LECTURE 10

INSTITUTIONAL AND LEGAL FRAMEWORK FOR THE

MANAGEMENT OF NATURAL RESOURCES

Objectives

a) Identify the various institutions in Kenya that are responsible for the management of

natural resources.

b) Explain the role of organizations in Natural Resource Management

10.1 Policy, Legal and Institutional Framework governing Environmental Management

in Kenya

Introduction

Development can have major impacts on the environment by degrading soils and waterways,

altering landscape and destroying biodiversity and habitat. Other problems associated with

development and human activity include land use conflicts, human and animal conflicts,

water management and environmental pollution. In addition to harming the environment,

these impacts can and do have significant economic costs and negatively affect human health.

Environmental Impact Assessment (EIA) is a tool that assists in the anticipation and

minimization of the adverse effects of development.

Undertaken in the early stages of project planning and design, EIA seeks to help shape

development in a manner that best suits the local environment and is most responsive to

human needs. The concept of EIA arose from the pollution and degradation of natural

resources caused by rapid population growth, industrialization, agricultural development and

technical progress. EIA recognizes that natural resources are finite and incapable of

absorbing the unchecked demands of modern society.

There is a growing concern in Kenya and at global level that many forms of development

activities cause damage to the environment. This has been aggravated by lack of awareness

and inadequate information amongst the public on the consequences of their interaction with

the environment. In addition there is limited local communities’ involvement in participatory

planning and management of the environment and natural resources. Recognizing the

importance of natural resources and the environment in general, the Kenyan Government has

put in place wide range of policy, institutional and legislative framework to address the major

causes of environmental degradation and negative impacts on ecosystems emanating from

industrial and economic development programmes.

It is now accepted that development projects must be economically viable, socially

acceptable and environmentally sound. It is a condition of the Kenya Government to conduct

Environmental Impact Assessment on development Projects. EIA assesses the impacts of a

proposed project before commencement of implementation. In addition to helping formulate

proper development policy, EIA provides for public participation in the decision making

process in respect of a given proposed project. EIA serves the following purposes:

i) Integration of environmental issues into planning and decision making processes;

ii) Anticipation, minimization and mitigation of environmental damage and

recommendation of alternatives;

iii) Public participation in decision making and environmental conservation.

The steps included in and EIA are contained in the Environmental of the

Environmental Management and Coordination Act No. 8 of 1999 (EMCA) at Sections

58 and 138 and the Environmental (Impact Assessment and Audit) Regulations 2003

(Legal No. 101 of 2003). All undertakings enumerated in the Second Schedule of

EMCA require an Environmental Impact Assessment project/study report prepared

and submitted to the National Environment Management Authority (NEMA) for

review and eventual licensing before the development commences.

10.2 Policies, institutions and natural resource management

Policy provides guidelines for society to act in certain ways or provides a sense of direction

to achieve certain goals. Policy failures may be in 3 forms:

- Broad macro economic and fiscal policies may influence the way people use NR.

- Regulatory policies governing NR may be inadequate e to correct existing

problems.

- Conservation policies may be inappropriately designed and implemented.

Policy and institutional failures are responsible for the many environmental problems we face

(i.e. the difference between actual outcomes and optimal resource use). Policy failure refers

to situations where inappropriate government policies or absence or required policies results

into natural resources degradation by both private and public users.

Institutions

Institutions are rules of conduct that facilitate coordination or govern relationships between

individuals or groups in a society. North (1995) an economist defined institutions more

generally as the rules of the game of a society. More formally, institutions are defined as

humanly devised constraints that structure human interactions. Institutions can be

- Formal or

- Informal

Formal rules are crafted or approved or recognized by the state and include the constitution,

property rights, laws etc.

Informal rules are crafted by communities and include norms of behavior, sanctions, taboos,

and codes of conduct. Institutions important in natural resource management should:

- State what should (should not) happen to the resource

- State who is concerned

- State how that should happen

- State what if i.e. the fines and punishment for non compliers

For instance the forests act (CAP 365) defined the penalties imposed on illegal forest users

while the wildlife act bans all extractive activities in within protected wildlife conservation

area.

Institutions may fail due to:

- Unsupported policy(policies not supported by legislation cannot be legally

enforced)

- Inadequate legal framework (sometimes legislation and supporting regulations

may be outdated)

Organizations

Sometimes institutions are confused with organizations. Organizations are players or group of

individuals bound by a common purpose to achieve certain objectives. Examples of

organizations include political parties, regulatory agencies like NEMA, schools, colleges etc.

Organizations usually craft institutions (rules) to shape how people interact.

Institutions are distinct from organizations, which are material entities typically

possessing personnel, offices, budgets, a legal personality and so forth. Organizations

play important roles in the administration and management of regimes dealing with a

wide range of topics (e.g. the US Environmental Protection Agency, the International

Maritime Organization).

Government ministries (list), parastatals (list), institutional responsibility for overall

environmental management lies at ministerial level – MENR. The ministries have mainly

a co-ordinating and regulatory role rather than an implementing role.

