LVEMP Lake Victoria Environmental Management Programme
NEAP National Environment Action Plan
NEC National Environment Council
NEMA National Environment Management Authority
NES National Environment Secretariat
NGO(s) Nongovernmental organization(s)
Introduction This report analyzes the legal and institutional frameworks for public involvement in environmental decisionmaking in Kenya. It particularly focuses on environmental impact assessments (EIAs) in World Bank projects. EIA is a process that is designed at the project planning stage to gather information about the potential impact of the proposed development activity on the environment, and the use of that information in the decisionmaking process.
Consideration of environmental issues in policy and planning in Kenya can be traced to the country's 1965 African Socialism Paper, which states: “Practices tending to harm rather than to conserve our physical environment must be curbed through education and legislation.”i The 1980s saw increased government commitment to improving environmental impact assessments, and the 1979-83 Development Planii contained elements of the concept of EIA.iii However, legal institutionalization of formal EIA has been lacking, so that these policy formulations have rarely been put into practice.
III. Public Involvement: Legal and Institutional Frameworks International Legal Provisions Most international legal provisions on the environment reflect generally accepted principles of law and represent fundamental considerations of humanity.iv Although many of these international legal instruments are not legally binding at the national level, most African countries—including Kenya—have ratified them. Domestic legislation in Kenya largely borrows from international legal provisions. Some of these provisions, especially those that relate to the environment, could be construed as granting the citizens of Kenya the right to protect the environment.
Of the international legal provisions on the environment, those addressing procedural rights are critical, especially in relation to the role of civil society in environmental management. These procedural rights include: access to information, participation in decisionmaking, freedom of association, and access to justice.v
Kenyan Laws on Public Involvement in Environmental Decisionmaking Constitutional Law, Civil Rights, and Administrative Law Provisions. Kenya’s Constitution does not contain explicit environmental provisions.vi It does, however, place importance on the right to life, and experts argue that this right to life encompasses the right to a clean and healthy environment.vii The Constitution of Kenya makes provision for the protection of individual fundamental rights and freedoms. Some of these provisions are of direct relevance to public participation in environmental decisionmaking, such as those addressing the freedoms of speech, assembly, and association; the right to life; and the right to protection of the law. These fundamental individual rights and freedoms are protected under Chapter V of the Constitution. Of particular significance is Section 80, which guarantees every person the right to assemble freely and associate with other persons, and includes the right to form or belong to associations. The Constitution includes the right of access to the High Court for redress with respect to enforcement of fundamental individual rights and freedoms.
These rights and freedoms are subject to respect for the rights and freedoms of others and the public interest. Limitations must be provided for under the law, which must be reasonably justifiable in a democratic society. The Constitution specifies that freedom of assembly and association may be curtailed for the protection of public defense, safety, health, order, morality, and the rights and freedoms of other persons, or for imposition of reasonable conditions relating to, for example, registration of trade unions and martial law.viii The rights to freedom of expression, assembly, and association are inextricably linked to the right to information. However, numerous obstacles impede access to environmental information. The Constitution contains no express provision covering the right to information in Kenya. This right is only implied in provisions addressing the protection of fundamental rights and freedoms of the individual. Indeed the government has not, until recently, played an active role in informing the public about pertinent issues relating to public participation and decisionmaking in the environmental and natural resources fields.
The government's failure to make environmental information available has mainly been attributed to constitutional weaknesses.ix This is partly because the Constitution does not place a constitutional duty on the government to collect and disseminate relevant information. Further, the claw-back[?? Is this a generally used phrase? Yes] provisions of the Constitution effectively relegate access to information clauses to legal inferiority. This situation seems to have resulted in an adversarial atmosphere between citizens seeking information, on the one hand, and the use of legal loopholes by government bureaucrats to restrict information flow, on the other.
Constitutional provisions for the protection of fundamental individual rights and freedoms cover both natural and legal persons. The word "person" is defined in the Constitution to include "any body of persons, corporate or unincorporate."x Detailed judicial pronouncements have been made on what constitutes a “person” within the fundamental rights provisions of the Constitution. This was in the case in Shah Vershi Devshi & Co. Ltd. v. The Transport Licensing Board.xi In this celebrated case the High Court of Kenya held that constitutional references to “person” covered both natural and legal persons. The applicant company had been refused renewal of license under the policy of “Africanization.” It appealed to the High Court claiming breach of its fundamental rights. The court observed:
...A company is a “person” within the meaning of Chapter V [of the Constitution of Kenya] and would be entitled to all the rights and freedoms given to a “person” which it is capable of enjoying."...If a right or freedom is given to a “person” and is, from its nature, capable of being enjoyed by a “corporation” then a “corporation” can claim it, although it is included in the list of “rights and freedoms of the individual.” The word “individual,” like the word “person,” does, where the context so requires, include a corporation.xii Accordingly public participation rights accrue to all persons by law. There is currently an ongoing Constitutional review process that, hopefully, will define a more explicit basis for environmental assessments of development projects.
