ENVIRONMENTAL LAW
The focus is on national environmental law, not enough time to cover international but just a background to international environmental law. it is an introduction course for national environmental law.
The Concept of the Environment
Theory that forms the management of environmental law
Physical Planning and Development Law
Water
Air
Hazardous Chemicals and substances
The Theory of Environmental Management
What is environment?
Albert Einstein defined the environment as everything except me” this is the most comprehensive definition because it is all encompassing. This definition means in the end that the environment is perceived from the point of view of the person who is interacting with the environment, it is from the point of view of the actor which means that with respect to your neighbour, you are part of the environment and so is your neighbour.
In Kelsenian philosophy then the environment represents the other.
There is not a complete dichotomy between me and the environment since when my neighbour is speaking I am part of the environment.
For purposes of the subject of environmental and natural resources law the component of the environment law that is dealt with is the component of the natural environment which represents that aspect of the environment which has arisen without the intervention of human beings. The natural environment is influenced by human beings but it is not the direct result of human activity and in that sense one can talk of the ecosystem and biological diversity etc. all these are aspect of the natural environment. Human beings influence the natural environment to the extent that it becomes difficult to appreciate it independent of the human influence. In that sense the natural environment is not represented by organisms which have arisen outside of human influence. It is common to imagine that God created the world but in fact much of this has come about through interaction between humans and nature and this is what we describe and natural environment.
The natural environment is in a constant state of motion, it is dynamic. Human beings are part of that dynamism of nature. Nature has a tendency towards achieving a balance and this is an inherent tendency which means left alone nature would achieve a balance.
Secondly nature has an inherent capacity to absorb change. Part of that change arises from the impact of human activity on nature, essentially because humans are part of nature, then humans are part of the dynamism of nature, human will also influence this motion. Human activity with respect to nature is legitimate, it is perfectly natural, environmental management is not based on the theory of zero impact on nature because nature can absorb impact from humans and other aspect. The reality is that human impact on nature has a tendency now to destabilise the natural balance and that destabilization of the natural balance is what we refer to as environmental degradation or pollution.
Human impact on nature tends to destabilise nature because of advance in technology which has meant that the capacity of humans to impact on nature has changed in scope and character. A good example is that humans are not content just to have basic things, they want more and have the capacity to build bigger for example houses and so on. Humans are even attempting to create new forms of nature through technology like bio-technology
Secondly human beings are adventurous, they have limited knowledge about natural processes and therefore often humans cannot predict the impact of their activities on nature but because of the constant experiments that humans carryon in respect to nature, quite often there are impacts which are not observed until the damage has occurred. The case of the Nile Perch is introduced in Lake Victoria without realising it will eliminate all other fishes. Limitations of human knowledge are important aspect.
Human acquisitiveness which is that humans on the whole are not content to live from day to day, they want to stock for the future so they acquire, most animals have a meal a day and assume that the next meal will be available when they wake up but not so humans, humans stock and the result is that they do not allow nature to recover its balance because of this tendency of planning ahead.
Because of the tendency by humans to destabilize natural balance, it becomes necessary to put into place measures for regulating human conduct which impact on the environment. Left to themselves, the human instinct is very much towards self-aggrandizement, it is this behaviour which tends to mean that the logic that human behaviour will destabilize the environment might be appreciated academically but in reality nobody thinks about it. In economic terms it is referred to as the tragedy of the commons (the phrase is inherited from British economist called Harding who wrote about commons which refers to a common area, Harding described his observation with regards to a traditional community who rely on the commons for grazing, the cows are owned individually but the grazing area is held in common and the result is that everyone has the urge to maximise the use of the commons like adding the numbers of cows grazing at the commons or sending them earlier before others, the result is that the commons is degraded but no one restrains themselves because everyone thinks the neighbour will get the better of them) this is why left to themselves, humans will degrade the environment because the environment is common to everybody and the benefit to be had from exploiting the environment is individual and so each person has the temptation to appropriate more and more components of the environment. It becomes necessary to introduce standards to regulate human behaviour.
ENVIRONMENTAL LAW DEFINED
Environmental Law is thus defined as norms which regulate human conduct in order to ensure that the impact of human conduct does not destabilize natural balance. This law is more about human behaviour.
In determining environmental degradation there is a tendency to think in subjective terms which essentially means that we define environmental law qualitatively or subjective e.g. this air is polluted. Qualitative perceptions are problematic in the context of enforcement. The Penal Code has a provision that makes it an offence for vehicles to emit dark smoke, it is a misdemeanour, dark smoke is clearly an environmental pollutant and the problem is how to prove that dark smoke was emitted. So the way in which we utilise concept of environmental degradation is by introducing objective standards.
A standard is an objective indicator of environmental degradation or pollution and standards are expressed numerically in terms of numbers. For instance one will say that 10mg/litre of chlorine, one may say that anything above 10 is pollution and below is not. In dealing with environmental offences one needs a numerical representation.
HISTORY OF MODERN ENVIRONMENTAL LAW
Modern environmental law dates back to industrialization that occurred in the West this is in the last century. Internationally, environmental issues were taken up by the United Nations after the 2nd World War. In the 1960s the General Assembly of the UN thought to organize a conference focusing on the issue of industrial pollution and urban settlement. The two issues of industrial pollution and urban settlement were the environmental issues affecting western industrialised countries at the time. The UN General Assembly as an organ brings together both industrialized and non-industrialized countries. In the 60s non-industrialized were represented by countries that had just emerged from colonialism and whose predominant preoccupation was with economic development which they understood at the time as arising from industrial growth. The thinking of non-industrialised countries was influenced by the experienced of industrial countries who had achieved economic development through industrialisation. They therefore assumed that the way to develop was to industrialise. They interpreted efforts by industrialised countries to regulate industry as being an attempt by industrialised countries to limit the prospects for economic development by the non-industrialised countries.
Therefore there was an ideological divide in the UN about the necessity and utility of a conference on industrial pollution and urban settlement. The West wanted it because they were experiencing the negative of industrial pollution and unplanned urban settlement, the Southern Countries saw this as a Neo-imperialist plot to keep them poor and so there was an ideological divide. The Stockholm Conference on Environment and Human Settlement was held in Stockholm in 1972 against the background of the ideological divisions.
This conference came up with the Stockholm declaration one of whose principles was that development is the sovereign right of each state and that environmental management is a matter of national jurisdiction. The focus was at this time to see these as issues of national jurisdiction and not of international concern. Nevertheless, the Stockholm conference agreed to establish an environmental program within the United Nations in order to gather scientific data and information on the problem of the environment and to put forward proposals on dealing with the environmental problems identified. That programme initially was located in New York but from 1974 it was located in Nairobi by a General Assembly decision. (UNEP) and has become the main UN institution in the field of environment.
The conference also agreed to establish a centre for Human Settlement also located in Nairobi and now known as HABITAT so that both UNEP and HABITAT became Institutions of UN focussing on issues of environment and urban settlement.
Subsequently to Stockholm in 1993 the UN established a commission to examine the relationship between environment and development in an effort to bridge the ideological divide. The UN Commission on Environment and development was chaired by the Norwegian Prime Minister known as Gro Harlem Brundtland, the Commission produced its report in 1987 known as Our Common Future: The Report of the UN Commission on Environment and Development – 1987. Our Common Future has one enduring phrase, it attempted to define the relationship between environment and development and said that “Environmental protection requires that economic development must be sustainable.” It popularised the term “Sustainable Development” it defined sustainable development as development which meets the needs of the present generation without compromising the ability of the future generations to meet their own needs.
The concept of sustainable development was acceptable to both sides of the ideological divide. For those interested in environmental protection, it recognised the need to regulate economic development and for those interested in economic development it accepted that economic development was a worthwhile and legitimate pursuit. The link is that economic development must be sustainable and it is sustainable if it allows the present generation to meet their needs but does not compromise the ability of future generations to also meet their needs.
The Commission used the analogy of capital and interest to explain the concept of sustainable development. Capital represents the stock of natural resources and interest represents the annual growth in the stock of natural resources. Thought of in environmental terms the commission was saying that assuming we have inherited a stock of natural resources like a forest, if we cut one tree then we plant two. This is to sustain the resource. This theory proved attractive to both sides of the divide.
In 1992 the UN General Assembly held a 20th anniversary to the Stockholm conference held in June 1992 in Rio De Janeiro, The Rio Conference – UN Conference on Environment and Development, this was the first of the series of UN conferences established the nature of Modern international environmental law, this was because it was attended by the heads of states and governments of all countries of the world who were member states of the UN and the only head of state who did not attend was George Bush since the US had a disagreement with the other countries over the issue of climate change. The nature and level of attendance is significant because the resolutions that were adopted are believed among international lawyers to have created soft law. The resolutions created soft law i.e. law that is not outlined in the UN Charter as sources of international law. soft law is influential although not necessarily binding and their influence comes from the fact that all countries from heads of states and their officials have endorsed them.
The concept of sustainable development was endorsed as the theoretical underpinning of Modern environmental law at the Rio Conference. This has begun to make its way into sources of hard law through reference in treaties and decisions at the ICJ.
The document that endorsed the concept of sustainable development is the Rio Declaration on environment and development. It is not feasible today to say one is an environmental lawyer without the thorough grasp of the concept of sustainable development.
The Rio Conference also adopted a document known as Agenda 21. Agenda 21 is a statement of principles on how to achieve sustainable development in the 21st Century.
The Rio Conference also established a UN institution known as the UN Commission on Sustainable Development which is the organ of the UN supposed to monitor progress by the international community towards achieving sustainable development. It meets at intervals of 5 years to review progress and to set targets. Its headquarters is in New York. There is the theory that has emerged that Environmental management is just one pillar of sustainable development, and that there is social equity and economic development in order to really develop sustainability.
There are a few people who think that the concept of sustainable development as defined by the Brundtland Commission is both inappropriate and inadequate. There are two reasons for this
1. The argument that the concept of sustainable development is anthropocentric in nature as opposed to being bio-centric.
2. The argument that the concept of sustainable development focuses on the relationship between present generations and future generations and requires that the future relationship be equitable. In that sense it is a concept based on inter-generational equity. It ignores intra-generational equity and is silent and because it is silent on intra-generational equity, the West likes it.
What the concept has done is to direct focus away from the inequities that have taken place. For example if one takes energy, almost 36% of today’s energy sources are being used by the United States, between Europe and USA they use 80%, and Africa about 1%. This critic is focussing on the need to equitably distribute resources.
Anthropocentricity is the theory that human beings are at the centre of the world and that this theory of sustainable development is centred on human interest. The Rio declaration Principle 1 says that human beings are at the centre of concerns about sustainable development. Anthropocentricity focuses on human self interests while bio-centricity focuses on biological organisms. The criticism is that it has not focused on bio-centricity and therefore legitimises human exploitation of natural resources at the expense of other components of the eco systems. It also legitimises human tendency to see the world in terms of human self-interest.
Anthropocentricity should not become the focus you will not end up with the balance but the preponderance of what humans want to create.
Bio-centricity argues that there is no ranking and humans and mosquitoes are equal and that the interest in managing the environment should focus in keeping that balance. Everyone has its place and everyone’s place is the equal of the other. The criticism is that it is anthropocentric in focus and therefore legitimates a re-ordering of nature away from natural balance.
Enforcement of environmental law
Enforcement may be defined as the process of bringing about compliance with legal requirements. And that process can be based either on action by private parties or it can be based on action by state agencies. Where it is based on action by private parties then the action is a civil law action and where based on action by state agencies it is a criminal law action.
Private parties may take court action against either private individuals or against public entities. Ordinarily the private litigant may only take court action in order to redress private injury. Where a private individual wishes to bring court action to redress an injury to the public then under the common law that private individual is required to obtain the permission of the Attorney-General to use the Attorney-General’s name in the action and such an action is known as a related action.
Given this philosophy it is not possible under the common law for private individuals to bring action in their own name to redress damage to the environment, the reason being that damage to the environment is the wrong to the public and therefore only the Attorney-General would be entitled under the common law to bring suit to redress it.
This traditional position has been popularized in the case of Gouriet v Union of Post Office Workers (1964) All Er which is an English authority. This was during the time of apartheid in South Africa. The Union of Post Office Workers in England decided that as a sign of solidarity with the black African working in an apartheid regime in South Africa they would refuse to handle mail that was intended for delivery to South Africa or was received from South Africa. Gouriet, a public spirited individual decided to bring an action against the Union of Post Officer Workers arguing that to refuse to handle mail in the way in which the union proposed to do amounted to criminal offence under UK law. And Gouriet sought orders from the court preventing the union from committing a criminal offence. The court declined to give the orders sought and the reasons are articulated in the judgment of Lord Atkins. He said, “The jurisdiction of a civil court to grant remedies in private law is confined to the grant of remedies to litigants whose rights in private law have been infringed or are threatened with infringement. To extend that jurisdiction to the grant of remedies for a lawful conduct which does not infringe any rights of the plaintiff in private law is to move from the field of private law into that of public law where different principles apply.”
That same principle of Gouriet was upheld in the Wangari Maathai v Kenya Times Media Trust, civil case no. 5403 of 1999. Kenya Times Media Trust wished to construct an office block in Uhuru Park which they said was going to be about 60 stories. Wangari Maathai – then leader of the Green Belt Movement --sought an injunction to stop the construction of the office block on the basis that Uhuru Park was a public recreation facility. The AG took a preliminary objection to the application on the basis that that Wangari Maathai had no locus standi.
Dugdale J. observed that, it is not alleged that the plaintiff has any right either public or private which has been breached by the defendant. It has not been alleged that it has caused her any damage and nor does she anticipate any damage. It is well established that only the AG can sue on behalf of the public. The court finds the plaintiff has no locus standi and therefore no right against the company.
Locus standi is inherited from British law. Under common law a private individual is able to bring action in that private individual’s name on the basis of an interference with the public right in two situations.
- where the interference with the public right also interferes with some private right of the person concerned
- where in the absence of any interference with the private right the person concerned has suffered damage peculiar to himself or herself which is additional to that suffered by the rest of the public.
That common law position has been redressed in most countries by the introduction of statutes which grant members of the public locus standi with regard to the damage to environment Section 3 of the EPA gives every person right to a clean and healthy environment and subsection 3 if a person alleges that his entitlement to a the clean and healthy environment has been or is likely to be contravened that person can apply to the High Court for redress. A person who is proceeding under this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury. So under section 3 it is possible for individuals or bodies to bring action with respect to environmental damage without having to show that they have suffered personal loss.
Nixon Sifuna v Nema. He claimed a number of things including the goings on in Mau Forest and that the Director was not qualified and other complaints and the court could not strike out these complaints because he had not suffered any personal damage. It was dismissed but not on the basis of locus standi.
The basis of a claim under civil law is known as a cause of action. The cause of action arises if there is cause of injury to a person or property. If the injury is caused by a public body exercising public powers or performing a public duty then it is public law cause of action.
Where the injury is caused by a private person or caused by a public body in the cause of a private action then the cause of action is private law cause of action.
One is tort, the other is judicial review.
The causes of action in public law are ultra vires, natural justice, and error of law. The remedies are certiorari, prohibition, mandamus and declaration.
The causes of action in private law are trespass, nuisance, strict liability, negligence and the Rule in Rylands v Fletcher and the remedies of injunction. Action in public law is supposed to be legal in public bodies the process is known as judicial review
Where action is taken in judicial review the objective is to quash an unlawful decision known as Certiorari or to stop an unlawful action known as Prohibition or to require the performance of a public duty known as Mandamus. At times all an applicant wants is a declaration of the legal position and that is known as a Declaration.
Judicial review is available where the public body has committed the following acts or omissions:
1. where the public body has acted beyond its powers, it has acted ultra vires; or
2. where the public body has infringed the principles of natural justice; or
3. where the public body has acted in error of the law
Statute has also provided for judicial review to persons who are aggrieved by the decisions of the public body. The aggrieved applies to the court to review the decision with which the person is dissatisfied. In the case of The Attorney General of Gambia v Njie Lord Denning said the words person aggrieved are of wide import and should not be subjected to a narrow interpretation. They do not of course include of course a mere busybody who is interfering with things that do not concern him but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interest.
Judicial Review
Judicial review has been incorporated in Order 53 of the Civil Procedure Act. Order 53 requires the applicant to seek the leave of the court to bring an action. In granting leave the court has to consider whether the applicant has sufficient interest in the matter and most applications collapse because of that.
Trespass
In private law the causes of action trespass arise where a person causes physical matter to come into contact with another’s land. Trespass protects a person’s right to enjoy his land without unjustified interference. It is limited to direct rather than indirect interferences.
Nuisance
Nuisance consists of private and public nuisance. Public nuisance is an interference with the public’s reasonable comfort and convenience. It is an interference with the public’s rights and constitutes both a criminal offence and private cause of action. In the case of AG v PYA Quarries Ltd, Lord Denning said: “It is described public nuisance which is so widespread in its range and so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it but that it should be taken on the responsibility of the community at large.” The case before Lord Denning concerned quarrying next to a public road and the quarrying raised dust which was interfering with the visibility of motorists on the road.
A private nuisance is an interference with a person’s enjoyment of his land. Not all interferences amount to nuisance. Nuisances are those interferences that are unreasonable causing material and substantial injury to property or unreasonable discomfort to those living on the property. The liability of the defendant arises from using land in such a manner as to injure neighbouring property. Therefore nuisance imposes a duty of reasonable use on neighbouring occupiers.
The reasonableness of the use is determined by
1. the locality of the activity
2. utility of the activity.
Locality of the activity is illustrated in the case of Studges v Bridgeman. A confectioner had for more than 20 years used a pestle and mortar in his back premises. The back premises abutted on the garden of the physician. The noise and vibration were not felt as a nuisance and were not complained of; but in 1873 the physician built a consulting room at the end of his garden and then the noise and the vibration became a nuisance to him. He brought an action for an injunction and succeeded and the court held that whether anything is a nuisance or not is a question to be determined not merely by an abstract consideration of the thing itself but by reference to its circumstances.
The law of nuisance is what has led to law of planning, to separate incompatible uses.
The utility is the second consideration: with regard to utility the best illustration is Christie v Davey, two neighbours who lived in maisonettes. Davey gave music lessons in her premises. The noise from the music instruments were nuisance to Christie. So he brought pots and pans adjoining the music room. So they sued him. And the court ruled the action of Christie had no utility.
Strict Liability
Strict liability arose from Rylands v Fletcher. The defendant, Fletcher constructed a reservoir to collect and hold water for his mill. Under his land were underground workings of a coalmine whose existence he was not aware of. After the reservoir had been filled with water, the water escaped down the underground workings through some old shafts and flooded the plaintiff’s colliery. The plaintiff filed a suit which failed on the basis of trespass and nuisance. The court basically created a third cause of action now known as strict liability and explained that a person who for his purposes brings onto his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril and if he does not do so he is prima facie answerable for all the damage which is the natural consequence of the escape.”
The matter went to the court of appeal and the court of appeal added the proviso that the liability arises because the land had been put to a non-natural use. For such use of land the occupier is strictly liable for the consequences of the escape. Strict liability means the occupier is responsible whether or not he was wrong.
Negligence
Negligence arises from the failure to exercise the care demanded by the circumstances with the result that the plaintiff suffers an injury. Negligence is the only private law cause of action whose objective is not necessarily to protect the enjoyment of land. With the other three you must have an interest in land in order to sue. What the plaintiff needs to show is that he is owed a duty of a care and that the defendant has breached that duty of care with the consequence that the plaintiff has suffered an injury. The famous illustration is Donaghue v Stevenson. Lord Atkins asked the question “Who is my neighbour? My neighbour is the person who is so closely and directly affected by my act that I ought reasonably to have him in contemplation when directing my mind to the acts in question.”
This definition led to a fourth cause of action called negligence which requires that every person owes a duty of care to all those who he can foresee might suffer injury if he does not behave with care. The principle of negligence has freed the private law causes of action from application only to landowners.
Remedies
There are basically two remedies: damages and injunction. Damages is compensation given to a party who has suffered an injury. The sum added is based on the principle that the injured person should be placed in the position he or she would have been in had she not been injured.
Injunction
This is an order of the court which directs the party to do or refrain from doing something. It is granted to stop a continuing or a recurring injury in circumstances where damages would not be adequate compensation.
Typically an injunction will not be granted unless the damage is serious and irreversible. In deciding whether to award an injunction the court will decide on the balance of convenience. In the US but not in other Commonwealth jurisdictions litigants have taken the point that to deprive a landowner of the use of his or her land by awarding damages instead of an injunction is tantamount to compulsorily acquiring that land in favour of the neighbour.
Next: Use of criminal law for the purposes of enforcement
PHYSICAL PLANNING:
Physical Planning is basically the mechanism for the management of the environment and in the majority of countries it served for a long time as the only framework for environmental management. Physical Planning essentially refers to the organisation of the use of physical space and its environmental role arises from its ability to separate incompatible uses because incompatibility in use tends to be the primary positive factor in the perception of pollution. The background to physical planning is to be found in the common law specifically in the law relating to property interests in land.
Under the Common Law a landowner has the right of use and abuse of the land and the right of use and abuse is the right to use the land productively or to commit waste on the land. The commission of waste may extend to environmental degradation of the land. The primary limiting factor to the landowner’s right of use and abuse is a correlative right enabling land owners all sorts of use and abuse. This means that each landowner has a comparable right of use and abuse. The common law gives to each landowner the right to prevent a use from neighbouring land which would interfere with his land. Under the common law the principle mechanism for a landowner to protect the right of use is the law of nuisance. It enables landowners to take action to prevent unreasonable use which unjustifiably interferes with the reasonable comfort and enjoyment of an occupant of land.
The common law action of nuisance is reactive in nature which means that it comes into play when the unjustifiable interference occurs. It is not pre-emptive in nature.
With the development of the modern State, legal jurisprudence began to develop to the effect that the State could assume cumulatively the individual rights of each of the landowners to prevent unreasonable use which causes unjustified interference with the enjoyment of land. Jurisprudence began to develop allowing the State to act on behalf of all the landowners who could individually take action, this was developing because of the growth of the Modern State. the action by the State on behalf of individual landowners is known under the common law as the exercise of Police power. Police power essentially relates to the State taking action to prevent unreasonable use of land which interferes unjustifiably with neighbouring landowners.
In the exercise of Police Power the State can act only to prevent unreasonable use of land and it is in that context that the State can act to prevent use of land which can cause environmental degradation. During the development of police power, the State has not restricted itself to reactive action but has gone further to take pre-emptive action and the pre emptive action has taken the form of planning the use of physical space and therefore the State has developed mechanisms for putting in place measures to prevent individual landowners from using their land in such a way that environmentally degrading acts are committed.
In the legitimate exercise of police power the State can prevent a landowner from developing the land but as long as the action is taken in order to protect the interest of other landowners then the State is not obligated to pay compensation to the landowner whose rights of use have been restricted. If on the other hand the State takes action to confer a benefit on the other landowners then this would amount to an exercise by the State of its power of Eminent Domain and for this compensation is payable. An example is the case of Just V Marinette County 201 N.W. 761 This is a case in which in 1961 a couple known as the Justs purchased land along a lake. Subsequently a law was passed which designated the land and the lake as a protected swamp (wetland) following the passage of this law in 1968 the Justs commenced building on their land and dug and started placing the material that they dug out of the building site on to the wetland as a way of getting rid of it. The County sought an injunction to restrain the Justs from filling the wetland without obtaining a permit as required by the law. The Justs argued that to prevent them from using their land in this way amounted to a compulsory taking of their land without compensation. The County argued that the restrictions were a proper exercise of police power and did not merit compensation. The court held that this was a restriction on the use of property not to secure benefit to the public but to prevent harm from the change in the natural character of the property. The public purpose sought to be obtained by the law was to protect navigable waters and the public rights in them from degradation which could result from uncontrolled use and development of shore lands.
The outcome of the common law position has been the development of the branch of law known as physical planning law and as we’ve indicated physical planning relates to the organisation or use of physical planning. It has two components, planning and development control.
PLANNING
The planning of the use of physical space may be defined as the establishment of the objectives to be achieved in the use of given physical space.
DEVELOPMENT CONTROL
This relates to the mechanisms to ensure that development activities comply with the statement of objectives or comply with the plan.
The two components must be there to have a system of physical planning. In Kenya we seem to have the plan but no effective system for ensuring compliance.
There is no necessary correlation between the existence of a physical plan and the achievement of environmental objectives, the two don’t need to go together. Physical planning is an indication to be achieved with regards to physical space. In our time physical planning has been used expressly for purposes of environmental management and the tool which is used to ensure that physical planning serves an environmental management purpose is an Environmental Impact Assessment.
There are 3 components
1. Plan
2. Development Control
3. Environmental Impact Assessment this is the system that ensures that physical planning serves an environmental purpose.
In the USA physical planning is referred to as zoning because in practice users of physical space are specified on the basis of zones. The term zoning is quite illustrative of the activity taking place. In order to ensure that one minimises pollution issues, one has to ensure that users within one zone are compatible users, i.e. industries with industries and residents with residences.
In Kenya there are 3 principle statutes that deal with Physical Planning
1. The Land Control Act
2. Physical Planning Act
3. Environmental Management and Coordination Act
Land Control Act regulates development, use and subdivision of agricultural land, it was designed to ensure that agricultural land is used and developed in such a way that good husbandry is not compromised. Consequently the process required that the regulatory institution known as the Land Control Board must be satisfied that the user of the land or the prospective user is capable of putting the land to productive agricultural use. For instance the Board may ask for what purposes the land is being purchased and whether it is being put to good use, secondly the board must ensure that land is not subdivided into sizes which are not capable of being put into agricultural use.
In practice what has happened is that the Land Control Board for various reasons has drifted away from monitoring agricultural use and has become a body for promoting family peace i.e. ensuring that the family is in agreement on whether to sell the land. They are not serving the intended purpose. The mechanism of the Land Control Land allows the Land to be used for purposes of environmental management but it has not been used thus.
The Physical Planning Act is a much more comprehensive statute that provides for physical planning and development control. The Physical Planning Act was enacted in 1996 repealing two earlier statutes the Town Planning Act (Planning in Urban areas) and the Land Planning Act (Planning in rural areas). The Physical Planning Act provides for planning in both urban and rural areas. It came into effect in November 1998 as a response primarily to the outcry relating to the excision in Karura Forest. Nevertheless it is now in effect. Institutionally the Physical Planning Act places the functions of Physical Planning in the Office of the Director of Physical Planning, administratively the director of physical planning is an officer in the ministry of lands. The Act states that the Director of Physical Planning is the chief government advisor on all matters related to physical planning and in that capacity he shall formulate physical development policies prepare physical development plans, advise the Commissioner of Lands on the alienation of government lands, advise the Commissioner of Lands and Local authorities on the most appropriate use of land and require local authorities to ensure the proper execution of physical development control. The Act establishes committees known as physical planning liaison committees at National, provincial and district levels. The function of these committees is to act as an appeal mechanism from the decisions of the Director of Physical Planning. The membership of these committees is comprised of permanent secretary as the chair, the Director as the secretary … it is top heavy full of government people.
The Act provides for three kinds of physical planning
1. Regional Physical Development Plan
2. Local Physical Development Plan
3. A special area physical development plan.
The regional physical development plan is prepared by the director with reference to any land within the area of authority of a county council for purposes of improving the land and providing for the proper physical development of such land. It is also designed to secure provision for transport, public purpose, utilities and services, commercial, industrial, residential and recreational areas and to make provision for the use of land for building and other purposes. A regional physical development plan is prepared for a rural area. The purpose of the plan is to provide for proper physical development and also to provide for commerce transport etc.
A local physical development plan is prepared with respect to land within the area of the city, municipal, urban or Town Council or any trading or market centre.
Under Section 23 the Director may declare an area with unique development potential or problems as a special planning area. The declaration of a special planning area enables the preparation of a physical development plan irrespective of whether such an area lies within the area of a local authority.
THE CONTENTS OF THE PLAN
A regional physical development plan consists of the following
1. A technical report on the conditions, resources and facilities in the area;
2. A statement of policies and proposals with regard to the allocation of resources and the locations for development within the area;
3. A description and analysis of the conditions of development in the area necessary to explain and justify the statements of policies and proposals.
4. Maps and Plans showing the present and future land users and development in the area.
The local physical development plan consists of a survey of the area and maps and a description to indicate the manner in which the land may be used. In preparing the regional physical development plan, the Act specifies matters to be dealt with and these are
1. Population Growth, Projections, Distribution and Movement;
2. Land potential including the distribution of agricultural land, population and land imbalance, land tenure and other natural resource endowments
3. Employment and incomes including distribution, the labour force, the potential of the informal sector and their locations;
4. Human settlements including distribution of existing services, growth and pattern of urbanisation, causes and primacy of rural urban migration.
The second stage is to develop the policy which requires looking at alternative development patterns and strategies for human settlement including the development of service centre, transport and communication networks and rural development.
In a local physical development plan the purpose is to ensure orderly, coordinated, harmonious and progressive development of the area in order to ensure health, safety, amenity, convenience and the general welfare of the inhabitants. The Plan should classify the area for residential, commercial, industrial and other purposes. It should also determine the type and density of development in any particular locality as well as the conservation of the natural beauty of the area including lakes, rivers, hilltops, summits and valleys if they exist. The plan should also provide for routes, communication routes and the basis for the local authority to declare public streets.
