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.*
Devolved governments will heavily rely on the environmental resources in order to promote development in the counties. Also important is the constitutional provision that one of the principles of devolved government is that County governments must have reliable sources of revenue to enable them to govern and deliver services effectively. This is to be achieved through exploitation of the natural resources within their boundaries. The Constitution states that the governments at the national and county levels are distinct and inter-dependent and they must conduct their mutual relations based on consultation and cooperation. Therefore, the national government and the county governments should join hands in promoting sustainable and equitable utilisation and management of natural resources for the benefit of the Kenyan citizenry and the ultimate economic development of the country as a whole.
Devolution has been associated with several advantages, which include: making it difficult for individuals or groups of official actors to collude and engage in corrupt practices due to the distributed authority over public goods and revenues; fostering effective cooperation within the devolved units; enabling local communities to mobilize social pressure against rent seeking and corruption; multiplying the opportunities for political participation and therefore promoting a democratic culture; empowering communities to manage their own resources more effectively; effectively promoting productive efficiency in the provision and use of public services and the allocation of resources; and, in terms of poverty alleviation, devolution provides a more effective governance framework for advancing pro-poor policies since the sub-national institutions are likely to be more familiar with the local circumstances and cost conditions and so are better equipped to distribute resources more equitably.
At the heart of the objectives of devolution, is the promotion of environmental justice in exploitation of natural resources. Devolution gives powers of self-governance to the people and enhances public participation in the exercise of the powers of the State and in making decisions affecting them; recognises the right of communities to manage their own affairs and to further their development; protects and promotes the interests and rights of minorities and marginalised communities; promotes social and economic development and the provision of proximate, easily accessible services throughout Kenya; ensures equitable sharing of national and local resources throughout Kenya; and facilitates the decentralisation of State organs, their functions and services, from the capital of Kenya.
Devolution was thus expected to address the main challenges facing the struggle for environmental justice in Kenya especially in relation to natural resources management. There has however been debate on the success of devolution in achieving this. The involvement of the public in local governance enhances their understanding in environmental matters making them appreciate the necessity of conserving and sustainable use of the resources around them. State-controlled management of natural resources leads to institutions with conflicting and overlapping mandates. With devolution the roles, decision making, appropriation, monitoring and enforcement becomes more clear and precise.
Devolution also enhances commitment of local community members in natural resources management. The objects and principles of devolved government are articulated in the Constitution. Devolution is to ensure the equitable sharing of national and local resources throughout Kenya. One of the objects of devolved government is to give powers of self-governance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them. It also recognizes the right of communities to manage their own affairs and to further their development. Devolution is also expected to give powers of self-governance to the people and enhance their participation in the exercise of the power of the state and in making decisions affecting them.
The powers of the state and obligations in relation to the environment and natural resources are provided under Article. The county governments are expected to establish the policy, legal and social framework and conditions needed for local management to succeed, facilitate and regulate private activity, helping the local organizations enforce locally designed and monitored regulations and sanctions, addressing local inequality and ensuring representation of marginalised groups so that downward accountability of organization receiving devolved authority is assured and helping communities defend their rights including protection against powerful external groups such as mining and timber companies and cartels.
Natural resource management has become a key development strategy in recent times. Control of resources by the local people and communities improves local governance through participation and hence empowers the poor, centralized decision making, control and enforcement of natural resource management through government agencies has often proven ineffective and brought about resource degradation rather than sustainable use. With the devolved government, they will become the primary implementers, though they still need the assistance of the central government especially on issues that affect not just the locals around but the nation at large. In fact, it has been observed that since natural resource management is multisectoral, encompassing many sectors, including environment, agriculture, irrigation, forestry, livestock, water supply and energy, amongst others, there is a necessity for multi-sectoral cooperation, particularly at the decentralised district levels, which are the focal points of service delivery and support to sustainable community management of natural resources.
*This article is an extract from the Article “Devolution and Natural Resource Management 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., “Devolution and Natural Resource Management in Kenya,” (KMCO, 2018), available at: http://kmco.co.ke/wp-content/uploads/2018/09/Devolution-and-Natural-Resource-Management-in-Kenya-Kariuki-Muigua-September-2018-1.pdf (accessed on 16/04/2022).