By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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 Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*
Procurement has been defined as a careful, usually documented process resulting in delivery of goods or services within a set time period. Procurement is also defined as the process encompassing all activities associated with acquiring and managing the organisation’s supply inputs. According to the World Trade Organization (WTO), procurement relates to the process by which a state agency or an organization acquires a product or service for its own use.
The Public Procurement and Asset Disposal Act of Kenya defines procurement as the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise, or by any other contractual means of any type of works, assets, services or goods including livestock or any combination and includes advisory, planning and processing in the supply chain system. Procurement therefore essentially refers to the process of sourcing, acquiring, and paying for goods and services.
On the other hand, green or environmental procurement has been defined as the integration of environmental considerations into purchasing policies, programmes, and actions. It has also been described as the involvement of the purchasing function in supply chain management activities such as Life-Cycle Analysis (LCA) and environment design that facilitates recycling, reuse and resource reduction. Green procurement can also mean the acquisition of products and services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose.
Green procurement therefore considers raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance or disposal of the product or service. Green procurement can therefore be understood as a process whereby organisations or public authorities meet their needs for goods, services, works and utilities in a way that achieves value for money on a whole life basis in terms of generating benefits not only to the organization or the public authority, but also to society and the economy, while minimising or mitigating damage to the environment. It has been observed that green purchasing/green procurement is increasingly being recognised as an effective means of addressing and reducing negative environmental impacts related to product production and consumption around the world.
Sustainable procurement on the other hand has been described as the pursuit of Sustainable Development objectives through the purchasing and supply process, and involves balancing environmental, social and economic objectives. It has also been defined as procurement that is consistent with the principles of Sustainable Development, such as ensuring a strong, healthy and just society, living within environmental limits, and promoting good governance. Further, sustainable procurement can also refer to a conscious process where organisations meet their needs in a way that achieves value for money on a whole life basis by generating benefits to the spending organisations, society and economy, whilst minimising damage to the environment.
Sustainable procurement can also be described as the process of integrating Environmental, Social, and Governance considerations (ESG) into purchasing decisions and supply chain management. It goes beyond the normal focus on cost and quality of products and services and takes into account the broader impacts of procurement activities on human lives, the planet, and prosperity. Sustainable procurement aims to balance economic goals with social responsibility and environmental stewardship, in order to foster long-term sustainability throughout the supply chain.
It has been asserted that sustainable procurement primarily involves balancing three essential concepts being environment/eco-friendly concerns, including energy performance, waste reduction, product lifespan, protection of resources; social concerns including respect for human rights, good working conditions, inclusivity, diversity; and economic issues including cost, product and service quality, and delivery timeframes.
From the foregoing, certain differences emerge between green and sustainable procurement. It has been asserted that sustainable procurement takes a broader approach, considering social, environmental, and economic factors in the procurement process, while green procurement primarily focuses on the environmental aspects. In addition, it has been pointed out that sustainable procurement places significant emphasis on social responsibility, including fair labor practices, respect for human rights, and diversity, whereas green procurement primarily concentrates on environmental impacts. Sustainable procurement also seeks to foster economic viability and long-term value creation in the procurement process while green procurement focuses on fostering environmental viability in the procurement process.
Despite their differences, both green procurement and sustainable procurement are at the heart of the Sustainable Development agenda. It has been asserted that transforming public procurement practices by embracing green and sustainable procurement can play a key role in achieving a greener and more sustainable future in multiples ways by evaluating the total cost of ownership over the product’s life cycle, including energy use, maintenance, and disposal costs rather than prioritizing the lowest price, which can lead to the selection of products and services that are not environmentally-friendly; and incorporating environmental and social sustainability criteria into procurement processes, including energy efficiency, carbon footprint, fair labor practices, and local sourcing.
According to the World Bank, given the central position that procurement occupies in public spending, procurement can be a lever to implement a whole-of-economy approach to climate change, by aligning purchasing decisions with sustainability and climate goals, engaging with suppliers to drive positive change, and promoting innovation and transparency throughout the supply chain. By embedding green and sustainable considerations into procurement processes, governments and organizations can drive innovation, promote responsible consumption, and pave the way for a more sustainable future. It has further been asserted that emerging economies can leverage their large purchasing power in promoting a more sustainable and inclusive growth through the adoption of green and sustainable public procurement policies.
Given their substantial purchasing power, governments in both developed and developing countries have enormous leverage to stimulate and drive markets for sustainable production and consumption when they make a determined effort to purchase ‘green’ and ‘sustainable’ products and services. It has been argued that adopting green and sustainable procurement not only improves the efficiency of public procurement but also uses the public market power to bring about significant environmental and socioeconomic benefits in any given country. It is therefore important for all countries to promote green and sustainable procurement in order to foster sustainability.
*This is an extract from the Book: Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) by Hon. Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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. Prof. 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.
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