By Hon. Dr. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023) and Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023)*
There have been several attempts towards recognizing the right of access to clean and affordable energy as a fundamental human right at the global, regional and national levels. The Energy Charter Treaty is a multilateral framework for energy cooperation that is designed to promote energy security through the operation of more open and competitive energy markets, while respecting the principles of Sustainable Development and sovereignty over energy resources. Among the target of the Treaty is the promotion of energy efficiency and minimising the environmental impact of energy production and use. The Treaty is one of the best available instruments for improving international energy security by promoting international energy investments and fair access to markets. It also urges its member states to formulate clear policies for improving energy efficiency and reducing the energy cycle’s negative environmental impacts. However, membership of the Energy Charter Treaty is mostly drawn from European nations.
The Treaty may thus not address energy concerns in most African countries. The United Nations 2030 Agenda on Sustainable Development also seeks to foster the adoption of green energy. Sustainable Development goal 7 is aimed at ensuring universal access to affordable, reliable and modern energy services. It further recognizes that investing in green energy including renewable sources of energy such as solar, wind and thermal power; improving energy productivity, and ensuring energy for all are vital in the attainment of the Sustainable Development agenda. Adopting green energy is thus vital in fostering Sustainable Development.
At the regional level, the Treaty Establishing the East African Community recognizes the role of energy in the East African integration agenda. It urges member states to adopt policies and mechanisms to promote the efficient exploitation, development, joint research and utilisation of various energy resources available within the region. Further, the Treaty calls upon member states to promote the exploitation and utilisation of new and renewable sources of energy within the East African Community. The Treaty also implores member states to take measures towards supplying affordable energy to their citizens while taking cognizance of the protection of the environment.
In Kenya, it has been pointed that access to energy is a Constitutional right. Although the Constitution does not expressly provide for the right to access to energy, it recognizes energy as part of the natural resources in Kenya. To this extent, the Constitution provides that natural resources means the physical non-human factors and components, whether renewable or non-renewable, including inter alia rocks, minerals, fossil fuels and other sources of energy. The Constitution also enshrines the principle of Sustainable Development in Kenya. Enhancing universal access to affordable, reliable and modern energy services including green energy sources such as renewable energy is an essential part of the Sustainable Development agenda. The Constitution of Kenya thus envisages adoption of green energy.
Further, the Energy Act embraces the concept of green energy by recognizing renewable sources of energy. The Act mandates the government to facilitate the provision of affordable energy services to all persons in Kenya. It also requires the government to promote the development and use of renewable energy technologies, including but not limited to biomass, biodiesel, bioethanol, charcoal, fuelwood, solar, wind, tidal waves, hydropower, biogas and municipal waste. Towards this end, the Act requires the government to undertake several measures including formulating a national strategy for coordinating research in renewable energy; promoting international co-operation on programs focusing on renewable energy sources and harnessing opportunities offered under clean development mechanism and other mechanisms including, but not limited to, carbon credit trading to promote the development and exploitation of renewable energy sources. Actualizing the vision of the Energy Act is paramount in enhancing the right of access to clean and affordable energy in Kenya and adopting green energy.
In addition, the National Energy Policy is recognizes energy as a critical component in Kenya. The policy seeks to achieve which several objectives including improving access to affordable, competitive and reliable energy services, promoting energy efficiency and conservation and promoting diversification of energy supply sources in Kenya to ensure security of supply among others. It contains several proposals towards the use, development and conservation of energy sources in the country such as coal resources, renewable energy and electricity. The Policy also contains energy efficiency and conservation measures aimed at reducing energy consumption without sacrificing productivity or increasing costs91. Effective implementation of the Policy is integral in promoting green energy in Kenya and enhancing the right of access to clean and affordable energy.
