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The Legal Framework for Corporate Environmental Compliance in Kenya

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By Dr. Kariuki Muigua, PhD, Africa’s Leading Dispute Resolution and ESG Expert, Africa Arbitrator of the Year 2022/3, Africa ADR Practitioner of the Year 2022/3, Member of the Permanent Court of Arbitration nominated by the Republic of Kenya, Member of the National Environment Tribunal, University of Nairobi Senior Lecturer and Managing Partner at Kariuki Muigua & Co. Advocates.*

The vast majority of economic activities around the world are organized through corporations. Corporations have often faced the dilemma of striking a balance between economic development and environmental conservation. In Kenya, it has been observed that corporate bodies are involved in acts and omissions which violate the right to a clean and healthy environment such as pollution and non-compliance with statutory obligations including undertaking environmental impact assessments and audits. The main concern of corporates engaged in such acts is their economic growth and they engage in acts of pollution to save costs through acts and omissions such as failure to treat effluent before discharging into water bodies. However, with the increased environmental challenges such as climate change, the acts and omissions of corporations can no longer go unregulated.

The concept of environmental liability has emerged at both the national and global level to curb against environmental damage by corporations. Further, corporate governance principles such as corporate social responsibility require corporations to consider the social consequences of their economic actions in decision making. It has been argued that the concept of environmental governance is an important aspect of corporate social and environmental responsibility. In this article, we discuss the concept of corporate environmental compliance in Kenya and proposes solutions on how the same can be enhanced to promote sustainable development. In light of the provisions of the Constitution of Kenya, 2010 and EMCA, the environmental regime in Kenya has been strengthened and corporations now face both civil and criminal liability for acts and omissions related to the environment.

International Legal Framework for Corporate Environmental Compliance

The international framework on corporate environmental compliance is based on a number of treaties, standards and principles aimed at facilitating enforcement and compliance with environmental laws and regulations. While such treaties, principles and standards generally bind states, they are directly applicable to corporations since a state can control the activities of a corporation within its jurisdiction in compliance with its obligations under international law especially on environmental matters. The United Nations Framework Convention on Climate Change, Paris Agreement 2015, is an Agreement aimed at strengthening the global response to the threat of climate change in the context of sustainable development. The Agreement contains provisions aimed at holding the rise in global temperature levels and controlling greenhouse gas emissions. It is noteworthy that most corporations especially those in industrial goods production release greenhouse gases that may adversely affect the ozone layer and this makes them bound by this legal instrument.

The Montreal Protocol is an international Treaty which aims to regulate the production and use of chemicals that contribute to the depletion of ozone layer. It sets limits on the production of chlorofluorocarbons (CFCs) and related substances that may lead to the depletion of the ozone layer. Again, some corporations may release chemicals that may adversely affect the ozone layer. The 1972 Stockholm Declaration of the United Nations Conference on the Human Environment contains provisions on compensation for damage to victims of environmental liability and requires member states to adopt laws that provide for liability and compensation to victims of environmental damage such as pollution. This has been captured in Kenya under the Environmental Management and Co-ordination Act, 1999 which imposes both civil and criminal liability for environmental damage.

The Rio Declaration on Environment and Development captures several principles aimed at protecting the integrity of the global environment and developmental system. These include sustainable development, public participation, inter and intra generational equity, precautionary principle and the polluter pays principle. ISO 14000 entails a number of standards developed by the International Organization for Standardization to help organizations take a proactive approach to managing environmental issues. The standards challenge organizations to undertake a number of activities related to environmental governance which include taking stock of their impacts on the environment, establishing objectives and targets towards environmental management, committing to effective and reliable solutions such as prevention pollution and taking personal responsibility for conduct related to the environment. The existence of such standards is important since it allows organizations to gauge their environmental efforts against the generally accepted international criteria.

National Legal Framework for Corporate Environmental Compliance

Constitution of Kenya, 2010

The Constitution of Kenya accords every person the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations through measures contemplated in article 69; and to have obligations relating to the environment fulfilled under Article 70. These Constitutional provisions bind both the state and every person. Corporations thus have environmental obligations under the Constitution since they are artificial persons. Breach of these obligations could result in enforcement of environmental rights against the corporation and sanctions such as compensation for any victim of a violation of the right to a clean and healthy environment under Article 70 (2) (c) of the Constitution.