Non-government players – environmental NGOs (NGOs and INGOs), Civil Society

Organizations, Regional bodies, UN affiliated bodies.

Communities – CBOs Associations, farmer/pastoralist groups.

Role of public participation in EIA’s

Disseminate and inform the stakeholders about the project with special reference to its

key components, location and expected impacts.

Create awareness among the public on the need for the EIA for the development and

encourage due process.

Gather comments, concerns and suggestions of the interested and affected parties.

Ensure that the concerns of the stakeholders were known to the decision making bodies

and the developer at an early phase of project development planning.

Establish a communication channel between the general public and the team of

consultants, the project developer and the Government.

Incorporate the information collected in the study by EIA specialists

10.3 Environmental laws in Kenya

Kenya’s environmental policy and legislation are scattered in a multiplicity of resource and

sector specific laws and policy papers. The institutions and departments that deal with

environmental issues are equally numerous. Sector specific laws are deficient in that they are

characterized by fragmented and uncoordinated sectoral legal regimes that are developed to

facilitate resource allocation and to deal with environmentally adverse effects of resource

exploitation. The sectoral institutions under these laws often find themselves in regulatory

competition.

Formal institutions

Constitution of Kenya

The Constitution of Kenya in spite of being the supreme law of the land does not contain

specific provisions regarding the environment. Section 70 however lists the right to life as

one of the fundamental rights an individual is entitled to. The right life guaranteed by the

Constitution can be interpreted to include the right to a clean and healthy environment.

Environmental Management and Coordination Act of 1999 (EMCA)

The Environmental Management and Coordination Act of 1999 (EMCA) was enacted to

provide an appropriate legal and institutional framework for the management of the

environmental and for matters connected therewith and incidental thereto. EMCA does not

repeal the sectoral legislation but seeks to coordinate the activities of the various institutions

tasked to regulate the various sectors. These institutions are referred to as Lead Agencies in

EMCA. Lead Agencies refer to any Government ministry, department, parastatals, and State

Corporation or local authority in which any law vests functions of control or management of

any element of the environment or natural resource.

EMCA was assented to in1999 and commenced in 2000, as an ACT of Parliament to provide

for the establishment of an appropriate legal and institutional framework for the

management of the environment and for the matters connected therewith and incidental

thereto.

10.3.1 Institutions under EMCA

National Environmental Council (NEC)

The National Environment Council (NEC) is established under Section 4 of EMCA.

NEC which is chaired by the Minister in charge of the environment, is the highest policy

making body under EMCA. NEC is responsible for policy formulation and directions for

purposes of EMCA. NEC sets national goals and objectives and promotes cooperation among

both public and private organizations engaged in environmental protection programs.

The National Environmental Management Authority (NEMA)

The National Environmental Management Authority (NEMA) is established under Section 7

of EMCA. NEMA is the principal Government institution charged with the overall

supervision and co-ordination over all matters relating to the environment as well as

implementation of all policies relating to the environment. NEMA is responsible for dealing

with EIA. NEMA has to date considerably developed its human and other resource capacity

to enable it coordinate the environmental management activities of Lead Agencies.

Provincial and District Environment Committees

Under section 29 (1) of EMCA, the Minister shall by notice in the gazette appoint

Provincial and District Environment Committees of NEMA in respect of every province and

district respectively. These committees assist NEMA in effectively carrying out its function

of proper management of the environment at these levels. It is instructive to note that the

membership of these committees include inter alia representatives of farmers or pastoralists,

business community, women and youth.

Public Complaints Committee PCC

The Public Complaints Committee is established under Section 31 of EMCA. The

PCC is concerned with the investigation of complaints relating to environmental damage and

degradation generally. The PCC has powers to investigate complaints against any person or

even against NEMA or on its own motion investigate any suspected case of environmental

degradation. The PCC is required by law to submit reports of its findings and

recommendations to NEC. The law however is weak in that it does not provide PCC with the

mandate to see its recommendations carried through. Further, NEC is not specifically

required to do anything with regard to the reports submitted by the PCC and will often note

and adopt the same without any further follow up action. So far the PCC has experienced

challenges such as failure to honour summons, hostility between parties, hostility directed at

PCC investigators, lack of understanding of EMCA and abdication of duty by Lead Agencies.

Standards and Enforcement Review Committee

The Standards and Enforcement Review Committee (SERC) is a committee of

NEMA and is established under Section 70 of EMCA. This is a technical Committee

responsible for formulation of environmental standards, methods of analysis, inspection,

monitoring and technical advice on necessary mitigation measures.

National Environmental Tribunal (NET)

The NET is established under Section 125 of EMCA for the purpose of hearing appeals from

administrative decisions by organs responsible for enforcement of environmental standards.