The Plan is prepared by the Director of Physical Planning and within 30 days the Director shall notify the public in the Gazette of the existence of the draft plan and request representation or objections to be lodged within 60 days. Representations and objections which are lodged shall be considered by the Director who may take them into account or reject them. If rejected the aggrieved party may appeal to the liaison committee. After the 60 days the Director shall certify the Plan with or without amendments and submit it to the Minister for his approval. If the Minister approves the Plan, he shall publish it in the Gazette an approved Plan shall have full force and effect in its area and every person shall comply with it.
The Plan is the basis for development control and as we indicated development control is the system that ensures that development activities conform to the plan. At the heart of this system is the requirement for development permission. Section 30 provides that no person shall carryout developments without development permission granted by the local authority. It is an offence punishable by fine of a 100,000/- or imprisonment of upto 5 years to carry out development without permission.
What constitutes development?
Development is defined to mean the making of any material change in the use or density of any buildings or land or the subdivision of any land and the erection of such buildings or works as the Minister may from time to time determine and the Act specifies that the deposit of refuse, scrap or waste material on land involves a change of use on land. The use as two or more dwellings or a building previously used as one dwelling constitutes development. The erection of more than one dwelling or shop or the erection of both dwelling and shop on one plot constitute development. The display of any advertisement constitutes development. The use of any buildings or land within the cartilage of dwelling for any purpose incidental to the enjoyment of the dwelling constitutes development.
The local authority has power to prohibit or control the use and development of land and buildings in the interests of proper and orderly development and to consider and approve development applications and grant development permissions. The person who requires a development permission shall apply to the local authority and the application shall be accompanied by such plans and particulars as are necessary to indicate the purpose of the development. The local application shall refer to their director for his comments and when considering the application the local authority shall be bound by any relevant regional or local physical development plan approved by the Minister. It shall also have regard to health, amenities and convenience of the community generally and to the proper planning and density of development and land use in the area. It shall have regard to any comments received by the director.
The local authority may grant the application or refuse it and the aggrieved party may appeal to the relevant liaison committee. If in connection with a development application, a local authority is of the opinion that proposals for industrial locations, dumping sites, sewerage treatments, quarries or any other development activity will have injurious impact on the environment, the applicant shall be required to submit an Environmental Impact Assessment Report.
Under Section 37 the Registrar of Lands shall refuse to register a document relating to the development of land unless development permission has been granted. If development is carried out without planning permission the local authority may serve an enforcement notice and the notice is served on the owner, the occupier or the developer of the land. The notice shall specify the development concerned and such measures required to be taken within a specified period to restore the land to its original condition. In particular the notice may require the demolition or alteration of any building or works or the discontinuance of any use of land. A person aggrieved by such a notice may appeal to the liaison committee.
Statutory Framework for Environmental Planning
Environmental Planning is a system of Planning which runs parallel to the system of physical planning established under the Land Control Act and the Physical Planning Act. It establishes a Planning System at District Level and at National Level. Unlike the Physical Planning Act which is based on planning at national level but on implementation through local authorities.
Section 37 establishes the National Environment Action Plan Committee. The function of the National Environmental Plan Action Plan is to prepare a national environmental action plan after every 5 years for consideration and adoption by the National Assembly. The NEAP is a compilation of District Environment Action Plans which are prepared by the district environment committee.
Section 40 establishes in each District a District Environmental Committee whose task is to prepare a district environmental plan and submit the DEAP to the provincial Environmental Action Plan Committee. The Provincial EAPC is to prepare a provincial environmental plan based on the district environmental plan further compiled at the national level.
The National Environmental Plan is further required to analyse the national resources of the country and set out actions required to be taken to implement environmental measures across the country. The Environmental Management and Coordination Management Act does not indicate in what way the Environmental Action Plan relates to the Physical Plan and so one ends up with plans that are really running in parallel which is an unfortunate set-up coz there should have been a way of interlinking the two plans.
The very first National Action Plan was prepared in 1994 prior to the enactment of the Environmental Management and Coordination Act and one of the actions that was proposed in that plan was the enactment of an environmental law. since the enactment of this Act no National Environmental Plan has been prepared although if one takes the date , this would be the 5th year.
Planning is a precondition to environmental management primarily it enables the separation of incompatible uses of land. Physical planning does not have to necessarily have environmental objectives. To ensure that physical planning promotes environmental objectives a methodology known as the Environmental Impact Assessment has been applied (EIA)
ENVIRONMENTAL IMPACT ASSESSMENT
EIA is defined as a methodology for gathering information about the potential environmental impacts of a proposed development and making that information available for use in decision making. EIA does not itself determine whether or not a proposed development may proceed. It places information before decision makers which decision makers must take into account alongside other information in order to come to a conclusion whether to permit the project to proceed. And therefore the fact that the information suggests that the proposed developments will have negative impacts on the environment does not mean that that development will not be permitted. But because the information is available at the time of decision making it enables decision makers to take that into account in deciding on the application for permission.
The first legal instrument to provide for environmental impact assessment was the Environmental Protection Act of the USA which was enacted by Congress in 1969 and came into effect on the 1st of January 1970. That statute imposed a requirement on US Federal Agencies which proposed to carry out development to conduct an assessment of the potential environmental impacts of their proposed actions. So the focus at the time was on the proposed actions of Federal Agencies and so Federal Agencies are Government Bodies and the idea was for govt bodies to carry out an assessment of their proposed action. Subsequent development in the USA extended these requirements to US State Agencies was made by way of enactments at State Level. The extension of this requirement to private bodies was carried out by way of Judicial interpretation of the statute.
The Mono Lake Decision case extended the requirement to carry out an assessment of environment impact. The facts of this case were that a private developer wished to construct a Housing Estate. The development of the Housing Estate required Planning permission from Mono Lake County which was the local authority of that region. Those opposed to the development took court action against Mono Lake county arguing that State Legislation required State Agencies to carry out an assessment of the potential environmental impact of the Agency’s proposed action. They argued that the word actions included the action of granting Planning permission which meant that where Mono Lake County proposed to take the action of granting Planning permission for a Housing Development it was required to carry out an Environmental Impact Assessment before granting Planning Permission. The implication was that the EIA would then extend to a development to be carried out by a private body. That action succeeded in court with the result that Mono Lake County did carry out an EIA of the development and in the end did not grant Planning Permission for the proposed development.
Following that precedent it was established that prior to granting planning permission, a decision making authority must carry out an assessment of the development whether or not that development is to be carried out by a public authority or private body. For this reason EIA has come to be understood as involving 3 critical stages:-
1. The information gathering stage – the responsibility for information gathering has been placed on the developer. Many people have argued that placing the responsibility for information gathering on the developer means that the developer is likely to influence the kind of information provided as a way of influencing the outcome of the decision making process. Those who have pointed out the risk have argued that the information should be gathered by the decision making authority which would mean that one makes an application and then the decision authority goes out to gather the information about the proposal that way the information gathered will not be biased. The problem here would be the delay that would arise if the decision making authority was given the task of gathering information.
2. The Assessment Itself: Assessment refers to using the information gathered to make a decision about whether or not the project should proceed or whether it should be given planning permission. Assessment is typically the responsibility of the decision making authority. Assessment of Environmental Impact is a process that takes into account environmental considerations alongside other considerations such as economic social and political factors. For instance, it may be that the information gathered suggests that there will be negative environmental impact but the project will also lead to prospects for jobs and on the basis of both kinds of information, a decision is made. This is particularly annoying to so called environmentalists who tend to take the view that if you can marshal a lot of grim data about the destruction which painted the picture of Armageddon around the corner. Decisions are multi dimensional.
3. Implementation of the outcome of the EIA: Ordinarily the information gathered will suggest that there will be adverse environmental impact. The decision however quite often will be that nevertheless planning permission should be granted. The way in which the potential adverse environmental impact are often dealt with is through the imposition of a condition in the planning permission that measures must be put in place to mitigate against adverse environmental impacts. The developer is required to put forward and implement a mitigation plan as a condition of Planning permission. The Mitigation Plan is then supposed to be monitored and enforced. No one is happy in the short term but in the long term they get satisfied with the results.
EIA has two important features which ordinarily take on the appearance of constraints.
(a) The fact that EIA is project specific;
(b) The fact that EIA is a methodology that focuses only on proposed developments it does not extend to existing or ongoing activities.
With regard to the first feature, decision making occurs at various stages in the process of a development. Typically a development is based on a policy, a strategy and a project. At each stage decision making is involved. A policy is an objective set to be achieved) policy may or may not be written but in order to constitute policy it must be objective, it must be articulated by an authorised person. For instance there could be govt policy articulated by the Minister. If it is in writing then it is easier to conceptualise but the fact that it is in writing does not make it any more policy than if it wasn’t in writing. An example is that the govt will provide free primary school education, this is policy. Arising out of policy is a strategy, a strategy is an articulation as to how the policy is to be achieved. The strategy might say that in order to achieve the policy of free education the government will build a hundred primary schools in every district. Quite often a strategy is articulated through a plan. A plan is a time bound strategy which basically means that if you say free primary school education will be achieved through building 100 primary schools in every district in five years, you have given it a time range. Emanating out of the plan and the strategy, one ends up with the project which is the concrete expression in a specific location of the plan. So if the plan is to build classrooms, then the primary schools are built, that is the project. Decisions are made at each stage of Policy, Strategy, Plan and Project.
EIA comes into play at the project stage of decision making and for that reason EIA is often constrained by decisions which have been taken at prior decision making stages. The result is that by the time an environmental impact assessment is being undertaken, chances of the outcome of the assessment leading to the denial of plan permission are often limited. It is for that reason that the typical outcome of EIA is a mitigation plan to mitigate against adverse Environmental Impact Assessment. More recently the methodology of strategic environmental assessment has been developed. Strategic environmental assessment is a methodology designed to assess the potential impact on the environment of alternative strategies to achieving a given policy objective. And therefore strategic environmental assessment is carried out at the Plan level. This methodology is quite recent and only a few countries have adopted it, most countries adopt strategic assessment at project level.
Ordinarily the objective of project specific environmental impact assessment is that mitigatory measures need to be built into the implementation of that project. However typically there will be many projects already ongoing which cause a negative impact on the environment which either were not subject to EIA or which were not anticipated at the time of the EIA.
Ongoing projects are dealt with through the methodology of environmental audit not Impact Assessment. An Environmental Audit is an assessment of the Impacts on the environment of ongoing activities. It leads to recommendations on how the activities should be conducted in order to minimise the negative environmental impact. Typically environmental audits are carried out at periodic intervals. Environmental Audits are similar to financial audits and can be carried out by either internal auditors or by external auditors. When carried out by internal auditors, environmental audits are a management tool which enable the managers of the project to take action to redress negative environmental impact of the project. When carried out by external auditors, environmental audits are a regulatory tool to enable regulators enforce compliance.
Part 6 of the Environmental Management and Coordination Act deals with environmental Assessment
Section 8 – not withstanding any approval, licence, permit granted under any law in Kenya, before financing, commencing, proceeding with, carrying out executing or conducting a specified project, the project proponent must apply for and obtain an environmental impact assessment licence. The Application is made to the National Environmental Management Authority which is established by Section 7 of the Act. This National Management Authority is an idea generated through the initiative of an idea in UNEP.
The project proponent must obtain an Environmental Assessment Impact Licence regardless of any other licence or permit that one may have obtained. Two problems arise one, for the project proponent this is yet another handle that they must overcome. Second problem is operation in nature i.e. one does not know which of the licences to obtain first. A project proponent is anyone carrying out, financing or executing or causing to be carried out, financed or executed.
The procedure is as follows:
The project proponent must first prepare a project brief describing what the project is about. On the basis of the project brief the authority will take a decision on whether that project should undergo the full environmental impact assessment study. The decision on whether a full study is required will be based on 3 factors
1. Scale of the project; - the bigger the scale of the project the more likely that it will undergo a full study and the smaller the project the lesser likely that it will need a full study;
2. Nature of the Project – projects of a category which are listed in the 2nd Schedule to the Act require an environmental Impact Assessment, these include urban development, dams, rivers and waters resources projects, transport projects, mining, forestry, manufacturing industries, waste disposal and nature conservation;
3. The location of the project: projects in environmentally sensitive locations will require full study and those not located in environmentally sensitive locations will not require full studies.
EIA experts are consultants appearing on a register which is maintained by the authority. The law requires that one chooses their experts from that register. Those experts carryout the study based on terms of reference which are developed by the developer and approved by the authority and those terms of reference will define the scope of the study. For example if one imagines the potential impact arising from a development, that would be all over, if one wanted to built a hospital, one must take into consideration that there might be germs of TB emanating from hospital and one might want to do a study of TB. Therefore one must do scoping to decide what the study will focus on. The developer must define the scope.
After the study is done the expert submits a report which is submitted to the authority and the authority is required to
(a) publicise the existence of the report and ask members of the public to comment on the report;
(b) The authority may set up a technical advisory committee to advise it on the report. The technical advisory committee comprises of persons who are experts on the issues dealt with by the report, the technical committee set up by the authority is to be paid for by the developer but on the basis of comments from the public and recommendation from the technical advisory committee, the authority will decide whether a public hearing is required at the proposed site of the project. After the public hearing if it is held a decision will be held on whether to grant an impact assessment licence. If granted the licence may have a mitigation plan to be implemented by the developer.
The Act provides that if during the implementation phase of the project, the conditions of the licence are not complied with, the licence may be revoked or suspended for a period of 24 months. The Act empowers the authority to charge fees for the licence and the authority has imposed a fee of 0.1% of the Project cost.
With regard to existing projects, Part 7 of the Act provides for Environmental Audits to be carried out by an environmental inspector appointed by the authority. Existing or ongoing projects are defined in the Environmental Impact Assessment and Audit Regulations of 2003 Rule 31 defines an ongoing project as a project commenced prior to the date of the regulations and the date of the regulations is the 13th June 2003 and any project commenced after 13th June 2003 is a new project for which an EIA must be undertaken.
Basically where a project is defined as ongoing, then NEMA imposes a requirement that the operators of those projects must submit an environmental audit report by 31st December 2004. These regulations deal with the second issues which is that as we had indicated, the Act focuses on project specific environment impact assessment. Rule 42 of the Regulations provides for strategic environmental assessment stating that lead agencies shall subject all proposals for public policy, plans and programs to a strategic environmental assessment to determine which ones are the most environmentally friendly. That assessment is to result in a choice of policy and strategy options based on environmental impact. In Muma’s view because the statute does not provide for Strategic Environmental Assessment, then it is ultra vires for the regulations to require it.
VARIOUS SECTORAL ENVIRONMENTAL MEDIA
Water Management
This includes management of water resources and provision of water supplies.
In the past the law relating to water management in Kenya was contained in the Water Act Cap 372 Laws of Kenya. In 2002 the Water Act was repealed and replaced by new law which is presently known as the Water Act 2002 and does not have a Chapter number. This came into effect in March 2003 by which Water Act Cap 372 was repealed.
Kenya’s statutory law on management of water resources is based on the common law and under the common law the land owner is presumed to own everything on the land upto the sky and down to the centre of the earth and this is a principle found in the course of property interest in land. At the same time the common law considers running water air and light to be things the property of which belongs to no person but the use to all persons. This principle is articulated in the case of Liggins V Inge 131 E.R 263.
Although the common law considers that the landowner owns everything on land a landowner has no property in running water air and light. What his land ownership gives him is a natural right to the use of running water air and light. The Natural right is considered to be incidental to the land ownership. The land owner whose land abuts on a water course is known as a riparian owner. A riparian owner is considered to have a natural right to water. With respect to riparian ownership the principle is articulated in Stockport Waterworks Corporation V. Potter 159 ER 545.
A right to water is the ability to exercise as of right the right which is available to all members of the public to use running water. None riparian owners can only exercise the right to use running water under an agreement with a riparian owner. An agreement providing for access over riparian land is known as an easement. In the absence of an easement non-riparian owner will be committing a trespass if he attempted to exercise the right to use running water. Because the right to use riparian water is shared by all riparian owners, its use must be reasonable. No one owner may use the water in a way which prejudices the right of other riparian owners. The principle of reasonable use is articulated in the case of Embrey v Owen 155 ER 579.
The extent of the riparian owners right to water and the scope of reasonable use can be reduced to 3 rights:
1. Right of Access and Navigation;
2. Right to the Natural quantity of the water in the water course;
3. Right to the Natural quality of the water in the water course;
These 3 are known as the riparian rights. The right to navigate the tidal river belongs to all members of the public (a tidal river is a river that is influenced by the movement of the waves so typically a tidal river is salty River Tana in Kenya is a tidal river). The reason for the rights belonging to all members of the public is because the ownership of the land beneath a tidal river is vested in the State whereas the ownership of the land beneath a non-tidal river is vested in the riparian owner. The tidal part of the river is therefore accessible to any member of the public whereas the other part of the river is only accessible to the riparian owner. Only a riparian owner has a right of access to his land which enables him to embark and disembark on the non-tidal part of the river. This principle was established in the case of Lyon v Fishmongers Co. [1876] 1 A.C. 662 this is a case that arises o of fishing in the North Sea and the Fishmongers Company wanted a place on which to land after fishing but the particular spot on which they had established their key turned out to be non-tidal so the owner was denying them to embark or disembark on it.
The riparian owners right to quantity enables him to abstract, divert, obstruct or impound the water. The water abstracted may be used for ordinary domestic purposes such as drinking, cooking and washing or it may be used for purposes such as irrigation which the common law considers to be extraordinary purposes. Where the riparian owner uses the water for ordinary purposes, there is no restriction in the quantity that he/she may abstract even if the abstraction exhausts all the water in the river. This principle is articulated in the case of McCartney v Londondery & Lough Swilley Railway Co. [1904] A.C. 301.
Where the riparian owner uses the water for extraordinary purposes, the use is restricted to the extent that it is subject to the right of other riparian owners. Any use which prejudices the use by a lower riparian owner is considered to be unreasonable. Basically if a riparian owner A is using the water for irrigation, if it prejudices the right of G to use water for ordinary purpose he is said to prejudice the use of water by G. This principle is articulated in the case of Swindon Waterworks Co. v Wilks & Berks Canal Navigation Co. [1875 7 LR 697.
Under the common law the riparian owner is not allowed to use riparian water for foreign purposes. Foreign purposes means use of water outside of the riparian land. Any such use is considered as unreasonable even if it does not prejudice the use of any other riparian owner.
The riparian owners right to quality entitles the riparian owner to the flow of water past his land in its natural state of purity undeteriorated by noxious matter discharged into it by others. This principle is articulated in the case of Jones v Llanwrst Urban District Council [1911] 1 Ch. D 393.
The principle of riparian ownership is the principle of water resources management which operated under the common law. under this the management of water resources was based on balancing the competing demands of neighbouring riparian owners.
As per the common law the riparian owner owns the land upto the midian line of the river but our statute specifically the Agriculture Act prohibits the riparian owner from cultivating up to 2 meters of the river. Under the Physical Planning Act the Local Authority can prohibit cultivation of the river beds.
The common law principles have however been incorporated into statute law even if with modifications and the current statute governing water resources management is the water Act Cap 2002 which was enacted in July 2002 and came into effect in March 2003. The Water Act 2002 provides for the management, conservation, use and control of water resources. Secondly it provides for the acquisition and regulation of rights to use water and for the regulation of water supply and sewerage services.
The Water Act has divided the management of the resource and the provision of the supply.
WATER RESOURCES
The Act defines Water Resource to mean any lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin or other body of flowing or standing water whether above or below the ground. Under Section 3 of the Act, every water resource is vested in the State. Section 5 provides that the right to use the water from any water resource is vested in the Minister. The Minister shall have and may exercise control over every water resource in accordance with the Act. Section 6 provides that no conveyance or lease shall convey transfer or vest in any person any property or right or interest or privilege in respect of any water resource. Property rights, interests or privileges in water resources shall be acquired only under the Act. Under Section 25 a permit is required for any use of water from a water resource, any drainage of any swamp the discharge of a pollutant into any water resource or any other purposes prescribed by rules made under the Act. It shall be an offence to use water from a water resource without a permit except in 3 cases set out in Section 26.
A permit is not required
1. For the abstraction of the use of water without the employment of works from any water resource for domestic purposes by any person having logged for access for water. Works are defined as any structure, apparatus, device or thing for carrying, conducting or utilising water but it does not include hand utensils. This means that a person who has lawful access to the water i.e. a riparian owner or a person with easement may use water without a permit in two situations one that he is not using equipment and two that the purpose is domestic.
2. A permit is not required for any development of ground water where none of the works necessary for the development are situated within a 100 meters of any body of service water. It is being assumed that one is using equipment not if one is just using hand utensils. So long as the works are not situated near a groundwater conservation area. Groundwater conservation is defined in Section 44 as any area in which special measures for the conservation of groundwater are necessary in the public interest. Special measures may be necessary to protect water for public supplies or for supplies for use in industry or agriculture. The whole of Nairobi has been declared as a groundwater area so to construct a borehole, one would need a permit.
3. A permit is not required for the storage of water or the abstraction of water from a dam which is constructed in a channel or depression which does not constitute a watercourse.
Under Section 27 any person who is not the holder of the permit but construct or employs works to use water commits an offence. The holder of the permit which authorises the construction of works which will be situated on another person’s land shall acquire an easement.
The conditions of the permit
The permit may provide for charging for the use of the water which basically means that there may be a charge whereas before water was for free the government may decide there is a charge. In determining an application for a permit the govt takes into account
1. Existing lawful uses of the water;
2. Efficient and beneficial use of water in the public interest;
3. The likely effect of the proposed use on the water resource and on other users;
4. The strategic importance of the proposed use;
5. The quality of the water in the water resource and the probable duration of the activity.
Section 32 provides that the use of water for domestic purposes shall take precedence over the use of water for any other purpose. Under Section 36 the Act creates a provision which allows the cancellation of all existing permits in an area experiencing water stress followed by fresh applications and a re-allocation of the resource.
Under Section 40 a permit may be varied and under Section 37 it may be cancelled. The variation or cancellation of the permit may be taken if the permit holder contravenes the conditions of the permit.
Section 7 of the Act establishes an authority known as the Water Resources Management Authority. The task of the Authority is to allocate water resources and to regulate and protect the quality of water resources. Applications for permits for water use are made to the Authority and not to the Minister. The Authority is created as a parastatal body to allocate water resources. The Authority is required to establish regional offices which are to be established within catchment areas. Under Section 14 the Authority is empowered to designate a defined area from which rain water flows into a watercourse to be a catchment area. The country has been divided into 7 catchment area. The reason for managing water on the basis of catchment areas is self-evident. The idea is to manage the resource on the basis of the whole catchment not on the basis of administrative districts.
Section 11 requires the Minister to formulate a National water resources management strategy spelling out how the water resources of Kenya shall be managed, used, developed and conserved. The water resources management authority is required to formulate catchment area management strategies. The catchment area management strategies shall be consistent with the National Water Resources Management strategies.
The Minister is also required to determine for each water resource a reserve. A water reserve is defined in the Act as the quantity and quality of water which is required to satisfy basic human needs for all people who are or maybe supplied from the water resource and secondly the quantity and quality of water required to protect aquatic ecosystems in order to secure ecologically sustainable development and use of the water resource. Having determined the reserve the Minister is required to classify each water resource and specify for each water resource the quality objectives and the dates from which those objectives will apply. Resource quality objectives is defined by the Act to mean the level to be achieved and maintained.
WATER SERVICES
Water services relates to the provision of the supply of water. You have the resource and now you want to supply it for use. Under our traditional system, the service is purely domestic but we want to move beyond this domestic service.; Section 49 requires the Minister to formulate a National Water Services Strategy with the following objects
(a) It shall put in place arrangements to ensure that at all times there is in every area of Kenya a person capable of providing water supply;
(b) The strategy shall design a programme to bring about an extension of sewerage to every centre of the population in Kenya. The strategy shall contain details of existing water services and the number and location of persons who are not being provided with the basic supply of water and basic sewerage. It will also contain an investment programme and a time frame.
Under Section 51 the Minister is required to establish water service Boards and the Water Services Board is responsible for the efficient and the economical provision of water services. The Minister has established 7 Water Service Boards, one in each area.
Section 56 provides that no person shall provide water services to more than 20 households or shall supply more than 25,000 litres of water a day for domestic purposes without a licence. It is an offence to supply water without a licence.
Only a Water Services Board may apply for a licence to provide water. The services authorised by the licence shall be provided by an agent of the Board known as Water Services Provider and the Board itself is prohibited from directly providing water to consumers unless it is not possible to find an agent.
A water services provider is defined as a company a non-governmental organization or other person providing water services under an agreement with the licensee. It is for these reasons that local authorities have been forming companies to supply water services. The licence is to be granted by a regulatory body which is known as a Water Services Regulatory Board and its function is to issue the licence and determine standards for the provision of services to consumers. These boards and the providers are to be regulated by the Water Services Board, regulation is removed from the Minister.
MANAGEMENT OF WASTE
This is looked at in two components
1. Management of Solid Waste
2. Management of Hazardous substances and Chemicals
The management of waste always requires an understanding of the concept of waste.
Definition of Waste: waste is an item or substance which has no utility value to the holder of the item. By the same token waste may well have some value to somebody else or to the same person in a different context. Therefore whether or not an item is considered to be or not to be waste must be determined from the point of view for the person who has control or is in possession of that particular item. An item which is waste is not the same thing as an item that does not have value. Waste items always have value and it is only that its value to the holder is less then the cost to the holder of retaining possession of it. Therefore the holder always faces an inherent temptation to dispose of the item at least cost to himself or to herself.
The first choice of disposal of a waste item is into the environment i.e. a cigarette smoker will puff away until they get to the butt end of the cigarette and then they have the Pavlov’s instinct of letting it drop from their hands and will drop it anywhere and for this reason waste presents an environmental problem because the holder does not see the need to invest resources in disposing the item. Where the holder is not able to dispose of it in the environment, the holder will hand over that item to the person who is willing to take the item. Such a person may well be prepared to pay for the item for the reason that the intending possessor of the item may well see utility value in the item. But the key thing is that the holder is disposing of the item rather than the person acquiring it is paying for it so the price that the holder imposes for the item will typically not represent the true economic value of the item. In an auction for instance one sets a reserve price which represents what one perceives as an item’s economic value. At times the holder is even prepared to pay for somebody to take away this item.
So waste presents an environmental management problem, the theory of managing waste is captured in an approach to management known as cradle to grave management or ‘life cycle management’. Cradle to Grave Management presents an approach that looks at an item from its inception to its disposal, the approach looks at the entire lifecycle of the item.
Lifecycle Management introduces management principles at each stage of the life of the item. At production the management approach is to reduce or minimize waste. After production, in use the approach is to reuse waste and on disposal the approach is to recycle. Reduction of waste is basically the principle that the production process should result in
1. an item which potentially will generate little waste
2. The production process itself should give rise to as little waste as possible.
If in the process of producing an item the maker of the item is also generating a lot of waste. The idea is to minimize waste, there are people who argue that minimization of waste cuts costs.
Having generated the item, the idea is that the item itself should be an item that is capable of reuse which basically means putting the item back to use in the same form. A good example is a beverage bottle. These are items that can be used again in the same form. In order to encourage reuse, the management uses a deposit and return system to encourage reuse. Replacement of this particular item like cans for bottles leads to a waste management problem.
RECYCLING
This is using an item but in a different form e.g. paper, paper can start as writing paper to toilet paper etc, it changes its form. Usually in order to make an item recyclable, it is necessary to remove the impurities which converted it into waste in the first place. Ordinarily the generation of waste will require that the waste that results at the end is disposed off. Even where waste is minimized, at some stage one still ends up with some waste and that waste has to be disposed off.
Waste is disposed off either in a Landfill which is the process of burying solid waste in the ground or by incineration. A properly designed landfill constitutes an effective disposal method. In designing a landfill there are 3 issues to look out for
1. The control of methane gas –by-product arising from the decomposition of waste-product or hydrocarbon
2. Control of Leachate – this is the liquid by-product arising from the decomposition of waste. It is highly polluting particularly to ground water and needs to be collected and disposed off. This is used by treating the waste by covering with layoff soil.
3. Control of Smell
Incineration is the second method of disposing of waste. It is the process of burning waste at High temperatures. It is very expensive and therefore it is not used for management of bulk waste. It is restricted to disposing of pathogenic waste. Pathogenic waste is waste with pathogens (bacteria and viruses) waste from hospitals. That sort of waste is destroyed through incineration for the reason that the high temperatures destroy the pathogens.
There are several categories of waste. Broadly waste is divided into solid waste and hazardous waste.
Solid waste refers to waste which contains few hazardous characteristics. Examples of solid waste are waste from domestic establishments and street litter. Waste from domestic establishment will be dirty water from the kitchen and things from the toilet and street litter is i.e. banana peels and papers. Within solid waste there is what is referred to as Municipal waste which the municipal council is responsible for collecting.
