Enviromental Law Part 1

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Table of Contents
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Foreword ........................................................................................................... iii Dedication ........................................................................................................... vi Preface.................................................................................................................... ix Acknowledgements .............................................................................................. A!!reviations and Acronyms.............................................................................. ." A#thor $iogra%hies .............................................................................................. ..&& Introd#ction ......................................................................................................... ...&'
PART I: GENERAL AND FRAMEWORK PERSPECTIVES &. (once%t) F#nction and *tr#ct#re of +nvironmental ,aw (harles O. Okidi..-& -. +conomic Iss#es for +nvironmental and .eso#rce /anagement in 0enya 1ilfred 2yangena .................................................................................................. "3 4. The (ontin#ing .ole of (ommon ,aw in *#staina!le Develo%ment Al!ert /#mma...&&' 5. The Use of (riminal ,aw in +nforcing +nvironmental ,aw Patricia 0ameri6/!ote......................................................................................... &47 3. $ackgro#nd to 0enya8s Framework +nvironmental ,aw (harles O. Okidi................................................................................................... &3' '. An Overview of the +nvironmental /anagement and (o6ordination Act Anne 2. Angwenyi............................................................................................... & 4 . Instit#tional Arrangements for +nvironmental /anagement in 0enya $enson Ow#or Ochieng8....................................................................................... -& ". *ynchronising Physical Planning ,aw with the Framework +nvironmental ,aw .osemary 1achira ............................................................................................... -55
PART II: SECTORAL AND FUNCTIONAL ENVIRONMENTAL LAW 7. /anaging the Agrarian *ector for +nvironmental *#staina!ility 9. 1. O Okoth6Ogendo ....................................................................................... -3' &:. Forestry ,aw and the +nvironment in 0enya Francis D.P. *it#ma .; ........................................................................................... - : &&. ,and Ten#re and *#staina!le +nvironmental /anagement in 0enya Patricia 0ameri6/!ote......................................................................................... -7 &-. Aligning *ectoral 1ildlife ,aw to the Framework +nvironmental ,aw Patricia 0ameri6/!ote ......................................................................................... 4-& &4. <overning 1ater and *anitation in 0enya /igaiAkech.......................................................................................................... 457 &5. 1ise Use and *#staina!le /anagement of 1etlands in 0enya (ollins Odote ....................................................................................................... 4"5 &3. /ineral .eso#rces and the /ining Ind#stry in 0enya .o!ert 0i!#gi....................................................................................................... 5: &'. *ynchronising 0enya8s +nergy ,aw with the Framework +nvironmental ,aw 0ith#re kindiki.5-' & . Access to <enetic .eso#rces and $enefit6*haring in 0enya Patricia 0ameri6/!ote ..55" &". 0enya8s 2ational $iosafety Framework Patricia 0ameri6/!ote.5 5 &7. ,egal As%ects of /anagement of (oastal and /arine +nvironment in 0enya (harles O. Okidi...3:5
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PART III: INTERNATIONAL ASPECTS -:. +nvironmental ,aw of +ast Africa .o!ert A. 1a!#noha.335
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P efa!e
0enya) like most *#!6*aharan African co#ntries and other regions of the world) is confronted !y a myriad of environmental %ro!lems 6 more significant in a co#ntry whose economy is driven largely !y %rimary %rod#ction factors. The %#!lication of =+nvironmental <overnance in 0enya; Im%lementing the Framework ,aw= co#ld not have come at a !etter time. The !ook offers fresh insights and convergence of tho#ght on %ertinent iss#es and for the first time avails a coherent and holistic analysis of the environmental sit#ation in the co#ntry. The rigor with which the a#thors have delved into the legal framework #nder%inning key drivers of environment and nat#ral reso#rce sectors and attendant instit#tional im%ediments m#st !e a%%la#ded. *ince the enactment of +/(A in &777 and s#!se>#ent commencement in -:::) some %rogress has !een made in !ringing the law =to life= !#t m#ch more needs to !e done if the f#ll !enefits envisaged es%ecially in the coordination as%ects are to !e realised in terms of environmental %rotection and s#staina!le #se of the co#ntry8s nat#ral reso#rces. Altho#gh 0enya has !een an active %artici%ant in informing and infl#encing the international environment disco#rse over the %ast fo#r decades) the f#ll !enefits of this engagement remain rather sketchy at the national level %artly !eca#se of the m#ltifaceted and diverse nat#re of international %rocesses !#t also !eca#se of the still6 sha%ing national environment agenda and conc#rrently evolving governance str#ct#res and to this extent) o#r engagement in international %rocesses has remained largely =of di%lomacy val#e= and m#ch less a trigger of national conscio#sness on environmental concerns. This %#!lication gives #s a com%rehensive overview and historical %ers%ective on international environment governance and a !aseline for domestication and mainstreaming of the vario#s +nvironment (onventions and Protocols. /ore im%ortantly the !ook o#tlines key %rinci%les of s#staina!le
develo%ment 6 nota!ly the %rinci%le of s#staina!le #tilisation of nat#ral reso#rces and inter6generational e>#ity) integration of environmental exigencies into develo%ment %lanning and management and %#!lic %artici%ation in environmental matters among others. $#ilding on the s#!?ect of s#staina!le develo%ment) the text weaves a steam of tho#ghts on iss#es that are at the core of 0enya8s develo%ment and environmental %rotection im%eratives; namely the com%lex nex#s of agrarian %rod#ction system and re>#isite reforms to re6engineer drivers and f#nctions of the r#ral economy that have direct and %ervasive im%acts on environment and nat#ral reso#rce ca%ital. The >#estion of land ownershi% 6 which to a large extent drives and informs the mosaic of r#ral landsca%e %rod#ction systems and legal tools and instr#ments that can !e #sed to maximise land #se %otentials 6 is well artic#lated and identified as a critical ingredient in s#staina!le environmental management. For in the end) s#staina!le develo%ment is a twin o!?ective of economic growth and im%rovement of r#ral livelihoods on one hand and achieving so#nd environmental management@%rotection on the other. The single most a%%ealing attri!#te of this !ook is the a!ility of the a#thors to %#ll together in a single vol#me) critical iss#es that #nderlie the national develo%ment %rocess) !#ild cross6sectoral linkages and em!ed the environment agenda in a holistic %olicy legal) socio6economic and ecological context 6 and synthesis done s#%remely well. The message of the a#thors comes o#t clearly that #ntil we remove the legal and therefore instit#tional overla%s or divergences) and align sectoral laws to the Framework ,aw A real !enefits of +/(A will remain el#sive. The s%ecific iss#es in this regard are o#tlined and actions re>#ired identified. As the /inistry res%onsi!le for environment #nder whose %#rview the 2ational +nvironment and
/anagement A#thority B2+/AC and other +/(A instit#tions A P#!lic (om%laints (ommittee BP(C) the 2ational +nvironment Tr#st F#nd B2+TFU2DC and 2ational +nvironment Tri!#nal B2+TC discharge their mandates) we are sha%ing and streamlining the /inistry strategies to synergise the framework B+/(AC law in fo#r f#ndamental ways; &. .eview of the %olicy instr#ments with a view to form#lating a res%onsive and overarching 2ational +nvironment Policy as a !edrock of the framework law and %#sh for foc#sed integration of sectoral nat#ral reso#rce %olicies to minimiDe overla%s and anchor an instit#tional framework within which f#t#re %olicy and legal reforms in environment@nat#ral reso#rce sectors seek convergence and consistency with the framework lawE -. Use %rovisions of +/(A to develo% %ractical tools for ena!ling and ec#ring environmental governance %rimarily targeting grassroots level interventions to halt %ervasive environmental degradation) and engender em%owering
%rocesses of %#!lic %artici%ation in environmental management 6 !y seeking to demonstrate how good environmental governance B=!est %ractices=C) is key to s#staina!le livelihoodsE 4. /o#nt an aggressive environmental mainstreaming cam%aign across critical sectors of the economy and %rod#ction sectors 6 to %#sh sectoral iss#es Bagric#lt#re) livestock and fisheries) water) mineral reso#rces) forestry) wildlife and to#rism) energy and infra6str#ct#reC and ind#stry from the %olicy @legal domains to the %ractical domains of gro#nd im%lementation. This may !e a more realistic %ath if making %rogress in terms of at least creating and ca%italiDing on instit#tional synergies arising from diverse
mandates) and the wealth of ideas in Environmental Governance in Kenya: Implementing the Framework Law, are of considera!le val#e in this %rocessE and 5. .e6engineering of %olicy and instit#tional leadershi% within the /inistry of +nvironment and /ineral .eso#rces thro#gh esta!lishment of a lean and efficient +nvironment Directorate to %rovide an oversight to im%lementing agencies and ro#tine %olicy advice to the /inister and hence leverage a more effective national environment agenda within which the !road mandates of +/(A as a framework law are dis%ensed and international environment disco#rse anchored. Overall) this !ook is a commenda!le work of scholarshi% 6 rigoro#s in treatment witho#t !eing overly academic. It is a great reference and ill#minating material for field managers) and an insightf#l treatise for st#dents of environmental science and nat#ral reso#rce managementE well tho#ght o#t synthesis of iss#es at the core of s#staina!le management of environment and nat#ral reso#rces in 0enya and an extremely val#a!le tool for %olicy makers. The !ook re%resents a %aradigm shift) are6thinking of the way in which we view the environment and nat#ral reso#rcesE and co#rageo#sly %oint to the %ath of s#staina!ility and %#tting the challenge to the %olicy makers and %olitical leadershi%. I firmly !elieve the !ook has s#cceeded in %#shing the frontiers of national dialog#e in environmental governance to new levels. I am hono#red to !e invited and to associate myself with this fresh %ers%ective on 0enya8s environment and nat#ral reso#rce ca%ital 6 and most %rofessionally edifying to
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add my voice !y endorsing Environmental Governance in Kenya: Implementing
the Framework Law! P of "a#es Le$%l%s&o Ole K%'%a(% Permanent *ecretary /inistry of +nvironment and /ineral .eso#rces
Acknowledgements
The com%letion of this !ook has !enefited from the in%#ts and co6o%eration of several individ#als and instit#tions. 1hile it is not %ossi!le to list all of them here) we wo#ld like to %artic#larly acknowledge a few key ones; The Instit#te for ,aw and +nvironmental <overnance BI,+<C %rovided administrative and co6ordinating role for the %ro?ect. They also managed the grant) which made the research and %#!lication of this !ook %ossi!le. 1e es%ecially acknowledge the role and contri!#tion of (ollins Odote) who led the I,+< team that incl#ded .o!ert 0i!#gi) Pa#line /ak#tsa) Felma /ashedi and (hrista!el 2yamwaya. 1e also acknowledge the s#%%ort of the Instit#te for Develo%ment *t#dies at the University of 2airo!i) where (A*+,AP is c#rrently hosted) for its role in s#%%orting the %#!lication of this !ook. G#dith 2dirang# of the Instit#te gave very #sef#l administrative and ty%ing s#%%ort at critical times d#ring the %rocess of %re%aring the man#scri%t. The De%artment for International Develo%ment BDfIDC of the United 0ingdom deserves s%ecial acknowledgement for %roviding the financial reso#rces that have made this %#!lication %ossi!le. This work involved many a#thors. They all showed dedication and %rofessionalism in %re%aring their write6#%s and in dealing with the comments from the editors and other stakeholders. 1e thank all of them. O#r a%%reciation too goes to the editors for their technical g#idance and metic#lo#s efforts in ens#ring that the final %a%ers were of high >#ality. 1e also thank all those who attended the %eer review worksho% at ,#kenya <ateway
.esort and those who gave their comments to earlier drafts of the cha%ters; Donald 0aniar#) Gohn 2yaoro) Gohn 2giri) Frederick 2yang) 2yoka!i <itahi) *am#el /#riithi) $ernard 0aaria) Ali /ohamed) Odhiam!o /akoloo) 2ancy 0arigith# and Owiti 08Ak#m#. Their incisive comments and ex%erience in the environmental field greatly enriched the cha%ters and ens#red that this !ook has relevance for %ractitioners) %olicy makers and scholars. CO. Okidi . Kameri!"#ote "igai $kech $%g%&t '(()
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Abb e)%at%ons an* A! on'#s

A(T* African (entre for Technology *t#dies AIA Advance Information Agreement $/U $each /anagement Unit $OD $iological Oxygen Demand (A*+,AP (entre for Advanced *t#dies in +nvironmental ,aw and Policy ($D (onvention on $iological Diversity ((O, (oordinating (ommittee of the ODone ,ayer (+, (ommission on +nvironmental ,aw (<IA. (ons#ltative <ro#% on International Agric#lt#ral .esearch (P.s (omm#nal Pro%erty .eso#rces (*D (ommission on *#staina!le Develo%ment D( District (ommissioner DD( District Develo%ment (ommittee D+O District +nvironment Officer DoG De%artment of G#stice D.*.* De%artment of .eso#rce *#rvey and .emote *ensing
+A.P +nvironmental Assessment and .eview Process ++H +xcl#sive +conomic Hone +IA +nvironmental Im%act Assessment +I* +nvironmental Im%act *tatement +/(A +nvironmental /anagement and (o6ordination Act +PA +nvironment Protection Agency +.A +nvironmental .isk Assessment +.$ +lectricity .eg#latory $oard +.( +nergy .eg#latory (ommission FAO Food Agric#lt#ral Organisation FD Forest De%artment <DP <ross Domestic Prod#ct <PA <lo!al Programme of Action <P* <lo!al Positioning *ystem IA.( International Agric#lt#ral .esearch (entre I($P International (o#ncil for $ird Preservation I(+, International (o#ncil of +nvironmental ,aw I(G International (ommission of G#rists
I(.AF International (entre for Agro6Forestry ID* Instit#te for Develo%ment *t#dies I,+< Instit#te for ,aw and +nvironmental <overnance I,.I International ,ivestock .esearch Instit#te I/(+ Inter6/inisterial (ommittee on +nvironment I/(O Inter6governmental /aritime (ons#ltation Organisation BI/(OC IPP Intellect#al Pro%erty Protection IPPs Inde%endent Power Prod#cers IP.s Intellect#al Pro%erty .ights
ITP<.FA International Treaty on Plant <enetic .eso#rces for Food Agric#lt#re ITI Individ#ally Transfera!le I#otas IU(2 International Union of (onservation of 2at#re 0A.I 0enya Agric#lt#ral .esearch Instit#te 0+F.I 0enya Forestry .esearch Instit#te 0+/F.I 0enya /arine Fisheries .esearch Instit#te 0+/.I 0enya /edical .esearch Instit#te 0+2<O 0enya +nergy and +nvironment Organisation 0+P9I* 0enya Plant 9ealth Ins%ectorate *ervice 0+T.I 0enya Ty%anosomiasis .esearch Instit#te 0F* 0enya Forest *ervice 0IPI 0enya Ind#strial Pro%erty Instit#te 0/A 0enya Association of /an#fact#rers 02PO 0enya 2ational Parks Organisation 0P,( 0enya Power and ,ighting (om%any 01* 0enya 1ildlife *ervice ,/Os ,iving /odified Organisms ,2(s ,ocal 2ative (o#ncils ,FFO ,ake Fictoria Fisheries Organisation /TA /aterial Transfer Agreements 2ADI/A 2ational Disaster /anagement 2((0 2ational (o#ncil of (h#rches of 0enya 2(*T 2ational (o#ncil for *cience and Technology 2+AP 2ational +nvironmental Action Plan 2++/A 2ational +nvironment +nhancement and /anagement 2+PA 2ational +nvironmental Policy Act 2+* 2ational +nvironment *ecretariat
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2+T 2ational +nvironmental Tri!#nal 21(P( 2ational 1ater (onservation and Pi%eline (or%oration P$.s Plant $reeders8 .ights P(( P#!lic (om%laints (ommittee P++( Pro?ect +xternal +val#ation (ommittee P<.s Plant <enetic .eso#rces PP(*(A Permanent Presidential (ommission on *oil (onservation and Afforestation P*( Petrole#m *haring (ontract PFPO Plant Fariety Protection Office .$DAs .iver $asin Develo%ment A#thorities T.IP* Trade .elated Intellect#al Pro%erties U2(+D United 2ations (onference on +nvironment and Develo%ment U2(9+ United 2ations (onference on the 9#man +nvironment U2+P United 2ations +nvironmental Programme U2FAO United 2ations Food Agric#lt#ral Organisation U2F(( United 2ations Framework (onvention on (limate (hange UPOF International (onvention for the Protection of 2ew Farieties of Plants 1A$ 1ater A%%ortionment $oard 1/O 1orld /eteorological Organisation
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A#thor $iogra%hies
&. Albe t M+##a is an Associate Professor at the University of 2airo!i and an Advocate of the 9igh (o#rt of 0enya. 9e was formerly a mem!er of the 2ational +nvironment Tri!#nal. 9e also %ractices law in 2airo!i. 9e holds an
,,.$. LL,M and Ph.D. Email addre&&: ceyla*n#net.co.ke -. Anne N, An$-en'% is an advocate of the 9igh (o#rt of 0enya. As a legal %ractitioner) she also serves as the 9ead of ,egal *ervices De%artment with the 2ational +nvironment /anagement A#thority 6 0enya. *he holds a $achelor of ,aws B,,.$ 6 University of 2airo!iC) a /aster of *t#dies in +nvironmental ,aws B/*+, 6 Fermont ,aw *choolC) a /asters in ,aw and Di%lomacy B/A,DFletcher *chool of ,aw and Di%lomacyC) in addition to !eing a (hevening Fellow in <overnance and +nvironmental Democracy. /s. Angwenyi contin#es to write and %resent vario#s %a%ers in the field of environmental law and governance !oth at national and international fora. Email addre&&: $nne+$ngwenyi*al%mni.t%,t&.ed% 4. .enson O-+o O!&%en$ is an advocate of the 9igh (o#rt of 0enya) and a researcher with %artic#lar interest on legal) %olicy and instit#tional mechanisms for managing the environment and s#staina!le develo%ment. 9e holds a $achelor of ,aws B,,$C and /aster of ,aws B,,/C degrees from the University of 2airo!i. 9e is a legal %ractitioner and also serves as a director at the Instit#te for ,aw and +nvironmental <overnance BI,+<C. Email addre&&: #.ochieng*ilegkenya.org 5. C&a les O, O/%*% is a Professor of +nvironmental ,aw) Director of (entre for Advanced *t#dies in +nvironmental ,aw and Policy B(A*+,APC and .esearch Professor at the Instit#te for Develo%ment *t#dies) University of 2airo!i. 9e is formerly a *enior ,egal Officer and Task /anager of Pro?ect on +nvironmental ,aw and Instit#tions in Africa BPAD+,IAC at United 2ations +nvironmental Programme BU2+PC. 9e was Dean of the *chool of +nvironmental *t#dies and Professor of +nvironmental ,aw at /oi University. 9e is a Fo#ndation /em!er of <overning (o#ncil of IU(2 Academy of +nvironmental ,aw and Fellow of the African Academy of *ciences and 0enya 2ational Academy of *ciences. Prof. Okidi is a grad#ate of Alaska /ethodist University B&7 :C and received
