Enviromental Law Part 1

Internal Teaching Use Only

Internal Teaching Use Only

Table of Contents

________________________________________________________________________

Foreword ........................................................................................................... iii

Dedication ........................................................................................................... vi

Preface.................................................................................................................... ix

Acknowledgements .............................................................................................. 7

Abbreviations and Acronyms.............................................................................. .8

Author Biographies .............................................................................................. ..11

Introduction ......................................................................................................... ...16

PART I: GENERAL AND FRAMEWORK PERSPECTIVES

1. Concept, Function and Structure of Environmental Law

Charles O. Okidi..21

2. Economic Issues for Environmental and Resource Management in Kenya

Wilfred Nyangena .................................................................................................. 85

3. The Continuing Role of Common Law in Sustainable Development

Albert Mumma...116

4. The Use of Criminal Law in Enforcing Environmental Law

Patricia Kameri-Mbote......................................................................................... 139

5. Background to Kenya's Framework Environmental Law

Charles O. Okidi................................................................................................... 156

6. An Overview of the Environmental Management and Co-ordination Act

Anne N. Angwenyi............................................................................................... 173

7. Institutional Arrangements for Environmental Management in Kenya

Benson Owuor Ochieng'....................................................................................... 217

8. Synchronising Physical Planning Law with the Framework Environmental Law

Rosemary Wachira ............................................................................................... 244

PART II: SECTORAL AND FUNCTIONAL ENVIRONMENTAL LAW

9. Managing the Agrarian Sector for Environmental Sustainability

H. W. O Okoth-Ogendo ....................................................................................... 256

10. Forestry Law and the Environment in Kenya

Francis D.P. Situma .: ........................................................................................... 270

11. Land Tenure and Sustainable Environmental Management in Kenya

Patricia Kameri-Mbote......................................................................................... 297

12. Aligning Sectoral Wildlife Law to the Framework Environmental Law

Patricia Kameri-Mbote ......................................................................................... 321

13. Governing Water and Sanitation in Kenya

MigaiAkech.......................................................................................................... 349

14. Wise Use and Sustainable Management of Wetlands in Kenya

Collins Odote ....................................................................................................... 384

15. Mineral Resources and the Mining Industry in Kenya

Robert Kibugi....................................................................................................... 407

16. Synchronising Kenya's Energy Law with the Framework Environmental Law

Kithure kindiki.426

17. Access to Genetic Resources and Benefit-Sharing in Kenya

Patricia Kameri-Mbote ..448

18. Kenya's National Biosafety Framework

Patricia Kameri-Mbote.474

19. Legal Aspects of Management of Coastal and Marine Environment in Kenya

Charles O. Okidi...504

Internal Teaching Use Only 2

PART III: INTERNATIONAL ASPECTS

20. Environmental Law of East Africa

Robert A. Wabunoha.554


Preface

Kenya, like most Sub-Saharan African countries and other regions of the world, is confronted by a myriad of environmental problems - more significant in a country whose economy is driven largely by primary production factors. The publication of "Environmental Governance in Kenya: Implementing the Framework Law" could not have come at a better time. The book offers fresh insights and convergence of thought on pertinent issues and for the first time avails a coherent and holistic analysis of the environmental situation in the country. The rigor with which the authors have delved into the legal framework underpinning key drivers of environment and natural resource sectors and attendant institutional impediments must be applauded. Since the enactment of EMCA in 1999 and subsequent commencement in 2000, some progress has been made in bringing the law "to life" but much more needs to be done if the full benefits envisaged especially in the coordination aspects are to be realised in terms of environmental protection and sustainable use of the country's natural resources. Although Kenya has been an active participant in informing and influencing the international environment discourse over the past four decades, the full benefits of this engagement remain rather sketchy at the national level partly because of the multifaceted and diverse nature of international processes but also because of the still-shaping national environment agenda and concurrently evolving governance structures and to this extent, our engagement in international processes has remained largely "of diplomacy value" and much less a trigger of national consciousness on environmental concerns. This publication gives us a comprehensive overview and historical perspective on international environment governance and a baseline for domestication and mainstreaming of the various Environment Conventions and Protocols. More importantly the book outlines key principles of sustainable development - notably the principle of sustainable utilisation of natural resources and inter-generational equity, integration of environmental exigencies into development planning and management and public participation in environmental matters among others.

Building on the subject of sustainable development, the text weaves a steam of thoughts on issues that are at the core of Kenya's development and environmental protection imperatives: namely the complex nexus of agrarian production system and requisite reforms to re-engineer drivers and functions of the rural economy that have direct and pervasive impacts on environment and natural resource capital. The question of land ownership - which to a large extent drives and informs the mosaic of rural landscape production systems and legal tools and instruments that can be used to maximise land use potentials - is well articulated and identified as a critical ingredient in sustainable environmental management.

For in the end, sustainable development is a twin objective of economic growth and improvement of rural livelihoods on one hand and achieving sound environmental management/protection on the other. The single most appealing attribute of this book is the ability of the authors to pull together in a single volume, critical issues that underlie the national development process, build cross-sectoral linkages and embed the environment agenda in a holistic policy legal, socio-economic and ecological context - and synthesis done supremely well. The message of the authors comes out clearly that until we remove the legal and therefore institutional overlaps or divergences, and align sectoral laws to the

Framework Law real benefits of EMCA will remain elusive. The specific issues

in this regard are outlined and actions required identified. As the Ministry

responsible for environment under whose purview the National Environment and

Management Authority (NEMA) and other EMCA institutions Public

Complaints Committee (PC), the National Environment Trust Fund (NETFUND)

and National Environment Tribunal (NET) discharge their mandates, we are

shaping and streamlining the Ministry strategies to synergise the framework

(EMCA) law in four fundamental ways:

1. Review of the policy instruments with a view to formulating a responsive

and overarching National Environment Policy as a bedrock of the

framework law and push for focused integration of sectoral natural resource

policies to minimize overlaps and anchor an institutional framework within

which future policy and legal reforms in environment/natural resource

sectors seek convergence and consistency with the framework law;

2. Use provisions of EMCA to develop practical tools for enabling and ecuring

environmental governance primarily targeting grassroots level interventions

to halt pervasive environmental degradation, and engender empowering


processes of public participation in environmental management - by seeking

to demonstrate how good environmental governance ("best practices"), is

key to sustainable livelihoods;

3. Mount an aggressive environmental mainstreaming campaign across critical

sectors of the economy and production sectors - to push sectoral issues

(agriculture, livestock and fisheries, water, mineral resources, forestry,

wildlife and tourism, energy and infra-structure) and industry from the

policy /legal domains to the practical domains of ground implementation.

This may be a more realistic path if making progress in terms of at least

creating and capitalizing on institutional synergies arising from diverse

mandates, and the wealth of ideas in Environmental Governance in Kenya:

Implementing the Framework Law, are of considerable value in this process;

and

4. Re-engineering of policy and institutional leadership within the Ministry of

Environment and Mineral Resources through establishment of a lean and

efficient Environment Directorate to provide an oversight to implementing

agencies and routine policy advice to the Minister and hence leverage a

more effective national environment agenda within which the broad

mandates of EMCA as a framework law are dispensed and international

environment discourse anchored.

Overall, this book is a commendable work of scholarship - rigorous in

treatment without being overly academic. It is a great reference and illuminating

material for field managers, and an insightful treatise for students of

environmental science and natural resource management; well thought out

synthesis of issues at the core of sustainable management of environment and

natural resources in Kenya and an extremely valuable tool for policy makers. The

book represents a paradigm shift, are-thinking of the way in which we view the

environment and natural resources; and courageously point to the path of

sustainability and putting the challenge to the policy makers and political

leadership. I firmly believe the book has succeeded in pushing the frontiers of

national dialogue in environmental governance to new levels. I am honoured to

be invited and to associate myself with this fresh perspective on Kenya's

environment and natural resource capital - and most professionally edifying to


add my voice by endorsing Environmental Governance in Kenya: Implementing

the Framework Law!