Hazardous waste is waste with characteristics which present a danger to human health or to the environment. These characteristics that present danger to human health are listed in Section 91 of the Environment Management and Coordination Act and it is that waste item that has characteristics that make it corrosive or carcinogenic or flammable or toxic or explosive or radioactive (ccfterP) or finally persistent (items that do not biodegrade easily such as polythene).
Carcinogenic means that a substance has the ability to mutate and therefore cause cancer. Radioactive items that emit ultra violet rays, their capacity to penetrate objects leads to mutation which can lead to cancer.
In Kenya the management of solid waster has a very recent legislative history. On the whole the laws dealing with solid waste management are found in the Public Health Act Cap 242 Laws of Kenya, the Local Government Act Cap 240 Laws of Kenya and more recently the Environmental Management and Coordination Act.
Section 116 of Cap 242 imposes a duty on every local authority to take all lawful necessary and reasonably practicable measures for maintaining its district at all times in a clean and sanitary condition and for preventing the occurrence therein or for remedy or causing to be remedied any nuisance or condition liable to be injurious or dangerous to health. It also imposes on the Local Authority the responsibility to take action against any person causing or responsible for the continuance of any such nuisance or condition.
Section 118 defines what constitutes a nuisance and provides 5 categories of nuisances
1. Any street, road, stream, ditch, sink water closet, urinal soak-away pit, refuse pit, ash pit, manure heap, garbage receptacle, dustbin or septic tank which is so foul or in such a state as in the opinion of the medical officer of health to be offensive or to be injurious or dangerous to health;
2. Any accumulation or deposits of refuse, offal or manure or other matter which is offensive or which is injurious or dangerous to health;
3. Any accumulation of stones, timber or other material which in the opinion of the medical officer of health is likely to harbour rats or other vermin.
4. Any area of land kept or permitted to remain in such a state as to be offensive or liable to cause any infections, communicable or preventable disease or injury or danger to health.
5. Any act, omission or thing which may be dangerous to life or injurious to health.
Where an item falls under the jurisdiction of the Local Authority to deal with as a nuisance Part IX of the Public Health Act provides a procedure known as a nuisance abatement procedure for dealing with nuisances. Under this procedure the Medical Officer of Health who is based at the Local Authority, they are employees of the Ministry of Health serves a notice on the author of the nuisance if the author cannot be found the notice is served on the occupier of the dwelling. The Notice will require the removal of the Nuisance within a specified time and it will specify the works to be carried out to remove the nuisance, it is the removal which is known as abatement of the nuisance. If the notice is not complied with the Medical Officer of Health shall cause a complaint to be made to a Magistrate who again is stationed at the local authority and the Magistrate shall issue a summons requiring the person to appear before the court. if the Magistrate is satisfied that the nuisance exists or may recur the magistrate shall order compliance with the notice.
If the order is not complied with the Medical Officer shall again cause a complaint before the Magistrate and the Magistrate shall again issue a summons and on this occasion the Magistrate shall in addition to ordering the removal of the nuisance impose a fine which is a daily fine which accumulates until the nuisance is removed. If the person still refuses to remove the nuisance the medical officer of health shall at that time force a complaint before the magistrate and this time the magistrate shall order the local authority to remove the nuisance and recover its costs for doing so from the author of the nuisance or the occupier of the premises. The removal of the nuisance may require the demolition of the structures responsible for the nuisance in which case the magistrate shall order the demolition of the structures accordingly.
One does not have to wait until waste has become a nuisance in order to abate it.
The Local Government Act Cap 240 at Section 160 gives local authorities power to establish and maintain sanitary services for the removal and destruction of or otherwise dealing with all kinds of refuse and effluence and where such a service is established, it gives local authorities power to compel the use of such a service by persons to whom the service is available.
Under Section 162 the Local Authority has power to compel occupiers or where the premises are vacant owners to keep their premises free from all unwholesome matter.
Under Section 201 Local Authorities have power to make bylaws on matters necessary for maintaining health, safety and well-being of the inhabitants and for the prevention and suppression of nuisances.
Acting under those powers the city of Nairobi made the following bylaws in the good old days of colonialism
1. The city of Nairobi General Nuisance Bylaws NO. 275 of 1961;
2. City of Nairobi Conservancy bylaws No. 69 of 1961;
3. City of Nairobi Restaurants, Eating Houses and Snack-bars bylaws No. 674 of 1961
4. The City of Nairobi Slaughterhouses Bylaws No. 325 of 1966;
5. City of Nairobi Hairdressers and Barbers Bylaws No. 146 of 1970;
6. City of Nairobi food shops and stores bylaws No. 384 of 1956;
7. City of Nairobi Hawkers bylaws No. 748 of 1963.
8. The Local Government Adoptive bylaws (Building Order) No. 15 of 1968
The conservancy bylaws deal with the collection of refuse. It requires the council to provide receptacles (waste bins) at premises and to require that all refuse for disposal be placed in the receptacle for collection by the council’s refuse collection service. In the good old days the council did provide waste bins. The Bylaws impose a charge for the hirer of the receptacle and for the service of emptying the receptacle. The charge is imposed on the occupier of the premises and the occupier is defined as the person who enters into an agreement to pay for a water supply to the premises from the council.
The building code deals with the removal of building debris and it provides that any person who deposits or causes to be deposited any builders material upon any street shall be guilty of an offence. The general nuisance bylaws prohibit the deposit of solids, vegetation or refuse on any land in the city. It provides that it is an offence to place deposits or leave behind any carton, paper or other rubbish so as to create later or to throw down or leave behind any orange peel, banana skin or other substances likely to cause a person to fall down. Any person who while being in charge of a dog allows such a dog to foul any footpath is also guilty of an offence.
The other six bylaws have a standard provision which gives the council power to refuse to issue a licence or to cancel a licence if the premises are not provided with adequate sanitary arrangements.
Other statutes also contain limited provisions dealing with management of solid waste. The medical Practitioners and Dentists Act which is Cap 253 deals with the management of Hospital Waste. Section 4 constitutes the Medical Practitioner and Dentist Board. Section 15 gives the Board power to authorise the use of premises for the purposes of the practice of medicine. In determining an application for authorisation, the Board must consider whether provision has been made for the disposal of the hospital’s pathogenic waste.
The Scrap Metal Act Cap 503 Laws of Kenya prohibits dealing in scrap-metal without a dealers licence. The Dealers License is issued by the Police. The statute prohibits a licence dealer from storing or dealing in any scrap metal elsewhere than at the premises specified in the licence.
The Use of Poisonous Substances Act Cap 247 Laws of Kenya requires the Minister to make regulations to protect persons from poisoning by substances arising from the storage, transport sale and disposal of material.
The Food Drugs and Chemical Substances Act Cap 254 Laws of Kenya provides that any person who disposes of any chemical substances in any way that might cause contamination of food or water for human consumption commits an offence.
The Radiation Protection Act Cap 243 Laws of Kenya provides that disposal of radioactive material requires a licence and the person responsible must appoint someone experienced in radiation health and safety matters to take proper care of the waste.
The Environmental Management and Coordination Act has also introduced provisions dealing with the management of waste. Section 91 gives power to the standards and enforcements review committee to recommend criteria for classifying waste. One of the classes of waste is solid waste.
With regard to the management of waste the Act requires that any person managing waste must not handle the waste or dispose of it in such a manner as to cause pollution to the environment or ill-health to any person. Secondly any person transporting waste requires a valid licence to transport waste issued by the authority. Thirdly the person transporting waste may only transport it to the waste disposal site established in accordance with the licence issued by the Authority and no person shall operate a waste disposal site or a plant without a licence issued by the authority.
In applying for the licence, the operator is required to undertake an environmental impact assessment of the proposed activity and in considering the application for a licence, the authority shall take into account whether there exists planning commission for the site. There must be a planning commission in addition to an environmental impact assessment. In Nairobi waste has been disposed off to a site known as Dandora which started off as a quarry but over the years it became the city council’s dump site. It has now been proposed to close Dandora and move the landfill to a place known as Ruai but the council cannot do that as they have to pay some recently settled people.
MANAGEMENT OF HAZARDOUS CHEMICALS AND SUBSTANCES
There are two kinds of sources of pollution of the environment
1. Point sources of Pollution
2. Non-Point sources – referred to as diffuse sources of pollution
POINT SOURCES OF POLLUTION
Point sources of pollution are sources which are fixed and the pollution from which is predictable and known in advance. The epitomy of point sources of pollution is waste drain. The ways in which point sources of pollution are managed is through firstly the establishment of standards to be met by the pollutants which are to be discharged from those point sources. In order to regulate that point source, the permit or licence is issued for that particular activity. For example if one wishes to run a factory that will discharge pollutants through a pipe, then you apply for a permit and the permit will indicate what the factory must meet. Discharge of effluence is a normal part of economic activity and it is handled by issuing permits and handling it so it falls to manageable standards.
NON POINT SOURCES OF POLLUTION
Non-point sources of pollution refer to sources of pollution whose origin is unpredictable and diffuse, they arise from unpredictable events or circumstances one does not know until the pollution occurs at which particular point the pollution will occur. The example of a non-point source of pollution is an accident involving a petrol tanker. Until the accident occurs one doesn’t know where it occurs. Use of pesticides on crops is another example, when it rains the rains wash pesticides into the river and no one knows when it will happen.
The method of dealing with non-point source of pollution is through prescribing preventive measures. These are measures designed to ensure that the activity is undertaken in such a way as to minimise or prevent altogether the occurrence of pollution or the extent of environmental damage arising from the pollution.
Hazardous chemicals and substances are chemicals and substances which contain characteristics which contain a danger to humans and the environment. We have listed the characteristics under Section 91 of the Environmental Management and Coordination Act contains a list of characteristics that make substances hazardous, these are that the substances are corrosive, carcinogenic, flammable, toxic, persistent, explosive or radioactive. Until that characteristic or the substance leads to environmental damage, the danger remains latent, latent means that it exists but has not yet manifested itself. It is for these reasons that these substances represent diffuse sources of pollution that is because you can live with them but something may occur that makes environmental damage become a reality.
In Kenya a diverse range of laws deal with the management of hazardous chemicals and substances. They include the Pest Control Products Act Cap 346 of the Laws of Kenya, the Pharmacy and Poisons Act Cap 244, Radiation Protection Act Cap 243 of the Laws of Kenya, the Petroleum Act Cap 116 Laws of Kenya, Fertilisers and Animals foods Act Cap 145, the Foods, Drugs and Chemicals Act Cap 254, the Environmental Management and Coordination Act of 1999 has introduced a parallel system for managing hazardous chemicals and substances. All of these laws are product specific which means that each of them focuses on a certain category of products but the principles on which they are based are similar in every case. The objective is preventive and it is an international principle that provides for Classification, Packaging and Labelling Products. Classification, Packaging Labelling is a principle of management of hazardous chemicals and substances applied internationally which means that whether in Europe or Africa the principles are the same. The extent to which they are respected however is different depending on where one is.
PEST CONTROL PRODUCTS ACT Cap 346
This Act regulates the import/export manufacture distribution and use of products which are used for the control of pests and of the organic function of plants and animals. These are products used to control pest (pesticides) this is an Act that regulates the import/export and use of pesticides. The Act establishes the Pest Control Products Board and makes it the function of the Board to register pest control products. It requires that every person who desires to register a pest control product shall make an application to the Board. The Board may refuse to register the product if its use would lead to unacceptable risk or harm to
1. Things on or in relation to which the pest control product is intended to be used; or
2. To public health, plants, animals or the environment.
CLASSIFICATION
The Act establishes 3 classes of pest control products
1. A restricted class – a class of products which present significant environmental risks and these are products which are intended for use in aquatic and forestry situations; a good example was the Cyprus Trees being destroyed by aphid, spraying all the Cyprus trees would pose a problem to the environment since it was so widespread.
2. Commercial Class – class with environmental effects which are limited to a specific region.
3. Domestic Class – this is a class of products for which
(i) No special precautions are required in use
(ii) No equipment are required for inhalation hazard
(iii) No irreversible effects from repeated exposure.
(iv) Disposal of Containers can be safely done by placing it in the garbage bin; and
(v) The package sizes are limited to amounts that can be safely used and stored by consumers.
The best examples are insecticides i.e. doom.
PACKAGING
The law requires that the package shall be sufficiently durable and be designed and manufactured to contain the product safely under practical conditions of storage, display and distribution.
LABELLING
The act of labelling requires that every pest control product which is sold or made available must have a label and the label must show the following 14 things.
1. Name of the product;
2. Information on the nature and degree of hazard inherent in it;
3. Statement directing the user to read the label;
4. The common name of the active ingredients;
5. Contents of the active ingredient; active ingredient has both a common and scientific name so that the buyer may know;
6. Registration number of the product;
7. Net content;
8. Name and postal address of the registrant;
9. Directions for use of the product;
10. Information on the hazards of handling storage display, distribution and disposal of the product including instructions on procedures to alleviate the hazard, the contamination and disposal of the product and the empty package;
11. Information identifying any significant hazard to things on or in relation to which the product is intended to be used or to public health, plants, animals or the environment;
12. First aid instructions;
13. The toxicological information essential to the treatment of a person who is poisoned for example antidotes, symptoms of poisoning and the ingredient that may affect the treatment;
14. A notice that it is an offence to use or store the product under unsafe conditions.
15. Package should bear a cautionary symbol, the cautionary symbols are also standard there is a symbol for poison or danger, there is a symbol for corrosivity which is a test tube with a hand sticking inside and crossed out, symbol for in-flammability which is fire, a symbol for explosivity.
The Act also requires that the premises for manufacturing formulating, packaging selling or storing the product must be licensed. The premises shall be of suitable design layout and construction to ensure the health of workers and to avoid contamination of the environment. The person who owns, operates or is in charge of the premises shall have adequate knowledge of the chemistry, toxicology, efficacy and general use of the product being dealt with and of the handling precautions of the products within the premises.
PHARMACY & POISONS ACT
The Pharmacy & Poisons Act makes provisions for trade in drugs and poisons and also establishes the Pharmacy and Poisons Board. The Board’s function is to prepare and submit to the Minister for his approval a list of substances to be treated as poisons for purposes of the Act. The list shall consists of Part I poisons and Part II Poisons.
Part I poisons may only be sold by people who are authorised as sellers of poisons and these are people licensed to carry on the business of the Pharmacist and it might also be sold by licensed dealers and dealers in mining, agricultural and horticultural accessories. Part I poisons are the more dangerous poisons. Essentially in order to obtain Part I poisons ordinarily one needs a prescription.
Part II poisons might be sold by persons who are not necessarily pharmacist. Section 30 sets up a poisons book in which sales are to be recorded. The containers are to be labelled with the name of the poison. The proportion of the poisonous ingredients, the sellers name and address and if the item is not sold but otherwise supplied, then the supplier’s name.
THE RADIATION PROTECTION ACT
This Act controls the import/export possession and use of radio active substances and irradiating apparatus (equipment which emit radio activity). Basically radiation occurs because of the impact of ultra violet light.
The Act provides that
(i) no one shall knowingly without a licence manufacture or otherwise produce
(ii) sell or otherwise deal with,
(iii) have in his possession for use,
(iv) import or cause to be imported,
(v) export or cause to be exported any radio active substance or irradiating apparatus.
Application for a licence shall be made to the Radiation Protection Board which is established under the Act. The Minister is required to prescribe precautions to be taken to prevent injury being caused by ionising radiation to the health of persons employed in places where radio active substances are manufactured, produced, treated, stored or used or where irradiating apparatus is used or where other persons are likely to be exposed to harmful radiation. He is also required to prescribe methods of disposal for radio active waste products and the transport, storage and use of radio active material. Finally to prescribe maximum working hours of persons working with radio active material.
THE POISONOUS SUBSTANCES ACT
The use of this Act is intended to protect persons against risk of poisoning by poisonous substance which arise from the use of poisonous substance from employment in places where poisonous substances are used, from the storage, transport, sale and disposal of poisonous substances. The Act operates through regulations to be made by the Minister requiring measures to be taken to protect against the risk of poisoning.
THE FOOD DRUGS & CHEMICAL SUBSTANCES ACT
This Act makes it an offence to sell food, drugs, cosmetics or chemical substances that are adulterated or consist of any filthy, putrid, disgusting, decomposed or deceased substance or foreign matter. The disposal of chemical substances in a manner likely to cause contamination of food or water for human consumption or in a manner liable to be injurious or dangerous to health shall be an offence.
THE FERTILISERS AND ANIMAL FOODSTUFFS ACT
This Act regulates the import, manufacture and sale of agricultural fertilisers. The fertilisers is defined to mean any substance or mixture of substances which is intended or offered for improving or maintaining the growth of plants or the productivity of the soil. The Act prohibits the import, manufacture, sale or mixing of fertilisers which have not been declared to be approved fertilisers. Any person who knowingly sells the fertiliser containing deleterious ingredients shall be guilty of an offence and the Act provides for rules which prescribe the standards of composition, efficacy, fineness and purity of fertilizers and animal foodstuffs.
Secondly the Act prohibits certain substances and limits percentages or certain substances in fertilizers. It requires that records and returns be kept and furnished to the Minister. It requires proper storage of fertilizers and animal foodstuffs and imposes rules on the manner of packing branding, labelling, marking and sealing of containers of fertilisers.
The Fertilisers and Animal Foodstuffs (Packing of approved Fertilizers) rules which have been made under the Act at present have no provision on health and safety and on measures to protect the environment. What they focus on at the moment are measures dealing with packaging and labelling of the containers for approved fertilisers.
In Kenya a riparian owner may do as he pleases with the water that is found under or that is running past his/her land. Discuss with respect to the common law and the Water Act 2002.
Petroleum Act Cap 116 provides for the regulation of import, transport and storage of petroleum. The Act gives the Minister power to make rules and therefore the import/transport and storage of petroleum is largely governed by the rules which have been made under the Act. There was an attempt in 2002 to introduce amendments into the Petroleum Act and this resulted in the Publication of a Petroleum Bill March 2002 which proposed changes with regard to the standards to be met by those who transport, store or otherwise deal in petroleum products. The bill was not presented for debate and when parliament was prorogued in October of 2002 the Bill basically collapsed and has not been enacted.
The rules divide petroleum into class ‘A’ petroleum and class ‘B’ petroleum, Class A petroleum has a flashpoint of 73o Fahrenheit, if the petroleum is got a flashpoint of over 73 degrees Fahrenheit it is class A. the flashpoint is the point at which that petroleum would catch fire. Petroleum that has a flashpoint of 73o can catch fire very easily because it is very low.
A licence is necessary for the transport of petroleum by road and the licence authorises the transport of petroleum in the vehicles and within the area which is specified in the licence. On the licence will be endorsed the times during which the petroleum may be transported, the places at which the vehicles transporting the petroleum may be packed, the requirement to notify the licensing or other authority of the intended transport of petroleum if the licensing or other authority considers such notification necessary in the interest of safety.
Where petroleum is transported not in bulk, then the following conditions shall apply:-
(a) Every vehicle which is carrying petroleum not in bulk shall be strongly constructed with sides and back of adequate height.
(b) The vehicle shall not carry other goods of an inflammable nature or passengers.
(c) The vehicle shall not remain stationary for more than 30 minutes within a 100 yards of any building.
(d) The vehicle shall exhibit in conspicuous character the words, motor spirit, kerosene or other similar words indicating the nature of the contents.
(e) While engaged in the transport of petroleum the vehicle shall be constantly attended by at least one person.
(f) The vehicle shall carry at least one fire extinguisher;
(g) No petroleum shall be loaded into or discharged from the vehicle between the hours of sunset and sunrise or while the engine is still running.
(h) No person shall smoke, strike a match or carry any naked light while in or near a vehicle that is carrying petroleum.
Rules with respect to the receptacle, these are the rules:- The receptacle for conveying petroleum not in bulk shall be
(a) strong metal receptacle which is so constructed, secured and closed as not to be liable to become defective, leaky or insecure in transit;
(b) It shall be packed so as not to project beyond the sides and back of the vehicle;
(c) If it contains Class ‘A’ petroleum it shall exhibit the words motor spirit, petrol or similar words indicating the nature of the contents;
(d) If it contains class ‘A’ it shall have an airspace of not less than 2.5% of its capacity for expansion and construction.
Petroleum that is in bulk shall not be transported by road and in Kenya it is transported either by train or through the pipeline. With regard to storage of petroleum licences are necessary for the storage of petroleum and a person shall not within a municipality or township store class A petroleum in any building the sides or roofs of which is wholly or mainly constructed of inflammable material. Petroleum which is in bulk shall be kept in an installation or in an underground kerbside tank.
The Petroleum Bill was designed to change the requirement for underground storage of petroleum which is in bulk. It was motivated by the fact that underground storage of petroleum in bulk requires significant capital outlay. It is expensive. The consequence is that the Petroleum Industry in Kenya has been dominated by the major petroleum companies. Entry into the retail of petroleum has been inhibited by the expense involved in providing for storage facilities and in an effort to liberalise the market it was thought that these should be changed. There was a big dispute about this. The big companies took the view that this would result in a compromise on safety, the small players argued that the standards were basically protecting the multinationals, in the end many players have entered the market some of whom have not made any investments in the market. There are a number of companies who have come in the market and they are actually complying with the standards.
Petroleum not in bulk shall be kept in a storage shed.
The application for the grant of a licence shall be accompanied by specifications and plans indicating
1. The premises to be licensed giving particulars of the material and construction of each building;
2. The position of the premises in relation to adjoining property including distances from neighbouring buildings.
3. In the case of an installation the position and capacity of all tanks, storage sheds and filling stations. in the case of an installation, the plan that you submit with the application should show the position of all buildings, structure or other works and the manner in which the petroleum is to be stored.
4. All lighting arrangements including the position of electric cables, switches and fuse boxes, the drainage system, water connections, fire hydrants and fire fighting appliances.
5. No alterations in the licensed premises or in the method of storing petroleum shall be made without the authority of the licensing officer.
A license to store petroleum within a municipality or a township shall not be granted unless the local authority has approved the site. Further the license shall not be granted unless the plans and specifications have been approved by the Minister or his representative.
No person shall in or near the storage shed or installation do any act which is likely to cause fire. An adequate supply of dry sand or earth shall be kept ready for use in an installation and in or near a storage shed for the purpose of extinguishing a fire. Petroleum shall not be allowed to escape into any drain, sewer, harbour, river or watercourse.
Goods of an inflammable nature other than the licensed petroleum shall not be kept within the installation except as are necessary for the purpose of installation and they must be stored in the manner indicated in the specifications and plans attached to the licence.
With regards to kerbside tanks – where the tanks are entirely below the service of the ground, they shall be covered to a depth of 12” below the ground and where in the event of serious leakage there is a possibilities of water supplies, water courses or drainage systems being contaminated, the tank shall be completely surrounded by pladdled clay not less than 12” in thickness or by concrete of a thickness to be approved by the Minister. The tanks ordinarily are made of steel and the steel has a certain lifespan so what has been happening is that after 50 years the tank begins to leak and that is the leakage that contaminates drinking water. Most oil companies have the ability to test the tanks and this is not easy as they are buried under the ground.
The pit of a tank which is partially above the ground shall be capable of holding the volume of petroleum which is not less than 5% of the capacity of the tank. Bunding may be resulted to, to reduce the tank yard area. Bunding is a safety measure.
Where the tank is completely above the ground and where in the event of a serious leakage there is the possibility of water supplies, water courses or drainage systems being contaminated, the flow of the enclosure shall be formed of concrete or other material approved by the Minister. The enclosure itself shall be drained by a pipe fitted with a valve and the valve shall be actuated from the outside of the enclosure. The valve shall always be kept closed except when actually in use.
No water shall be allowed to accumulate inside the enclosure and the tank itself shall be adequately protected from rust. All the pumping mains and the pipes shall be furnished with the means of stopping the flow of petroleum from the tanks in the event of an injury to the pipelines.
Every storage shed shall be constructed entirely of non-inflammable material and the doorway and other openings of the storage shed shall be built up to a height of 6” above floor level or the floor sunk to a depth of 6” so that the petroleum cannot flow out of the building in case of its escape from its receptacles.
Finally the licensee shall take all reasonable and proper steps to ensure that the provisions of the rules and the conditions of the licence are known to and observed by all persons employed in the premises and secondly that unauthorised persons do not have access to the licensed premises.
PROVISIONS WITH REGARD TO THE MANAGEMENT OF HAZARDOUS CHEMICALS THAT ARE PROVIDED IN ENVIRONMENAL MANAGEMENT AND COORDINATION ACT
The EMCA has introduced what in effect is a parallel system for managing hazardous chemicals and hazardous waste. Section 91 provides the characteristics of hazard. The Act provides that hazardous waste and substances and chemicals shall not be imported into Kenya or exported from Kenya or transported through Kenya without a valid permit issued by the authority (NEMA). Where the wastes are being exported from Kenya the written consent of the receiving country must also be obtained. This is a requirement under the Basel Convention on the transboundary movement of hazardous waste, it is a 1989 convention and it imposes a system which is known as prior informed consent requirement. The requirement is a requirement that the importing country must give its prior consent before the import is undertaken. The catch is that the consent must be informed and for the consent to be informed the exporting country must disclose the nature of the substance being exported. (Kenya has not ratified the Basel Convention only 10 African Countries ratified this convention this is because African countries took the view that they will never get informed consent from the developed world and what they give will not be free consent, and even if informed consent is given, it will be too technical they will not understand it. Africans went ahead and signed the Bamako convention which says that hazardous material cannot be imported into Africa but they say it can be moved as between the African countries.
Under Section 93 the Act prohibits the discharge of hazardous substances or chemicals into any waters or other segments of the environment. A person who is responsible for the discharge shall pay the cost of removing the substance or chemicals including the cost incurred by the government in restoring the environment which has been damaged.
Under Section 94 the Authority is required to establish standards relating to pesticides and other chemicals and those standards shall define the concentration of pesticide residues in raw agricultural commodities, processed foods and animal feeds. Raw agricultural commodities include fresh foods and vegetables, eggs, raw milk, meat and other agricultural produce. At the moment in Kenya these standards have not been included in any statutes. It is important to establish standards and when the standards are established they shall be enforced by the Authority in respect of all produce. The Authority requires to constantly collect data on pesticide residues. At the moment there is no system for dealing with this problem.
Section 95 imposes a requirement for registration of pesticides and toxic substances and it says that any person who intends to manufacture, import or process a new pesticide or toxic must apply to the authority for registration. At the moment this registration process to be administered by NEMA is the exact parallel of the Pest Product Control Act so there is double registration requirement. In the end this should be resolved in favour of NEMA recognizing the registration that has been granted by the Pest Product Control Act.
Under the Act where pesticide is registered, it shall be registered for a period of 10 years. It is an offence to distribute, sell, import or receive any unregistered pesticide or toxic substances. A person who contravenes this section shall be liable to a fine of 1 million shillings or imprisonment for 2 years or both. Additionally the authority is allowed to seize the product and destroy it.
Finally the Act imposes a requirement with regard to the disposal of motor oil. Motor oil is another environmental problem. The mechanics tend to empty motor oil everywhere without a care while motor oil is an extreme pollutant. The Act provides that Motor Oil is to be treated as a hazardous substance and shall be disposed off through a licensed waste management facility. Basically the operator or owner of the motor vehicle or vessel from which the discharge of oil or a mixture containing oil into the environment occurs shall
1. Immediately give notice to the authority;
2. Immediately begin cleaning up using the best available cleanup methods and comply with directions given by the authority;
Where the owner or operator fails to take any of those steps, the authority may seize the motor vehicle and dispose of it to meet the cost of clean-up.
BIOLOGICAL DIVERSITY
The management on diversity is currently provided for under a number of international frameworks. The frameworks have not been adopted in every place in Kenya but they provide the basis for assessing the law as it pertains in Kenya.
Frameworks for the Management of Biological Diversity:
Internationally the management of diversity has a history dating back to the 70s and that history indicates that the management of biological diversity on the whole has been sectoral in nature. It has focussed on managing bio-diversity through the regulation of specific aspects of biological diversity. An early convention is the Convention on International Trade in Endangered Species known as CITES. CITES was adopted in 1974 in Washington DC. It focuses on regulating cross-border trade on species which are in danger of extinction. The degree of threat of extinction determines the extent of regulation required. The convention therefore establishes 3 appendices
Appendix 1 – this is a list of plant and animals that are in imminent danger of extinction. With regard to plants and animals that are listed in Appendix 1, International Trade is absolutely prohibited. For Kenya this particular convention is significant because the African Elephant and the Black Rhino have been listed on Appendix 1. They are listed on Appendix 1 because of the threat of extinction that they have faced primarily in Kenya. With regard to the African Elephant what is traded internationally is the task and with regard to the Black Rhino what is traded internationally is the horn in both cases the animal is killed either for its task or its horn. The banning of international trade by listing of these animals is implemented in Kenya by a prohibition on the hunting of either of these animals.
Appendix 2 - this is a list of items which are not in imminent danger of extinction but which are facing a threat. Items listed here can be traded internationally if there is consent by the exporting country and by the importing country. Therefore countries are required to have a licensing system to facilitate international trade. If one turns up at an Airport with item under Appendix 2 likes lets say a crocodile skin, you are not immediately locked up but they will demand a licence. With consent of either
Appendix 3- These items are not in danger and may be traded with the permission of the exporting country alone. The mechanism of CITES is to protect Biological Diversity through regulating international trade.
