News & Analysis

When is Strategic Environmental Assessment (SEA) Considered Necessary?

Published

1 year ago

February 22, 2022

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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*

In several cases, Environmental Impact Assessment (EIA) license has been challenged on the basis that the it was issued before Strategic Environment Assessment as issued. One such case is the recently concluded National Environmental Tribunal (NET) Appeal in Greenbelt Movement & 5 others v National Environmental Management Authority & another; Kenya National Highways Authority (Interested Party), National Environmental Tribunal (NET) Appeal No. 19 of 2020 challenging NEMA approval of the Nairobi Expressway EIA. One of the issues the NET comprising Mohammed Balala (Chairperson), Christine Kipsang (Vice Chairperson), Dr. Kariuki Muigua, PhD (Member), Bahati Mwamuye (Member) and Waithaka Ngaruiya (Member) had to grapple with in making their landmark decision was whether the EIA was irregularly issued for lack of a strategic environmental assessment. The case has brought to the fore the question of when a Strategic Environmental Assessment is necessary whether on its own or as a prerequisite for Environmental Impact Assessment. In determining whether SEA is necessary, one has to look at the provisions of the Environmental Management and Coordination Act, No. 8 of 1999 and Environmental (Impact Assessment and Audit) Regulations, 2003 on SEA as well as the National Guidelines for Strategic Environmental Assessment (SEA) 2012 and case law.

The Environmental Management and Coordination Act in section 57A provides that “All Policies, Plans and Programmes for implementation shall be subject to Strategic Environmental Assessment.” The Act clarifies that for the avoidance of doubt, the plans, programmes and policies are those that are subject to preparation or adoption by an authority at regional, national, county or local level, or which are prepared by an authority for adoption through a legislative procedure by Parliament, Government or if regional, by agreements between the governments or regional authorities, as the case may be and determined by NEMA as likely to have significant effects on the environment. Further, all entities are required to undertake or cause to be undertaken the preparation of strategic environmental assessments at their own expense and submit such assessments to NEMA for approval in accordance with rules and guidelines prescribes by NEMA for in respect of Strategic Environmental Assessments.

Besides EMCA, Rule 42 of Environmental (Impact Assessment and Audit) Regulations, 2003 provides that: “(1) Lead agencies shall in consultation with the Authority subject all proposals for public policy, plans and programmes for environmental implementation to a strategic environmental assessment to determine which ones are the most environmentally friendly and cost effective when implemented individually or in combination with others. (2) The assessment carried out under this regulation shall consider the effect of implementation of alternative policy actions taking into consideration – (a) the use of natural resources; (b) the protection and conservation of biodiversity; (c) human settlement and cultural issues; (d) socio-economic factors; and (e) the protection, conservation of natural physical surroundings of scenic beauty as well as protection and conservation of built environment of historic or cultural significance. (3) The Government, and all the lead agencies shall in the development of sector or national policy, incorporate principles of strategic environmental assessment.”

The National Guidelines for Strategic Environmental Assessment (SEA) 2012 defines Strategic Environmental Assessment (SEA) as referring to “a range of analytical and participatory approaches that aims to integrate environmental consideration into policies, plans and programmes and evaluate the interlinkages with economic and social considerations. SEA is a family of approaches, which use a variety of tools, rather than a single, fixed and prescriptive approach. This process extends the aims and principles of EIA upstream in the decision-making process, beyond the project level and when major alternatives are still opens (UNEP, 2002). SEA represents a proactive approach to integrating environmental considerations into the higher levels of decision making, consistent with the principles outlined in Agenda 21.”

The principles of SEA include: (a) the sustainable use of natural resources, (b) the enhanced protection and conservation of biodiversity, (c) interlinkage of human settlement and cultural issues, (d) integration of socio-economic and environmental factors, (e) the protection and conservation of natural physical surroundings of scenic beauty as well as protection and conservation of built environment of historic or cultural significance, and (f) Public and stakeholder engagement. In turn, the benefits of SEA include safeguarding the environmental assets and opportunities upon which all people depend, particularly the poor, and so promote sustainable poverty reduction and development. SEA also helps in improving decision making related to policies, plans and programmes, in improving development outcomes and in strengthening and streamlining project specific EIA.

