Connect with us

News & Analysis

Way Forward in Interlinking ESG and Human Rights

Published

on

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 Academic Champion of ADR 2024, 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), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024)*

In order to integrate human rights within the ESG framework, there is need for corporations to embrace human rights due diligence. Human rights due diligence consists of a process that allows companies to identify, prevent and mitigate their actual and potential adverse impacts on human rights and account for how they address such impacts.

Human rights due diligence involves the actions taken by a company to both identify and act upon actual and potential human rights risks for workers in its operations, supply chains and the services it uses. Further, it has been defined as a process for identifying, preventing, mitigating and addressing human rights impacts, including both actual impacts occurring in the present and potential impacts that could occur in the future.

The United Nations Guiding Principles on Business and Human Rights provide that in order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including a human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human right.

Human rights due diligence has been advocated as a key measure for enterprises to proactively manage potential and actual adverse human rights impacts. It has been argued that the prevention of adverse impacts on people is the main purpose of human rights due diligence. The process not only identifies impacts a corporation directly causes, but also impacts it contributes to or is directly linked to through its business relationships, operations, products and services.

Further, it has been pointed out that engaging with stakeholders especially affected groups such as workers and communities is a key component of human rights due diligence. It is therefore necessary for companies to embrace human rights due diligence in order to effectively embrace human rights within their ESG framework. In order to effectively embrace human rights due diligence, companies should effectively identify and assess actual or potential adverse human rights impacts that they may cause or contribute to through their own activities, or which may be directly linked to their operations, products or services by their business relationships.

In addition, there is need for corporations to integrate findings from impact assessments across relevant company processes and take appropriate action according to their involvement in the impact. Further, it is imperative for companies to track the effectiveness of measures and processes adopted to address adverse human rights impacts in order to know if they are working and communicate on how impacts are being addressed and showing stakeholders – in particular affected stakeholders – that there are adequate policies and processes in place.

In order to be effective, human rights due diligence should take a conflict-sensitive approach which means that the process emphasizes effectively preventing, managing and addressing conflict, including by seeking to understand wider conflict dynamics and related risks in the operating environment especially in complex environments. Human rights due diligence is therefore vital in embedding human rights within the ESG agenda.

It has been suggested that human rights due diligence should be embraced by companies as an ongoing risk management process. It has been pointed out that companies can conduct effective human rights due diligence through several ways including through conducting a stand-alone human rights impact assessment or by integrating a thorough human rights evaluation into existing environmental and social impact assessment processes.

In addition, it has been suggested that human rights due diligence can both inform and be informed by the company’s other assessments and analyses such as risk assessments, situation analyses, needs assessments. Human rights due diligence is therefore a key idea that needs to be embraced in order entrench human rights within the ESG agenda.

In addition, at a continental level, several measures have been suggested towards embracing human rights in business operations towards fostering sustainable, responsible or ethical investments in the Continent. For example, it has been suggested that there is need to mainstream human rights into trade under the African Continental Free Trade Area (AfCFTA) and ensure that the implementation of the AfCFTA does not have an adverse effect on human rights.

Implementation of the AfCFTA is expected to boost Intra-African trade and investments some which could potentially have negative impacts on human rights in the Continent. Further, it has been suggested that there is need for the African Union to expedite the adoption of its Business and Human Rights Policy Framework (the AU Policy Framework on Business and Human Rights) which is designed to act as a roadmap for regulating the impact of business conduct on human rights in Africa and to encourage cohesive implementation of the United Nations Guiding Principles on Business and Human Rights by African states.

It has been pointed out that there is need for African countries to develop National Action Plans (NAPs) on Business and Human Rights in order to articulate their priorities, implementation strategies and commitments to human rights. African courts including the African Court on Human and Peoples’ Rights, regional courts such as the Common Market for Eastern and Southern Africa (COMESA) Court of Justice, the Court of Justice of the Economic Community of West African States (ECOWAS) along with other regional and national courts have a key role to play in shaping jurisprudence on Business and Human Rights in the Continent.

Finally, it is necessary to strengthen ESG reporting and enforcement mechanisms on human rights. It has been observed that recent ESG trends have driven the requirement by businesses to report on human rights as evidenced by emerging legal frameworks requiring companies to report on human rights and environmental issues, emerging mandatory human rights due diligence legislation, and increased legal enforcement and litigation risks.

Global, regional and national ESG frameworks including the United Nations Guiding Principles on Business and Human Rights, the European Union’s Corporate Sustainability Reporting Directive, and the Nairobi Securities Exchange (NSE) ESG Disclosures Guidance Manual require companies to report on their human rights standards on either voluntary or mandatory basis. Further, the United Nations (UN) Guiding Principles Reporting Framework offers a comprehensive guidance for companies to report on human rights issues in line with their responsibility to respect human rights.

It is important for companies to embrace the requirements on reporting in order to strengthen their approaches towards human rights. It is also vital to enhance enforcement of human rights in ESG through approaches such as public enforcement by the state and its agencies such as the capital markets and private enforcement through ESG litigation among other measures. Through the foregoing among other approaches, human rights will be firmly entrenched within the ESG agenda.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (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 and Academic Champion of ADR 2024. 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 2024 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

African Commission on Human and Peoples’ Rights., ‘Resolution on Business and Human Rights in Africa’ -ACHPR/Res.550 (LXXIV), 2023.