Prof James Legilisho Ole Kiyiapi

Permanent Secretary

Ministry of Environment and Mineral Resources


Acknowledgements

The completion of this book has benefited from the inputs and co-operation of

several individuals and institutions. While it is not possible to list all of them here,

we would like to particularly acknowledge a few key ones:

The Institute for Law and Environmental Governance (ILEG) provided

administrative and co-ordinating role for the project. They also managed the grant,

which made the research and publication of this book possible. We especially

acknowledge the role and contribution of Collins Odote, who led the ILEG team that

included Robert Kibugi, Pauline Makutsa, Velma Mashedi and Christabel Nyamwaya.

We also acknowledge the support of the Institute for Development Studies at the

University of Nairobi, where CASELAP is currently hosted, for its role in supporting the

publication of this book. Judith Ndirangu of the Institute gave very useful administrative

and typing support at critical times during the process of preparing the manuscript.

The Department for International Development (DfID) of the United Kingdom deserves

special acknowledgement for providing the financial resources that have made this

publication possible.

This work involved many authors. They all showed dedication and professionalism

in preparing their write-ups and in dealing with the comments from the editors and other

stakeholders. We thank all of them. Our appreciation too goes to the editors for their

technical guidance and meticulous efforts in ensuring that the final papers were of high

quality.

We also thank all those who attended the peer review workshop at Lukenya Gateway

Resort and those who gave their comments to earlier drafts of the chapters: Donald

Kaniaru, John Nyaoro, John Ngiri, Frederick Nyang, Nyokabi Gitahi, Samuel Muriithi,

Bernard Kaaria, Ali Mohamed, Odhiambo Makoloo, Nancy Karigithu and Owiti

K'Akumu. Their incisive comments and experience in the environmental field greatly

enriched the chapters and ensured that this book has relevance for practitioners, policy

makers and scholars.

CO. Okidi

P. Kameri-Mbote

Migai Akech

August 2008


Abbreviations and Acronyms

ACTS African Centre for Technology Studies

AIA Advance Information Agreement

BMU Beach Management Unit

BOD Biological Oxygen Demand

CASELAP Centre for Advanced Studies in Environmental Law and Policy

CBD Convention on Biological Diversity

CCOL Coordinating Committee of the Ozone Layer

CEL Commission on Environmental Law

CGIAR Consultative Group on International Agricultural Research

CPRs Communal Property Resources

CSD Commission on Sustainable Development

DC District Commissioner

DDC District Development Committee

DEO District Environment Officer

DoJ Department of Justice

DRSRS Department of Resource Survey and Remote Sensing

EARP Environmental Assessment and Review Process

EEZ Exclusive Economic Zone

EIA Environmental Impact Assessment

EIS Environmental Impact Statement

EMCA Environmental Management and Co-ordination Act

EPA Environment Protection Agency

ERA Environmental Risk Assessment

ERB Electricity Regulatory Board

ERC Energy Regulatory Commission

FAO Food Agricultural Organisation

FD Forest Department

GDP Gross Domestic Product

GPA Global Programme of Action

GPS Global Positioning System

IARC International Agricultural Research Centre

ICBP International Council for Bird Preservation

ICEL International Council of Environmental Law

ICJ International Commission of Jurists


ICRAF International Centre for Agro-Forestry

IDS Institute for Development Studies

ILEG Institute for Law and Environmental Governance

ILRI International Livestock Research Institute

IMCE Inter-Ministerial Committee on Environment

IMCO Inter-governmental Maritime Consultation Organisation (IMCO)

IPP Intellectual Property Protection

IPPs Independent Power Producers

IPRs Intellectual Property Rights

ITPGRFA International Treaty on Plant Genetic Resources for Food

Agriculture

ITQ Individually Transferable Quotas

IUCN International Union of Conservation of Nature

KARI Kenya Agricultural Research Institute

KEFRI Kenya Forestry Research Institute

KEMFRI Kenya Marine Fisheries Research Institute

KEMRI Kenya Medical Research Institute

KENGO Kenya Energy and Environment Organisation

KEPHIS Kenya Plant Health Inspectorate Service

KETRI Kenya Typanosomiasis Research Institute

KFS Kenya Forest Service

KIPI Kenya Industrial Property Institute

KMA Kenya Association of Manufacturers

KNPO Kenya National Parks Organisation

KPLC Kenya Power and Lighting Company

KWS Kenya Wildlife Service

LMOs Living Modified Organisms

LNCs Local Native Councils

LVFO Lake Victoria Fisheries Organisation

MTA Material Transfer Agreements

NADIMA National Disaster Management

NCCK National Council of Churches of Kenya

NCST National Council for Science and Technology

NEAP National Environmental Action Plan

NEEMA National Environment Enhancement and Management

NEPA National Environmental Policy Act

NES National Environment Secretariat


NET National Environmental Tribunal

NWCPC National Water Conservation and Pipeline Corporation

PBRs Plant Breeders' Rights

PCC Public Complaints Committee

PEEC Project External Evaluation Committee

PGRs Plant Genetic Resources

PPCSCA Permanent Presidential Commission on Soil Conservation and

Afforestation

PSC Petroleum Sharing Contract

PVPO Plant Variety Protection Office

RBDAs River Basin Development Authorities

TRIPS Trade Related Intellectual Properties

UNCED United Nations Conference on Environment and Development

UNCHE United Nations Conference on the Human Environment

UNEP United Nations Environmental Programme

UNFAO United Nations Food Agricultural Organisation

UNFCC United Nations Framework Convention on Climate Change

UPOV International Convention for the Protection of New Varieties of

Plants

WAB Water Apportionment Board

WMO World Meteorological Organisation


Author Biographies

1. Albert Mumma is an Associate Professor at the University of Nairobi and

an Advocate of the High Court of Kenya. He was formerly a member of the

National Environment Tribunal. He also practices law in Nairobi. He holds an

LL.B. LL.M and Ph.D.

Email address: [email protected]

2. Anne N. Angwenyi is an advocate of the High Court of Kenya. As a legal

practitioner, she also serves as the Head of Legal Services Department with the

National Environment Management Authority - Kenya. She holds a Bachelor of

Laws (LL.B - University of Nairobi), a Master of Studies in Environmental Laws

(MSEL - Vermont Law School), a Masters in Law and Diplomacy (MALDFletcher

School of Law and Diplomacy), in addition to being a Chevening Fellow

in Governance and Environmental Democracy. Ms. Angwenyi continues to write

and present various papers in the field of environmental law and governance both

at national and international fora.


3. Benson Owuor Ochieng is an advocate of the High Court of Kenya, and a

researcher with particular interest on legal, policy and institutional mechanisms for

managing the environment and sustainable development. He holds a Bachelor of

Laws (LLB) and Master of Laws (LLM) degrees from the University of Nairobi.

He is a legal practitioner and also serves as a director at the Institute for Law and

Environmental Governance (ILEG). Email address: [email protected]

4. Charles O. Okidi is a Professor of Environmental Law, Director of Centre for

Advanced Studies in Environmental Law and Policy (CASELAP) and Research

Professor at the Institute for Development Studies, University of Nairobi. He is

formerly a Senior Legal Officer and Task Manager of Project on Environmental

Law and Institutions in Africa (PADELIA) at United Nations Environmental

Programme (UNEP). He was Dean of the School of Environmental Studies and

Professor of Environmental Law at Moi University. He is a Foundation Member

of Governing Council of IUCN Academy of Environmental Law and Fellow of the

African Academy of Sciences and Kenya National Academy of Sciences.

Prof. Okidi is a graduate of Alaska Methodist University (1970) and received


his Ph.D in public international law and environmental law from The Fletcher

School of Law and Diplomacy at Tufts University in USA. (1975).

He has published and lectured widely on International and Comparative

Environmental Law; Law of the Sea; International Water Law; and Capacity

building and served as a consultant on these subjects to national, regional and

global institutions. Email: [email protected]

5. Collins Odote is an advocate of the High Court of Kenya. He received his LL.B

and LLM from the University of Nairobi and is currently pursuing PHD studies in

environmental Law at the same University. He is a director of the Institute for Law

and Environmental Governance (ILEG), a Nairobi based NGO and coordinated the

access to Justice Project under which this book was published.