An appeal may be lodged by a project proponent upon denial of an EIA licence or by a local

community upon the grant of an EIA licence to a project proponent. NEMA may also refer

any matter that involves a point of law or is of unusual importance or complexity to NET for

direction. The proceedings of NET are not as stringent as those in a court of law and NET

shall not be bound by the rules of evidence as set out in the Evidence Act. Upon the making

of an award, NET’s mandate ends there as it does not have the power to enforce its awards.

EMCA provides that any person aggrieved by a decision or award of NET may within 30

days appeal to the High Court.

National Environment Action Plan Committee (NEAP)

The National Environment Action Plan Committee (NEAP) is established under Section 37

of EMCA. This cross-sectoral committee is responsible inter alia, for the development of a

five year national environment action plan. The national environment action plan shall

contain among other aspects analysis of the natural resources of Kenya and their distribution,

quantity and various uses. It shall also recommend legal and fiscal incentives for business

that incorporate environmental requirements into their planning and operational processes as

well set out guidelines for the planning and management of the environment and natural

resources. The national environment action plan shall upon adoption by Parliament be

binding on all organs of government. Provincial and district environmental committees are

also required to develop their own five year environmental action plans which are

incorporated in the national environment action plan.

Regulation 4 (3) states that “No licensing authority under any law in force in Kenya shall

issue a trading, commercial or development permit or license for any micro project activity

likely to have cumulative significant negative environmental impact before it ensures that a

strategic environmental plan encompassing mitigation measures and approved by the

Authority is in place”.

NOISE REGULATIONS, 2009 These Regulations prohibit a production of any loud,

unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the

comfort, repose, health or safety of others and the environment.

WETLAND REGULATIONS, 2009 Specific sections have requirements that apply to

wetlands in Kenya either in private or public land. The regulations empower the District

Environment Committee to co-ordinate, monitor and advise on all aspects of wetland

resource management within the district.

WATER QUALITY REGULATIONS: This includes the following:

•Protection of sources of water for domestic use;

•Water for industrial use and effluent discharge;

•Water for agricultural use. These Regulations outline:

•Quality standards for sources of domestic water;

•Quality monitoring for sources of domestic water;

•Standards for effluent discharge into the environment;

•Monitoring guide for discharge into the environment;

•Standards for effluent discharge into public sewers.

WASTE MANAGEMENT REGULATIONS These Regulations apply to all categories of

waste. These include:

•Industrial wastes;

•Hazardous and toxic wastes;

•Pesticides and toxic substances;

•Biomedical wastes;

•Radio-active substances. These regulations outline requirements for handling, storing,

transporting, and treatment/ disposal of all waste categories. Disposal of waste by NEMA

licensed company.

CONTROLLED SUBSTANCES: These are basically ozone depleting gases. One needs a

license to:

Produce Controlled Substances.

Import Controlled Substances. Transport Controlled Substances through Kenya.

Export Controlled Substances.

10.3.2 Role of EMCA 1999 in Environment Management in Kenya

It guides the co-ordination of environmental planning

It guides co-ordination at various levels which are responsible for the preparation of the

action plans which contain an analysis of the natural resources with an indication of change

in their distribution and quantity over time, analytical profile of various uses and value of the

natural resources and also recommend appropriate legal and fiscal incentives that may be

used to encourage the business community to incorporate environmental requirements into

their planning for national development, methods of building national awareness through

environmental education.

The Act also sets out operational guidelines for the planning and management of the

environment and natural resources. This also assists in the preparation of environmental

action plans which cut across the country; national to district environmental action plans.

These plans are prepared by the national environment management authority through the

district environmental officers.

It establishes committees that ensure ongoing projects have no negative impacts

These committees in consultation with the relevant lead agencies monitor all environmental

phenomena with a view to making an assessment of any possible changes in the environment

and their possible impacts and also monitor the operation of any industry, project or activity

with a view of determining its immediate and long-term effects on the environment. These

committees include the public complaints committee where the public can air out their views

concerning any project. The public is entitled to raise objections if the project is likely to

affect them negatively.

Provides guidance for the formation of quality and standards committees that ensures

cleaner production with respect to air, water, soil and biodiversity

The committee established is known as the Standards and Enforcement Review Committee

which deals with the issues of water and air quality. Concerning water quality the committee

gives advice on how to establish criteria and procedures for the measurement of water quality

and recommends the minimum water quality standards for all the waters of Kenya and for

different uses, including:-drinking water; water for industrial purposes; water for agricultural

purposes, water for recreational purposes; Water for fisheries and wildlife,

The committee analyze conditions for discharge of effluents into the environment, prepare

guidelines or regulations for the preservation of fishing areas, aquatic areas, water sources

and reservoirs and other areas where water may need special protection, Identify areas of

research on the effects of water pollution on the environment, human beings flora and fauna;,

Carry out investigations of actual or suspected water pollution including the collection of

data; take steps or authorize any works to be carried out which appear to be necessary to

prevent or abate water pollution from natural causes or from abandoned works or

undertakings document the analytical methods by which water quality and pollution control

standards can be determined and appoint laboratories for the analytical services required

and collect, maintain and interpret data from industries and local authorities on the pre-

treatment nature and levels of effluents;

The committee gives advice on how to establish criteria and procedures for the

measurement of air quality.