African Union., ‘African Charter on Human and Peoples’ Rights.’ Available at https://au.int/sites/default/files/treaties/36390-treaty-0011_- _african_charter_on_human _and_peoples_rights_e.pdf (Accessed on 24/01/2024).

Ahmad. H., Yaqub. M., & Lee. S. H., ‘Environmental-, Social-, and GovernanceRelated Factors for Business Investment and Sustainability: A Scientometric Review of Global Trends.’ Available at https://link.springer.com/article/10.1007/s10668- 023-02921-x (Accessed on 23/01/2024).

Barbosa. A et al., ‘Integration of Environmental, Social, and Governance (ESG) Criteria: Their Impacts on Corporate Sustainability Performance.’ Humanit Soc Sci Commun 10, 410 (2023). Available at https://doi.org/10.1057/s41599-023-01919-0 (Accessed on 23/01/2024).

Boyle. A., ‘Human Rights and the Environment: Where Next’ The European Journal of International Law, Vol. 23, No. 3.

British Business Bank., ‘What is ESG – A Guide for Businesses.’ Available at https://www.british-business-bank.co.uk/finance-hub/businessguidance/sustainability/what-is-esg-a-guide-for-smaller-businesses/ (Accessed on 23/01/2024).

Business & Human Rights Resource Centre., ‘Commentary: Human Rights are not Just an ESG Factor’ Available at https://www.business-humanrights.org/en/latestnews/commentary-human-rights-are-not-just-an-esg-factor/ (Accessed on 24/01/2024).

Cedric.R., ‘Accountability of Multinational Corporations for Human Rights Abuses.” Utrecht Law Review 14.2 (2018): 1-5.’

Constitution of Kenya., 2010., Government Printer, Nairobi.

Ethical Trading Initiative., ‘Human Rights Due Diligence.’ Available at https://www.ethicaltrade.org/insights/issues/human-rights-due-diligence (Accessed on 25/01/2024).

Feldman. D., Mkhize. M., & Edmonds-Camara. H., ‘2023 African Forum on Business and Human Rights: What do companies need to know?.’ Available at https://www.globalpolicywatch.com/2023/09/2023-african-forum-on-businessand-human-rights-what-do-companies-need-to-know/ (Accessed on 25/01/2024).

Flacks. M., & Norman. H., ‘What Does the ESG Backlash Mean for Human Rights?’ Available at https://www.csis.org/analysis/what-does-esg-backlash-mean-humanrights (Accessed on 24/01/2024).

Geneva Centre for Security Sector Governance., ‘Human Rights Due Diligence.’ Available at https://www.securityhumanrightshub.org/toolkit/factsheets/humanrights-due-diligence.html (Accessed on 25/01/2024).

Global Campus of Human Rights., ‘Rethinking Environmental, Social, and Governance (ESG) Investing for Successful Sustainability and Human Rights.’ Available at https://gchumanrights.org/gc-preparedness/preparednessdevelopment/article-detail/rethinking-environmental-social-and-governance-esginvesting-for-successful-sustainability-and-human-rights-5039.html (Accessed on 24/01/2024)

Henisz. W, Koller. T, & Nuttall. R., ‘Five Ways that ESG Creates Value.’ McKinsey Quarterly, 2019

International Labour Organization., ‘Business and the Labour Dimension of Human Rights Due Diligence.’ Available at https://www.ilo.org/empent/areas/businesshelpdesk/WCMS_867782/lang–en/index.htm (Accessed on 24/01/2024).

International Labour Organization., ‘Declaration on Fundamental Principles and Rights at Work.’ Available at https://www.ilo.org/wcmsp5/groups/public/— ed_norm/—declaration/documents/normative instrument/wcms_716594.pdf (Accessed on 24/01/2024).

Kemp. B et al., ‘The Rise of ESG Litigation and Horizontal Human Rights Enforcement.’ Available at https://www.lexology.com/library/detail.aspx?g=07a94453-f2aa-490a-a7e1- f6c25256cbf9 (Accessed on 25/01/2024).

Khobe. W., ‘The Horizontal Application of the Bill of the Rights and the Development of the Law to give Effect to Rights and Fundamental Freedoms’ (2014) 1, Journal of Law and Ethics.

Mathis. S., ‘Environmental, Social and Governance (ESG).’ Available at https://www.techtarget.com/whatis/definition/environmental-social-andgovernance-ESG (Accessed on 23/01/2024).

Matu. D., ‘Improving Access to Justice in Kenya through Horizontal Application of the Bill of Rights and Judicial Review’ Available at https://press.strathmore.edu/uploads/journals/strathmore-lawreview/SLR2/2SLR1_Article_4.pdf (Accessed on 24/01/2024).

Mikhaeel. M., ‘How Human Rights Due Diligence Affects the ‘E’ in ESG.’ Available at https://www.financierworldwide.com/how-human-rights-due-diligence-affectsthe-e-in-esg (Accessed on 25/01/2024).