In order for the SEA process to be influential and to help improve policy-making, planning and decision-taking, it should: (a) Establish clear goals, objectives and targets of the PPP (b) Be integrated with existing policy and planning structures (c) Be flexible, iterative and customized to context (d) Analyze the potential effects and risks of the proposed PPP, and its alternatives, against a framework of sustainability objectives, principles and criteria (e) Provide explicit justification for the selection of preferred options and for the acceptance of significant trade-off (f) Identify environmental and other opportunities and constraints (g) Address the linkages and trade-offs between environmental, social and economic considerations. (h) Involve key stakeholders and encourage public involvement (i) Include an effective, preferably independent, quality assurance system (j) Be transparent throughout the process, and communicate the results (k) Be cost effective – avoid duplication of efforts and encourage synergies (l) Encourage formal reviews of the process after completion, and monitor PPP outputs and (m)Provide opportunities to build capacity for both its undertaking and use.

Screening is undertaken to determine the potential of a PPP to result in significant effects on the environment, hat is, to decide whether or not an SEA is required. Methods and techniques used to screen strategic proposals vary depending on the nature and the objectives of the PPPs, as well as the decision-makers needs. Screening could be influenced by amongst others, the sphere of decision –making involved (e.g. local, national or regional), whether a PPP is being developed or assessed, and the potential impacts associated with development in different sectors (for example water sector, housing sector, energy sector, etc) to which the PPP relate. Given that application of SEA can become a lengthy and expensive procedure if it is not appropriately focused, the SEA process needs to be carefully focused so that it looks only at the key strategic issues and take into account capacity constraints.

There are various methods available for screening, such as the use of formal “triggers” and checklists (that is, using a set of criteria or list of questions as prompts), seeking advice from a competent authority or other expertise, amongst others. These methods are used to indicate whether PPP is likely to have a significant environmental effect (both positive and negative) and a SEA should be carried out where significant effects on the environment are likely. In considering whether or not a SEA should be undertaken, it is necessary to take into account the nature of the strategic proposal and the nature of the environment that would be affected.

It is considered appropriate to carry out a SEA where, amongst others: the PPP is likely to result in significant environmental effects, taking into account the magnitude, duration and spatial extent of effects, the proposed PPP is likely to be politically or publicly contentious; the cumulative nature of the effects (i.e. the additive and synergistic effects) are likely to be significant; there are likely to be trans-boundary effects, that is, it is likely to affect other municipalities, counties, regions and countries). Further, SEA is needed where the level of confidence in predicting effects of the proposed PPP are low, there are inherent uncertainties and/or important gaps in information in predicting effects, and/or the PPP is unprecedented; risks to health, safety and/or the integrity of social or ecological systems are considered to be high; social and/or ecological systems have low resilience and high vulnerability to disturbance or impact (for example poor communities, sensitive ecosystems); and the existing levels of environmental quality are close to defined limits of acceptable change.

SEA is also considered appropriate where the PPP is likely to have a negative impact on unique, special or highly valued natural or cultural elements like threatened biodiversity, sacred areas and recognized local, county, national or international conservation or protection status, for example, nature reserve, heritage sites and Ramsar sites. SEA is also recommended where a PPP is likely to result in major changes in actions, behaviours or decisions by individuals, businesses, NGOs or government, that could lead to: the stimulation of development of infrastructure or other changes in urban or rural land use; an increase in the transformation and development of natural habitat or areas of nature conservation importance: major changes in the pattern of settlement, land occupation and/or demographics in an area: major changes in the development or use of technology, that could have negative implications for health and/or safety: the introduction of alien and potentially invasive organisms; changes in society’s consumption of energy and in particular fossil fuels, and therefore, in emissions of carbon dioxide and other greenhouse gases; and changes in the rate of society’s consumption of, and/or demand on natural resources, including water.

*This article is part of the series on Principles of Natural Resources Management in Kenya extracted from Legal Aspects of Strategic Environmental Assessment and Environmental Management 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

Environmental Management and Coordination Act, No. 8 of 1999;

Environmental (Impact Assessment and Audit) Regulations, 2003

Greenbelt Movement & 5 others v National Environmental Management Authority & another; Kenya National Highways Authority (Interested Party), National Environmental Tribunal (NET) Appeal No. 19 of 2020.

Muigua, K., Legal Aspects of Strategic Environmental Assessment and Environmental Management; Available at: http://kmco.co.ke/wp-content/uploads/2018/08/Legal-Aspects-of-SEA-and-Environmental-Management-3RD-December-2016.pdf (accessed on 23/02/2022).

National Guidelines for Strategic Environmental Assessment (SEA) 2012 and case law.

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News & Analysis

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

Published

1 day ago

May 30, 2023

Admin

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

(more…)

News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)

Published

6 days ago

May 26, 2023

Admin

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 20^th Century during the first Hague Peace Conference held between 18^th May and 29^th 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”.

Reference

PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25^th May 2023).

News & Analysis

Former KCB Company Secretary Sues Over Unlawful Dismissal

Published

4 months ago

January 19, 2023

Admin

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.