The second Convention is the Ramsar Convention. This is a 1971 Convention, Ramsar is a city in Iran. It is a convention on Wetlands of International importance as Waterfowl Habitat. This is an important convention for the protection of biological diversity because it establishes another principle for protection of biological diversity. It requires that countries should designate at least one wetland which internationally is important as habitat for waterfowl. Waterfowl move from one wetland to another (migrate) so in one season you find them in a wetland in warm climate and in the cold season you find them in a wetland in cold climate. The principle of protection of biodiversity in this case is the protection of the Habitat of that biodiversity. Kenya has so far designated two wetlands Lake Nakuru and Lake Naivasha and is in the process of designating Lake Bogoria. All of these wetlands are designated because of the Flamingo.
The third convention is the CMS – Convention on Migratory Species which a 1978 Bonn Convention. This convention also establishes a principle that countries which are known as range states must establish management frameworks and standards which are similar on either side of the border. Range States are countries through which, to which or from which migratory species will migrate. For example the Wilderbeest the Range States are Kenya and Tanzania. Range states must have comparable standards.
There are other many conventions but our focus is on National Law.
All these instruments regulate biological diversity through one or other aspect of biological diversity. It is quite clear that single issue regulation for biological diversity was not appropriate. In 1992 the Convention on Biological Diversity was adopted in Rio De Janeiro in Brazil. It establishes a comprehensive framework for the management of Biological Diversity.
Firstly the convention provides a definition of biological diversity. Basically it defines biological diversity as the variability among living organisms and the ecological complexes of which they are a part. This includes diversity within species, between species and of eco-systems. The focus is on variability. Biological Diversity is the difference between living organisms and among different organisms. In effect biological diversity is a concept, it is an idea that living organisms are different. They are different as species, there is a difference within the species and among the species in different ecologies. In ecological complexes, there is different kinds of habitat that exist in the earth i.e. water habitats, terrestrial. These Habitats have differences and all of that or the idea of that difference is what comprises biological diversity. This convention is designed to provide systems for managing that diversity. Biological Diversity is basically the difference in life forms and in the ecology and the convention sets out to provide mechanisms for managing that difference.
The convention has one fundamental philosophical premise that philosophical premise is that biological diversity is necessary in and of itself. It is inherently desirable. This means that one does not have to find justification for preserving diversity in the benefits of diversity to humans. The convention takes the position that difference must be maintained and therefore the loss of diversity is considered negative environmental management, the conservation of diversity is considered positive environmental management. According to this convention, if the world loses the black rhino for example, it will be a worse off place for the loss. Every kind of diversity deserves to continue to live. The point is that one does not have to argue that humans will be worse of if they lose the Rhino or the Mosquito but the Rhino and the Mosquito must exist period. Diversity must exist.
The convention therefore puts in place a number of requirements for state parties to comply with
1. State Parties must identify the biological diversity within their jurisdiction and inventorise it;
2. State parties must put into place measures to identify the threats to biological diversity;
3. Biological Diversity must be managed in situ, this means managing biological diversity in its natural place of origin. the management of biological diversity in situ requires the establishment of systems and frameworks which allow in situ management e.g. is the system of protected areas which are known to us as national parks and game reserves. In situ management is required by all where there is diversity of biological diversity. With respect to biological diversity which are in danger of extinction, states are required to provide for management ex situ. Management ex situ is management off site of species and it is within these off site arrangements, representative samples of biological diversity must be maintained. This means that assuming one keeps snakes in a snake park, then one must keep the different kinds of snakes that exists in Kenya, the idea being that there must be diversity. The Kew Garden which is a botanical garden in London is a representative of every plant that has ever been identified, here you can see the diversity of the plant kingdom.
4. Developments of technology which have an impact on biological diversity – the principle established in the convention and the protocol which is the Cartagena Protocol was developed on CBD and this protocol introduces the requirement that with respect to technological developments which have an impact on biological diversity, countries must apply the principle of caution called the precautionary principle. This principle is the principle that in the absence of scientific evidence that the proposed development will not have an adverse biological impact on the biological diversity it is necessary to proceed with caution. This principle is applied particularly to developments with respect to genetically modified Organisms (GMOs). Genetic modification is a technique which changes the genetic makeup of an organism in order to influence the characteristics of that organism. The resulting organism is the one called Genetically Modified Organism. Those that support this technique argue that Genetic Modification has significant benefits.
5. The Convention takes the position that biological diversity is common heritage of human kind. Common heritage means that all of humankind has an interest in the existence of biological diversity. The international community has a shared responsibility for the shared biodiversity. The Nation State in which that biological diversity is to be found has the responsibility to provide access to the biological diversity to others. That access will be on terms to be agreed but the responsibility is to provide access. In turn the international community has a shared responsibility for the management of biodiversity. The way in which the access is provided has been quite controversial. Biopiracy is the practice of entities seeking biological resources from other countries and converting those resources to commercial benefits to the detriment of the local people in the place where the resources were found. Biopiracy should be managed by determining terms of access. (A case of Americans using phytoplankton from Lake Bogoria to manufacture detergent). Countries are required to provide financial and technical resources to enable source countries manage their biological diversity. The regime for managing biological diversity today is premised on the philosophy that biological diversity must be preserved for its own sake preferably it must be preserved on site through the protection of habitat failing which it must be preserved off-site and that it is a shared responsibility of all countries to ensure the preservation of bio diversity.
MANAGEMENT OF BIOLOGICAL DIVERSITY
Law Applicable in Kenya for managing Biological Diversity:
The management philosophy that is encapsulated in the Kenyan legal system is primarily that of protected area management approach. The history of the protected area management approach dates back to 1933 when the second international conference on wildlife conservation was held in London. This conference resulted in a convention known as the Convention Relative to the Preservation of Flora and Fauna in their natural state. This was signed in London in 1933. This convention enjoined governments to establish National Parks or National Reserves. Within these areas all settlements would be controlled to ensure as little disturbance as possible to the natural fauna and flora. The text of this Convention is found in a UNEP Publication titled Selected Multi-lateral Treaties in the field of the Environment at Page 57. It is edited by Alexandra Kiss. Within that particular Convention is the principle of setting up and maintaining National Parks and other faunal and floral sanctuaries.
The word ‘sanctuaries’ denotes an area in which an object receives protection from external threats. The threats in this case were seen to be threats of destruction arising from human settlements. The philosophy is that flora and fauna need to be protected from human settlements and the way of providing that protection is by creating areas within which human activity is prohibited or restricted. That philosophy has come under serious questioning since the adoption of the principle of sustainable development in the 1980s.
Under the principle of sustainable development, it is believed that the management of flora and fauna arises from the interaction between all components of the eco-systems. Human activity is a legitimate part of any eco-system. Eco-systems have the inherent ability to absorb the impact of human interaction. It is therefore not necessary or advisable to exclude human activity from eco-systems. This philosophy is known as a single use philosophy where animals are left in the parks or reserves and humans are driven out. This is the philosophy adopted by the Kenyan government. One of the key signatories to the London Convention was the United Kingdom. Obligation of states under that convention was to establish and maintain National parks and other sanctuaries.; in 1937 UK as the colonial power in Kenya commenced on the development of legislation to protect game birds and game animals in the colony and in 1945 the National Parks Ordinance was passed. The Ordinance set the basis for the establishment of National parks, National Reserves and Bird Sanctuaries.
In 1963 the National Parks Ordinance became known as the National Parks Act. It was amended in 1976 and named the Conservation of Wildlife and Management Act Cap 376. At that time the administrative body responsible for Wildlife administration in Kenya was the department of wildlife management which was then a department of Ministry of Tourism. Between 1976 and 1999 Kenya witnessed catastrophic decline in the Elephant population and in the population of the Black Rhino. With regard to the elephants numbers reduced from an estimated half a million to just about 60,000 with regard to the Black Rhino it was reduced to near extinction.
Internally the failure to manage the wildlife was attributed to the inefficiency of the Wildlife Management department. However it is widely known that there was widespread poaching and in 1999 President Moi burnt a heap of elephants tusks as a symbol of commitment to protect the elephant. The change that was made was to introduce a 1989 to the Wildlife Conservation and Management Act which created a parastatal known as Kenya Wildlife Service whose mandate was to manage wildlife in place of the Wildlife department. Due to the serious poaching problem the Kenya Wildlife Service was established as a paramilitary organization because it was thought that a paramilitary force was needed to counteract poachers. This army is supposed to protect wildlife. Flora and fauna co-exist in a multi-use situation.
In 2004 a Private Members Bill designed to amend the Wildlife Conservation Management Act was introduced basically to allow the hunting of wild animals. The private members bill was passed and it was then met with serious criticisms from those who believed that to hunt was wrong the President refused to give it assent.
Following on the enactment of the National Parks Ordinance, in 1948 the first national Park in Kenya was established now known as Nairobi National Park by 2000 there were 22 National Parks and reserves in Kenya comprising 8% of the area of Kenya. It is said however that although 8% of the area of Kenya is Gazetted as National Parks, Wild animals spend only 20% inside that 8% and the reason is obvious that wild animals move back and forth. The human wildlife crisis arises on account that animals spend 80% of their time outside allocated areas. Pastrolists and non agricultural activities tend to be compatible with wildlife use, while agricultural activities tend to be incompatible.
The Wildlife Conservation and Management Act gives the Minister power to declare an area to be a National Park. He may also declare that a National Park or National Reserve shall cease to be a National Park or a National Reserve. Where he declares that a National Park or National Reserve shall cease to be so, Parliament must approve. The notice must be gazetted for 60 days and the Order laid before the National Assembly for its approval.
A National Park is under the management of Kenya Wildlife Service and the reserve is under the management of local authorities. In a few cases such as the Masai Mara reserves are managed by Kenya Wildlife Service as an agent of the Local Authority. In the parks and , it is prohibited to do the following:
1. To be in possession of a weapon, explosive, trap or poison;
2. To enter or reside;
3. To cut or set fire to vegetation and to collect honey or bees wax,
4. It is also prohibited to be in possession of any animal trophy whether in or outside of the National Park;
5. to introduce domestic animals or vegetation into a National Park
6. to disturb or stampede animals; or
7. to clear cultivate or break up the ground for cultivation and
8. to catch or attempt to catch fish.
Hunting:
It is an offence to hunt a protected animal or a game bird without a licence. Licences will authorise hunting in specific areas and during specific periods and a licence may only be issued to a professional hunter or a person who is accompanied by a professional hunter.
Game Licensing:
A game licence shall cease to be valid as soon as all the animals whose hunting it authorised have been killed, wounded or captured. A licence cannot authorise hunting on private land and any private land owner who wants to provide facilities for hunting on his/her land must register that land with the director in which case the licence will show which private land it applies to. It is an offence to cause unnecessary or undue suffering to animals in the cause of hunting.
Close Season:
The Act provides for the Minister to declare close seasons. These are seasons during which hunting of specified birds or animals is unlawful. Currently we are operating under close season.
Animal Trophies:
With regard to trophies, it is an offence to import or export ivory or Rhinoceros horn without permission of the Minister and therefore a person who kills or captures an animal under the Authority of Game licence must within 30 days produce the animal or trophy to a warder who shall issue a certificate of ownership.
It is also an offence to export life protected animals or birds without the authority of the Minister.
No person shall carry on the business of a dealer unless he holds a valid dealer’s licence.
With regards to animals being kept in captivity a permit is required to keep animals in captivity. The birds and animals which are kept in captivity shall be made available to a warder at all reasonable times and if the warder believes that they are not being adequately cared for and they are not kept in conditions which are reasonably humane, he may report to the director who may cancel the permit.
With regard to domestic animals, the applicable law is the Prevention of Cruelty to Animals Act which basically requires that animals be treated humanely.
PLANTS
The management of Plants focuses around 2 approaches
Forests are managed within protected areas and so the Forest Act Cap 385 allows the Minister to declare an area to be a forest and to declare an area to cease to be a forest. An area which is declared a forest is protected in exactly the same way as an area which is a wildlife protected area. Presently Kenya has about 1.5% of its land area as gazetted forest. The recommended international requirement is 10% of the land area to be under forest. Leading the park is Madagascar which has about 13% of its land area under forest. In law a gazetted forest is an area which is protected because of the gazettement. It is not an area which necessarily has tree cover. So a forest in Kenya is a legal Concept. In reality a lot of forest areas have no trees. The weakness we have in Kenya is that there is no legal provision protecting individual trees, there is a provision protecting forests.
The protection of individual trees can only be undertaken either by local authorities using their planning powers or it can be undertaken by chiefs under the Chiefs Act. The Chief Act allows the chief to regulate activities which can degrade the soil. In 1996 in one of his then famous roadside declarations President Moi issued a directive prohibiting the cutting of indigenous trees. Under that directive the provincial administration has enforced a rule that it is unlawful in Kenya to cut indigenous trees and also that where you cut non-indigenous trees you are required to plant another one. Whether or not these directives have legal force depends on whether in ones view the President has extra legal powers to make law.
Therefore there is no legal requirement that a farmer must protect individual tree species on his or her land. The protection of forests therefore occurs within gazetted forests but not outside of it.
The second approach to the protection of plant species arises from the protection of crops which are seen as of value because they are agricultural.
The Agriculture Cap 118 Act aims to promote land husbandry. It requires that a landowner does not allow the land to degrade to the detriment of agriculture and it requires landowner to apply good agricultural practices on the land.
The Land Control Act establishes a system for regulating dealings in Agricultural lands. Dealings include transfer or subdivision of agricultural land. Such dealings must obtain the consent of the land control board. The mandate of the Land Control Board is to ensure that dealings do not undermine good land husbandry. The idea is to promote agriculture
The Plant Protection Act Cap 324 aims to prevent the introduction and spread of disease which is destructive to plants. Plants are interpreted to mean agricultural plants. The Act requires the destruction of pests and prohibits the import of articles which are likely to spread pests or disease to plants.
The Suppression of Noxious Weeds Act Cap 325 gives power to the Minister to declare Plant to be a noxious weed. Following the declaration the person responsible for the land must clear the weed. Our legislation is premised on the promotion of agriculture and any plant not contributing to agriculture is to be weeded out.
The Seeds and Plants Varieties Act Cap 326 provides for the establishment of an index of names of plant varieties and it also gives power to impose restrictions on the introduction of new varieties. It controls the import of seeds and it authorises measures to prevent injurious cross-pollination and lastly it provides for the grant of proprietary rights to persons who are breeding or discovering new varieties. This is a system of intellectual property rights which is controlling plants. The people who use this kind of mechanism are the professional breeders. With regard to the management of plants we have the regime out of forest designed to promote agriculture through the suppression of non agricultural plants.
ATMOSPHERIC POLLUTION CONTROL
ENFORCEMENT OF ENVIRONMENTAL LAW USING THE CRIMINAL PROCESS
Enforcement is defined as the process of ensuring compliance with requirements under Environmental Law and the criminal process presents a second process of ensuring compliance.
The use of criminal legal process has lagged behind the use of the civil legal process as a mechanism for the enforcement of environmental law. Consequently it is on the whole quite less developed as an enforcement mechanism and its relative unattractiveness arises from difficulties which constrain its utility. These difficulties can be categorised into three
1. Burden of Proof;
2. Culpability;
3. Enforceability.
BURDEN OF PROOF
Under the common law, the commission of a criminal offence requires two elements, the guilty act known as the ‘Actus Reus’ and the guilty mind known as the Mens Rea both actus reus and mens rea are standard criminal law requirements. It is the burden of the prosecution to prove both actus reus and mens rea in order for the offence to have been proved. In the field of environmental law the prove of both actus reus and mens rea is quite difficult for the reason that environmental offences on the whole tend to be offences of omission rather than offences of commission.
Secondly even where an actus reus can be identified, it is quite often the case that there is no mens rea. Typically environmental offences arise because a person or an entity has failed to take deliberate steps to prevent the occurrence of the offence. Rarely do they arise because the person or an entity has taken active steps to cause the offence. To use the example of pollution it is often the case that pollution occurs because there has been a failure to put in place measures to prevent pollution occurring. It is less often that pollution will occur because of deliberate action to cause pollution.
Thirdly even where you identify the guilty act it is rarely the case that the guilty act has arisen out of an intention to cause pollution. It is more often the case that the intention of the polluter was to pursue a different quite legitimate objective. For this reason typically the prosecution will fail in discharging the burden of proof.
In order to facilitate the use of the criminal law as an enforcement mechanism, statute has intervened to remove the requirements of mens rea. Consequently under statutory criminal law, environmental offences have been converted to offences of strict liability. They have not however been converted to offences of absolute liability. The conversion of environmental offences to offences of strict liability has obviated the need to prove intent and made it easier to discharge the burden of proof. (strict liability is an offence in which the offence is complete only with the guilty act, there is no requirement for mens rea. There is a requirement that the prosecution must prove the existence of a guilty act. They are not required to prove intention. Absolute liability is an offence requiring neither a guilty act nor a guilty mind and there are a few offences of absolute liability, being in charge of a motor vehicle while drunk is an offence of absolute liability. There is no requirement to show that you were driving while drink. There is no requirement to show anything except that you were in charge of the vehicle drunk.
An offence of strict liability is best illustrated by the case of Environment Agency v Empress Car Co. (Abertillery). The appellant maintained a diesel tank in a yard which was drained directly into a river. The tank was surrounded by a bund to contain spillage but the appellant had overridden that protection by fixing an extension pipe to the outlet of the tank so as to connect it to a drum standing outside the bund. The outlet from the tank had a tap and the tap had no lock. One night an unknown person opened the tap and the contents of the tank run into the drum overflowed into the yard passed down the drain into the river. The appellant was charged with the offence of polluting water, he was convicted and he appealed. The Appellant’s appeal was based on the fact that the pollution had occurred from the acts of the third party who was not known to the appellant. The court held that the liability was strict and did not require the proof of the intention to cause pollution or of negligence. The fact that the deliberate act of a third party had caused the pollution did not mean that the defendant was not guilty. By maintaining the tank and the drum in the place where they were and by not taking steps to prevent third parties from opening the tap the appellant had created the situation in which the pollution could occur. The court held further that foreseeability is not relevant in deciding whether the appellant had caused the pollution. The distinction is between acts which although not foreseeable in this particular case are a normal and familiar fact of life and acts and events which are abnormal and extraordinary.
CULPABILITY
The second issue has to do with culpability which means guilt. We will focus on moral culpability. An offence which is considered to be morally objectionable tends to attract public condemnation. The consequence of public condemnation is that the enforcement authorities will place a lot of effort in prosecuting the offence and the courts will hand down severe penalties. Environmental offences typically do not attract public condemnation because the public do not view them as morally blameworthy. The public thinks of them as technical offences because the public does not view them as morally blameworthy little effort is placed on the prosecution and light penalties are handed down. Environmental offences are not considered to be blameworthy because they tend to arise in the context of day to day productive and consumptive activities. When you convert an offence into an offence of strict liability, it removes the moral element and the public begin to view the offence as a technical offence.
ENFORCEABILITY
Typically the punishment for an offence is fines and imprisonment. Fines tend to be awarded for the less serious offences, imprisonment is awarded for the more serious offences. Imprisonment is only possible where the offender is a natural person. The major environmental offences tend to be committed by legal persons who cannot be subject to imprisonment. The consequence is that the penalty available for environmental offences against legal persons is the lighter penalty of a fine.
In an effort to overcome this shortcoming, statutes have extended criminal liability to the chief officers of legal persons. Section 145 of the Environmental Management and Coordination Act states as follows: when an offence is committed by a body corporate, the body corporate and every director or officer of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence to prevent the commission of the offence shall be guilty of an offence. This means that if you are the MD of Kenya Railways, ordinarily if there is some criminal prosecution the company’s lawyer will defend and a fine will be paid but Section 145 is saying that every director or officer who had knowledge but did not exercise due diligence will be liable and it becomes possible under this section to imprison the chief officers of corporations. The section also provides that an employer or principal shall be liable for offences committed by an employee or an agent unless the employer or principal proves that the offence was committed against his express directions.
ATMOSPHERIC POLLLUTION CONTROL
Atmospheric pollution is caused by gaseous emissions generated by industry or transport through the burning of fossil fuels and the use of chemicals. Emissions from industry include oxides of nitrogen, carbon monoxide, carbon dioxide, oxides of sulphur and burnt hydro carbon and particulate matter (scientific term for dust). Gaseous emissions lead to the depletion of the ozone layer and to climate change.
With regard to the ozone layer, this is the layer above the earth that protects the earth from the sun’s ultra violet rays. The earth is protected from them by the ozone layer which is a layer of gases. Chemicals produced from the industries damage the ozone layer by dissolving the gases that make up the ozone layer. Ozone depleting substances are Chlorofluorocarbons (CFCs) Methyl Bromide and Halons. Where they dissolve the gases that make up the ozone layer, this makes the ultra violet rays reach the earth. There is a convention of ozone depleting substances which has the objective to reduce the production of ozone depleting substances. The Environmental Management and Coordination Act requires that regulations be introduced to prevent the production and use of ozone depleting substances. Basically those regulations have not been introduced but through the UNEP programs which help poor nations adapt safer substances. Carbon monoxide is produced from the incomplete burning of fuels particularly in vehicles. Charcoal and wood are also polluters that produce carbon monoxide. At high concentration carbon monoxide can damage the nervous system and cause death. On a large scale emission of carbon dioxide and carbon monoxide lead to a warming of the atmosphere and this causes changes in the climate. The UN has the convention on climate change which is a 1992 convention on climate change and this has a protocol which is the Kyoto Protocol. Basically the objective of the convention of climatic change is to reduce emission of green-houses gasses which cause the warming of the atmosphere, these are carbon dioxide and carbon monoxide.
The other pollutant is hydrocarbons. These are gases made of hydrogen and carbon emitted from the burning of petroleum, diesel and coal methane is a hydrocarbon which along with carbon dioxide are considered to be greenhouse gases. The reason that it is called greenhouse it is because the effect is to increase temperatures so that one feels as if they are in a greenhouse.
Hydrocarbons may produce compounds which are known as volatile organic compounds (VOC) these are compounds which are basically capable of burning at very low temperatures. When VOCs are mixed with other chemicals they produce smog. Smog is a mixture of volatile organic compounds, other chemicals and particulate matter and smog has the appearance of fog. In Nairobi there is a lot of smog. The origin of comprehensive air pollution in the UK was smog in 1952 and as a result about 4000 people died from disease of asthma. They started on serious exercises of air pollution control. California has also a smog problem and Mexico City has also serious smoke problems and Nairobi is developing serious smog problem.
The kinds of chemicals which combine with VOCs and sunshine to bring smog are chemicals such as Benzene and Ethylene. Particulate matter has two sources, biogenic sources and anthropogenic sources. Biogenic particulate matters include dust from wind, forest fires and volcanic eruptions. Anthropogenic sources include emissions from industry and motor vehicles.
With regard to the control of smog particularly the environmental management and coordination Act has provided for the declaration of controlled areas under Section 79. A controlled area is an area in which the Minister has prescribed air-emission standards for that particular area.
Another problem arising from the transport sector is the emission of lead, this is a metal which is added to fuel to enhance performance of the engine. Lead enters the body through the respiratory tract and the gastro-intestinal system, i.e. it is swallowed or through respiration. It is stored in bones, teeth and soft tissue. Accumulated lead leads to neurological disorders. It damages the nervous system. In young children lead damages the brain.
The other air pollutant is chlorine and chlorine is used particularly in the pulp and paper industries i.e. Webuye paper mills. The chlorine gas is highly poisonous and it dissolves metal. It also has a pungent smell. Sulphur dioxide is produced from the burning of petrol. It contributes to the phenomenal known as Acid Rain Acid Rain is experienced in heavily industrialised countries.
In order to deal with air pollution, the requirement is first and foremost to develop an inventory of sources of air pollution. Under the Environmental Management and Coordination Act owners and operators of industrial undertakings must obtain a licence for the substances which are emitted from the undertaking. In issuing the licence the authority in this case NEMA will take into account air-quality standards which have been developed by the standards committee.
With regard to vehicles under Section 82 no owner or operator of a motor vehicle shall operate it in such a manner as to cause air-pollution in contravention of established emission standards. The Authority shall maintain a register of all emission licences issued under the Act and that register shall be public document. The problem in Kenya is that we don’t have established emission standards.
With regard to smell Section 107 requires NEMA to establish minimum standards for control of pollution of environment by noxious smells and requires procedures for the measurement and determination of noxious smells which is necessary and finally guidelines for the abatement of noxious smells.
A CLEAN AND HEALTHY ENVIRONMENT AND SUSTAINABLE DEVELOPMENT
Introduction
Before discussing this right, which is entrenched in the Constitution of Kenya 2010, it is deemed appropriate define the term environment in general and environmental law in particular
Defining Environment
The term ‘environment’ is capable of many different meanings. This is explained partly by the fact that environmental concerns encompass an extremely wide field and a host of varied problems. The term has become a subject of study in a number of disciplines. Different professions attach specific connotations to the term. Each of them tends to explain the term from their basic perspective. Environmental issues are, for instance, currently the subject of major concern to those in agriculture, forestry, mining, manufacturing, urban planning, economic planning and international relations. Likewise, environmental debates may integrate various perspectives such as ethics, morals, religion, politics, economics, ecology and law. Environmental issues tend to transcend different spheres of human concern, thus necessitating a delineation of boundaries for the present inquiry. Fuggle et al. observe that it has become common for people to speak of a natural environment, built environment, and even of an economic environment.
The word ‘environment’ is derived from the French language. The verb ‘environer’ means to surround, and the noun ‘environs’ means the outskirts, surrounds or districts of a town. The meaning of environment given in the Oxford English Dictionary varies from ‘the region surrounding anything’ to ‘the conditions under which any person or thing lives or is developed; the sum total of the influences which modify and determine the development of life and character’. In the Shorter Oxford Dictionary it is defined as ‘that which environs; especially the conditions or influences under which any person or thing lives or is developed’. Macquarie Dictionary gives a similar explanation. It defines the term in the following words: ‘(i) the aggregate of surrounding things, conditions or influences; (ii) the act of environing; (iii) the state of being environed; and (iv) that which environs’. ‘Environs’ is defined as meaning ‘to form a circle or ring round; surround; or envelope.’ Webster’s Dictionary defines ‘environment’ as the ‘circumstances, objects or conditions by which one is surrounded’.
Kiss states that the ‘environment’ can describe a limited area of almost infinite space and factors. He states that, in its largest sense, the environment is a ‘house created on earth for living things’. A more appropriate scientific term for ‘house’ in this context is ‘ecosystem’.
The Commission of Environment and Sustainable Use of Natural Resources of the International Union for the Conservation of Nature (‘IUCN’) defines ‘environment’ as the totality of nature and natural resources, including the cultural heritage and the infrastructure essential for socio-economic activities. Fuggle points out that, when applied to human beings, the single term ‘environment’ relates to the totality of the objects and their relationships that surround and routinely influence the lives of human beings. He warns against using the term in place of ‘circumstances’, ‘situations’ or ‘milieu’, when the user’s intention is to indicate context or circumambience rather than interrelationships. In 1992, Plant, echoing the current provisions of the relevant international law, stated as follows:
The term natural environment is to be understood in its widest sense to cover not merely objects indispensable to survival of the human population, such as foodstuff, drinking water and livestock but also forests and other vegetation mentioned in protocol 11 to the Inhuman Weapons Convention, ‘as well as flora, fauna and other biological and climatic elements’.
From the above set of definitions, it is clear that there is no fixed definition of the concept environment, and consequently environmental law is quite broad, as examined below.
1.3 THE DEFINITION AND SCOPE OF ENVIRONMENTAL LAW
As Kiss et al. point out, ‘environmental law, is an evolving subject, with new principles emerging as time goes by and its rate of development varies from one country to another and from one time period to another’. It is nonetheless imperative to define the term from a legal perspective, because a legal definition is important to delineate the scope of the subject, determine the application of the legal rules and to establish the extent of liability when harm occurs. It is submitted that a lucid understanding of this branch of law calls for a definition and answers to questions such as: what is the nature, scope and role of environmental law in a particular jurisdiction, and what are the new classifications, concepts, basic principles, remedies, methodologies and procedures, if any, that clearly distinguish this field of law from the others.
Fuggle argues that an all-embracing concept of the term is unacceptable as a working basis for determining the scope and the content of environmental law, because the all-encompassing nature of ‘environment’ would tend to make all law environmental law and this may create absurdity (my emphasis). Cowen argues that the conventional way of identifying environmental law is by means of the ‘subject-matter approach’. This view posits that environmental law consists of all legal principles, which ‘have in common not so much their special character, but the subject they regulate’. The subject matter that falls under the general topic of environmental management would encompass pollution control, land use and planning, conservation of biodiversity as well as public health.
Based on Cowen’s approach, environmental law includes all rules and norms derived from international treaties and customs, provisions in national constitutions and domestic legislation, regulations adopted by national and or local regulatory bodies and administrative agencies, judge-made law (common law), and the indigenous or customary law pertaining to environmental management.