Munoz. P., ‘Bridging the Human Rights Gap in ESG.’ Available at https://www.bsr.org/en/blog/bridging-the-human-rights-gap-in-esg (Accessed on 24/01/2024).

Nairobi Securities Exchange., ‘ESG Disclosures Guidance Manual.’ Available at https://www.nse.co.ke/wp-content/uploads/NSE-ESG-Disclosures-GuidanceManual.pdf (Accessed on 24/01/2024).

Office of the High Commissioner for Human Rights., ‘Corporate Human Rights Due Diligence – Identifying and Leveraging Emerging Practices.’ Available at https://www.ohchr.org/en/special-procedures/wg-business/corporate-humanrights-due-diligence-identifying-and-leveraging-emergingpractices#:~:text= The%20prevention%20of%20adverse%20impacts,people%2C%20n ot%20risks%20to%20business (Accessed on 25/01/2024).

Office of the High Commissioner for Human Rights., ‘Investors, ESG and Human Rights.’ Available at https://www.ohchr.org/en/calls-for-input/2023/investorsesg-and-human-rights (Accessed on 23/01/2024).

Office of the High Commissioner for Human Rights., ‘Investors, ESG and Human Rights.’ Op Cit 89 Ibid 90 Rydzak. J., ‘ESG Data Needs a Human Rights Upgrade.’ Available at https://rankingdigitalrights.org/mini-report/esg-data-needs-a-human-rightsupgrade/#:~:text=ESG%20scores%20ignore%20human%20rights ,strive%20for%20et hical%20supply%20chains (Accessed on 25/01/2024).

Office of the High Commissioner for Human Rights., ‘What are Human Rights.’ Available at https://www.ohchr.org/en/what-are-human-rights (Accessed on 24/01/2024).

Organization for Economic Cooperation and Development (OECD)., ‘Guidelines for Multinational Enterprises on Responsible Business Conduct’ Available at https://www.mofa.go.jp/mofaj/files/100514804.pdf (Accessed on 24/01/2024)

Peterdy. K., & Miller. N., ‘What is ESG?’ Available at https://corporatefinanceinstitute.com/resources/esg/esg-environmental-socialgovernance/ (Accessed on 23/01/2024).

Simmons & Simmons., ‘Human Rights Due Diligence as Part of ‘Social’ in ESG.’ Available at https://www.simmonssimmons.com/en/publications/ckkce2jhz1nwg09857iumkfpb/human-rights-duediligence-as-part-of-social-in-esg (Accessed on 24/01/2024).

Stuart. L.G et al., ‘Firms and Social Responsibility: A Review of ESG and CSR Research in Corporate Finance.’ Journal of Corporate Finance 66 (2021): 101889 10 Li. T., et al., ‘ESG: Research Progress and Future Prospects.’ Available at https://pdfs.semanticscholar.org/0dd4/941ebea33330210daff5f37a1c8cdd0547d7.pd f (Accessed on 23/01/2024).

The Danish Institute for Human Rights., ‘Integrated Review and Reporting on SDGs and Human Rights.’ Available at https://sdghelpdesk.unescap.org/sites/default/files/2019- 07/integrated_review.pdf (Accessed on 24/01/2024).

The East African Centre for Human Rights., ‘A compendium on economic and social rights cases under the Constitution of Kenya, 2010’ available at https://eachrights.or.ke/wpcontent/uploads/2020/07/A_Compendium_On_Economic_And_Social_Rights_Cas es_Under_The_Constitution_Of_Kenya_2010.pdf (Accessed on 24/01/2024).

The Hague Rules on Business and Human Rights Arbitration., Available at https://www.cilc.nl/cms/wp-content/uploads/2019/12/The-Hague-Rules-onBusiness-and-HumanRights-Arbitration_CILC-digital-version.pdf (Accessed on 24/01/2024).

UN Guiding Principles Reporting Framework., Available at https://www.ungpreporting.org/wpcontent/uploads/UNGPReportingFramework_2017.pdf (Accessed on 25/01/2024).

United Nations General Assembly., ‘Transforming Our World: the 2030 Agenda for Sustainable Development.’ 21 October 2015, A/RES/70/1., Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustainabl e%20Development%20web.pdf (Accessed on 24/01/2024).

United Nations Guiding Principles on Business and Human Rights., Available at https://www.ohchr.org/sites/default/files/documents/publications/guidingprinc iplesbusinesshr_en.p df (Accessed on 24/01/2024).

United Nations Guiding Principles on Business and Human Rights., Op Cit 123 European Union’s Corporate Sustainability Reporting Directive., Available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32022L2464 (Accessed on 25/01/2024).

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

United Nations., ‘Human Rights.’ Available at https://www.un.org/en/globalissues/humanrights#:~:text=International%20Human%20Rights%20Law&text=The%20United%20 Nations%20has%20defined,in%20carrying%20out%20their%20responsibilities. (Accessed on 24/01/2024)

United Nations., ‘International Covenant on Civil and Political Rights.’ Available at https://treaties.un.org/doc/treaties/1976/03/19760323%2006- 17%20am/ch_iv_04.pdf (Accessed on 24/01/2024).

