POLICY, LEGAL & INSTITUTIONAL FRAMEWORK FOR ENVIRONMENTAL...

POLICY, LEGAL & INSTITUTIONAL

FRAMEWORK FOR ENVIRONMENTAL GOVERNANCE IN KENYA

Prepared by Cicilia W. Githaiga,

Legal Officer, NEMA 30th January, 2013.

Introduction and Learning Objectives

Purpose

• To introduce the Reviewer to policy, legal & institutional framework in relation to the environmental legislation in Kenya.

• To give highlights on the policies, legislations, guidelines, standards and regulations used in environmental governance in Kenya.

OBJECTIVES

By the end of this presentation, the participants should be able to:

• Identify and apply the legal provisions governing environmental legislation in Kenya,

• Identify the various institutions involved in environmental governance in Kenya.

• Brainstorm on means of mainstreaming environment sustainability in MDA’s.

POLICY?

• Policy refers to a general course of action or proposed overall direction that a government is or will be pursuing and which guides on going decision-making. It is a statement of intent specifying what government wants to be done.

BRIEF HISTORICAL

BACKGROUND

• Pre-EMCA era: e.g.. Public Health Act, Penal Code, Agriculture Act, etc.

• 1972 – United Nations Conference on the Human Environment (UNCHE) in Stockholm

• 1992-United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro

POLICIES AND FRAMEWORK LAW

• RIO Conference adopted Agenda 21 - action plan for countries to implement recommendations of the Conference.

• Sessional Paper No. 6 of 1999 on Environment and Development.

• The Environmental Management and Coordination Act, 1999 (EMCA).

POLICIES AND FRAMEWORK LAW

• The Draft National Environment Policy, 2008.

• Constitution of Kenya, 2010.

• Vision 2030.

• National Environment Action Plan (NEAP). Sec 38 EMCA.

INSTITUTIONAL FRAMEWORK

• The National Management Environment Authority (NEMA). Established at Sec. 7. Sec 9 sets out the objects and the functions of the Authority respectively.

• National Environment Council (NEC). Sec . 4

• Lead agencies and other stakeholders - Provincial and District (now County) Environment Committees. Sec. 29

• Public Complaints Committee (PCC). Sec 31.

INSTITUTIONAL FRAMEWORK

• Technical Advisory Committee (TAC).Sec 61

• Standards and Enforcement Review Committee (SERC). Sec. 70.

• National Environment Tribunal (NET).Sec 125.

• National Environment Trust Fund. Sec 24.

• National Environment Action Planning Commmitee. Sec 37 EMCA.

PART VI: ENVIRONMENTAL IMPACT

ASSESSMENT (EIA)

Outlines the processes and procedures for:

• Application

• Processing

• Grant

• Transfer

• Revocation

• Suspension

• Cancellation

of an EIA Licence.

PART VII: ENVIRONMENTAL

AUDIT & MONITORING

Powers of NEMA with respect to Environmental Audits

• Duty of owners of premises

• Role of NEMA and Lead Agencies with respect to Environmental Monitoring

PART XII: ENVIRONEMTAL

OFFENCES

• Offences relating to EIA – Failing to

prepare a project report, failing to prepare an EIA and fraundulently making false statements in EIA.

• Offences relating to records – failing to keep records, fraudulently altering records or making false statements in records required to be kept under this Act.

ENVIRONMENTAL REGULATIONS

UNDER EMCA (S.147)

• The Environmental (Impact Assessment and Audit) Regulations, 2003.

• Environmental Management and Coordination (Waste Management) Regulations,2006

• The Environmental Management and Coordination (Water Quality) Regulations, 2006.

• The Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006.

ENVIRONMENTAL REGULATIONS

UNDER EMCA (S.147)

• The Environmental Management and Co-ordination (Controlled Substances) Regulations, 2007

• The Environmental Management and Co-ordination (Wetlands, Riverbanks, Lakeshores, Sea shore Management) Regulations, 2009

• The Environmental Management and Co-ordination (Noise & Excessive Vibrations) Regulations, 2009

PENDING ENVIRONMENTAL

REGULATIONS UNDER EMCA (S.147)

• The Environmental Management and Co-ordination (Air Quality Standards) Regulation, 2009

• The Environmental Management and Co-ordination (Chemical management) Regulations, 2007

OTHER RELEVANT SECTORAL STATUTES

• Forest Act, 2005.

• Water Act, 2002.

• Physical Planning Act (CAP 286).

• Agriculture Act (CAP 318).

• Wildlife (Conservation and Management) Act (CAP 376).

• Land Laws.

