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 pollution has been defined as ‘the contamination of the physical and biological components of the earth/atmosphere system to such an extent that normal environmental processes are adversely affected’. Environmental Pollution has also been defined as ‘any discharge of material or energy into water, land, or air that causes or may cause acute (short-term) or chronic (long-term) detriment to the Earth’s ecological balance or that lowers the quality of life’. Pollutants strain ecosystems and may reduce or eliminate populations of sensitive species. Contamination may reverberate along the food chain causing mass destruction. An example is the use of herbicides and pesticides in agricultural land.
Some of these chemicals seep into rivers that flow through protected areas, causing poisoning of wildlife which drinks from the river. Another problem is the dumping of solid waste into rivers that flow through protected areas. Solid waste management which is constitutionally delegated to county governments has been a big problem across the country. Pollution has been attributed to many factors which include but not limited to waste by-products emanating from industrialization of our society, the introduction of motorized vehicles, and the explosion of the human population, leading to an exponential growth in the production of goods and services. This is mainly because of the indiscriminate discharge of untreated industrial and domestic wastes into waterways, the spewing of thousands of tons of particulates and airborne gases into the atmosphere, the “throwaway” attitude toward solid wastes, and the use of newly developed chemicals without considering potential consequences has resulted in a lot of environmental disasters throughout the world.
A major cause of pollution in coastal ecosystems is construction of hotels and other facilities in areas that are not on the sewerage lines. Beach resorts and some households in Mombasa have constructed onsite sewage management systems such as septic tanks and soakage pits. However, these often cause groundwater contamination which in turn causes considerable coral reef dieback and threatens the proliferation of marine life. The Wildlife Conservation and Management Act, 2013 deals with pollution by making it an offence to pollute wildlife habitats. The Act applies the polluter pays principle and environmental restoration alongside payment of hefty fines for persons convicted of polluting wildlife habitats.
EMCA has very substantive provisions on pollution of the environment and gives deterrent penalties for violation of those provisions. The courts have further upheld the provisions of EMCA relating to pollution of wildlife resources and one such incidence was in the case of Kwanza Estates LTD v Kenya Wildlife Service, where the court issued an injunction stopping the construction of a public toilet on the beachfront without approval from NEMA holding that the actions had potentially negative effects on the environment. Environmental pollution is a threat to not only the sustainable development agenda but also to the very existence of the humankind. Environmental law thus seeks to control the use of one’s property and human behaviour so as to permit a habitable environment and to minimize adverse ecological effects.
The most common types of pollution perceived in our environment include: water pollution; land pollution; noise pollution; and air pollution. It is estimated that about 30 to 50 per cent of nitrogen applied to soils leaches into rivers and the air, suffocating aquatic life, worsening climate change and shortening lives through contamination. Nutrient pollution, or an excess of nutrients such as nitrogen and phosphorus in the water which enter the rivers as runoff from farmlands and residential areas, can lead to a host of health and environmental problems. Nutrient pollution is attributed to fertilizer, animal manure, sewage treatment plant discharge, detergents, storm water runoff, cars and power plants, failing septic tanks and pet waste.
Nutrient pollution of rivers is considered to be one of the most widespread human impacts on water resources. This is especially more serious in agriculture based economies such as Kenya where most people in rural areas engage in farming using modern chemicals that end up in water bodies. This not only pollutes the water but have a residue effect on the soil thus polluting the soil. Apart from farming chemicals, Sewerage water, industrial wastes and disposals are also sources of water pollution.28 Target 6.3 of the Sustainable Development Goals (SDGs) requires that states should ensure that “by 2030, they improve water quality by reducing pollution, eliminating dumping and minimizing release of hazardous chemicals and materials, halving the proportion of untreated wastewater and substantially increasing recycling and safe reuse globally.
Some scholars have defined the term noise to describe sounds that are disagreeable or unpleasant produced by acoustic waves of random intensities and frequencies. Noise from industry, traffic, homes and recreation can cause annoyance, disturb sleep and effects health. Thus, sound is considered to be a potential serious pollutant and threat to the environmental health. Air pollution can be defined as “the introduction of chemicals, particulate matter, or biological materials that cause harm or discomfort to humans or other living organisms, or cause damage to the natural environment or built environment, into the atmosphere”. Air pollution is now considered to be a significant public health problem, responsible for a growing range of health effects in many regions of the world.
Indeed, it has been documented that air pollution has overtaken poor sanitation and a lack of drinking water to become the main environmental cause of premature death. Nitrogen oxides, Sulphur dioxide, Carbon Monoxide, Ammonia and Ozone are considered to be the major air pollutants. The United Nations observes that most recorded air pollution-linked deaths occur in developing countries, where laws are weak or not applied, vehicle emission standards are less stringent and coal power stations more prevalent. Kenya’s air condition in most major cities and towns has been rated as some of the most polluted in the world. This is mainly attributed to the unsustainable policies in sectors such as transport, energy, waste management and industry.
It has been argued that while other parts of the world, particularly the developed nations, also have the problem of air pollution mainly caused by burning of hydrocarbons for transport that can be addressed by tackling fuel usage through electric vehicles, and car-free zones, African cities have entirely different problems; pollution is mainly due to the burning of rubbish, cooking with inefficient solid fuel stoves, millions of small diesel electricity generators, cars which have had their catalytic converters removed and petrochemical plants, all pushing pollutants into the air over the cities. According to the World Health Organization, approximately 19,000 people die prematurely in Kenya annually because of air pollution. This is mainly attributed to PM 2.5 annual exposure, which, according to the United Nations, are 70 per cent over the safe level in Nairobi. Kenya has had its own share of air and noise pollution despite the existence of laws meant to curb the same.
*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).