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 protection is inherent in the concept of sustainable development, as is a focus on the sources of environmental problems rather than the symptoms. While the existing laws seem to put great emphasis on enforcement of environmental responsibilities, there is little evidence of actual promotion of deterrence under the current environmental liability regime in Kenya. Kenya Vision 2030 is the long-term development blueprint for the country, with various pillars that include environmental, economic, social and political pillars. The social pillar seeks to build a just and cohesive society that enjoys equitable social development in a clean and secure environment.
The Blueprint seeks to ensure that Kenya becomes a nation that has a clean, secure and sustainable environment by 2030, to be achieved through: promoting environmental conservation to better support the economic pillar’s aspirations; improving pollution and waste management through the application of the right economic incentives; commissioning of public-private partnerships (PPPs) for improved efficiency in water and sanitation delivery; enhancing disaster preparedness in all disaster-prone areas and improving the capacity for adaptation to global climatic change. Proper apportionment of environmental liability in the country will go a long way in ensuring that all stakeholders, both public and private play their role in achieving sustainable development agenda.
Investing in compliance and enforcement of environmental laws benefits the public by securing a healthier and safer environment for themselves and their children. It also benefits individuals, firms and others in the regulated community by ensuring a level playing field governed by clear rules applied in a fair and consistent manner. Strengthening environmental compliance and enforcement requires renewed efforts by individuals and institutions everywhere. Government officials, particularly inspectors, investigators, and prosecutors, must exercise public authority in trust for all of their citizens according to the standards of good governance and with a view to protecting and improving public well-being and conserving the environment.
The judiciary has a fundamental contribution to make in upholding the rule of law and ensuring that national and international laws are interpreted and applied fairly, efficiently, and effectively. Courts also need to work closely with the public as a way of enhancing identification of activities that violate environmental laws as well as increasing the rate of enforcement and compliance with court decisions, by bodies and individuals. There is also need to sensitise the public on the dangers of environmental degradation through pollution, overstocking, over-exploitation of resources. Other professionals should be brought on board. These may be drawn from such fields as medical, agricultural, mining, amongst others. When people appreciate that the state of environmental health directly affects their livelihoods, it is possible to engage them in creation of a better environment that is clean and healthy as the first step towards improving their lives.
Concerted efforts from all the stakeholders, including the general public can ensure that the compliance and enforcement framework in place is used to promote and safeguard the right to clean and healthy environment as envisaged in the Constitution and environmental laws. The following are the three main proposals for enhancing environmental enforcement and compliance for sustainable development in Kenya:-
Encouraging Proactive Corporate Environmental Compliance
It has rightly been pointed out that virtually all companies face the possibility of environmental liability costs and as such, it is imperative for the management to make at a least a general estimate of their company’s potential future environmental liability be it from legally mandated cleanup of hazardous waste sites or from lawsuits involving consumers, employees, or communities. The gathered information, it is argued could be useful in the following ways: encourage defensive and prudent operations and waste reduction; improve manufacturing, waste disposal and shipping practices; negotiate and settle disputes with insurance carriers; influence regulators and public policy makers; determine suitable levels of financial resources; reassess corporate strategy and management practices (think green); articulate a comprehensive risk management program; improve public relations and public citizenship; and assess hidden risks in takeovers and acquisitions. It is advisable for companies and organisations to engage in proactive environmental risk management as part of their strategic plans in order to avoid costly environmental liability mistakes.
Due Diligence/Cultivating Environmental Ethics
Kenyans have a role to play in achieving the ideal of a clean and healthy environment. 124 There is need to cultivate a culture of respect for environment by all, without necessarily relying on courts for enforcing the same. The citizenry should be able to practice preventive measures while allowing the courts to come in only in cases of violation of environmental standards. Developing environmental ethics and consciousness can be enhanced through adopting participatory approaches to conservation and management of environment and its resources. Dissemination of information and knowledge in meaningful forms can also enhance participation in decision-making and enhance appreciation of the best ways of protecting and conserving the environment.