Specific Laws Addressing EIA. Kenya's environmental legislation is scattered throughout over 77 resource/sector specific laws.xiii The provisions of most of these Acts (for instance, the Water Act Cap.; the Physical Planning Act, Act No. 6 of 1996, and the Pest Control Products Act Cap 240) are broad enough to accommodate EIA requirements. The main piece of legislation in this field that adopts a centrally directed environmental scheme is the Environment Management and Coordination Act of 1999. This Act confers standing to individuals to enforce environmental rights. It also establishes a right to a clean and healthy environment and makes provision for the carrying out of EIA. The National Environment Secretariat (NES) was created by presidential fiat in 1974. Until the new EIA law came into effect in early 2000, the Planning and Environmental Impact Assessment Unit of the NES was charged with appraising projects and giving advice. This agency issued EIA regulations and guidelines to be it had no clear legal basis.xiv Consequently, the powers of the NES in regard to other agencies were never clarified.
The Wildlife (Conservation and Management) Act, Cap. 376 (1976 amended in 1989) has the stated objective of ensuring that wildlife is managed and conserved for the benefit of the nation generally and certain areas in particular. The anticipated benefits to be reaped include cultural, aesthetic, scientific and economic ones subject to the proper wildlife management and conservation. There are no provisions for public participation in the making of decisions such as the declaration of areas as protected areas and the general management of protected areas. Proposed changes to the Wildlife Act contained in a 1999 Draft Bill are consistent with public participation. The Preamble to the Draft Bill vests the Kenya Wildlife Service, on behalf of the state, with overall wildlife followed by project proponents. Creation of the NES was supposed to elevate environmental management and coordination from its traditionally sectoral level to that of a national policy approach.
Although the NES spelled out its national EIA functions through structural organization and the subsequent establishment of the Planning and Environmental Impact Assessment Unit, with wide enforcement and prescriptive powers, management authority. It however acknowledges the need for ensuring the highest and beneficial participation of local communities in wildlife management and conservation and points to the need to strike a balance between protectionism and unregulated wildlife utilisation.
The Forests ActCap 385( 1962, amended in 1982 and 1992) provides the legal framework for the conservation of forests. Its fundamental technique is to vest exclusive control, through the process of gazettement, in the government. Thus, under the Act, the government can declare forest areas in unalienated government land which is defined as land for the time being vested in the government and not subject to a conveyance, lease or occupation licence and land that is not dedicated or set aside for the use of the public or declared a forest area. In addition, a forest area can be gazetted as a nature reserve because of its unique flora and fauna, hence demanding special protective measures. The effect of these declarations is to exclude other forms of land-use activities and to vest monopoly rights of management in the state. The use of such areas for settlement, cultivation, grazing, hunting, and the removal of forest produce or the disturbance of the flora is prohibited save under a licence issued by the relevant authority.Under the Forests Act, the Minister responsible for natural resources is empowered to declare any forest area a nature reserve for the purposes of preserving the natural amenities thereof and the flora and fauna therein. There are no explicit provisions in the Act for public participation. Proposed changes to this Act however seek to give more room for community participation in forest management.
Physical Planning Act (1996). One of the specific legal methods used to prevent environmental degradation is physical planning. The Physical Planning Act went into effect in November 1998, partly due to advocacy efforts by policy-focused environmental NGOs. It repealed and replaced the Land Planning and Town Planning Acts.xv Under the Physical Planning Act development activities are supposed to be carried out according to physical plans. Accordingly, the process of physical planning involves two stages: the plan-making stage and the development-control stage. The former involves drawing up a plan to delineate various activities and zones, whereas the latter involves ruling on applications by developers to carry out specific development activities.
Physical planning is the function of the Director of Physical Planning, which is a part of the Ministry of Lands and Settlement. As this is a national office, there is little local participation. Nevertheless, the Act creates liaison committees at various administrative levels, including the district level, thus involving local authorities (but not communities), whose role is restricted to hearing appeals against decisions of the director of physical planning.
Physical plans fall into two categories: regional plans and area plans. Regional plans cover vast regions, such as provinces. Area plans are more detailed and specific, as they cover local areas administered by local authorities and provide greater opportunity for public participation and input in drawing up the plans.
