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.*
As far as production and use of renewable natural resources is concerned, it has rightly been asserted that all utilisation of the renewable natural resources must be carried out on a sustained-yield basis; and all disposal of wastes (gaseous, liquid and solid) must be carried out on a sustained-discard basis, that is, at disposal rates not in excess of decomposition rates. While it is difficult to establish such rates, the solution may lie in moving away from the increased use of synthetic waste and other non-decomposing wastes to the easily decomposing technology waste. For instance, in agriculture, it is imperative that the country adopts methods and technology that is friendlier to green economy practices as opposed to the polluting and dangerous chemicals. It is contended that without an inflexible commitment to the sustainable development of resources and the sustainable disposal of wastes there can be no environmental security. This is true considering that unstainable use of resources coupled with unsustainable waste disposal negatively affects the environment and ultimately the quality of life for human beings, plants as well as animals.
It is important that the country integrates both anthropocentric and ecocentric approaches to environmental conservation and protection. This will ensure that the environment is not only secure for the sake of satisfying human needs, but also ensuring that it is healthy for the animals and plants. This approach is envisaged in the Earth Chart which calls for respect for the Earth and life in all its diversity in recognition of the fact that all beings are interdependent and every form of life has value regardless of its worth to human beings. For instance, without the bees, pollination of plants would be almost impossible, and without plants animal lives would be jeopardized. A sustained and secure environment is also useful for the regeneration of resources.
The Charter calls for rights with responsibilities and states that there should be care for the community of life with understanding, compassion, and love. It provides that all must accept that with the right to own, manage, and use natural resources comes the duty to prevent environmental harm and to protect the rights of people. A fundamental purpose of the Earth Charter is to encourage all peoples to identify with the whole Earth community as well as their local communities and to expand their moral concern and caring to include the present and future well-being of the entire human family and the larger living world. Kenya asserts that it has shown commitment to protect the climate system for the benefit of the present and future generations by supporting the United Nations Framework Convention on Climate Change (UNFCCC) process; ratifying the Kyoto Protocol in 2005; and contributing to continental and regional climate change initiatives.
Kenya has also enacted the, Climate Change Act 2016, which seeks, inter alia, to provide- a framework for mitigating and adapting to the effects of climate change on all sectors of the economy and levels of governance; a mechanism for coordination and governance of matters relating to climate change; coordination mechanism for formulation of programmes and plans to enhance the resilience of human and ecological systems against the impacts of climate change; for mainstreaming of the principle of sustainable development in the planning for and on climate change response strategies and actions; for promotion of social and economic measures in climate change responses to support sustainable human development; and a mechanism for coordination of measuring , verification and reporting of climate interventions. This, it is argued, is complemented by the fact that the country’s Constitution has set out a legal commitment to attain ecologically sustainable development; hence providing a basis to address the challenge of climate change while striving to attain its development goals through the Kenya Vision 2030.
There is, however, a need to take more action directed at addressing the challenges facing realisation of environmental security in the country. Although the international framework on environmental law has comprehensive and well-meaning provisions and principles that may help countries address environmental insecurity, most of them are merely prescriptive in nature without any force of law. As such they heavily rely on the countries’ political goodwill. It is undeniable that Kenya has done a lot to domesticate the provisions of the international legal instruments but more still needs to be done by way of implementing the same. The response to climate change in Kenya must adhere to the constitutional governance framework and commitment to sustainable development, while addressing the goal of attaining low carbon climate resilient development.
The State entities need to closely work with communities, private sector and various stakeholders to promote and ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources. Indeed, the recent announcement by the Environment Cabinet Secretary, who called for new stakeholder partnerships to address challenges facing the community based natural resources management, is to be lauded. The cabinet Secretary noted that over-exploitation of natural resources, limited access to markets; poverty and weak policies were rampant in areas endowed with community resources posing challenges in their exploitation. According to the Secretary, the Ministry was committed to support community-based environmental initiatives that recognize equity, fair-trade and benefits sharing of natural resource management.
The United Nations Conference on Sustainable Development, Rio+20 conference participants recognized that farmers, including small-scale farmers and fisherfolk, pastoralists and foresters, can make important contributions to sustainable development through production activities that are environmentally sound, enhance food security and the livelihood of the poor and invigorate production and sustained economic growth.109 Such an approach that integrates the efforts of the locals can a go a long way in guaranteeing sustainability since they also act as incentives for the communities to shun unsustainable methods of production and utilisation of resources. It would also play a big and positive role in ensuring that there is equitable sharing of the accruing benefits.
In promoting sustainable agriculture and rural development, Agenda 21 provides that major adjustments are needed in agricultural, environmental and macroeconomic policy, at both national and international levels, in developed as well as developing countries, to create the conditions for Sustainable Agriculture and Rural Development (SARD). The major objective of SARD is to increase food production in a sustainable way and enhance food security. This will involve education initiatives, utilization of economic incentives and the development of appropriate and new technologies, thus ensuring stable supplies of nutritionally adequate food, access to those supplies by vulnerable groups, and production for markets; employment and income generation to alleviate poverty; and natural resource management and environmental protection.
In areas where communities largely depend on agriculture for livelihood, there is need to create awareness for the diversification of economic activities, and effective agriculture and production methods. Communities, especially those living in ecologically susceptible areas need to be encouraged to engage in economically viable but environmentally friendly activities. Those that rely exclusively on livestock keeping should be supported to come up with efficient but sustainable production methods that will ensure higher yields while conserving the environment. They should be engaged in planting and nurturing dryland forests which will not only help in environmental restoration but also ensure there will be enough resources for their use. The Ministry of Environment and Natural Resources, in collaboration with the Ministry of Water and the County governments, can put in place a sustainable plan for supplying water both from the national water reservoirs and drilled boreholes. This will serve the purpose of supporting economic activities as well as supporting reforestation efforts. Such measures should also be accompanied by soil conservation measures.
*This article is an extract from the Article “Achieving Environmental Security 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., “Achieving Environmental Security in Kenya,” (2022) Journal of Conflict Management and Sustainable Development (JCMSD) 8(3), p. 126.
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