Collins' research interests are in the areas of regional development,

governance, international humanitarian law, property theory, sustainable

development and management of natural resources. Email: [email protected],

[email protected]

6. Francis D.R Situma is an advocate of the High Court of Kenya, and an

academic with research and teaching interests in Environmental Law, Public

International Law, Law of the Sea, and legal Aspects of Conflict Resolution

and Crisis Management. He holds a Bachelor of Laws (LL.B) and Master of

Laws (LL.M) degree from the University of Nairobi, and a Master of Arts in

Law and Diplomacy (MALD) and a Doctor of Philosophy (Ph.D) degree from

the Fletcher School of Law and Diplomacy, Tufts University, USA.

Email: [email protected]

7. H.W.O. Okoth-Ogendo is a Professor of Public Law, University of Nairobi,

Fellow of the Kenya National Academy of Sciences and a Fellow of the World

Academy of Art and Science. He is also aMember of the International Association

of Constitutional Law and the IUCN Commission on Environmental Law. He

was recognised as having contributed through his writings to the award of the

2007 Nobel Peace Prize to the Intergovernmental Panel on Climate Change

(IPCC). He has researched and taught property law, natural resources law,

agrarian law, constitutional systems and related subjects for over 30 years at

the University of Nairobi. He has also taught at the Boston School of law, New

York University, University of Florida and also given lectures on these areas in

many Universities in Africa, Europe and the United States. He has published

over 100 manuscripts and papers in international journals, textbooks and


periodicals. He has steered or participated in many national commissions and

task forces on constitutional, land and legal reform, the AU and UN agencies

and been a consultant to many governments in East, Central and Southern

Africa on land and agrarian issues. Email: [email protected]

8. Kithure Kindiki is currently the Secretary for National Cohesion in the

Ministry of Justice and Constitutional Affairs. He has served as Associate Dean

and Senior Lecturer of Law at the School of Law, University of Nairobi. His

areas of specialization in teaching, research and consultancy include public

international law, international environmental law, human rights, governance

and international peace and security law. He holds a Bachelor of Laws (LL.

B), Master of Laws (LL.M) and Ph.D degrees and is an advocate of the High

Court of Kenya. Email: [email protected], [email protected]

9. Migai Akech is a Senior Lecturer at the School of Law, University of Nairobi and

an advocate of the High Court of Kenya. He has published widely on public

procurement, healthcare, policing, privatisation, judicial review, biotechnology,

international trade and development, and the protection of customary land rights.

His research interests are administrative law, public law and privatisation, the

political economy of regulation, property theory, and trade and development. -


10. Patricia Kameri-Mbote is an Associate Professor of Law at the Department of

Private Law, School of Law, University of Nairobi. She studied law in Nairobi,

Warwick, Zimbabwe and Stanford. She is also an advocate of the High Court

of Kenya; Member of the Kenya National Academy of Sciences; and Chair of the

Seeds and Plant Varieties Tribunal. She has published widely in the areas

of international law, environmental law, women's rights and property rights. Her

major publications include: Globalisation and Environmental Challenges:

Reconceptualising Security in the 21st Century (Hans Girnter Brauch, John Grin,

Czeslaw Mesjasz, Navnita Chadha Behera, Bechir Chourou, Ursula Oswald

Spring, P. H. Liotta, Patricia Kameri-Mbote (Eds.) (Berlin - Heidelberg New

York - Hong Kong - London - Milan - Paris -Tokyo: Springer-Verlag, 2007); Land

Use for Sustainable Development (N. Chalifour, P. Kameri-Mbote, L.LHye

& J. Nolon (Eds.) (Cambridge University Press, New York (2007) and Property

Rights and Biodiversity Management in Kenya, ACTS Press, Nairobi (2002).

Email address: [email protected]; Website: www.ielrc.org

11. Robert Alex Wabunoha holds an LLM from Makerere University, Kampala,


specialising in Environmental Law, and is an Advocate of the Courts of

Judicature of Uganda. He worked as a Principal State Attorney in the

Ministry of Justice, Uganda and until 2004, was the Senior Legal Counsel

in the National Environment Management Authority (NEMA) of Uganda.

He is currently legal officer at UNEP, Nairobi. He is well versed in regional

harmonisation of environmental laws and policies in East Africa, having made

his contributions in a tripartite capacity as a Resource Person, Consultant and

Government Legal Expert. In this regard, he was involved in the development

and harmonisation of environmental laws in East Africa, preparation of the

Treaty for the East African Community, drafting of Protocols on Environment

and Natural Resources and Lake Victoria, among other instruments. He

extensively consulted under the auspices of UNEP, UNDP, FAO, IUCN, DFID

and Governments of Uganda and Kenya, among others.


12. Robert Kibugi is a lawyer, an advocate of the High Court of Kenya and a

researcher in environmental law focusing on legal and policy governance

mechanisms of various land uses to induct rationality and sustainability. He

holds a Bachelor of Laws (LL.B) and a Master of Laws (LL.M) degree from the

University of Nairobi. He is a Tutorial Fellow at the School of Law, University

of Nairobi (currently on study leave) and a Doctor of Laws (LL.D) candidate

at the Faculty of Law, University of Ottawa, Canada. E-mail Address:

[email protected]

13. Rosemary Wachira is an urban and regional planner who has worked as

a professional and public manager for thirty three years in the field of land

use planning and land policy. She was the director of physical planning

Department in the Kenya government and coordinator of the formulation of

the national land policy. Currently she has retired from civil service and works as a

consultant in areas of sustainable development, land use planning and land policy.

She holds a masters degree in Urban and Regional Planning from the University of

Nairobi Email address: rwangariw@yahoo. com

14. Wilfred Nyangena is a lecturer at the School of Economics, University of

Nairobi. He holds a Ph.D in Environmental and Resource Economics from

Gothenburg University, Sweden. He also serves as the co-ordinator of the

Environment for Development (EfD-Kenya) housed within Kenya Institute for

Public Policy Research and Analysis (KIPPRA). The EfD/KIPPRA initiative


aims to improve the welfare of poor people in Kenya, through the application of

Environmental Economic tools in policy making.



Introduction

This book analyses and appraises environmental law in Kenya with a view to

harmonising existing sectoral statutes with the framework law. The ultimate

objective is to support internal harmonisation of the corpus of environmental law

in Kenya. The enactment of a framework environmental law in Tanzania in 2004

introduces an attractive challenge for students of environmental law to embark on

an appraisal and harmonisation of that law with the counterparts in Uganda (1995)

and Kenya (1999). Such a project has merits. On the other hand, the students should

be aware of the necessity to also establish the two-way appraisal, which eventually

culminates in amendments of the sectoral statues and the framework law to remove

the inconsistencies anticipated in Section 148 of Kenya's Environmental Management

and Co-ordination Act, 1999. The farthest outside national statutes that it intends

to go is seeking harmony between the national statute and environmental treaties

of the East African Community. Analysis of the different national statutes is done

with a view to bringing them in conformity with the regional treaty and protocols

made thereunder. This is because a treaty, properly entered into, is a higher legal

order than national laws.

The decade of 1970 susheredinanewepochintheglobalsearchforacomprehensive and

effective body of national environmental law. There emerged a system of

framework environmental law as statutes providing for minimum requirements

for environmental planning and management, including precautionary measure,

and sanctions and procedures for enforcement. In addition, the framework laws, at

best, provided for overarching institutional machineries with their procedures for

co-ordination of implementation of national environmental law and for intervention

with sectoral agencies, where necessary, for comprehensive enforcement.

By the end of 1980s, nearly ten African countries had adopted framework

environmental laws at different levels of sophistication. In some instances, such as

Tanzania, the statute in 1983 fell so far short of framework law that fresh efforts had

to be mounted, culminating in the enactment in 2004. Kenya's false start in 1982 led

to a draft bill rejected by Cabinet. Kenya is now in the league of about 42 African

countries that have enacted framework environmental law once the Environment

Management and Co-ordination Act (EMCA) was adopted in December 1999,

receiving Presidential Assent on 6 January 2000 and the date of commencement

as 14 January 2000. From that date, it is expected that all sectoral laws must be


reviewed or amended to ensure that they are consistent with the requirements of

the EMCA. Section 148 of EMCA states as follows:

Any written law, in force immediately before the coming in to force of this Act,

relating to the management of the environment shall have effect subject to

modification as may be necessary to give effect to this Act, and where the

provisions of any such law conflict with any provisions of this Act the provisions

of this Act shall prevail.