EMCA provides guidelines for orders for restoration, conservation and environmental

assessment

An environmental conservation order may be imposed on burdened land so as to:- Preserve

flora and fauna; Preserve the quality and flow of water in a dam, lake, river or

aquifer, Preserve any outstanding geological, physiological, ecological, archaeological, or

historical features of the burdened land; Preserve scenic view; Preserve open space; Permit

persons to walk in a defined path across the burdened land; Preserve the natural contours and

features of the burdened land; Prevent or restrict the scope of any activity on the burdened

land which has as its object the mining and working of minerals or aggregates; Prevents or

restrict the scope of any agricultural activity on the burdened land; Create and maintain works

on burdened land so as to limit or prevent harm to the environment; or Create or maintain

migration corridors for wildlife. Through this conservation measures are undertaken by

individuals.

Provides the ways for entering both regional and international agreements and treaties

These international treaties include:-

The Nile Basin Agreement that concentrates on checking the volume of water drawn

from Lake Victoria

o The Rio Earth Summit

o The millennium development goals

Kenya is signatory to various international and regional treaties and agreements which must

always be respected and implemented. To this effect EMCA 1999 provides the required legal

structures for entering into such commitments. The country participates in various

conferences on climate change including the recent talks at Kasarani where various countries

were represented.

EMCA provides powers to appoint environmental assessors and inspectors

The work of these assessors and inspectors is taking cases to a three man bench of judges in

the Environmental Court which acts on the cases and pass judgments, giving fines where

necessary. This also involves setting up a tribunal which Make such orders for the purposes

of securing the attendance of any person at any place where the Tribunal is sitting, discovery

or production of any document concerning a matter before the Tribunal or the investigation of

any contravention of this Act as it deems necessary or expedient and take evidence on oath

and may for that purpose administer oaths; or on its own motion summon and hear any

person as witness

The environmental assessors work also involves the constant monitoring of activities deemed

to have massive impacts on the environment. The case of Tiomin mining project in Kwale

district was taken before a tribunal by the local community sometime back leading to delays

in implementation of the first phase.

EMCA defines the offences related to the environment

The Act defines the various offences related to the environment and prescribes measures to

be taken in case of contravention of the laid down regulations governing the environment.

Offenders are entitled to appear in an environmental court and answer questions pertaining

disregard for the environment. There are usually heavy penalties involved. It clearly

stipulates that an offender maybe any person who hinders or obstructs an environmental

inspector in the exercise of his duties, fails to comply with a lawful order or requirement

made by an environmental inspector, refuses an environmental inspector entry upon any land

or into any premises, vessel or motor vehicle which he is empowered to enter, impersonates

an environmental inspector, refuses an environmental inspector access to records or

documents kept, fails to state or wrongly states his name or address to an environmental

inspector in the cause of his duties, misleads or gives wrongful information to an

environmental inspector or fails to submit a project report among other offences.

A case in point is the Dagoretti slaughter houses which were closed and consequently the

owner of the premise arrested. Actions of the slaughterhouse were deemed to be polluting the

environment at a large scale leading to closure. The local community had witnessed heavy

pollution taking place in the rivers due to channelization of waste into the water resources.

Stipulates guidelines concerning environmental impact assessment

Before a project is implemented, its potential impact should be assessed so as to determine

positive or negative impact in order to take necessary precaution through;

Formation of technical advisory committees on environmental impact assessment

Application for an EIA license

Further EIA

Submission of fresh EIA report after license is issued

Transfer of EIA license

Revocation, suspension or cancellation of EIA license is also stipulated Example may

include the case of Dominion project at Yala swamp where there was a temporary suspension

of EIA licence after a wide consultation. The local residents had their objections to the said

project and as such this led to the suspension. The proponents did not also adhere to some

regulations leading to the suspension, the Tana River development project where the various

projects have received mixed reactions from both the environmentalist and the local residents

thereby leading to their licenses being suspended. This was after the local community and

various other stakeholders raised a red flag over the project. The project was deemed to have

massive impacts on the environment.

The owner of the Kiambu building which collapsed sometime back did not adhere to the

standards of EIA. It was established that the proponent did not conduct an EIA before

undertaking the project.

Conclusion

The EMCA act has made great strides in the management of the environment. Through the

various bodies set up by the act, there has been massive improvement in the way people

perceive the environment. The act provides for improved legal and administration

coordination of the diverse sectoral initiatives in order to improve national capacity of

environmental management. However there are some setbacks with regard to the full

implementation of the act. Political interference by powerful individuals has rendered the act

almost impossible to fully implement. Proper mechanisms have also not been put in place to

deal with various aspects as stipulated in the act. Lack of finances has also hampered the full

implementation. In order to realize the effectiveness of this act, proper mechanisms should be

put in place. The various bodies set up by this act should be given more authority to deal

efficiently with environmental matters. (Kithika J, susbizkenya.org)

10.3.3 Environmental Impact Assessment (EIA)

Introduction to Environmental Impact assessment (EIA)

EIA involves description and quantification of impacts of given policy options. However,

EIA does not require full information about costs and benefits; impacts are not expressed in

monetary terms. The onus of decision-making is left with policy makers to weigh different

impacts against each other. EIA is a very important aid to CBA.