Environmental Management and Co-ordination Act (EMCA), 1999

The Environmental (Management and Co-ordination) Act, 1999 (EMCA) is an Act of Parliament to provide for the establishment of an appropriate legal and institutional framework for the management of the environment. The Act entitles every person to a clean and healthy environment and requires every person to cooperate with state organs to protect and conserve the environment and to ensure the ecological sustainable development and use of natural resources. EMCA also stipulates several measures for protection and conservation of the environmental subsectors including rivers, lakes, seas, wetlands, mountain areas, forests, biological resource and the ozone layer. These provisions bind both the state and individuals and their violation could result in commission of environmental offences set out under the Act. When these offences are committed, by a body corporate, the body corporate and every director or officer of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, shall be guilty of an offence. To aid in environmental protection and conservation, the Act lists several environmental management tools such as Environmental Impact Assessment (EIA), Strategic Environmental Assessment (SEA), Strategic Environmental and Social Assessment (SESA), Environmental Audits and Monitoring (emphasis added).

Companies Act, 2015

The Companies Act, 2015 calls upon directors while discharging the duty to promote the success of a company to have regard to the impact of the operations of the company on the community and the environment. The Act further mandates directors while preparing their reports to include information about environmental matters and take into account the impact of the business of the company on the environment.

Climate Change Act, 2016

The Climate Change Act, 2016 provides a regulatory framework for enhanced response to climate change and puts in place measures and mechanisms aimed at achieving low carbon climate development. The Act applies in all sectors of the economy and requires measures to be taken towards mainstreaming climate change responses in development planning, providing incentives and obligations for private sector contribution in achieving low carbon climate development and promotion of low carbon technologies. It also imposes climate change duties upon private entities which may also be required to prepare reports on the status of performance of such obligations. The Act empowers the National Environmental Management Authority (NEMA) to monitor, investigate and report whether public and private entities are in compliance with their duties under the Act.

Water Act, 2016

The Water Act, 2016 is an Act of Parliament to provide for the regulation, management and development of water resources. It enshrines the right to clean and healthy water and contains provisions that seek to curb contamination and pollution of water sources and establishes institutions to enforce the Act. Despite enactment of the Act, there are still many cases of pollution of water bodies some which are perpetrated by corporations through discharge of untreated wastes. Enforcement and compliance with the Act is necessary in attainment of the right to clean and healthy water.

Sectoral Regulations

In addition to these legal instruments, there are several sectoral regulations which govern environmental compliance in Kenya. The Environmental (Impact Assessment and Audit) Regulations, 2003 provide for a system governing the Environmental Impact Assessment process and environmental audits. The Air Quality Regulations 2014 provide for prevention, control and abatement of air pollution to ensure clean and healthy ambient air. The regulations further provide for establishment of emission standards for various sources including industries as outlined in the Environmental Management and Coordination Act, 1999. The Water Quality Regulations 2006 provides for the right to clean and healthy water and obligates every person to refrain from acts and omission that may cause water pollution. The Waste Management Regulations 2006 provide a system to govern management of wastes including industrial and hazardous wastes.

*This article is an extract from the Article: Securing Our Destiny through Effective Management, (2020) Journal of Conflict Management and Sustainable Development Volume 4(3), p. 1.  by Dr. Kariuki Muigua, PhD Senior Advocate of the High Court 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 Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 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.

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.

News & Analysis

Way Forward in Actualizing Gender Equity for Environmental Sustainability

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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 Academic Champion of ADR 2024, 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), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024)*

Achieving environmental sustainability has become a pertinent concern in the wake of global environmental challenges especially the threat of climate change. Despite efforts being made towards fostering gender equity, it has been observed that gender disparities are evident in the sphere of environmental governance and management a situation that hinders environmental sustainability and realization of Sustainable Development.

There is a need for active participation of both men and women in the management of natural resources and environmental governance in order to foster environmental sustainability. This can be achieved through public participation and access to information; embracing the role of women in in environment and natural resource decision making and leadership; economic empowerment of women and implementing national policies and programmes on gender such as Kenya’s National Policy on Gender and Development.

There is need to actualize gender equity in order to enhance environmental sustainability. It has been stated that gender equality and women’s empowerment are matters of fundamental human rights and prerequisites to meeting Sustainable Development goals around the world. This fact is acknowledged by the United Nation’s 2030 Agenda for Sustainable Development which asserts that realizing gender equality and empowerment of women will make a crucial contribution towards progress across all the Sustainable Development Goals and targets.

Sustainable Development Goal 5 seeks to ensure effective and full participation of women and equal opportunities at all levels of decision making in political, economic and public life including access to ownership and control over land and natural resources. Realizing this goal is vital in actualizing gender equity for environmental sustainability. Further, there is need to foster participation of women in environmental decision making including formulation of laws and policies on the environment and implementation of environmental projects.