• Occupational Health and Safety Act, 2007

EMCA AND THE CONSTITUTION.

• Preamble - a declaration of the commitment by the people of Kenya to respect the environment, our heritage and the determination to sustain it for the benefit of future generations - intergenerational and intragenerational equity.

• Principle of sustainable development - entrenched in the Constitution under Article 10 (d) - National values and principles of Good Governance.


• The Constitution then guarantees rights and fundamental freedoms in the Bill of Rights among which is the right to a clean and healthy environment at Article 42.

• Article 42 guarantees the right to a clean and healthy environment, and the right to have the environment protected for the benefit of present and future generations through legislative and other measures.


• Art. 69(1) (a) – (h)imposes obligations on the state while Art (69) (2) imposes obligations on every person, to cooperate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.


Art 42 also guarantees the Right to have obligations relating to the environment fulfilled under Article 70 (Enforcement of Environmental Rights and violations to Art. 42). Art 70 provides an avenue for redress where a person alleges that the right to a clean and healthy environment has been is being or is likely to be denied, violated, infringed or threatened.

EMCA AND THE CONSTITUTION

• The judiciary – System of Courts

The ELC established by Article 162(2)(b) – note: High Court expressly denied jurisdiction over environmental matters by Article 165 (5) (b). Instead of the HC, the ELC shall hear and determine matters concerning environmental rights conferred by Article 42.

PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW

RELEVANT TO ENVIRONMENTAL GOVERNANCE IN KENYA

• Found in international laws, Constitution, EMCA and the regulations thereunder.

• Polluter Pays Principle – Polluters to bear full environmental and social costs. Art. 70 of Const.

• Principle of Public Participation - Principle seeks to ensure environmental democracy i.e. public participation in environmental or developmental decision-making. Art. 69 (1) (d) Const.

PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW RELEVANT TO ENVIRONMENTAL GOVERNANCE IN KENYA

• Principle of sustainability - Strives for equity in allocation of benefits of development and decries short-term resource exploitation without consideration of long term costs. Art 10 (d) Const.

• Inter & Intra-generational equity - Examined together with the principle of sustainability, it focuses on both present and future generations as rightful beneficiaries. Art. 10 (d), 69 (1) (a) Const.

PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW RELEVANT TO ENVIRONMENTAL GOVERNANCE IN KENYA

• Precautionary Principle - Calls for precaution in environmental decision-making where there is scientific uncertainty.Applied in decision making by courts, NEMA, EIA review process, e.t.c.

• Principle of Prevention - Protection of the environment is best achieved by preventing harm at the source rather than relying on remedies or compensation after harm.

RELEVANT INTERNATIONAL LAWS

• Convention on Biological Diversity (CBD);

• African Convention on the Conservation of Nature and Natural Resources;

• Vienna Convention for the Protection of the Ozone Layer;

• Montreal Protocol and (London Amendment ) on Substances that Deplete the Ozone layer;


• Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention);

• Convention on International Trade In Endangered Species of Wild Fauna and Flora (CITES);

• Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention or CMS);


• Convention of the Prevention of Marine Pollution by Dumping of Wastes and other matter;

• International Convention for the Prevention of Pollution from Ships;

• Lusaka Agreement on Cooperative Enforcement Operations Directed at Illegal Trade in Wild Fauna an Flora (Lusaka Agreement);


• United Nations Convention on the Law of the Sea (UNICLOS);

• United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and /or Desertification, Particularly in Africa;

• Convention Concerning the Protection of the World Cultural and Natural Heritage;


• Convention for the Establishment of the Lake Victoria Fisheries Organization; and

• United Nations Framework Convention on Climate Change.

• Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. Basel, 22 March 1989


• Cartagena Protocol on Biosafety to the Convention on Biological Diversity. Montreal, 29th January 2000

• Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa. Bamako, 30th January 1991.


• Stockholm Convention on Persistent Organic Pollutants. Stockholm, 22 May 2001

• Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. Rotterdam, 10 September 1998

• Kyoto Protocol to the United Nations Framework Convention on Climate Change. Kyoto, 11 December 1997

Food for thought! • How can you ensure achievement of SD per

Art 10 2 (d) Const. which states that among the national values and principles of governance is SD?

• How can you ensure that the right to a clean and healthy environment is not violated or is upheld?

• What obligations do you expect the state organs that you interact with to fulfil under article 69 (2) of the Const?

THE END.

THANK YOU FOR YOUR ATTENTION.

POLICY, LEGAL & INSTITUTIONAL FRAMEWORK FOR ENVIRONMENTAL...

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