The Physical Planning Act provides for environmental impact assessments (EIAs). Section 36 states:
If in connection with a development application a local authority is of the opinion that proposals for industrial location, dumping sites, sewerage treatment, quarries or any other development activity will have injurious impact on the environment, the applicant shall be required to submit, together with the application, an environmental impact assessment report.
However the Act provides neither details nor regulations and guidelines to be followed for carrying out the EIA. Pertinent implementing regulations have evolved from practice, and require the EIA to be undertaken in accordance with generally accepted principles of EIA.
The essence of EIA is to gather information and use it in the decisionmaking process. It is therefore an integral part of planning. Although EIA can be carried out for any development activity, it may not be practical to carry out EIA for all proposed activities. The local authority determines whether an EIA is to be undertaken or not, and is supposed to require developers to carry out EIAs for all proposed projects with potential environmental impact.
The Kenya National Biodiversity Strategy and Action Plan published by the Ministry of Environment and Natural Resources in June 1999 includes “informed and empowered communities fully involved in sustainable utilization and conservation of biodiversity” as a national goal. This implies the participation of the public in decision-making.
The Environmental Management and Coordination Act of 1999 identifies the areas in which EIA must be carried out,xvi but the Physical Planning Act appears to leave it to local authorities to decide whether or not to request an EIA. Although public participation in the EIA process is required by the law, this requirement is not always adhered to.xvii Most local authorities lack the expertise to carry out an in-depth review. Hence these authorities use external panels of experts to review the EIA report. If upon conclusion of the review the local authority decides that the project can go forward, it issues an environmental permit.
As indicated above the requirements of the Physical Planning Act in regard to environmental impact assessments obligate developers to seek and obtain plan information from relevant local authorities. Local authorities are empowered to demolish buildings erected without the permission of the authority of the area. These planning requirements received judicial recognition in Momanyi v. Bosire.xviii Environmental Management and Coordination Act (1999). The Environment Management and Coordination Act (EMCA) of 1999 creates an overall supervisory agency to manage environmental issues, as opposed to previous legislation, which established sectoral agencies and often led to regulatory competition. It also provides for public participation in environmental law. The Act establishes the National Environment Council (NEC), National Environment Management Authority (NEMA), provincial and district environment committees, and the Public Complaints Committee. Within each of these administrative structures, provision is made for public participation.
The EMCA provides for the right of every person to a clean and healthy environment. It also makes it the obligation of every person to protect and manage the environment. Any person may bring an action in the High Court to enforce the right to a clean and healthy environment. Redress may be sought if the right has been violated, is being violated, or is likely to be violated. In judging the dispute the Court will be guided by the principles of sustainable development, such as public participation in the development of policies, plans, and processes for environmental management.
An important innovation of the EMCA is that it overcomes most of the limitations on standing to sue. It explicitly provides that an aggrieved person need not show special damage or particular injury beyond that which is suffered by other affected people. Effectively, this provision grants to every person the right to protect the environment.
The National Environment Council is the lead policymaking body under the Act, charged with formulating policy on matters relating to environmental management in Kenya. Those who sit on the Council include two representatives of Kenyan public universities, two representatives of Kenyan specialized research institutions, three representatives of the business community, and two representatives of NGOs active in the environmental field. The Council regulates its own procedures, and may invite any person to attend and participate in its deliberations.
The National Environment Management Authority is the principal government institution responsible for implementing all policies relating to the environment, including overseeing EIA. NEMA’s board includes at least seven members who are not public servants.
Under the EMCA environmental impact assessment is undertaken by the project proponent at her/his own expense, but must be conducted by experts authorized by NEMA.xix NEMA is empowered to set up a technical advisory committee to advise it on EA. Lead agencies may submit written comments on EAs upon request. These agencies consist of organizations and institutions in which the law vests functions of control or management of aspects of the environment. The Act further states that noncompliance with EIA requirements may give rise to an offense.
Civil society and business sector representatives sit on provincial environment committees, including: a representative of each local authority within the province; two representatives of farmers or pastoralists, two representatives of NGOs involved in environmental management programs in the province, and a representative of each regional development authority in the province.
District environment committees also include a representative from each local authority within the district, as well as four representatives of farmers, women, youth, and pastoralists; two representatives of NGOs involved in environmental management programmes in the district; two representatives of community-based organizations involved in environmental management programs in the district; and two representatives of the district’s business community. The function of provincial and district environment committees is proper management of the environment within their respective jurisdictions.
