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*
Enhanced environmental democracy for the Kenyan people is one of the ways through which the internationally and constitutionally guaranteed environmental rights can be achieved. The associated rights of access to information, access to public participation, and access to justice (the three “access rights”) are considered practical means of ensuring that decisions by governments consider sustainable development concerns and the interests of the poor. There are diverse ways through which these rights can be promoted and realized, ranging from formal to informal mechanisms. It has been documented that ‘that where environmental policy incorporates procedural rights, environmental protection efforts are more robust’. In addition, ‘achieving environmental justice requires that vulnerable communities have opportunities to participate meaningfully in decision-making processes.’
Further, equipping underrepresented groups with environmental information and avenues for influencing policy decisions is also believed to strengthen the values and practices associated with democracy’. Different forms of participatory processes have also been suggested as a way of improving environmental governance. We proffer suggestions on how environmental democracy can meaningfully be realised for the benefit of all. Of course the list below is not exhaustive on the possible ways of doing this, but it offers some of the most viable means through which environmental democracy as a facilitative right can be achieved and how communities and other stakeholders in Kenya can enjoy more meaningful and practical realization of environmental democracy.
Mobilizing Communities/Citizenry through Demonstrations, Picketing and Petitions
The Constitution of Kenya 2010 guarantees that ‘every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities’. Courts have also commented on this right and affirmed its importance in expressing personal views as part of a democratic society. When done within the confines of law, assemblies, demonstrations, picketing and petitions can be effective channels of realizing environmental democracy for the general public and affected communities in cases of environmental justice. These channels are especially useful in instances where there are challenges in accessing courts for public litigation either due to limited resources or lack of courthouses. This channel has successfully been used in other jurisdictions with satisfactory results. Petitions to the Parliament, with proper guidance, can also provide a good channel for communities especially those suffering injustices to communicate their concerns and problems to the Parliament for discussion and possibly policy and legal responses. It is, therefore, important to sensitise communities on the important role that demonstrations and picketing can play in enhancing environmental justice by giving a voice to the unheard communities.
Role of Media, Civil Society in Environmental Governance
Scholars have suggested that the civil society can play a major role in global environmental governance including: collecting, disseminating, and analysing information; providing input to agenda-setting and policy development processes; performing operational functions; assessing environmental conditions and monitoring compliance with environmental agreements; and advocating environmental justice. Regarding the place of media in environmental governance, it has been documented that countries with a larger newspaper circulation have better environmental responsiveness, on average, despite controlling for the extent of environmental regulation, the availability of information on environmental outcomes, and the level of economic development measured as GDP per capita. Furthermore, public opinion pressure generated by an active press is also essential to efforts by private sector organizations to use self-regulation to improve corporate governance. An improved working relationship between the government and non-state actors aimed at enhancing the contributions from civil society participation need to be enhanced through a strengthened, more formalized structure for engagement.
Streamlining Access to Environmental Information
Ensuring access to information on environmental matters has been touted as one of the ways that enhance the capacity of citizens to check abuses that public or private actors commit. Empowered communities also find it easier to hold to account those who flout environmental laws, be they government entities, private institutions or individuals. It is easier to engage a community that feels a sense of belonging than one that feels sidelined by the state actors. It has rightly been asserted that informed with basic facts about the quality of their environment, citizens can become active participants in identifying and resolving issues at both local and national levels. Dissemination of information and knowledge in meaningful forms can enhance participation in decision-making and enhance appreciation of the best ways of protecting and conserving the environment.
Enhanced Public Participation
Effective participation in decision-making processes by local communities is believed to be one of the ways through which they can articulate and effectively enforce their common interest. Natural resources are a source of livelihood for many, and any development activities that affect the same in any way ought to seek the social licence through engaging the affected communities through public participation. Lack of environmental democracy and environmental justice aggravates the situation since the affected groups are neither involved nor supplied with information regarding the resources. The process of managing natural resource conflicts is an off-shoot of the right to access to environmental justice and by extension, environmental democracy. Environmental justice ensures equitable treatment of people in ensuring access to and sharing of environmental resources and justice in environmental matters. ADR and Traditional dispute resolution mechanisms, especially negotiation and mediation, still have relevance in natural resource conflicts management, a role recognized in the Constitution. This is the true essence of environmental democracy; affording communities guaranteed and meaningful participation in the decision making process as a tool for obtaining a socio-economic justice.
Proactive Role of Courts in Environmental Justice
The Rio Declaration in principle 10 emphases the importance of courts by stating that: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.… Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided (emphasis added). Section 3 (5) of Environment (Management and Coordination) Act 1999 (EMCA) provides that “in exercising the jurisdiction conferred upon the Court under subsection 3, the High Court shall be guided by the principles of sustainable development. Courts have a role to play in promoting sustainable development agenda. This has also been affirmed through various cases. For instance, in Mohamed Ali Baadi & 9 Others v Attorney General [2018] eKLR, the Court was of the opinion that the precautionary principle allows the court to intervene where it is necessary to do so in order to avert a violation of environmental governance principles. This approach envisages intervention by the Courts to step in and protect the environment without necessarily looking for immediate proof of likely violation of principles of environmental governance.
In the case of Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others [2017] eKLR, the Court rightly stated that “Besides the above general guiding principles, a court seized of an environmental dispute, whether at the interlocutory stage or at the substantive hearing, is to bear in mind that, through their judgments and rulings, courts play a crucial role in promoting environmental governance, upholding the rule of law, and in ensuring a fair balance between competing environmental, social, developmental and commercial interests”. The judiciary has a fundamental contribution to make in upholding the rule of law and ensuring that national and international laws and principles of environmental law, including promotion of sustainable development, are interpreted and applied fairly, efficiently, and effectively.
*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.
Reference
Muigua, K., “Securing Our Destiny through Effective Management of the Environment,” (2020) Journal of Conflict Management and Sustainable Development Volume 4(3), p. 1.