LEGISLATION IN ENVIRONMENTAL MANAGEMENT IN KENYA
- Category: Policy Work and Legislation
- Date 31-05-2023
The Kenyan environment & climate change sectors are guided by the Constitution of Kenya, 2010 and other sector-specific laws and policies as well as international and regional treaties that Kenya is a signatory to and are recognized under Article 2(5) of the Kenyan Constitution. Some emerging environmental management principles such as the “polluter pays” principle, public participation in environmental management and conservation, sustainable and responsible development among others have been adopted into the Kenyan law which recognizes a good and healthy environment as a human right.
The Constitution of Kenya recognizes the importance of preserving the environment for the benefit of future generations, and in order that this is achieved, the Climate Change Act, 2016 was adopted into law and it guides the country’s economic development path ensuring it meets the thresholds outlined in Articles 10 and 42 of the Kenyan Constitution which ensure that sustainable development and environmental rights are protected for the current and future generations.
One of the prime initiatives of the Climate Change Act, 2016 is the formulation of the National Climate Change Action Plan (NCCAP) which is reviewed every five years and aims to “further Kenya’s development goals by providing mechanisms and measures to achieve low carbon climate resilient development.” Under the plan, Kenya is required to develop and deliver on its Nationally Determined Contributions (NDCs) as provided for under the Paris Agreement. The NCCAP also established and prioritized seven thematic areas of climate action which are: disaster risk management - drought and floods; food and nutrition security; water and the blue economy; forestry, wildlife and tourism; health, sanitation and human settlements; manufacturing; and energy and transport.
The Kenyan government has aligned the NCCAP to Kenya’s Vision 2030 and the UN Sustainable Development Goals (SDGs) which aim to reduce carbon pollution and enhance the quality of life of each Kenyan household. Through appropriate legislation, the government has been able to undertake conservation measures such as the relocation of communities living in and around ecologically sensitive areas such as the Mau Forest, rehabilitated rivers, undertaken huge tree planting campaigns and projects to achieve the minimum 10 percent forest cover requirement and in June 2020, banned single-use plastics. There have also been fiscal measures undertaken to ensure the environment is protected, pollution reduced and sustainable development encouraged such as tax incentives for recyclers, carbon taxes for polluters and a newly floated congestion tax which aims to reduce pollution in urban areas caused by traffic congestion.
The past few years have seen impressive legislation on the environment and climate conservation and management sectors of the Kenyan society. Some of the guiding legislative frameworks are as below:
Legislative framework
i The Constitution of Kenya 2010
There are several important Articles of the Kenyan Constitution that cover environmental matters. These are:
Article 10: This section lays down important principles of governance and national values that guide government action in policy formulation and implementation.
Article 42: This ensures and guarantees to every Kenyan citizen the right to a clean and healthy environment and requires that the environment is protected for current and future generations.
Article 69:This provides for the sustainable use, management and conservation of natural resources to ensure benefits are equally shared to different people and communities across the conservation chain.
Article 70: This secures the right of every Kenyan to a clean and healthy environment and makes provisions for enforcement action and compensation for those deprived of this right.
Article 162: This Article established the Environment and Land Court (ELC) which has the status of a High Court and deals with all matters related to environmental protection. Among other powers, the court can make laws, make preventive, cessation and compensatory orders.
ii The Environment and Management Co-ordination Act 1999
Recognized as Kenya’s first framework environmental law, the Environment and Management Co-ordination Act (EMCA) 1999 sets out general principles, creates administrative bodies, lays out environmental quality standards and provides for the inspection, enforcement and punishment of environmental offenders. It is a crosscutting law that is used in water, land, forest, mining and wildlife conservation and management among others and harmonizes various laws in Kenya’s environmental and natural resource management. The law has undergone a few amendments with the most notable one being the 2022 Amendment law and among changes it introduced was a proposal for the National Environment Management Authority (NEMA) to develop guidelines for integrating climate risk and vulnerability assessments as part of the environmental impact assessment study. EMCA also established the National Environmental Complaints Committee (NECC) under Section 31 of the EMCA (Amendment) No. 5 of 2015. NECC plays an important role in dispute resolution in matters relating to the environment.