One way of looking at environmental law is to ascertain its distinctive principles. A clear recognition of the principles gives the field a systematic structure that could improve its philosophical and intellectual content. This enhances rationality, and leads to an improvement in the interpretation and implementation of the relevant norms. As recently as 1996, Rabie stated that ‘environmental law does not yet contain distinctive principles of its own’. According to him:
Environmental law does consist of a collection of legal norms encountered in a number of conventional fields of law. It shares this feature with certain other recognized areas of legal regulation, such as medical law, labour law, press law, social welfare law and the law relating to consumer protection. This factor accordingly, does not disqualify environmental law as a separate area of law …… Environmental law practically serves a type of omnibus function, accommodating principles of traditional law, which are united only in by their common object in serving environmental conservation. It therefore lacks systematic unity and may be referred to as cross-divisional law.
He highlights the uncertainty that exists as to what exactly constitutes environmental law. He attributes this uncertainty to the vague meaning of the term ‘environment’, and to doubts as to what legal rules pertaining to environment constitute environmental law. He attempts to explain what environmental law is by identifying various principles that range from those which relate exclusively to environmental management, to those with no environmental relevance at all. The categories he identifies, with a brief explanation, are as follows:
(a) Exclusive environmental legislation aims exclusively at environmental management and contains only environmentally specific;
(b) Legislation predominantly containing environmentally specific norms calculated to promote an environmental objection but with provisions other than those that are environmentally specific
(c) Legislation incidentally containing environmentally specific norms, whose general purpose is not environmental conservation or management, but which includes individual provisions with that aim ;
(d) Legislation with direct environmental relevance, not calculated to further environmental management, but comprising provisions that are of direct environmental relevance;
(e) Legislation with potential environmental relevance, not aimed at environmental management, but including provisions that are potentially of environmental significance
(f) Legislation regulating environmental exploitation, such as mining legislation;
(g) Legislation with no environmental relevance.
Categories (a) and (b), according to Rabie, would qualify as environmental law, whilst category (g) would clearly not. The norms in category (c), which is of environmental significance, would also qualify. The remaining three categories, (d), (e) and (f), are more controversial. Rabie argues that purely exploitative legislation, such as (f), would obviously not constitute environmental law, but if legislation governing environmental exploitation contains provisions that seek to minimise the harmful impact upon the environment, such provisions should be regarded as establishing environmental law.
Norms on sustainable development would also qualify as environmental law. Rabie’s categorisation seems to focus more on pollution control and preservation of the environment. It ignores issues of the sustainable use of resources, which are increasingly being acknowledged to be an integral part of environmental law.
Categories (d) and (e) are essentially neutral and, as Kidd argues, they fall under environmental law to the extent that they are used for environmental purposes. It is clear that environmental law may encompass broader elements of the environment. Like other branches of the law, it is dynamic and constantly changes. Consequently, an appropriate definition should leave room to allow for the incorporation of new norms that become relevant to environmental management.
There are at least two flaws in Rabie’s approach. First, as Kidd argues, ‘even a law that deals exclusively with the environment might still share principles with other branches of law’. Second, and perhaps of more significance, it categorises environmental law from a statutory perspective as though this is its only source. Other than the statutes, the bulk of this branch of law is increasingly found in constitutions, common law, traditional African law, and international law. Kenya recognises the African traditional methods of conservation of environment. Traditional conservation methods are found in people’s practices and attitudes, rather than in legal documents, and are more or less self regulatory. In other words, traditional methods do not require state enforcement. Conservational practices among African people predate the creation of modern states and governmental structures.
1.4 WHAT ARE HUMAN RIGHTS AND WHAT IS THE RIGHT TO A HEALTHY ENVIRONMENT?
It appears idle to ask what human rights mean. This is a term that is exceedingly commonplace and yet, on careful scrutiny, turns out to be complex. This complexity is more significant in the international sphere where diverse cultures are involved and where implementation mechanisms are different, nebulous and, at times, nonexistent.
An understanding of the right to a healthy environment and sustainable development calls for a lucid exposition and grasp of the terms ‘rights’ in general and ‘human rights’ in particular. An examination of human rights, their development, and modern characteristics is useful in answering the question as to whether a healthy environment and sustainable development form part of human rights. Besides being a principle of international environmental law, this right is part and parcel of mainstream human rights.
A healthy environment and sustainable development is essential for the realisation of human dignity and potential. Constructions of this right have come about as a result of the human struggle for survival and better lifestyles. Effective environmental protection and sustainable development require the elevation and treatment of the right in question so that it is seen as part of mainstream human rights. Human rights have largely developed within the framework of international law and are best implemented when incorporated into domestic law through national constitutions and domestic legislation.
There is no consensus among scholars as to exactly what rights are. Hohfeld aptly captures the difficulty of defining the concept when he says that: ‘the term is chameleon hued’. He states that the term ‘right’ is sometimes used in its strict sense, where the holder of a right is entitled to something, with a correlative duty on another, so that when a right is invaded a duty is violated. This means that being the bearer of a right implies that some other person, either natural or juristic, bears a correlative duty, the performance of which will indicate the entitlement to the right. Failure to perform the correlative duty, where the right is justiciable, calls for enforcement. For example, the South African constitution enjoins the court to enforce a breach of a correlative duty that goes with any constitutional right against a party that has violated that duty. The correlative duty can be performed either positively or negatively. Gerwith demonstrates this clearly in his definition of the concept ‘right’:
A right is fulfilled when a correlative duty is carried out, for example, when the required action is performed or the prohibited action is not performed. A right is violated when it is unjustly infringed, for instance, when the required action is unjustifiably not performed or the prohibited action is unjustifiably performed. And a right is overridden when it is justifiably infringed, so that there is sufficient justification for not carrying out the correlative duty, and the required action is justifiably performed. A right is absolute when it cannot be overridden in any circumstances, so that it can never be justifiably infringed and it must be fulfilled without any exceptions.
A cursory look at the international instruments on human rights shows that different protections are accorded to different rights. The human rights dealt with in the ICCPR prohibit governments from interfering with such rights, and require them to take positive steps so as to enable their citizens to enjoy them.
Henkin asserts that men have used the term ‘right’ for centuries because some languages give several (though not unrelated) meanings to the term. To him, to have a right is to have an entitlement, the exercise of which is not dependent on the goodwill, permission, benevolence, or charity, of another person. Other persons are under an obligation to provide or at least not to interfere with the bearer’s exercise of the right and if denied, the bearer can protest. According to Vincent, a right is a claim, assertion or a demand. To Finnis, borrowing from Squarez, a Spanish jurist of the 17th century, believes that the Latin ‘jus’ means a ‘right’ and it connotes a moral power, ‘facultas’, which every man has, either over his property, or with respect to that which is due to him. Another scholar, Cranston, asserts that a legal right is a claim, which is conceded and enforced by the law of the state; not necessarily what is deserved. In 1994, Ritchie asserted that a legal right in the strictest sense is a capacity, residing in one man, of controlling, with the assent and assistance of the state, the actions of others.
None of the above propositions, taken alone, can satisfy the definition of the concept ‘rights’. When the word ‘right’ is qualified by the word ‘human’ to become a human right or rights, the definition becomes even more complex, but one that nonetheless needs some discussion.
The definition of human rights and its claim to ‘universalism’ is confronted with multiple cultural contexts. Moreover, there is controversy as to the status of human rights within various systems of law. Many states regard human rights as a matter for domestic jurisdiction, as opposed to international jurisdiction, while others think otherwise. Currently human rights are increasingly becoming matters of international, regional and domestic jurisdiction. This is clear from the number of national constitutions that have incorporated the provisions of the International Bill of Human Rights. At the international level, various efforts have been made for the protection of human rights, particularly through the enforcement of humanitarian law.
The Western liberal concept of democracy has considerably influenced world public opinion, and emerged as an important philosophical and theoretical foundation for current international human rights law. This is the product of the refined heritage of ‘Greek philosophy, Roman law, the Judeo-Christian tradition, the Humanism of the Reformation and the Age of Reason’.
In defining human rights Dowrick says: ‘Human Rights are those claims made by men, for themselves or on behalf of other men, supported by some theory which concentrates on the humanity of man, on man as a human being, a member of human kind which would be in essence an ethical theory’. He goes on to submit that human rights are moral claims, in essence, as they build on the ethical doctrine of the 18th century, and that ethical and political rights have been transformed into legal rights, as a result of their sanctioning by international treaties, such as the ICCPR and ICESCR. And to Alcock, they are ‘moral and political rights springing from religious teachings that have been influenced by social, economic and political realities’. Another source sees human rights as those conditions of life that allow people to develop and use their human qualities of intelligence and conscience, and to satisfy their spiritual needs. These would certainly include environmental goods or resources.
There are several types of human rights. Under Kenyan law, they are expressed in chapter four of the constitution. Kenya is also signatories to a number of international human rights documents.
Human rights are considered to be inherent to human beings by virtue of their being human. Maritain eloquently states:
The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of its acts, and which consequently is not merely a means to an end, but an end, an end which must be treated as such …… The expression means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things, which are owed to man because of the very fact that he is a man.
Whether one accepts the above argument or not depends on one’s attitude to the crucial concept he/she invokes, i.e. natural law, together with the idea of positive rights, and rights as viewed by Marxist theorists. The three theories are considered below.
Several writers have set out different criteria for the identification of environmental rights as different from other rights. In his discussion on human needs and human rights, Winslade argues that human rights have to meet the vital needs of man. He describes vital needs as needs ‘whose satisfaction would be in the interest of, and would be wanted and desired by, nearly all intelligent and rational persons under ordinary circumstances’. On the relation between human needs and human rights, he treats fundamental moral principles as a necessity for the transformation of needs into rights:
.......the rights are based not only on the unfulfilled vital needs, but also upon an appeal to fundamental principles such as equality and human worth. That is, unless these moral principles have operative moral and political force, the growth of rights from needs will be frustrated for principles like equality and human worth to have moral and political force, they must be taken seriously not merely as lofty ideas but as guides for social reform.
Edel’s uses the criteria of status and functions for distinguishing human rights from other rights. Human rights must be rights of an inherent nature, to signify the fundamental values of the society in which they are intended to operate. Their normative values flow through and control the relations between a political society and its members. They do not necessarily exist as a convention, but because they are inherent in individuals as the owners of the human personality.
Environmental rights are rooted in the reality of the inherent human condition, and their indispensability to human personality. They cannot be regarded as the offspring of a convention, although conventions serve in identifying them. Viewed in the context of these criteria, it appears that, in terms of jurisprudence, environmental rights qualify as human rights. Kiss explains this position. He is categorical that fundamental human values and freedoms are not created by legal systems:
The legal system did not create these values; they emerged gradually from religious, ethical and cultural foundations of societies. The legal system brought these values into the open by discussing them, recognizing them and then taking appropriate measures to protect them by the only means at its disposal. Within states this process is characterized by the inclusion of principles enshrining these values in constitutions or constitutional texts, which have to be implemented by specific legislation. In the international sphere the values are often enshrined in non-binding declarations (such as the universal Declaration of Human Rights), the principles of which are later transformed into obligatory statutes by inserting them into treaties.
In his book that details issues of human rights, their development and implementation mechanisms in Africa, Nmehielle points out that to define law as being what emanates only from the state ignores the fact that law exists outside the framework of state. This questions positivist theory that sees law as emanating from the state or the sovereign. Nmehielle argues, quite convincingly, from an African perspective that:
The natural law argument that law derives from God or a Supreme Being has long been a substantial element of African legal philosophy, even though it may not have been couched into a thesis by an ancient African philosopher. It is nothing but a belief in religion as a source of law, which in turn was applied in modern European States.
Nmehielle’s arguments are apt when one considers a number of freedom fighters in Africa. A case in point is the Mau Mau movement in Kenya. The Mau Mau carried on a bloody war against the British colonial rule to reclaim their land and freedom. Their activities were not based on what was to be found in books, but rather by what they considered to be inhumane and unjust and therefore deserved to be opposed at all costs.
The development of human rights in Kenya has also been inspired by the international human rights covenants. Political and civil rights activists in both countries drew inspiration from the human rights standards sets in the various international instruments. The sustained efforts and pressure from these activists and the international community saw the collapse of tyrannical regimes that had hitherto sought to maintain the status quo for the benefit of the small elite at the expense of the masses. The expansion of democratic space led to the incorporation of various forms of human rights in the constitutions of the two countries.
Environmental rights are evolving norms. This makes it difficult to offer definitive descriptions. The Ksentini Report offers what may be the broadest definition, or better still, components, of environmental rights. It suggests that the possible components of substantive human rights or perhaps several environmental rights can be seen in one source which sets out no less than fifteen rights relative to environmental quality. These include:
i. freedom from pollution, environmental degradation and activities that adversely affect the environment, or threaten life, health, livelihood, wellbeing or sustainable development;
ii. protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems;
iii. the highest attainable standards of health;
iv. safe and healthy food , water and working environment;
v. adequate housing, land tenure and living conditions in a secure, healthy and ecologically sound environment;
vi. ecologically sound access to nature and conservation and the use of nature and natural resources;
vii. preservation of unique sites; and
viii. enjoyment of tradition life and subsistence for indigenous people.
This description cannot be said to be exhaustive. It does not directly mention intergenerational rights. Intergenerational equity is an important notion of environmental rights, as is canvassed in greater detail in chapter three.
Lorenzen describes environmental rights as inclusive of many rights. The right to a clean and safe environment is the most basic, while others are the right to act to protect the environment as well as the right to information, access to justice, and to participate in environmental decision-making. Environmental rights are broadly categorised into substantive and procedural rights. Of the substantive rights, the right to a clean and safe environment is the most basic, and related rights include the rights to safe drinking water, to clean air, and to safe food. The procedural aspect refers to the processes by which citizens may act to protect the environment. This includes the rights to environmental information, to participation in environmental decision-making and to access to justice. Okidi is of the view that the definition is wider than this. According to him
Environmental law is the ensemble of norms, rules, procedures and institutional arrangements found in common law, statutes and implementing regulations, case law, treaties and soft law instruments concerned with or relating to the protection, management and utilisation of the environment, and natural resources for sustainable development or intergenerational equity.
Kenya has substantive provisions in its constitution that recognise the right to a healthy environment and sustainable development. Kenya’s constitution, states in relation to environmental rights:
Every person has the right to a clean and healthy environment which includes the right-
(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated by Article 69.
(b) to have obligations relating to the environment fulfilled under Article 70
The South African constitution guarantees the right to a healthy environment to its citizens. Section 24 states:
Every person has the right:
(a) to an environment that is not harmful to their health or well-being
(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 ecologic degradation;
ii. promote conservation; and
iii. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
The right to a healthy environment and sustainable development is a right that every state owes to its citizens and to humanity as a whole. It is also owed to future generations. Kenya, like all other countries also has an obligation, under international law, to humanity as a whole, to protect the environment. Thecountry played significant role in the development of international environmental law and rights. United Nations (‘UN’) records reveal that Kenya has frequently been an active participant in conference diplomacy. It was because of the lobbying by the country’s delegation that Nairobi became the location of the first major UN agency to be based in a developing country, the United Nations Environmental Programme (‘UNEP’). UNEP was established soon after the United Nations Conference on Human Environment (‘UNCHE’). This was held in Stockholm in 1972. Since the Conference, Kenya has adopted several agreements relevant to environmental management and natural resources conservation. These agreements are in the form of bi-lateral agreements or multilateral treaties negotiated between several countries. In most instances, multi-lateral treaties are conducted under the aegis of international organisations, such as the UN, East African Community (‘EAC’) and the African Union (‘AU’).
SUSTAINABLE DEVELOPMENT
Sustainable development entails the pursuit of social development, economic development and environmental protection and enhancement. According to section 2 of the EMCA, sustainable development is defined to mean development that meets the needs of the present generation without compromising the ability of future generations to meet their needs, by maintaining the carrying capacity of the supporting ecosystem.
The preamble to Kenya’s constitution emphasises the pursuit of sustainable development by the Kenyan people. It states in paragraph 4 that ‘we the people of Kenya [are] respectful of our environment, which is our heritage, and determined to sustain it for the benefits of future generations.’ In addition, this important document identifies sustainable development as part and parcel of Kenya’s national values and principles of governance.
Sustainable development is a means to towards the attainment of basic human needs: food, clothing, shelter and employment, for both the present and future generations. Sands identify at least four principles, which are crucial if such values are to be realised.
i. there is the need to preserve natural resources for the benefit of future generations (the principle of intergenerational equity)
ii. it is necessary to exploit natural resources in a manner that is ‘sustainable’, or ‘prudent’, or ‘rational’ or ‘wise’, or ‘appropriate’ (the principle of sustainable use);
iii. essential is the equitable use of natural resources, which implies that use by one state must take account of the needs of other states (the principle of equitable use, or intragenerational equity); and
iv. the need to ensure that environmental considerations are integrated into economic and other development plans, programmes and projects, and that development needs are taken into account when applying environmental objectives (the principle of integration).
Ruiz conceives sustainable development as not only that which responds to economic aspects, but also considers other elements, such as the human dimensions. He explains that sustainable development pursues the achievement of three objectives. These are:
i. Those that are purely economic objective. This entails efficiency in the use of natural resources, and quantitative growth;
ii. Social and cultural objectives and social equity. This entails the benefits that society derives; and
iii. Ecologic objective, the preservation of the physical and biology system. That is intergenerational equity (emphasis added).
The above three tests form the core guidelines in the exploitation of natural resources. Often the tendency is to give more weight to one of the three. A free market capitalist will more often than not be inclined to give more weight to efficiency and enhanced profit margins, whereas a socialist or a social democratic person would tend to give relatively more weight to equity. On the other hand, conservationists may give more weight to sustainability. It is necessary to balance them, or to integrate all three criteria in any economic endeavour. Glazewski points out that South African law provides a broader perspective on the concept of sustainable development. Accordingly:
Sustainable development requires the consideration of all relevant factors including the following:
i. That the disturbance of ecosystems and loss of biological diversity are avoided; or, where they cannot be altogether avoided, are minimised and remedied;
ii. that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided are minimised and remedied;
iii. that the disturbance of landscapes and sites that constitute the nation’s cultural heritage is avoided, or where it cannot be altogether, is minimised and remedied;
iv. that waste is avoided, or where it cannot be altogether avoided, is minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner;
v. that the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource;
vi. that the development, use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised;
vii. that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and
viii. the negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied.
Sustainability implies the maintenance, rational use and enhancement of natural resources base that underpins ecological resilience and economic growth. The concept of sustainable development may also be understood as the practice of mobilisation and utilisation of natural resources while, as far as possible, maintaining a balance. This includes conservation, which, as a management concept, means to manage the renewable resources in a sustainable manner and to avoid a waste of non-renewable natural resources. The concept of conservation is distinctively different from preservation as Okidi observes. He defines the latter as:
To set aside and to protect selected natural resources such as unique biological formations, endangered or threatened species, representative biomass or other natural or cultural sites of importance so as to maintain their characteristics in a manner unaffected by human activities to the fullest extent possible.
Conservation in the modern sense means ‘the management of human use of the biosphere so that it may yield the greatest sustainable benefit to the present generations while maintaining its potential to meet the needs and aspirations of future generations’.
The notion of wholesome preservation is undesirable. This is particularly so for developing countries, where the solution to many social and political problems, such as unemployment, poverty and disease, are largely dependent on the improvement of the economy. Wholesome preservation may therefore mean economic stagnation, which could bring about acute human hardships. In the South African case of BP Southern Africa (Pty) v MEC for Agriculture, Conservation and Land Affairs it was held:
The concept of ‘sustainable development’ is the fundamental building block around which environmental legal norms have been fashioned, both internationally and in South Africa, and is reflected in Section 24 (b) (iii) of the Constitution... pure economic principles will no longer determine, in an unbridled fashion, whether a development is acceptable. Development, which may be regarded as economically and financially sound, will in future, be balanced by its environmental impact, taking coherent cognisance of the principle of intergenerational equity and sustainable use of resources in order to arrive at an integrated management of the environment sustainable development and social economic concerns.
The link between the concepts of environmental protection and sustainable development gathered special momentum from 1987 when the Brundtland Report was released, and reached its climax in 1992, with the United Nations Conference on Environment and Development (‘UNCED’) adopting Agenda 21 and the Rio Declaration. The Johannesburg World Summit for Sustainable Development in 2002 (Johannesburg WSSD 2002) kept the spirit burning. Agenda 21 is significant in that it provides for a basis of action in the pursuit of sustainable development and protection of environmental degradation, with a view to combating poverty, protecting and promoting human health conditions and human settlement development.
The integration of environmental issues into development planning was advocated in the Brundtland Report, ‘Our Common Future’ (World Commission on Environment and Development) (1987). This report popularised the definition of sustainable development as humanity’s ability to ‘ensure that it meets the need of the present without compromising the ability of future generations to meet their needs’. To achieve this outcome, the report states: ‘the international economy must speed up world growth while respecting the environmental constraints by the appropriate management of technology and social organization’. According to the Report:
The concept of sustainable development provides a framework for integration of environment policies and development strategies. ... [T]he integration of environment and development is required in all countries, rich and poor. ... Sustainable development seeks to meet the needs and aspirations of present without compromising the ability to meet those of the future….Policy makers guided by the concept of sustainable development will necessarily work to ensure that growing economies remain firmly attached to their ecological roots and that these roots are protected and nurtured so that they may support growth over the long term. Environmental protection is thus inherent in the concept of sustainable development, as is a focus on the sources of environmental problems rather than the symptoms.
As Macneill, former secretary general of the Brundtland Commission puts it, thus:
.....an essential condition for sustainable development is that a community’s and a nation’s basic stock of natural capital should not decline over time. A constant or increasing stock of natural capital is needed not only to meet the needs of present generations, but also to ensure a minimum degree of fairness and equity with future generations.
The Brundtland Commission called upon all countries to adopt the following principles to guide their national policies:
i. Revive growth, because poverty is a major source of environmental degradation;
ii. Change the quality of growth to achieve sustainability, equity, social justice and security.
iii. Conserve and enhance the resource base by reducing per capita consumption of resources and developing non-polluting processes and technologies;
iv. Ensure a sustainable level of population through population policies, which are integrated with programmes for education, healthcare and raising standards of living, especially for the poor;
v. Re-orientate technology to pay greater rewards to environmental factors and costs;
vi. Integrate environment and economics by requiring decision-makers to be responsible for the impact of their decisions upon the environmental resource capacity;
vii. Reform international economic relations to help developing countries to diversify their economic and trade bases and build self-reliance; and
viii. Strengthen international co-operation for sustainable human progress.
Despite widespread support, the Brundtland Report did not receive universal acceptance. In particular, it did not hold the most developed countries responsible for many of the most severe environmental problems, nor did it emphasise the need to redistribute the world’s wealth. It, did, however, stress that a change of approach was required. We are living in a world where there are big gaps of inequality. This is confirmed by a number of economic reports. Whereas most people in the richest countries, especially in the north, can afford all sorts of luxuries available in the world today, many people in the less developed south continue to languish in abject poverty, where malnutrition, ignorance and disease are taking a huge toll on them.
In emphasising that human beings are at the centre of concern for sustainable development, Principle 1 of the Rio Declaration at UNCED, 1992, employed the language of human rights law. Its most important principles relating to sustainable development include:
i. Principle 3: The right to development must be fulfilled so as to equitably meet development and environmental needs of present and future generations.
ii. Principle 8: To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote demographic policies.
Agenda 21 was also a product of the Rio Conference, and is a blueprint or action plan for the implementation of sustainable development. Although these documents are not legally binding, almost 200 states and numerous NGOs signed them in an effort to promote international and national co-operation, and create a basis for devising more holistic and synchronised approaches towards the environment and development.
The emergence of sustainable development has coincided with a broadly increasing consensus in international human rights. A number of concepts in international environmental law are actually concepts of economic development. These include:
- The concept of internalising the economic costs of pollution and environmental degradation, referred in environmental law as ‘full cost pricing’;
- The ‘polluter pays’ principle which seeks to make the polluter fully responsible for all the costs of pollution, be they economic, human, social or cultural;
- The concept of environmental responsibility and liability based upon a product’s ‘cradle to grave life-cycle; and
- The mechanism of ‘economic instruments’ which provide incentives and disincentives regarding desired environmental performance or behaviour.
Principle 3 of the Rio Declaration states that the right to development must be fulfilled so as to meet the developmental and environmental needs of present and future generations equitably. Environmental protection is treated as an integral part of the development processes and states are consequently called on to cooperate in a spirit of global partnership to conserve and protect the earth’s resources. The concept, though relatively new, has rapidly gained momentum. It has become an accepted principle of international law. Besides the Rio Principles, the concept also was given recognition at the Global Conference on Sustainable Development of Small Island States, the Copenhagen World Summit on Social Development, and in a host of treaties, notably the North American Free Trade Agreement. Paragraph 13 of the latter’s preamble binds the parties to promote sustainable development. Both the Convention on Biological Diversity and the Convention to Combat Desertification incorporate the concept of sustainable development.
In its broadest sense, sustainable development aims at promoting harmony among human beings, and between human beings and nature. The pursuit of sustainable development and resource conservation requires strong legal norms and national and international political and economic institutions that will in particular support:
i. Political systems that secure effective citizen participation in decision-making;
ii. Economic systems that are able to generate surpluses and technical knowledge on a self- reliant and sustainable basis;
iii. Social systems that provide solutions to the tensions arising from disharmonious development;
iv. Production systems that respect the obligation to preserve the ecological base for development; and
v. International systems that foster sustainable patterns of trade and finance.
A Strategy for Sustainable Living, Caring for the Earth, launched in partnership with the World Conservation Union, UNEP and the World Fund for Nature, puts the case for sustainability succinctly:
Because of the way we live today, our civilization is at risk. The 5.3 billion people alive now, especially the 1 billion in the best of the countries, are misusing natural resources and seriously overstressing the Earth’s ecosystems. World population may double in 60 years, but the Earth will be unable to support everyone unless there is less waste and extravagance, and a more open and equitable alliance between the rich and the poor. Even then, the likelihood of a satisfactory life for all is remote unless present rates of population increase are drastically reduced.
Caring for the Earth stressed two fundamental requirements:
i. Secure a widespread and deeply held commitment to an ethic for sustainable living within the Earth’s capacity; and
ii. Development, to enable people everywhere to enjoy long, healthy and fulfilling lives. It further states that living sustainable depends on accepting a duty to seek harmony with others and care for the Earth. Humanity must take no more from nature than nature can replenish. This in turn means adopting lifestyles and development paths that respect and work within nature’s limit. This can be done without rejecting the many benefits that modern technology has brought, provided that technology also works within these limits.
GROWTH OF ENVIRONMENTAL CONSCIOUSNESS
Environmental law is a relatively fast developing legal discipline in Kenya. It has come to the fore in response to the escalating global and local disquiet at mounting evidence of environmental degradation. Nonetheless, from antiquity, moral philosophies have informed relationships between individuals and social groups. It is a fact that for a long time both ethical norms and some form of legislation have regulated human use of the environment.
Many states, claiming sovereignty over their natural resources, and in their zeal to develop modern infrastructure and improve the material life of their people, embarked on massive plundering and indiscriminate consumption of natural resources. As a result, serious ecological problems abound, as evidenced by global warming, acid rain, depletion of the ozone layer, land degradation, water and air pollution, the extinction of numerous animal and plant species, and a loss of biodiversity.
Ecological problems lead to severe violations of human rights, affecting large numbers of people. In recent years various problems have reached pervasive, disruptive and potentially disastrous levels. Global public awareness of the threats posed to the environment has increased. At the centre of the increased awareness is the phenomenon of ‘humankind versus nature’. Extensive research shows that humans are not living in harmony with the planet. Over the years, scientists have articulated a great apprehension and sense of irreparable harm to the natural systems which support life on earth. The words of Marjorie Kinnan Rawlings have never been more appropriate:
The earth may be borrowed but not bought. It may be used but not owned. It gives itself in response to love and tending, offers flowering and fruiting. But we are tenants and not possessors, lovers but not masters.
Another scholar, Shabecoff, states that ‘suddenly the world itself has become an environmental issue’. Yet another one has correctly termed environmental crises as an ‘ecocide’. This has been treated as constituting an offence against humanity. Falks describes environmental ‘offences’ as acts that involve:
Official conduct that seriously endangers the life, health and serenity of current and future generations. The notion of human rights is incomplete to the extent that it fails to encompass those forms of deliberate behaviours that produce serious environmental damage. Environmental quality is a critical dimension of human dignity that may have a significant impact on development and even survival of mankind.
Environmental problems have largely been noticed as a result not of what damage it has been caused to the environment per se, but of the affect on human interest. Ironically, most environmental problems emanate from human conduct. It is human beings whose actions and inactions cause deleterious effects on the environment, which ultimately affect human beings in a number of ways. A change in human conduct will solve most environmental problems.
Although there had been a rising concern for environmental matters in a number of countries around the world before the 1970s, it was only after this period that political and legislative attention became focused on environmental issues. This is illustrated by indicators of environmental consciousness in several countries, including:
i. Enactment of legislation;
ii. Establishment of voluntary bodies, civil bodies, for example NGOs or issue-based lobby groups;
iii. Compiling and publication, and release of reports of conferences and seminars;
iv. Official publications such as those of green and white and SessionalPapers
v. Adoption of treaties, conventions, pronouncements or declarations at international forums etc; and
vi. Growth in litigation of environmental nature and subsequent development of environmental common law through judicial pronouncements.