United Nations., ‘International Covenant on Economic, Social and Cultural Rights.’ Available at https://treaties.un.org/doc/treaties/1976/01/19760103%2009- 57%20pm/ch_iv_03.pdf (Accessed on 24/01/2024).

Universal Declaration of Human Rights., Available at https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf (Accessed on 24/01/2024).

News & Analysis

Book Review: Climate Finance, Carbon Markets and Environmental Justice in Africa

Published

on

By Prof. Kariuki Muigua SC, OGW, PhD, FCS, FCIArb, Ch.Arb, Managing Partner Kariuki Muigua & Co. Advocates, Member Permanent Court of Arbitration (PCA) and Member Asian International Arbitration Centre Court of Arbitration

Introduction

Climate Finance, Carbon Markets and Environmental Justice in Africa (March 2026) by Hon. Prof. Kariuki Muigua is a timely and comprehensive work examining the intersection of climate finance, carbon markets, and environmental justice on the African continent. The book’s central thesis—that climate responses must be designed and implemented in a manner that safeguards rights, promotes fairness, and ensures benefits are equitably distributed—provides a sophisticated framework for understanding how financial flows, market-based mechanisms, and regulatory frameworks intersect with law, policy, and community realities across Africa. Situated within the broader discourse on climate justice, this volume interrogates both opportunities and emerging risks associated with climate action in a continent that contributes minimally to global emissions yet bears disproportionate climate impacts.

Overview

The volume comprises twelve chapters organized into four thematic parts. Part I establishes foundations for fair and equitable climate finance. Chapter One examines climate finance through an environmental justice lens, arguing that access to timely, adequate, and equitable climate finance is vital for the Global South. The chapter analyses how prevailing financing structures may reinforce dependency and inequality, with climate finance often delivered through loans on unfavourable terms that contribute to Africa’s growing debt crisis. Prof. Muigua argues that avoiding debt traps, narrative injustice, and recolonization of the Global South requires developed countries to fulfil their climate finance commitments and enhance the voice of developing countries in global decision-making processes.

Chapter Two rethinks climate finance in Africa within the continent’s debt and development realities. The chapter observes that despite Africa’s extreme vulnerability to climate change, the continent receives only around two percent of total global climate finance. Furthermore, climate finance is linked to the debt crisis, with debt constituting nearly forty percent of climate finance flows to African countries already experiencing debt distress. Prof. Muigua calls for overhauling the international climate finance system to make it fairer, including through enhanced access to grants and concessional finance, elimination of bureaucratic hurdles, and implementation of the Loss and Damage Fund.

Chapter Three examines climate finance and equitable benefit sharing with particular focus on indigenous and local communities. These communities are disproportionately impacted by climate change due to their dependence upon and close relationship with the environment, yet they are often sidelined in climate finance decision-making processes. Prof. Muigua argues that fully and effectively engaging indigenous peoples and local communities in the design, development, and implementation of climate finance activities is essential for upholding their rights, respecting their cultural needs, and addressing their unique vulnerabilities.

Chapter Four explores unlocking climate finance for sustainable development in Africa, examining structural and institutional pathways for mobilising finance. The chapter highlights the need for innovative financial tools including green bonds and debt-for-nature swaps, strengthening governance frameworks, and implementing global commitments including the Loss and Damage Fund and Kunming-Montreal Global Biodiversity Framework.

Part II addresses carbon markets, projects, and justice. Chapter Five examines carbon projects through the lens of justice and equity, focusing on access to information, Free, Prior and Informed Consent (FPIC), and equitable benefit sharing. The chapter argues that while carbon projects can strengthen climate action and provide co-benefits including job creation and ecosystem restoration, poorly designed projects can cause human rights violations and environmental damage. Ensuring good governance in carbon projects is imperative for fostering climate justice.

Chapter Six analyses participation and governance in carbon projects, exploring how environmental democracy—comprising access to information, public participation, and access to justice—can be integrated into carbon project governance. The chapter observes that carbon projects can undermine environmental democracy when investors fail to obtain FPIC, when transparency and accountability concerns arise, and when disputes over land rights emerge. Fostering environmental democracy requires enhanced access to information, meaningful public participation, access to justice through both litigation and Alternative Dispute Resolution, and equitable benefit sharing.

Chapter Seven develops a conceptual framework for carbon justice in Africa, examining principles of fairness, rights, and sustainability in carbon governance. The chapter identifies carbon injustices including transparency challenges, inequitable benefit sharing, and violation of indigenous land rights. Applying carbon justice tenets requires meaningful involvement of stakeholders, strengthening land tenure rights, ensuring transparency, fostering equitable benefit sharing, and ensuring access to justice.

Part III focuses on carbon disputes and enforcement. Chapter Eight introduces disputes arising in carbon markets, examining risks including greenwashing, information asymmetry, misleading conduct, insider trading, and price manipulation. The chapter analyses available dispute management mechanisms including arbitration, litigation, and conciliation, arguing that arbitration offers particular advantages including party autonomy, flexibility, expertise, transnational applicability, and enforceability of awards.

Chapter Nine examines dealing with carbon disputes for green growth and sustainability. The chapter argues that carbon disputes—whether arising from carbon accounting challenges, pricing fluctuations, or land disputes between investors and indigenous communities—can undermine the effective functioning of carbon markets. Managing carbon disputes through both litigation and ADR processes is essential for ensuring carbon markets contribute to green growth and sustainable development.