Public participation is a fundamental principle that can enhance sound management of the environment and natural resources towards environmental sustainability. The importance of public participation has been enunciated under the Rio Declaration on Environment and Development. Public participation has also been captured as among the national values and principles of governance in Kenya. The Constitution also obliges the state to encourage public participation in the management, protection and conservation of the environment.

Public participation can foster the voice of women in environmental decision making and contribute towards the realization of environmental sustainability through sound and effective decisions that incorporate the decision of all concerned citizens including women. Women have always been the custodians of the environment and incorporating their views in environmental decision making will enhance the quality of such decisions thus fostering Sustainable Development. It is imperative to empower women and enhance access to information which are important tenets in fostering effective public participation.

The National Policy on Gender and Development in Kenya also envisages several ways through which gender equity can be realized for environmental sustainability. These include developing and reviewing environment, and other natural resources (including forests, water, mining, petroleum and energy) management laws, policies and programmes to ensure gender and equity compliance; ensuring availability of water for multiple use to women taking into account the gender division of labour that defines women’s domestic and productive activities in the household; ensuring that women participate in and benefit equitably from investments in various natural resources development initiatives; Building capacities of development agencies in gender mainstreaming into environment and climate change laws, policies and programmes and ensure that women participate in and contribute to and benefit from climate resilient programmes and projects and supporting interventions aimed at equitable participation of women in the sustainable utilization of natural resources for economic benefits including opportunities for carbon trading.

Realizing the vision of this policy is essential in actualizing gender equity for environmental sustainability in Kenya. It is indeed possible to achieve gender equality and equity if the National Policy on Gender and Development can be implemented and supported by good will from all groups of persons and all levels of government. It is also imperative embrace the role of women in in environment and natural resource decision making and leadership. This can be achieved by appointing women in leadership positions in ministries, state departments, environmental management bodies and other positions in environment related sectors.

Economic empowerment of women is also vital in actualizing gender equity and environmental sustainability. It can enhance the ability of women to access resources such as land, energy and water a factor that can enhance effective management of these resources towards environmental sustainability. Though the foregoing among other measures, gender equity can be actualized for environmental sustainability towards Sustainable Development. It has been argued that if countries are to achieve the Sustainable Development goals as well as their national development plans such as the Vision 2030 development blueprint in Kenya, then gender equality and equity must be addressed as a matter of priority since development requires concerted efforts of both men and women.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 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 and Academic Champion of ADR 2024. 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 and Pitfalls in Actualizing Gender Equity for Environmental Sustainability

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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 Academic Champion of ADR 2024, 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), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024)*

There have been some attempts towards fostering gender equity for environmental sustainability. The Third United Nations Women’s Conference held in Nairobi Kenya in 1985 was among the first international forums that made explicit the linkages between Sustainable Development and women’s involvement and empowerment as well as gender equality and equity. The conference identified the environment as an area of concern for women and called for a gender perspective on Sustainable Development, planning and implementation.

The Rio Declaration also envisages the participation of all people in environmental management. Principle 10 of the Rio Declaration states as follows: ‘Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall 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 decisionmaking processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.’

Principle 10 of the Rio Declaration thus encapsulates several tenets that are vital in actualizing gender equity for environmental sustainability including participation of all citizens, access to information and access to justice. Upholding these principles can enhance gender equity for environmental sustainability. In Africa, the African Charter on Human and People’s Rights stipulates that all people shall have the right to a general satisfactory environment favourable to their development. It also calls upon Africa states to ensure the elimination of every discrimination against women.

The African Charter on Human and People’s Rights therefore envisages the ideas of environmental sustainability and gender equity. Further, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa states that women shall have the right to live in a healthy and sustainable environment. It implores states to ensure greater participation of women in the planning, management and preservation of the environment and the sustainable use of natural resources at all levels. The Protocol thus envisages the role of gender equity in environmental sustainability.

In Kenya, the Constitution enshrines equity and equality as being among the national values and principles of governance. It further captures the right of every person to a clean and healthy environment. The Constitution also obliges the state to encourage public participation in the management, protection and conservation of the environment. It also states that every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. Actualizing these Constitutional provisions will foster gender equity for environmental sustainability in Kenya.

In addition, the National Policy on Gender and Development seeks to create a just, fair and transformed society free from gender-based discrimination in all spheres of life practices. The policy is further aimed at integrating gender equality and women’s empowerment into sectoral policies, planning and programmes including the environment and natural resources management. The policy acknowledges that access to and control over environmental resources is gender biased.

