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*

Public participation is a key aspect of natural resources management. It allows individuals to express their views on key governmental policies and laws concerning the environmental conditions in their communities. The importance of public participation is the recognition that better decision-making flows from involving the public. It is now generally agreed that environmental problems cannot be solved by solely relying on technocratic and bureaucratic monopoly of decision-making.[1] Public participation is defined as the process by which public concerns, needs and values are incorporated into governmental and corporate decision-making with the overall goal of better decisions that are supported by the public.[2]

Some scholars have however given a broader definition by stating that, “public participation includes organized processes adopted by elected officials, government agencies or other public or private sector organizations to engage the public in environmental assessment, planning, decision making, management, monitoring and evaluation.”[3] There are various definitions of public participation but the main aspects that come out clearly are that: public participation relates to administrative decisions and not decisions made by elected officials and judges. It involves an interaction between the agency and the people participating. In public participation, there is an organized process of involving the public so that they can have some level of impact or influence on the decisions being made. According to some scholars, the definition of public participation excludes some kinds of participation that are legitimate components of a democratic society such as the electoral process, litigation and extra-legal protests.[4]

Public participation may be provided for in law through at least three legal mechanisms; entrenchment in the Constitution as part of the Bill of Rights; in Environmental Impact Assessments; and through direct locus standi for the public in environmental matters.[5] One of the national values and principles of governance entrenched in the Constitution is participation of the people.[6] The Constitution provides that the state should encourage public participation in the management, protection and conservation of the environment. It goes a step further and imposes a duty on individuals to cooperate with the state organs and other persons in the protection and conservation of the environment.[7] This is also extended to the administration of county governments within the devolved system.[8]

Principle 10 of the Rio Declaration provides that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. It further provides for access to information by the public. At the national level, each individual must 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. States must facilitate and encourage public awareness and participation by making information widely available.[9]

Effective access to judicial and administrative proceedings, including redress and remedy, must also be provided. Public participation is, therefore, an essential principle in natural resources management. However, public participation is hampered by factors such as financial cost of engaging the public, time constraints, fear that participants may not be truly representative and belief that citizens lack knowledge of complex technical issues. In Kenya today, as the size and scope of government continues to grow, decisions that have previously been made by elected officials in a political process are now being delegated by statute to technical experts in state agencies and constitutional commissions. The rationale is, therefore, to incorporate public values into decisions, improve the substantive quality of decisions, resolve conflicts among competing interests and build trust in institutions and educate and inform the public. This is necessary because technocrats in these institutions are not directly elected by the people.

In the Matter of the National Land Commission, Mutunga, CJ (as he then was) observed that:[10] “ [341] Cases touching on the environment and natural resources have examined the duty placed upon State organs to consult the people, and to engage communities and stakeholders, before making decisions affecting the environment. These cases were decided before and after the 2010 Constitution was promulgated, and the Courts have held that State organs that made or make decisions without consulting or engaging the people, the community or other interested stakeholders, acted or act outside their powers-and such actions stand to be quashed[11] …[348] It is thus clear that the principle of the participation of the people does not stand in isolation; it is to be realised in conjunction with other constitutional rights, especially the right of access to information (Article 35); equality (Article 27); and the principle of democracy (Article 10(2)(a)). The right to equality relates to matters concerning land, where State agencies are encouraged also to engage with communities, pastoralists, peasants and any other members of the public. Thus, public bodies should engage with specific stakeholders, while also considering the views of other members of the public. Democracy is another national principle that is enhanced by the participation of the people.”