Chapter Ten focuses on arbitrating carbon disputes, examining arbitration’s role in managing disputes arising from carbon markets. The chapter argues that arbitration is a viable mechanism due to its ability to accommodate specialized expertise, ensure neutrality in cross-border disputes, maintain confidentiality for commercially sensitive information, and provide enforceability through the New York Convention. Addressing challenges including transparency concerns and costs requires building capacity and awareness among arbitration practitioners and adopting specialized rules tailored to carbon markets.

Part IV addresses decarbonization and future directions. Chapter Eleven examines policy pathways for achieving green growth and carbon neutrality in Africa, analysing sustainability strategies and their implications for development. The chapter argues that green growth—growth that is environmentally sustainable, low-carbon, and socially inclusive—and carbon neutrality—balancing carbon emissions with carbon removal—provide efficient pathways toward sustainable development. Achieving these goals requires considerable investment in renewable energy, low-emission transport, energy-efficient building, sustainable agriculture, and forest management.

Chapter Twelve examines decarbonizing energy for climate action and justice, evaluating how decarbonization pathways can support inclusive and sustainable development. The chapter argues that while energy is a vital resource enabling human progress, the energy sector is the dominant contributor to climate change, accounting for nearly two-thirds of global greenhouse gas emissions. Decarbonizing energy through shifting from fossil fuels to renewable sources including wind, solar, and geothermal, coupled with improving energy efficiency across all sectors, is fundamental for climate action and social justice.

Key Themes

Climate Justice and Environmental Justice. The book advances climate justice as a key ideal for upholding equity, fairness, inclusivity, and human rights in climate action. Prof. Muigua argues that climate change is a major cause of injustices and inequalities, with people and communities who have contributed the least being affected the most. Climate justice acknowledges that climate change effects are not evenly felt and focuses on protecting the most vulnerable including the poor, women and girls, youth, indigenous peoples, and local communities. Environmental justice encompasses the right to access natural resources, not to suffer disproportionately from environmental policies, and to have environmental information and participation in decision-making processes.

Fair and Equitable Climate Finance. The book critically examines the climate finance landscape, arguing that access to adequate and timely climate finance is a matter of justice for the Global South. Prof. Muigua demonstrates how current financing structures may reinforce dependency and inequality, with climate finance often delivered on unfavourable terms that contribute to debt crises. The principle of common but differentiated responsibility requires developed countries to provide financial resources to assist developing countries responding to climate change. Reforming the international financial system to make climate finance more affordable and adequate for developing countries is essential for environmental justice.

Carbon Markets and Environmental Democracy. The book explores how carbon markets can strengthen climate action while also raising critical concerns relating to environmental democracy. Prof. Muigua argues that carbon projects can undermine democracy when investors fail to obtain FPIC, when transparency and accountability concerns arise, and when disputes over land rights emerge. Fostering environmental democracy in carbon projects requires enhanced access to information, meaningful public participation, access to justice, and equitable benefit sharing. The three mutually reinforcing rights of environmental democracy—access to information, participation in decision-making, and access to justice—provide a framework for ensuring carbon projects serve people and planet.

Free, Prior and Informed Consent and Equitable Benefit Sharing. The book places FPIC and equitable benefit sharing at the centre of just carbon governance. FPIC is a fundamental right of self-determination ensuring participation by all people with particular focus on indigenous peoples and local communities in development projects. It allows communities to give or withhold consent to projects affecting their territories and to withdraw consent at any stage. Equitable benefit sharing ensures both monetary and non-monetary benefits from carbon projects are enjoyed by all stakeholders including indigenous peoples, landowners, and local communities who contribute significantly to project success.

Dispute Management in Carbon Markets. The book provides comprehensive analysis of disputes arising in carbon markets and mechanisms for their management. Prof. Muigua identifies causes including lack of clarity in carbon accounting, greenwashing claims, pricing fluctuations, and land disputes between investors and indigenous communities. Arbitration emerges as a preferred mechanism due to party autonomy, flexibility, expertise, neutrality, transnational applicability, and enforceability of awards. However, the book also recognises the importance of negotiation, mediation, and conciliation for preserving relationships and ensuring the long-term viability of carbon projects.

Conclusion

Climate Finance, Carbon Markets and Environmental Justice in Africa is a seminal work elevating discourse on climate action from African perspectives. Prof. Muigua demonstrates that confronting climate change requires not only technical solutions but also fundamental attention to justice, equity, and human rights. The book argues that climate finance must be restructured to avoid debt traps and recolonization, carbon markets must be governed through environmental democracy principles including FPIC and equitable benefit sharing, and disputes must be managed through effective mechanisms that preserve relationships and ensure accountability. This volume is essential reading for legal practitioners, policymakers, scholars, development practitioners, and all committed to advancing climate justice and sustainable development in Africa.

