Environmental Governance in Kenya Archives - Silvica: Blog for Sustainable Development https://silvica.site/tag/environmental-governance-in-kenya/ Greening our world through content Thu, 04 Jun 2020 09:48:20 +0000 en-US hourly 1 https://wordpress.org/?v=6.7.1 https://i0.wp.com/silvica.site/wp-content/uploads/2019/05/cropped-silvica_image.jpg?fit=32%2C32&ssl=1 Environmental Governance in Kenya Archives - Silvica: Blog for Sustainable Development https://silvica.site/tag/environmental-governance-in-kenya/ 32 32 162136420 Review and Critique of EMCA as Kenya’s Principal tool of Environmental Governance https://silvica.site/review-and-critique-of-emca-as-kenyas-principal-tool-of-environmental-governance/ Sun, 28 Jul 2019 08:23:28 +0000 http://silvica.site/?p=503 By David OkulJuly 26, 2019 The Environmental Act (EMCA)1999 (revised 2015) is the framework for environmental management and conservation in Kenya. Among other things, EMCA provides a legal framework for the establishment of various institutions that are pertinent to environmental governance in Kenya. Some of the institutions include: National Environment Management Authority Public Complaints Committee […]

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By David Okul
July 26, 2019

The Environmental Act (EMCA)1999 (revised 2015) is the framework for environmental management and conservation in Kenya. Among other things, EMCA provides a legal framework for the establishment of various institutions that are pertinent to environmental governance in Kenya. Some of the institutions include:

  • National Environment Management Authority
  • Public Complaints Committee
  • National Environment Tribunal
  • National Environment Action Plan Committees
  • County Environment Committees

National Environment Management Authority is the principal institution in charge of implementing environmental-related policies and the overall supervision and coordination of environmental matters in Kenya. In general, the Act has 16 parts, 148 sections, and three schedules. Silvica has summarized and critiqued some of the sections of the EMCA Act

Note: This discussion focuses on EMCA (1999). A revision was done in 2015. The revision mainly targeted at streamlining the EMCA (1999) with the new Kenyan constitution that was promulgated in 2010.

 

 

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Part II: General principles

The Act acknowledges that every Kenyan has the right of a clean and safe environment and they have a duty to safeguard it. Subsection 3 (3) gives a person right to report to the high court for redress if ones feel his/her entitlements have been fringed upon. The High Court then makes a ruling in accordance with the principles of sustainable development. However, subsection 3 (4) directs that the plaintiff should demonstrate his/her actions are not frivolous, vexation or abuse of court process.

Part III: Administration

Section 4 subsection 1 of the EMCA 1999 establishes the National Environmental Council that consists of the minister of environmental matters, permanent secretary, public universities, research institutions, and business community, NGO representatives and Director-General. With the exception of the permanent secretary, all the other members are appointed by the minister. The major functions of the council are policy formulation set national environmental goals and objectives and promote cooperation between departments and local authorities. Section 4 (7) also establishes the National Environment Management Authority (NEMA). NEMA is mandated to exercise general supervision and coordination over all matters relating to the environment and is the principal instrument of the government in implementing all policies relating to the environment. The authority is managed by a board consisting of a chairman, permanent secretary, director general (all appointed by the president), seven members appointed by the cabinet secretary and secretary appointed by the secretary. The composition of the district and provincial environmental committees and Public Complaints Committee are also determined by the cabinet secretary.

The EMCA is made in a scalar approach e.g. Director-General has more and important powers than for example head of a committee and the committee needs in most cases assent from Director-General to make decisions. Emphasis is also put on territorial jurisdiction in EMCA. While scalar and hierarchical approaches makes easier delineation of duties and order in governance (Meadowcroft, 2002), emergent theories of good environmental governance such as one suggested by Bulkeley (2005) posits the notions of scalar hierarchies should not be read in terms of territorial extent, so that the ‘national’ is always ‘higher up’ the hierarchy than ‘the local’, but rather that the domination and subjugation of particular scales of (in this case) governing arrangements is part and parcel of the processes of scaling and rescaling. This suggests that further work on the politics of scale should pay particular attention to the ways in which relations of the hierarchy are constituted, constructed and contested.