The Public Complaints Committee investigates complaints relating to environmental damage and degradation generally. Its members include representatives of the Law Society of Kenya and the NGO and business communities.
Finally, the EMCA also establishes the National Environment Action Plan (NEAP) Committee. This cross-sectoral committee prepares the national environment action plan. It consists, among others, of representatives from Kenyan public universities and research institutions and the NGO and business communities. It is important to point out that EMCA predates the operative Kenyan Constitution and is thus more explicit on public participation in environmental decision-making than the Constitution. There is however, an ongoing Constitution Review process and among the proposals made to the Review Commission for inclusion in a new Constitution are explicit provisions on public participation. These include the right to live and work in a healthy environment, the right to defend that right through administrative and judicial mechanisms. The corollary to that right is the duty of every Kenyan to promote the health of the environment and the sustainability in the utilization of natural resources. The State is required to accord citizens access to information in private or public domains to enable them to execute their environmental rights and duties.1
EIA Mechanisms under the Environmental Management and Coordination Act
As noted, the Act is the principal national legislation dealing with EIAs. It imposes on project proponents the obligation to conduct EIAs, and grants all persons the right to participate in the EIA process.xx The Act states:
Notwithstanding any approval, permit or licence granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall, before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.xxi If, after studying the report, it becomes clear to the Authority that the proposal will result in significant environmental impact, then an EIA must be undertaken.xxii No other licensing authority can lawfully issue a license in for a project for which an EIA is required under the Environment Management and Coordination Act. Only a license issued by the Director General of NEMA would be valid.xxiii The costs of the EIA are borne by the project proponent.
The categories of projects that must undergo EIA are broadly defined. They include urban development, major roads, storage dams, river diversions, aerial spraying, mining, clearance of forest areas, irrigation, use of pesticides, processing and manufacturing industries, electrical infrastructure, waste disposal, nature conservation areas, and major developments in biotechnology (such as the introduction and testing of genetically modified organisms). The minister responsible for matters relating to the environment has powers to amend the schedule after consultations with key actors in the environmental field.
EIAs must be conducted by experts authorized by the Authority. Provision is made for inspection of the register of EIA experts by the general public, upon payment of a prescribed fee. Under section 59 the public should be notified of the intention to carry out an EIA; notices must contain the following information:
Summary of the project
Location where the project is to be carried out
Place where the EIA report may be inspected
Time limit, not to exceed 60 days, within which public comments may be submitted.
The time limit may be extended to afford reasonable opportunity for submission of comments. NEMA also has powers to set up a technical advisory committee on EIAsxxiv and to require the developer to provide further information to ensure the accuracy and adequacy of reports.
If upon conclusion of the review the Authority decides that the project can proceed, it issues an environmental impact assessment license. The license may be given with conditions, and the Authority may give other directives at any stage of the project. The register of EIA licenses is maintained by the Authority as a public document, and is open to inspection upon payment of a fee. It is important to note that the requirement for payment of a prescribed fee may act as an impediment to public participation in instances where members of the public are unable to raise the fee, which is likely in many cases.
General Laws Addressing EIA. A sectoral approach to resource management issues underlies the development of EIA as a legal tool in Kenya. The EIA typologies, as found in the structures and mechanisms under the Water Act, attest to this. The Act sets up a Water Authority for the management of water resources. Under the Act the Water Resources Authority may require any person to furnish information regarding proposed water works, including information on the use of, and demand for, water supplies. The Act further provides that water authorities may construct and maintain dams, sewers, and other works for intercepting, treating, or disposing of water flowing upon any land. Permission to do so is subject to the requirement that if the proposed work is likely to affect any body of water in the area, consent of the Water Board must be obtained before constructing such works.
The public can express its views on the implications of the projects. Public participation is through objections, and occurs at two levels. Upon receipt of an application the Board is required to make it available for public scrutiny, after which objections may be filed. The Board takes these objections into consideration in making a decision on the project. The Board may then grant conditional approval and invite other objections from the public. At this stage an enquiry may be held before the final decision is made. Studies show that most objections raised under the Water Act are not related to environmental issues.xxv Under the Pest Control Products Act Cap. 240, the Pest Control Board is to assess and evaluate pest-control products in accordance with regulations made thereunder. Applications to the Board must satisfy conditions of efficacy, safety, quality, and economic value before a product is registered. The Board is empowered to refuse registration if the information provided is insufficient for assessing and evaluating the pest-control product. It can also refuse registration if use of the product would lead to an unacceptable risk or harm to public health, plants, animals, or the environment.