Continue Reading

News & Analysis

Book Review: Securing Our Destiny through Effective Management of the Environment

Published

on

By Prof. Kariuki Muigua SC, OGW, PhD, FCS, FCIArb, Ch.Arb, Managing Partner Kariuki Muigua & Co. Advocates, Member Permanent Court of Arbitration (PCA) and Member Asian International Arbitration Centre Court of Arbitration

Introduction

Securing Our Destiny through Effective Management of the Environment (Second Edition, 2026) by Hon. Prof. Kariuki Muigua is a comprehensive work examining the role of law, governance, and institutions in promoting sustainable environmental management in Kenya and Africa. The book’s central thesis—that effective environmental governance requires integrated approaches combining legal frameworks, participatory processes, indigenous knowledge systems, and accountability mechanisms—provides a sophisticated framework for addressing contemporary environmental challenges while advancing sustainable development.

Overview

The volume comprises fourteen chapters organized into four thematic parts. Part I establishes foundations of environmental governance and law, examining the role of law in environmental management, constitutional provisions on natural resources, corporate environmental responsibility, and environmental democracy. Prof. Muigua argues that law must strike a balance between anthropocentric and ecocentric approaches, serving not merely as a regulatory tool but as a means of achieving social justice. The analysis demonstrates how courts play a crucial role in safeguarding environmental rights through judicial activism, public interest litigation, and promoting sustainable development principles. The discussion of environmental democracy highlights three mutually reinforcing rights: access to information, public participation in decision-making, and access to justice in environmental matters.

Chapter Two explores effective environmental governance in Africa, arguing for incorporating dialogue, Ubuntu philosophy, and democracy into governance frameworks. Prof. Muigua observes that Africa’s environmental governance challenges—weak institutions, poor enforcement, inadequate investment, and exclusion of vulnerable groups—undermine sustainability. Ubuntu, as an African philosophy emphasising interconnectedness and communal responsibility, provides an Afrocentric approach requiring humans to use natural resources responsibly and non-exploitatively for the greater good of humanity. Dialogue fosters inclusive, participatory approaches essential for sound environmental governance.

Chapter Three examines implementing constitutional provisions on natural resources and environmental management in Kenya. The Constitution establishes state obligations including sustainable exploitation, utilisation, management and conservation of the environment, achieving ten percent forest cover, equitable benefit sharing, and establishing environmental impact assessment systems. Prof. Muigua identifies disconnects between constitutional promises and implementation, particularly regarding community participation, which remains largely top-down despite constitutional guarantees. Achieving sustainable and inclusive approaches requires empowering communities through information access, decentralised governance, and meaningful participation in decision-making.

Chapter Four analyses corporate environmental responsibility, examining legal frameworks holding corporations accountable for environmental harm. The Constitution and EMCA impose both civil and criminal liability on corporations and their officers for environmental breaches. Environmental management tools including Environmental Impact Assessment, Strategic Environmental Assessment, environmental audits, and public participation provide mechanisms for ensuring corporate compliance. The chapter examines the Natural Resources (Classes of Transaction Subject to Ratification by Parliament) Act 2016, which requires parliamentary ratification of natural resource exploitation agreements, promoting transparency and accountability.

Chapter Five addresses realising environmental democracy in Kenya, exploring how access to information, public participation, and access to justice can empower communities. Prof. Muigua examines practical mechanisms including demonstrations, picketing, petitions, media engagement, civil society activism, and proactive judicial roles in environmental justice.

Part II examines natural resource governance and sectoral environmental management. Chapter Six provides a comprehensive analysis of Kenya’s extractives industry regulatory framework, examining the Mining Act 2016, Petroleum Act 2019, and associated regulations. The chapter discusses the Extractive Industries Transparency Initiative and its potential to promote open and accountable management of oil, gas, and mineral resources, helping Kenya avoid the “resource curse” that has afflicted other resource-rich African nations.

Chapter Seven explores the blue economy, examining challenges and opportunities for harnessing Kenya’s marine and freshwater resources for sustainable development. Challenges include illegal fishing, piracy, maritime terrorism, illicit trade, environmental degradation, border disputes, and lack of capacity. Recommendations include entering mutually beneficial partnerships, curbing pollution, supporting communities to venture into seafood business, and adopting integrated approaches to coastal zone management.

Chapter Eight examines benefit sharing from natural resources exploitation, discussing legal frameworks including the Natural Resources (Benefit Sharing) Bill 2018, Mining Act 2016, and Petroleum Act 2019. Prof. Muigua draws lessons from Ghana’s mineral royalty distribution system and Nigeria’s resource curse experience, recommending foundations and trusts, enhanced local accountability, capacity building, access to environmental information, devolution, public participation, and addressing corruption.

Chapter Nine examines carbon projects and climate justice, arguing that while carbon projects can promote climate justice by strengthening climate action and protecting ecosystems, poorly implemented projects can cause human rights violations and environmental damage. Ensuring access to information, Free, Prior and Informed Consent (FPIC), and equitable benefit-sharing is essential for designing and implementing carbon projects sustainably.

Part III addresses integrated environmental management and accountability frameworks. Chapter Ten examines integrated approaches to environmental management, arguing for entrenching ecocentric approaches alongside anthropocentric perspectives. The chapter highlights the neglected link of safeguarding pollinators for sustainable development, discussing threats including habitat loss, pesticide use, and climate change, and recommending integrated pest management, environmental education, scientific research, and traditional knowledge integration.