It seeks to promote gender equity for environmental sustainability through measures such as having women well represented in decision-making processes over the environment and natural resources; taking into account women’s input into climate change adaptation and mitigation strategies; reducing gender disparities in access to natural resources; providing affordable clean water to reduce health risks related to poor quality of water and providing gender-disaggregated data on the impacts of environmental and natural resources’ degradation and climate change.

Realizing the vision of this policy is vital in actualizing gender equity for environmental sustainability in Kenya. From the foregoing, it can be deduced that there have been attempts towards fostering gender equity for environmental sustainability. However, it has also been observed that there are still gender disparities which hinder effective realization of gender equity for sustainable development.

It has been observed that men are the main actors in the management of renewable and non-renewable natural resources such as forests, wildlife, minerals and natural gas. This has significant implications on the Gross Domestic Product and the livelihoods of Kenyans dependent on the environment and natural resources69. Further, gender disparities are also witnessed through cases of unequal and insecure rights over land with women being disproportionately disadvantaged.

In Kenya, it has been stated that there are gender inequalities in land ownership and representation. The Constitution of Kenya acknowledges this problem and enshrines the elimination of gender discrimination in law, customs and practices related to land and property in land as one of the principles of land policy in Kenya. Access to and secure tenure over land is closely linked to natural resource access and management, such as water and forest resources, with benefits for sustainable ecosystems.

In addition, it has been pointed out that looking at gender aspects of the use of natural resources such as water, forests and land and experiences of environmental degradation through climate change, pollution, chemicals, loss of biodiversity illustrates gender inequalities. Women are severely affected by challenges such as the lack of access to modern energy services, lack of access to safe and clean water and inadequate land rights due to their important role in sustaining households.

Furthermore, women have been severely impacted by the effects of climate change as witnessed by inadequate access to natural resources such as water, food insecurity due to drought which hinders farming activities and gender based violence. It has also been noted that inadequate representation by women in environmental governance in areas such as energy, forestry and land has resulted in mismanagement of these sectors contributing to the threat of climate change and adverse effects on women. It is necessary to solve these problems in order to actualize gender equity for environmental sustainability.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 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 and Academic Champion of ADR 2024. 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

‘What Is Gender and Biodiversity?’ Available at https://www.cbd.int/gender/biodiversity/ (Accessed on 11/08/2023).

African Charter on Human and People’s Rights., Available at https://au.int/sites/default/files/treaties/36390-treaty-0011_- _african_charter_on_human_and _peoples_rights_e.pdf (Accessed on 12/08/2023).

Crabtree. E., ‘Why we Need Gender Equity, Not Just Equality.’ Available at https://iqeq.com/insights/why-we-need-gender-equity-not-justequality/#:~:text=Gender%20equality%20is%20giving%20all,limit%20 how%20people%20access%20 opportunities. (Accessed on 11/08/2023).

DCED., ‘Gender Equality vs Equity.’ Available at https://www.enterprisedevelopment.org/weegateway/gender-equality-vs-equity/ (Accessed on 11/08/2023).

De Silva. DG., & Pownall. RA., ‘Going Green: Does it Depend on Education, Gender or Income? ‘ Applied Economics, Volume 46, No. 5. (2014) pp573–586.

Fitzmaurice. M., ‘The Principle of Sustainable Development in International Development Law.’ International Sustainable Development Law., Vol 1.

  1. J. Latham, “A study on gender equality as a prerequisite for sustainable development,” Report to the Environment Advisory Council, Sweden 2007:2, p. 17. Available at http://www.uft.oekologie.unibremen.de/hartmutkoehler_fuer_studierende/MEC/ 09-MECreading/gender%202007%20EAC%20rapport_engelska.pdf (Accessed on 11/08/2023).

Geneva Environment Network., ‘Gender and the Environment.’ Available at https://www.genevaenvironmentnetwork.org/resources/updates/gender-and-theenvironment/ (Accessed on 11/08/2023).

Goodland. R., ‘The Concept of Environmental Sustainability.’ Annual Review of Ecology and Systematics, Volume 26 (1995), 1-24.

Hannan. C., ‘Mainstreaming Gender Perspectives in Environmental Management and Mitigation of Natural Disasters.’ Available at https://web.archive.org/web/20180721174301id_/http://www.un.org/ womenwat ch/osagi/pdf/presnat%20disaster.PDF (Accessed on 12/08/2023).