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his Ph.D in %#!lic international law and environmental law from The Fletcher *chool of ,aw and Di%lomacy at T#fts University in U*A. B&7 3C. 9e has %#!lished and lect#red widely on International and (om%arative +nvironmental ,awE ,aw of the *eaE International 1ater ,awE and (a%acity !#ilding and served as a cons#ltant on these s#!?ects to national) regional and glo!al instit#tions. Email: charle&okidi*yahoo.com 3. Coll%ns O*ote is an advocate of the 9igh (o#rt of 0enya. 9e received his ,,.$ and ,,/ from the University of 2airo!i and is c#rrently %#rs#ing P9D st#dies in environmental ,aw at the same University. 9e is a director of the Instit#te for ,aw and +nvironmental <overnance BI,+<C) a 2airo!i !ased 2<O and coordinated the access to G#stice Pro?ect #nder which this !ook was %#!lished. (ollins8 research interests are in the areas of regional develo%ment) governance) international h#manitarian law) %ro%erty theory) s#staina!le develo%ment and management of nat#ral reso#rces. Email: c.odote*ilegkenya.org, ccodote*yahoo.com '. F an!%s D,R S%t+#a is an advocate of the 9igh (o#rt of 0enya) and an academic with research and teaching interests in +nvironmental ,aw) P#!lic International ,aw) ,aw of the *ea) and legal As%ects of (onflict .esol#tion and (risis /anagement. 9e holds a $achelor of ,aws B,,.$C and /aster of ,aws B,,./C degree from the University of 2airo!i) and a /aster of Arts in ,aw and Di%lomacy B/A,DC and a Doctor of Philoso%hy BPh.DC degree from the Fletcher *chool of ,aw and Di%lomacy) T#fts University) U*A. Email: -it%ma*%on#i.ac.ke . 0,W,O, O/ot&1O$en*o is a Professor of P#!lic ,aw) University of 2airo!i) Fellow of the 0enya 2ational Academy of *ciences and a Fellow of the 1orld Academy of Art and *cience. 9e is also a/em!er of the International Association of (onstit#tional ,aw and the IU(2 (ommission on +nvironmental ,aw. 9e
was recognised as having contri!#ted thro#gh his writings to the award of the -:: 2o!el Peace PriDe to the Intergovernmental Panel on (limate (hange BIP((C. 9e has researched and ta#ght %ro%erty law) nat#ral reso#rces law) agrarian law) constit#tional systems and related s#!?ects for over 4: years at the University of 2airo!i. 9e has also ta#ght at the $oston *chool of law) 2ew Jork University) University of Florida and also given lect#res on these areas in many Universities in Africa) +#ro%e and the United *tates. 9e has %#!lished over &:: man#scri%ts and %a%ers in international ?o#rnals) text!ooks and
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%eriodicals. 9e has steered or %artici%ated in many national commissions and task forces on constit#tional) land and legal reform) the AU and U2 agencies and !een a cons#ltant to many governments in +ast) (entral and *o#thern Africa on land and agrarian iss#es. Email: okoth!ogendo*yahoo.com ". K%t&+ e K%n*%/% is c#rrently the *ecretary for 2ational (ohesion in the /inistry of G#stice and (onstit#tional Affairs. 9e has served as Associate Dean and *enior ,ect#rer of ,aw at the *chool of ,aw) University of 2airo!i. 9is areas of s%ecialiDation in teaching) research and cons#ltancy incl#de %#!lic international law) international environmental law) h#man rights) governance and international %eace and sec#rity law. 9e holds a $achelor of ,aws B,,. $C) /aster of ,aws B,,./C and Ph.D degrees and is an advocate of the 9igh (o#rt of 0enya. Email: kith%re*mail.%on#i.ac.ke, kkindiki*yahoo.co.%k 7. M%$a% A/e!& is a *enior ,ect#rer at the *chool of ,aw) University of 2airo!i and an advocate of the 9igh (o#rt of 0enya. 9e has %#!lished widely on %#!lic %roc#rement) healthcare) %olicing) %rivatisation) ?#dicial review) !iotechnology) international trade and develo%ment) and the %rotection of c#stomary land rights. 9is research interests are administrative law) %#!lic law and %rivatisation) the %olitical economy of reg#lation) %ro%erty theory) and trade and develo%ment. 6 Email: migai*yahoo.com
&:. Pat %!%a Ka#e %1Mbote is an Associate Professor of ,aw at the De%artment of Private ,aw) *chool of ,aw) University of 2airo!i. *he st#died law in 2airo!i) 1arwick) Him!a!we and *tanford. *he is also an advocate of the 9igh (o#rt of 0enyaE /em!er of the 0enya 2ational Academy of *ciencesE and (hair of the *eeds and Plant Farieties Tri!#nal. *he has %#!lished widely in the areas of international law) environmental law) women8s rights and %ro%erty rights. 9er ma?or %#!lications incl#de; <lo!alisation and +nvironmental (hallenges; .econce%t#alising *ec#rity in the -&st (ent#ry B9ans <irnter $ra#ch) Gohn <rin) (Deslaw /es?asD) 2avnita (hadha $ehera) $echir (ho#ro#) Urs#la Oswald *%ring) P. 9. ,iotta) Patricia 0ameri6/!ote B+ds.C B$erlin 6 9eidel!erg A 2ew Jork 6 9ong 0ong 6 ,ondon 6 /ilan 6 Paris 6Tokyo; *%ringer6Ferlag) -:: CE ,and Use for *#staina!le Develo%ment B2. (halifo#r) P. 0ameri6/!ote) ,.,9ye K G. 2olon B+ds.C B(am!ridge University Press) 2ew Jork B-:: C and Pro%erty .ights and $iodiversity /anagement in 0enya) A(T* Press) 2airo!i B-::-C. Email addre&&: pkameri!m#ote*ielrc.org. /e#&ite: www.ielrc.org &&. Robe t Ale2 Wab+no&a holds an ,,/ from /akerere University) 0am%ala)
s%ecialising in +nvironmental ,aw) and is an Advocate of the (o#rts of G#dicat#re of Uganda. 9e worked as a Princi%al *tate Attorney in the /inistry of G#stice) Uganda and #ntil -::5) was the *enior ,egal (o#nsel in the 2ational +nvironment /anagement A#thority B2+/AC of Uganda. 9e is c#rrently legal officer at U2+P) 2airo!i. 9e is well versed in regional harmonisation of environmental laws and %olicies in +ast Africa) having made his contri!#tions in a tri%artite ca%acity as a .eso#rce Person) (ons#ltant and <overnment ,egal +x%ert. In this regard) he was involved in the develo%ment and harmonisation of environmental laws in +ast Africa) %re%aration of the Treaty for the +ast African (omm#nity) drafting of Protocols on +nvironment and 2at#ral .eso#rces and ,ake Fictoria) among other instr#ments. 9e
extensively cons#lted #nder the a#s%ices of U2+P) U2DP) FAO) IU(2) DFID and <overnments of Uganda and 0enya) among others. Email: ro#ert.wa#%noha*%nep.org &-. Robe t K%b+$% is a lawyer) an advocate of the 9igh (o#rt of 0enya and a researcher in environmental law foc#sing on legal and %olicy governance mechanisms of vario#s land #ses to ind#ct rationality and s#staina!ility. 9e holds a $achelor of ,aws B,,.$C and a /aster of ,aws B,,./C degree from the University of 2airo!i. 9e is a T#torial Fellow at the *chool of ,aw) University of 2airo!i Bc#rrently on st#dy leaveC and a Doctor of ,aws B,,.DC candidate at the Fac#lty of ,aw) University of Ottawa) (anada. E!mail $ddre&&: rki#%()0*%ottaioa.ca &4. Rose#a ' Wa!&% a is an #r!an and regional %lanner who has worked as a %rofessional and %#!lic manager for thirty three years in the field of land #se %lanning and land %olicy. *he was the director of %hysical %lanning De%artment in the 0enya government and coordinator of the form#lation of the national land %olicy. (#rrently she has retired from civil service and works as a cons#ltant in areas of s#staina!le develo%ment) land #se %lanning and land %olicy. *he holds a masters degree in Ur!an and .egional Planning from the University of 2airo!i Email addre&&: rwangariw*yahoo. com &5. W%lf e* N'an$ena is a lect#rer at the *chool of +conomics) University of 2airo!i. 9e holds a Ph.D in +nvironmental and .eso#rce +conomics from <othen!#rg University) *weden. 9e also serves as the co6ordinator of the +nvironment for Develo%ment B+fD60enyaC ho#sed within 0enya Instit#te for P#!lic Policy .esearch and Analysis B0IPP.AC. The +fD@0IPP.A initiative
aims to im%rove the welfare of %oor %eo%le in 0enya) thro#gh the a%%lication of +nvironmental +conomic tools in %olicy making. Email addre&&: 1yangena+2%il,red*%on#i.ac.ke
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Introduction
This !ook analyses and a%%raises environmental law in 0enya with a view to harmonising existing sectoral stat#tes with the framework law. The #ltimate o!?ective is to s#%%ort internal harmonisation of the cor%#s of environmental law in 0enya. The enactment of a framework environmental law in TanDania in -::5 introd#ces an attractive challenge for st#dents of environmental law to em!ark on an a%%raisal and harmonisation of that law with the co#nter%arts in Uganda B&773C and 0enya B&777C. *#ch a %ro?ect has merits. On the other hand) the st#dents sho#ld !e aware of the necessity to also esta!lish the two6way a%%raisal) which event#ally c#lminates in amendments of the sectoral stat#es and the framework law to remove the inconsistencies antici%ated in *ection &5" of 0enya8s +nvironmental /anagement and (o6ordination Act) &777. The farthest o#tside national stat#tes that it intends to go is seeking harmony !etween the national stat#te and environmental treaties of the +ast African (omm#nity. Analysis of the different national stat#tes is done with a view to !ringing them in conformity with the regional treaty and %rotocols made there#nder. This is !eca#se a treaty) %ro%erly entered into) is a higher legal order than national laws. The decade of &7 : s#sheredinanewe%ochintheglo!alsearchforacom%rehensive and effective !ody of national environmental law. There emerged a system of framework environmental law as stat#tes %roviding for minim#m re>#irements for environmental %lanning and management) incl#ding %reca#tionary meas#re) and sanctions and %roced#res for enforcement. In addition) the framework laws) at !est) %rovided for overarching instit#tional machineries with their %roced#res for co6ordination of im%lementation of national environmental law and for intervention with sectoral agencies) where necessary) for com%rehensive enforcement. $y the end of &7":s) nearly ten African co#ntries had ado%ted framework
environmental laws at different levels of so%histication. In some instances) s#ch as TanDania) the stat#te in &7"4 fell so far short of framework law that fresh efforts had to !e mo#nted) c#lminating in the enactment in -::5. 0enya8s false start in &7"- led to a draft !ill re?ected !y (a!inet. 0enya is now in the leag#e of a!o#t 5- African co#ntries that have enacted framework environmental law once the +nvironment /anagement and (o6ordination Act B+/(AC was ado%ted in Decem!er &777) receiving Presidential Assent on ' Gan#ary -::: and the date of commencement as &5 Gan#ary -:::. From that date) it is ex%ected that all sectoral laws m#st !e
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reviewed or amended to ens#re that they are consistent with the re>#irements of the +/(A. *ection &5" of +/(A states as follows;
$ny written law, in ,orce immediately #e,ore the coming in to ,orce o, thi& $ct, relating to the management o, the environment &hall have e,,ect &%#3ect to modi,ication a& may #e nece&&ary to give e,,ect to thi& $ct, and where the provi&ion& o, any &%ch law con,lict with any provi&ion& o, thi& $ct the provi&ion& o, thi& $ct &hall prevail.
This is a feat#re ex%ected in all framework environmental laws. The conse>#ence is that sectoral stat#tes are to !e amended) revised or reformed where it is not s#fficient to sim%ly =read= or constr#e s#ch laws to deli!erately avoid that inconsistency. Pro!a!ly no African co#ntry has done this !etter than Uganda. After enactment of the framework stat#te in &773) Uganda made some deli!erate efforts in that direction and ado%ted) inter alia, the 1ater Act of &773) 1ildlife Act of &77') Forests Act of -::&) /ining Act of -::4) 2ational Forestry and Planting Act of &77' as vario#sly emended) ,ocal <overnment Act of -::4) and several im%lementing reg#lations. 1e !elieve that there are other Ugandan stat#tes #nder that category. $oth 0enya and TanDania need to move in this direction and at a m#ch faster rate if they are to effectively im%lement their o!ligations #nder the Treaty for the +sta!lishment of +ast African (omm#nity of &777) es%ecially the whole of (ha%ter &7E the Protocol on *#staina!le Develo%ment of ,ake
Fictoria $asin) -::4E and the draft Protocol on +nvironment and 2at#ral .eso#rces) which may !e decided #%on later this year. *#ch revisions or amendments are also im%erative for efficacio#s im%lementation of national environmental law. This !ook %rovides a critical analysis and a%%raisal of sectoral laws from three s%ecific %ers%ectives. First and foremost) it seeks to identify any inconsistencies of s#ch stat#tes with +/(A. The net o#tcome will !e recommendations for amendments or act#al reform of the sectoral law. *econdly) each sectoral st#dy a%%raises the instit#tional %rovisions and %ractice to ascertain their s#ita!ility for efficacio#s im%lementation of the stat#te itself and vi& a vi& +/(A and its machinery. The third %ers%ective is that the analysis and a%%raisal take the national environmental %olicy into acco#nt. This r#!ric is the direct link of environmental law with governance. There is an #rgent need for 0enya to review and revise sectoral laws to remove any inconsistencies with the framework law. This may !e a h#ge task for the relevant government agency) namely the 2ational +nvironment /anagement A#thority B2+/AC) which event#ally s#!mits draft revisions to the Attorney6<eneral. The task is %artic#larly h#ge !eca#se identifying %rovisions that need amendment and for the many sectoral stat#tes is a mon#mental task. This !ook takes on the critical task of caref#l analysis and a%%raisal. <iven the
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#rgent need for this %#!lication) it has !een %re%ared thro#gh team6work rather than !y one a#thor. Its o!?ectives may !e s#mmarised as follows; BaC Presenting the c#rrent stat#s of 0enya8s environmental law. B!C Availing to 0enyan law6makers reasoned recommendations for harmonising the framework environmental law with the sectoral stat#tes and for removing inconsistencies. BcC Facilitating the s%eedy revision of the stat#tes and) th#s) im%rove harmonio#s im%lementation of environmental law in 0enya. BdC Availing an #% to date scholarly text on environmental law for teaching and
research at all levels. BeC *howing the relation !etween 0enya8s framework environmental law and environmental laws of +ast Africa. The whole st#dy is in three %rinci%al %arts. The first one is the general %ers%ectives setting o#t the context and harmonising the o!?ectives and voca!#lary. The to%ics incl#de the general conce%t) f#nction and str#ct#re of environment lawE identification of key environmental %ro!lems in 0enyaE the role of common law in s#staina!le environmental managementE and the #se of criminal law in enforcing environmental law. Others incl#de the !ackgro#nd to 0enya8s framework environmental lawE instit#tional arrangements for environmental management in 0enyaE and the role of %hysical %lanning in im%lementing +/(A. These %a%ers %resent the context within which cha%ters in Part II are analyDed. Part II foc#ses on analysis and a%%raisal of select sectoral laws) identifying areas that re>#ire amendment and@or revision with a view to harmonising or a%%roximating them with the framework law or +/(A. The sectoral laws covered incl#de; agrarianE wildlifeE landE wetlandsE waterE mineralsE forestsE !iodiversity and coastal and marine environmental law. 1hile we are aware) for instance) that the Forests Act -::3 and the 1ater Act -::- made attem%ts to incl#de %rovisions consistent with +/(A and that the Physical Planning Act has %rovisions on environmental im%act assessment) we consider this com%rehensive review as im%erative for overall harmonisation. Part III on international as%ects attem%ts to analyDe the environmental law of +ast Africa to examine the s#!6regional treaties) %artic#larly the Treaty for the +sta!lishment of +ast African (omm#nityE Protocol on the (#stoms UnionE Protocol on *#staina!le Develo%ment of ,ake Fictoria $asinE (onvention on ,ake Fictoria Fisheries OrganisationE and the Protocol on +nvironment and 2at#ral .eso#rces.
Other instr#ments may !e identified and !e examined in relation to +/(A. The
%rimary foc#s is on environmental treaty law of +ast African (omm#nity) !#t consideration has !een given to case law in the region.
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Part I GENERAL AND FRAMEWORK PERSPECTIVES

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Chapter 1
Concept, Function and Structure of Environmental Law

(9A.,+* O. O0IDI
Introduction
This cha%ter %resents a !road !r#sh descri%tion of the conce%t and f#nction of environmental law. The %#r%ose is to %rovide working definitions of environment) its tools of management and the str#ct#re of associated ?#ridical arrangements) which sets the stage for disc#ssion of s%ecific themes in national environmental law. The cha%ter %rovides a !asis for %ositioning the other cha%ters in this vol#me. *ection - %rovides the conce%t of environment and the key management conce%ts that) of necessity) s#ggest the meaning of environmental law. It is from the %remise set o#t in these definitions that we sho#ld event#ally find the f#nction of environmental law. *ection 4 %rovides the f#nctions of environmental law while *ection 5 dwells on the !ackgro#nd to environmental law and %oints o#t that modern environmental stat#tes are !#ilt on fo#ndations of common law and civil law doctrines. The *ection is very limited in sco%e) %erforming the f#nction of %ositioning the common law doctrines and) th#s) setting o#t the framework for s#!se>#ent %a%ers. *ection 3 %rovides a !rief o#tline of the evol#tion of environmental stat#tes. Today) the %rinci%al str#ct#re of stat#te law on
environmental law com%rises the framework environmental law) sectoral stat#tes and im%lementing reg#lations. Initially) the main !ody of stat#tes were sectoral laws with im%lementing reg#lations) all !ased on %#rs#it of either %reservation or %rod#ctivity and governed !y command and control legal regimes. This *ection !riefly descri!es that evol#tionary %rocess to the advent of framework environmental law encom%assing regimes of %lanning) management) fiscal incentives and %enal sanctions. A few co#ntries that have enacted framework laws are identified. At the national level) the next category of classification of environmental norms is constit#tional entrenchment. G#st like not every co#ntry has ado%ted framework environmental law) it is similarly tr#e that not all co#ntries have entrenched environmental %rovisions fo#nd in national constit#tions. 0enya has not. *ection ' will) nevertheless) set o#t different forms of environmental %rovisions fo#nd in national constit#tions. It is antici%ated that some of the cha%ters in this vol#me will disc#ss) to different degrees) the national constit#tional %rovisions on their res%ective themes. *imilarly) this !ook sho#ld offer exam%les and ex%eriences that
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0enya can t#rn to as it moves to a new constit#tional dis%ensation. There is a !road interface !etween national laws and the treaty regime) com%rising general %rinci%les of environmental law. The so#rces are diverse) some of them having evolved or ens#red legitimacy from solemn declarations in international fora s#ch as the United 2ations fora. /any of them have ass#med %ers#asive legal force at national and international levels. In several cases) the %rinci%les have !een incor%orated into national stat#tes or environmental ?#ris%r#dence. This cha%ter will disc#ss the %rinci%les in *ection ) th#s allowing s#!se>#ent a#thors to show where the %rinci%les have fo#nd ex%ression either in national stat#tes or in treaty law.