Chapter Eleven examines strengthening environmental liability regimes in Kenya, discussing civil and criminal liability, environmental impact assessment, strategic environmental assessment, environmental audits, and sustainable development principles. Recommendations include encouraging proactive corporate compliance, cultivating environmental ethics through due diligence, and promoting environmental insurance.

Part IV explores indigenous knowledge, environmental justice, and peace building. Chapter Twelve examines mainstreaming traditional ecological knowledge in Kenya, arguing that indigenous knowledge systems offer valuable insights into sustainable resource stewardship. International and national legal frameworks recognise traditional knowledge, but implementation remains weak. Mainstreaming requires integrating indigenous knowledge with scientific approaches, ensuring meaningful community participation, and strengthening local democracy.

Chapter Thirteen examines the nexus between environmental governance and peace building, arguing that effective environmental management contributes to lasting peace by addressing resource scarcity, preventing conflicts over natural resources, and promoting equitable benefit sharing. SDG 16 recognises that sustainable development cannot be achieved without peace, and peace cannot be sustained without sustainable development. Recommendations include using alternative dispute resolution mechanisms, adopting inclusive and participatory approaches, and promoting education for sustainable livelihoods.

Key Themes

Integrated Environmental Governance. The book emphasises that effective environmental management requires integrated approaches combining legal frameworks, participatory processes, indigenous knowledge, and accountability mechanisms.

Environmental Democracy and Procedural Rights. Access to information, public participation, and access to justice are essential for empowering communities and ensuring environmental justice.

Corporate Environmental Responsibility. Corporations bear both civil and criminal liability for environmental harm, requiring proactive compliance, due diligence, and adherence to sustainable development principles.

Indigenous Knowledge Systems. Traditional ecological knowledge and African philosophies like Ubuntu provide valuable insights for sustainable environmental governance.

Environmental Justice and Peace Building. Effective environmental management contributes to peace by addressing resource conflicts, ensuring equitable benefit sharing, and protecting vulnerable communities.

Conclusion

Securing Our Destiny through Effective Management of the Environment is a seminal work that elevates discourse on environmental governance from Kenyan and African perspectives while engaging seriously with international frameworks. Prof. Muigua demonstrates that securing our environmental destiny requires integrated approaches balancing environmental, social and economic interests through effective legal frameworks, participatory processes, indigenous knowledge systems, and accountability mechanisms. This volume is essential reading for legal practitioners, policymakers, scholars, and all committed to advancing environmental governance and sustainable development in Kenya and beyond.

Continue Reading

News & Analysis

Book Review: Resolving Conflicts Through Mediation in Kenya: Law and Practice (Third Edition)

Published

on

By Prof. Kariuki Muigua SC, OGW, PhD, FCS, FCIArb, Ch.Arb, Managing Partner Kariuki Muigua & Co. Advocates, Member Permanent Court of Arbitration (PCA) and Member Asian International Arbitration Centre Court of Arbitration

Introduction

The third edition of Prof. Kariuki Muigua’s comprehensive work arrives at a pivotal moment in Kenya’s justice sector evolution. Since the second edition in 2017, court-annexed mediation has expanded beyond Nairobi to stations nationwide, constitutional recognition under Article 159 has gained deeper traction, and questions about balancing institutionalisation with accessibility have gained urgency. Prof. Muigua, recipient of multiple awards including ADR Practitioner of the Year (2021) and Lifetime Achievement from CIArb-Kenya, brings decades of practice as mediator, arbitrator and scholar to this updated edition, which incorporates new discussions on access to justice, family mediation, professional ethics, and alternative justice systems.

Structure and Scope

The sixteen chapters are organised into four thematic parts. Part I (Chapters 1-4) establishes conceptual foundations. Chapter One introduces mediation’s attributes—voluntariness, party autonomy, confidentiality, flexibility, informality, cost-effectiveness—distinguishing mediation in the political process (leading to resolution) from mediation in the legal process (leading only to settlement). The survey of other ADR mechanisms provides essential context. Chapter Two examines traditional conflict resolution mechanisms among African societies, documenting principles of common humanity (Ubuntu/Utu), reciprocity and respect, and institutions including the family, clan, council of elders, age-set systems, and mechanisms such as kinship ties, joking relations, consensus approaches, and the role of elders. The chapter argues that realising access to justice requires enhanced application of traditional forms, which remain part of Kenyan society and hence their constitutionalisation.

Chapter Three examines mediation’s attributes in depth, providing a comparative table demonstrating that political process mediation has fifteen positive attributes while legal process mediation has only five, explaining why the former leads to enduring outcomes addressing root causes while the latter produces only superficial settlements. Chapter Four distinguishes conflicts (non-negotiable needs and values) from disputes (negotiable interests), arguing conflicts require resolution through non-coercive mechanisms like mediation while disputes can be settled through coercive mechanisms like litigation.