This is a feature expected in all framework environmental laws. The consequence

is that sectoral statutes are to be amended, revised or reformed where it is not sufficient

to simply "read" or construe such laws to deliberately avoid that inconsistency. Probably

no African country has done this better than Uganda. After enactment of the framework

statute in 1995, Uganda made some deliberate efforts in that direction and adopted, inter

alia, the Water Act of 1995, Wildlife Act of 1996, Forests Act of 2001, Mining Act of

2003, National Forestry and Planting Act of 1996 as variously emended, Local

Government Act of 2003, and several implementing regulations. We believe that there

are other Ugandan statutes under that category. Both Kenya and Tanzania need to move

in this direction and at a much faster rate if they are to effectively implement their

obligations under the Treaty for the Establishment of East African Community of 1999,

especially the whole of Chapter 19; the Protocol on Sustainable Development of Lake

Victoria Basin, 2003; and the draft Protocol on Environment and Natural Resources,

which may be decided upon later this year. Such revisions or amendments are also

imperative for efficacious implementation of national environmental law.

This book provides a critical analysis and appraisal of sectoral laws from three

specific perspectives. First and foremost, it seeks to identify any inconsistencies of such

statutes with EMCA. The net outcome will be recommendations for amendments or

actual reform of the sectoral law. Secondly, each sectoral study appraises the

institutional provisions and practice to ascertain their suitability for efficacious

implementation of the statute itself and vis a vis EMCA and its machinery. The third

perspective is that the analysis and appraisal take the national environmental policy into

account. This rubric is the direct link of environmental law with governance.

There is an urgent need for Kenya to review and revise sectoral laws to remove any

inconsistencies with the framework law. This may be a huge task for the relevant

government agency, namely the National Environment Management Authority (NEMA),

which eventually submits draft revisions to the Attorney-General. The task is

particularly huge because identifying provisions that need amendment and for the many

sectoral statutes is a monumental task.

This book takes on the critical task of careful analysis and appraisal. Given the


urgent need for this publication, it has been prepared through team-work rather

than by one author. Its objectives may be summarised as follows:

(a) Presenting the current status of Kenya's environmental law.

(b) Availing to Kenyan law-makers reasoned recommendations for harmonising

the framework environmental law with the sectoral statutes and for removing

inconsistencies.

(c) Facilitating the speedy revision of the statutes and, thus, improve harmonious

implementation of environmental law in Kenya.

(d) Availing an up to date scholarly text on environmental law for teaching and

research at all levels.

(e) Showing the relation between Kenya's framework environmental law and

environmental laws of East Africa.

The whole study is in three principal parts. The first one is the general

perspectives setting out the context and harmonising the objectives and vocabulary.

The topics include the general concept, function and structure of environment law;

identification of key environmental problems in Kenya; the role of common law in

sustainable environmental management; and the use of criminal law in enforcing

environmental law. Others include the background to Kenya's framework

environmental law; institutional arrangements for environmental management in

Kenya; and the role of physical planning in implementing EMCA. These papers

present the context within which chapters in Part II are analyzed.

Part II focuses on analysis and appraisal of select sectoral laws, identifying

areas that require amendment and/or revision with a view to harmonising or

approximating them with the framework law or EMCA. The sectoral laws covered

include: agrarian; wildlife; land; wetlands; water; minerals; forests; biodiversity

and coastal and marine environmental law. While we are aware, for instance, that

the Forests Act 2005 and the Water Act 2002 made attempts to include provisions

consistent with EMCA and that the Physical Planning Act has provisions on

environmental impact assessment, we consider this comprehensive review as

imperative for overall harmonisation.

Part III on international aspects attempts to analyze the environmental law of

East Africa to examine the sub-regional treaties, particularly the Treaty for the

Establishment of East African Community; Protocol on the Customs Union; Protocol

on Sustainable Development of Lake Victoria Basin; Convention on Lake Victoria

Fisheries Organisation; and the Protocol on Environment and Natural Resources.


Other instruments may be identified and be examined in relation to EMCA. The

primary focus is on environmental treaty law of East African Community, but

consideration has been given to case law in the region.


Part I

GENERAL AND FRAMEWORK PERSPECTIVES


Chapter 1

Concept, Function and Structure of

Environmental Law

CHARLES O. OKIDI

Introduction

This chapter presents a broad brush description of the concept and function of environmental

law. The purpose is to provide working definitions of environment, its tools of management

and the structure of associated juridical arrangements, which sets the stage for discussion of

specific themes in national environmental law. The chapter provides a basis for positioning the

other chapters in this volume. Section 2 provides the concept of environment and the key

management concepts that, of necessity, suggest the meaning of environmental law. It is from

the premise set out in these definitions that we should eventually find the function of

environmental law. Section 3 provides the functions of environmental law while Section 4

dwells on the background to environmental law and points out that modern environmental

statutes are built on foundations of common law and civil law doctrines. The Section

is very limited in scope, performing the function of positioning the common law doctrines

and, thus, setting out the framework for subsequent papers. Section 5 provides a brief outline

of the evolution of environmental statutes. Today, the principal structure of statute law on

environmental law comprises the framework environmental law, sectoral statutes and

implementing regulations. Initially, the main body of statutes were sectoral laws with

implementing regulations, all based on pursuit of either preservation or productivity and

governed by command and control legal regimes. This Section briefly describes that

evolutionary process to the advent of framework environmental law encompassing regimes of

planning, management, fiscal incentives and penal sanctions. A few countries that have

enacted framework laws are identified.

At the national level, the next category of classification of environmental norms is

constitutional entrenchment. Just like not every country has adopted framework environmental

law, it is similarly true that not all countries have entrenched environmental provisions found

in national constitutions. Kenya has not. Section 6 will, nevertheless, set out different forms of

environmental provisions found in national constitutions. It is anticipated that some of the

chapters in this volume will discuss, to different degrees, the national constitutional provisions

on their respective themes. Similarly, this book should offer examples and experiences that


Kenya can turn to as it moves to a new constitutional dispensation.

There is a broad interface between national laws and the treaty regime, comprising general

principles of environmental law. The sources are diverse, some of them having evolved or

ensured legitimacy from solemn declarations in international fora such as the United Nations

fora. Many of them have assumed persuasive legal force at national and international levels. In

several cases, the principles have been incorporated into national statutes or environmental

jurisprudence. This chapter will discuss the principles in Section 7, thus allowing subsequent

authors to show where the principles have found expression either in national statutes or in

treaty law.

Section 8 will then provide a broad outline of treaty law on environment as a prominent

component of the structure of environmental law, allowing different chapters to expound on

where they relate to Kenyan laws and practice. Thus, Chapter 20 of this book on the

Environmental Law of East Africa will discuss in detail what will be outlined in the present

chapter. Section 9 will offer some broad conclusions to the chapter.

Concept of Environment Management and the Law

While explaining the concept, function and structure of environmental law, it is essential that a

working definition be provided for the term environment. Similarly, we provide working

definitions of key concepts in environmental management, such as preservation and

conservation and how these relate to sustainable development. It will be shown finally that the

fundamental function of environmental legislation is to ensure that utilisation or management

of the environment ensures inter-generational equity; that the present generation does not

jeopardise the interest of future generations.

Thinking of a definition of "environment" easily reminds one of the old tale about an

elephant and seven blind men. Each of the men characterised an elephant according to which

part of the elephant's body one touched and each was unable to perceive the whole animal they

were unable to see. So in the case of environment, each discipline tends to characterise it

according to the subject they are familiar with. Those from public health field conceive of

environment largely in terms of pollution and environmental health. Those from agriculturerelated

fields conceive of environment from the angle of land use, perhaps to include forestry.