*ection " will then %rovide a !road o#tline of treaty law on environment as a %rominent com%onent of the str#ct#re of environmental law) allowing different cha%ters to ex%o#nd on where they relate to 0enyan laws and %ractice. Th#s) (ha%ter -: of this !ook on the +nvironmental ,aw of +ast Africa will disc#ss in detail what will !e o#tlined in the %resent cha%ter. *ection 7 will offer some !road concl#sions to the cha%ter. Con!e(t of En)% on#ent Mana$e#ent an* t&e La1hile ex%laining the conce%t) f#nction and str#ct#re of environmental law) it is essential that a working definition !e %rovided for the term environment. *imilarly) we %rovide working definitions of key conce%ts in environmental management) s#ch as pre&ervation and con&ervation and how these relate to s#staina!le develo%ment. It will !e shown finally that the f#ndamental f#nction of environmental legislation is to ens#re that #tilisation or management of the environment ens#res inter6generational e>#ityE that the %resent generation does not ?eo%ardise the interest of f#t#re generations. Thinking of a definition of 4environment= easily reminds one of the old tale a!o#t an ele%hant and seven !lind men. +ach of the men characterised an ele%hant according to which %art of the ele%hant8s !ody one to#ched and each was #na!le to %erceive the whole animal they were #na!le to see. *o in the case of environment) each disci%line tends to characterise it according to the s#!?ect they are familiar with. Those from %#!lic health field conceive of environment largely in terms of %oll#tion and environmental health. Those from agric#lt#rerelated fields conceive of environment from the angle of land #se) %erha%s to incl#de forestry. On the other hand) ecologists will invaria!ly think of environment in terms of flora and fa#na to the extent that some forget the land on which these grow. It is ?#st %ossi!le that the a#thors of the other cha%ters in this vol#me may carry diverse inter%retations of the word environment. It is known) for instance) that *ection - of the
+nvironmental /anagement and (o6ordination Act B+/(AC &777 constr#es environment to incl#de =...the %hysical factors of the s#rro#nding of h#man !eings incl#ding land) water)
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atmos%here) climate) so#nd) odo#r) taste) the !iological factors of animals and %lants and the social factors of aesthetics and incl#des !oth the nat#ral and the !#ilt environment.= The first %ro!lem with this definition is that it is anthro%ocentric. Does environment not exist at the two %oles where there are no h#man !eingsL Or how far does the s#rro#nding of h#man !eings extendL The second %ro!lem is that it attem%ts en#meration of what are encom%assed #nder the term =environment=) witho#t %#r%orting to !e exha#stive. In that effort) the definition !ecomes a !it convol#ted even tho#gh one is event#ally a!le to gras% the sco%e of the definition. As is always the case in a legal text) the a#thors here tried rather des%erately to !e incl#sive and exha#stive and that has its %ro!lem of lack of elegance and clarity) even tho#gh that is not fatal to the attem%ted comm#nication. The message here is that there co#ld !e other definitions that may !e !oth clearer) and that may not contradict the s%irit of +/(A definition. For instance) in &77& the Goint 1orking <ro#% convened !y the (ommission on +nvironmental ,aw B(+,C of the 1orld (onservation Union BIU(2C and International (o#ncil of +nvironmental ,aw BI(+,C) in their Draft International (ovenant on +nvironment and Develo%ment& defined =environment= to mean =the totality of nat#re and nat#ral reso#rces) incl#ding the c#lt#ral heritage and infrastr#ct#re essential for socio6economic activities.= This definition infers that environment is the total context within which all the com%onents of nat#re exist and interact. It incl#des all that +/(A definition %rovides for !#t %erha%s in a more incl#sive and concise way. It is) therefore) s#fficient to #nderstand that the different thematic areas identified for the cha%ters in this vol#me are sim%ly com%onents of the environment. Preservation) as a management tool) is defined !y the Goint 1orking <ro#% as the reg#latory or management meas#res taken to ens#re that selected nat#ral reso#rces or infrastr#ct#re) s#ch as #ni>#e
!iological formations) fragile ecosystems) endangered or threatened s%ecies) re%resentative or #ni>#e nat#ral or c#lt#ral sites are set aside) restrictively #tilised or left alone so as to maintain their characteristics in a manner #naffected !y h#man activities to the f#llest extent %ossi!le. Preservation also a%%lies to maintenance of >#ality of nat#ral reso#rces s#ch as air) water) animal health or !iological diversity. (onservation) on the other hand) is defined !y the Goint 1orking <ro#% as the #se of renewa!le reso#rces s#staina!ly and to avoid waste of non6renewa!le reso#rces. In other words) conservation as a mode of management refers to com%onents of the environment s#ch as fisheries) forestry and land which are renewa!le and sho#ld !e #sed in s#ch a way as to %rotect the threshold of s#staina!ility. $iologists and reso#rce economists o%erationalised the
& The
f#ll text of the &77& revised draft of the (ovenant is re%rod#ced !y Adede M&774;-7:64&3N. 2ote that s#!se>#ent
versions of the draft (ovenant) #% to the Third +dition entitled Draft International (ovenant on +nvironment and Develo%ment %#!lished !y IU(2 +nvironmental ,aw (entre in -::5 omitted the Article on =Use of Terms8@) #nder which the definitions were given. If the definitions had !een re%laced !y new ones then) of co#rse) their
idea of conservation !y coining the %rinci%le of maxim#m or o%tim#m s#staina!le yield to determine the %oint which is not to !e exceeded !y #tilisation. For non6renewa!le reso#rces s#ch as minerals) %etrole#m and oil) the meaning of conservation is to Utilise the reso#rces as to avoid waste and th#s %rotect the interests of f#t#re generations to every extent %ossi!le. In other words) even diamonds might not #e ,orever, if #sers are wastef#l. Th#s) conservation %rovides the conce%t#al fo#ndation for s#staina!le #tiliDation of the environment and its com%onents so as to ens#re s#staina!le develo%ment. That is to say) if we are to find a f#ndamental ?#stification for environmental law) it is to ens#re that the develo%ment interests of the %resent generation are realiDed witho#t ?eo%ardising those of f#t#re generations. Promotion of inter6generational e>#ity is) therefore) f#ndamental to environmental law.
The conce%t of s#staina!le develo%ment is as old as history itself) as was l#cidly ex%lained !y G#dge 1eeramantry in his se%arate o%inion in the I(G (ase (oncerning <a!cikovo6 2agymaros Pro?ect 56%ngary v -lovakia7 &77 . 9owever) in modern times) the conce%t of s#staina!le develo%ment ac>#ired %o%#larity since the .e%ort of the 1orld (ommission on +nvironment and Develo%ment B%o%#larly known as the $r#ndtland (ommissionC. - In this re%ort) s#staina!le develo%ment is defined as develo%ment that satisfies the needs and interests of the %resent generation witho#t ?eo%ardising the interests of f#t#re generations to en?oy the same. *ince the $r#ndtland .e%ort) the conce%t fo#nd a central %osition in the United 2ations (onference on +nvironment and Develo%ment) held at .io de Ganeiro in G#ne &77-. The soft law %rinci%les) known as the .io Declaration on +nvironment and Develo%ment) ado%ted at the end of the conference are in different forms dominated !y the theme of s#staina!le develo%ment. ,et #s recall f#rther that %arallel to the disc#ssions and re%ort on O%r Common F%t%re, environment law ass#med a %artic#lar %rominence for the $r#ndtland (ommission with an +x%ert <ro#% on +nvironment ,aw. They iss#ed a com%anion re%ort entitled Environmental rotection and -%&taina#le 8evelopment: Legal rinciple& and 9ecommendation& 0 Article 4 in the recommendations of the re%ort dealt with conservation and s#staina!le develo%ment. Environmental Law and its Function
&
#sef#lness wo#ld have !een do#!tf#l. Officially known as =The .e%ort of the 1orld (ommission on +nvironment and Develo%ment B1(+DC=) O#r (ommon F#t#re
M&7" N.
4 /artin#s
2i?hoff@0l#wer M&7"'N.
1hat) then) is environmental lawL *im%ly stated) environmental law com%rises r#les and doctrines arising from common lawE %rovisions from constit#tionsE stat#tesE general %rinci%les Botherwise called soft lawCE and treaties that deal with %rotection) management and #tilisation of nat#ral reso#rces and the environment as defined a!ove.
The f#nction of environmental law follows %artly from the disc#ssion of the management tools and %artly from its definition. In %rotection and management of the environment) environmental law %rimarily %rescri!es the threshold of s#staina!ility of the environment and nat#ral reso#rces. Th#s) environmental law is the tool !y which O%r Common F%t%re is to !e realised. In this sense) the core f#nction of environmental law is to ens#re intra6 and intergenerational e>#ity.5 Background to Environmental Law The s#!?ect of this section) namely !ackgro#nd to environmental law in form of common law or civil law) is incl#ded here for com%leteness in %resentation of the str#ct#re of environmental law. It is to state that the history of what may !e called environmental law in 0enya was dominated !y common law ?#ris%r#dence. (ommon law arises from the +nglish tradition) which lays s#%remacy on case law or decided cases) es%ecially from s#%erior co#rts) which %rovide %recedence over s#cceeding cases !y virt#e of the doctrine of &tare deci&i&. Action may !e !ro#ght in the form of ?#dicial review) which is action in %#!lic law designed to challenge the legal validity of the decisions or actions of %#!lic !odies when they res#lt in in?#ries. G#dicial review may !e #sed to; BaC >#ash a decision 5certiorari7. B!C sto% an #nlawf#l action B%rohi!itionCE BcC re>#ire %erformance of stat#tory d#ty 5mandam%&7. BdC declare the legal %osition of a litigant 5declaration&7. BeC %rovide monetary com%ensationE or BfC declare &tat%& :%o. (ommon law also %rovides for ca#ses of action in %rivate law) which incl#de tres%ass) n#isance) negligence and the r#le in 9yland& v. Fletcher or strict lia!ility. (ivil law system is at !est gro#nded in codes and stat#tes and the ?#diciary is largely re>#ired to a%%ly the %rovisions of written law. It does not recogniDe any a!sol#te a#thority in ?#dicial %recedents even tho#gh it %laces considera!le weight on writings of ?#rists. (ase law or ?#ris%r#dence is taken into acco#nt for its %ers#asive val#e !#t not as !inding %recedents. In
other words) decided cases are not irrelevant to the cor%#s of environmental cases) which is not com%ara!le to that in common law systems. Evolution of the Legal
5 As
egime of Statutes in Environmental Law
will !e clear from literat#re already cited a!ove) there is mo#nting ?#ris%r#dence on s#staina!ility and s#staina!le
develo%ment. The details are) however) !eyond the sco%e of this (ha%ter. *ee also the seminal work !y $rown61eiss K Preston M-::';&:76-&:N.
Internal Teaching Use Only -'
+arly ad?#stments) which led to ado%tion of a modern environmental stat#te in &7'7 in the United *tates has !een reco#nted in (ha%ter 3 of this !ook. Altho#gh the 2ational +nvironment Policy Act B2+PAC of &7'7 was not to !e a framework environmental law) as s#ch) its main feat#res of +nvironment Im%act *tatement B+I*C and the ?#ridical arrangement which is action6enforcing and !inding on all de%artments of the government ca%t#red imagination of those who were concerned with environmental governance glo!ally. In addition to the American efforts at enacting com%rehensive environmental legislation and %olicy) there were several co#ntries that develo%ed !asic or framework environmental laws. $raDil re%resents one of the earliest s#ch efforts) even %rior to that of the United *tates. On -' *e%tem!er &7' ) the $raDilian ,egislaco Federal enacted a law 3 esta!lishing the 2ational Policy and creating the 2ational (o#ncil for the Protection of the +nvironment. The Act esta!lished the 2ational Policy and created the 2ational (o#ncil for the Protection of +nvironment. In the s#!stantive %rovisions) the Act set o#t the com%osition) d#ties and com%etencies of the (o#ncil. F#rther) it esta!lished the %olicy to !e a%%lied for the im%rovement of certain sectors) s#ch as re6#sing of water discharge) control of environmental %oll#tion) and soil erosion. Iceland enacted the 2at#re (onservation Act ' in &7 &) the key aim !eing the %rotection of nat#re as a whole and in s#ch a way that land) sea) freshwater and air are not wasted or %oll#ted. F#rther) this stat#te was intended to %rotect and manage the exce%tional and historical
as%ects of Iceland8s nat#re) while enhancing the nation8s access to and familiarity with the environment. (anada8s initial environmental legislation was the +nvironmental Assessment and .eview Process B+A.PC created !y a (a!inet directive in Decem!er &7 4 and which o%erated thro#gh administrative %olicy and %roced#re rather than thro#gh federal legislation. It re>#ired federal de%artments and agencies to take environmental matters into acco#nt and to #ndertake an assessment of %otential environmental im%acts as %art of decision making on matters affecting the environment. The o%eration of +A.P was the f#nction of (anada8s Federal +nvironmental Assessment and .eview Office working tho#gh its +nvironmental Assessment Panels and its *creening and (o6ordinating (ommittees. The (anadian +nvironmental Assessment Act) introd#ced in &773 to re%lace the +A.P) re%resents the c#rrent legal framework for the federal government to take acco#nt of the environmental conse>#ences of %ro?ects for which the federal government holds a#thority over decision6making. "
3 Act ' Act
2o. 3.4&" of &7' . Availa!le at ;www.ecole<.org= BAccessed on - Decem!er -::'C. 2o. 5 of &7 & B&' A%ril &7 &C) availa!le at ;www.ecole<.org= BAccessed on - Decem!er
-::'C. ,eiss M&7 7; -4"6-47N.

" *ee
+nvironmental Im%act Assessment (entre) Trans!o#ndary Im%acts and +nvironmental Im%act
Assessment; +x%erience from (anada BUniversity of /anchesterC Availa!le at Internal Teaching Use Only -
The Islamic .e%#!lic of Iran enacted the +nvironmental Protection ,aw in &7 5) 7 which s%ecifies the r#les and meas#res for the %rotection and management of the environment. The %rimary o!?ective of this law is the %rotection and im%rovement of the environment) to !e coordinated !y the De%artment of +nvironment) 9igh (o#ncil for +nvironmental Protection and local a#thorities. In the same year) /alaysia enacted the +nvironmental I#ality Act &: for the
%revention) control of %oll#tion and enhancement of the environment and related %#r%oses. This trend of enactment of framework environmental laws contin#ed with 9#ngary enacting) in &7 ') its Act II of &7 ' on the Protection of the 9#man +nvironment. This law declared its %rinci%al %#r%ose as the esta!lishment of %rinci%al r#les in connection with the %rotection) %reservation and %lanned develo%ment of the h#man environment for the %#r%ose of %rotection of %eo%le8s health and the reg#lar im%rovement of living conditions. && The Peo%le8s .e%#!lic of (hina enacted a framework law in &7 7) the +nvironmental Protection ,aw) whose %rimary f#nction was to ens#re the rational #se of nat#ral environment) %revention and elimination of environmental %oll#tion and damage to ecosystems) in order to create a clean and favo#ra!le living and working environment) %rotect the health of the %eo%le and %romote economic develo%ment d#ring the constr#ction of a moderniDed *ocialist *tate. &A#stria enacted the Federal ,aw on the Protection of the +nvironment in &7"3) which esta!lished the Federal Office of the +nvironment in Fienna with the res%onsi!ility of monitoring changes in the environment) controlling harmf#l s#!stances to the environment) training ex%erts and gathering and disseminating relevant information. &4 In Africa) the trend ca#ght on with ,i!ya B&7"-C) Algeria B&7"4C) *enegal B&7"4C and TanDania B&7"4C. The im%ortant %oint is that these stat#tes were of different degrees ?f so%histication. For instance) TanDanian 2ational +nvironmental /anagement Act BAct 2o. &7C of &7"4 had) as its main feat#res) re>#irement for environmental im%act assessment enforced !y a 2ational +nvironment /anagement (o#ncil) #nder a Director6<eneral. There were no other str#ct#res exce%t for financial arrangements. TanDania finally enacted a com%rehensive framework environmental law in -::5. Other African co#ntries that have recently enacted
;http:>>wiow.art.inan.ac.%k>EI$>p%#lication&>new&Ietter&>neiv&letterl?>tran&#o%ndan>impact&>tran&can a da.htm= BAccessed on ' Gan#ary -::'C.
7 Official
<aDette 2o. "37-) ' A%ril &7 5) availa!le at ;www.ecole<.org= BAccessed on - Decem!er
-::'C.
&: Act
2o. &- ) availa!le at ;w<vw.ecole<.org= BAccessed on - Decem!er -::'C. at ;2vwi%.ecole<.org= BAccessed on - Decem!er -::'C.
&& Availa!le &- Ado%ted
at the &&=8 /eeting of the *tanding (ommittee of the Fifth 2ational Peo%le8s (ongress on
&4 *e%tem!er &7 7.

&4 I#id,
$#ndegesetD!latt f#r die .e%#!lik Osterreich) Text 2o. &- ) -7 /arch &7"3 at &:" 6&&:3.