Globally, environmental consciousness culminated in the holding of the United Nations Conference on Human Environment (UNCHE) in Stockholm in 1972. Its agenda included determining how to solve problems of pollution and urban squalor. These were viewed as problems predominant in the more developed Western countries and resulted in a fierce protest by the developing countries of Asia, Africa and Latin America. They viewed UNCHE as irrelevant to their needs. This persuaded the Secretary-General of the conference to convene a meeting of experts at Founex, Switzerland, in 1971 to develop a policy paper to show a connection between environment and development, and the use of natural resources.
The division between the developed North and the developing countries of the South re-emerged at the Rio Conference in 1992 over the issue of how environmental deterioration and responsibilities should be handled. The formulation of Principle 7 of Agenda 21 generated a heated debate that pitted the two factions against each other. The different standpoints taken were prompted by the fact that, whilst developed states did not like to be held legally responsible for their past acts of environmental degradation, many developing states felt that the text should specifically blame the North for its past and present behaviour. The 77 Group (‘G77’) of developing states was particularly disappointed when its own proposal for Principle 7, formulated in the following terms, was rejected:
The major cause of the continuing deterioration of the global environment is the unsustainable patterns of production and consumption, particularly in developed countries…In view of their main historical and current responsibility for global environmental degradation and their capability to address this common concern, developed countries shall provide adequate, new and additional financial resources and environmentally sound technologies on preferential and concessionary terms to developing countries to enable them to achieve sustainable development.
Divisions notwithstanding, these two conferences heralded the major environmental concerns of modern times. The international community succeeded in linking environmental issues with those of sustainable development and natural resource conservation. Issues of sustainable development, pollution control and natural resource conservation were seen to be closely interlinked. The fact that environmental management was a human responsibility was also underscored. Much has not been done however towards the establishment of the effective structures.
Divisions remain between the developed north and the developing south. As recently as 2010, the United Nations Conference on Climate Change at Copenhagen witnessed such a sharp division between the two worlds, that there is little to report in respect of the success of the conference. A leading South Africa’s environmental expert, Glazewski, captures the mood of the event in stating ‘at Copenhagen the (United States) US delegation led by the biggest bull in the kraal, President Obama, seemed to adopt the attitude follow us, we’re right behind you’.
Concerns over the environment in Kenya currently bring together politicians, activists from Non-Governmental Organisations (NGOs), diplomats, jurists, policy makers and academics. The need for an effective environmental management framework or the enhancement of existing frameworks is considered to be important agendas. These are the main stakeholders in this area of international discourse. International environmental conferences and summits have inspired and encouraged the development of international environmental law. International law has become significant in providing solutions to a number of environmental issues. The growth of international environmental law is clear evidence that environmental issues are the concern of the entire human race. It is impossible for a country, or merely a few countries, to manage the environment effectively. The proliferation of environmental law instruments and conference resolutions are a manifestation of how humanity has belatedly acknowledged the magnitude, scope and scale of environmental issues. It is an admission that such problems can be effectively countered only through consensus building and concerted international efforts, and cooperation involving all humanity. The entire human race needs to rise to the occasion and reverse the deleterious effect that has been caused to the environment. The principle of common but differentiated responsibility gives all of the current generation of humanity a duty to manage the environment in a prudent manner.
At the global level, environmental rights developed much later than those contained in ICSCR and ICCPR. Before 1970, environmental issues were not regarded as matters of much human concern. No adverse impact on the environment was recognised or felt, even as there was increased acceleration in industrial growth and use of new technologies, particularly in the west. The desire to achieve rapid economic growth took priority over all other considerations in national policies. As a result, environmental problems such as pollution and the depletion of natural resources were witnessed. At the UNCHE in Stockholm, serious attention was given to the right to a clean environment. It was agreed that ‘man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well being’.
However, in the field of other forms of human rights there were, prior to the UDHR and UNCHE, some notable historical precedents that set and widened the field. These include: England’s Magna Carta of 1215, which asserted the right to a fair trial and a just legal system; the Declaration of the Independence of the United States of America of 1776; the 1787 French Declaration of the Rights of Man and the Citizen, and the 1803 Haitian Declaration of Independence.
The international instruments pertaining to the environmental rights of human beings during the pre-UNCHE era were confined to the right to life. The UDHR provided merely that ‘everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care’. Though this does not directly allude to environmental rights, such rights can be inferred. The right to a healthy environment is fundamental and inherent. Being alive, which depends on having a sound environment precedes the rights such as freedom of expression, press, assembly, religion, liberty and others. This is because such rights are exercisable only by one who is alive and in good health.
Environmental law and human rights have traditionally been treated separately, despite the existence of a number of overlaps. As examples, the rights to safe food and water, to live in a decent and healthy environment, and to participate in environmental decision-making such as in Environmental Impact Assessment (‘EIA’) processes, relate both to human rights and to environmental law. Both environmental law and human rights have essential common points that enable the creation of a field of co-operation. It has been pointed out that:
i. Both disciplines have [a] strong social roots, even though human rights law are more installed in the collective conscience, the accelerated process of environmental detriment has generated a new ‘environmental awareness’.
ii. They are legal systems with purposes and objectives, subjected to universal consent and with variable contents, open to reality and social change.
iii. They are developed in the framework of public international law; the international community has assumed the commitment to watch for the fulfilment of human rights and the respect for environment.
iv. The influence of these fields over the conservation of the world peace and security is critical.
Unlike traditional international law which is designed to serve common or reciprocal national interests, human rights proceed from a different motivation. Human rights law is essentially idealistic and humanitarian. It is deep in its purpose to improve the lot of individual human beings everywhere, even where national institutions and non-legal international forces are inadequate. International law provides an appropriate value structure for the complementation of national law. Certain material incidents peculiar to both the human rights system and environmental law follow a common pattern. Implementation of environmental rights is enhanced within a framework of developed human rights structures and institutions.
THE PROTECTION OF THE ENVIRONMENT AND THE DOCTRINES JUS COGENS AND OF ERGA OMNES
There is now a general consensus that the veil of sovereignty cannot be employed to shut out the operation of human rights or to stop the application of international environmental law principles. There is a movement in international environmental law away from the traditional emphasis on the concept of sovereignty. The emphasis is increasingly on the community of interests of states and the need for states to act in a unified way to deal with problems of common concern. To undertake this duty, international law provides a useful framework against which the entire human race converges and decides on how to shoulder the responsibility for itself and the future generations. This responsibility also extends to other biotic life with which humanity shares the earth.
The right to life and the right to health form norms of jus cogens and are consecrated universally as fundamental and inherent rights. They impose on states duties related to the environment. States are required to refrain from actions that lead to environmental degradation that put the life and health of people at risk. They also impose actions on the part of states to ensure decent human living conditions. These conditions include access to clean water, a healthy atmosphere, clean shelter and adequate food supplies. It is a scientific fact that the right to life and health are affected by environmental degradation and pollution. According to some statistics, it is estimated that about 40 per cent of acute infections in the respiratory tract, 90 per cent of cases of diarrhoea, 50 per cent of respiratory chronic disorders and 90 per cent of cases of malaria can be prevented through improved environmental conditions.
Likewise, the protection of the global environment is the responsibility of all humanity. It is an obligation erga omnes. In other words, it is a duty that is owed by this generation to the international community or all of humanity. By virtue of being subject to international law, states are expected to be in the forefront in carrying out this responsibility. The International Court of Justice (‘ICJ’) cited with approval the view of the International Law Commission (‘ILC’) that safeguarding the earth’s ecological balance is an essential obligation of all states, in order to protect the international community as a whole. Erga omnes (in relation to everyone) is frequently used in legal terminology describing obligations or rights towards all. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights. The concept was recognised in the ICJ’s decision in the Barcelona Traction case (Belgium v Spain) (Second Phase), when it held:
....an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis a vis another State in the field of diplomatic protection. By their very nature, the former are concern, of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. ..........Such obligations derive for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law.... others are conferred by international instruments of universal or quasi-universal character.”
Erga omne obligations give third-party states, rather than just the victim, legal claims against states that violate those obligations. This means that where a state has engaged in an activity that violates an erga omnes norm, all states, irrespective of whether they have suffered a direct injury or not, have the right to engage in countermeasures. The ILC has set out several pertinent rules on the baseline case of two-state violation. The relevant provision states:
A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to:
(a) That State individually; or
(b) A group of States including that State, or the international community as a whole, and the breach of the obligation:
(c) Specifically affects that State; or
(d) Is of such a character as radically to change the position of all other States to which the obligation is owed with respect to the further performance of the obligation.’
Obligations erga omnes, together with the related concept of peremptory norms, reflect a common core of norms essential for the protection of communal values and interests which transcend bilateralism and parochial state concerns dominating traditional international law. The norm has become one of the rallying calls of those sharing a belief in the emergence of a value based international public order based on law. Delbruck sees it as part of ‘the ongoing process of the constitutionalisation of international law’.
Not all states have similar capacities to shoulder international environmental responsibilities. There is a movement in international environmental law away from the traditional emphasis on the concept of ‘sovereignty’. There is an increase in the emphasis on the community of interests of states, and the need for states to act in a unified way to deal with issues of common concerns. This underscores the need for the states to enforce environmental management beyond their political boundaries. Ecosystems of the earth are interlinked, so that what occurs in the environment of one state often has an effect upon other states and upon areas which are not governed by any single state.
Developing countries such as Kenya lack the capacity to deal with a number of environmental problems as will be examined below. The environmental principle, ‘common but differentiated responsibility’ appreciates the disparities in capacities. Principle 7 of the Rio Declaration acknowledges this principle:
States shall cooperate in a spirit of global partnership to conserve, protect and restore the health of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibilities that they bear in the international pursuits of sustainable development in view of the pressures their societies place on the global environment and of the technologies and the financial resources they command.
Under this principle, much is expected from the developed states in tackling environmental and economic problems affecting the world. This is because of the technological and financial resources they command. In addition to this, human individuals in their societies place more pressure on the global environment to sustain their lifestyles. Such states also have better developed skills and technologies. The fact that individuals in the developed world enjoy a higher economic per capita income than their counterparts in the developing world suggests that more per capita resources are used on individuals in the former than in the latter. This is all the more reason why it is fair that they bear greater responsibility for environmental management. Developing countries require the technological and financial support from their developed counterparts to effectively realise the right to a healthy environment and sustainable development.
THE BASIS AND SIGNIFICANCE OF INTERNATIONAL ENVIRONMENTAL LAW
International law has often played a significant role in the development of domestic environmental law. A number of environmental rights are housed in the international law principles, as is examined in this thesis. Public international law is primarily applicable to states rather than to individuals. Consequently, international legal norms become a source of domestic legal obligations for state officials, and domestic rights for citizens, only through some manner of incorporation into the State’s own municipal law.
Kenya’s constitution is emphatic that the general rules of international law shall form part of the law of the country. It also provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the constitution.
Anthropocentrism informs and shapes most of the principles of international environmental law. The view of the primacy of humanity is the standard within this branch of law. In placing human beings at the centre of its concern, international environmental law has similarities with human rights. Both propagate and advance values that accrue to humanity. Human perception of environmental harm provides a valid justification for the development of legal principles whose objectives are to protect and advance human needs, which in many instances have been recognised as human rights. For example, Article 22, of the 1968 African Convention on the Conservation of Nature and Natural Resources, entitled the ‘Fundamental Principle’, is couched in anthropocentric terms. It states that ‘the parties shall undertake to adopt the measures necessary to ensure conservation, utilisation and development of the soil, water, flora and faunal resources in accordance with the scientific principles and with due regard to the best interest of the people’.
The 1972 Stockholm Declaration reflected an anthropocentric basis in its very title. This was strengthened by the emphasis on the protection of the environment for present and future (human) generations. Additionally, the Declaration emphasised that ‘of all things in the world, people are the most precious’. In 1973 the Council of Europe declared that, ‘as benefits the genius of Europe, particular attention will be given to the intangible values and to protecting the environment so that progress may really be put at the service of mankind’.
Both Kenya has national and international obligations to ensure that the rights to a healthy environment and sustainable development are realised. Environmental issues are too complex to be approached from a national perspective alone. Human rights, as well as issues of environmental management, deal with an area where the doctrine of national sovereignty has to give way to external concerns when it comes to a national activity.
In 1987, the World Commission on Environment and Development stated that ‘sustainable development is a process that is designed to enhance both current and future potential to meet human needs and aspirations’.
Although anthropocentricism has more influence in the international environmental law-making process, ethical considerations, or biocentrism, appear to have made substantial inroads. In the practical application of environmental conservation principles, however, little distinction is made between the two concepts. Anthropocentric considerations do not make up the entire body of international environmental law. Slowly, the ethical basis for environmental protection (deep ecology) appears to be informing and shaping this growing and expanding branch of law. There are several examples to support this contention. In 1973, a European Ministerial Conference on the Environment noted that ‘the environment must be taken care of because of its own value’. Six years, later the Convention on the Conservation of European Wildlife and Natural Habitats recognised in its preamble that wild fauna and flora have intrinsic value. In 1982, the World Charter for Nature stated that ‘every form of life is unique, warranting respect regardless of its worth to man, and to accord other organisms such recognition, man must be guided by a moral code of action’. In 1986, the Declaration of Fontainebleau, adopted at the 4th anniversary of the IUCN, stated that ‘if humanity is to find a way forward, it must base advance on a code of values that is less aggressive and more caring for the earth — a code that will reflect deep sensitivity to ecological interdependence of our planet and respect for life in all its forms’. In 1987, the World Commission on Environment and Development concluded its report with the warning that ‘human survival and well-being could depend on the success of elevating sustainable development to a global ethic’. The report went as far as specifying that ‘the case for the conservation of nature should rest not only with development goals. It is part of our moral obligation to other living beings and future generations’.
In the preamble to the Rio Declaration ‘the integral and interdependence of nature of Earth, our home’ is noted. In Principle 7, the Declaration recognised the necessity to ‘conserve, protect and restore the integrity of the Earth’s ecosystem’. This idea is similar to the preamble of the 1991 Protocol on Mining in Antarctica, which recognised the intrinsic value of the whole Antarctic ecosystem. Likewise, the preamble of the United Nations Conservation of Biological Diversity recognised the ‘intrinsic value of biological diversity’. The UNEP attempted to raise the profile of the ethical dimensions of the human relationship with nature with its publication Ethics and Agenda 21. This was taken a step further at the 1995 World Summit for Social Development, where Dowdeswell pointed out that ‘the consideration of the fundamental questions facing humanity is a moral and ethical one. So far ethics and morality have been sideshows in the drama of restless change, but now they need to take centre stage. ‘Morality … encompasses the entire planet. We are all part of nature.’
International law is appropriate both in its own right and in complementing domestic law in enhancing environmental management. The need for it arises from a number of factors. Some of these factors are highlighted below.
i. Cross boundary nature of environmental problems arising from sharing of resources. The fact that, like human rights issues, some environmental problems have trans-frontier impacts automatically calls for concerted efforts by the international community either at global or regional levels. As far back as 1968, the European Water Charter, one of the first modern international instruments relating to the environment, articulated a fundamental principle at the beginning of the ecological era. This was the principle that water, which is an environmental medium, knows no boundary. Experience and observation make it obvious, for example, that neither the oceans nor the atmosphere, both considered as the common heritage of humankind, are constrained by boundaries. As such, cross-border efforts are required in combating environmental crises associated with them. Caldwell observes that there are more than 200 separate river basins in the world which are shared by two or more countries, and with growing demands on water supplies for competitive commercial, agricultural, industrial and domestic purposes, almost everywhere access to these sources is becoming a matter of political friction. These are issues, which can best be effectively addressed within the framework of international law.
ii. International economic factors. International trade has become an important aspect of international co-operation. The production of goods is achieved at some cost to the environment. The states that protect their environment, which is a move to be applauded from an ecological point of view, are disadvantaged in a purely business sense, as the internalisation of costs has the effect of increasing the costs of production, thus increasing the prices of commodities. It is necessary to establish international legal measures that harmonise the requirements of environmental protection for all those involved in international trade, so as to ensure equity. This is the premise upon which the ‘polluter pays’ principle is based. The Rio Declaration includes it in rather abstract terms stating:
National legislation should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with regard to the public interest and without distorting international trade and investment.
iii. Prevention of international pollution. International co-operation and the adoption of common standards are important to combat the cross-border transfer of environmentally harmful substances such as nuclear waste and pesticides. Adopting such standards may fill in the gaps created by the absence of national law. Where a country does not rigorously enforce its national laws for one reason or another, other countries and multi-national business corporations may take advantage and pollute its environment. International environment law could provide the only barrier to the activities of such polluters. Where, for instance, there is a breakdown of law and order in a particular country, such as in the case with Somalia, which for a long time had no central government, other countries or multinational corporations were able to take advantage and deposit environmentally harmful materials in its territories. In such a situation, international environmental law may be invoked to prohibit a country from engaging in an act that may cause deleterious effects on the environment of other countries.
iv. Setting the pace for domestic environmental law. International environmental law has often played the role of pacesetter for the development of national laws. The development of domestic environmental has particularly been driven by the trends of international law, the pressures of globalisation and the fact that many environmental problems occur irrespective of political interest. In many instances, international law principles crystallise to become national law through the process of domestication that varies from one country to another. The constitutional provisions contained in several countries’ Bill of Rights have been informed and shaped by a number of widely recognised international environmental law principles and rights. International conferences provide platforms and forums which legitimise environmental policy as a universal concern among nations, and also create a place for environmental issues on many national agendas where they have previously been unrecognised. Conferences such as the UNCHE1972 and the Rio Earth Summit of 1992 were watershed events, providing impetus and guiding the development of environmental law principles. South Africa, for instance, adopted the Convention on Biodiversity in 1995. A number of the Convention’s provisions were brought into South African law by the enactment of the National Environmental Management: Biodiversity Act 10 of 2004.
v. Enforcement or implementation of environmental human rights. Many international environmental instruments provide and recognise environmental rights, and make their implementation imperative. Without such instruments, it would be impossible to talk about international environmental human rights. As with other forms of human rights, international efforts are sometimes required to enforce them. International law therefore becomes very important.
Despite their variety in subject matter and geographical scope, international environmental law instruments, particularly treaties, share common characteristics, use similar legal techniques, and are often interrelated. Kiss states that they share the following features:
i. Emphasis on national implementation measures being taken by state parties;
ii. Call for creation of international supervisory mechanisms to review compliance by the state parties;
iii. Have simplified procedures to enable rapid modification of treaties;
iv. Use action plans for further measures;
v. Emphasis creation of new institutions or the utilisation of already existing ones to promote continuous cooperation;
vi. Utilise framework agreements and interrelated or cross-referenced provisions from other environmental instruments; and
vii. They are regional and in many instances fall short of being global.
A treaty or a convention binds all States parties, requiring an obligation from them. Courts in South Africa are required to interpret legislation in tandem with international law. Kidd argues that NEMA contains provisions relating to international environmental law. Where the country is not yet bound by an international instrument, the Minister may make decisions regarding accession and ratification of an international environmental instrument which may deal with the following:
(a)available resources to ensure implementation;
(b) views of interested and affected parties;
(c) benefits to the Republic;
(d) disadvantage to the Republic;
(e) the estimated date when the instrument should come into effect;
(f) the estimated date when the instrument will become binding on the Republic;
(g) the minimum number of states required to sign the instrument in order for it to come into effect;
(h) the respective responsibilities of all national departments involved;
(i) the potential impact of accession on national parties;
(j) reservations to be made,
if any; and
(k) any matter which in the opinion of the minister is relevant.
ENVIRONMENTAL PROBLEMS AND CHALLENGES TO HUMAN WELBEING AND SURVIVAL
INTRODUCTION
A number of environmental problems that affect Kenya are not unique to the country. They are regional and, at times, global. As much as national efforts are required in ameliorating them, concerted regional and international efforts provide crucial opportunities. As pointed out, one clear characteristic of environmental problems is that they are cross-border. In isolation, an individual country cannot act effectively. Environmental problems such as ozone layer depletion affect the entire world, and should always be the concern of all humanity. The obligations cannot be left to any single person or state. A number of environmental problems are global, affecting several countries and many peoples. It is little wonder that there has been an upsurge in international treaties in the last few years. Any given country will always find itself grappling with environmental issues resulting from external and internal factors. International co-operation in a spirit of mutual respect and understanding is imperative in achieving meaningful results. Likewise, countries should, in light of the doctrine of erga omnes shoulder obligations to all of humanity. Countries need to ensure that no activity which could adversely affect the environment is carried out within their territories.
A number of global environmental problems and challenges and how Kenya is grappling with them are examined below.
PROBLEMS ASSOCIATED WITH CLIMATE CHANGE
Human activities, including the burning of fossil fuels such as coal, oil and natural gas (for example in industrial processes) is commonplace. This, together with other activities such as deforestation, mining and construction are causing harm to the environment. Air pollution changes the atmospheric concentration of greenhouse gases that shape the planet’s climate. The industrial revolution has resulted in a tremendous increase in the levels of carbon dioxide in the atmosphere while the release of particular oxides into the atmosphere causes acid rain. Global warming is a result of an increase in greenhouse gases. There are dangers arising from human activities that are associated with global warming. Scientists attached to the UN and the World Bank have identified such threats to include:
i. Significant increases in the geographical range and incidence of vector-borne diseases, particularly malaria and dengue, in the tropics and sub-tropics;
ii. Increased risk of hunger and famine for many of the world’s poorest who depend on isolated agricultural systems, especially in the tropics and sub-tropics;
iii. Displacement by rising sea levels of tens of millions of people living on small islands and low-lying delta areas such as Egypt, Bangladesh and China;
iv. Shifts in distribution, structure, and functioning of terrestrial and aquatic ecosystems, and potentially irreversible changes, such as loss of biodiversity;
v. Decreased amounts of precipitation in many arid and semi-arid areas.
The international community has undertaken a number of measures to counteract this problem. Many of the efforts have been carried out under the aegis of the UN. To address the issues of global warming, the United Nations Framework Convention on Climate Change (‘UNFCCC’) was adopted. Parties acknowledged that the change in the earth’s climate and its adverse effects are a common concern of humanity.
The largest share of historical and current global emissions of greenhouse gases has originated in developed countries. On the other hand, the per capita emissions in developing countries are relatively low. However, the share of global emissions emanating from the less developed countries will inevitably grow because of growth in their social and economic activities. UNFCCC requires the developed countries to reduce their emissions but gives some leeway to the developing ones. This is based on the fact that for them to catch up with their developmental needs, gaseous emissions, although harmful and thus undesirable, are inevitable.
Article 1 of the UNFCCC calls on states to enact effective environmental legislation and ensure that environmental standards, management objectives and priorities reflect the environmental and development context to which they apply. It recognises that it is inappropriate to have all member states apply the same standards and gives some leeway to the developing ones. The rationale is that, as already alluded to, their economic growth cannot be expected without some increase in the release of greenhouse gases. The Convention’s objective ‘is to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’ Such a level is to be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.
In their quest to achieve the objectives of the convention and to implement its provisions, the Parties agree to be guided by the following principles.
i. Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed countries should take the lead in combating climate change and the adverse effects thereof.
ii. The specific needs and special circumstances of developing countries particularly those that are vulnerable to the adverse effects of climate change and those parties that would have to bear a disproportionate or abnormal burden under the convention, should be given full consideration.
iii. The parties should take precautionary measures to anticipate, prevent or minimize the cause of climate change and mitigate its adverse effects.
iv. The parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human induced change should be appropriate for the specific conditions of each party and should be integrated with national development programmes, taking into account the economic development essential for adopting measures to address climate change.
v. The parties should cooperate to promote a supportive and an open international economic system that would lead to sustainable growth and development in all countries, particularly developing countries, thus enabling them better to address the problems of climate change. Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.
The Kyoto Protocol to the UNFCCC was adopted on 11 December 1997 in Kyoto, Japan. The Protocol contains provisions enjoining the parties to commit themselves to reduce their emission of greenhouse gases. Article 3 of the Protocol calls on parties to ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of greenhouse gases do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitment inscribed in Annex B of the instrument with a view to reducing overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period, 2008 to 2012.
The significance of these two instruments is that they seek to be fair and equitable to all countries by acknowledging the environmental harm that has been caused by industrialisation. It enjoins developed countries to reduce their greenhouse gas emissions, and at the same time notes the inevitability of gas emissions by developing countries as they transform their economies from basic subsistence and primary production to industrial. In other words, it appreciates the fact that, much as emissions are harmful and should consequently be reduced and ultimately done away with, this would be an impossible task for the developing countries, as their economic needs remain high, and their engagement in economic production will inevitably be at the added cost of emissions. The instruments will give some leeway to a developing country such as Kenya, which hopes to be industrialised by 2030. This is seen to be a solution to many economic problems such as poverty and unemployment.
OZONE LAYER DEPLETION
The depletion of the ozone layer poses a threat to human life and all forms of biodiversity. The earth’s ozone layer protects life from the sun’s harmful radiation by acting as a shield. This crucial shield, which human activities continue to damage, absorbs the sun’s ultra-violet rays. It has been scientifically proved that a sustained increase in ground-level UV-B radiation causes a number of harmful effects, including:
i. A significant increase in the incidence of melanoma skin cancer in light skinned people;
ii. An accelerated formation of eye cataracts, which are the leading cause of blindness in many developing countries;
iii. Potential suppression of the human immune system;
iv. A decrease in the productivity of some terrestrial and aquatic ecosystems;
v. A decrease in air quality, because UV-B radiation reacts with a number of air pollutants to form harmful oxidants, including tropospheric ozone.
The earth’s atmosphere is divided into several layers. The lowest region, the troposphere, extends from the earth’s surface up to 10 kilometres in altitude. Virtually all human activities occur in the troposphere. Mount Everest, the highest mountain on earth is only 9 kilometres. The next layer, the stratosphere, continues from 10 kilometres to about 50 kilometres.
Stratospheric ozone, which shields the earth from much of the sun’s harmful ultraviolet-B radiation, has been depleted at all latitudes except the tropics and sub-tropics as a result of the emissions of human-made compounds. The chemicals involved, including chlorofluorocarbons (‘CFCs’), halons, and related substances, have been used for decades in refrigerators and air-conditioners, and as cleaning solvents, foam blowing agents, aerosol propellants, and fire extinguishing agents.
The ozone layer is found between 15 to 50 kilometres above the surface of the earth and its depletion is said to be greatest in the Polar regions in late winter and early spring. This depletion has resulted in an increase in the level of UV-B radiation reaching the Earth’s surface.
In the early 1970s, scientific researchers began to investigate the effects of various chemicals on the ozone layer, particularly CFCs, which contain chlorine. They also examined the potential impacts of all other chlorine sources. It was discovered that chlorine from swimming pools, industrial plants, sea salt and volcanoes does not reach the stratosphere. Chlorine compounds from these sources readily combine with water (moisture) in the troposphere very quickly. By contrast, CFCs are very stable and do not dissolve in moisture, meaning that there are no natural processes that remove the CFCs from the lower atmosphere. Over time, wind drives the CFCs into the stratosphere. The CFCs are said to be so stable that only exposure to the strong UV radiation breaks them down. When that happens, the CFC molecules release atomic chlorine. It has been established that one atom of chlorine can destroy over 100-000 ozone molecules. The net effect, therefore, is that ozone is destroyed at a faster rate than it is naturally created.
Natural processes have not been known to destroy the ozone layer. The destruction is generally blamed on human activities. Thus, natural phenomena themselves do not appear to harm each other. Even when there are interactions, there are natural ways or processes by which restoration occurs. Natural phenomena are in harmony with themselves, and it appears that only human beings interfere with them and, in the process, undermine the balance, subsequently bringing suffering unto themselves and indeed the entire life in the troposphere. Solutions to these problems therefore lie squarely in the control and regulation of human activities and behaviour.
As experts began to explore specific measures to be taken, the journal Nature published a paper in May 1985 by British scientists — led by Dr Joe Farman — about severe ozone depletion in the Antarctic. The scientists’ findings were confirmed by US satellite observations and offered the first proof of severe ozone depletion, thus making the need for definite measures to be taken more urgent. These findings set the stage for the Montreal Protocol on Substances that Deplete the Ozone Layer of September in 1987. An agreement was reached on specific measures to be taken to protect the stratospheric ozone layer. The Montreal Protocol stipulates that the production and consumption of compounds that deplete the ozone in the stratosphere - CFCs, halons carbon tetrachloride, and methyl chloroform - were to be phased out by 2000 (2005 for methyl chloroform).
In the Convention on the Protection of the Ozone Layer, nations agreed to take ‘appropriate measures to protect human health and environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer’. South Africa acceded to this Convention on 15 January 1990. The measures are, however, unspecified. There is no mention of substances that might harm the ozone, and CFCs only appear towards the end of the annexure to the treaty, where they are mentioned as chemicals that should be monitored. The main thrust of the Convention is to encourage research, cooperation and exchange of information among countries. The Convention provides for future protocols and specifies procedures for amendment and dispute settlement. The significance of this Convention lies in the fact that, for the first time, nations agreed in principle to tackle global environmental problems before their effect become full blown.