Definition of EIA and its Importance

Environmental Impact Assessment (EIA) is a policy and management tool for both planning

and decision-making. It is a systematic process that assists to identify predict and evaluate the

foreseeable environmental consequences of proposed development projects, plans and

policies. The process is applied prior to major decisions and commitments being done. The

outcome of an EIA study assists the decision maker and the general public to determine

whether a project should be implemented and in what form. EIA involves description and

quantification of impacts of given policy options. However, it does not require full

information about costs and benefits; impacts are not expressed in monetary terms. The onus

of decision-making is left with policy makers to weigh different impacts against each other.

EIA is a very important aid to CBA.

EIA is not restricted to or biased to the examination and mitigation of negative impacts alone.

EIA can also look into the possible positive issues due to the developmental projects and

explore or suggest ways of enhancing them further by carrying out modifications in the

project.

The purpose of EIA is to:

Provide information for decision making on the environmental consequences of

proposed actions; and

Promote environmentally sound and sustainable development through the

identification of appropriate enhancement and mitigation measures

Reducing the burden of environmental impacts is necessary if development is to

become sustainable. The role of EIA is formally recognized in Principle 17 of the Rio

Declaration on Environment and Development:

“Environmental Impact Assessment as a national instrument shall be undertaken for proposed

activities that are likely to have a significant adverse impact on the environment and are

subject to a decision of a competent national authority”

In practice, EIA is applied to prevent or minimize the adverse effects of major development

proposals.

The immediate aim of EIA is to inform the process of decision-making by identifying the

potentially significant environmental effects and risks of development proposals. The

ultimate or long term aim of EIA is to promote sustainable development by ensuring that

development proposals do not undermine critical resource and ecological function or the well

being, lifestyle and livelihood of the communities and people who depend on them.

Immediate objectives of EIA:

- improve the environmental design of the proposal

- ensure that resources are used appropriately and efficiently;

- identify appropriate measures for mitigating the potential impacts of the proposal;

- facilitate informed decision making including setting the environmental terms and

conditions for implementing the proposal

Long term objectives of EIA:

- protect human health and safety

- avoid irreversible changes and serious damage to the environment

- safeguard valued resources, natural areas and ecosystem components and

- enhance the social aspects of the proposal

The benefits of EIA can be direct, such as the improved design or location of a project, or

indirect such as better quality EIA work or raised environmental awareness of the personnel

involved in the project.

Specific benefits may include:

- Better environmental planning and design of a proposal- carrying out an EIA entails an

analysis of alternatives in the design and location of projects. This can result in the selection

of an improved technology which lowers waste outputs or an environmentally optimum

location for a project. A well designed project can minimize risks and impacts on the

environment and people and thereby avoid associated costs of remedial treatment or

compensation for damage

- Ensuring compliance with environmental standards – compliance with environmental

standards reduces damage to the environment and disruption to communities. It also avoids

the likelihood of penalties, fines and loss of trust and credibility

- Savings in capital and operating costs – EIA can avoid the undue costs of unanticipated

impacts.

These can escalate if environmental problems have not been considered from the start of

proposal design and require rectification later

- Reduced time and costs of approval of development applications: if all environmental

concerns have been taken into account properly before submission for project approval, then

it is unlikely that delays will occur as a result of decision makers asking for additional

information or alterations to mitigation measures

- Increased project acceptance by the public – this is achieved by an open and transparent

EIA process with provision of opportunities for public involvement that are most directly

affected by and interested in the proposal.

10.3.3.4 Overview of EIA Processes

EIA is generally conducted in tiers. In most cases, the process falls into four tiers, as

explained below. Conducting EIA in tiers helps optimize the resources as well as to increase

the effectiveness of the exercise by maintaining a better focus.

1. Screening

This is a process to decide whether the EIA process is applicable at all to the development

project. It aims to clear all those projects where there are no major negative impact issues.

Screening criteria generally involve the specification of the location, type and size of the

project. (In Kenya, the regulations set by EMCA 2000 also stipulate the nature of projects

that require EIA).

Screening thresholds are generally set considering the project type, size and location. The

project type and size are used to estimate the extent of the impacts while the thresholds of the

project size depend on the project type. Financial institutions also have specific guidelines for

screening projects to ascertain whether an EIA is required or not – e.g. ADB, USAID, WB.