Availa!le at ;www.ecoIe<.org= BAccessed on - Decem!er -::'C. Internal Teaching Use Only -"
framework environmental laws are *waDiland B-::-C) $#r#ndi B-::4C and .wanda B-::3C. The ,i!yan Ara! Gamahiriya re%resents one of the earliest efforts at enacting a framework environmental law. In &7"-) the co#ntry enacted the ,aw on the Protection of the +nvironment)&5 which %rovided for the %rotection of the air) seas and marine reso#rces) water reso#rces) foods and foodst#ffs) soils and %lant) control of vehic#lar emissions) %oll#tion ca#sed !y shi%s) waste dis%osal) etc. In &7"") the Federal .e%#!lic of 2igeria enacted the Federal +nvironmental Agency Decree &7"") which esta!lished a Federal +nvironmental Protection Agency as well as *tate and ,ocal <overnment environmental %rotection !odies. The law) %rom#lgated !y the Federal /ilitary <overnment as a decree) set o#t national environmental standards ranging from water) effl#ent) air >#ality) ne %rotection) noise control and haDardo#s wastes. &3 *o#th Africa enacted the +nvironment (onservation Act 2o. 4 of &7"7 to %rovide for the effective %rotection and controlled #tilisation of the environment. It esta!lished a co#ncil for the environment) committee for environmental management and a !oard of investigators. The law sets o#t a national %olicy for environmental conservation) while making %rovisions for the %rotection of the nat#ral environment) control of environmental %oll#tion) and of activities that may harm the environment) and sets o#t environmental offences and %enalties. &'
In &77:) the %arliament of Ham!ia enacted the +nvironmental Protection and Poll#tion (ontrol Act to %rovide for the %rotection of the environment) and control of %oll#tion. The Act also esta!lished a 2ational +nvironmental (o#ncil while making %rovision for the management of water >#ality) air >#ality) wastes dis%osal) %esticides and toxic s#!stances) noise) and nat#ral reso#rces.& In &775) ihe <hanaian %arliament enacted the +nvironmental Protection Agency Act) which esta!lished an +nvironmental Protection Agency to re%lace the then +nvironmental Protection (o#ncil) which o%erated %revio#sly as an administrative agency. This law also set o#t mechanisms for enforcement and control) incl#ding environmental im%act assessment) service of enforcement notices as well as #se of environmental ins%ectors.&" 0enya) TanDania and Uganda followed fairly similar %aths in evolving their framework law. The three co#ntries were g#ided !y the %rinci%le of %#!lic %artici%ation in develo%ment of environmental law) which was en#nciated and acce%ted thro#gh different Princi%les and Agenda -& of the United 2ations (onference on +nvironment and Develo%ment held at .io de
&5 ,aw
2o.
of.&7"-) availa!le at ;www.ecole<.org = BAccessed on - Decem!er -::'C. in United 2ations +nvironment Programme BU2+PC M&77'; 5:"N.
&3 .e%rinted &' I#id &
at 4:'.
I#id at 4":. at &3'.
&" I#id
Ganeiro in &77-. Uganda) as the fore6r#nner) act#ally #sed the %#!lic for#m of 2ational +nvironment Action Plan B2+APC. +vent#ally) the 2ational +nvironmental *tat#te was enacted in &773 as a framework environmental law. It sets o#t the %rinci%les of environmental management) and the right to a decent environment. The law also esta!lished the 2ational +nvironmental /anagement A#thority as the %rinci%al agency in Uganda for the management
of the environment. The law) among other as%ects) reg#lates environmental %lanning and makes %rovision for a mandatory environmental im%act assessment for sched#led %ro?ects. It also re>#ires existing sectoral environmental legislation to !e harmonised with its %rovisions.&7 0enya) following a similar %ath) also develo%ed and %o%#larised general %rinci%les and framework thro#gh 2+AP. $#t then) several other cons#ltative fora were #sed. (ha%ter 3 of this !ook will %rovide a #sef#l insight into the fora) %arliamentary de!ate and disc#ssions leading to the ado%tion of this law. In Decem!er &777) Parliament enacted the +nvironmental /anagement and (o6ordination Act as a framework law. It sets o#t the f#ndamental right of every %erson living in 0enya to a clean and healthy environment and confers !road loc%& &tandi to any s#ch %erson alleging contravention of environmental standards to a%%ly to the 9igh (o#rt for enforcement of this right. The Act esta!lishes the 2ational +nvironment /anagement A#thority as the %rinci%al government agency on environmental matters. It makes %rovision for a mandatory environmental im%act assessment for sched#led %ro?ects) national environmental %lanning) environmental monitoring and a#dit) %rotection and conservation of the environment as well as environmental >#ality standards. -: TanDanian framework law came #% m#ch later after 2+AP. In -::5) the +nvironmental /anagement Act was enacted. ,ike the 0enyan law) it also sets o#t the f#ndamental right of every %erson living in TanDania to a clean environment and confers loc%& &tandi to !ring an action !efore a co#rt of law to enforce this right. F#rther) the law sets o#t the instit#tional arrangements) which incl#de the nat#re and f#nctions of a 2ational +nvironmental Advisory (ommittee) 2ational +nvironmental /anagement (o#ncil) /inister for +nvironment) Director of +nvironment) sector ministries as well as regional government a#thorities. The sco%e of the Act is !road) covering as%ects ranging from environmental %lanning) environmental management) environmental im%act and other assessments) %oll#tion and %revention control) waste management and environmental >#ality standards. -& It is im%ortant to note that the TanDanian %rocess !enefited from the !roadly6!ased
cons#ltations #nder U2+P8s Pro?ect on +nvironmental ,aw and Instit#tions in Africa) which
&7 I#id
at 45-.
in United 2ations +nvironment Programme BU2+PC M-::5; - N.
-: .e%rinted
-& Availa!le
at www.ecole.org BAccessed on - Decem!er -::'C.
Internal Teaching Use Only 4:
so#ght to develo% and harmonise environmental laws of the co#ntries. It will !e recalled that the intensive %rocess of harmonisation of certain sectoral stat#tes led to ado%tion of the /emorand#m of Understanding ado%ted !y the three co#ntries in Octo!er &77") and which is disc#ssed in (ha%ter -: herein. There are several common feat#res in the framework environmental laws of the three +ast African co#ntries. *ome of the im%lementing reg#lations) %artic#larly the environmental im%act assessment and environmental a#dit loc%& &tandi in the case of 0enya and TanDania) and 2ational +nvironment /anagement A#thorities in the case of Uganda and 0enya have certain common feat#res. 9owever) sectoral laws will still !e different. Only Uganda has made some attem%ts to harmonise sectoral laws with the framework laws. The other two have not and this is a massive task %ending for 0enya and TanDania. In the case of 0enya) this !ook %rovides g#idelines for s#ch an exercise. 1hat this section demonstrates are) first) that 0enya is not alone in ado%ting framework environmental law. *econdly) the framework environmental laws) tho#gh not identical) have several common feat#res. Thirdly) environmental stat#tes constit#te a large %art of the str#ct#re of environmental law. Constitutional Entrenchment of Environmental Law It is #niversally recognised that the constit#tion of any co#ntry is the s#%reme law of the land. Often times) it makes %rovisions for f#ndamental h#man rights and d#ties in a co#ntry) which incl#de e>#ality and freedom from discrimination) %rotection of %ersonal li!erty) freedom of conscience) association) ex%ression) movement) religion) assem!ly) and the right to life. *ome constit#tions) s#ch as that of Uganda) classify the right to a clean environment among 8the f#ndamental and other h#man rights and freedoms8. -- As $randl and $#ngert-4 M&77-;&5N have
o!served) constit#tional %rovisions %romote a model character for the citiDenry to follow and they infl#ence and g#ide %#!lic disco#rse) action and !ehavio#r. (onstit#tional %rovisions s#%ersede all related s%ecific stat#tory laws. ,egislat#res are %rohi!ited from %assing any laws that are in conflict with constit#tional %rovisions. *imilarly) government agencies may not enforce any reg#lations that are contrary to the national constit#tional %rovisions. +very s#ch laws or reg#latory actions are inherently %ltra vire& and) therefore) n#ll and void. The significance of entrenchment of environmental %rovisions in the constit#tions is ca%t#red in the following %aragra%h !y $randl and $#ngert -5 M&77-; 5N;
Con&tit%tional implementation ena#le& environmental protection to achieve the highe&t rank
-- +nvironmental -4 $randl
%rovisions in Uganda (onstit#tion are disc#ssed later herein.
K $#ngert =(oonstit#tional +ntrenchment of +nvironmental Protection; A (om%arative Analysis of
+x%eriences A!road= 9arvard +nvironmental ,aw .eview Fol. &' 2o. & M&77-;&6&::N.
-5 $randl
K 9#ngert %.5
Internal Teaching Use Only 4& among legal norm&, a level at which a given val%e tr%mp& every &tat%te, admini&trative r%le or co%rt deci&ion&. For in&tance, environmental protection might #e con&idered a ,%ndamental right retained #y the individ%al and th%& might en3oy the protected &tat%& accorded to other ,%ndamental right&. In addition, addre&&ing environmental concern& at the con&tit%tional level mean& that environmental protection need not depend on narrow ma3oritie& in the legi&lative#odie&. 9ather, environmental protection i& more ,irmly rooted in the legal order #eca%&e con&tit%tional provi&ion& ordinarily may #e altered only p%r&%ant to ela#orate proced%re& #y a &pecial ma3ority, i, at all.
1hether environmental %rotection falls within the r#!ric of what are called f#ndamental rights is an im%ortant matter. F#ndamental rights or $ills of .ights are a common feat#re of the constit#tions of western and non6western co#ntries. In the (onstit#tion of the United *tates) these are ex%ressed in the First Amendment as freedom of s%eech) the %ress) assem!ly) ex%ression and religion and are considered sacrosanct. In 0enya) (ha%ter F of the (onstit#tion
ex%resses these as the right to life) %ersonal li!erty) %rotection from de%rivation of %ro%erty) freedom of conscience) ex%ression) assem!ly) association and movement. It is arg#a!le) however) that the right to a so#nd and healthy environment #nderlies that right to life itself. (learly) this is of a higher degree a& ,%ndamental right than most of those en#merated a!ove. <ood health) which de%ends on a so#nd environment) %recedes the freedom of ex%ression) %ress) assem!ly) religion) li!erty) etc !eca#se s#ch rights are only exercisa!le !y one who is alive and in good health. *#ch views were a%tly and more em%hatically ex%ressed !y the *#%reme (o#rt of the .e%#!lic of Phili%%ines in the cele!rated case of Opo&a v Factoran in &774. After examining the >#estion of standing for children all over the Phili%%ines seeking to com%el the <overnment to cancel tim!er licences !eca#se contin#ed clearance of forests ?eo%ardised the health of the children and generations yet #n!orn) the *#%reme (o#rt o%ined that the right to a !alanced and healthf#l ecology did not have to !e listed in the $ill of .ights to ass#me the stat#s of f#ndamental rights. The (o#rt o!served;
-%ch a right #elong& to a di,,erent category o, right& altogether ,or it concern& nothing le&& than &el,!pre&ervation and &el,!perpet%ation... aptly &tre&&ed #y the petitioner&... the advancement o, which may even #e &aid to predate all government& and con&tit%tion&. $& a matter o, ,act, the&e #a&ic right& need not even #e written in the Con&tit%tion ,or they are a&&%med to e<i&t ,rom the inception o, h%mankind. I, they are now e<plicitly mentioned in the ,%ndamental character, it i& #eca%&e o, a well!,o%nded ,ear o,it& ,ramer& that %nle&& the right& to a #alanced and health,%l ecology and health are mandated a& -tate policie& #y the Con&tit%tion it&el, there#y highlighting their contin%ing importance and impo&ing %pon the -tate a &olemn Internal Teaching Use Only 4o#ligation to pre&erve the ,ir&t and protect and advance the &econd, the day wo%ld not #e ,ar when all el&e wo%ld #e lo&t not only ,or the pre&ent generation, #%t al&o ,or tho&e to comegeneration& which &tand to inherit nothing #%t perched earth incapa#le o, &%&taining li,e.'@
Th#s) the view of the co#rt is that the necessity to entrench environment in the constit#tions
is com%elling and sho#ld in fact) !e deemed o!vio#s. 1hether a %lea !ased on the nat#ral legal ass#m%tion of right to a healthy environment wo#ld s#cceed is) of co#rse) not certain and is !eyond the sco%e of this disco#rse. 1hat seems clear) tho#gh) is that advocates of environmental %rotection have invaria!ly so#ght to rely on the force of the constit#tion for the %rotection of the environment. For instance) in the United *tates) where the federal constit#tion makes no %rovision at all for a safe and healthy environment) advocates of environmental %rotection have) tho#gh #ns#ccessf#lly) so#ght remedies in other cla#ses s#ch as e>#al %rotection and d#e %rocess of the law. -' It was d#ring the same %eriod) &7 -6 4) that the *ierra (l#!) a %rominent environmental 2<O in the United *tates) took the initiative to %rotect the /ineral 0ing Falley from degradation thro#gh the constr#ction of a ski resort. In that case) the *ierra (l#! so#ght a ?#dicial review s#ing only as a mem!ershi% cor%oration with s%ecial interest in the conservation and so#nd maintenance of the national %arks) game ref#ges and forests of the co#ntry. The United *tates *#%reme (o#rt re?ected their %lea on the gro#nds that they failed to show s#fficient interest to s#%%ort the (l#!8s loc%& &tandi.'A As a conse>#ence of s#ch fr#itless efforts) constit#tional and environmental advocates have %ro%osed an amendment to the U* (onstit#tion to %rovide that; 8The right of the %eo%le to a clean and healthf#l environment shall not !e a!ridged8. -" This is to confirm that even tho#gh the character of environment and the necessity for its %rotection may morally s#%ersede all other rights) the highest %lace for it is to have a legal effect in the constit#tion. Once the decision is taken to entrench the environment in the constit#tion) the %rovision sho#ld !e ex%licit in its characterisation. .eliance on inter%retations has) as noted a!ove) often %roved #ns#ccessf#l in the United *tates. It wo#ld have !een ex%ected that !eca#se environmental conscio#sness reached a%ogee in the U* in &7':s) every ?#dicial aven#e wo#ld !e o%en to %romote the %rotection of the %#!lic against environmental in?#ries. $#t that was) certainly) not the case. That ex%erience ca#tions co#ntries that may only have resid#al %rovisions from reliance on
the same. In 0enya) for instance) there are two %rovisions) which are incidental to the
-3 O%osa -' *ee -
v Factoran <. 2o. &:&:"4)--5 *(.A 74 M&774;&5 6&3N.
comments in $randl K $#ngert M&77-; 3N. - )7-) in $onine K /c<arity
*ee disc#ssions on the so6called /ineral 0ing Decision) -ierra Cl%# v "orton 5:3 U*
M&7"5; "3"6"'&N. The decision %rovoked strong reactions from advocates of environmental %rotection thro#gh co#rts. *ee for instance) the incisive commentary !y *ax M&7 4N.
-" $randl
K $#ngert M&77-; 3N.
constit#tional %rotection against de%rivation of %ro%erty in *ection 3 and another #nder the %rotection against ar!itrary search in *ection '. 1hile #nder section 3) the (onstit#tion %rohi!its confiscation of %rivate %ro%erty !y the government) s#ch taking of %ro%erty is %ermitted if it is deemed necessary for) inter alia, %#!lic health) town and co#ntry %lanning or develo%ment or #tilisation of %ro%erty so as to %romote %#!lic !enefit. *imilarly) %ro%erty may !e com%#lsorily ac>#ired !y the government if it is in a dangero#s state or is in?#rio#s to h#man !eings) animals or %lants. $oth %rovisions are of environmental significance !#t are restrictive in their sco%e and) as resid#al constit#tional %rovisions) do not offer s#fficient environmental %rotection. 1ithin a two year %eriod after the &774 O%osa case) Phili%%ines moved from the general constit#tional %rovisions to one re>#iring a clean and healthy ecology. The (onstit#tion ado%ted on &3 Octo!er &7"' was foc#sed largely on *tate rights over and control of land and its reso#rces) reservation of %rotected areas) agrarian reform and the %rotection of indigeno#s c#lt#ral comm#nities. A change was introd#ced to Article II of the Phili%%ine (onstit#tion in &7" ) th#s;
Bhe -tate &hall protect the right to health o, the people and in&till health con&cio%&ne&& among themC and CBhe -tate &hall promote and advance the right o, the people to a #alanced and health,%l ecology in accordance with the rhythm and the harmony o, nat%re.'D
+ntrenchment of %rovisions therein s#%ersedes all stat#tes and %rinci%les constit#ting law in the co#ntry. The constit#tion) therefore) ex%resses the highest order of national as%irations and
val#es. Forms of Constitutional !rovisions +ntrenchment of environmental %rovisions may !e in the form of actiona!le o!ligations or in the form of declaration of national %olicy) s#!?ect to f#rther legislative enactment. In its constit#tional dis%ensation) 0enya can choose whatever form#lation they %refer. Fundamental rights vs public policy It is conceiva!le to have several forms of environmental %rovisions in constit#tions) de%ending on the national %reference. For %#r%oses of this cha%ter) it is s#fficient to extra%olate.only two generic categories ado%ted !y $randl and $#ngert M&7'-N. They identified the two as %rovisions ex%ressing f#ndamental rights and those denoting statements of %#!lic %olicy. In this disc#ssion) we shall add %rovisions relating to federal and %rovincial arrangements.
-7 *ections
&3 K &'. *ee also Opo&a v Factoran, &%pra note -' at 3.
(onstit#tional %rovisions on f#ndamental rights are characterised !y their sti%#lation of individ#als8 s#!?ective or %ersonal rights) which are enforcea!le thro#gh co#rt action. Two distinct exam%les are the %ro%osals that have !een %laced !efore the U* (ongress) which state;4:
Bhe right o, the people to a clean air, p%re water, ,reedom ,rom e<ce&&ive %nnece&&ary noi&e and nat%ral, &cenic and ae&thetic :%alitie& o, their environment &hall not #e a#ridgedC. and CEvery per&on ha& inaliena#le right to a decent environment. Bhe Enited -tate& and every &tate &hall g%arantee thi& right.
On the other hand) %rovisions ex%ressing statements of %olicy are o!?ective) re>#iring attention of the government) thro#gh the legislative or the exec#tive) to %ay attention to a %rinci%le. *#ch %rovisions are not) on their own) to !e invoked or enforced thro#gh the ?#diciary. In some cases) the statement of %olicy may #rge the legislat#re to ado%t an im%lementing stat#te. For instance) *ection & of the (onstit#tion of the Federal .e%#!lic of A#stria reads as follows;
B&C The .e%#!lic of A#stria B$#nd) ,ander and <emeindenC s#!scri!es to #niversal %rotection of the environment B-C Universal environment %rotection means the %reservation of the nat#ral environment) !eing the !asis of h#man existence) from harmf#l infl#ences. Universal environmental %rotection) in %artic#lar) consists of meas#res to kee% clean air) water and soil as well as avoidance of n#isance ca#sed !y noise The (onstit#tion of India Bas amended in &7" 7 carries Part 5) which reads;4&
Bhe provi&ion& contained in thi& part &hall not #e en,orcea#le #y any co%rt, #%t the principle& therein laid down are neverthele&& ,%ndamental in the governance o, the co%ntry and &hall #e the d%ty o, the -tate to apply the&e principle& in making law&.
The %art %roceeded to make %rovisions for %rotection and im%rovement of the environment and safeg#arding of forests and wildlife. There is an identical %rovision #nder article - of the (onstit#tion of the Democratic *ocialists .e%#!lic of *ri ,anka ado%ted in &7 -) with amendments in &7"5. 4$roadly s%eaking) there are scanty exam%les of constit#tional %rovisions that are %#rely foc#sed on f#ndamental rights or statements of %#!lic %olicy. There are fre>#ent instances of a
4: -%pra
note -4. 4 . *ee constit#tional %rovisions on environmental rights and d#ties %re%ared for the United 2ations
4& Article
University Pro?ect on International ,aw) (ommon Patrimony and Intergenerational +>#ity) *e%tem!er &7"" a%%earing as A%%endix $ to $rown61eiss M&7"7; 4:'N)
4- $rown61eiss)
i#id, at 4&564&3.
contin##m where there is a mixt#re of !oth %rovisions even tho#gh there may !e more than the other. The &7 ' (onstit#tion of Port#gal) as revised in &7"-) contains !oth. Its article '' %rovides as follows; &. +veryone shall have the right to a healthy and ecological !alanced h#man environment and the d#ty to defend it.