Part IV: Environmental Planning

NEMA under section 37 (1) establishes the National Environmental Plan Committee which prepares after every five years a national environmental action plan for consideration and adoption by the national assembly. Subsequent subsections mandate provincial and district environmental committees to prepare actions plans that are incorporated into the national plan. The revision in 2015 align the committees to fit with the new administrative divisions of the new constitution, such as the counties.

Part V: Protection and conservation of the environment

The Act is explicit on the conservation of water resources in Kenya in section 42 and 43 and development in these areas is only possible after an Environmental Impact Assessment and written approval of the Director-General. Section 46 commands District Environmental Committees to identify areas in need of afforestation and reforestation in their areas. Directives on protection of hill and mountainous areas (47), forests (48), renewable energy (49), biological diversity and genetic resources (50-54), coastal zone (55) and stratospheric ozone (56) are also outlined in EMCA.

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

References and Resources

Alitsi, E. (2002). Important Treaties Kenya is a signatory to. Kenya NGO Summit 2002.

 

All Africa (2011). Minister issues warning on corruption. Retrieved on 7th Feb 2012 from, http://allafrica.com/stories/201006151293.html

 

Ansell, C.K. and Balsiger, J. (2009). The Circuits of Regulation: Transatlantic Perspectives on Persistent

Organic Pollutants and Endocrine Disrupting Chemicals. In: J. Swinnen, D. Vogel, A. Marx, H. Riss and

  1. Wouters (eds.), Handling Global Challenges: Managing Biosafety and Biodiversity in a Global World

– EU, US, California and Comparative Perspectives. Leuven Centre for Global Governance Studies,

Leuven, Belgium

 

Bulkeley, H. (2005) ’Reconfiguring environmental governance: towards a politics of scales and networks.’, Political geography., 24 (8). pp. 875-902.

 

EMCA (1999).Environmental Management and Cordination Act. Kenya Govt.

 

KARA (2012). Corruption at NEMA. Retrieved on 7th Feb 2012 from, http://www.kara.or.ke/index.php?option=com_content&view=article&id=243:former-nema-director-in-court-over-corruption-allegations&catid=34:update

 

Kimani (2010) Participatory Aspirations of Environmental Governance in East Africa’, 6/2 Law, Environment and Development Journal (2010), p. 200, available at http://www.lead-journal.org/content/10200.pdf

 

Meadowcroft, J. (2002). Politics and scale: some implications for environmental governance. Landscape and Urban Planning 61 (2002) 169–179.

 

Mireri C. and Latema S. (2010) Review of Environmental Governance in Kenya: Analysis of Environmental Policy and Institutional Framework. In Handbook of Environmental Policy (371-380) ed Meijer and Der Berg. Nova Science Publisher

Mukundi G (2006). The impact of corruption on governance: an appraisal of the practice of the rule of law in Kenya. University of Pretoria. PhD dissertation.

 

UNEP Yearbook (2010).  Environmental Governance. United Nations.

Vision 2030 Kenya document (2008). Kenyan Government

David Okul is a freelance writer, and a PhD student at a Kenyan university

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]]> 503 Environmental Governance and Multilateral Agreements https://silvica.site/environmental-governance-and-multilateral-agreements/ Fri, 26 Jul 2019 23:44:17 +0000 http://silvica.site/?p=499 By David OkulJuly 26, 2019 INTRODUCTION AND DEFINITION Environmental governance is a concept in political ecology and environmental management policy referring to defining elements and practices needed to achieve sustainability. In simpler terms, it is a whole set of rules, practices, and institutions concerned with environmental management. The term environmental governance has and can be […]