The concept of green energy is thus well captured at the global, regional and national levels. The International Energy Agency notes that the rate of adoption of green energy sources such as renewable energy is expected to rise with the world set to add as much renewable power in the next 5 years as it did in the past 20 years. It further observes that renewables have grown rapidly in recent years, driven by policy support and sharp cost reductions for solar photovoltaics and wind power in particular. In addition, it has been asserted that the electricity sector remains the brightest spot for renewables with the strong growth of solar photovoltaics and wind in recent years, building on the already significant contribution of hydropower in the transition towards green energy.
In Africa, the African Energy Forum is geared towards driving Africa’s green energy transition. It notes that Africa’s vast renewable resources give it a distinct advantage in the move towards a green hydrogen future. Among the key themes of its 2023 agenda is to increasing pace and scale of Africa’s renewable energy projects towards adoption of green energy. Further in Kenya, the Rural Electrification and Renewable Energy Corporation is mandated to develop, promote and manage in collaboration with other agencies, the use of renewable energy and technologies. The Corporation has undertaken projects towards implementing this mandate including installation of solar power plants, electrification of public facilities and schools and transformer maximization projects to enhance electricity access and connectivity in areas with large populations. Thus, there are immense opportunities for adoption of green energy at the global, regional and national levels.
However, despite the viability of green energy sources including renewable energy, several concerns have hindered their effective adoption. These include inadequate funding, lack of political goodwill and ignorance among consumers. Further, the threat of climate change can hinder adoption of green energy sources such as hydroelectricity due to the depletion of forests and water catchment areas which act as a source for water used in their generation. There is need to address these concerns in order to foster the adoption of green energy and fast track the transition to a less carbon-intensive and more sustainable energy system.
*This is an extract from the Book: Achieving Climate Justice for Development (Glenwood Publishers, Nairobi, October 2023) by Hon. Dr. Kariuki Muigua, OGW, PhD, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2022) and Member of Permanent Court of Arbitration nominated by Republic of 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Dr. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.
References
Africa Energy Forum., ‘Held on 20-23 June 2023 in Nairobi, Kenya’, Available at https://www.africa-energy-forum.com/ (Accessed on 27/06/2023)
Africa Union., ‘Agenda 2063: The Africa we Want.’ Available at https://au.int/sites/default/files/documents/33126-doc-framework_document_book.pdf (Accessed on 03/07/2023).
African Union., ‘Agreement Establishing the African Continental Free Trade Area.’ Available at https://au.int/sites/default/files/treaties/36437-treatyconsolidated_text_on_cfta_-_en.pdf (Accessed on 03/07/2023).
African Wildlife Foundation., ‘Sustainable Agriculture.’ Available at https://www.awf.org/community/sustainable-agriculture (Accessed on 03/07/2023).
Begashaw. B., ‘Africa and the Sustainable Development Goals: A long Way to go.’ Available at https://www.brookings.edu/articles/africa-and-the-sustainable-developmentgoals-a-long-way-to-go/ (Accessed on 03/07/2023).
Behuria. P., ‘Ban the (plastic) Bag? Explaining Variation in the Implementation of Plastic Bag Bans in Rwanda, Kenya and Uganda.’ EPC: Politics and Space, 2021, P 1-18 52.
Climate Champions. ‘How Regenerative Agriculture Can Increase Africa’s Food Production.’ Available at https://climatechampions.unfccc.int/call-to-action-for-climateresilient-sustainable-food-systems-in-africa/ (Accessed on 03/07/2023).
Conrow. J., ‘Borlaug’s Dream is Being Realized.’ Available at https://allianceforscience.org/blog/2017/04/borlaugs-dream-is-being-realized/ (Accessed on 03/07/2023).
Constitution of Kenya, 2010., Government Printer, Nairobi.
Constitution of Kenya, 2010., Government Printer, Nairobi.
Crane. D., ‘My Clean-Energy Green Dream.’ Available at https://www.greenbiz.com/article/myclean-energy-green-dream (Accessed on 03/07/2023).