On the other hand, ecologists will invariably think of environment in terms of flora and fauna

to the extent that some forget the land on which these grow.

It is just possible that the authors of the other chapters in this volume may carry diverse

interpretations of the word environment. It is known, for instance, that Section 2 of the

Environmental Management and Co-ordination Act (EMCA) 1999 construes environment to

include "...the physical factors of the surrounding of human beings including land, water,


atmosphere, climate, sound, odour, taste, the biological factors of animals and plants and the

social factors of aesthetics and includes both the natural and the built environment."

The first problem with this definition is that it is anthropocentric. Does environment not

exist at the two poles where there are no human beings? Or how far does the surrounding of

human beings extend? The second problem is that it attempts enumeration of what are

encompassed under the term "environment", without purporting to be exhaustive.

In that effort, the definition becomes a bit convoluted even though one is eventually able to

grasp the scope of the definition. As is always the case in a legal text, the authors here tried

rather desperately to be inclusive and exhaustive and that has its problem of lack of elegance

and clarity, even though that is not fatal to the attempted communication. The message here is

that there could be other definitions that may be both clearer, and that may not contradict the

spirit of EMCA definition.

For instance, in 1991 the Joint Working Group convened by the Commission on

Environmental Law (CEL) of the World Conservation Union (IUCN) and International

Council of Environmental Law (ICEL), in their Draft International Covenant on Environment

and Development1 defined "environment" to mean "the totality of nature and natural resources,

including the cultural heritage and infrastructure essential for socio-economic activities." This

definition infers that environment is the total context within which all the components of

nature exist and interact. It includes all that EMCA definition provides for but perhaps in a

more inclusive and concise way.

It is, therefore, sufficient to understand that the different thematic areas identified for the

chapters in this volume are simply components of the environment. Preservation, as a

management tool, is defined by the Joint Working Group as the regulatory or management

measures taken to ensure that selected natural resources or infrastructure, such as unique

biological formations, fragile ecosystems, endangered or threatened species, representative or

unique natural or cultural sites are set aside, restrictively utilised or left alone so as to maintain

their characteristics in a manner unaffected by human activities to the fullest extent possible.

Preservation also applies to maintenance of quality of natural resources such as air, water,

animal health or biological diversity.

Conservation, on the other hand, is defined by the Joint Working Group as the use of

renewable resources sustainably and to avoid waste of non-renewable resources. In other

words, conservation as a mode of management refers to components of the environment such

as fisheries, forestry and land which are renewable and should be used in such a way as to

protect the threshold of sustainability. Biologists and resource economists operationalised the

1 The full text of the 1991 revised draft of the Covenant is reproduced by Adede [1993:290-315]. Note that subsequent

versions of the draft Covenant, up to the Third Edition entitled Draft International Covenant on Environment and

Development published by IUCN Environmental Law Centre in 2004 omitted the Article on "Use of Terms'/,

under which the definitions were given. If the definitions had been replaced by new ones then, of course, their


idea of conservation by coining the principle of maximum or optimum sustainable yield to

determine the point which is not to be exceeded by utilisation.

For non-renewable resources such as minerals, petroleum and oil, the meaning of

conservation is to Utilise the resources as to avoid waste and thus protect the interests of future

generations to every extent possible. In other words, even diamonds might not be forever, if

users are wasteful.

Thus, conservation provides the conceptual foundation for sustainable utilization of the

environment and its components so as to ensure sustainable development. That is to say, if we

are to find a fundamental justification for environmental law, it is to ensure that the

development interests of the present generation are realized without jeopardising those of

future generations. Promotion of inter-generational equity is, therefore, fundamental to

environmental law.

The concept of sustainable development is as old as history itself, as was lucidly explained

by Judge Weeramantry in his separate opinion in the ICJ Case Concerning Gabcikovo-

Nagymaros Project (Hungary v Slovakia) 1997. However, in modern times, the concept of

sustainable development acquired popularity since the Report of the World Commission on

Environment and Development (popularly known as the Brundtland Commission).2 In this

report, sustainable development is defined as development that satisfies the needs and interests

of the present generation without jeopardising the interests of future generations to enjoy the

same.

Since the Brundtland Report, the concept found a central position in the United Nations

Conference on Environment and Development, held at Rio de Janeiro in June 1992. The 27

soft law principles, known as the Rio Declaration on Environment and Development, adopted

at the end of the conference are in different forms dominated by the theme of sustainable

development.

Let us recall further that parallel to the discussions and report on Our Common Future,

environment law assumed a particular prominence for the Brundtland Commission with an

Expert Group on Environment Law. They issued a companion report entitled Environmental

Protection and Sustainable Development: Legal Principles and Recommendations3 Article 3

in the recommendations of the report dealt with conservation and sustainable development.

Environmental Law and its Function

1 usefulness would have been doubtful.

2 Officially known as "The Report of the World Commission on Environment and Development (WCED)", Our Common Future

[1987].

3 Martinus Nijhoff/Kluwer [1986].


What, then, is environmental law? Simply stated, environmental law comprises rules and

doctrines arising from common law; provisions from constitutions; statutes; general principles

(otherwise called soft law); and treaties that deal with protection, management and utilisation

of natural resources and the environment as defined above.

The function of environmental law follows partly from the discussion of the management

tools and partly from its definition. In protection and management of the environment,

environmental law primarily prescribes the threshold of sustainability of the environment and

natural resources. Thus, environmental law is the tool by which Our Common Future is to be

realised. In this sense, the core function of environmental law is to ensure intra- and intergenerational

equity.4

Background to Environmental Law

The subject of this section, namely background to environmental law in form of common law

or civil law, is included here for completeness in presentation of the structure of environmental

law. It is to state that the history of what may be called environmental law in Kenya was

dominated by common law jurisprudence. Common law arises from the English tradition,

which lays supremacy on case law or decided cases, especially from superior courts, which

provide precedence over succeeding cases by virtue of the doctrine of stare decisis. Action

may be brought in the form of judicial review, which is action in public law designed to

challenge the legal validity of the decisions or actions of public bodies when they result

in injuries. Judicial review may be used to: (a) quash a decision (certiorari); (b) stop an

unlawful action (prohibition); (c) require performance of statutory duty (mandamus); (d)

declare the legal position of a litigant (declarations); (e) provide monetary compensation; or

(f) declare status quo. Common law also provides for causes of action in private law, which

include trespass, nuisance, negligence and the rule in Rylands v. Fletcher or strict liability.

Civil law system is at best grounded in codes and statutes and the judiciary is largely

required to apply the provisions of written law. It does not recognize any absolute authority in

judicial precedents even though it places considerable weight on writings of jurists. Case law

or jurisprudence is taken into account for its persuasive value but not as binding precedents. In

other words, decided cases are not irrelevant to the corpus of environmental cases, which is not

comparable to that in common law systems.

Evolution of the Legal Regime of Statutes in Environmental Law

4 As will be clear from literature already cited above, there is mounting jurisprudence on sustainability and sustainable

development. The details are, however, beyond the scope of this Chapter. See also the seminal work by Brown-Weiss & Preston

[2006:109-210].


Early adjustments, which led to adoption of a modern environmental statute in 1969 in the

United States has been recounted in Chapter 5 of this book. Although the National

Environment Policy Act (NEPA) of 1969 was not to be a framework environmental law, as

such, its main features of Environment Impact Statement (EIS) and the juridical arrangement

which is action-enforcing and binding on all departments of the government captured

imagination of those who were concerned with environmental governance globally.

In addition to the American efforts at enacting comprehensive environmental legislation

and policy, there were several countries that developed basic or framework environmental

laws. Brazil represents one of the earliest such efforts, even prior to that of the United States.

On 26 September 1967, the Brazilian Legislaco Federal enacted a law5 establishing the

National Policy and creating the National Council for the Protection of the Environment. The

Act established the National Policy and created the National Council for the Protection of

Environment. In the substantive provisions, the Act set out the composition, duties and

competencies of the Council. Further, it established the policy to be applied for the

improvement of certain sectors, such as re-using of water discharge, control of environmental

pollution, and soil erosion.