2. Scoping

If screening does not automatically clear a project, then the developer is asked to undertake a

scooping exercise. This step helps in understanding the extent of environmental impacts and

identifies significant environmental issues for further study. It involves sufficient research

and expert advice to identify the project’s key impacts on the local environment in terms of

impact issues and to evaluate briefly the importance of the critical issues to the various

stakeholders apart from the decision makers. Setting the boundaries of the assessment is the

most important step of the entire EIA. Too narrow a scope will likely leave out an important

factor or effect, but too broad a scope may make the analysis unwieldy or take too long a

time. Other aspects of scooping are to choose the important issues to be resolved and to agree

on responsibilities for performing the EIA.

The scooping exercise should involve:

- review of all written materials on the purpose, need or prospectus for the project

- perform field reconnaissance of the desired site or sites for the project

- interview local residents and affected communities that use resources;

- consult with other agencies that have expertise, jurisdiction, or influence on the decision to

approve, design, or site a project;

- consult with local or regional scientists at colleges, universities, institutes or field stations;

- visit local political leaders where the project may be sited.

3. Environmental impact assessment Study:

An EIA study is to be conducted in accordance with the general environmental impact

assessment guidelines and sector EIA guidelines set out in the Third Schedule to the

Regulations.

An environmental impact assessment study must take into account environmental, social,

cultural, economic, and legal considerations, and shall

i) identify the anticipated environmental impacts of the project and the scale of the impacts;

ii) identify and analyze alternatives to the proposed project;

iii) propose mitigation measures to be taken during and after the implementation of the

project; and

iv) develop an environmental management plan with mechanisms for monitoring and

evaluating the compliance and environmental performance which shall include the cost of

mitigation measures and the time frame of implementing the measures.

4. The Environmental Impact Assessment Study Report

After an EIA study has been conducted the proponent submits to the Authority an EIA

Study Report incorporating but not limited to the following information:

i) the proposed location of the project;

ii) a concise description of the national environmental legislative and regulatory framework,

baseline information,

iii) and any other relevant information related to the project; the objectives of the project;

iv) the technology, procedures and processes to be used, in the implementation of the

project;

v) the materials to be used in the construction and implementation of the project;

vi) the products, by products and waste to be generated by the project;

vii) a description of the potentially affected environment;

viii) the environmental effects of the project including the social and cultural effects and the

direct, indirect, cumulative, irreversible, short-term and long-term effects anticipated;

ix) alternative technologies and processes available and reasons for preferring the chosen

technology and processes;

x) analysis of alternatives including project site, design and technologies and reasons for

preferring the proposed site, design and technologies.

xi) an environmental management plan proposing the measures for eliminating, minimizing

or mitigating adverse impacts on the environment; including the cost, time frame and

responsibility to implement the measures;

xii) provision of an action plan for the prevention and management of foreseeable accidents

an hazardous activities in the course of carrying out activities or major industrial and other

development projects;

xiii) the measures to prevent health hazards and to ensure security in the working

environment for the employees and for the management of emergencies;

xiv) an identification of gaps in knowledge and uncertainties which were encountered in

compiling the information;

xv) an economic and social analysis of the project;

xvi) an indication of whether the environment of any other state is likely to be affected and

the available alternatives and mitigating measures; and

xvii) such other matters as the Authority may require.

The environmental impact assessment study report must also be accompanied by a non-

technical summary outlining the key findings, conclusions and recommendations of the

study and must be signed by the proponent and environmental impact assessment experts

involved in its preparation.

5. Public participation

Public participation is at the centre of EIA. During the process of conducting an

environmental impact assessment study the proponent must in consultation with NEMA seek

the views of persons who may be affected by the project. After the approval of the EIA

Report by NEMA, the proponent must;

a) publicize the project and its anticipated effects and benefits by: posting posters in strategic

public places in the vicinity of the site of the proposed project informing the affected parties

and communities of the proposed project; publishing a notice on the proposed project for two

successive weeks in a newspaper that has a nation-wide circulation; and making an

announcement of the notice in both official and local languages in a radio with a nation-wide

coverage for at least once a week for two consecutive weeks;

b) hold at least three public meetings with the affected parties and communities to explain the

project and its effects, and to receive their oral or written comments;

c) ensure that appropriate notices are sent out at least one week prior to the meetings and that

the venue and times of the meetings are convenient for the affected communities and the

other concerned parties; and

d) ensure, in consultation with the Authority that a suitably qualified coordinator is

appointed to receive and record both oral and written comments and any translations thereof

received during all public meetings for onward transmission to the Authority.

6. Comments from Lead Agencies

After NEMA has received the Report, has to submit a copy thereof to any relevant lead

agencies for their comments. Lead agencies review the report to ensure that it complies with

the terms of reference under Regulation 11 and that it is comprehensive. They thereafter send

their comments to NEMA on the report within 30 days or such extended time as the

Authority may specify.

If no comments are received from the Lead Agencies the Authority may proceed with the

determination of the application for the implementation of the project.

7. Submission of comments and public hearing

Regulation 21 obligates NEMA to invite the public to make oral or written comments on the

report. The invitation for public comments shall state;

i) The nature of the project;

ii) The location of the project;

iii) The anticipated impacts of the project and the proposed mitigation measures to respond to

the impacts;

iv)The times and place where the full report can be inspected; and

v) The period within which the Authority shall receive comments.