Davis. L.R et al., ‘Farmer Led Regenerative Agriculture for Africa.’ Available at https://discovery.ucl.ac.uk/id/eprint/10106717/1/LunnRockliffe%2C%20Davies%20et%20al. %202020%20RA%20report.pdf (Accessed on 03/07/2023).
Economic Commission for Africa., ‘African Countries Urged to Prioritize Green Value Chains for Minerals.’ Available at https://www.un.org/africarenewal/magazine/february-2023/african-countries-urgedprioritize-green-value-chains-minerals (Accessed on 03/07/2023).
EN: Former., ‘North Africa’s Hydrogen Potential.’ Available at https://www.enformer.com/en/northafricashydrogenpotential/?etcc_med=SEA&etcc_par=Google&etcc_cmp=Energysystems&etc c_grp=135634609600&etcc_bky=hydrogen%20africa&etcc_mty=p&etcc_plc=&etcc_ctv=58 0888668376&etcc_bde=c&etcc_var=CjwKCAjw44mlBhAQEiwAqP3eViMmP67xkwkqMl4 FIRbBPvWOgaNcBckR9BJMhu0bOUf1sOG4JKuwhoCga4QAvD_BwE&gad=1&gclid=CjwKCAjw44mlBhAQEiwAqP3eViMmP67 xkwkqMl4FIRbBPvWOgaNcBckR9BJMhu0bOUf1s-OG4JKuwhoCga4QAvD_BwE (Accessed on 03/07/2023).
Energy Act, No.1 of 2019, Government Printer, Nairobi.
Energy Charter., ‘Members and Observers to the Energy Charter Conference.’ Available at https://www.energycharter.org/who-we-are/members-observers/ (Accessed on 26/06/2023).
Forbes., ‘Meet The African Green Entrepreneurs Showing the West How It’s Done.’ Available at https://www.forbes.com/sites/davidrvetter/2021/12/14/meet-the-african-greenentrepreneurs-showing-the-west-how-its-done/?sh=6d46b5bf51cb (Accessed on 03/07/2023).
Hafner. M et al., ‘Prospects for Renewable Energy in Africa.’ Energy in Africa, 2018, pp 47-75.
International Energy Agency., ‘Renewables.’ Available at https://www.iea.org/fuelsand-technologies/renewables (Accessed on 27/06/2023).
International Renewable Energy Agency., ‘Renewable Energy Market Analysis: Africa and its Regions.’ Available at https://www.irena.org/publications/2022/Jan/Renewable-Energy-Market-Analysis-Africa (Accessed on 03/07/2023).
Konoplyanik. A & Walde. T., ‘Energy Charter Treaty and its Role in International Energy.’ Available at http://konoplyanik.ru/ru/publications/articles/417_Energy_Charter_Treaty_and_its_Role_in _International_Energy.pdf (Accessed on 26/06/2023).
Koudstaal.R et al., ‘Water and Sustainable Development’ available at https://www.ircwash.org/sites/default/files/210-92WA-11000.pdf (Accessed on 03/07/2023).
Ministry of Energy., ‘National Energy Policy.’ Available at https://repository.kippra.or.ke/bitstream/handle/123456789/1947/BL4PdOqKtxFT_National %20Energy%20Policy%20October%20%202018.pdf?sequence=1&isAllowed=y (Accessed on 26/06/2023).
MTD., ‘Green Dream Rwanda.’ Available at https://www.mtdls.nl/en/news/newsarchive/q/nid/337/title/green-dream-rwanda (Accessed on 03/07/2023).
Muchiri. L., ‘Gender and Equity in Bioenergy Access and Delivery in Kenya’ Practical Action East Africa, 2008, available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8 &ved=2ahU KEwiy2P29z6PnAhUEiFwKHQlyCLoQFjAAegQIBRAB&url=http%3A%2F%2Fwww.cas. ed.ac.uk%2F__d ata%2Fassets%2Fword_doc%2F0007%2F24793%2FGender_and_Equity_in_Bio_energy_A ccess_and_Deliv ery_in_Kenya_final.doc&usg=AOvVaw2AKp1mvTSC9tafkIKJ-36 (Accessed on 27/06/2023).