There is, therefore, a need to encourage voluntary compliance with environmental regulations, by the general public. This can be achieved through creating public awareness on the impacts of unsustainable and environment-degrading production and social activities, while providing sustainable alternatives. Such awareness can include organizing public forums, use of media to disseminate information and environmental campaigns and introducing comprehensive and up-to date environmental studies in learning institutions, at all levels. Incentives and disincentives can also be offered to encourage people to discard unsustainable methods of production and other activities that contribute to the degradation of the environment. Environmental rules that reward environmental leadership, build on best practices, and ensure a level playing field are more likely to succeed in securing compliance.
Sustainable development efforts may not bear much if the country does not move beyond laws. There is need for educating the public on the subject, with emphasis on preventive and conservation measures. The same should include change of attitude by the general public. The current generation has a responsibility and an environmental liability to ensure that future (unborn) generations have their future guaranteed. This responsibility was affirmed in the case of Oposa et al. v. Fulgencio S. Factoran, Jr. et al (G.R. No. 101083) (199) where the Supreme Court of the Philippines stated that even though the right to a balanced and healthful ecology is under the Declaration of Principles and State Policies of the Constitution and not under the Bill of Rights, it does not follow that it is less important than any of the rights enumerated in the latter: “[it] concerns nothing less than self-preservation and self-perpetuation, the advancement of which may even be said to predate all governments and constitutions”.
The right is linked to the constitutional right to health, is “fundamental”, “constitutionalised”, “self-executing” and “judicially enforceable”. It imposes the correlative duty to refrain from impairing the environment. The court stated that the petitioners were able to file a class suit both for others of their generation and for succeeding generations as “the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.” It is thus important to ensure that all persons are conscious of their responsibility and duty to future generations to eliminate environmental threats affecting life, health and the wellbeing of the generations to come in the spirit of intragenerational and intergenerational equity.
Environmental Insurance
Environmental insurance is one of the tools that is used in environmental management. However, EMCA does not have provisions touching on the same. In addition, Kenyan insurance firms are yet to popularise environmental insurance services. It is suggested that this is a service that they should take up especially in light of the sustainable development agenda. However, all is not lost as a few of the insurance providers have packages on environmental impairment liability, such as the AIG insurance whose package covers: third-party bodily injury; third-party property and environmental damage; and clean-up costs for pollution conditions, both on site or while migrating from site. Environmental law practitioners may also advise their clients on the possibility of taking up environmental liability insurance.
The closest that EMCA has in terms of state sponsored environmental insurance is the National Environment Restoration Fund, which is a state kitty meant to supplementary insurance for the mitigation of environmental degradation where the perpetrator is not identifiable or where exceptional circumstances require the Authority to intervene towards the control or mitigation of environmental degradation. There is a need to popularize environmental insurance in the country for both medium and huge companies to shield them against environmental liability which could turn out to be too costly. The basic considerations when buying environmental damage liability insurance have been summarized as follows: the nature and extent of the risk to be insured; the purposes the insurance is to serve; the available types of policies, scopes of coverage, deductibles, and prices; the extent to which the issues just noted are governed by mandatory governmental insurance requirements (i.e., where being used to satisfy federal or state financial responsibility requirements); the importance of disclosures in answers to the warranty questions in the application form; the extent to which the actual scope of coverage in various competing policies serves the insured’s purposes, given the nature and extent of the risks involved; the extent to which the rights of the insurance company under the policy may affect the client’s freedom to pursue the appropriate regulatory or public relations strategy after an environmentally damaging release; the advantages and disadvantages of self-insurance; and the need for close coordination between legal counsel, environmental managers, and those in charge of insurance for the client on all of these matters.
Conclusion
The environment should be accorded some right, independent of the human beings. Indeed, the Constitution of Kenya 2010 elevates the environment as worthy of protection by stating in the preamble that the People of Kenya are respectful of the environment, which is their heritage, and are determined to sustain it for the benefit of future generations. The constitutional recognition of this position in Kenya should give the law makers, courts and other stakeholders an incentive and clear authority to take strong action to protect the environment. Strengthening the environmental liability regime in Kenya is necessary in order to enable the country to have a clean and healthy environment and to achieve sustainable development.
*This article is an extract from the Article “Strengthening the Environmental Liability Regime in Kenya for Sustainable Development,” 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., “Strengthening the Environmental Liability Regime in Kenya for Sustainable Development,” (2022) Journal of Conflict Management and Sustainable Development (JCMSD) 8(3), p. 1.
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