ke/wpcontent/uploads/2023/12/Transitioning-from-Fossil-Fuels-to-Clean-Energy.pdf (Accessed on 27/02/2024).

Murray. S., ‘Can Carbon Markets Accelerate Progress Towards Net Zero?’ Available at https://www.ft.com/content/5349cb46-4c33-4a2e-840a-b8fc94de7254 (Accessed on 27/02/2024).

Nordloh. D., ‘The Challenges to Achieving Net Zero Carbon Emissions’ Available at https://energybyentech.com/blog/the-challenges-to-achieving-net-zero-carbon-emissions/ (Accessed on 26/02/2024).

Nordloh. D., ‘The Challenges to Achieving Net Zero Carbon Emissions’ Op Cit 122 Ibid 123 World Economic Forum., ‘Net Zero Carbon Cities’ Available at https://www.weforum.org/nzcc/ (Accessed on 27/02/2024).

Nwokolo. S et al., ‘Introduction: Africa’s Net Zero Transition’ Available at https://www.researchgate.net/ publication/376294551_Introduction_Africa’s_Net_Zero_Transition (Accessed on 26/02/2024).

Organisation for Economic Co-operation and Development., ‘Understanding Countries’ Net-Zero Emissions Targets’ Available at https://www.oecd-ilibrary.org/docserver/8d25a20cen.pdf?expires =1708951187 &id=id&accname=guest&checksum=440237330830E3DE611AA54BC67A4665 (Accessed on 26/02/2024).

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