IUCN., ‘Gender and the Environment: What are the Barriers to Gender Equality in Sustainable Ecosystem Management?’ Available at https://www.iucn.org/news/gender/202001/gender-and-environment-what-are-barriers-gender-equality-sustainable-ecosystem-management (Accessed on 12/08/2023).

Kariuki. J., & Birner. R., ‘Exploring Gender Equity in Ecological Restoration: The Case of a Market Based Program in Kenya.’ Available at https://er.uwpress.org/content/wper/39/1-2/77.full.pdf (Accessed on 12/08/2023).

Kassinis. G et al., ‘Gender and Environmental Sustainability: A Longitudinal Analysis.’ Corporate Social Responsibility and Environmental Management (2016).

Morelli. J., ‘Environmental Sustainability: A Definition for Environmental Professionals.’ Journal of Environmental Sustainability, Volume 1, Issue 1 (2011).

Muigua. K., ‘Actualising the National Policy on Gender and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2020/10/Actualising-theNational-Policy-on-Gender-and-Development-in-Kenya-Kariuki-Muigua-Ph.DOctober-2020.pdf (Accessed on 12/08/2023).

Muigua. K., ‘Gender Perspectives in Biodiversity Conservation.’ Available at http://kmco.co.ke/wp-content/uploads/2021/11/Gender-Perspectives-inBiodiversity-Conservation-Kariuki-Muigua-November-2021.pdf (Accessed on 11/08/2023).

Muigua. K., ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya.’ Available at http://kmco.co.ke/wpcontent/uploads/2018/08/TOWARDS-MEANINGFUL-PUBLIC-PARTICIPATIONIN-NATURAL-RESOURCE-MANAGEMENT-IN-KENYA.pdf (Accessed on 12/09/2023).

Organization for Security and Co-operation in Europe., ‘Gender and the Environment.’ Available at https://www.osce.org/files/f/documents/4/f/36360.pdf (Accessed on 12/08/2023).

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa., Available at https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/Prot ocolontheRightsofWomen.pdf (Accessed on 12/08/2023).

Report of the World Commission on Environment and Development., ‘Our Common Future’ 1987 (Brundtland Report).

Republic of Kenya., ‘Sessional Paper No. 02 of 2019 on National Policy on Gender and Development.’ Available at http://psyg.go.ke/wpcontent/uploads/2019/12/NATIONAL-POLICY-ON-GENDER-ANDDEVELOPMENT.pdf (Accessed on 12/08/2023).

Robinson. D., ‘15 Biggest Environmental Problems of 2023.’ Available at https://earth.org/the-biggest-environmental-problems-of-our-lifetime/ (Accessed on 11/08/2023).

Shobeiri. S., & Meiboudi. H., ‘Women’s Participation in Environmental Management and Development Promotion Culture.’ Available at https://www.researchgate.net/publication/311533595_Women’s _participation_in_e nvironmental_management_and_development_Promotion_Culture#:~:text=Women %20are%20the%20main%20cause,environmental%20management%20are%20so%20o bvious. (Accessed on 12/08/2023).

SIDA., ‘Gender and the Environment.’ Available at https://cdn.sida.se/publications/files/-gender-and-the-environment.pdf (Accessed on 11/08/2023).

Sphera., ‘What Is Environmental Sustainability?’ Available at https://sphera.com/glossary/what-is-environmental-sustainability/ (Accessed on 11/08/2023).

The Organization for Economic Cooperation and Development., ‘Gender and the Environment.’ Available at https://www.oecd.org/env/gender-and-theenvironment-3d32ca39-en.htm (Accessed on 12/08/2023).

UN Women., ‘Explainer: How Gender Inequality and Climate Change are Interconnected.’ Available at https://www.unwomen.org/en/newsstories/explainer/2022/02/explainer-how-gender-inequality-and-climate-changeare-interconnected?gclid=CjwKCAjw29ymBhAKEiwAHJbJ8p-iWBVsiOQq0h8- HiXaObwP7T1nztSxRGPldFcxcRs-fIzzRIQIgRoCVrIQAvD_BwE (Accessed on 12/08/2023).

UNICEF., ‘Climate Change and Environmental Sustainability.’ Available at https://www.unicef.org/india/what-we-do/climate-change (Accessed on 11/08/2023).

United Nations Department of Economic and Social Affairs., ‘Forum on Climate Change and Science and Technology Innovation.’ Available at https://www.un.org/en/desa/forum-climate-change-andscience-and-technologyinnovation (Accessed on 11/08/2023).

United Nations Environment Programme., ‘About Gender.’ Available at https://www.unep.org/explore-topics/gender/about-gender (Accessed on 11/08/2023).

