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.*
Combating pollution in all its forms is thus critical if the sustainable development agenda is to be achieved. This calls for concerted efforts from all stakeholders including state organs, private sector and individuals. Kenya still has a lot to do in its fight against pollution and all its ills. If the Vision 2030, which seeks to ensure that Kenya achieves a newly industrialized state by 2030 through sustainable means of production and manufacturing is to be achieved, environmental pollution must receive more attention than it is receiving currently. So far the various phases of the Vision 2030 have not performed satisfactorily in curbing pollution. Pollution threatens national development as well as achievement of sustainable livelihoods for the Kenyan people. Safeguarding the environment through effective pollution control in Kenya is essential. It is worth the effort for the sake of the current and future generations.
Effective Waste Management
Effective disposal and management of waste is considered as one of the ways of pollution control.96 Achievement of sustainable waste management mechanisms in Kenya has been attributed to such factors as lack of adequate consumer awareness, poor policy frameworks and lack of structured Extended Producer Responsibility Schemes, among others.
Real Time Air Pollution Monitoring
Under the Kenya Bureau of Standards legal provisions of 2014, the Kenya Bureau of standards offers pre-export inspection of used vehicles to determine whether they conform to the code regulations in a bid to control pollution. Investing in technology that will enable the government agencies to achieve real time air pollution monitoring can go a long way in ensuing that pollutants are kept within acceptable levels as defined by the World Health Organization standards. As already pointed out, air pollution is worst in the major cities and towns and these efforts should be concentrated more on these areas due to their high susceptibility and the high population living in these areas. Kenya can develop and invest in the relevant sensors through tapping into the local experts skills.
There is a need to invest in pollution prevention technologies like emission controls especially for factories and heavy industries with strict enforcement to ensure that people living in such areas do not pay the heavy cost of air pollution. The risk of such pollution is not just restricted to the urban areas. Research has concluded that ‘pollution from industries negatively impacts the health of employees and neighbouring communities and the potential for adverse health outcomes is heightened when the industries are located in rural areas where the bulk of the population is vulnerable because of limited information about their rights and limited capacity to defend themselves or influence policy decisions’. There is need to fully operationalize the Air Quality Regulations 2014 which ensure clean and healthy ambient air. There is need for strict enforcement of compliance with the emission standards for various sources such as mobile sources (e.g. motor vehicles) and stationary sources (e.g. industries) as outlined in the Air Quality Regulations 2014 and Environmental Management and Coordination Act, 1999.
Incentive-Based Regulatory Approaches for Pollution Control
There are other regulatory approaches that can be used to promote and attain environmental protection and public health that are not rights-based. These include economic incentives and disincentives, criminal law, and private liability regimes which are all now considered as part of the framework of international and national environmental law and health law. Scholars have argued that market-based instruments “harness market forces” so that they use market signals to affect behaviour (of both consumers and firms) towards pollution control. They are also called Economic Incentives for pollution control (EI) and include pollution charges or levies, taxes and tradable permits.
Some authors have argued that incentive-based policy instruments are more efficient means of achieving environmental goals such as reductions in polluting emissions and fostering the delivery of ecosystem services. Both a charge system and a tax system use financial instruments to persuade polluters to reduce pollution, by making pollution more costly to the polluter, thus forcing firms to reduce emissions. Kenya has been making progress in adopting these approaches, with the latest being the Green Bond Programme – Kenya, which aims to promote financial sector innovation by developing a domestic green bond market. Such measures are commendable for promoting sustainability and reducing climate change, which is one of the results of pollution, through funding renewable energy and afforestation projects.
Banning of non-reusable plastic bags in August 2017 was also a major step in curbing pollution in the country and this has received accolades across the globe. This has not only been embraced by companies but also the general public. Using such incentives and investing in technology, the Government of Kenya can succeed in achieving sustainable solid waste management in the country which is still a big menace. Notably, the poorly disposed solid waste causes water, air and soil/land pollution. The Government should also invest more in modern modes of transport that emit fewer polluting gases through offering relevant tax breaks/exemptions to encourage investment in the sector. It is hoped that in the long run, this will see Kenya achieve a cleaner environment for all, thus moving closer to achieving the right to a clean and healthy environment.
Pollution Control in the Context of Sustainable Development
Sustainable Development Goals (SDGs) 3.9 requires that by 2030, countries should substantially reduce the number of deaths and illnesses from hazardous chemicals and air, water and soil pollution and contamination. In addition to the 2030 SDGs, Agenda 21 was adopted in 1992 with the aim of combating the problems of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which the human race depend for their well-being. Further, it sought to deal with the integration of environment and development concerns and greater attention to them which would lead to the fulfillment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. The aim was to achieve a global consensus and political commitment at the highest level on development and environment cooperation.
Chapter 3 of the Agenda 21 deals with combating poverty. Clause 3.2 thereof provides that while managing resources sustainably, an environmental policy that focuses mainly on the conservation and protection of resources must take due account of those who depend on the resources for their livelihoods. Clause 4.5 thereof notes that special attention should be paid to the demand for natural resources generated by unsustainable consumption and to the efficient use of those resources, consistent with the goal of minimizing depletion and reducing pollution. Agenda 21 basically seeks to enable all people to achieve sustainable livelihoods through integrating factors that allow policies to address issues of development, sustainable resource management and poverty eradication simultaneously.
The Forest Principles state in the preamble that the subject of forests is related to the entire range of environmental and development issues and opportunities, including the right to socioeconomic development on a sustainable basis. The guiding objective of these principles is to contribute to the management, conservation and sustainable development of forests and to provide for their multiple and complementary functions and uses. The Principles require countries to ensure that forest resources and forest lands are sustainably managed to meet the social, economic, ecological, cultural and spiritual needs of present and future generations. These needs are for forest products and services, such as wood and wood products, water, food, fodder, medicine, fuel, shelter, employment, recreation, habitats for wildlife, landscape diversity, carbon sinks and reservoirs, and for other forest products.
As a result, appropriate measures should be taken to protect forests against harmful effects of pollution, including air-borne pollution, fires, pests and diseases, in order to maintain their full multiple value. Notably, the Principles state that the vital role of all types of forests in maintaining the ecological processes and balance at the local, national, regional and global levels through, inter alia, their role in protecting fragile ecosystems, watersheds and freshwater resources and as rich storehouses of biodiversity and biological resources and sources of genetic material for biotechnology products, as well as photosynthesis, should be recognised.
*This article is an extract from the Article “Safeguarding the Environment through Effective Pollution Control 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., “Safeguarding the Environment through Effective Pollution Control in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2020/09/Safeguarding-the-Environ ment-through-Effective-Pollution-Control-in-Kenya-Kariuki-Muigua-28th-SEPT-2019.pdf (accessed 5 May 2022).