The ‘public’ in public participation refers to individuals acting both in their roles as citizens, as formal representatives of collective interest or affected parties that may experience benefit or harm or that otherwise choose to become informed or involved in the process. The label ‘public’ is often used to refer to individual citizens or relatively unorganized groups of individuals but should be expanded to include the full range of interested and affected parties including corporations, civil society groups, technocrats and even the media. Four categories of the public must be considered when deciding whether or not the ‘public’ has been involved. These are: stakeholders who are organized groups that are or will be affected by or that have a strong interest in the outcome of the decision; the directly affected public who will experience positive or negative effects from the environmental decision; the observing public which includes the media and opinion leaders who may comment on the issue or influence public opinion; and the general public who are all individuals not directly affected by the environmental issue but may choose to be part of the decision making process.[12]

In Hassan and 4 others v KWS[13] the court described the public as “those entitled to the fruits of the earth on which the animals live” when stating that there was no express consent from the community allowing KWS to translocate the rare hirola antelope from their land. Further, in Mada Holdings Ltd t/a Fig Tree Camp v County Council of Narok,[14] the court gave a much wider description of the public by stating that it is “the individual who has sufficient interest in the issue over which the public body is exercising discretion, or where the exercise of that discretion is likely to adversely affect the interests of the individual or even where it is shown that the individual has a legitimate expectation to be consulted before the discretionary power is exercised.”[15]

*This article is an extract from the Article Fostering the Principles of Natural Resources Management in Kenya, 8(1) Journal of Conflict Management and Sustainable Development, p. 1 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

[1] Marianela, C., et al, Environmental Law in Developing Countries: Selected Issues, Vol. II, IUCN, 2004, p. 7.

[2] Creighton, J.L., The Public Participation Handbook: Making Better Decisions through Citizen Involvement (John Wiley & Sons, 2005), p.7.

[3] Dietz t. & Stern, P.C., (eds), Public Participation in Environmental Assessment and Decision Making, (National Academies Press, 2008), p.1; See also Ondrik, R. S., “Participatory approaches to national development planning,” Framework for Mainstreaming Participatory Development Processes into Bank Operations, ADB (1999): 15. Available at http://siteresources.worldbank.org/INTEASTASIAPACIFIC/Resources/226262-1143156545724/Brief_ADB.pdf [Accessed on 8/1/2019]

[4] Creighton, op. cit., p.8.

[5] Angwenyi, A.N., ‘An Overview of the Environmental Management and Coordination Act,’ in Okidi, C.O., et al, (eds), Environmental Governance in Kenya: Implementing the Framework Law (East Africa Educational Publishers, 2008), p.30; See also URAIA, “What Is Public Participation?” Available at http://uraia.or.ke/wp-content/uploads/ 2016/11/Citizen-Participation-BOOKLET.pdf [Accessed on 8/1/2019].

[6] Article 10(2)(1) of the Constitution.

[7] Article 69 of Constitution.

[8] Republic of Kenya, County Public Participation Guidelines, (Ministry of Devolution and Planning & Council of Governors, January, 2016). Available at http://devolutionasals.go.ke/wp-content/uploads/2018/03/County-Public-Participation_Final-1216-2.pdf [ Accessed on 8/1/2019].

[9] Report of the United Nations Conference on Environment and Development (Rio De Janeiro, 3-14 June 1992).

[10] [2015] eKLR, Advisory Opinion Reference 2 of 2014, para. 346.

[11] See also Meza Galana and 3 Others v. AG and 2 Others HCCC No. 341 of 1993; [2007] eKLR, Hassan and 4 Others v. KWS [1996] 1 KLR (E&L) 214; Mada Holdings Ltd t/a Fig Tree Camp v. County Council of Narok High Court Judicial Review No. 122 of 2011; [2012] eKLR; and Republic v. Minister of Forestry and Wildlife and 2 Others ex parte Charles Oduor Okello and 5 Others HC Miscellaneous Application No. 55 of 2010).

[12] Dietz & Stern (eds), Public Participation in Environmental Assessment and Decision Making, op cit, p.15.

[13] [1996] 1KLR (E&L) 214, p.215.

[14] HC Judicial Review No. 122 of 2011, [2012] eKLR.

[15] See also In the Matter of the National Land Commission [2015] eKLR, Advisory Opinion Reference 2 of 2014