Mugagga. F, & Nabaasa. B., ‘The Centrality of Water Resources to the Realization of Sustainable Development Goals (SDG). A Review of Potentials and Constraints on the African Continent.’ International Soil and Water Conservation Research, Volume 4, No. 3, 2016.
Muigua. K., ‘Nurturing Our Environment for Sustainable Development.’ Glenwood Publishers Limited, 2016.
Muigua. K., ‘Towards Energy Justice in Kenya.’ Op Cit 108 Ibid 109 Muigua. K., ‘Access to Energy as a Constitutional Right in Kenya’ Op Cit 110 Centurion., ‘Renewable Energy Growth in Kenya.’ Available at https://centurionlg.com/2022/02/01/renewable-energy-growth-in-kenya/ (Accessed on 27/06/2023).
Owusu. P. & Asumadu-Sarkodie. S., ‘A Review of Renewable Energy Sources, Sustainability Issues and Climate Change Mitigation.’ Cogent Engineering (2016).
Rural Electrification and Renewable Energy Corporation., Available at https://www.rerec.co.ke/our-work.php (Accessed on 27/06/2023).
Taghizadeh-Hesary. F & Yoshino. N., ‘Sustainable Solutions for Green Financing and Investment in Renewable Energy Projects.’ Available at https://www.mdpi.com/1996-1073/13/4/788 (Accessed on 27/06/2023).
The Energy Charter Treaty., Available at https://www.energycharter.org/fileadmin/DocumentsMedia/Legal/ECTC-en.pdf (Accessed on 26/06/2023).
UNDP., ‘New Africa SDGs Report shows Slow Progress, Calls for Greater Action to Meet Targets.’ Available at https://www.undp.org/africa/press-releases/new-africa-sdgsreport-shows-slow-progress-calls-greater-action-meet-targets (Accessed on 03/07/2023).
United Nations Development Programme., ‘Goal 7: Affordable and Clean Energy.’ Op Cit 74 Ibid 75 Treaty Establishing the East African Community., Available at https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/2487/download (Accessed on 26/06/2023).
United Nations Development Programme., ‘Sustainable Development Goals.’ Available at https://www.google.com/search?q=undp&oq=UNDP&gs_lcrp=EgZjaHJvbWUqDwgAEAA YQxjjAhixAxiKBTIPCAAQABhDGOMCGLEDGIoFMhIIARAuGEMYxwEYsQMY0QM YigUyCQgCEAAYQxiKBTIJCAMQABhDGIoFMgYIBBBFGDwyBggFEEUYPDIGCAYQ RRg8MgYIBxBFGDzSAQgyNzM2ajFqN6gCALACAA&sourceid=chrome&ie=UTF-8 (Accessed on 03/07/2023).
United Nations Environment Programme, ‘Goal 6: Clean Water and Sanitation’ available at https://www.unep.org/explore-topics/sustainable-development-goals/why-dosustainable-development-goals-matter/goal-6 (Accessed on 03/07/2023).
United Nations General Assembly., ‘Report of the United Nations Conference on Environment and Development: Rio Declaration on Environment and Development’ 1992’ A/CONF.151/26 (Vol. I).
United Nations, Department of Economic and Social Affairs, Sustainable Development goal 6- clean water and sanitation, available at https://sdgs.un.org/goals/goal6 (Accessed on 03/07/2023).
United Nations., ‘Climate Action.’ Available at https://www.un.org/en/climatechange/how-communities-are-embracing-renewable-energy (Accessed on 27/06/2023).
United Nations., ‘The Future We Want: Outcome document of the United Nations Conference on Sustainable Development held in Rio de Janeiro, Brazil, from 20–22 June 2012.’ Available at https://sustainabledevelopment.un.org/content/documents/733FutureWeWant.pdf (Accessed on 03/07/2023).