Iceland enacted the Nature Conservation Act6 in 1971, the key aim being the protection of

nature as a whole and in such a way that land, sea, freshwater and air are not wasted or

polluted. Further, this statute was intended to protect and manage the exceptional and historical

aspects of Iceland's nature, while enhancing the nation's access to and familiarity with the

environment.

Canada's initial environmental legislation was the Environmental Assessment and Review

Process (EARP) created by a Cabinet directive in December 1973 and which operated through

administrative policy and procedure rather than through federal legislation. It required federal

departments and agencies to take environmental matters into account and to undertake an

assessment of potential environmental impacts as part of decision making on matters affecting

the environment. The operation of EARP was the function of Canada's Federal Environmental

Assessment and Review Office working though its Environmental Assessment Panels and its

Screening and Co-ordinating Committees.7 The Canadian Environmental Assessment Act,

introduced in 1995 to replace the EARP, represents the current legal framework for the federal

government to take account of the environmental consequences of projects for which the

federal government holds authority over decision-making.8

5 Act No. 5.318 of 1967. Available at (Accessed on 27 December 2006).

6 Act No. 47 of 1971 (16 April 1971), available at (Accessed on 27 December

2006).

7 Leiss [1979: 238-239].

8 See Environmental Impact Assessment Centre, Transboundary Impacts and Environmental Impact

Assessment: Experience from Canada (University of Manchester) Available at


The Islamic Republic of Iran enacted the Environmental Protection Law in 1974,9 which

specifies the rules and measures for the protection and management of the environment. The

primary objective of this law is the protection and improvement of the environment, to be coordinated

by the Department of Environment, High Council for Environmental Protection and

local authorities. In the same year, Malaysia enacted the Environmental Quality Act10 for the

prevention, control of pollution and enhancement of the environment and related purposes.

This trend of enactment of framework environmental laws continued with Hungary enacting,

in 1976, its Act II of 1976 on the Protection of the Human Environment. This law declared its

principal purpose as the establishment of principal rules in connection with the protection,

preservation and planned development of the human environment for the purpose of protection

of people's health and the regular improvement of living conditions.11

The People's Republic of China enacted a framework law in 1979, the Environmental

Protection Law, whose primary function was to ensure the rational use of natural environment,

prevention and elimination of environmental pollution and damage to ecosystems, in order to

create a clean and favourable living and working environment, protect the health of the people

and promote economic development during the construction of a modernized Socialist State.12

Austria enacted the Federal Law on the Protection of the Environment in 1985, which

established the Federal Office of the Environment in Vienna with the responsibility of

monitoring changes in the environment, controlling harmful substances to the environment,

training experts and gathering and disseminating relevant information.13

In Africa, the trend caught on with Libya (1982), Algeria (1983), Senegal (1983) and

Tanzania (1983). The important point is that these statutes were of different degrees jf

sophistication. For instance, Tanzanian National Environmental Management Act (Act No. 19)

of 1983 had, as its main features, requirement for environmental impact assessment enforced

by a National Environment Management Council, under a Director-General. There were no

other structures except for financial arrangements. Tanzania finally enacted a comprehensive

framework environmental law in 2004. Other African countries that have recently enacted

(Accessed on 6 January 2006).

9 Official Gazette No. 8592, 6 April 1974, available at (Accessed on 27 December

2006).

10 Act No. 127, available at (Accessed on 27 December 2006).

11 Available at (Accessed on 27 December 2006).

12 Adopted at the 11"' Meeting of the Standing Committee of the Fifth National People's Congress on 13

September 1979.

13 Ibid, Bundegesetzblatt fur die Republik Osterreich, Text No. 127, 29 March 1985 at 1087-1105.

Available at (Accessed on 27 December 2006).


framework environmental laws are Swaziland (2002), Burundi (2003) and Rwanda (2005).

The Libyan Arab Jamahiriya represents one of the earliest efforts at enacting a framework

environmental law. In 1982, the country enacted the Law on the Protection of the

Environment,14 which provided for the protection of the air, seas and marine resources, water

resources, foods and foodstuffs, soils and plant, control of vehicular emissions, pollution

caused by ships, waste disposal, etc.

In 1988, the Federal Republic of Nigeria enacted the Federal Environmental Agency

Decree 1988, which established a Federal Environmental Protection Agency as well as State

and Local Government environmental protection bodies. The law, promulgated by the Federal

Military Government as a decree, set out national environmental standards ranging from water,

effluent, air quality, ne protection, noise control and hazardous wastes.15 South Africa enacted

the Environment Conservation Act No. 73 of 1989 to provide for the effective protection and

controlled utilisation of the environment. It established a council for the environment,

committee for environmental management and a board of investigators. The law sets out a

national policy for environmental conservation, while making provisions for the protection of

the natural environment, control of environmental pollution, and of activities that may harm

the environment, and sets out environmental offences and penalties.16

In 1990, the parliament of Zambia enacted the Environmental Protection and Pollution

Control Act to provide for the protection of the environment, and control of pollution. The Act

also established a National Environmental Council while making provision for the

management of water quality, air quality, wastes disposal, pesticides and toxic substances,

noise, and natural resources.17 In 1994, ihe Ghanaian parliament enacted the Environmental

Protection Agency Act, which established an Environmental Protection Agency to replace the

then Environmental Protection Council, which operated previously as an administrative

agency. This law also set out mechanisms for enforcement and control, including

environmental impact assessment, service of enforcement notices as well as use of

environmental inspectors.18

Kenya, Tanzania and Uganda followed fairly similar paths in evolving their framework law.

The three countries were guided by the principle of public participation in development of

environmental law, which was enunciated and accepted through different Principles and

Agenda 21 of the United Nations Conference on Environment and Development held at Rio de

14 Law No. 7 of.1982, available at (Accessed on 27 December 2006).

15 Reprinted in United Nations Environment Programme (UNEP) [1996: 408].

16 Ibid at 306.

17 Ibid at 380.

18 Ibid at 156.


Janeiro in 1992. Uganda, as the fore-runner, actually used the public forum of National

Environment Action Plan (NEAP). Eventually, the National Environmental Statute was enacted

in 1995 as a framework environmental law. It sets out the principles of environmental

management, and the right to a decent environment. The law also established the National

Environmental Management Authority as the principal agency in Uganda for the management

of the environment. The law, among other aspects, regulates environmental planning and

makes provision for a mandatory environmental impact assessment for scheduled projects. It

also requires existing sectoral environmental legislation to be harmonised with its provisions.19

Kenya, following a similar path, also developed and popularised general principles and

framework through NEAP. But then, several other consultative fora were used. Chapter 5 of

this book will provide a useful insight into the fora, parliamentary debate and discussions

leading to the adoption of this law. In December 1999, Parliament enacted the Environmental

Management and Co-ordination Act as a framework law. It sets out the fundamental right of

every person living in Kenya to a clean and healthy environment and confers broad locus

standi to any such person alleging contravention of environmental standards to apply to the

High Court for enforcement of this right. The Act establishes the National Environment

Management Authority as the principal government agency on environmental matters. It makes

provision for a mandatory environmental impact assessment for scheduled projects, national

environmental planning, environmental monitoring and audit, protection and conservation of

the environment as well as environmental quality standards.20

Tanzanian framework law came up much later after NEAP. In 2004, the Environmental

Management Act was enacted. Like the Kenyan law, it also sets out the fundamental right of

every person living in Tanzania to a clean environment and confers locus standi to bring an

action before a court of law to enforce this right. Further, the law sets out the institutional

arrangements, which include the nature and functions of a National Environmental Advisory

Committee, National Environmental Management Council, Minister for Environment,

Director of Environment, sector ministries as well as regional government authorities. The

scope of the Act is broad, covering aspects ranging from environmental planning,

environmental management, environmental impact and other assessments, pollution and

prevention control, waste management and environmental quality standards.21

It is important to note that the Tanzanian process benefited from the broadly-based

consultations under UNEP's Project on Environmental Law and Institutions in Africa, which

19 Ibid at 342.

20 Reprinted in United Nations Environment Programme (UNEP) [2004: 27].

21 Available at www.ecole.org (Accessed on 27 December 2006).


sought to develop and harmonise environmental laws of the countries. It will be recalled that

the intensive process of harmonisation of certain sectoral statutes led to adoption of the

Memorandum of Understanding adopted by the three countries in October 1998, and which is

discussed in Chapter 20 herein. There are several common features in the framework

environmental laws of the three East African countries. Some of the implementing regulations,

particularly the environmental impact assessment and environmental audit locus standi in the

case of Kenya and Tanzania, and National Environment Management Authorities in the case

of Uganda and Kenya have certain common features. However, sectoral laws will still be

different. Only Uganda has made some attempts to harmonise sectoral laws with the

framework laws. The other two have not and this is a massive task pending for Kenya and

Tanzania. In the case of Kenya, this book provides guidelines for such an exercise.