-. It shall !e the d#ty of the *tate) acting thro#gh a%%ro%riate !odies and have reco#rse to %o%#lar initiative to; BaC Prevent and control %oll#tion and its effects and harmf#l forms of erosionE B!C 9ave regard in regional %lanning to the creation of !alanced !iological areasE BcC (reate and develo% nat#ral reserves and %arks and recreational areas and classify and %rotect nat#ral landsca%es and sites so as to ens#re the conservation of nat#re and the %reservation of c#lt#ral assets of historical or artistic interestE and BdC Promote the rational #se of nat#ral reso#rces) safeg#arding their ca%acity for renewal and ecological sta!ility. 4. +veryone shall have the right) in accordance with the law) to %romote the %reservation or cessation of factors leading to the deterioration of the environment and) in this case) of direct losses to a corres%onding com%ensation. 5. The *tate shall %romote the %rogressive and ra%id im%rovement of the >#ality of life for all Port#g#ese.44 In T#rkey) section 3' of the &7"- (onstit#tion contains an exam%le of a cris% %rovision which) nevertheless) incl#des f#ndamental rights and %#!lic %olicy as follows; &. +veryone has the right to live in a healthy) !alanced environment. -. It is the d#ty of the *tate and the citiDens to im%rove the nat#ral environment) and to %revent environmental %oll#tion.45 As we concl#de the disc#ssion on environmental %rovisions in constit#tions) it is %ertinent to offer exam%les from a few African co#ntries already identified as having environmental %rovisions in their constit#tions; 3%4 So+t& Af %!a
44 I#oted 45 I#id,
in $randl K $#ngert M&7'-; '36''N.
at &.
Internal Teaching Use Only 4'
The (onstit#tion of the .e%#!lic of *o#th Africa) enacted in &77') has its first %rovision on
=+nvironment= #nder the $ill of .ights where it says; -5. +veryone has the right BaC to an environment that is not harmf#l to their health or well6!eingE and B!C to have the environment %rotected) for the !enefit of the %resent and f#t#re generations) thro#gh reasona!le legislative and other meas#res that; BiC %revent %oll#tion and ecological degradationE BiiC %romote conservationE and BiiiC sec#res ecologically s#staina!le develo%ment and #se of nat#ral reso#rces while %romoting ?#stifia!le economic and social develo%ment. As a federal state) *o#th Africa also makes %rovisions for matters that are %rimary %rovincial or federal com%etences. *ched#le 5 and the %rinci%al Articles are im%ortant in this regard. 3%%4 U$an*a The (onstit#tion of the .e%#!lic of Uganda) ado%ted in &773) has several %rovisions related to the environment. Article OIII entitled =Protection of 2at#ral .eso#rces= %rovides as follows; =The *tate shall %rotect im%ortant nat#ral reso#rces) incl#ding land) water) wetlands) minerals) oil) fa#na and flora on !ehalf of the %eo%le of Uganda=. Article OOFII) which is on =The +nvironment= %rovides as follows; BiC The *tate shall %romote s#staina!le develo%ment and %#!lic awareness of the need to manage land) air) water reso#rces in a !alanced and s#staina!le manner for the %resent and f#t#re generations. BiiC The #tilisation of the nat#ral reso#rces of Uganda shall !e managed in s#ch a way as to meet the develo%ment and environmental needs of the %resent and f#t#re generations of UgandaE and in %artic#lar) the *tate shall take all %ossi!le meas#res to %revent or minimise damage and destr#ction to land)
air and water reso#rces res#lting from %oll#tion and other ca#ses. BiiiCThe *tate shall %romote and im%lement energy %olicies that will ens#re that the %eo%le8s !asic needs and those of environmental %reservation are met. BivC The *tate) incl#ding local governments) shall; BaC create and develo% %arks) reserves and recreation areas and
ens#re the conservation of nat#ral reso#rcesE B!C %romote the rational #se of nat#ral reso#rces so as to safeg#ard and %rotect the !iodiversity of Uganda. Uganda8s (ha%ter 5 deals with =Protection and Promotion of F#ndamental and Other .ights and Freedoms. Article 47 %rovides that =+very Ugandan has a right to a clean and healthy environment=. There is f#rther %rovision) #nder (ha%ter &3) entitled =,and and environment=. ,and ten#re system in Uganda is rather com%lex and) in any case) the >#estions are !eyond the sco%e of this cha%ter. *#ffice it to >#ote %aragra%h B!C of Article -4 ) which states;
Bhe Government or a local government a& determined #y arliament #y law, &hall hold in tr%&t ,or the people and protect nat%ral lake&, river&, wetland&, ,ore&t re&erve, game re&erve, national park& and any land to #e re&erved ,or ecological and to%ri&tic p%rpo&e& ,or the common good o, all citi2en&.
3%%%4 Tan5an%a The &77 (onstit#tion of the United .e%#!lic of TanDania Brevised to incl#de all amendments #% to &773C does not contain a direct %rovision on environment. It is incl#ded here to com%lete o#r line of s#ggestion that %rovisions on environment may a%%ear in #nconventional forms. 1e ask the >#estion here as to whether there are African co#ntries where co#rts have inter%reted the right to life to incl#de a healthy environment. Article &5 of the TanDania constit#tion says;
Every per&on ha& the right to live and to protection o, hi& li,e #y the &ociety in
accordance with the law.
1e recall that in the -hehla Fia v /$ 8$ BP,D&775 *#%reme (o#rt '74C) 9#man .ights (ase 2o. &360 of &77-) 9eard on &- Fe!r#ary &775C) the *#%reme (o#rt of Pakistan o%ined that the word =life= m#st not !e constr#ed in a limited manner and added that a wide meaning sho#ld !e given to ena!le man not only to s#stain life !#t also to en?oy it. An im%ortant o!servation !y the (o#rt is %ertinent here) and I >#ote;
/here li,e i& degraded, the :%ality o, li,e i& adver&ely a,,ected and health ha2ard& are created a,,ecting a large n%m#er o, people, the Co%rt in e<erci&e o, it& 3%ri&diction %nder $rticle G)?507 o, the Con&tit%tion, may grant relie, to the e<tent o, &topping the ,%nctioning o, %nit& which create poll%tion and environment degradation.
In %aragra%h &- of his Order) the G#dge o!served f#rther that;

Bhe word li,e i& very &igni,icant a& it cover& all ,act& o, h%man e<i&tence. Bhe word li,e ha& not #een de,ined in the Con&tit%tion #%t it doe& not mean nor can it #e re&tricted Internal Teaching Use Only 4" only to the vegetative or animal li,e or mere e<i&tence ,rom conception to death. Li,e incl%de& all &%ch amenitie& and ,acilitie& which a per&on #orn in a ,ree co%ntry i& entitled to en3oy with dignity, legally and con&tit%tionally.
There may !e a n#m!er of co#rt decisions in Africa where the constit#tional right to life has !een inter%reted to incl#de a right to a healthy environment. One exam%le is the recent (o#rt Order from $enin (ity in 2igeria where contin#ed gas flaring from oil wells) which %oll#tes the environment and th#s endangering health of residents was fo#nd to !e in violation of =A%%licant8s right to life and@or dignity of h#man %erson enshrined in *ection 44B&C and 45B&C of the (onstit#tion of the Federal .e%#!lic of 2igeria) &777.. .= 43 These exam%les show the overla%%ing nat#re of the classification of %#!lic %olicy and f#ndamental rights as distinct categories. 1hat is clear) however) is that making environmental %rovisions in a constit#tion gives environment the character of an over6riding national force of
law. It is also clear that environmental exigencies like those rights that %ertain to life and health s#%ersede all those that are traditionally %rovided for in constit#tions. 3%)4 Ken'a The c#rrent (onstit#tion of 0enya) like the TanDanian one) does not contain a direct %rovision on environment. It) however) contains a %rovision %rotecting the right of every individ#al to life) exce%t in exec#tion of the order of a co#rt of law in 0enya. 4' It remains a fertile area for f#rther disco#rse on whether this right to life entails the right to a healthy environment. The Draft (onstit#tion of 0enya) -::54 contains a dichotomy of ex%licit environmental %rovisions) in a cha%ter4" on environment and nat#ral reso#rces) which emerge !oth as f#ndamental rights and as ex%ressions of %#!lic %olicy. (ha%ter ' ca%t#res 8the $ill of .ights8. Part II of this (ha%ter sets o#t what is termed as 8F#ndamental rights and freedoms8. Article HA falls within this Part II of (ha%ter ' and it ca%t#res the right to the environment as f#ndamental right) as follows; +very %erson has the right; 5a7 to an environment that i& &a,e ,or li,e and health.
43 *#it
2o. F9(.$@(@&34.:3 decided on &5 2ovem!er -::3. &.
4' *ection 4
Ado%ted !y the 2ational (onstit#tional (onference on &3 /arch -::5. This Draft (onstit#tion was later re%laced
!y 8The Pro%osed 2ew (onstit#tion of 0enya8 %#!lished !y the Attorney <eneral !#t s#!se>#ently re?ected !y 0enyan voters d#ring a constit#tional referend#m held on -& 2ovem!er -::3. It is im%ortant to note that Article 7: as ca%t#red in the Draft (onstit#tion was excl#ded from 8the %ro%osed new constit#tion8 as %#!lished !y the Attorney <eneral.
4" (ha%ter
".
B!C to have the environment %rotected) for the !enefit of pre&ent and ,%t%re generation&, thro%gh legi&lative and other meas#res that 6 BiC %revent %oll#tion and ecological degradationE and
BiiC %romote conservationE and sec#re ecologically s#staina!le develo%ment and #se of nat#ral reso#rces while %romoting economic and social develo%mentE and BcC to free information a!o#t the environment Article " ) which is a mere declaration of %olicy) sets o#t the %rinci%les and o!ligations on the environment as follows; The *tate shall 6 BaC .es%ect the integrity of nat#ral %rocesses and ecological comm#nities) incl#ding conservation of ha!itats and s%eciesE B!C +ns#re s#staina!le ex%loitation) #tilisation) management and conservation of the environment and nat#ral reso#rcesE BcC +ns#re e>#ita!le sharing of !enefits accr#ing from ex%loitation) #tilisation and management of the environment and nat#ral reso#rces #nder %aragra%h B!CE BdC +ns#re that social and c#lt#ral val#es traditionally a%%lied !y 0enyan comm#nities for the s#staina!le management of the environment and nat#ral reso#rces are o!servedE BeC Domesticate international and !ilateral agreements and treaties relating to the %rotection of the environmentE BfC +ns#re that %lanning and #tilisation of the environment takes acco#nt of disadvantaged areas and their inha!itantsE BgC Promote energy saving and the #se of renewa!le energy so#rcesE BhC Prevent %oll#tion and ecological degradationE BiC Allocate ade>#ate reso#rces to reclaim and reha!ilitate degraded areas and those %rone to disasters to make them ha!ita!le and %rod#ctiveE and B?C 1ork to achieve and maintain tree cover of at least ten %er cent of the land area of 0enya. On the other hand) the same Draft (onstit#tion contains %rovisions on the 8enforcement of environmental rights8) which is !asically an ex%ression of the f#ndamental right to a clean and
healthy environment. To this end) Article 7: %rovides as follows;

B&C If a %erson alleges that a right to a clean and healthy environment recognised and %rotected #nder this %rotection #nder this (onstit#tion has !een) is !eing or is likely to !e contravened) in addition to any other legal remedies which are availa!le in res%ect to the same matter) that %erson may a%%ly to the co#rt for redress. B-C On an a%%lication !y a %erson #nder cla#se B&C) the co#rt may make s#ch orders) or give s#ch directions as it may consider a%%ro%riate) to; BaC %revent) sto% or discontin#e any act or omission which is harmf#l to the environmentE B!C com%el any %#!lic officer to take any meas#res to %revent or discontin#e any act or omission which is harmf#l to the environmentE and BcC %rovide com%ensation for any victim of %oll#tion. B4C A %erson may make an a%%lication #nder this Article even if he or she cannot show that the defendant8s act or omission has ca#sed or is likely to ca#se him or her any %ersonal loss or in?#ry. P a!t%!e on Fe*e al an* P o)%n!%al "+ %s*%!t%ons The re>#irement that the control of the management of nat#ral reso#rces and the environment sho#ld !e done at federal) %rovincial@state or local levels is !ased on the fact that only the most a%%ro%riate level or machinery sho#ld deal with given management iss#es. In general) the machinery that is closest to the location of the reso#rces sho#ld have some ?#risdiction over its management. *imilarly) those who are likely to !e affected !y the management %ractices sho#ld en?oy an e>#ita!le share of the economic %roceeds or rents from s#ch nat#ral reso#rces.
*ince) !efore inde%endence) some 0enyan %oliticians have fre>#ently ex%ressed a desire for 4"a3im#o4 o< some form of federalism) they sho#ld a%%reciate as%ects of federalism in so far as it relates to environment and nat#ral reso#rces. It is well recognised that management of s#ch nat#ral reso#rces as forests and wildlife sho#ld involve %rominent comm#nity %artici%ation. *imilarly) effective soil and water conservation es%ecially in the c#ltivated areas will !e ass#red only if there is an involvement of those who c#ltivate the land and who stand to en?oy the !enefits or s#ffer adverse conse>#ences. In this connection) one is easily reminded of the grassroots %rotest !y the half6 amillion inha!itants of the 43:6s>#are6miles of the 2iger delta) called Ogoniland) who com%lained that the national <overnment ignored their com%laints against the effect of
Internal Teaching Use Only 5&
environmental degradation ca#sed !y oil mining activities. 47 They demanded an e>#ita!le share of the %roceeds from hydrocar!on sales of Ogoniland. The conse>#ences of their !eing ignored have !een rather em!arrassing to the Federal <overnment of 2igeria. $#t the com%laints) which in this case were local) co#ld have !een over a %rovince or *tate com%onent of a federal system. The nationwide control over the nat#ral reso#rces may !e motivated !y cynical greed. 9owever) it is more directly ?#stified !y the #nity of the environment. $eca#se of the #nity of the environment) it wo#ld %erha%s !e ideal to !ase the control of environment matters on ecological #nits or %ro!lem6sheds. 5: 9owever) this is often im%ractical !eca#se %ro!lem6sheds do not necessarily coincide with the %rovincial or state !o#ndaries. Therefore) the search for ideal arrangements for environmental management often %oses contradictions and dilemma for national governments) es%ecially in co#ntries with Federal systems s#ch as (anada.5& The (anadian (onstit#tion of &"' ) which is federal) did not address the >#estion of environment per &e. Its foc#s on relevant iss#es was with the ex%loration and conservation of nat#ral reso#rces. The %rovisions in Article 7- ABlC %rovides as follows;
In each case %rovince) the legislat#re may excl#sively make laws in relation of; BaC ex%loration for non6renewa!le nat#ral reso#rces in the %rovince) B!C develo%ment and conservation of non6renewa!le nat#ral reso#rces and forestry reso#rces in the %rovinces) incl#ding to the rate of %rimary %rod#ction therefrom. 5This %rovision is com%lemented !y that of Article &:7) which states that lands) mines) minerals and royalties sit#ated within the !o#ndaries of the original %rovinces of the confederation !elong to the %rovinces and that the same %osition was extended to %rairie %rovinces !y the (onstit#tional Act of &74:.54 The %rovisions wo#ld clearly s#ggest that %reocc#%ation in the constit#tional form#lation was with the nat#ral reso#rces) their ex%loitation and sharing of the %roceeds) all of which can conceiva!ly !e carried o#t #% to the limit of the %rovincial !o#ndaries. The conce%t of the #nity and interconnectedness of the environment or the s%ill6over tendency of environmental !ehavio#r was a%%arently ignored. Admittedly) !y vesting the %owers over the en?oyment of the nat#ral reso#rces) the constit#tional %rovisions move in the direction of local levels. 9owever) the very via!ility and s#staina!ility in the management and #tilisation of the nat#ral reso#rces re>#ired recognition of the #nity of ecology and %rovisions !eing made
47 This
widely %#!liciDed controversy is feat#red in -: 2ovem!er &773 1ew&week, at 4-644) and Gan#ary &77' 1ew
$,rica, at "6&5)4&
5: For 5& *ee
a relevant and !rief disc#ssion of the conce%t of %ro!lem6sheds) see Okidi M&7 ";&'36-- N. an ela!orate disc#ssion in 1alters M&77&; 5-:6557G. in $rown61eiss M&7"7; 4::N.
5- I#oted 54 =*ee
1alters s#%ra note 5& at 5-'.
Internal Teaching Use Only 5-
for intervention !y the federal government. One of the %ro!lematic instances of (anada8s constit#tional order and nat#ral reso#rces is in the %rovincial management of water reso#rces) where the res%ective !odies of water are act#ally inter6%rovincial. The %ro!lem has !een ameliorated !y federal water %olicies and leadershi%) which allow for the control of inter6?#risdictional externalities while foc#sing on
integrated watershed management. 55 The other %art of the %ro!lem arises from management of international waterco#rses) s#ch as the <reat ,akes) an instance which has re>#ired treaty making !etween (anada and the U* since &7:7. It is noted) for instance) that in &77& (anada and the United *tates committed themselves) thro#gh an agreement) to im%lement standards to im%rove the ecosystem in the <reat ,akes. At the national level and as re>#ired !y the constit#tion) the agreement was to !e im%lemented !y the Province of Ontario. To realise the o!?ectives of the treaty) the federal and %rovincial officialL negotiated the (anada6Ontario Agreement .es%ecting <reat ,akes 1ater I#ality53 as an administrative arrangement %rescri!ing the modalities for the co6o%eration !etween the two levels of government in the im%lementation of an international agreement. ,ike (anada) the Federal .e%#!lic of <ermany Bas it wasC o%erated a federal system of government. In their case) the federal constit#tion seems ex%licit on matters of ?#risdiction over the environment and nat#ral reso#rces. The constit#tion of the Federal .e%#!lic of <ermany) which was effective in /ay &757 and amended in A#g#st &7 4 %rovides as follows;5'
Everyone &hall have the right to li,e and to inviola#ility o, hi& per&on and Bhe Federation &hall #e the owner o, the ,ormer 9eich waterway&. CIn the admini&tration, development and new con&tr%ction o, waterway& and need& o, &oil c%ltivation and o, water management &hall #e &a,eg%arded in agreement with the LanderC, and CBhe Federation &hall participate in the di&charge o, the ,ollowing re&pon&i#ilitie& o, the Lander, provided that &%ch re&pon&i#ilitie& are important to the &ociety a& a whole and the Federal participation i& nece&&ary ,or the improvement o, living condition& 53oint ta&k&7: Improvement o, the agrarian &tr%ct%re and the coa&t pre&ervation&.C
There is an as%ect to <erman treaty %ractice on water reso#rces which remains #nclear in the context of this st#dy. It seems evident that the Federal <overnment has ?#risdiction over
55 For
details) see 0enneth M&77&N.