United Nations Framework Convention on Climate Change., ‘New Report: Why Climate Change Impacts Women Differently than Men.’ Available at https://unfccc.int/news/new-report-why-climate-change-impacts-womendifferently-thanmen?gclid=CjwKCAjw29ymBhAKEiwAHJbJ8ssIfst99WBehD0DHNpgs bjqaHye6wO iIPq9xBR4ZYRvsL8yf_KNgxoCskUQAvD_BwE (Accessed on 12/08/2023).

United Nations General Assembly., ‘Report of the United Nations Conference On Environment and Development: Rio Declaration on Environment and Development.’ A/CONF.151/26 (Vol. I), Principle 3.

United Nations, “The Role of Men and Boys in Achieving Gender Equality,” Women 2000 and Beyond, December 2008, p.4. Available at http://www.unwomen.org/~/media/headquarters/media/publications/un/en/w 2000menandboyseweb.pdf (Accessed on 11/08/2023).

United Nations., ‘Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972’ Principle 2.

United Nations., ‘Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace.’ AlCONF.116128/Rev.1 48.

United Nations., ‘Transforming Our World: The 2030 Agenda for Sustainable Development.’ Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustain able%20Development%20web.pdf (Accessed on 12/08/2023).

United Nations., ‘What is Climate Change?’ Available at https://www.un.org/en/climatechange/what-is-climate-change (Accessed on 11/08/2023).

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The Nexus between Gender Equity and Environmental Sustainability

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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 Academic Champion of ADR 2024, 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), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024)*

The term gender refers to the set of social norms, practices and institutions that regulate the relations between women and men in a society. It has also been defined as a social construct that ascribes different qualities and rights to women and men regardless of individual competence or desires. Further, the term gender is also used to refer to the socially-constructed expectations about the characteristics, aptitudes and behaviours associated with being a woman or a man, and while gender defines what is feminine and masculine, it shapes the social roles that men and women play and the power relations between them, which can have a profound effect on the use and management of natural resources.

Gender equality entails giving men and women equal treatment when it comes to rights, responsibilities and opportunities. It enshrines equal outcomes for women, men and gender-diverse people. Gender equity on the other hand is about fairness. In order to ensure everyone has equal opportunities, gender equity considers privilege, bias and other parameters that can limit how people access opportunities.

Gender equity is the process to achieve gender equality. It recognizes that due to historical and social disadvantages some people especially women are not in the same position as men and thus treating them ‘equally’ may not be fair hence the need to address these inequalities. It has been observed that men and women relate to the environment in different ways, and environmental changes have different impacts on their lives.

Women play a critical role in sustaining communities and managing natural resources, but their contributions are often undervalued and neglected. For example, women play a central part in the provision, management and safeguarding of freshwater as a natural resource, and they are often responsible for sanitation and maintaining a hygienic home. Women are also more likely than men to live in poverty, and they are more vulnerable to the impacts of climate change and other environmental hazards, especially in developing countries.

Natural disasters such as erosion and other forms of soil degradation, pollution of freshwaters, shore-line erosion, flooding, loss of wetlands, drought and desertification impact directly on women in their roles as providers of food, water and fuel. It has also been observed that climate change can also impact on women’s productive roles since its impacts such as rising sea levels, flooding in low-lying delta areas and increased salt-water intrusion can jeopardize sustainable livelihood strategies. Further, food security and family well-being are threatened when the resource base on which women rely to carry out their critical roles and obtain supplementary incomes is undermined.

Agriculture is the most important employment sector for women in low and middle income countries and therefore, during periods of drought and erratic rainfall, women, as agricultural workers and primary procurers, work harder to secure income and resources for their families. This puts added pressure on girls, who often have to leave school to help their mothers manage the increased burden. Women also bear a disproportional burden of deteriorating water quality and availability in rural and urban areas due to environmental problems such as pollution and drought and have to travel long distances in search of water to sustain households.

Based on the foregoing, it has been argued that women were more worried about climate change than men and that more women than men felt they could do something to curb climate change and were prepared to take action to that effect. Actualizing gender equity and giving women a voice in environmental decision making can therefore foster environmental sustainability. In addition, in the context of corporate governance, it has been observed that women play a more significant role, compared to men, in establishing positive values in terms of social welfare but also toward reducing carbon emissions. Thus, enhancing board gender diversity is vital in enabling firms to ‘go green.’