What this section demonstrates are, first, that Kenya is not alone in adopting framework

environmental law. Secondly, the framework environmental laws, though not identical, have

several common features. Thirdly, environmental statutes constitute a large part of the

structure of environmental law.

Constitutional Entrenchment of Environmental Law

It is universally recognised that the constitution of any country is the supreme law of the land.

Often times, it makes provisions for fundamental human rights and duties in a country, which

include equality and freedom from discrimination, protection of personal liberty, freedom of

conscience, association, expression, movement, religion, assembly, and the right to life. Some

constitutions, such as that of Uganda, classify the right to a clean environment among 'the

fundamental and other human rights and freedoms'.22 As Brandl and Bungert23 [1992:14] have

observed, constitutional provisions promote a model character for the citizenry to follow and

they influence and guide public discourse, action and behaviour. Constitutional provisions

supersede all related specific statutory laws. Legislatures are prohibited from passing any laws

that are in conflict with constitutional provisions. Similarly, government agencies may not

enforce any regulations that are contrary to the national constitutional provisions. Every such

laws or regulatory actions are inherently ultra vires and, therefore, null and void.

The significance of entrenchment of environmental provisions in the constitutions is

captured in the following paragraph by Brandl and Bungert24 [1992: 4]:

Constitutional implementation enables environmental protection to achieve the highest rank

22 Environmental provisions in Uganda Constitution are discussed later herein.

23 Brandl & Bungert "Coonstitutional Entrenchment of Environmental Protection: A Comparative Analysis of

Experiences Abroad" Harvard Environmental Law Review Vol. 16 No. 1 [1992:1-100].

24 Brandl & Hungert p.4


among legal norms, a level at which a given value trumps every statute, administrative rule or

court decisions. For instance, environmental protection might be considered a fundamental right

retained by the individual and thus might enjoy the protected status accorded to other

fundamental rights. In addition, addressing environmental concerns at the constitutional level

means that environmental protection need not depend on narrow majorities in the

legislativebodies. Rather, environmental protection is more firmly rooted in the legal order

because constitutional provisions ordinarily may be altered only pursuant to elaborate

procedures by a special majority, if at all.

Whether environmental protection falls within the rubric of what are called fundamental

rights is an important matter. Fundamental rights or Bills of Rights are a common feature of

the constitutions of western and non-western countries. In the Constitution of the United

States, these are expressed in the First Amendment as freedom of speech, the press, assembly,

expression and religion and are considered sacrosanct. In Kenya, Chapter V of the Constitution

expresses these as the right to life, personal liberty, protection from deprivation of property,

freedom of conscience, expression, assembly, association and movement.

It is arguable, however, that the right to a sound and healthy environment underlies that

right to life itself. Clearly, this is of a higher degree as fundamental right than most of those

enumerated above. Good health, which depends on a sound environment, precedes the freedom

of expression, press, assembly, religion, liberty, etc because such rights are only exercisable by

one who is alive and in good health. Such views were aptly and more emphatically expressed

by the Supreme Court of the Republic of Philippines in the celebrated case of Oposa v

Factoran in 1993. After examining the question of standing for children all over the

Philippines seeking to compel the Government to cancel timber licences because continued

clearance of forests jeopardised the health of the children and generations yet unborn, the

Supreme Court opined that the right to a balanced and healthful ecology did not have to be

listed in the Bill of Rights to assume the status of fundamental rights.

The Court observed:

Such a right belongs to a different category of rights altogether for it concerns nothing less

than self-preservation and self-perpetuation... aptly stressed by the petitioners... the

advancement of which may even be said to predate all governments and constitutions. As a

matter of fact, these basic rights need not even be written in the Constitution for they are

assumed to exist from the inception of humankind. If they are now explicitly mentioned in the

fundamental character, it is because of a well-founded fear ofits framers that unless the rights to

a balanced and healthful ecology and health are mandated as State policies by the Constitution

itself thereby highlighting their continuing importance and imposing upon the State a solemn


obligation to preserve the first and protect and advance the second, the day would not be far

when all else would be lost not only for the present generation, but also for those to comegenerations

which stand to inherit nothing but perched earth incapable of sustaining life.25

Thus, the view of the court is that the necessity to entrench environment in the constitutions

is compelling and should in fact, be deemed obvious.

Whether a plea based on the natural legal assumption of right to a healthy environment

would succeed is, of course, not certain and is beyond the scope of this discourse. What seems

clear, though, is that advocates of environmental protection have invariably sought to rely on

the force of the constitution for the protection of the environment. For instance, in the United

States, where the federal constitution makes no provision at all for a safe and healthy

environment, advocates of environmental protection have, though unsuccessfully, sought

remedies in other clauses such as equal protection and due process of the law.26 It was during

the same period, 1972-73, that the Sierra Club, a prominent environmental NGO in the United

States, took the initiative to protect the Mineral King Valley from degradation through the

construction of a ski resort. In that case, the Sierra Club sought a judicial review suing only as

a membership corporation with special interest in the conservation and sound maintenance of

the national parks, game refuges and forests of the country. The United States Supreme Court

rejected their plea on the grounds that they failed to show sufficient interest to support the

Club's locus standi.27

As a consequence of such fruitless efforts, constitutional and environmental advocates have

proposed an amendment to the US Constitution to provide that: 'The right of the people to a

clean and healthful environment shall not be abridged'.28 This is to confirm that even though

the character of environment and the necessity for its protection may morally supersede all

other rights, the highest place for it is to have a legal effect in the constitution.

Once the decision is taken to entrench the environment in the constitution, the provision

should be explicit in its characterisation. Reliance on interpretations has, as noted above, often

proved unsuccessful in the United States. It would have been expected that because

environmental consciousness reached apogee in the US in 1960s, every judicial avenue would

be open to promote the protection of the public against environmental injuries. But that was,

certainly, not the case.

That experience cautions countries that may only have residual provisions from reliance on

the same. In Kenya, for instance, there are two provisions, which are incidental to the

25 Oposa v Factoran GR No. 101083,224 SCRA 793 [1993:14 -15].

26 See comments in Brandl & Bungert [1992: 5].

27 See discussions on the so-called Mineral King Decision, Sierra Club v Morton 405 US 7 27,92, in Bonine & McGarity

[1984: 858-861]. The decision provoked strong reactions from advocates of environmental protection through

courts. See for instance, the incisive commentary by Sax [1973].

28 Brandl & Bungert [1992: 5].


constitutional protection against deprivation of property in Section 75 and another under the

protection against arbitrary search in Section 76. While under section 75, the Constitution

prohibits confiscation of private property by the government, such taking of property is

permitted if it is deemed necessary for, inter alia, public health, town and country planning or

development or utilisation of property so as to promote public benefit. Similarly, property may

be compulsorily acquired by the government if it is in a dangerous state or is injurious to

human beings, animals or plants. Both provisions are of environmental significance but

are restrictive in their scope and, as residual constitutional provisions, do not offer sufficient

environmental protection.