The Ministry of Environment, Climate Change and Forestry seeks to overhaul EMCA 1999 and support the full amendment of the EMCA Bill 2022 to incorporate the rights of nature and environmental rights defenders, crime of ecocide, conservation of urban forests and green spaces among other emerging trends such as the multi-billion shilling Carbon Market.
iii The Climate Change Act 2016
The Climate Change Act 2016 provides a regulatory framework for an enhanced response to climate change and measures to improve resilience to climate change reduce carbon emission. The Act also provides a legal basis for the establishment of the NCCAP, the National Climate Change Council and the Climate Fund.
With the 2016 enactment, Kenya joined the league of nations that have taken concrete steps to domesticate the Paris Accord on Climate Change. To support the implementation, a few draft regulations and policies have been developed and are as below:
a. The Draft Climate Change (Public Participation and Access to Information) Regulations 2021. Pursuant to Section 24(3) of the Climate Change Act, these set of regulations seek to set public participation thresholds as enshrined in the Kenyan constitution to ensure that there is meaningful public participation. The Regulations also give a guidance on how information related to climate change shall be distributed to the public in line with the Access to Information Act No. 31, 2016.
b. The Draft Climate Change (Duties and Incentives) Regulations 2021, seeks to impose climate change duties on public entities in the national and county governments. This Regulation tasks government entities with ensuring the NCCAP, NDCs and National Adaptation Plans are implemented by streamlining and integrating all of their recommendations as per their departments and laws, policies, programs, plans and development activities. Part III of this Regulation also gives some climate action obligations to private entities and individuals undertaking mitigation initiatives. Under this section, private parties are given fiscal incentives by the cabinet secretary in the responsible ministry.
c. The Draft Climate Change (Monitoring, Reporting and Verification) Regulations 2021. The main aim of this Regulation is to provide a framework for monitoring, reporting and verifying greenhouse gas (GHG) emissions; mitigation and adaptation actions; and climate change enablers such as climate finance, technology development, and transfer and capacity building.
d. The Draft Climate Change (Code of Conduct and Conduct for Doing Business) Regulations 2020, guides the conduct of members of the National Climate Change Council;
e. The Draft National Climate Change Learning Strategy 2021–2031, sets the framework for promoting public awareness to enhance knowledge and participation of the general public in climate action.
iv The Energy Act 2019
The Energy Act 2019 is a very broad legislative document that covers all forms of energy - fossil to renewable energies. The Act mandates the government to promote the development and use of renewable energy, and guides the transition to a green economy with likely gains in environmental protection and climate change.
v The United Nations Framework Convention on Climate Change and the Paris Agreement
Kenya has ratified both the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. With these, Kenya is obligated to plan, take action and report on measures taken to mitigate global warming.
As a party to the UNFCCC and the Paris Agreement, Kenya submitted its updated NDCs (2020–2030), highlighting its priority actions for adaptation and mitigation.
Regulators of the Environment Sector
Regulation in the environment sector is based on the recommendations of the EMCA Act which establishes among others the following institutions; National Environment Management Authority, National Environmental Complaints Committee, National Environment Tribunal, National Environment Action Plan Committees, and County Environment Committees. The National Environment Management Authority (NEMA) was established as the principal instrument of government charged with the implementation of all policies relating to the environment, and to exercise general supervision and coordination over all matters relating to the environment. In consultation with the lead agencies, NEMA is empowered to develop regulations, prescribe measures and standards and, issue guidelines for the management and conservation of natural resources and the environment. The Act provides for environmental protection through;
·Environmental impact assessment
·Environmental audit and monitoring
·Environmental restoration orders, conservation orders, and easements.
NEMA is also the Designated National Authority for certain Multilateral Environmental Agreements.
The constituion and the government of Kenya has decentralized environmental management and conservation. To this end, a number of county governments have developed legislation to fulfil their climate action obligations. Kajiado, Nakuru, Bomet, Kisumu and Turkana have each developed their own County Climate Change Bills with some of them being already enacted and adopted into laws.
The National government through the Treasury supports climate change legislation at the county level through the Financing Locally-led Climate Change Action (FLOCCA) Programme that gives them access to funding for capacity building and implementation of the NCCAP at county levels.
This article originally appeared on fankenya.or.ke