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Part VI & VII: Environmental Impact Assessment and Audit

Section 58 of the act directs that all projects specified under schedule 2 have to undergo Environmental Impact Assessment and the Director-General is to respond within 6 months for the license. Section 68 states that NEMA has the responsibility of carrying out all activities that are likely to have significant effects on the environment.

However, the EIA process has received a plethora of criticism. Kakonge (2015) claims that huge infrastructural projects such as the Thika Super Highway and Lamu Port have been undertaken without proper EIAs. He claims poor quality EIAs are ubiquitous in Kenya as the reports are seen as sales documents for developers and it is largely viewed as a box-ticking exercise to obtain licenses in Kenya. Major problems associated with EIAs include lack of capacity, lack of political will, improper public participation, subjectivity, and corruption.

Section VIII: Environmental Quality Standards

Standards and enforcement review committee is a committee of NEMA formed under section 70(1) of EMCA. The committee in consultation with various lead agencies recommends water quality, noise, sewerage, air quality, radiation, and general pollution standards.

The establishment of various committees e.g. District Environmental committees, Provisional environmental committees, and Standard and enforcement Review committee make service delivery easier in one way and of access to the grassroots level. However, UNEP Yearbook (2010) posits that various experts and practitioners of environmental governance regard the duplication, overlap, and fragmentation as a negative quality. The committees formed under EMCA definitely fragment the governance of the environment in Kenya and in many occasions, there is duplication and overlap of mandate, duties, and responsibilities. Marthinus van Schalkwyk, the South African Minister of Environmental Affairs and Tourism, referred to “burgeoning fragmentation and duplication in an overburdened system” as a key obstacle to the integration of environmental concerns into macro-economic policy-making, as well as an issue of “critical importance” to developing countries (UNEP Yearbook, 2010). However, other quarters argue that the diversification promotes stability, experimentation, facilitate learning and form coalitions by offering alternative courses for dialogue and actions (Ansell and Bassinger, 2009).

The management of riparian land demonstrates the duplication of environmental guidelines in Kenya. The laws lacked a clear unified definition of riparian lands. Read more here: 

Section IX: Environmental restoration and conservation orders and environmental easements

Under the Act, the authority may serve an order to restore the environment to as near to its previous state before any action that adversely changed the state of emergency. This order can also be brought by the individual who goes to the court of competent jurisdiction against a person who has harmed, is harming or likely to harm the environment. An environmental easement[1] may be granted by the court in section 112 (1). Section 112 (4) gives NEMA the authority to impose environmental conservation order on burdened land. It is important to note that the act (Section 116) dictates that person(s) with legal interest on land subjected to the easement is entitled to compensation commensurate with the lost value of the use of the land.

Part X: Inspections, Analysis and Records

The position of an environmental inspector under section 117 mandates him/her to perform the duties of inspections without a warrant to monitor the compliance of environmental regulations as stipulated by EMCA. Section 118 gives the environmental inspector with the control and direction of attorney general the mandate to institute and undertake criminal proceedings against persons allegedly commit offenses against the environment. Section 122 directs that records of environmental audits, environment monitoring and evaluation, pollution control and inspection be submitted to the authority annually not later than one month after the end of each year for inspection, analysis, and records. The section may also maintain confidentiality if the circumstances require.

Part XI and XII: International treaties and National Environmental Tribunal

Section 124 gives the authority subject to control and direction of the council in consultation with various lead agencies the appropriate measures needed to domesticate/nationalize international environmental agreements that Kenya is part of. The tribunal called National Environmental Tribunal consisting of a chairman (high court judge), an advocate of the high court, lawyer and two environmental management competent individuals. The tribunal hears cases of a person who feel aggrieved by the authority’s licensing, orders and or fees (Section 129), however, the status quo of any matter shall be maintained until the appeal is determined. The chairman may appoint persons with special skills on environmental issues in an advisory capacity in case such skills are required in determining the case.

International treaties and agreements on the environment are important because environmental issues know no boundaries. The key institutions and mechanisms through which International Environmental Governance is carried out include a multitude of intergovernmental, nonstate, and public-private processes and initiatives that vary in format, structure, and membership (UNEP Yearbook, 2010). This possesses a challenge in environmental governance in cases that the local law e.g. EMCA is in conflict with international agreements. There has also been concern over the numerous agreements that are in place but lack of coordination between the different agreements especially in the areas of waste, water, and chemical management and the states (Ansell and Bassinger, 2009). Kenya is a signatory to various international agreements including the three Rio Multilateral Environmental Agreements (MEAs) namely; UNCBD, UNFCCC, UNCCD, and to several other international and regional agreements like POPs.

Environmental Offences and Regulations

Sections 137-146 describe various offenses and penalties. The penalties include jail term and or monetary fines. The last section 148, gives the Act the powers to prevail when the provisions of other laws conflict with the act.

Other Issues arising from EMCA

The Act as a principal instrument for environmental governance in Kenya fails to vividly link economics to environmental management and protection. Integration of the environmental, economic, and social dimensions of sustainability has been a key theme of the international response to the financial, food, and energy crises. High-level statements emerging from the global environmental governance reform process have repeatedly stressed that reform should take place in the broader context of sustainable development. Proposals to integrate environmental concerns into economic recovery and socio-economic development have more generally converged around the Green New Deal elaborated by Edward Barbier[2] and other economists and by UNEP’s Green Economy Initiative (UNEP Yearbook, 2010). The link in environment and economy is briefly described in Kenya Vision 2030

[1] Environmental easement: paying landowners for not developing or exploiting parts of their property in order to preserve areas that are particularly important to the local ecosystem.

[2] Edward Barbier: is a Professor in the Department of Economics, Colorado State University and a Senior Scholar in the School of Global Environmental Sustainability