Upon receipt of both oral and written comments the Authority may hold a public hearing.

On conclusion of the hearing, the presiding officer shall compile a report of the views

presented at the public hearing and submit a report to the Director General of NEMA within

14 days from the date of the public hearing. The Authority may then approve the

Environmental Impact Assessment Study Report and issue an EIA License under Regulation

24.

10.3.5 National Environmental Management Authority

The National Environment Management Authority (NEMA) is a government agency

responsible for the management of the environment, and the environmental policy, of Kenya.

NEMA is located in Nairobi. The Agency was formed on 1st July 2002 following the merger

of three government departments, namely: the National Environment Secretariat (NES), the

Permanent Presidential Commission on Soil Conservation and Afforestation (PPCSCA), and

the Department of Resource Surveys and Remote Sensing (DRSRS). The NEMA is

committed to high quality service offered to customers and stakeholders.

Functions of NEMA

The authority’s core functions are:

Coordinating the various environmental management

activities being undertaken by the lead agencies

Promote the integration of environmental considerations into

development policies, plans, programmes and projects, with

a view to ensuring the proper management and rational

utilization of environmental resources, on sustainable yield

basis, for the improvement of the quality of human life in

Kenya.

To take stock of the natural resources in Kenya and their utilization and conservation.

To establish and review land use guidelines.

Examine land use patterns to determine their impact on the quality and quantity of

natural resources.

Carry out surveys, which will assist in the proper management and conservation of the

environment.

Advise the Government on legislative and other measures for the management of the

environment or the implementation of relevant international conventions, treaties and

agreements.

Advise the Government on regional and international conventions, treaties and

agreements to which Kenya should be a party and follow up the implementation of

such agreements.

Undertake and coordinate research, investigation and surveys, collect, collate and

disseminate information on the findings of such research, investigations or surveys.

Mobilize and monitor the use of financial and human resources for environmental

management.

Identify projects and programs for which environmental audit or environmental

monitoring must be conducted under this Act.

Initiate and evolve procedures and safeguards for the prevention of accidents, which

may cause environmental degradation and evolve remedial measures where accidents

occur e.g. floods, landslides and oil spills.

Monitor and assess activities, including activities being carried out by relevant lead

agencies, in order to ensure that the environment is not degraded by such activities.

Management objectives must be adhered to and adequate early warning on impending

environmental emergencies is given.

Undertake, in cooperation with relevant lead agencies, programs intended to enhance

environmental education and public awareness, about the need for sound

environmental management, as well as for enlisting public support and encouraging

the effort made by other entities in that regard.

Publish and disseminate manual codes or guidelines relating to environmental

management and prevention or abatement of environmental degradation.

Render advice and technical support, where possible, to entities engaged in natural

resources management and environmental protection, so as to enable them to carry

out their responsibilities satisfactorily.

Prepare and issue an annual report on the State of Environment in Kenya and in this

regard, may direct any lead agency to prepare and submit to it a report on the state of

the sector of the environment under the administration of that lead agency.

(www,nema.go.ke)

10.3.6 The Green Belt Movement

The Green Belt Movement (GBM) is an environmental organization that empowers

communities, particularly women, to conserve the environment and improve livelihoods.

GBM was founded by Professor Wangari Maathai in 1977 under the auspices of the National

Council of Women of Kenya (NCWK) to respond to the needs of rural Kenyan women who

reported that their streams were drying up, their food supply was less secure, and they had to

walk further and further to get firewood for fuel and fencing. GBM encouraged the women to

work together to grow seedlings and plant trees to bind the soil, store rainwater, provide food

and firewood, and receive a small monetary token for their work.

Shortly after beginning this work, Professor Maathai saw that behind the everyday hardships

of the poor—environmental degradation, deforestation, and food insecurity—were deeper

issues of disempowerment, disenfranchisement, and a loss of the traditional values that had

previously enabled communities to protect their environment, work together for mutual

benefit, and to do both selflessly and honestly. The Green Belt Movement instituted seminars

in civic and environmental education, now called Community Empowerment and

Education seminars (CEE), to encourage individuals to examine why they lacked agency to

change their political, economic, and environmental circumstances. Participants began to

understand that for years they had been placing their trust in leaders who had betrayed them

and that they were sabotaging their lives by not working for the common good and failing to

use their natural resources wisely.

Consequently, the Green Belt Movement began to advocate for greater democratic space and

more accountability from national leaders. It fought against land grabbing and the

encroachment of agriculture into the forests. It contested the placement of a tower block in

Uhuru Park in downtown Nairobi and joined others to call for the release of political

prisoners. In recent years, it has extended its reach internationally to campaign and advocate

on climate change, the importance of Africa’s rainforests in the Congo, to initiate the

mottainai campaign—an effort to instill the notions of “reduce, reuse, recycle” in Kenya and

around the world—and has partnered with the United Nations Environment Programme

(UNEP) in its Billion Tree Campaign.