53 International 5' Articles
Trans!o#ndary .eso#rces (enter M&775; 465N.
-)"7B&C K 7&.
the management of waterways and) therefore) it wo#ld !e ex%ected that to remain consistent with the <erman general treaty %ractice) only the Federal <overnment) and not the com%onent *tates) wo#ld !e legally ca%a!le of entering into a treaty relation with other sovereign *tates. It has !een fo#nd tho#gh) that its three com%onent *tates) namely $aden) $avaria and 1#rtem!er entered into a treaty with A#stria and *witDerland for the %rotection of waters of ,ake (onstance on 4& A#g#st &"3
5
and again on -- *e%tem!er &"'
5" when
the s#!?ect of the
treaty was reg#lation of international navigation. If those two were too early in the evol#tion and differentiation of constit#tional %owers in the same *tates Bthis time with the new Lander of $aden61#rtem!ergC the states again signed a treaty with A#stria and *witDerland for the %rotection of ,ake (onstance against %oll#tion on - Octo!er I7':. 57 It is intrig#ing that a n#m!er of %rominent federal constit#tions did not make any s%ecific and nota!le %rovisions on the control of the environment and nat#ral reso#rces. The United *tates constit#tion from the eighteenth cent#ry made no %rovision at all. That may !e #nderstanda!le) !#t it is not clear why there has !een no constit#tional amendment to incl#de the s#!?ect des%ite the %ertinent %ro%osals from scholars and (ongressmen) leaving room for des%erate) if also ho%eless) co#rt actions as disc#ssed herein) earlier. The age of the United *tates (onstit#tion may not !e the determining factor in omission of environmental or nat#ral reso#rces %rovisions. The (onstit#tions of com%onent *tates within the U*) which incl#ded nat#ral reso#rces) cover a wide time s%an and incl#de; 3: /assach#setts 6 & ":E Pennsylvania 6 &" 5E 2ew Jork 6 &"75E Illinois 6 &" :E and (alifornia 6 &" ". ,ater dates incl#de 9awaii 6 &737E /ichigan 6&7'5 and 2ew /exico 6&7&&. In %ractice) however) the federal standards in the United *tates s#%ersede the *tate ones. Other federal constit#tions
that have environmental %rovisions !#t %res#ma!ly witho#t ?#risdictional delineation !etween federal and the *tate government are the U**. and J#goslavia. Amongthe constit#tional environmental %rovisions disc#ssed a!ove) the A#strian one makes a distinction worth following #% in a disc#ssion of this kind. .eference is made to the federal level retaining excl#sive com%etence in %rom#lgating the !asic %rinci%les) with the Lander iss#ing the im%lementing reg#lations. This is in a way %arallel to the U* %ractice where the federal stat#tes %rescri!e the minim#m standards) leaving the *tate legislat#res to %rescri!e and enforce either similar or more stringent reg#lations. In %ractice) this %ermits o%eration at the two f#ndamental %rinci%les. First) it %ermits !road latit#de of local level %artici%ation in environmental control and management) which was
5
*ee United 2ations M&7'4; 47&N. at 47-. at 54". The ex%lanation of this %ractice is yet to !e ascertained. M&7"7;4-&64-5N.
5" I#id, 57 I#id,
3: $rown61eiss
identified earlier as one of the f#ndamental %rinci%les in environmental management. *econd) it recognises the #nity of the environment) which re>#ires common and generally a%%lica!le %rotection standards.3& In !oth cases) the act#al o%eration wo#ld de%end on s%ecific local sit#ations and other related constit#tional %rovisions !eca#se the whole national legal regime m#st !e internally consistent. The idea of strict and !asic environmental standards vi&!a!vi& locally enforced and %ossi!ly more stringent re>#irements is now a well acce%ted %ractice. It finds !road analogy in ,aw of the *ea. There are c#rrently several glo!al standards ado%ted within the framework of com%etent international organisations) with the #nderstanding that regional or national legislation incor%orate and enforce the same. 2ote) for instance) that Article -&B-C of the Law o, the -ea Convention %rovides as follows) with res%ect to %oll#tion from vessels;
-tate& &hall adopt law& and reg%lation& ,or the prevention, red%ction and control o,
poll%tion o, marine environment ,rom ve&&el& ,lying their ,lag or o, their regi&try. -%ch law& and reg%lation& &hall at lea&t have the &ame e,,ect a& that o, generally accepted international r%le& and &tandard& e&ta#li&hed thro%gh the competent international organi&ation or general diplomatic con,erence.
Another %ertinent exam%le deals with enforcement with res%ect to %oll#tion from land!ased so#rces. Article -&4 %rovides that;
-tate& &hall en,orce their law& and reg%lation& adopted in accordance with $rticle '(A and &hall adopt law& and reg%lation& and take other mea&%re& nece&&ary to implement applica#le international r%le& and &tandard& e&ta#li&hed thro%gh competent international organi&ation& and diplomatic con,erence& to prevent, red%ce and control poll%tion o, the marine environment ,rom land!#a&ed &o%rce&.
Altho#gh these exam%les are from treaty framework) analogo#s %ractices wo#ld arise in federal systems. Different forms of governments) federal Bor confederateC) %rovincial and local) wo#ld a%%ly the conce%t to fit their sit#ations m%tati& m%tandi& %rovided that the reg#lations res%ect the %rimary intention to ens#re a caref#l !alance !etween res%ect for the #nity and inter6relatedness of the environment and a %ro%er %lace for local %#!lic %artici%ation in decision6making and control over the nat#ral reso#rces) incl#ding e>#ita!le sharing of the economic %roceeds that accr#e therefrom. 3- It is evident from the exam%les that constit#tional entrenchment is a very large and com%lex %art of the str#ct#re of environmental law.
3& 2ote
for instance that the United *tates8 o!?ection to the (anadian Arctic 1aters Poll#tion Prevention Act in
&7 : was !ased largely on the fact that the meas#re was #nilateral and not taking into acco#nt the on6going negotiations within the framework of I/(O Bnow I/OC. They did not challenge the standards as s#ch. *ee disc#ssions in Okidi M&7 ";&5:6&5'N.
3- For
a related disc#ssion) *ee Orie M&773; 5463&N.
Basic !rinciples of Environmental Law Part of the overall str#ct#re of environmental law com%rises the general %rinci%les) made #% of what is #s#ally referred to as soft law instr#ments. These are mainly in form of solemn
declarations of %rinci%les from glo!al or regional organisations. For o#r ill#strative %#r%oses) the disc#ssion is confined to that category of resol#tions ado%ted within the legislative f#nctions of the United 2ations and giving rise to %rinci%les of environmental law. There is scanty record of glo!al resol#tions on the environment and nat#ral reso#rces #ntil &7 -. The United 2ations <eneral Assem!ly .esol#tion on Permanent *overeignty over 2at#ral .eso#rces34 was directed at the >#estion of ownershi% over s#ch reso#rces and the right of *tates to dis%ose of their wealth according to the national develo%ment %olicies and witho#t external coercion. A similar %rinci%le was reiterated !y the U2 <eneral Assem!ly ten years later in the .esol#tion on Permanent *overeignty over 2at#ral .eso#rces on Develo%ing co#ntries.35 This time) the intention was to extend the a%%lication of the %rinci%le to cover marine reso#rces. O%erative %aragra%h & of the latter reaffirmed the right of *tates to %ermanent sovereignty over all their reso#rces) on land within their international !o#ndaries) as well as those fo#nd in the sea!ed and the s#!soil thereof within their national ?#risdiction and in the s#%er?acent waters. (learly) this resol#tion was triggered !y the %rocess at that time of the negotiations for a new legal regime of the oceans. 33 The well known *tockholm Declaration was ado%ted !y the first ever glo!al conference attended !y &&4 *tates to deal with environmental %rotection. The United 2ations (onference on the 9#man +nvironment BU2(9+C concl#ded its work in *tockholm on &' G#ne &7 - and ado%ted Declaration of Princi%les) a set of recommendations and an Action Plan. The *tockholm Declaration) com%rising -' %rinci%les has no !inding force) as s#ch. 9owever) it is an ex%ression of the international consens#s and commitment to evolve the %rotection of the h#man environment in a %artic#lar manner) and it remains a res%ecta!le instr#ment amo#nting to %rinci%les of environmental law as it o#ght to !e. Prom%ted !y its commitment to nat#re conservation) the International Union for the (onservation of 2at#re and 2at#ral .eso#rces BIU(2C 6 or the 1orld (onservation Union) as it is now known 6 decided to !#ild on the enth#siasm generated !y the *tockholm (onference.
It mo!iliDed an international gro#% of ex%erts to %re%are a draft charter which) on a %ro%osal !y Haire as a mem!er) was ado%ted !y the Twelfth <eneral Assem!ly of the IU(2 in *e%tem!er
34 U2<A
.es. &":4 BOFIIC ado%ted on &5 Decem!er &7'- BUnited 2ations Doc#mentation (entre) De%artment of
P#!lic InformationC) availa!le at ;http:>>www.%n.org>doc%ment&>ga>re&>GA>are&lA.htm=.

35 U2<A
.es. 4:&' BOOFIIC ado%ted on &" Decem!er &7 - BUnited 2ations Doc#mentation (entre) De%artment of
P#!lic InformationC) availa!le at P http:>>www.%n.org>doc%ment&>ga>re&>'A>are&'A.hhn=.

33 8This
section draws heavily from the article on this theme in Okidi M&77 ; 4-"N.
&7 3. In &7":) the diatt was leceived !y the U2 <eneral Assem!ly) which agreed to circ#late it among its mem!ers for their reactions. +vent#ally) the doc#ment was ado%ted !y the U2 <eneral Assem!ly as the 1orld (harter for 2at#re on -" Octo!er &7"- 3' !y &)&&- votes in favo#r) one BU*AC against and &" a!stentions. 1hile the *tockholm Declaration was ado%ted !y consens#s) the 1orld (harter was %#t to a vote) yielding overwhelming acce%tance. 2evertheless) it is im%ortant that the United *tates) which had taken a ma?or lead in environmental legislation since the ado%tion of their +nvironmental Protection Act B+PAC in &7'7) sho#ld vote against the charter. It is %ossi!le that the U* o!?ected d#e to the fact that the %rovisions in all the %rinci%les in all the -5 %aragra%hs were ex%ressed in mandatory terms of =shall=. *econdly) with the few exce%tions where the conditions are directed at =all= or =each= %erson) the re>#irements are directed at *tates. Th#s) in their view) we s#%%ose) this created swee%ing o!ligations on *tates in an instr#ment that was not a treaty. It will !e recalled that the *tockholm Declaration was largely in hortatory lang#age) with less than 3 o#t of -' %rinci%les !eing ex%ressed in mandatory terms. The %oint remains) tho#gh) that ten years after the *tockholm Declaration was ado%ted) the world comm#nity resolved to reiterate their commitment to environmental conservation in the same solemn s%irit. The most deli!erately %lanned conference of all these was the United 2ations (onference on +nvironment and Develo%ment BU2(+DC held at .io de Ganeiro in G#ne &77-) and which
ado%ted the .io Declaration and the cele!rated Agenda -&. 1hile the latter reflected the items) which constit#te a %lan of action to !e addressed in the management of the environment as the world moves to the -&st cent#ry) the Declaration sti%#lates the %recise %rinci%les to g#ide %olicy and legislation in the same s%irit as the *tockholm Declaration and the 1orld (harter for 2at#re. The !ackgro#nd to the .io (onference) and therefore to Agenda -& and the Declaration) may %ossi!ly !e traced to %re6*tockholm (onference days when) goaded !y the <ro#% of AA, the *ecretary <eneral of U2(9+ convened a Panel of +x%erts at Fo#nex in *witDerland from 56 &- G#ne &7 & to make recommendations to the conference on the relation !etween =environment and develo%ment=.3 Altho#gh the re%ort of the - ex%erts s#!mitted to the (onference *ecretary6 <eneral is s#%%osed to have dissi%ated the anxiety of the develo%ing co#ntries) the iss#e seemed to have remained on the agenda of the di%lomats who were to %lan the .io (onference) and th#s the >#estion of the environment and develo%ment gave the .io (onference its title. That decision
3' U2<A
.es. 4 BFIIC ado%ted on -" Octo!er &7"- BUnited 2ations Doc#mentation (entre) De%artment of P#!lic
InformationC) availa!le at P http:>>www.%n.org>8ept&>dhl>re&>re&a0A.htrri=.

3
The re%orted entitled =Develo%ment and the +nvironment= %rod#ced !y the Panel of +x%erts to the *ecretary
<eneral of the *tockholm (onference !y a letter of Transmittal) dated &- G#ne &7 & is referenced U2.Doc. A@ (O2+5"@P+D+@.e%ort. The Panel of +x%erts) chaired !y <amani (orea of *ri ,anka) com%rised - mem!ers.
was fortified !y the $r#ndtland (ommission .e%ort) which stressed that environmental conservation is a %rere>#isite to s#staina!le develo%ment. 3" Th#s) the .io Declaration is significant %artly !eca#se it followed after two other very im%ortant soft law instr#ments. The Declaration is also im%ortant !eca#se of the cele!rated $r#ndtland .e%ort) which set its agenda after a!o#t three years of intensive en>#iry. To the <ro#% of AA, the o#tcome of the .io (onference) incl#ding the Declaration) may !e im%ortant
!eca#se they identified with its theme of environment and develo%ment. At the end) the conference ado%ted) among other things) the .io Declaration com%rising - %rinci%les with the doctrine of s#staina!le develo%ment as its organising %rinci%le. 37 These %rinci%les have over the last two decades evolved to !eing incl#ded in different international environmental law instr#ments. They incl#de the %rinci%le that h#man !eings are at the centre of concerns for s#staina!le develo%ment and are entitled to a healthy and %rod#ctive life in harmony with nat#reE the sovereign right of *tates to ex%loit their own reso#rces %#rs#ant to their own environmental and develo%mental %oliciesE and the res%onsi!ility to ens#re that activities within their ?#risdiction or control do not ca#se damage to the environment of other *tates or of areas !eyond the limits of national ?#risdictionE inter and intra6generational e>#ityE integration of environmental %rotection into the develo%ment %rocessE giving %riority to the s%ecial needs of develo%ing co#ntriesE red#ction and elimination of #ns#staina!le %atterns of %rod#ction and cons#m%tion and the %rinci%le of s#!sidiarityE access to ?#stice and access to informationE and enactment of effective environmental legislation. Other %rinci%les incl#de the %rinci%le of common !#t differentiated res%onsi!ilitiesE internalisation of environmental externalitiesE the %reca#tionary %rinci%le and ado%tion of environmental im%act assessment as a national instr#ment to check %ro?ects so as to %rotect the threshold of s#staina!ility. The other soft law instr#ment) which is taken into acco#nt in this cha%ter) is the Draft International (ovenant on +nvironment and Develo%ment which) in this series) !elongs to a class of its own. Unlike the foregoing soft law instr#ments) which were ado%ted !y glo!al fora of international instit#tions) the (ovenant was develo%ed #nder the aegis of the IU(28s
(ommission on +nvironmental ,aw in co6o%eration with the International (o#ncil of +nvironmental ,aw BI(+,C. It is a %rod#ct of the initiative of ex%erts from disting#ished %rofessional organiDations and !enefited from the direct contri!#tion !y over one h#ndred disting#ished %ersonalities in environmental law. This inde%endent initiative commenced in &77: and concl#ded its work in &775. Therefore) it was in motion even as the .io Declaration evolved and took into acco#nt the res#lts of
3" O%r 37 *ee
Common F%t%re &%pra note generally Adede M&773;4465"N
Internal Teaching Use Only 5"
U2(+D. The a#thors were critical eno#gh to face the >#estion of necessity of yet another soft law doc#ment on the environment given the %receding ones that have !een introd#ced a!ove. O#t of the nine reasons stated in the =Foreword= to the doc#ment) the following %resent effective ?#stifications for disc#ssing the (ovenant in the context of this cha%ter. The a#thors gave the three reasons as follows; Q To consolidate into a single ?#ridical framework the vast !ody of widely acce%ted !#t dis%arate %rinci%les of =soft law= on environment and develo%ment Bmany of which are now declaratory of c#stomary international lawCE Q To reinforce the consens#s on the !asic legal norms) !oth internationally) whether not all states are %arty to all environmental treaties) even tho#gh the %rinci%les em!odied in them are #niversally ascri!ed to) and nationally) where administrative ?#risdiction is often fragmented among diverse agencies and the legislation lags !ehindE Q To save on scarce reso#rces and di%lomatic time !y consolidating in one single instr#ment norms) which thereafter can !e incor%orated !y reference into f#t#re agreements) there!y eliminating reform#lation and re%etition) #nless reform#lation is considered necessary. These reasons confirm that the style and content of the (ovenant s#ggest it as a %ossi!le draft convention rather than sim%ly a declaration of %rinci%les. $#t the reasons also confirm a widely held !elief that these declarations of %rinci%les sho#ld !e working towards c#stomary
r#les. In other words) if the international comm#nity is tr#ly committed to a %rinci%le) they sho#ld esta!lish the %osition !y re%etitive declaration of each %rinci%le in different resol#tions. Ordinarily) s#ch %rinci%les will find f#rther incor%oration into treaties while in many cases as they may) in addition) !e sim%ly recognised as !eing declaratory to c#stomary international law of the environment. 9owever) it is !ecoming a concern on the international %lane that s#ch declarations and %rinci%les sho#ld also act#ally find indirect incor%oration into national laws and the .io Declaration) as the latest international declaration) has attracted s#ch an interest. The .oyal 2etherlands <overnment convened and hosted an International +nvironmental (onference on (odifying the .io Princi%les into 2ational ,egislation) which was held at the Peace Palace at The 9ag#e from --6-5 /ay &77') and attended !y over ": ex%erts from all %arts of the world. Another significant international declaration came into !eing in -::-) a decade after the .io (onference on +nvironment and Develo%ment) when the 1orld *#mmit on *#staina!le Develo%ment was convened !y the United 2ations and res#lted in the ado%tion of the Gohannes!#rg Plan of Im%lementation. This %lan was intended to !#ild on the achievements made since the United 2ations (onference on +nvironment and Develo%ment and ex%edite the realisation of the remaining goals.