Kenya has domesticated its obligations regarding the protection of the ozone layer as stated in a number of the provisions in the Convention. According to the EMCA, NEMA-K is obligated to engage in consultation with lead agencies, to undertake or commission other persons to undertake national studies and give due recognition to development in scientific knowledge relating to substances, activities and practices that deplete the ozone layer to the detriment of public health and the environment. Accordingly, NEMA-K is required to consult with the lead agencies for the purposes of issuing guidelines and instituting programmes concerning the –
i. Elimination of substances that deplete the stratospheric ozone layer;
ii. Controlling of activities and practices likely to lead to the degradation of ozone layer and the stratosphere;
iii. Reduction and minimisation of risks to human health created by the degradation of the ozone layer and the stratosphere; and
iv. Formulate strategies, prepare and evaluate programmes for phasing out ozone depleting substances.
LOSS OF BIOLOGICAL DIVERSITY
A healthy environment is an important home for biological resources which are vital for human well-being. Biological resources have been defined to include genetic resources, organisms or part thereof, populations or any other biotic component of ecosystems with actual or potential use or value to humanity. They are tangible or physical components of biological diversity (or biodiversity).
Kenya is rich in biodiversity. Their value is discussed in more detail in chapter five of this thesis. Biological diversity is the measure of variation in genes, species and ecosystems. The phrase ‘biological diversity’ encompasses three forms of variability: genetic diversity, species diversity and ecosystem diversity. Biodiversity refers to the variety of life on earth, including the variety of species, the genetic variability within each species, and the variety of different ecosystems. Genetic diversity refers to genetic information contained in the genes of individual plants, animals and micro-organisms that inhabit the earth; species diversity relates to the variety of habitats, biotic communities; and ecosystem diversity relates to the variety of habitat, biotic communities and ecological processes in the biosphere.
Nature’s products support diverse industries such as agriculture, cosmetics, pharmaceuticals, paper and pulp, horticulture and construction. Loss of biodiversity threatens food supplies, opportunities for recreation, tourism, wood, medicines and energy, among other things. Biodiversity plays a vital role in essential ecological services such as the purification of air and water; detoxification of decomposing waste; stabilisation and moderation of the earth’s climate; generation and renewal of soil fertility, including nutrients cycling; pollination of plants, including many crops; cultural and aesthetic benefits; and moderation of floods, droughts, temperatures and the extreme forces of wind.
Over the years, human-induced climatic changes have increasingly become a major factor in the reduction of biodiversity. Pressures on biodiversity are, to a large extent, driven by the human need to use more land for economic development.
Human activities are causing loss of biodiversity among animals, plants and ecosystems. It is the combination of life forms and their interactions with each other and with the rest of the environment that has made the earth a uniquely habitable place for humans. Biodiversity provides a large number of goods and services that sustain human life. Protecting biodiversity resources is a sure way in which to guarantee the sustainable nourishment of humanity’s welfare.
Wildlife, such as elephants in Kenya, is dwindling in number due to poaching. Loss of biodiversity is mostly the result of human-induced activities, including some of the following:
i. Habitat conversion; where land that was formerly the habitat of wild animals is converted for agricultural purposes.
ii. Fragmentation of large ecosystems into smaller, disconnected patches of original vegetation occurs particularly during re zoning of hitherto undeveloped land such as that on the outskirts of urban centres for economic development such as the construction of residential and business premises.
iii. Over-exploitation of species from game-hunting for domestic human consumption or poaching of wild animals such as elephants.
iv. Introduction or accidental release of exotic species can prove harmful to indigenous species.
v. Air and water pollution are harmful. Pollution including oil leaks in the seas is known to kill aquatic life.
Forest resources are facing over-exploitation and are at risk of depletion in Kenya. The country is experiencing threats where forest trees or species are facing extinction due to the conversion of forestland for agriculture and human settlement. These harmful activities are due to economic hardships, particularly unemployment. Pressure for agricultural land has seen the conversion of forest, grassland and wetland ecosystems into agro-ecosystems. These ecosystems are less stable and less resistant to various environmental interventions. Other ecological effects include soil and water contamination by chemicals and pesticides, land degradation and salinisation. Unsustainable exploitation of timber is also a cause of these problems.
The government under Daniel arap Moi (1978-2002) neglected the forestry sector. Despite its importance and the significant role it plays in economic development, forests were often not accorded due recognition by the then Ministry of Finance and Planning in budgetary allocations. This was clearly demonstrated by the fact that investments and management of the sector was largely donor driven. In the financial year 2000/2001, for example, donor funding to this sector (for development and recurrent expenditure) was 78 per cent, compared with 22 per cent contributed by the Kenyan government. The investment in the sector over the 1999/2000-budget year was a meagre Ksh 720 million compared to a total government budget of Ksh 287,840 million. This translated to 0.25 per cent of the total budget.
Some of the reasons why the Ministry of Planning has not been inclined to accord much significance to the forest sector include:
i. Lack of reliable statistics that can be used for planning;
ii. The existence of unaccounted for values;
iii. The lack of an established environmental accounting system in the national income accounts;
iv. The lack of human capacity in resource economics and in the field of environmental economics and accounting;
v. The difficulty in factoring out the social costs of deforestation from other causes of environmental degradation;
vi. The poor linkages between development planning and financing of programmes and projects.
Without reasonable financial backing from the central government, it is difficult for the ministry in charge of forestry to develop sound policies that would ensure sustainable exploitation of forest resources. The official policy appears to be that the forestry resources belong to the government and that it can do anything with them. The government has managed forests as though it was the owner, rather than trustee. An investigative article by the Daily Nation newspaper revealed shocking information about the beneficiaries of forestland and resources therein.
This is best demonstrated by the constant land use changes in forests and unsustainable use of forest resources. Forest excisions and boundary alterations have been carried out without regard for the views of forest-dependent communities or other stakeholders. It is common practice for senior government officials to excise forests and divide some parts into small portions. This is ostensibly to distribute land to the poor, but in reality corruptly allocates it to the rich and powerful. It is little wonder that when taken to task to explain all this plundering of the forest, the then minister Mr Kalweo, whose portfolio included forestry, answered that forest excision had greatly helped in alleviating famine, diseases and poverty and that degazettment had benefited deserving cases for the development of schools, hospitals and other amenities including resettling the landless. This is always the pretext used, and for the government to advance such simplistic explanations regarding matters of national importance shows how little it cares about conservation.
Activities that reduce biodiversity jeopardise economic development and human health through the loss of useful materials, genetic stocks, and the services of intact ecosystems. Material losses include food, wood and medicines, as well as resources important for recreation and tourism. Loss of biodiversity is a sure way of eroding human welfare and loss of income. For underdeveloped countries this leads to heightened problems of poverty, worsening the already bad situation viz. disease and malnutrition and reduced life expectancy.
Losing genetic diversity makes it even more likely that further environmental degradation will result in serious reductions in the goods and services that the earth’s ecosystem is otherwise capable of providing. Finally, in addition to the economic reasons for protecting biodiversity, proponents of environmentalism go further and seek a fundamental shift in consciousness from the human domination of nature to a perception of human and non-human life as having equal intrinsic value, as is discussed in greater depth in chapter three.
Efforts towards the conservation of biodiversity have been made in several forums at global level. One of the key agreements adopted at the Rio Earth Summit, 1992, was the Convention on the Conservation of Biological Diversity. In this pact, governments set out commitments for maintaining the world’s ecological underpinnings as they go about the business of economic development. The convention established three goals: the conservation of biological diversity; the sustainable use of its components; and the fair and equitable sharing of the benefits of genetic resources.
The conference of the parties to the convention adopted a supplementary agreement to the convention known as the Cartagena Protocol on Bio-safety. The objective of the Protocol is to contribute to the safe transfer, handling and use of Living Modified Organisms (‘LMOs’) and sustainable use of biological diversity, taking into account risks to human health, and specifically focussing on trans-boundary movement. The Protocol also seeks to protect biological diversity from potential risks that may be posed by LMOs that are affected by modern biotechnology. It establishes an advanced agreement procedure for ensuring that countries are provided with prior written notification and information necessary to make informed decisions before agreeing to the first import of LMOs that are to be intentionally introduced into the environment.
The Protocol makes reference to the Precautionary Principle 15 of the Rio Declaration on Environment and Development of 1992. The Protocol also establishes a bio safety-clearing house to facilitate the exchange of information and experiences on LMOs and to assist countries in the implementation of the Protocol.
It has been said that Convention on Biological Diversity is a landmark in the environment and development field. The overall objective of the convention is to conserve biological diversity, promote sustainable use of its components, and fair and equitable sharing of the benefits arising out of the utilisation of genetic resources. For the first time, a holistic and integrated, rather than a species-based approach is taken to the conservation and sustainable utilisation of natural resources. It provisions are generally expressed as overall goals and polices rather than precise obligations. It adopts a holistic approach by not setting targets or including lists of specifies or areas to be protected. It sets general rights and obligations.
DESERTIFICATION AND LAND DEGRADATION
One of the consequences of intensive use of land, particularly arid and semi-arid lands, has been massive land degradation. This has often resulted in a marked decrease in soil fertility. Erosion, salinisation, compaction, and other forms of degradation have lowered the fertility of land. Low soil fertility reduces food and cash crop production. The loss of soil fertility adversely affects pastureland. All of these combine to worsen the vulnerable economies of many developing countries. The spread of desert conditions ultimately undermines sustainable development.
Desertification and land degradation result from poor land management, which is exacerbated by climatic variations. Decreasing soil organic matter is almost always a clear indication of soil degradation, and often is accompanied by reductions in water infiltration, fertility and ability to retain fertilizer. Desertification is a real problem in sub-Saharan Africa. The expansion of the Sahel desert is causing significant concern to countries in the Horn of Africa region. The Intergovernmental Organisation on Growth and Development (‘IGAD’) was founded partly by countries from the region to initiate programmes to counter the spread of deserts.
Likewise, land degradation is a huge problem in South Africa. UNEP classifies more than 90 per cent of the country as arid or semi-arid or sub-humid. Many of the land problems that South Africa suffers today are a legacy of apartheid. Desertification is exacerbated by inequitable land ownership. UNEP indicates in its report that the former homelands or Bantustans areas are the most severely degraded in the country. Many decades of too much pressure on land is a major contributor. Agricultural land in the former homelands has been overgrazed and over cropped. This was exacerbated by land tenure laws and practices in the former homelands and townships which did not encourage people to conserve land in which they did not have a stake.
Desertification and land degradation undermine efforts towards sustainable development, the vehicle that seeks to ensure that the economic interests of the present and future generations are safeguarded. Desertification reduces the ability of land to support life, affecting wild species, domestic animals, agricultural crops and people. This leads to increased poverty, poor health, malnutrition, impaired child development and susceptibility to diseases. Severe desert conditions have been known to be a major contributory factor to large-scale human migration, which can become a source of social tensions and cross-border security issues in some countries. Intense poverty among some nomadic groups, attributed to change in climate and growth of desert conditions, often lead them to raid their neighbours for livestock. In the process this contributes to cross-border insecurity. On the other hand, nomads escaping the harsh desert conditions in fact end up extending the same conditions through their land use and practices which are ecologically insensitive.
Agenda 21 dwells on issues regarding deserts in its 12th Chapter, Managing Fragile Ecosystems: Combating Desertification and Drought. Fragile ecosystems are identified as including deserts, semi-arid lands, mountain, wetlands, small Islands and certain coastal areas. Accordingly, the most obvious impact of desertification, in addition to widespread poverty around the world, is the degradation of 3.3 billion hectares of the total area of rangeland, constituting 73 per cent of the rangeland with a low potential for human and animal carrying capacity. Agenda 21 called on the UN General Assembly to set up an inter-governmental committee to prepare a legally binding instrument that would address the problem of desertification.
Former UN Secretary General, Kofi Annan, stated that ‘drought and desertification threaten the livelihood of over 1 billion people in more than 110 countries around the world’. On 17 June 1994, the United Nations Convention to Combat Desertification (‘UNCCD’) was adopted in Paris, France. June 17 has become the world’s day to combat desertification. The objective of the convention is ‘to combat desertification and mitigate the effects of drought in countries experiencing serious drought and desertification, particularly in Africa’. To achieve this, the convention calls for action involving international cooperation and a partnership approach. It focuses on improving land productivity, rehabilitation of land conservation and sustainable management of land and water resources. Fighting desertification and reducing the effects of desert conditions could go a long way in reversing incidences of mass migration, human conflicts over scarce resources such as water, loss of biodiversity and climate change.
Effective strategies, programmes and a plan of action for combating desertification should include actively engaging in mobilising both human and financial resources; conducting scientific research; and promoting afforestation programmes. Developing countries might not have the financial and human capacity to pursue all these, and therefore industrialised nations and international financial institutions, such as the IMF and World Bank, should assist in capacity building under the principle of common but differentiated responsibility.
ENVIRONMENTAL POLLUTION
Pollution is a process that adversely affects human well being and survival. EMCA defines pollution to mean:
Any direct or indirect alteration of the physical, thermal, chemical, biological, or radio-active properties of any part of the environment by discharging, emitting, or depositing wastes so as to effect any beneficial use adversely, to cause a condition which is hazardous or potentially hazardous to public health, safety or welfare, or to animals, birds, wildlife, fish or aquatic life, or plants or to cause contravention of any condition, limitation, or restriction.
Accordingly, ‘pollutant’ includes any substance whether liquid, solid or gaseous which-.
(a) may directly or indirectly alter the quality of any element of the receiving environment;
(b) is hazardous or potentially hazardous to human health or the environment; and includes objectionable odours, radio-activity, noise, temperature change or physical, chemical or biological change to any segment or element of the environment.
In South Africa pollution is defined to be:
Any change in the environment caused by-
(i) substance;
(ii) radioactive or other waves; or
(iii) noise, odours, dust or heat,
emitted from any activity, including the storage or treatment of waste substances, construction and the provision of service, whether engaged in by any person or organ of state, where that change has an adverse effect on human health or well-being or on the composition, resilience and productivity of natural or managed ecosystems, or on materials useful to people, or will have such an effect in the future’.
Human activities result in the pumping into the atmosphere of over 8 billion tons of carbon, along with millions of tons of nitrogen oxides, sulphur dioxide particulate, and other such airborne waste every year. The oceans are not spared either. Besides the problem of pollution, which needs concerted efforts and co-operation of states to reverse, species such as whales are facing extinction as a result of pollution. Sea pollution is mainly caused by hundreds of tons of sewage, agricultural runoff, industrial waste and oil leaks from shipping accidents.
Persistent Organic Pollutants (‘POPs’) are human made compounds such as dioxins, DDT, toxaphene, dieldrin and hexachlorobenzene. These chemicals are put into use in industrial and agricultural processes and products such as pesticides. The processes by which such chemicals are released into the environmental media such as water, land and air are also human induced. They are mainly released as by-products whose chemical structure allows them to persist in the environment, resisting natural degradation. They can be carried long distances by wind, water or inside human made vessels such as ships. Scientifically, some of the pollutants are known for their toxicity and have the capacity to destroy vegetation and kill animals or cause cancerous growths and birth defects in human beings.
The international community has sought to address these problems through the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. It has facilitated the initiation of a procedure, Prior Informed Consent (‘PIC’), that helps participating countries to learn more about the characteristics of potentially hazardous chemicals that may be shipped to them with a view to sharing responsibility between exporting and importing countries in protecting human health and the environment from harmful effects of hazardous chemicals that may be traded internationally. The Food and Agriculture Organisation (‘FAO’) and UNEP jointly implement PIC.
Kenya joined other African countries under the Organisation of African Unity (‘OAU’), the predecessor to the AU, in negotiating and concluding the Convention on the Ban of the Import into Africa and the Control of Trans-boundary Movement and Management of Hazardous Wastes within Africa. This was signed in Bamako, Mali on 29 January 1991. The Bamako Convention is the most comprehensive instrument that seeks to regulate problems of hazardous wastes in the region. The parties to the convention expressed their determination to protect, by strict control, the health of the African populations and the environment against any adverse effects, which may result from the generation of hazardous waste. In this way, they underscored the need for the adoption of precautionary measures as a way of preventing pollution by the release into the environment of substances which may cause harm to humanity and the environment without waiting for scientific proof of such harm.
Intra-African cooperation is emphasised as a means of implementing the provisions of the convention. For effective enforcement of this convention, its domestication into the national law of the member countries is crucial. This ought to be followed by effective programmes for capacity building, training of personnel, sharing of information and monitoring procedures. Most African countries do not have the capacity and the political will to undertake their responsibilities regarding the environment, not only under this convention but under international law in general.
Kenya has not domesticated the provision of this Convention. However, even without domestication, the same is applicable by virtue of the provisions of the constitution. The only statutory provision that comes close to regulating hazardous waste is the Traffic Act. It is, however, of limited application as it only prohibits the parking of vehicles carrying hazardous substances within specified urban areas for long periods.
The global Basel Convention on the Control of Trans-boundary Movement of Hazardous Wastes and Their Disposal was adopted in March 1989. African countries generally objected to this Convention, primarily because it allowed for trans-boundary movement of hazardous waste. In their view, allowance for controlled movement, however regulated, is open to abuse.
Kenya’s Public Health (Ports, Airports and Frontier) Rules promulgated in 1970 under the Public Health Act are significant in their protection of the marine environment. This act authorises a health officer to take all practical measures to control the discharge of a ship’s sewage or refuse which might contaminate any waters of a port, river or canal. Section 74(2) provides that it is an offence to violate these rules and, upon conviction for violation, the perpetrator is liable to a fine not exceeding one thousand shillings or imprisonment without the option of a fine for a term not exceeding three months, or both. One thousand shillings in today’s exchange rate is equivalent to US $ 12.80. This penalty cannot be said to have an effective deterrent effect.
Laws for the protection of the marine environment are particularly deficient in respect of pollution from land-based sources which constitutes a substantial cause of environmental degradation. These include the silt load from agricultural fields that contain agricultural inputs like pesticides, and industrial discharges and municipal sewerage. Kenya has a considerably long coastline that is shared with Tanzania and Somalia. Because of this, Kenya should come up with stringent policies for the protection of the marine environment as it might take Somalia a long time to come up with effective environmental management policies.
Other forms of pollution have been the result of defects in technology and industrial accidents that have caused the release of harmful substances into the atmosphere. The Chernobyl nuclear reactor disaster of 1986 is a case in point. On 26 April 1986, a nuclear power station in Chernobyl in the Ukraine, then part of the Soviet Union (USSR), experienced an accident which caused the dispersal of radioactive substance over the northern hemisphere, with serious environmental and health problems affecting Europe and in particular the Ukraine.
At the global level, the disaster had the effect of decreasing confidence in nuclear energy. In the period just after the accident, many areas received lethal doses, whose greatest impact were in the coniferous trees and small mammals present within 10 kilometres of the reactor. Foodstuffs such as milk and green vegetables were contaminated by radioactive materials soon after the accident. Plant personnel, fire-fighters, clean up workers and medical staff also suffered acute health problems. Overall, 237 individuals were thought to have suffered from acute radiation sickness, of whom 28 died.
One of the major long-term effects was observed in children. In 1996, a joint report from the European Commission (‘EC’), the International Atomic Energy Authority (‘IAEA’) and the World Health Organisation (‘WHO’) stated that radiation exposure from the accident had led to a highly significant rate of thyroid cancer in children in the three most affected countries, Russia, Belarus and the Ukraine. Other reports give details of problems such as a 50 per cent drop in the birth rate in Belarus, with a steady rise in the number of miscarriages and birth defects.
Chernobyl offers a painful lesson to humanity of the potential danger of defects in technology. Although we receive many benefits from our day-to-day advanced science and technology, it is essential to realise that they harbour potentially negative aspects. The effects of the Chernobyl disaster are typical characteristics of the trans-boundary nature of environmental pollution.
According to Article 5(1) of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses:
Watercourse states shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by a watercourse state with a view to attaining optimal utilization thereof and benefits therefrom, taking into account the interests of other watercourse States concerned, consistent with adequate protection of the watercourse.
The need to reconcile the rights of the two states is evident. In general international law, there is a fundamental principle based on state practice, announced by the ICJ in its judgement in the Corfu Channel case. The court referred to ‘every State’s obligation not to knowingly allow its territory to be used contrary to the rights of other States’. In the same year as this decision, the United Nations Survey Information of International Law concluded that there is ‘general recognition of the rule that a State must not permit the use of its territory for purposes injurious to the interests of other States in a manner contrary to international law’. States are obliged under international law to notify others of environmental crises. For instance, the United Nations Convention on the Law of the Sea (‘UNCLOS’), sums up the provisions contained in various conventions relating to marine pollution, both in general and in regard to regional seas, by stating that:
When a state becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other States it deems to be affected by such damage, as well as the competent international organisation.
International law therefore provides the most appropriate forum for addressing cross-border pollution. Domestic law is restricted to the borders of a given country, while international law, being supra-national, is the only option through which the community of nations is able to address cross-border environmental issues including pollution. There is, however a need for countries to domesticate international law standards in a way that will enhance their obligations.
POPULATION GROWTH AND ISSUES OF POVERTY
Population growth and landlessness in Kenya has created pressure on poor people to continue the exploitation of marginal rural and urban environments for survival. This leads to resource degradation, which in turn creates more poverty and jeopardises their survival in the long term. The marginal areas in the two countries are either remote or ecologically fragile rural areas or, increasingly, are at the edges of growing urban areas and can barely support adequate lifestyles. Government’s development plans in Kenya have concentrated on highly populated areas.
If the population growth rate is slow, it becomes possible to invest more resources in uplifting educational standards and in developing skills, health care, and infrastructure. In turn, individuals’ incomes rise, and hence savings and, consequently, investment rises. More jobs are created. More resources go a long way towards boosting productivity, thereby improving living standards. Where the existing population is productive and the economic environment conducive more savings will be made and pressures on resources are reduced.
Slowing the increase in population, especially in the face of a rising per capita demand for natural resources, can take pressure off the environment and buy time to improve people’s living standards on a sustainable basis. Poverty eradication is one of the rallying calls in a number of developing economies. With high population growth rates, such a goal becomes elusive because the high growth occurs mainly among poor families. Population growth ushers more people into poverty in the short run and makes escape from poverty difficult. It becomes difficult to save income for future investment when it is committed to trying to keep up with the current needs of rapidly growing numbers of people. In such a situation, the majority of households inevitably find themselves living from hand to mouth, as the vicious cycle of poverty engulfs their lifestyles.
Many people are worried that if the population continues to grow at the current rate, the earth will run out of resources and the environment will not be able to sustain the number of people on the earth. An increase in population has direct links to loss of ecosystems such as forest land and land originally occupied by wild animals in developing countries. This is more so in sub-Saharan Africa where subsistence agriculture is the main economic activity of the majority of people in rural areas. Population pressure causes a rise in demand for land for subsistence agriculture and human settlement. Population growth also causes pressure on the available water and fishery resources. As the world’s population increases and urbanisation and industrialisation take hold, the demand for water keeps rising, while the quality continues to deteriorate. Today, water scarcity affects many nations, particularly the developing ones. Access to clean drinking water and sanitation also remain poor.
Family planning programmes play key roles in stabilising population growth, in any given country. Where family planning information and services are widely available and accessible, couples are better able to determine the number of children they want to bring up. Indeed, if countries made a commitment to population stabilisation and resource conservation, the world would better be able to meet the challenges of sustainable development.
The world’s private sector has shown commitment to population stabilisation. In 1979, for instance, US media millionaire Ted Turner began the trend of donating huge sums of private money towards population control when he donated US $ 1 billion to the UN Population Fund. The highest single contribution, however, came from the American software billionaire, Bill Gates, who donated the vast amount of US $ 2.2 billion to his private foundation which supports population control.
Poverty and environmental degradation are the result of tendencies inherent in most economic systems to externalise environmental and social costs. Likewise, limited access to resources often leave the poor in situations in which they have limited choices and in which they are more preoccupied with their immediate survival needs than in conserving resources for purposes of long term sustainability. There is always pressure on the impoverished groups to exploit increasingly marginal environments to meet immediate survival needs, which leads to environmental degradation and even deeper conditions of poverty in the long run. It has been noted that:
i. poverty and environmental degradation have the same or related root causes;
ii. poverty reduction is a prerequisite for sustainable development; and
iii. the poor are both victims and agents of environmental damage;
iv. alleviating poverty is not only moral but also a prerequisite for environmental sustainability and sustainable development.
v. that past attempts to address these issues have mostly suffered from a lack of integration.
Issues of poverty and environment are better dealt with jointly. Sustainable development, in the long run, has the effect of reducing poverty levels and ensuring a decent living for a country’s citizens. In Kenya and South Africa, the burden of HIV/Aids is partly attributed to environmental factors. Social ills such as poverty, ignorance, and promiscuity as a survival occupation cause the spread of HIV/Aids and related complexities such as sexually transmitted diseases and waterborne diseases. These are associated with inadequate sanitation services and water supplies, poor water drainage and poor housing.
Poverty levels remain high in Kenya. Poverty may be absolute or relative and may be defined in various ways. The condition of absolute poverty generally refers to people whose income is insufficient to obtain the necessities to function effectively. There is no definitive measure because nutritional needs, and other minimal necessities vary according to climate, age, sex and health. Often from a narrow perspective, the measurements are based on the percentage of income required for food and housing needs.
In 1978, Robert McNamara, former President of the World Bank, described absolute poverty as ‘a condition of life so limited by malnutrition, illiteracy, disease, squalid surroundings, high infant mortality and low life expectancy as to beneath any reasonable definition of human decency’. The poverty line as defined by the World Bank is about US $ 420 per capita, in 1990 prices. Relative poverty is defined by the ability to live according to cultural norms and expectations or contemporary standards of living measured according to the median income of the society in which it occurs.
The most widely used indicators of development are Gross Domestic Product (‘GDP’) and per capita income. They provide an aggregate measure of market based production and consumption, and the degree of access to productive and consumptive goods. With respect to poverty, they are used to develop a head count of persons below the poverty line. The number of Kenyans, now living below Kshs 83 per day (equivalent to 1 US$) and therefore in extreme poverty is more than 10 Million out of a total population of 40 Million. This means that one in every four Kenyans is extremely poor. It is easy to notice widespread poverty in the country. It is evidenced by the fact that in most rural areas basic infrastructure is lacking, social amenities such as schools and hospitals are few and far apart, unemployment is rampant, and people live in squalor, with hardly enough food to eat. Frustrations among adults are reflected in alcoholism and drunkenness. Malnutrition among children and concomitant diseases such as kwashiorkor are common.
There are many people who live in dilapidated and poorly constructed shelters, mostly with grass thatched roofs and mud walls that are vulnerable to the vagaries of the weather. The urban areas, including Nairobi, the capital city, are no better. The state of infrastructure, particularly roads, is pathetic. Many people have small informal dilapidated shelters in slum areas, such as Mathare Valley and Kibera, as their homes. There are urchins and street families who beg within the central business district (‘CBD’) of Nairobi. This is a city facing many critical challenges as a modern metropolis that include public health, insecurity, environmental degradation, pollution, poor sanitation, unemployment, homelessness and poor housing.
Income inequalities in Kenya are also considerably high. In fact, the country is among the 30 most unequal societies in the world, and among the top-low income economies with high concentration of income among 10 per cent of the population, which controls 35 per cent of the national income. According to the Human Development Report 2001, Kenyans were poorer in 2001 than they were five years before. This has not improved. The vulnerable groups include single mothers, pastoralists, slum dwellers and peasant agriculturists. In addition, results of the welfare monitoring report indicate that the level of poverty rose from 40.3 per cent in 1994 to 52.3 percent in 1997, and has been increasing steadily over the years.
In 2001, the number of Kenyans unable to afford decent food, medical services and education increased by 9 per cent, which is up 26 per cent in 1997 to 35 per cent. Despite the launch of a poverty eradication strategy by the government in the same year, nothing has changed so far. According to this report, the Human Development Index, (which measures the average achievements made by a country in meeting basic needs like food, shelter and health), has declined sharply in the last five years, so that most Kenyans can be described as living from hand to mouth.
Eradication of poverty is the most profound challenge facing Kenya. Population growth needs to be checked so as to ensure that natural resource bases are not depleted. Likewise, available resources need to be shared on equitable basis. High levels of poverty are compounded by high levels of inequality, lack of access to natural resources and financial resources in certain sectors. Those who bear the brunt of poverty and marginalisation are illiterate people, mostly women, women-headed households, the young, and the elderly who are mostly in urban slums and in the rural areas. Despite the presence of vast natural resources in the two countries, poverty alleviation provides a lot of challenges. Poor people may become trapped in short time-horizons with respect to resources over which they have little or no control because they lack assurances of future access to such resources or because they lack other economic opportunities. To the extent that they are excluded from participation in the market economy, they also rely directly on non-marketed natural resources for their immediate survival.
Prudent and sustainable use of natural resources provides the basis for addressing issues of poverty, such as diseases and unemployment. Kenya needs to adopt policies that will inspire economic growth and diversification in the production and promotion of exports. Sustained economic growth goes a long way towards reducing unemployment, improving peoples’ incomes and hence their lifestyles, and increasing life expectancy. The rapid expansion in the movement of goods, services, capital, technology, ideas and people around the world offers the prospect of stimulating economic growth and productivity and improving living standards. In this age of globalisation, a collective effort is required at global, regional and national level to provide a framework within which market forces can be harnessed to maintain and increase growth and to create jobs, while preserving the environment for future generations and strengthening social cohesion.
