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 importance of the right to a clean and healthy environment cannot be overemphasized. It is an essential human right that has been equated to the right to life in Kenya. Since it contains virtually all the ingredients necessary for human survival, the natural environment is often susceptible to human action such the use and exploitation of natural resources including water, minerals and energy. Some of these activities have resulted in environmental degradation threatening the right to a clean and healthy environment. Environmental management is essential towards attainment of the right to a clean and healthy environment in Kenya. It regulates human interaction with the environment. Environmental management combines science, policy, and socioeconomic application in finding solutions to practical problems that people face in cohabitation with the environment, resource exploitation and waste production.
The Environmental Management and Co-Ordination Act (EMCA) defines environmental management to include the protection, conservation and sustainable use of the various elements or components of the environment. However, in Kenya, environmental management has often taken a human approach with little emphasis on the role of science and technology towards achieving this goal. The paper analyses environmental management tools in Kenya and points out the shortcomings in the human approach towards environmental management. It proposes an integrated approach towards environmental management in Kenya that fully recognizes and incorporates the use of science and technology.
The Constitution of Kenya, 2010 enshrines the right to a clean and healthy environment. It further sets out certain obligations in respect of the environment. These include the requirement of the state to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources; and to encourage public participation in the management, protection and conservation of the environment.6 In addition to the Constitution, environmental management in Kenya is also governed by various sectoral legislations. The Environmental Management and Coordination Act is the principal legal instrument for the management of the environment in Kenya. The Act also establishes an institutional framework for management of the environment in Kenya. It further sets out several measures aimed at protection and conservation of the environment and several environmental management tools such as Strategic Environmental Assessment, Environmental Impact Assessment, Environmental Audit and Monitoring and Environmental Quality Standards.
Environmental management is also governed by a number of systems and standards. The 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 ISO standards provide a framework through which governments and regulatory bodies can structure their environmental management tools to ensure alignment and consistency both nationally and internationally. EMCA also establishes environmental quality standards aimed at protecting various sectors of the environment through placing limits on discharge and emissions. These include water quality standards, air quality standards, standards for waste and standards for noise.
Despite law being an essential tool for environmental management in Kenya, it is clouded by certain weaknesses that hinder its efficacy towards this course. These weaknesses include complex institutional set ups, differing and overlapping mandates of state agencies tasked with environmental management and conflicting management and enforcement methods over similar resources. Further, there exist enforceability challenges as can be witnessed in aspects such as solid waste management. This brings to the fore the role of the public in Environmental Management.
The Rio Declaration provides that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. In Kenya, public participation is a key aspect of environmental and natural resources management. It allows persons who are likely to be affected by environmental laws, policies and projects within their localities to express their views for consideration in implementation of such laws, policies and projects. Public participation has been enshrined as one of the national values and principles under the Constitution. The Constitution further obligates the state to encourage public participation in the management, protection and conservation of the environment.
The role of public participation environmental management was succinctly captured in Patrick Musimba v National Land Commission & 4 others, where it was held that: ‘We have no doubt that the State under Article 69 of the Constitution is enjoined to ensure sustainable development: see also the Preamble to the Constitution. The State is also to ensure that every person has a right to a clean and healthy environment. However physical development must also be allowed to foster to ensure that the other guaranteed rights and freedoms are also achieved. Such physical development must however be undertaken within a constitutional and statutory framework to ensure that the environment thrives and survives. It is for such reason that the Constitution provides for public participation in the management, protection and conservation of the environment.’
Public participation is an essential tool of environmental management in Kenya which ensures that the views of the public are taken into account in environmental decision making. However, public participation in environmental decision making raises certain concerns such as the quality and extent of participation and the need to ensure that it is not enough for people to participate but there is need for them to be able to appreciate the real implications of any decision being made. Without this, public participation is reduced to a matter of formality without any real benefit or achieving the desired end. There is no question that to achieve adequate level of public participation in environmental management, there is need to ensure that proper legal framework for environmental management is in place.
*This article is an extract from the Article: “Utilising Science and Technology for Environmental Management in Kenya,” Journal of Conflict Management and Sustainable Development Volume 8(2), p. 172 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
Environmental Management and Co-Ordination Act (EMCA), No. 8 of 1999, Government Printer, Nairobi.
Environmental Management: The ISO 14000 family of International Standards, available at https://www.iso.org/files/live/sites/isoorg/files/archive/pdf/en/theiso14000family_20 09.pdf(Accessed on 03/04/2020).
Haregu Nigatu. T., An assessment of the evolution of Kenya’s solid waste management policies and their implementation in Nairobi and Mombasa: analysis of policies and practices, Environment and Urbanization, Vol. 29, Issue 2, 2017.
Muigua. K., Wamukoya. D., & Kariuki. F., ‘Natural Resources and Environmental Justice in Kenya’ Glenwood Publishers Limited, 2015.
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-Participation-In-NaturalResource-Management-In-Kenya.pdf (accessed on 01/04/2020).
National Environment Commission, ‘Environmental Management Tools and Techniques’ available at https://www.undp.org/content/dam/bhutan/docs/Energy_environment/Envpublications/2011-NEC-Env%20Mgt%20Tools.pdf (accessed on 17/03/2020).
Peter K. Waweru v Republic, Misc. Civil Application No. 118 of 2004, (2006) eKLR.
Rio Declaration on Environment and Development, 1992, A/CONF.151/26 (Vol. I), Principle 10.