Within a two year period after the 1993 Oposa case, Philippines moved from the general

constitutional provisions to one requiring a clean and healthy ecology. The Constitution

adopted on 15 October 1986 was focused largely on State rights over and control of land and

its resources, reservation of protected areas, agrarian reform and the protection of indigenous

cultural communities. A change was introduced to Article II of the Philippine Constitution in

1987, thus:

The State shall protect the right to health of the people and instill health consciousness among them'

and 'The State shall promote and advance the right of the people to a balanced and healthful

ecology in accordance with the rhythm and the harmony of nature.29

Entrenchment of provisions therein supersedes all statutes and principles constituting law in

the country. The constitution, therefore, expresses the highest order of national aspirations and

values.

Forms of Constitutional Provisions

Entrenchment of environmental provisions may be in the form of actionable obligations or in

the form of declaration of national policy, subject to further legislative enactment. In its

constitutional dispensation, Kenya can choose whatever formulation they prefer.

Fundamental rights vs public policy

It is conceivable to have several forms of environmental provisions in constitutions, depending

on the national preference. For purposes of this chapter, it is sufficient to extrapolate.only two

generic categories adopted by Brandl and Bungert [1962]. They identified the two as

provisions expressing fundamental rights and those denoting statements of public policy. In

this discussion, we shall add provisions relating to federal and provincial arrangements.

29 Sections 15 & 16. See also Oposa v Factoran, supra note 26 at 5.


Constitutional provisions on fundamental rights are characterised by their stipulation of

individuals' subjective or personal rights, which are enforceable through court action. Two

distinct examples are the proposals that have been placed before the US Congress, which

state:30

The right of the people to a clean air, pure water, freedom from excessive unnecessary

noise and natural, scenic and aesthetic qualities of their environment shall not be

abridged'; and 'Every person has inalienable right to a decent environment. The

United States and every state shall guarantee this right.

On the other hand, provisions expressing statements of policy are objective, requiring

attention of the government, through the legislative or the executive, to pay attention to a

principle. Such provisions are not, on their own, to be invoked or enforced through the

judiciary. In some cases, the statement of policy may urge the legislature to adopt an

implementing statute. For instance, Section 1 of the Constitution of the Federal Republic of

Austria reads as follows:

(1) The Republic of Austria (Bund, Lander and Gemeinden) subscribes to universal

protection of the environment

(2) Universal environment protection means the preservation of the natural environment,

being the basis of human existence, from harmful influences. Universal environmental

protection, in particular, consists of measures to keep clean air, water and soil as well

as avoidance of nuisance caused by noise

The Constitution of India (as amended in 1987) carries Part 4, which reads:31

The provisions contained in this part shall not be enforceable by any court, but the

principles therein laid down are nevertheless fundamental in the governance of the

country and shall be the duty of the State to apply these principles in making laws.

The part proceeded to make provisions for protection and improvement of the environment

and safeguarding of forests and wildlife.

There is an identical provision under article 27 of the Constitution of the Democratic

Socialists Republic of Sri Lanka adopted in 1972, with amendments in 1984.32

Broadly speaking, there are scanty examples of constitutional provisions that are purely

focused on fundamental rights or statements of public policy. There are frequent instances of a

30 Supra note 23.

31 Article 37. See constitutional provisions on environmental rights and duties prepared for the United Nations

University Project on International Law, Common Patrimony and Intergenerational Equity, September 1988

appearing as Appendix B to Brown-Weiss [1989: 306],

32 Brown-Weiss, ibid, at 314-315.


continuum where there is a mixture of both provisions even though there may be more than the

other. The 1976 Constitution of Portugal, as revised in 1982, contains both. Its article 66

provides as follows:

1. Everyone shall have the right to a healthy and ecological balanced human environment

and the duty to defend it.

2. It shall be the duty of the State, acting through appropriate bodies and have recourse to

popular initiative to:

(a) Prevent and control pollution and its effects and harmful forms of erosion;

(b) Have regard in regional planning to the creation of balanced biological areas;

(c) Create and develop natural reserves and parks and recreational areas and

classify and protect natural landscapes and sites so as to ensure the

conservation of nature and the preservation of cultural assets of historical or

artistic interest; and

(d) Promote the rational use of natural resources, safeguarding their capacity for

renewal and ecological stability.

3. Everyone shall have the right, in accordance with the law, to promote the preservation

or cessation of factors leading to the deterioration of the environment and, in this case,

of direct losses to a corresponding compensation.

4. The State shall promote the progressive and rapid improvement of the quality of life

for all Portuguese.33

In Turkey, section 56 of the 1982 Constitution contains an example of a crisp provision

which, nevertheless, includes fundamental rights and public policy as follows:

1. Everyone has the right to live in a healthy, balanced environment.

2. It is the duty of the State and the citizens to improve the natural environment,

and to prevent environmental pollution.34

As we conclude the discussion on environmental provisions in constitutions, it is pertinent

to offer examples from a few African countries already identified as having environmental

provisions in their constitutions:

(i) South Africa

33 Quoted in Brandl & Bungert [1962: 65-66].

34 Ibid, at 71.


The Constitution of the Republic of South Africa, enacted in 1996, has its first provision on

"Environment" under the Bill of Rights where it says:

24. Everyone has the right

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of the present and

future generations, through reasonable legislative and other measures that:

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secures ecologically sustainable development and use of

natural resources while promoting justifiable economic

and social development.

As a federal state, South Africa also makes provisions for matters that are primary

provincial or federal competences. Schedule 4 and the principal Articles are important in this

regard.

(ii) Uganda

The Constitution of the Republic of Uganda, adopted in 1995, has several provisions related to

the environment. Article XIII entitled "Protection of Natural Resources" provides as follows:

"The State shall protect important natural resources, including land, water, wetlands, minerals,

oil, fauna and flora on behalf of the people of Uganda".

Article XXVII, which is on "The Environment" provides as follows:

(i) The State shall promote sustainable development and public awareness of

the need to manage land, air, water resources in a balanced and

sustainable manner for the present and future generations.

(ii) The utilisation of the natural resources of Uganda shall be managed in such

a way as to meet the development and environmental needs of the present

and future generations of Uganda; and in particular, the State shall take all

possible measures to prevent or minimise damage and destruction to land,

air and water resources resulting from pollution and other causes.

(iii)The State shall promote and implement energy policies that will ensure that

the people's basic needs and those of environmental preservation are met.

(iv) The State, including local governments, shall:

(a) create and develop parks, reserves and recreation areas and


ensure the conservation of natural resources;

(b) promote the rational use of natural resources so as to safeguard

and protect the biodiversity of Uganda.

Uganda's Chapter 4 deals with "Protection and Promotion of Fundamental and Other Rights

and Freedoms. Article 39 provides that "Every Ugandan has a right to a clean and healthy

environment". There is further provision, under Chapter 15, entitled "Land and environment".

Land tenure system in Uganda is rather complex and, in any case, the questions are beyond the

scope of this chapter. Suffice it to quote paragraph (b) of Article 237, which states:

The Government or a local government as determined by Parliament by law, shall

hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserve, game

reserve, national parks and any land to be reserved for ecological and touristic purposes

for the common good of all citizens.

(iii) Tanzania

The 1997 Constitution of the United Republic of Tanzania (revised to include all amendments

up to 1995) does not contain a direct provision on environment. It is included here to complete

our line of suggestion that provisions on environment may appear in unconventional forms.

We ask the question here as to whether there are African countries where courts have

interpreted the right to life to include a healthy environment.

Article 14 of the Tanzania constitution says:

Every person has the right to live and to protection of his life by the society in

accordance with the law.

We recall that in the Shehla Zia v WAPDA (PLD1994 Supreme Court 693), Human Rights

Case No. 15-K of 1992, Heard on 12 February 1994), the Supreme Court of Pakistan opined

that the word "life" must not be construed in a limited manner and added that a wide meaning

should be given to enable man not only to sustain life but also to enjoy it. An important

observation by the Court is pertinent here, and I quote:

Where life is degraded, the quality of life is adversely affected and health hazards are

created affecting a large number of people, the Court in exercise of its jurisdiction under

Article 184(3) of the Constitution, may grant relief to the extent of stopping the

functioning of units which create pollution and environment degradation.

In paragraph 12 of his Order, the Judge observed further that:

The word life is very significant as it covers all facts of human existence. The word life

has not been defined in the Constitution but it does

Enviromental Law Part 1

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