It is important that the world’s resources are equitably used to the benefit of many people. Inequality in the distribution of the resources is widespread. The right to a healthy environment and sustainable development needs to be pursued so as to address poverty. The need to address poverty throughout the world is crucial: poverty is a global concern. The international community has set many agendas to address the reduction of poverty levels, particularly in developing countries. These have been articulated in many recent gatherings. It is noteworthy that the UN Development Goals are geared towards addressing issues of poverty. The UN is accordingly determined to:
i. Halve poverty and hunger by 2015
ii. Attain universal primary education
iii. Promote gender equality
iv. Reduce child mortality
v. Combat HIV/Aids
vi. Ensure environmental sustainability
vii. Develop a global partnership for development.
UNEP’s Global Ministerial Environmental Forum adopted the Malmo Declaration in May 2000 in which it was noted that poverty is a crucial issue that needs to be addressed. The declaration noted that the 2002 WSSD should address two major challenges to sustainable development, namely (i) the pervasive effects of the burden of poverty on at least half of humanity, and (ii) the excessive and wasteful consumption and inefficient use of resources that perpetuate the vicious cycle of environmental degradation and increasing poverty.
Since the Malmo Declaration, the following major initiatives have taken place.
i. In September 2000, 146 heads of state pledged in the United Nations Millennium Declaration to spare no effort to free all humanity - and, above all, future generations - from the threat of living on a planet irredeemably spoiled by human activities and whose resources would no longer be sufficient to meet their needs.
ii. In February 2001, the Governing Council Decision 21/15 requested that the UNEP undertake an analysis of the poverty-environment nexus and advise governments from developing countries on how to better incorporate key environmental sectors in their poverty reduction strategies.
The Declaration and Governing Council Decisions have given a clear mandate for UNEP to advise governments, especially in the less developed and highly indebted countries such as Kenya, on ways and means to incorporate environmental considerations within the context of Poverty Reduction Strategy Papers (‘PRSPs’), Country Assistance Strategies (‘CASs’) and national development plans. This role is especially important as the momentum for the development of the PRSPs increases and is beginning to be accepted as the standard for international aid.
The World Bank, a primary architect of PRSPs, has produced a guidebook for policy makers in developing countries to use when formulating their respective PRSPs. There is a chapter on the environment that provides valuable information on integrating environmental concerns into poverty reduction strategies. The World Bank Environmental Strategy acknowledges the important role the environment plays in poverty alleviation through three channels. The first thrust of the initiative is based on improving the quality of life by:
i. Improving people’s health by air pollution, waterborne and vector borne diseases and toxic substances;
ii. Enhancing poor people’s vulnerability to environmental risks such as natural disasters, severe weather fluctuations and the effects of climate change by getting information to poor communities and empowering them to adapt.
The second thrust relies on improving the quality of growth by:
i. Improving the policy, regulatory and institutional frameworks for sustainable environmental management; and
ii. Supporting environmentally and socially sustainable private sector development.
The third thrust lies in protecting the quality of the regional and global commons by:
i. Focusing on the positive linkages between poverty reduction and environmental protection;
ii. Focusing first on local environmental benefits, and building overlaps with regional and global benefits;
iii. Addressing the vulnerability and adaptation needs of developing countries;
iv. Facilitating transfer of financial resources to meet costs of generating global environmental benefits not matched by national benefits; and
v. Stimulating markets for global environmental goods.
Issues of poverty, particularly in the developing countries have also become a concern for the EU, which has adopted plans and programmes of actions towards addressing poverty and environment in developing countries such as Kenya. It has gone on record as expressing its concern on poverty levels and environment situations in developing countries by stating:
The marginalisation of many economies, the increase in poverty in the world, the need to manage better environmental interdependencies, the destabilizing effect of migration, and the consequences of armed conflicts, natural disasters and pandemics are major concerns for everyone and Europe’s citizens understandably expect effective EU action in tackling them. Given the finances at its disposal and their economic and political weight the EU can make an impact.
Kenya also benefited from the EU declared shift of policy towards helping the poor countries, and the EU is on record stating:
The European Union believes that it is politically and morally unacceptable that more than 1 billion people on the planet still have to survive on less than one euro per day. As a result the fight against poverty is the central thrust of the EU’s development policy efforts as it concentrates its attention on a more limited number of policy areas.
Other European frameworks assisting the least developed countries including Kenya could be pursued through international trade agreements. It is notable that the EU played a vital role initiating the Cotonou Agreement. This was signed in 2000 in the capital of Benin, which gives it its informal name. At the occasion, six new countries from the Pacific joined, bringing the total to 77 African Caribbean and Pacific (‘ACP’) members. The outcome underlines how far the partnership has evolved over 25 years.
The agreement sets out an integrated and comprehensive approach to sustainable development, poverty eradication, trade and political dialogue that include prevention of conflicts, the promotion of human rights and democratisation and issues of mutual concerns such as migration. It also includes some notable qualitative changes from its predecessors, as it moves from market-access-based trade relations to a more comprehensive relationship, and from government to government partnerships to a more inclusive process involving all elements of civil society. It is both comprehensive and innovative.
Pursuant to this agreement, the EU has instituted special trade concessions for all least developed countries, of which 39 are signatories of the Cotonou Agreement. The agreement introduces more refined ways of determining fluctuations in export earnings for the ACP countries than the previous compensation schemes. The implementation of the terms of this agreement could go a long way in underscoring the international environmental principle of common but differentiated responsibilities discussed above.
The above arrangements could be harnessed to address problems of poverty in Kenya. In particular, more access to European markets would promote exports. As Kenya relies heavily on agriculture, increase in exports of agricultural products would spur development in the rural areas and this would in turn have the effect of reducing rural-urban migration, as jobs would be created and hence poverty alleviated. With prudent sustainable economic management, this would expand the capital that could be used for environmental conservation, among other things.
The US has, under the African Growth and Opportunity Act (‘AGOA’), provided incentives to the developing African countries such as Kenya and South Africa, aimed at promoting exports of goods to US markets. Kenya has responded positively to this initiative. The growing and processing of cotton, where Kenya has been given a certain quota to export to the US, is being revived. A number of textile industries such as Raymonds and Kenknit in Eldoret, a town which had collapsed have been revived and are largely attributable to the AGOA initiative.
The gap in wealth between the industrialised countries and primary producers continues to widen. For instance, the US consumes 30 per cent of the world’s resources, yet it makes up only 5 per cent of the world’s population. This means that a large proportion of the world’s resources support a smaller section of the population at the expense of the greater majority. Likewise, the gap between the very few rich and the very many poor in both Kenya and South Africa is extremely wide.
UNCED recognised the relationship between poverty and environmental degradation in underdeveloped countries, as well as the problem of unsustainable production and consumption patterns in developed countries. The relationship of poverty to environmental degradation is a direct one in developing countries such as Kenya and South Africa.
Practising sustainable development requires a combination of wise public investment, effective natural resource management, cleaner agricultural and industrial technologies, less pollution and slow population growth. Better resource management protects the environment and preserves nature’s productive capacity. Consequently, stronger economies can afford to invest more in protecting the environment. Slower population growth can speed up economic growth and enhance the conservation of natural resources.
Environmental issues cannot be addressed in isolation with those that cause poverty. The creation of jobs and raising incomes, improving standards of education and public awareness, improving standards of health and nutrition, provision of water and environmentally friendly sources of energy such as electricity, building of decent houses with better sanitation and fighting crime are some of the measures needed. It is understandable that such measures cannot be realised in the short term due to budgetary constraints. This however should never be an excuse. The masses should be equipped with the knowledge, skills and capacity for effective participation in measures aimed at controlling pollution and achieving sustainable resource use. In particular, public education should be directed towards enlightening the citizenry on the reduction of the amount of waste by encouraging them to re-use and recycle resources; improving standards of waste disposal; and setting priorities and working out solutions that society can afford.
FOREST RESOURCES
Many planners, policy makers and resource managers grossly underestimate the economic significance of forest resources. It is misleading to gauge the importance of forests solely through official statistics. This is because this approach looks only at the commercial marketed output of timber products. Forests yield a wide range of non-timber products, many of which are consumed at the household level. The forestry sector plays a significant role in socio-economic development in Kenya. In particular, it provides basic subsistence to many households in the rural areas. Without forest resources, the cost of living would be too high for many households in the rural areas. In addition, forests form crucial water catchment areas for vital rivers, for example the Tana and Athi, in Kenya. Both rivers have their source in the forests of Mount Kenya. The Mara River which flows into Tanzania before pouring its water into Lake Victoria has its source in the Mau Forest.
The importance of forests and forest-based resources was underscored by the court in the case of Francis Kemei and Others v The Attorney General and Others (‘the Ogiek case’). The Ogiek community had applied to court for orders restraining the government from evicting them from the Tinet indigenous forest, mostly known as Mau Forest. The applicants argued that the forest was their ancestral home and that because of peasant agriculture and food gathering, hunting and bee-keeping, their livelihood was dependent on the forest. They also argued that they had, over the years, developed a culture of preserving the natural environment, that they had never been a threat to it, and had never interfered with it, except insofar as was necessary to build schools, provincial government administrative centres, trading centres and houses of worship. The government relied heavily on archival records to prove its contention that the applicant community had long been settled on alternative land in order to protect the forest, which is an important water catchment area.
Highlighting the provisions of a number of laws concerned with the protection of the environment and sustainable use of natural resources, the court confirmed the importance of the forest as a public utility, which should never be allowed to slip into private ownership:
To say that to be evicted from the forest is to be deprived of the means to livelihood because then there will be no place from which to collect honey or where to cultivate and get wild game etc. is to miss the point. You do not have to own a forest to hunt in it. You do not have to own a forest to harvest honey from it. You do not have to own a forest to gather fruits from it. This is like to say that to climb Mount Kenya you must own it; to fish in our territorial waters of the Indian Ocean you must dwell on and own the Indian Ocean; to drink water from the “Weeping” Stone of Kakamega you must own that stone; to have access to the scenic caves of Mount Elgon you must own the mountain. But as we all know, those who fish in Lake Victoria do not own and reside on the lake; they come from afar and near: just as those who may come from far away districts or from nearby. We know that those who exploit the proverbial Meru oak from Mount Kenya Forests do not necessarily dwell on that mountain in those forests. Those who enjoy the honey of Tharaka do not necessarily own the shrubs and wild flowers and wild bees, which manufacture it; nor do we who enjoy that honey own the lands where it is sourced.
[...]
There is no reason why the Ogiek should be the only favoured community to own and exploit at source the sources of our natural resources, a privilege not enjoyed or extended to other Kenyans…. If hunting and gathering in a territory were in themselves alone to give automatic legal proprietary rights to the grounds and soils we hunt and gather upon then those who graze cattle nomadically in migratory shifts everywhere according to climatic changes, would have claimed ownership of every inch of every soil on which they have grazed their cattle. If every fisherman who fished in the Sagana River or River Tana or in Lake Victoria were to say his is the Sagana River, his is the mighty Tana, his is Lake Victoria, then this and other rivers would not belong to Kenya but to private persons; and Lake Victoria would not be ours, but would have been grabbed a long time ago by every fisherman. But these gifts by Mother Nature to us have not suffered that fate, because they are common property for the good of everyone; just as public forests are common property for the common wealth of mankind. They cannot be a free subject of uncontrolled and unregulated privatisation either for the benefit of individuals or a group of individuals howsoever classified and called.
In this case, the court emphasised the pivotal role of the government in the protection of public resources and the need to regulate the use of such resources. It also emphasised that the function of the law was to promote access to resources by the wider society, as it was never the preserve of a small group. The court decision underscored public trust doctrine in ownership of forest resources. This doctrine developed in Roman law. It classified certain property as not being capable of private ownership i.e. res extra commercium. The court’s position was that certain property, and in this case the Mau forest, belonged to all the people, i.e. universitas.
Most forests in Kenya are gazetted as government forests and thus managed by a state institution, the Kenya Forest Service. Access to such forests is restricted, while use of forest resources in such cases is generally prohibited except under licence. Communities extract products of some value such as wild vegetables and wood for fuel. Large companies access forest products of high economic value such as timber, water and medicinal herbs. The importance of forests in the country is also reflected in honey harvesting, grazing and grass cutting, use of the ecosystem for eco-tourism and recreation, scientific and educational purposes, agro-forestry, social and cultural activities, and the development of community-based industries. Forests are also known for the significant role they play in spiritual and religious matters. The ‘sacred’ Kaya forests in the Kenyan coastal region are, for instance, of considerable cultural and religious value to the local Mjikenda community. The Kayas have been preserved as sacred religious places and burial grounds and therefore any destruction of vegetation around these sites is prohibited. The Kaya sacred sites are also important as part of biodiversity conservation in Kenya. Botanical surveys of coastal forests in Kenya over the years continue to reveal rare and interesting plant species in the Kaya forests. These sacred forests are the only known location for certain plant species. This is because the Kayas form part of the complex mosaic of rich Eastern African coastal forest. The coastal forests have been described as a heterogeneous group of isolated evergreen closed-canopy forests within sixty kilometres of the Indian Ocean.
The importance of forests and woodlands is aptly captured in the South Africa‘s White Paper on Sustainable Forest Development thus:
i. Provisions of timber for housing, kraals and fencing;
ii. Fruit as an important dietary supplement, and sap for brewing of beer and wine;
iii. Bark for making ropes and weaving;
iv. Medicinal products from bark, bulbs, leaves and roots;
v. Honey production;
vi. Harvesting of insects, mushrooms and other eligible plants;
vii. Grass for thatching and weaving and for grazing of livestock; and
viii. Local craft industries
Forest cover in Kenya is estimated at less than 3 per cent of the total land surface, and therefore far below the internationally recommended level of 10 per cent. It is said that any country with less than 10 per cent of its land area under forests is environmentally unstable. The Constitution 2010 provides that the State shall work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya. The main forest ecosystems include moist highland forests, dry forest, tropical rain forests, coastal forests, and riverside and mangrove forests. Despite their proportionately small areas, compared to the overall surface area, they provide a valuable natural home for the country’s flora and fauna.
WATER RESOURCES
Water is of immense value to human beings and to all forms of biodiversity. Human beings use water resources in various ways. These include direct consumption, agricultural irrigation, fisheries, hydro-electric power, industrial production, recreation, navigation, the disposal and treatment of sewerage and industrial effluent.
In Kenya, marine national parks are a home to a number of aquatic lifeforms, such as various species of fish. Such parks form one of the leading tourist attractions in the two countries. Management of water resources in Kenya, however, presents a number of challenges that call for attention.
In Kenya, most people depend for their domestic and industrial water needs on rivers, streams and lakes, some of which have been heavily polluted through inadequate and improper disposal of garbage and sewage arising from agricultural activities, urbanisation, and industrialisation. This has often led to waterborne diseases such as typhoid, cholera and dysentery. In urban areas, such as Nairobi, Mombasa, Kisumu, Nakuru, Eldoret, and Thika, water provides for much of the agricultural, domestic and industrial needs. Ineffective management of water services has led to wastage, improper billing and frequent water shortages. In many parts of the country, municipal councils are in charge of water delivery systems, but this has not been done effectively.
The flagship legislation on water resource management and utilisation in the country is the Water Act of 2002. There are other pieces of legislation that have provisions regarding water resource, such as the Agriculture Act, which provides in section 201 that where any provision therein is inconsistent with a provision of the Water Act, the provision in the latter shall prevail. The purpose of the Water Act, according to its title, is to provide for the management, conservation, use and control of water resources and for the acquisition and regulation of rights to use water and to provide for the regulation and management of water supply and sewerage services. Except for waters that are wholly situated in a private landowner’s domain, the Act vests the rights over all surface and ground water in the state. Water within the domain of the state is subject only to the rights that users may acquire under licence, from time to time.
The minister in charge of water exercises overall control of every body of water. He or she has a duty to promote the investigation, conservation and proper use of water resources throughout Kenya. The Act provides for a Water Resources Management Authority to act as an advisory body. A number of functions are exercised by the minister and the Director of Water Resources in consultation with the Water Services Regulatory Board (‘WSRB’), a body also established by the Water Act.
WSRB functions include:
i. the issuance of licences for provision of water services;
ii. The determination of standards for the provision of water services to consumers;
iii. The establishment of procedures for handling complaints made by consumers regarding licences;
iv. Monitoring and regulating licences;
v. Monitoring compliance with established standards for design, construction, operation and maintenance of facilities for water services;
vi. Monitoring and regulating licences and enforcement of licence conditions;
vii. Advising licensees on procedures for dealing with complaints from consumers and monitoring the operation of these procedures;
viii. Developing guidelines for the fixing of tariffs for the provision of water services;
ix. Developing guidelines for, and provision of advice on, cost effective and efficient management and operation of water services;
x. Developing model performance agreements for use between licensees and water service providers;
xi. monitoring the operation of agreements between water service providers and taking appropriate action to improve their effectiveness;
xii. Developing guidelines on regulations for the provision of water services to be adopted by licensees;
xiii. Disseminating information about water services;
xiv. Promoting water conservation and demand management measures;
xv. Monitoring and, from time to time, re-assessing, national water services strategy; and
xvi. Advising the minister concerning any matter in connection with water services.
Under section 4(1), the minister is empowered to have and exercise control over every water resource in accordance with the Act. Section 4(2) imposes a duty on the minister to promote the investigation, conservation and proper use of water resources throughout the country and to ensure the effective exercise and performance by any authorities or persons under the control of the minister of their powers and duties in relation to water. Such wide provisions enable the minister to: make regulations regarding conservation, the facilitation of efficient management, pollution control and sustainable, equitable and beneficial use of water resources in the public interest. These are broad powers which, if invoked, can enhance water management in a country that experiences acute water problems.
The government, by an order issued under section 30(1) of the State Corporation Act established the National Water Conservation and Pipeline Corporation. The order was made by the President vide Legal Notice No. 27 on 16th June 1988. The corporation has among its functions the development and management of the water projects specified in the schedule thereof. The details of the projects are held in the offices of the Corporation and the Permanent Secretary in the Ministry of Water Development where the corporation is located.
The quality of water reveals everything, right or wrong, that humans do within their ecosystem. Every decision made, whether the issue is growth, housing, transportation or economic development, is directly linked to the use of water resources. The quality of water can be used as an indicator of the sustainability of resources. Its quality and availability indicate the level of social development within a community. It is an indicator of the level of poverty and/or development. It indicates social tensions and it is also a proven indicator of the quality of the environment.
Lack of steady and reasonable income among many Kenyans has further been compounded by problems associated with recurring droughts and chronic water shortages in many areas. The majority of Kenyans, both in rural and urban areas, Nairobi included, pay an increasingly high price for water. The poorest are the worst affected. They are the ones who pay more in cash to buy small quantities of water from distant sources, suffer more impaired health from contaminated or too little water, and lose more in diminished livelihoods.
The water infrastructure in urban areas of the country is in a poor state. Blocked and overflowing sewers are commonplace. Burst water and sewer pipes take a long time to be attended to. These are open avenues for health threats that could be avoided. In some residential areas, piped water is a ‘pipe dream’, the presence of plumbing systems notwithstanding. Consumer complaints are common in print media.
To tackle these problems effectively, a new approach to water resource management is needed. A new agenda for the country’s sustainable development is required. This approach needs to incorporate all issues of economic development and environmental management into planning and policy formulation. In particular, efforts should be put in place to increase access to improved water and sanitation facilities. This could be done by mobilising resources for construction and rehabilitation of facilities for domestic water supply, for instance, piped water schemes, boreholes, protected springs and rainwater tanks. Under the new constitution, every person has the right to clean and safe water in adequate quantities. The implementation of this provision will result in frequent litigation against water providers, most of which have not been effective in their work.
Water infrastructure services are generally capital intensive and they therefore require huge amount of financial investment. Kenya lacks the economic capacity to direct resources towards the delivery and management of water infrastructure and services delivery, and therefore the World Bank and donor community in general should be asked for support in respect of most of the water projects in the country.
Most parts of Kenya receive poor and unevenly distributed rainfall. In view of the ever growing population that depends largely on agriculture for its survival, it is necessary for the country to rely on irrigation so as to increase food and cash crop production. The irrigation schemes would compel the government to work out details on water husbandry and apportionment as well as catchment conservation. Movement in this direction would require long-term planning based on the quantities available by basins, measured against national water requirements for industrial, domestic and agriculture uses. As the leader in the consumption of water, irrigation requires careful planning that includes not only the areas which are clearly irrigable, but also those which can be made irrigable given the current advancement in irrigation techniques and technology.
Currently, water-related policies have been developed in a fragmented fashion by a host of institutions in the country. Lack of co-ordination, and often intense rivalries among ministries and government departments, have resulted in rendering water policies generally sub-optimal. During the first quarter of 2003, shortages of water in the city of Nairobi resulted in an open confrontation between the Ministry of Water Resources Development and the Ministry of Local Government. The Local Government Minister insisted that he never witness a situation where total water control is vested in the former, as this resource is one of the leading revenue earners to most local authorities in the country.
Without institutional rationalisation and strengthening, water management simply cannot become optimal. Some obstacles to effective, holistic, participatory water management include the promotion of short-term rather than long-term perspectives in decision-making, values and attitudes, and lack of the necessary funding to implement and monitor policies and decisions. Education, training and strengthening of local organisations and decision-making authorities can help to overcome some of these obstacles. There is also a need for greater budgetary allocations so that dams and dykes could be constructed along watercourses in order to minimise the effect of flooding and to put floodwater into more beneficial public use.
To be effectively implemented, integrated water resource management should include institutional and legal capacity building, human resources development and participatory approaches. The basis for a strategic approach to integrated freshwater management can be founded on a set of key elements that brings together all the relevant parties and their particular social, economic and environmental concerns that are bound by freshwater. It is important that domestic policies and actions should not be seen to be separate from international policies and action. However, for water quality, quantity and ecosystem concerns, changes are often needed in the country’s domestic policies and activities.
One glaring weakness of the Water Act is that it does not seem to have incorporated principles emanating from the general international trend. This calls for the involvement of local communities and other stakeholders in sustainable water resources management. Nor does it specifically mention water as a right to every Kenyan; as the EMCA specifically stipulates viz. the environment. It is however significant that there is now a constitutional provision that has filled this glaring gap.
Besides ineffective distribution, it is notable that dry areas of the Kenya have often experienced the effect of devastating floods followed by long periods of drought. The effects include crop failures and death of livestock and wild animals, which further exacerbate poverty among rural populations. In 2003, a prolonged dry spell in the Nairobi area caused the lions in the Nairobi National Park to wander out of the park and kill livestock in the neighbouring Maasai community. The Maasai responded by killing the lions in a classic case of human/wildlife conflict. The government reacted by cautioning restraint but some people dismissed the government because the latter was perceived as being more concerned with the well-being of wild animals than of human beings. The government is yet to come up with effective policies of reducing human/animal conflicts.
It is worrying that there has been virtually no government initiative to harvest and control floodwater for sustainable utilisation in the country. Most rainwater simply drains into the sea without being turned to maximum beneficial use. During the first few months of 2003, the Budalangi area of Western Kenya experienced heavy flooding, which resulted in several human deaths and property destruction. The best the government could do for the victims was to provide them with relief such as foodstuff, medicine and blankets. There is a clear need for the government to initiate the construction of dams and dykes in areas which are prone to flooding to contain floods and establish water reservoirs that could be used during dry seasons.
The other feature of Kenya’s inland waters is their international character. The main drainage basins, which straddle the Kenyan boundaries, are Rivers Malaba, Mara and Juba, and Lakes Victoria, Natron, Jipe, and Turkana. Lake Victoria, which is shared by Kenya, Uganda and Tanzania, is the largest freshwater lake in Africa and a source of the River Nile whose waters flow through Uganda, Sudan and Egypt. The old and now obsolete international agreement governing the use of the Nile waters has denied Kenya and other East African countries the right to enjoy maximum use of Lake Victoria waters. It is important for all countries sharing in the water masses of the Nile and Lake Victoria to devise an agreement that would create an effective institutional arrangement for consultation and co-operation. This would ensure fair and equitable use of this crucial natural resource. Egypt appears to be the only country enjoying maximum use of the Nile water resources, by virtue of this agreement.
The lessons from the past are clear. Without appropriate policies and institutional capacities to make the transition to more comprehensive ecosystem-based water resources management, no technical or engineering fix will succeed. Water is life and an issue of human rights. Sound management of this crucial resource is an integral component of the new paradigm shift in sustainable development - one that allows a steady improvement of living standards without destroying the fragile natural capital of river, marine and ground water systems.
It is important for the country to improve its water management practices. There is a need to develop a national water strategy, which would respect the peculiarities of the country in terms of its social, economic and development goals. It ought to be based on a realistic assessment of the country’s water resources. This requires an integrated approach given the linkages it has with other sectors of the economy.
Just like in Kenya, water is a constitutional right in South Africa. In 1994, the Department of Water Affairs and Forestry initiated the Community and Water Supply and Sanitation (‘CWSS’) Program. The main objective of this programme is to enhance the capacity of local government to promote the sustainability of water services projects. The National Water Act 36 of 1998 is the main legislation regarding management of water resources in the country. According to section 2, the purpose of the Act is to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in ways which take into account the following:
i. meeting the basic human needs of present and future generations;
ii. promoting equitable access to water;
iii. redressing the results of past racial and gender discrimination;
iv. promoting social and economic development;
v. providing for growing demand for water use;
vi. protecting aquatic and associated ecosystems and their biological diversity;
vii. reducing and preventing pollution and degradation of water resources;
viii. meeting international obligations;
ix. promoting dam safety; and
x. managing floods and droughts.
The national government is the public trustee of the nation’s water resources. It is required to ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate.
The innovative significance of the new water law in the country is that it appreciates that water is a scarce resource. It endeavours to direct appropriate actions from the national government to fulfil its constitutional mandate. Water is life, and without it life is impossible. Scarcity of this commodity affects adversely affects the well-being of a given community. The Water Act provides for fundamental reform of water resource management. The country’s previous water laws, for instance Water Act 54 of 1956, basically applied the rules of the well-watered colonising countries of Europe to the arid and variable climate of the country. Water was used by the dominant group which had privileged access to land and economic power. The following have been identified to be the key elements which guide water management in the country:
1. The status of the nation’s water resources as an indivisible national asset was confirmed and formalised.
2. National government act as the custodian of the nation’s water resources and its powers in this regard is exercised as a public trust.
3. Only water required to meet the basic human needs and maintain environmental sustainability will be guaranteed as a right.
4. In shared river basins, government is empowered to give priority over other uses to ensure that the legitimate requirements of neighbouring countries can be met
5. The new system of allocation will be implemented in a phased manner, beginning in water management areas which are already under stress. This system of allocation will use water pricing, limited term allocations and other administrative mechanisms to bring supply and demand into balance in a manner which is beneficial in the public interest.
6. The riparian system of allocation, in which the right to use water is tied to the ownership of land along rivers, was effectively abolished. The transitional arrangements will, over time, ensure an orderly, efficient and gradual shift in water use allocation as and when necessary.
7. Water use allocation will no longer be permanent, but will be given for a reasonable period, and provision will be made to enable the transfer or trade of these rights between users, with Ministerial consent.
8. To promote efficient use of water, the policy will be to charge users for the full financial costs of providing access to water, including infrastructure development and catchment management activities. This will be done on an equitable basis and according to the realistic reasonable programme which has already been begun.
9. All water use, wherever in the cycle it occurs, will be subject to a catchment management charge which will cover actual costs incurred.
10. To promote equitable access to water for disadvantage groups for productive purposes such as agriculture, some or all of these charges may be waived for a determined period where this is necessary for them to be able to begin to use the resource.
11. All major water use sectors must develop a water use, conservation and protection policy, and regulations will be introduced to ensure compliance with the policy in key areas.
12. Provision will be made for the phased establishment of catchment management agencies, subject to national authority, to undertake water resource management in these water management areas.
With the constitutionalisation of this right in Kenya, Parliament ought to come up with new legislation that will make its realisation more effective.
The right to water is part of socio-economic rights. The same is enforceable in some jurisdiction. For instance, in South African, during the First Certification judgement the Constitutional Court stated the following regarding socio-economic rights:
It is true that the inclusion of socio-economic rights may result in courts making orders which have direct implication on budgetary matters. However, even when a court enforces civil and political rights such as equality, freedom of speech and the right to fair trial, the order it makes will often have such implications. A court may require provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view it cannot be said that by including socio-economic rights within a Bill of Rights, a task is conferred upon the courts so different from that from that ordinarily conferred upon them by a Bill of Rights.
[...]
Nevertheless, we are of the view that these rights are, at least to some extent, justiciable. As we have stated in the previous paragraph, many of the civil and political rights without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rights to such implications does not seem to use to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion. In the light of these considerations, it is our view that inclusion of socio-economic rights in the New Constitution does not result in a breach of ... (Constitutional Principles).
Socio-economic rights which include the right to access to water are therefore justiciable under the South African Constitution.
#END