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By David Okul
July 26, 2019

INTRODUCTION AND DEFINITION

Environmental governance is a concept in political ecology and environmental management policy referring to defining elements and practices needed to achieve sustainability. In simpler terms, it is a whole set of rules, practices, and institutions concerned with environmental management. The term environmental governance has and can be defined in different ways depending on the scope and locus of decision making power (UNEP Yearbook, 2010). The United Nations defines environmental governance as follows;

‘ Multi-level interactions (i.e., local, national, international/global) among, but not limited to, three main actors, i.e., state, market, and civil society, which interact with one another, whether in formal and informal ways; in formulating and implementing policies in response to environment-related demands and inputs from the society; bound by rules, procedures, processes, and widely-accepted behavior; possessing characteristics of “good governance”; for the purpose of attaining environmentally-sustainable development.’

The Rio conference of 1992 gave the environmental management field a major impetus. Agenda 21 committed member states of the UN to sustainable management principles and showing the commitment.   The main drivers of environmental governance issues include consumption, economic growth, biodiversity, pollution, and agricultural production. Similarly, major environmental governance issues include climate change, soil deterioration, water, precautionary principle, nuclear risks among others.

The process of governing the rich and diverse natural resources across the globe is a complex challenge. The UN Environment relates issues of environmental governance to seven sustainable development goals that include:

  • Goal 1: No poverty
  • Goal 5: Gender equality
  • Goal 12: Sustainable Consumption and Production
  • Goal 13: Climate action
  • Goal 15: Life on Land
  • Goal 16: Peace Justice and strong institutions
  • Goal 17: Partnerships for the goals.

Environmental governance issues are mainly captured via agreements. There are over 1000 multilateral agreements, 1500 bilateral agreements and 300 other types of agreements on matters concerning the environment. A detailed database on environmental agreements is provided by International Environmental Agreement (IEA) database project of the University of Oregon.  Silvica names some of the main multilateral environmental conventions under Rio Conventions to include:

  • Convention on Biological Diversity (CBD)
  • Ramsar conventions of Wetlands
  • Convention of International Trade in Endangered species (CITES)
  • Basel Convention on the Control of and trans-boundary movement of Hazardous Wastes
  • United Nations Frameworks on Climate Change (UNFCC)

ENVIRONMENTAL GOVERNANCE IN KENYA

Kenya implemented a National Environmental Action Plan (NEAP) in 1994 that provided a benchmark for upscaling environmental management in Kenya (Mireri & Letema, 2010). The NEAP culminated to the Environmental Management and Coordination Act of 1999, which directs the National Environment Management Authority (NEMA) to exercise all the coordination and supervision of matters relating to the environment in Kenya and is the principal instrument of the government in implementing all the policies related to the environment.

Prior to the promulgation of the EMCA, environmental matters had no locus standi[1] in Kenya (Mireri & Letema, 2010). The Act has provided instruments for good environmental governance with the potential of providing a clean environment for all. From the definition of environmental governance, it is clear that the concept entails multi-level interactions between state and society. Nevertheless, the main major governance instrument in Kenya EMCA 1999 has also been a subject of significant critique.

[1] Locus standi: In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it.

References and Resources

Mireri C. and Latema S. (2010) Review of Environmental Governance in Kenya: Analysis of Environmental Policy and Institutional Framework. In Handbook of Environmental Policy (371-380) ed Meijer and Der Berg. Nova Science Publisher

Mukundi G (2006). The impact of corruption on governance: an appraisal of the practice of the rule of law in Kenya. University of Pretoria. PhD dissertation.

 

UNEP Yearbook (2010).  Environmental Governance. United Nations.

UN Environment. https://wedocs.unep.org/bitstream/handle/20.500.11822/7935/Environmental_Governance.pdf?sequence=5&isAllowed=y

David Okul is a freelance writer, and a PhD student at a Kenyan university

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