Gender board diversity is positively related to a firm’s ‘environmental consciousness and foster environmental sustainability initiatives through Corporate Social Responsibility (CSR) activities. To this extent, it has been argued that women have a lower proclivity for unethical business behavior and are more socially oriented than men, which could mean that more gender diverse boards are less likely to engage in unethical behavior and be more effective in CSR-related decision-making. Actualizing gender equity in board decision making can thus enhance environmental sustainability.

Based on the foregoing, it has been asserted that Gender equity and environmental sustainability are gaining political momentum as global challenges that require urgent co-ordinated action. Women and men around the world are affected differently by climate change, deforestation, land degradation, desertification, unsustainable infrastructure, growing water scarcity and inadequate sanitation, making the goals of gender equality and environmental sustainability mutually reinforcing. Integrating a gender lens to environmental data collection and policy making can thus foster environmental sustainability.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 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 and Academic Champion of ADR 2024. 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

‘What Is Gender and Biodiversity?’ Available at https://www.cbd.int/gender/biodiversity/ (Accessed on 11/08/2023).

African Charter on Human and People’s Rights., Available at https://au.int/sites/default/files/treaties/36390-treaty-0011_- _african_charter_on_human_and _peoples_rights_e.pdf (Accessed on 12/08/2023).

Crabtree. E., ‘Why we Need Gender Equity, Not Just Equality.’ Available at https://iqeq.com/insights/why-we-need-gender-equity-not-justequality/#:~:text=Gender%20equality%20is%20giving%20all,limit%20 how%20people%20access%20 opportunities. (Accessed on 11/08/2023).

DCED., ‘Gender Equality vs Equity.’ Available at https://www.enterprisedevelopment.org/weegateway/gender-equality-vs-equity/ (Accessed on 11/08/2023).

De Silva. DG., & Pownall. RA., ‘Going Green: Does it Depend on Education, Gender or Income? ‘ Applied Economics, Volume 46, No. 5. (2014) pp573–586.

Fitzmaurice. M., ‘The Principle of Sustainable Development in International Development Law.’ International Sustainable Development Law., Vol 1.

  1. J. Latham, “A study on gender equality as a prerequisite for sustainable development,” Report to the Environment Advisory Council, Sweden 2007:2, p. 17. Available at http://www.uft.oekologie.unibremen.de/hartmutkoehler_fuer_studierende/MEC/ 09-MECreading/gender%202007%20EAC%20rapport_engelska.pdf (Accessed on 11/08/2023).

Geneva Environment Network., ‘Gender and the Environment.’ Available at https://www.genevaenvironmentnetwork.org/resources/updates/gender-and-theenvironment/ (Accessed on 11/08/2023).

Goodland. R., ‘The Concept of Environmental Sustainability.’ Annual Review of Ecology and Systematics, Volume 26 (1995), 1-24.

Hannan. C., ‘Mainstreaming Gender Perspectives in Environmental Management and Mitigation of Natural Disasters.’ Available at https://web.archive.org/web/20180721174301id_/http://www.un.org/ womenwat ch/osagi/pdf/presnat%20disaster.PDF (Accessed on 12/08/2023).

IUCN., ‘Gender and the Environment: What are the Barriers to Gender Equality in Sustainable Ecosystem Management?’ Available at https://www.iucn.org/news/gender/202001/gender-and-environment-what-are-barriers-gender-equality-sustainable-ecosystem-management (Accessed on 12/08/2023).

Kariuki. J., & Birner. R., ‘Exploring Gender Equity in Ecological Restoration: The Case of a Market Based Program in Kenya.’ Available at https://er.uwpress.org/content/wper/39/1-2/77.full.pdf (Accessed on 12/08/2023).

Kassinis. G et al., ‘Gender and Environmental Sustainability: A Longitudinal Analysis.’ Corporate Social Responsibility and Environmental Management (2016).

Morelli. J., ‘Environmental Sustainability: A Definition for Environmental Professionals.’ Journal of Environmental Sustainability, Volume 1, Issue 1 (2011).

Muigua. K., ‘Actualising the National Policy on Gender and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2020/10/Actualising-theNational-Policy-on-Gender-and-Development-in-Kenya-Kariuki-Muigua-Ph.DOctober-2020.pdf (Accessed on 12/08/2023).

Muigua. K., ‘Gender Perspectives in Biodiversity Conservation.’ Available at http://kmco.co.ke/wp-content/uploads/2021/11/Gender-Perspectives-inBiodiversity-Conservation-Kariuki-Muigua-November-2021.pdf (Accessed on 11/08/2023).

