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*
Environmental Democracy is an important component in realisation of environmental rights in that it seeks to ensure that environmental and natural resources management decisions take into consideration and equitably address the concerns of citizens in relation to those resources, through promoting free access to meaningful information on environmental quality and problems by affected people, to enable their meaningful participation in decision-making, and empowering them to seek enforcement of environmental laws or compensation for damages. Notably, the concept of Environmental Democracy is informed by the idea ‘that an informed and legally empowered citizen is the most important aspect of environmental democratisation’.
The concept of Environmental Democracy thus emerged to promote and ensure public engagement in governmental environmental decision-making. Arguably, people have a right to obtain information upon request, and to be informed of planned projects, developments or other initiatives which will affect them, their environment or their natural resources through Free, Prior And Informed Consent (FPIC), under which duty bearers are expected to obtain the agreement for specific activities from an appropriate entity (rights holders), following a consultative process involving full disclosure of all relevant information, sufficiently in advance of the activities commencing, and without coercion or manipulation.
The principle of FPIC also extends to the use of indigenous knowledge and practices relating to the environment, and the sharing of any resulting benefits. The idea finds credence in Article 1 of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters and Principle 10 of the 1992 Rio Declaration on Environment and Development which provides that: “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 decision-making 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.”
It has, however, been argued that while concepts of ecological and Environmental Democracy seek to reconcile two normative ideals: ensuring environmental sustainability while safeguarding democracy, these ideals are frequently conceived as being in conflict, as democracy is perceived as too slow and cumbersome to deliver the urgent large-scale collective action needed to tackle environmental problems. The perceived conflict is based on the assertion that, on the one hand, if citizens accord low priority to ecological values, efforts to strengthen environmental protection and sustainability through democratic processes may falter, and on the other hand, securing environmental values through authoritarian rule comes at a high democratic price.
The Convention on Biological Diversity (CBD) Aichi Target 1 requires that “by 2020, at the latest, people are aware of the values of biodiversity and the steps they can take to conserve and use it sustainably”. Notably, ecological democracy seeks environmentally sustainable ends through broad, active democratic participation.18 As a result, national political institutions constitute an important arena for biodiversity conservation.
It has been observed that while the proximate drivers of biodiversity loss such as habitat loss, climate change, overexploitation, and invasive species are relatively well-mapped, one of the causes to those triggers is countries’ institutional set-ups and thus, the formal and informal rules shaping the decision-making and the implementation of biodiversity management are considered to be paramount. The right to participation refers to the procedural right to have a say in the decisions that are made, where there exists a gradient in the level of participation in decision-making, from simple ‘consultation’ to active partnership of stakeholders in project conception, design, implementation, monitoring and evaluation; and from ‘limited’ participation to ‘full and effective participation’ of ‘all relevant stakeholders’ with special attention given to the most vulnerable groups, minorities and those sectors of society that are underrepresented.
The participation of the people in biodiversity conservation is important considering that actions to conserve nature and natural resources are closely related to the rights of people to secure their livelihoods, enjoy healthy and productive environments and live with dignity and as a result, the pursuit of conservation goals can contribute positively to the realization of many fundamental human rights. There is thus, a need for States to continue establishing effective legal and institutional frameworks to protect biodiversity, and to conduct social and environmental assessments of projects and policies and to facilitate public participation in conservation decisions. Environmental Democracy is associated with on transparency, participation, and justice and as a result, it is considered to be more participatory and inclusive and provides opportunities for everyone, including those in the most marginalised positions to participate in decision-making.
*This article is an extract from the Article: Fostering a Human Rights Approach to Biodiversity Conservation in Kenya 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. “Fostering a Human Rights Approach to Biodiversity Conservation in Kenya,” (Kariuki Muigua & Co. Advocates, 2011), Available at: http://kmco.co.ke/wp-content/uploads/2021/11/Fostering -a-Human-Rights-Approach-to-Biodiversity-Conservation-in-Kenya-Kariuki-Muigua-November-2021.pdf (accessed on 01/04/2022).