Part II (Chapters 5-9) examines practical dynamics. Chapter Five explores mediation as “assisted negotiation” where a mediator with no decision-making authority facilitates communication. Chapter Six analyses settlement (power-based, temporal, addressing only surface issues) versus resolution (addressing root causes, producing enduring outcomes). Chapter Seven examines the three-phase mediation process: pre-negotiation, negotiation (active listening, reframing, caucusing), and post-negotiation implementation. Chapter Eight examines the mediation paradigm—parties, constituents, third parties, and societal factors. Chapter Nine examines psychological issues, arguing all disputes involve injury to feelings and mediators must address emotional needs through empathy and creative problem-solving.

Part III (Chapters 10-11) examines legal frameworks. Chapter Ten traces mediation’s evolution from the 2009 amendments through the Constitution to court-annexed mediation, providing detailed analysis of the pilot project’s statistics (421 referrals, 61 settlements, 28.5% settlement rate, 66 days average duration) and external evaluation recommendations. The chapter critiques court-annexed mediation as potentially sacrificing core attributes—voluntariness, informality, party autonomy—at the altar of legalism. Chapter Eleven examines mediation and access to justice, analysing environmental conflicts (involving actors, resources and stakes) and family mediation, noting that while the Marriage Act 2014 contemplates reconciliation, there are no clear guidelines for divorce, custody, or property division mediation.

Part IV (Chapters 12-16) examines contemporary developments. Chapter Twelve examines entrenching family mediation, arguing it empowers parties to negotiate mutually agreed decisions, reduces post-divorce conflict, and promotes children’s best interests. It examines standards of practice, power imbalances, and cross-disciplinary training. Chapter Thirteen examines mediation and alternative justice systems, analysing their efficacy (rooted in culture, accessible, affordable, focused on reconciliation) and challenges (patriarchal values, procedural fairness concerns). It examines the Alternative Justice Systems Framework Policy’s interventions for mainstreaming AJS while addressing human rights concerns.

Chapter Fourteen provides comprehensive analysis of ethics: impartiality, independence, competence, confidentiality, disclosure of conflicts, quality of process, costs and fees, and termination. It examines professional standards from UNCITRAL, Singapore Convention, ICC, CIArb, NCIA, and Kigali International Arbitration Centre, identifying ethical dilemmas and proposing enhanced training and institutional enforcement. Chapter Fifteen reflects on mediation’s future, examining opportunities in access to justice, environmental democracy, and sustainable development. Recommendations include facilitative frameworks bridging traditional and formal mechanisms, embedding mediation in devolved administration, multi-door courtrooms, mediator training, codes of conduct, institutionalising women’s role, and appropriate accreditation committee composition. Chapter Sixteen concludes that mediation’s future success depends on maintaining balance between institutionalisation and accessibility while preserving core attributes.

Critical Assessment

Strengths. The book’s comprehensive scope is its greatest strength. Sixteen chapters trace mediation from foundations through practice to contemporary developments, integrating traditional mechanisms, legal frameworks, psychological dimensions, ethics, and future trajectories. This breadth, combined with depth drawing on Kenyan case law, statutory provisions, institutional rules, comparative experience, and empirical research, makes the volume indispensable.

The integration of traditional conflict resolution mechanisms is particularly valuable. Rather than treating mediation as imported Western innovation, Prof. Muigua grounds analysis in Kenya’s traditions of community-based resolution, documenting institutions and mechanisms that provide essential foundation for understanding mediation’s cultural resonance and constitutional recognition under Article 159.

The analysis of court-annexed mediation is both thorough and critical, documenting pilot project implementation and evaluation while questioning whether institutionalisation preserves mediation’s core attributes. The consistent distinction between political process mediation (leading to resolution) and legal process mediation (leading only to settlement) provides a framework for evaluating institutionalisation efforts.

The treatment of psychological issues adds distinctive depth, examining how mediators must address emotional needs through empathy and creative problem-solving. The ethics chapter provides comprehensive guidance on fundamental responsibilities and professional standards, identifying dilemmas and proposing practical responses.

Limitations. The collection format has produced repetition of foundational concepts across chapters. While thorough, some topics might benefit from deeper empirical engagement with comparative data. The length may challenge readers seeking concise introduction.

Contribution to Scholarship and Practice

The book provides comprehensive documentation of Kenyan mediation law and practice, invaluable for practitioners and scholars. It advances understanding of mediation’s constitutional foundations under Article 159, examining how constitutional imperatives shape mediation’s role. It offers sophisticated analysis of traditional conflict resolution mechanisms, arguing mediation in Africa is not imported innovation but continuation of longstanding cultural traditions. It provides practical guidance for practitioners while maintaining scholarly rigour. It contributes to policy development by analysing court-annexed mediation implementation and proposing reforms. It advances understanding of emerging areas—family mediation, AJS, ethics—reshaping Kenyan practice.

Conclusion

Prof. Muigua’s Resolving Conflicts Through Mediation in Kenya (Third Edition) is a monumental contribution to mediation scholarship and practice. Its central thesis—that mediation’s strength lies in transforming conflict into dialogue, and its future depends on balancing institutionalisation with accessibility while preserving core attributes—is timely and persuasive. For practitioners, scholars, policymakers and students, this book is essential reading, ensuring Prof. Muigua’s authoritative work remains at the forefront of mediation scholarship, responsive to emerging developments while grounded in enduring principles and Kenya’s rich traditions of community-based conflict resolution.

Continue Reading

Trending