Muigua. K., ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya.’ Available at http://kmco.co.ke/wpcontent/uploads/2018/08/TOWARDS-MEANINGFUL-PUBLIC-PARTICIPATIONIN-NATURAL-RESOURCE-MANAGEMENT-IN-KENYA.pdf (Accessed on 12/09/2023).

Organization for Security and Co-operation in Europe., ‘Gender and the Environment.’ Available at https://www.osce.org/files/f/documents/4/f/36360.pdf (Accessed on 12/08/2023).

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa., Available at https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/Prot ocolontheRightsofWomen.pdf (Accessed on 12/08/2023).

Report of the World Commission on Environment and Development., ‘Our Common Future’ 1987 (Brundtland Report).

Republic of Kenya., ‘Sessional Paper No. 02 of 2019 on National Policy on Gender and Development.’ Available at http://psyg.go.ke/wpcontent/uploads/2019/12/NATIONAL-POLICY-ON-GENDER-ANDDEVELOPMENT.pdf (Accessed on 12/08/2023).

Robinson. D., ‘15 Biggest Environmental Problems of 2023.’ Available at https://earth.org/the-biggest-environmental-problems-of-our-lifetime/ (Accessed on 11/08/2023).

Shobeiri. S., & Meiboudi. H., ‘Women’s Participation in Environmental Management and Development Promotion Culture.’ Available at https://www.researchgate.net/publication/311533595_Women’s _participation_in_e nvironmental_management_and_development_Promotion_Culture#:~:text=Women %20are%20the%20main%20cause,environmental%20management%20are%20so%20o bvious. (Accessed on 12/08/2023).

SIDA., ‘Gender and the Environment.’ Available at https://cdn.sida.se/publications/files/-gender-and-the-environment.pdf (Accessed on 11/08/2023).

Sphera., ‘What Is Environmental Sustainability?’ Available at https://sphera.com/glossary/what-is-environmental-sustainability/ (Accessed on 11/08/2023).

The Organization for Economic Cooperation and Development., ‘Gender and the Environment.’ Available at https://www.oecd.org/env/gender-and-theenvironment-3d32ca39-en.htm (Accessed on 12/08/2023).

UN Women., ‘Explainer: How Gender Inequality and Climate Change are Interconnected.’ Available at https://www.unwomen.org/en/newsstories/explainer/2022/02/explainer-how-gender-inequality-and-climate-changeare-interconnected?gclid=CjwKCAjw29ymBhAKEiwAHJbJ8p-iWBVsiOQq0h8- HiXaObwP7T1nztSxRGPldFcxcRs-fIzzRIQIgRoCVrIQAvD_BwE (Accessed on 12/08/2023).

UNICEF., ‘Climate Change and Environmental Sustainability.’ Available at https://www.unicef.org/india/what-we-do/climate-change (Accessed on 11/08/2023).

United Nations Department of Economic and Social Affairs., ‘Forum on Climate Change and Science and Technology Innovation.’ Available at https://www.un.org/en/desa/forum-climate-change-andscience-and-technologyinnovation (Accessed on 11/08/2023).

United Nations Environment Programme., ‘About Gender.’ Available at https://www.unep.org/explore-topics/gender/about-gender (Accessed on 11/08/2023).

United Nations Framework Convention on Climate Change., ‘New Report: Why Climate Change Impacts Women Differently than Men.’ Available at https://unfccc.int/news/new-report-why-climate-change-impacts-womendifferently-thanmen?gclid=CjwKCAjw29ymBhAKEiwAHJbJ8ssIfst99WBehD0DHNpgs bjqaHye6wO iIPq9xBR4ZYRvsL8yf_KNgxoCskUQAvD_BwE (Accessed on 12/08/2023).

United Nations General Assembly., ‘Report of the United Nations Conference On Environment and Development: Rio Declaration on Environment and Development.’ A/CONF.151/26 (Vol. I), Principle 3.

United Nations, “The Role of Men and Boys in Achieving Gender Equality,” Women 2000 and Beyond, December 2008, p.4. Available at http://www.unwomen.org/~/media/headquarters/media/publications/un/en/w 2000menandboyseweb.pdf (Accessed on 11/08/2023).

United Nations., ‘Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972’ Principle 2.

United Nations., ‘Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace.’ AlCONF.116128/Rev.1 48.

United Nations., ‘Transforming Our World: The 2030 Agenda for Sustainable Development.’ Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustain able%20Development%20web.pdf (Accessed on 12/08/2023).

United Nations., ‘What is Climate Change?’ Available at https://www.un.org/en/climatechange/what-is-climate-change (Accessed on 11/08/2023).

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