The major objectives of GBM’s advocacy approach are:

To monitor forest policy in Kenya

To increase the understanding of the impact of climate change and what actions

communities can take to build resilience.

To mobilize public support for environmental protection and compliance with laws to

prevent violations of human and environmental rights through local leadership and

national campaigns.

To influence national and international policy for the restoration and protection of

indigenous forests through community led approaches- especially standing forests in

the context of climate change.

Internationally, GBM calls for the protection of natural forests and community rights at

international climate change conferences, including highland forest ecosystems in sub-

Saharan Africa, and the Congo Basin Rainforest Ecosystem.

Forests are included in international climate change negotiations under Reduced Emissions

from Deforestation and forest Degradation (REDD+) and Land Use Land Use Change

(LULUCF). GBM is focused on ensuring the rights of local communities and biodiversity are

central to REDD policy and implementation. (www.greenbeltmovement.org)

10.3.7 United Nations Environment Program

The United Nations Environment Program (UNEP) is an international institution (a

program, rather than an agency of the UN) that coordinates United Nations environmental

activities, assisting developing countries in implementing environmentally sound policies and

practices. It was founded as a result of the United Nations Conference on the Human

Environment in June 1972 and has its headquarters in the Gigiri neighborhood of Nairobi,

Kenya. UNEP also has six regional offices and various country offices.

The mission of UNEP is to provide leadership and encourage partnership in caring for the

environment by inspiring, informing, and enabling nations and peoples to improve their

quality of life without compromising that of future generations.

Its activities cover a wide range of issues regarding the atmosphere, marine and terrestrial

ecosystems, environmental governance and green economy. It has played a significant role in

developing international environmental conventions, promoting environmental science and

information and illustrating the way those can be implemented in conjunction with policy,

working on the development and implementation of policy with national governments,

regional institutions in conjunction with environmental Non-Governmental Organizations

(NGOs). UNEP has also been active in funding and implementing environment related

development projects.

UNEP has aided in the formulation of guidelines and treaties on issues such as the

international trade in potentially harmful chemicals, transboundary air pollution, and

contamination of international waterways. (www.unep.org)

10.3.7 International Environmental Agreements on conservation of Natural

Resources

Convention on biological diversity (CBD).

Ramsar convention on wetlands of international importance.

United Nations Convention on Combating Desertification (UNCCD)

United Nations Framework Convention on Climate Change (UNFCCC)

Convention on International Trade in Endangered Species (CITES)

Stockholm Convention on Persistent Organic Pollutants

Convention on biological diversity (CBD)

This is an international agreement in 1992. It has three main objectives:

To conserve biological diversity

To use its components in a sustainable way

To share fairly and equitably the benefits arising from the use of genetic resources.

The CBD was negotiated under the guidance of the United Nations. It was signed by more

than 150 government leaders at the Rio Earth Summit (which official denomination is the

‘United Nations Conference on Environment and Development’). The convention is now one

of the most widely ratified international treaties on environmental issues, with 188 member

countries.

United Nations Convention on Combating Desertification (UNCCD)

The objective is to Combat desertification and mitigate the effects of drought in countries

experiencing serious drought and/or desertification, particularly in Africa, through effective

action at all levels, supported by international cooperation and partnership arrangements.

The convention was adopted in Paris on 17 June 1994 and opened for signature there on 14-

15 October 1994. Kenya became a signatory in 14 Oct 1994, ratified on June 24 1997.

Achieving the UNCCD objective will involve long-term integrated strategies that

focus simultaneously, in affected areas, on improved productivity of land, and the

rehabilitation, conservation and sustainable management of land and water resources,

leading to improved living conditions, in particular in the community level. Ratify:1

to confirm by expressing consent, approval, or formal sanction.

Convention on Biological Diversity (CBD)

The objectives are:

The conservation of biological diversity, the sustainable use of its components and the fair

and equitable sharing of the benefits arising out of the utilization of genetic resources,

including by appropriate access to genetic resources and by appropriate transfer of relevant

technologies, taking into account all rights over those resources and the technologies, and by

appropriate funding. Kenya signed the convention in 1992.

Reflection Questions

1. Identify the various Acts in Kenya that address the management of natural resources.

2. By giving examples, discuss any 4 roles of international organizations in the

management of the environment for development

3. Briefly explain any 4 causes of institutional failure in the management of environment

in Kenya.

References

World Commission on Environment and Development Our common future,

1987.Oxford University press, Oxford. ,

Pearce, D.W. and Turner R.K., 1990.Economics of Natural Resources and the

Environment. Harvester Wheatsheaf, New York.

UNEP, 2000, Devastating Drought In Kenya: Environmental Impacts and Responses,

Nairobi.

WSSD,2002 .African perspective: sustainable development, governance and

globalization. Nairobi. Heinrich Boll Foundation.

Useful Websites

http://www.environment.go.ke

http://www.greenbeltmovement.org

http://www.nema.go.ke

http://www.unep.org