It is now im%erative to sieve) select and analyDe a few s#ch %rinci%les. For %#r%oses of the %resent disco#rse) we foc#s on only seven %rinci%les that have !een identified and characterised as =core=. In the vario#s soft law instr#ments) we have seen that the *tockholm Declaration has -' %rinci%les) the 1orld (harter for 2at#re is %resented in -5 %aragra%hs #nder the different categories) the .io Declaration has - %rinci%les) ': while the Draft International (ovenant on +nvironment and Develo%ment is in - articles) in treaty form) and
with commentaries. In most cases) there are overla%s among the %rinci%les. $#t the range in the n#m!ers also s#ggests that s#ch overla%s only increase their significance. (learly then) a disc#ssion of the %resent sco%e) which only seeks to stim#late f#rther ex%loration of the s#!?ect) m#st of necessity identify the %rinci%les the enforcement of which will have critical im%act on environmental %rotection. It will also !e clear that the effort is not to disc#ss s%ecific %rinci%les that are %rioritiDed. .ather) it is the central or core conce%ts aro#nd which the %rinci%les are organised that have !een identified. For these %#r%oses) the %rinci%les that have !een identified are seven) namely; BiC *#staina!le #tilisation and inter6generational e>#ityE BiiC Integration of environmental exigencies into develo%ment %lanning and managementE BiiiC P#!lic %artici%ation in environmental mattersE BivC Preca#tionary meas#resE BvC Poll#ter %aysE ) BviC Prior cons#ltation and international co6o%erationE and BviiC Provision of legal and instit#tional arrangements +ach of these is disc#ssed !riefly) with some indications of where they fall in some or all of the declarations.'& Sustaina"le #tilisation and Inter$generational E%uit& The %rinci%le) which states that all environmental management strategies sho#ld !e aimed at meeting the develo%ment o!?ectives of the %resent generation witho#t ?eo%ardising the interests of the f#t#re generations to en?oy the same) is now at the fo#ndation of all environmental legislation and management. It re?ects all %rece%ts of short term economic or ind#strial growth) which ignore conservation as defined a!ove. In fact) with its most %o%#lar ex%ression in the $r#ndtland (ommission as =O#r (ommon F#t#re=) it was %ivotal to the disc#ssions and o#tcome of the .io (onference.
': I#id. '& 2ote
that most of these %rinci%les fo#nd ex%ression in section 4B3C of the +nvironmental /anagement and (oordination
Act B+/(AC &777) and this disc#ssion hel%s to %osition them !y conce%t#al evol#tion and !y historicE I !ackgro#nds.
The %rinci%le fo#nd direct ex%ression in Princi%les & and - of the *tockholm Declaration) %aragra%h 5 in the 1orld (harter for 2at#re) Princi%le 4 of the .io Declaration) and Article 3 of the (ovenant. It was incl#ded in the two !inding instr#ments ado%ted at .io de Ganeiro) namely Article 'BaC of the Convention on Iiological 8iver&ity and Article 4B&C of the Enited 1ation& Framework Convention on Climate Change. It is only the %rinci%le of s#staina!le #tilisation that facilitates the realiDation of the intergenerational e>#ity.'- Therefore) the latter doctrine is act#ally an inextrica!le correlate of the %rinci%le of s#staina!le #tilisation. In the commentary to Article 3) the a#thors of the (ovenant state that inter6generational e>#ity is an essential fo#ndation for all international %rotection and the conce%t of s#staina!le develo%ment. In other words) the develo%ment of environmental law sho#ld !e viewed) initially) as %romoting #tilisation of nat#ral reso#rces) which also %rotects the threshold of s#staina!ility. Integration of Environmental E'igencies into (evelopment !lanning and )anagement The %rinci%le that environmental considerations sho#ld !e taken into acco#nt and) to every extent %ossi!le) integrated into develo%ment %lanning and management is arg#a!ly one of the most revol#tionary ideas in develo%ment tho#ght. It will !e recalled that hitherto) the view in most >#arters has !een that environmental considerations im%ede develo%ment. Until recently) the general %osition has !een that environmental degradation) %artic#larly %oll#tion) is
historically %art and %arcel of the economic and ind#strial %ros%erity of the western world. Tr#ly) this was in fact a manifest conf#sion of conce%ts !eca#se develo%ment sho#ld incl#de >#alitative im%rovement rather than sim%le c#m#lative sectoral growth. /ost o#tstanding is that the %rinci%le re>#ires environmental legislation) which facilitates the integration of environmental exigencies into develo%ment %lanning and management. It red#ces the traditional inordinate reliance on the *tate %olice %owers characterised !y command and control mechanisms. Instead) this %rinci%le %laces the %rimary res%onsi!ility on the line ministries or de%artments to safeg#ard the threshold of s#staina!ility in the act#al management and the %romotion of %rod#ctivity in each sector. $#t the %resent %rinci%le is a conse>#ence of the recognition that develo%ment re>#ires s#staina!le #tilisation of the nat#ral reso#rces and the environment within which they exist. It is a %art of the general recognition that s#staina!le develo%ment re>#ires s#staina!le #tilisation of the nat#ral reso#rces and) therefore) the im%eratives of conservation of the nat#ral reso#rces sho#ld !e %art and %arcel of environmental %lanning and management as they will act#ally %rotect the threshold of s#staina!ility of all the reso#rce sectors. Therefore) in national
'- For
a detailed disc#ssion of the doctrine of intergenerational e>#ity) see $rown61eiss M&7"7N.
legislation) this %rinci%le wo#ld find ex%ression either ex%licitly in the stat#tes or in the nat#re of o!ligations im%osed on the sectoral or f#nctional de%artments. In the *tockholm Declaration) the %rinci%le is not %rovided for ex%licitly while in the .io Declaration it is %rovided for directly and #ne>#ivocally. Princi%le 5 of the latter declaration declares that =MiNn order to achieve s#staina!le develo%ment) environmental %rotection shall constit#te an integral %art of the develo%ment %rocess and cannot !e considered in isolation from it=. $#t the most ela!orate %rovision is in Article &4 of the draft (ovenant) where it is ex%ressed in mandatory terms as a re>#irement for states %re%aring their develo%ment %lans. P+bl%! Pa t%!%(at%on %n En)% on#ental Matte s
It is now well6esta!lished that %#!lic %artici%ation in decision6making is essential for local level develo%ment in general) and in the management of nat#ral reso#rces) in %artic#lar. The %rinci%le may !e directed at em%owerment of the civil society in decision making or) more shar%ly) it may em%ower mem!ers of the %#!lic to seek enforcement of environmental %rotection thro#gh ?#dicial and@or administrative %roced#res. P#!lic %artici%ation may #ltimately !e %rovided for thro#gh at least three legal machineries. First) s#ch a right may !e entrenched in the national constit#tions) often as %art of the $ill of .ights. The second mechanism may !e in the %#!lic %artici%ation in the review of +nvironmental Im%act Assessment B+IAC. As originally develo%ed in the United *tates) and now %racticed worldwide incl#ding in 0enya) the +IA %rocess re>#ires f#ll disclos#re of the %ro?ect) %ossi!le im%act) alternatives to the %ro?ect) and the meas#res to mitigate the %ossi!le im%acts. P#!lic %artici%ation may) in fact) lead to modification or even cancellation of the %ro%osed %ro?ect. Th#s) the legal em%owerment of individ#als and %#!lic %artici%ation is an essential condition of a good environmental law and %ractice. Thirdly) it may o%erate thro#gh direct loc%& &tandi for the %#!lic in environmental ca#ses. 9owever)8 the character of grant of %#!lic %artici%ation may vary from co#ntry to co#ntry. The *tockholm Declaration does not incl#de any ex%licit %rinci%le on %#!lic %artici%ation. The only reference in the *tockholm %rinci%les is Princi%le &7) where ex%licit %rovision for the dissemination of knowledge and information as a form of em%owerment is made. The 1orld (harter for 2at#re #rges) in %aragra%h &4) that all %ersons shall) thro#gh national laws) have the o%%ort#nity to %artici%ate individ#ally or with others) in decision making in environmental matters. The .io Declaration makes %rovision for %#!lic %artici%ation in Princi%les &:) -:) -& and --. Of these %rovisions) Princi%le &: is !road and all6encom%assing. The other three are s%ecific to the %romotion of %artici%ation !y women) yo#th and indigeno#s %eo%le
res%ectively) as agents of s#staina!le develo%ment. !recautionar& )easures
Under this r#!ric is the %rinci%le re>#iring that every %reca#tion and %r#dence !e exercised to %revent any %ossi!le deleterio#s environmental conse>#ences of any socio6economic or military activities. *#ch meas#res may !e in different forms. It is im%ortant to note that since the ado%tion of the .io Princi%les in &77-) the most %o%#lar category of %reca#tionary meas#res is the one well6known as the reca%tionary rinciple. For %#r%oses of this cha%ter) other forms of %reca#tionary meas#res are +nvironmental Im%act Assessment B+IACE +nvironmental .isk /anagement B+.ACE +nvironmental A#dit and +nvironmental /onitoring. The %reca#tionary %rinci%le) +.A and +nvironmental A#dit do not a%%ear in the *tockholm Declaration. 9owever) +IA and environmental monitoring are all#ded to in Princi%les 3 and '. The 1orld (harter for 2at#re is a lot clearer on the %reca#tionary meas#res) %artic#larly in %aragra%hs &&) &' and &7. Paragra%h && s#ggests the re>#irement for +IA. +nvironmental a#dit and monitoring are %rovided for in %aragra%h &7) even tho#gh the two conce%ts re>#ire delineation. The .io Declaration is) for the first time) ex%licit on the %reca#tionary %rinci%le as #nderstood today) while +IA is s%ecifically re>#ired in Princi%le & . 9owever) there is no direct reference to +.A) +nvironmental A#dit or /onitoring. The (ovenant is ex%licit on the %reca#tionary %rinci%le) which is %rovided for rather laconically in Article . *%ecific %rovisions for +IA and +nvironmental /onitoring are in Articles 4 and 47) res%ectively. To some extent) environmental a#dit may !e deemed im%lied in Article 47) !#t it is clear that %reca#tionary meas#res are ade>#ately catered for in the (ovenant. !olluter !a&s !rinciple The %rinci%le is #sed here !roadly to im%ly that whoever is res%onsi!le for environmental degradations sho#ld !e res%onsi!le for its re%aration) covering !oth civil lia!ility and criminal res%onsi!ility. In other words) we shall seek to ascertain if the Declarations re>#ire *tates to
ens#re !oth in their legislation and enforcement at m#nici%al level. In the *tockholm Declaration Princi%le -&) *tates have sovereign rights to Utilise their nat#ral reso#rces in accordance with their national %olicies !#t a res%onsi!ility to ens#re that activities in their territories do not ca#se harm to the territories of other *tates or cross !eyond national ?#risdiction. 9owever) %rinci%le -- re>#ires *tates to coo%erate in the develo%ment of international law regarding lia!ility and com%ensation for victims of environmental damage
ca#sed within their ?#risdiction. In the 1orld (harter for 2at#re) %aragra%h -&BdC im%oses an o!ligation on *tates to ens#re that activities in their territories do not harm the interests !eyond the limits of national ?#risdiction. These may !e %res#med to im%ly lia!ility in the *tates. The .io. Declaration is ex%licit in its Princi%le &4 where *tates are re>#ired to develo% national laws regarding lia!ility and com%ensation to victims of %oll#tion and other environmental damage. The (ovenant) on the other hand) has ela!orate %rovisions on res%onsi!ility and lia!ility in Part IO. Article 5 is s%ecifically on *tate res%onsi!ility while Article 5" im%oses *tate lia!ility for environmental in?#ries on other territories.
(learly) there is ra%id develo%ment of soft law %rovisions towards lia!ility for environmental in?#ries) and the (ovenant has attem%ted a detailed differentiation of the level in each with an ela!oration of the availa!le remedies.
P %o Cons+ltat%on an* Ult%#ate Co1o(e at%on O#r en>#iry #nder this category is to ascertain the extent to which soft law instr#ments have %rovided for re>#irements for %rior cons#ltation and@or co6o%eration in environmental management. Admittedly) %rior cons#ltation is essential for co6o%eration) !#t the o!ligation to #ndertake %rior cons#ltations does not) ip&o ,acto, im%ly that there is co6o%eration. 2or yet does commitment to %rior cons#ltation im%ly acce%tance of veto over the %ro?ect involved. It may
only im%ly an acce%tance of co6existence. 9owever) !eca#se of that link) the two as%ects are treated together. In the *tockholm Declaration) there is an ex%licit %rovision to this effect in Princi%le -5) which re>#ires that matters of environmental %rotection !e handled in a coo%erative s%irit !y all co#ntries) !ig and small and@or e>#al footing. It f#rther #rged for coo%eration thro#gh !ilateral and m#ltilateral agreements. Paragra%h -&BaC of the 1orld (harter for 2at#re is also ex%licit in re>#iring *tates and their com%onent instit#tions to co6o%erate in the tasks related to conservation of the environment) incl#ding thro#gh information exchange and cons#ltation. The .io Declaration is e>#ally ex%licit in Princi%le ) where it re>#ires *tates to co6o%erate in the s%irit of glo!al %artnershi% to conserve) %rotect and) as a%%ro%riate) restore the health and integrity of the earth8s ecosystem. The draft (ovenant in Article 44 calls for %rior and timely notification when a %ro%osed activity is likely to ca#se trans!o#ndary environmental harm. The article #rges f#rther that the cons#ltations !e cond#cted in good faith with s#ch *tates at an early stage. *imilarly) Article 45 re>#ires *tates to co6o%erate in the conservation and management of trans!o#ndary nat#ral reso#rces and to do so on the !asis of e>#ity and reci%rocity. 1here a%%ro%riate) they sho#ld concl#de !ilateral and m#ltilateral agreements.
P o)%s%on of Le$al an* Inst%t+t%onal Me!&an%s#s A %rinci%le that re>#ires the *tates to ado%t legal arrangements and instit#tional mechanisms is the !ottom6line for act#al a%%lication of all the %rinci%les disc#ssed so far. The act#al develo%ment and enforcement of environmental law will re>#ire the s%ecification of the normative demands) instit#tional arrangements and the %roced#ral mechanismsE one wo#ld ex%ect the vario#s soft laws to make a%%ro%riate %rovisions.
The %res#m%tion #nderlying this %rinci%le is that it is not ade>#ate to #rge *tates to %rovide for any of the s%ecific %rinci%les a!ove. .ather) there sho#ld !e an ex%licit re>#irement for *tates to enact and effect im%lementing laws. As an ena!ling %rovision) this sho#ld a%%ly to the !road array of %rinci%les. The a#thors of the *tockholm Declaration were %res#ma!ly %reocc#%ied with the ade>#acy of instit#tional arrangements) which arose from the ex%erience of the western co#ntries in the &7':s and led to the law esta!lishing the U* 2ational +nvironmental Protection Agency as an a%ex !ody. Th#s) Princi%le & re>#ired the esta!lishment of a%%ro%riate national instit#tions to !e entr#sted with the overall environmental %rotection and management. The 1orld (harter for 2at#re does not ex%licitly re>#ire the ado%tion of legal and instit#tional arrangements. 9owever) it is im%lied in the %rovisions) which call for s%ecific items to !e %rovided for in the national legislation. An exam%le is %aragra%h -4) which only re>#ires national law to %rovide for %#!lic %artici%ation. Princi%le && of the .io Declaration re%resents a %ertinent exam%le. Its first sentence s%ecifically re>#ires *tates to enact effective environmental legislation. In addition) it #rges for ado%tion of environmental standards) which im%lies develo%ment of im%lementing reg#lations. *imilarly) Article &4B-C of the draft (ovenant s%ecifically re>#ires *tates to enact effective laws and reg#lations that #se) where a%%ro%riate) economic instr#ments to ind#ce com%liance. For tr#e com%leteness) the article also re>#ires *tates to esta!lish or strengthen instit#tional str#ct#res and %roced#res to f#lly integrate environmental considerations into develo%ment %lanning and decision making. The %rinci%les disc#ssed a!ove are selectively identified on the !asis of what the a#thor considers as their significance for environmental legislation and the management of nat#ral reso#rces for s#staina!le develo%ment. It does not constit#te a final list in any >#arter. 9owever) it will %rovide a !asis for disc#ssion and a%%raisal of the %rinci%les in each of the fo#r soft law instr#ments. It is also significant that the set of %rinci%les %rovides #s with a !asis for critical a%%raisal of national environmental legislation vi&!a!vi& the emerging general %rinci%les of environmental law.
The concerns that %rom%ted the D#tch government to convene an international conference to examine the extent to which the .io Princi%les have !een incor%orated into national laws also #nderscore the concern of some of the governments with the iss#es. 9owever) the fact that
over ": ex%erts from aro#nd the world attended the conference confirms that concern. The im%ortant %oint is that the foc#s has not !een directed at African co#ntries. This may !e confirmed) in %art) !y the fact that when the D#tch government convened the G#ne &77' (onference to examine the trends in codification of the .io Declaration) a total of "4 %artici%ants were invited. O#t of that total only two) from $enin and Him!a!we) were from African co#ntries. It wo#ld !e interesting to know what yardstick was a%%lied in the selection as it might mean that Africa is relegated to the !ackyard when it comes to new develo%ments and %ractice in environmental laws. 1e may concl#de that the %rinci%les en#nciated in soft law re%resent a vital %art of the str#ct#re of environmental law. They are %ers#asive in their own rights as ex%ressions of what o#ght to !e acce%ted as law. *ome of them have !een incor%orated into national stat#tes. A good exam%le is *ection 4B3C of 0enya8s framework environmental law where the 9igh (o#rt is en?oined to !e g#ided !y %recisely these %rinci%les in determining cases !efore it. *reat& Law on the Environment It will !e recalled that o#r definition of environmental law incl#ded environmental treaties) whether glo!al or regional. 9owever) international law maintains that treaties confer rights and o!ligations only on %arties) following on the doctrines of pacta &%nt &ervanda and pacta tertii& nee nacent nee pro&%nt. In other words) s#ch6treaties have legally !inding force only to a co#ntry that has ex%ressed consent to !e !o#nd. There is only the s%ecial >#alification ex%ressed in Article &" of the Jienna Convention on Law o, Breatie& to the effect that a
co#ntry is #nder o!ligation not to fr#strate o!?ectives of a treaty it has signed !#t not ratified or when a *tate has ex%ressed consent !#t !efore entry into force. 1e sho#ld note) too that a third *tate may en?oy rights where %arties s%ecifically #nilaterally and deli!erately decide to extend s#ch rights.'4 There is no %lan) in this cha%ter) to %rovide an exha#stive disc#ssion of glo!al and regional environmental agreements. In their 9egi&ter o, Breatie& and Other $greement& in the Field o, Environment,H? U2+P listed -&' instr#ments of regional and glo!al instr#ments. In showing similar treaties !#t of %artic#lar interest to Africa and Asia) the Asia6Africa ,egal (ons#ltative (ommittee identified 54 agreements. '3 $oth %#!lications confirm that this cha%ter can only !e selective and re%resentative. *ome of the treaties disc#ssed in this section form the gist of other cha%ters of the !ook) hence their coverage herein is a mere introd#ction.
'4 Article '5 U2+P
4'. M&77'N. ,egal (ons#ltative (ommittee) 6and#ook o, Environmental Law B2ew DelhiC B&777C.
