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 Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The Constitution of Kenya provides for obligations meant to ensure sustainable management of natural resources and the environment, which impose duties and responsibilities against both the State and individual persons in ensuring effective environmental governance.
State Obligations in Environmental and Natural Resources Governance
Constitutionalisation of environmental rights is now one of the universally accepted approaches to environmental conservation and management. This approach can be argued to have been informed by the adoption of a human rights approach to environmental matters. The link between human rights and the environment may have first been established by the Stockholm Declaration in 1972. It has also become the norm worldwide for the duties of the state in respect of the environmental management and conservation to be spelt out in the Constitution. It is against this background that the Constitution of Kenya 2010 outlines the obligations of the State in respect of the environment.
The courts have affirmed that although the national objectives and directive principles of State policy are not on their own justiciable, they and the preamble of the Constitution should be given effect wherever it was fairly possible to do so without violating the meaning of the words used. Considering that the Constitution is the supreme law of the land, all the other sectoral laws on environment and natural resources management ought to be aligned to the constitutional provisions. The reality however, is that some of the laws are yet to be aligned and thus making it difficult to achieve the constitutional objectives on environment and natural resources governance.
Obligations of Citizens in Environment and Natural Resources Management
Article 69(2) of the Constitution of Kenya places a duty on every person to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. The duty is only limited to cooperation with the state and personal initiative that falls outside of statutory requirements may only be construed. Thus, it is the State and its organs that are to take initiative in management and the rest are only expected to offer support and follow any direction given. The Constitution has gone a step further to provide for active involvement of communities in sustainable environmental and natural resources matters through seeking court’s intervention. Citizenry have a role of ensuring that their rights in relation to the environment are not violated, by way of litigation.
Active participation of citizens makes them appreciate and support government efforts and also take part in conservation measures. However, there has not been meaningful participation of the public in environmental and natural resource management matters since majority of the sectoral laws only provide for public participation as a mere formality and not as an empowerment tool as envisaged in international human rights instruments. A good example is the Environmental Management and Coordination Act 1999 (EMCA), which, while it provides for consultations, the same are mainly meant to be between the state agencies charged with environmental governance. Thus, it is possible to have a scenario where the protectionist approaches adopted in most of these sectoral laws end up undermining efforts towards achieving sustainable development instead of boosting the same.
The Agenda 21 under section 23 calls for full public participation by all social groups, including women, youth, indigenous people and local communities in policy-making and decision-making. The Rio Declaration also largely adopts an anthropocentric approach to environmental conservation and sustainable development in general. While the Constitution of Kenya has not been very clear on the specific role of communities as far as environmental governance is concerned, it has however addressed the right of communities to seek legal redress. The right to seek legal redress is also guaranteed under s. 3(3) of the Environmental Management and Co-ordination Act. The State should ensure that communities play a key role in these efforts and thus, there is need to align these laws with the current Constitution.
Implementing the Constitutional Obligations of the State in Respect of the Environment
It has been observed that the management regimes of public forests (and perhaps even other natural resources in Kenya), whether they are protectionist oriented or incentive-based are important in determining outcomes of conservation and sustainable use. Kenya has historically adopted a protectionist model, where conservation strategies have been dominated by attempts to fence off or reserve areas for nature and exclude people from the reserved areas, and also involved the creation of protected areas (national parks, game reserves and national forest reserves), the exclusion of people as residents, prevention of consumptive use, and minimization of other forms of human impact.
Broadly, this approach viewed development objectives of local communities as being in direct conflict with the objectives of biodiversity conservation. It is for this reason that this section explores measures that may facilitate securing the dream of sustainable exploitation, utilization, management and conservation of the environment and natural resources and equitable sharing of the accruing benefits. This is in recognition of the fact that the Constitution contemplates adoption of measures that not only promote sustainable management of resources but also actively and meaningfully engage communities in such efforts.
*This article is an extract from the Article: Securing Our Destiny through Effective Management of the Environment, (2020) Journal of Conflict Management and Sustainable Development Volume 4(3), 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 among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., Securing Our Destiny through Effective Management of the Environment, (2020) Journal of Conflict Management and Sustainable Development Volume 4(3), p. 1.