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 Management and Co-ordination Act, 1999 (EMCA) is the overarching framework law on natural resource management and provides for specific application of public participation. Other sectoral statutes enacted after EMCA also have provisions for specific application of public participation. Most natural resources sectoral laws enacted prior to 1999 have no provisions relating to public participation. This part will take an in-depth look at public participation before 1999 and specific aspects of public participation provided for under EMCA and post-EMCA sectoral laws.
Judicial Review
The administrative system of government aids decision-making in natural resource management through the statutory functions of diverse administrative bodies. Judicial review is a process through which a person aggrieved by a decision of an administrative body can seek redress in court. Judicial review is concerned with reviewing the decision-making process and not the merits of the decision itself. Some of the grounds upon which a person can bring a claim for judicial review are that the rules of natural justice were not followed during the process of decision-making. One important rule of natural justice, and which preceded the statutory requirements for public participation in natural resources management is the right to be heard. Before EMCA, most of the remedies sought against a public body which made a decision on natural resources without consulting the public were through judicial review.
In Nzioka and 2 others v Tiomin Kenya Ltd, the court stated that even if there was a distinct law on the environment, it was not exclusive and most environmental disputes were resolved by the application of principles of common law and administrative law. Public consultation is an important aspect to be taken into account by agencies when making decisions that affect members of the public. In Mada Holdings Ltd t/a Fig Tree Camp v County Council of Narok, the court issued an order of prohibition, stopping the respondent from charging the enhanced park entry fees because neither the applicant nor other stakeholders in the hotel industry had been consulted prior to revision of the said fees. Similarly, in Hassan and 4 others v KWS, the court held that KWS would be acting outside its powers if it were to translocate animals away from their natural habitat without express consent of the community. In Republic v Minister of Forestry and Wildlife and 2 Others ex parte Charles Oduor Okello and 5 Others, the court quashed the gazettement of Lake Kanyaboli National Reserve on the grounds that the Minister in gazetting the same did not consult all the interested parties and should have obtained the consent of the county council before proceeding to gazette the area.
Environmental Impact Assessment
Environmental Impact Assessment (EIA) is a tool that helps those involved in decision-making concerning development programs or projects to make their decisions based on the knowledge of the likely impacts that will be caused to the environment. EIA is an important tool for public participation in natural resources management. Internationally, the CBD requires public participation in EIA procedures. The need for EIA was also captured in Principle 17 of the 1992 Rio Declaration on Environment and Development in the following terms: Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant impact on the environment and are subject to a decision of a competent authority.
In Kenya, EIA gets its legislative backing from EMCA. The procedure for EIA provided for under EMCA is designed to be quite comprehensive and to ensure public participation. The Act requires proponent of any project specified in the Second Schedule to undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority: Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases. The Act then provides that the EIA study report shall be publicised for two successive weeks in the Kenya Gazette, a local newspaper and inviting members of the public to give their comments either orally or in writing on the proposed project within a period not exceeding sixty days. The Authority may, after being satisfied as to the adequacy of an environmental impact assessment study, evaluation or review report, issue an environmental impact assessment licence on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management.
In Bogonko v NEMA, the applicant sought an order to quash NEMA’s decision to stop his project of putting up a petrol station. NEMA contended that it issued the order to stop the construction because the applicant had failed to publish the EIA study report for two successive weeks and hence the public was not given sufficient notice to comment on the report. The court held that the purpose of advertisement as provided for by the law is to ensure that the public see the proposed project and give their comments as to whether the project is viable or not. In the present case, the members of the public were denied such an opportunity. The court, therefore, declined to quash the order stopping the project because according to it, the public interest far outweighed the applicant’s individual right to put up a petrol station.
Similarly, in Kwanza Estates Ltd. v KWS, the plaintiff sought orders to have KWS restrained from constructing a public toilet at the beach front as the toilet when in use would cause adverse environmental effects and devalue the plaintiffs prime beach property. KWS did not conduct an EIA before putting up the toilet. The court held that public participation was what informed the requirement for an EIA being done before any project commenced. The requirement for publicizing the report is what gave members of the public, like the plaintiff in this case, a voice in issues that may bear negatively on their right to a clean and healthy environment. The court proceeded to grant an injunction restraining KWS from constructing the toilet in the absence of an EIA to show how the waste from the toilet would be treated to prevent pollution in the ocean. EIA is a continuous process that goes on throughout the duration of the project.
In addition to EIA, EMCA also provides for Strategic environmental assessment (SEA) which should be undertaken much earlier in the decisionmaking process than project environmental impact assessment (EIA). While the parent Act (EMCA) was initially silent on SEA, the same was introduced via the Environmental Management and Co-ordination (Amendment) Act, 2015 (Amendment Act 2015). Whereas EIA concerns itself with the biophysical impacts of proposals only (e.g. effects on air, water, flora and fauna, noise levels, climate etc), SEA and integrated impact assessment analyze a range of impact types including social, health and economic aspects. SEA is, arguably, not a substitute for EIA or other forms of environmental assessment, but a complementary process and one of the integral parts of a comprehensive environmental assessment tool box.
Public Consultation
The Forest Conservation and Management Act, 2016 and the Water Act 2016 were both enacted after EMCA and both make similar provisions on public consultation. The only difference is that the provisions under the Water Act 2016 are in the main body of the statute while in the Forest Conservation and Management Act, they are in a schedule. These statutes give the requirements for public consultation which are almost similar to those of EIAs. They provide that where the law requires public consultation, the relevant entity shall publish a notice in relation to the proposed action in the Kenya gazette (for the Forest Conservation and Management Act), newspapers and local radio stations. The notice should invite written comments or objections to the proposed action from the public within sixty days104 of the publication of the notice. The said authority should then publish through the same media a notice that copies of the decision and reasons therefore are available for public inspection. The last provision is critical because in public participation, the public agency retains the ultimate decision making authority.
In Lake Naivasha Friends of the Environment v AG and 2 others, the question was whether the respondents complied with the law on public consultation in developing a Catchment Management Strategy. The respondents advertised the Catchment Management Strategy in the Kenya Gazette and in a local newspaper inviting the public to forward their comments. There were also meetings held with various stakeholders. The court found that the meetings and advertisements constituted sufficient consultations under the Water Act and that it was impractical for the respondents to contact and invite every interested individual personally to give their input. It also held that in implementing policy, it was impossible for the State to please each person or meet their individual interests. In some circumstances, the rights of the majority will be elevated over those of the individual.
*This article is an extract from the Article “Fostering the Principles of Natural Resources 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., “Fostering the Principles of Natural Resources Management in Kenya” Journal of Conflict Management and Sustainable Development (JCMSD) 8(1), p. 1; Available at: http://journalofcmsd.net/ wp-content/uploads/2022/02/Fostering-the-Principles-of-Natural-Resources-Management-in-Kenya.pdf (accessed on 28th May 2022).