'3 Asian6African
Agreements on the !rotection of the Atmosphere The emergence of adverse effects on the atmos%here) as well as climate change d#e to anthro%ocentric actions has led the international comm#nity to the negotiating ta!le to %#t in %lace mitigating meas#res. First were efforts to c#r! oDone de%letion) which led to the &7"3 Jienna Convention ,or the rotection o, the O2one Layer and the &7" /ontreal Protocol on *#!stances that De%lete the ODone ,ayer. These efforts were followed !y negotiations for a mechanism to mitigate climate change) and which led to the ado%tion of the &77- Enited 1ation& Framework Convention on Climate Change BU2F(((C and the &77 0yoto Protocol to this (onvention.
Vienna Convention for the Protection of the Ozone Layer, 19 ! The iss#e of oDone de%letion was first disc#ssed !y the <overning (o#ncil of the United 2ations +nvironment Programme BU2+PC in &7 '. A meeting of ex%erts on the oDone layer was convened in &7 ) after which U2+P and the 1orld /eteorological Organisation B1/OC set #% the (o6ordinating (ommittee of the ODone ,ayer B((O,C to %eriodically assess oDone de%letion. Inter6governmental negotiations for an international agreement to %hase o#t oDone de%leting s#!stances started in &7"& and concl#ded with the ado%tion of the Jienna convention ,or the rotection o, the O2one Layer in /arch &7"3.'' The Fienna (onvention enco#rages inter6governmental co6o%eration on research) systematic o!servation of the oDone layer) monitoring of chlorofl#orocar!on B(F(C %rod#ction) and the exchange of information. Parties are o!ligated to take a%%ro%riate meas#res to %rotect h#man health and the environment against adverse effects res#lting or likely to res#lt from h#man activitie&, which modify or are likely to modify the oDone layer. These s#!stances incl#de car!on s#!stances s#ch as (ar!on monoxide) (ar!on dioxide) /ethane B(95C and non6methane hydrocar!on s%eciesE 2itrogen s#!stances s#ch as 2itro#s oxide B2-:C and 2itrogen oxides B2OxCE (hlorine s#!stances s#ch as f#lly halogenated alkanes Bs#ch as ((&5) (F(&4C and %artially halogenated alkanes) s#ch as (94(&) (9F-(&E $romine s#!stances s#ch as f#lly halogenated alkanes) s#ch as (F $rE and 9ydrogen s#!stances s#ch as 9ydrogen B9-C and 1ater B9-:C. Parties are re>#ired to initiate and co6o%erate in the cond#ct of research and scientific assessments on the %hysical and chemical %rocesses that may affect the oDone layer) the h#man health and other !iological effects deriving from any modifications of the oDone layer) %artic#larly those res#lting from changes in #ltra6violet solar radiation having !iological effectsE climatic effects deriving from any modifications of the oDone layerE s#!stances)
'' *ee
;wiow.%nep.org>O2one= BAccessed on &7 Decem!er -::'C. For a detailed analysis) see $anko!eDa K <il!ert
M-::3N
%ractices) %rocesses and activities that may affect the oDone layer) and their c#m#lative effectsE and alternative s#!stances and technologies. F#rther) %arties to the (onvention are re>#ired to facilitate and enco#rage the exchange of scientific) technical) socio6economic) commercial and legal information relevant to this (onvention. This is in addition to transmission to the *ecretariat of meas#res #ndertaken !y them in the im%lementation of the (onvention. A (onference of Parties is esta!lished !y the (onvention regime) with %owers to contin#o#sly review the (onvention) amend it or even ado%t additional %rotocols. "ontreal rotocol on -%#&tance& that 8eplete the O2one Layer, GD)A The /ontreal Protocol on *#!stances that De%lete the ODone ,ayer was ado%ted in *e%tem!er &7" . It was designed so that the %hase o#t sched#les co#ld !e revised on the !asis of %eriodic scientific and technological assessments. The Protocol was ad?#sted to accelerate the %hase o#t sched#les. The %hase o#t sched#les are as follows; Phase o#t halons !y &775E %hase o#t (F(s) car!on tetrachloride) methyl chloroform) and hydro!romofl#orocar!oms B9$F(sC !y &77'E red#ce methyl !romide !y -3R !y &777) 3:R !y -::&) :R !y -::4) and %hase o#t !y -::3E red#ce 9(F(s !y 43R !y -::5) '3R !y -:&:) 7:R !y -:&3) and 77.3R !y -:-:) with :.3R %ermitted for maintenance %#r%oses only #ntil -:4:E %hase o#t 9$F(s !y &77' and %hase o#t !romochloromethane B$(/C immediately. The Protocol has also !een amended to introd#ce other kinds of control meas#res and to add new controlled s#!stances to the list. (ontrol meas#res #nder the %rotocol incl#de red#ction of halo car!ons) nota!ly chlorofl#orocar!ons B(F(sC and halons) car!on
tetrachloride) methyl chloroform) hydro!romofl#orocar!ons B9$F(sC) hydrochlorofl#orocar!ons B9(F(sC) methyl !romide B(94$rC) and !romochlo6methane B$(/C. The /ontreal Protocol and its Amendment constit#te a mechanism for the %hasing o#t of oDone de%leting s#!stances. The control meas#res and %hase o#t sched#les cover !oth the %rod#ction and the cons#m%tion of the target s#!stances. 9owever) even after %hase o#t) !oth develo%ed and develo%ing co#ntries are %ermitted to %rod#ce limited >#antities in order to meet the essential #ses for which no alternatives have yet !een identified. The /ontreal Protocol has !een amended severally) each amendment altering an as%ect of the legal regime of the Protocol. The amendments incl#de; Bhe London $mendment The ,ondon Amendment was ado%ted in &77: at the *econd /eeting of the Parties to the /ontreal Protocol held in ,ondon. The amendment introd#ced control meas#res for !oth
%rod#ction and cons#m%tion for three new gro#%s of s#!stances) namely other halogenated chlorofl#orocar!ons B(F(sC BAnnex $) <ro#% I s#!stancesC) car!on tetrachloride BAnnex $) <ro#% IIC and methyl chloroform or &)&)&6trichloroethane BAnnex $) <ro#% IIIC. (ontrol meas#res also incl#ded restrictions on trade with non6%arties. ' The amendment entered into force on &: A#g#st &77-. Bhe Copenhagen $mendment The (o%enhagen Amendment was ado%ted in &77- at the Fo#rth /eeting of the Parties to the /ontreal Protocol held in (o%enhagen. The amendment introd#ced control meas#res for cons#m%tion only for hydrochlorofl#orocar!ons B9(F(sC BAnnex () <ro#% I s#!stancesC. The amendment f#rther introd#ced control meas#res for !oth %rod#ction and cons#m%tion for two new gro#%s of s#!stances) namely 9$F(s BAnnex () <ro#% II s#!stancesC and methyl !romide BAnnex +) <ro#% IC. The Amendment entered into force on &5 G#nel775. '"
Bhe "ontreal $mendment The /ontreal Amendment was ado%ted in &77 at the 2inth /eeting of the Parties to the /ontreal Protocol held in /ontreal. This is the only amendment that did not introd#ce new s#!stances to the Protocol. Instead) the amendment introd#ced the re>#irement for each %arty to esta!lish and im%lement a system for licensing the im%ort and ex%ort of new) #sed) recycled and reclaimed controlled s#!stances.'7 There is an exce%tion %rovided for develo%ing co#ntries) like 0enya) which decide they are not in a %osition to esta!lish and im%lement a system for licensing the im%ort and ex%ort of controlled s#!stances in Annexes ( and +) and which may delay taking those actions. The Amendment entered into force on &: 2ovem!er &777. Bhe Iei3ing $mendment The $ei?ing Amendment was ado%ted in &777 at the +leventh /eeting of the Parties to the /ontreal Protocol held in $ei?ing. The amendment introd#ced control meas#res for
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United 2ations +nvironment Programme BU2+PC) $mendment& to the "ontreal rotocol: Bhe London $mendment&
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2ations +nvironment Programme BU2+PC) "ontreal $mendment& to the "ontreal rotocol: $mendment to
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%rod#ction for 9(F(s BAnnex () <ro#% I s#!stancesC and im%osed restrictions on trade with non6%arties for these 9(F(s. The amendment f#rther introd#ced control meas#res for !oth %rod#ction and cons#m%tion for one new gro#% of s#!stances) namely !romochloromethane or $(/ BAnnex () <ro#% III s#!stanceC.
&
This amendment contained a %rovision !arring any %arty from acceding to) a%%roving) acce%ting or ratifying the amendment #nless they have done so for the /ontreal Amendments of &77 . - The amendment entered into force on -3 Fe!r#ary -::-.
4
The /ontreal Protocol has also #ndergone vario#s ad?#stments to accelerate the %hase o#t
sched#les of s#!stances that de%lete the oDone layer on the !asis of %eriodic scientific and technological assessments. 9ence) ad?#stments to the Protocol were introd#ced in ,ondon in &77:) (o%enhagen in &77-) Fienna in &773) /ontreal in &77 ) and $ei?ing in &777. The &77: ,ondon Ad?#stments tightened the control meas#res on Annex A s#!stances and !ro#ght forward the %hase6o#t dates to earlier dates. These s#!stances incl#de (F(s and halons. The ad?#stments entered into force on /arch &77&. 5 The &77- (o%enhagen Ad?#stments f#rther tightened the controls on Annex A controlled s#!stances) and introd#ced tight controls for Annex $ s#!stances s#ch as other f#lly halogenated (F(s) car!on tetrachloride and trichloroethane Bmethyl chloroformC. These ad?#stments entered into force on -4 *e%tem!er &774.
3
The &773 Fienna Ad?#stments tightened controls on Annex + s#!stances s#ch as methyl !romide. /ost significantly) however) is the fact that this ad?#stment res#lted in revision of !aselines for develo%ing co#ntries Botherwise called Article 3 PartiesC and availed an allowance to delay for ten years com%liance with the control meas#res introd#ced thro#gh the &77: ,ondon Ad?#stments.
'
Enited 1ation& Framework Convention on Climate Change, GDD' The Enited 1ation& Convention on Climate Change was o%ened for signat#re in .io de Ganeiro on 3 G#ne &77-. Its %rimary o!?ective is to control or sta!iliDe the greenho#se gas concentrations in the atmos%here and to %revent all forms of anthro%ogenic interferences with climate. F#rther) it commits the %arties to initiate and im%lement research and exchange information)
& United
2ations +nvironment Programme BU2+PC) Iei3ing $mendment& to the "ontreal rotocol: $mendment to the
"ontreal rotocol adopted #y the Eleventh "eeting o, the artie& ! $rticle ' BU2+P) ODone *ecretariatC) availa!le at ;wiow.%nep.org>treatie&+and+rati,ication&= BAccessed on " Decem!er -::'C.
- United
2ations +nvironment Programme BU2+PC) $ei?ing Amendments to the /ontreal Protocol; Amendment
to the /ontreal Protocol ado%ted !y the +leventh /eeting of the Parties 6 Article - BU2+P) ODone *ecretariatC) availa!le at ;i%<v<v.%nep.org>treatie&++and+rati,ication&= BAccessed on " Decem!er -::'C.
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5
United 2ations +nvironment Programme BU2+PC) Ad?#stments to the /ontreal Protocol BU2+P) ODone *ecretariatC.
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3 I!id. ' I#id.
Internal Teaching Use Only ':
which %romotes the o!?ectives of the (onvention. The (onvention entered into force on -& /arch &775. It sets an overall framework for intergovernmental efforts to tackle the challenge %osed !y climate change. It recognises that the climate system is a shared reso#rce whose sta!ility can !e affected !y ind#strial and other emissions of car!on dioxide and other greenho#se gases. The (onvention en?oys near #niversal mem!ershi%) with &"7 co#ntries having ratified it. Under the (onvention) governments; Q gather and share information on greenho#se gas emissions) national %olicies and !est %ractices Q la#nch national strategies for addressing greenho#se gas emissions and ada%ting to ex%ected im%acts) incl#ding the %rovision of financial and technological s#%%ort to develo%ing co#ntries Q co6o%erate in %re%aring for ada%tation to the im%acts of climate change The (onvention sets an #ltimate o!?ective of sta!ilising greenho#se gas concentrations at a level that wo#ld %revent dangero#s anthro%ogenic interference with the climate system. It states that s#ch a level sho#ld !e achieved within a time frame s#fficient to allow ecosystems to ada%t nat#rally to climate change) to ens#re that food %rod#ction is not threatened) and to ena!le economic develo%ment to %roceed in a s#staina!le manner. 7 The key conce%t here is ens#ring s#staina!ility) defined at the !eginning of this cha%ter as adhering to intergenerational e>#ity. The (onvention re>#ires %recise and reg#larly #%dated inventories of greenho#se gas emissions from ind#strialised co#ntries. The first ste% in solving a %ro!lem is knowing the
"
!enchmark or initial dimensions. 1ith a few exce%tions) the =!ase year= or year of set threshold for ta!#lating greenlio#se gas emissions has !een set as &77:. Develo%ing co#ntries are also enco#raged to carry o#t inventories. The %arties to the (onvention are o!ligated to take climate change into acco#nt in s#ch matters as agric#lt#re) ind#stry) energy) nat#ral reso#rces) and activities involving sea coasts and to develo% national %rogrammes to slow climate change.": The (onvention %laces the heaviest !#rden for fighting climate change on ind#strialised nations) since they are the so#rce of most %ast and c#rrent greenho#se gas emissions within the %rinci%le of common !#t differentiated res%onsi!ility. These co#ntries are asked to do the
(ommentary in 9odas M&773; 367'N.
" United
2ations Framework (onvention on (limate (hange) E&&entia> Iackgro%nd to the Convention 5E1FCCC
+ -ecretariat7, availa#le at ;http>>%n,ccc.int>e&&ential+#ackgro%nd>item&>')AA.php= BAccessed on &- Decem!er -::'C.

7 I#id,
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-::'C.
": I#id.
Internal Teaching Use Only '&
most to red#ce greenho#se gas emissions. Ind#strialised nations agree #nder the (onvention to s#%%ort climate change activities in develo%ing co#ntries !y %roviding financial s#%%ort a!ove and !eyond any financial assistance they already %rovide to these co#ntries. A system of grants and loans has !een set #% thro#gh the (onvention and is managed !y the <lo!al +nvironment Facility. Ind#strialised co#ntries also agree to share technology with less6advanced nations. "& The (onvention recognises that it is a framework instr#ment) an instr#ment #nder which s#%%lementary agreements may !e ado%ted over timeE that efforts to deal with glo!al warming and climate change can !e foc#sed and made more effective. The first addition to the treaty) the 0yoto Protocol) was ado%ted in &77 . *he 1++, -&oto !rotocol to the #nited .ations Framework Convention on Climate Change/0
The Protocol8s ma?or feat#re is that it has mandatory targets on greenho#se gas emissions for the develo%ed co#ntries) which are listed in Annex I. They are re>#ired to ens#re that their aggregate anthro%ogenic car!on dioxide e>#ivalent emissions of the greenho#se gases) listed in Annex A) do not exceed their assigned amo#nts) calc#lated %#rs#ant to their >#antified emission limitation and red#ction commitments inscri!ed in Annex $. This is calc#lated in accordance with the %rovisions of the Protocol) with a view to red#cing their overall emissions of s#ch gases !y at least 3 %er cent !elow &77: levels in the commitment %eriod -::" to -:&-."4 The Protocol offers a flexi!le mechanism in how co#ntries may meet their targets. For this reason) s#ch co#ntries may increase their car!on sinks) car!on trading or thro#gh the (lean Develo%ment /echanism. F#rther) each Annex & %arty is re>#ired to set #% a national system for the estimation of anthro%ogenic emissions. In addition) for the %#r%ose of meeting their commitments to red#ce greenho#se gas emissions) Annex I %arties are allowed to transfer or ac>#ire from any other %arty emission red#ction #nits res#lting !y s#%%orting %ro?ects aimed at red#cing anthro%ogenic emissions or enhancing removals !y sinks of greenho#se gases in any sector of the economy. Under the %rotocol) a (lean Develo%ment /echanism is esta!lished. +ssentially) ind#strialised co#ntries f#nd for %ro?ects that c#t or avoid emissions in non6ind#strialised nations) and the former are awarded credits that can !e a%%lied to meeting their own emissions
"& l#id. "- $othe
K .eh!inder M-::3N. 4.
"4 Article
Internal Teaching Use Only '-
targets. The reci%ient co#ntries !enefit from free inf#sions of advanced technology that allow their factories or electrical generating %lants to o%erate more efficiently and hence at lower
costs and higher %rofits. The atmos%here !enefits !eca#se f#t#re emissions are lower than they wo#ld have !een witho#t that intervention. The Protocol also %rovides for =Goint im%lementation=) a %rogramme that allows ind#strialised co#ntries to meet %art of their re>#ired c#ts in greenho#se6gas emissions !y %aying for %ro?ects that red#ce emissions in other ind#strialiDed co#ntries. In %ractice) this will likely mean facilities !#ilt in the co#ntries of +astern +#ro%e and the former *oviet Union Bthe transition economiesC financed !y 1estern +#ro%ean and 2orth American co#ntries. The s%onsoring governments receive credits that may !e a%%lied to their emissions targets while the reci%ient nations gain foreign investment and advanced technology. The o%eration of the ?oint im%lementation mechanism is similar to that of the (lean Develo%ment /echanism. "5 Agreements elating to Flora and Fauna
There are international agreements that address the diverse com%onents of the environment. *ome are sectoral instr#ments) s#ch as those dealing with wildlife) and wetlands) while others are framework agreements s#ch as those dealing with !iological diversity and nat#ral reso#rces generally. Indeed) while some of the agreements may !e glo!al) others are regional and even s#!6regional) a fact which does not diminish their significance. Convention on /etland& o, International Importance e&pecially a& /ater,owl 6a#itat 59am&ar Convention7 GDAG The Convention on /etland& o, International Importance e&pecially a& /ater,owl 6a#itat was ado%ted on - Fe!r#ary &7 & !y *tates meeting #nder the a#s%ices of the United 2ations in the Iranian (ity of .amsar. The %rinci%le o!?ective of the (onvention is to stem the %rogressive encroachment on and loss of water lands now and in the f#t#re) recognising the f#ndamental ecological f#nctions of wetlands and their economic) c#lt#ral) scientific and recreational val#e.
Under this regime) %arties are re>#ired to designate at least one national wetland for incl#sion in a ,ist of 1etlands of International Im%ortance. This is !esides the %rimary o!ligation of %arties to form#late and im%lement their %lanning so as to %romote the conservation of the wetlands) incl#ded in the ,ist and the #se of wetlands within national ?#risdictionE and to esta!lish nat#re reserves) co6o%erate in the exchange of information) and train %ersonnel for wetland management. The (onvention entered into force on -& Decem!er
"5 United
2ations Framework (onvention on (limate (hange) E&&ential Iackgro%nd to the Kyoto rotocol
BU2F((( *ecretariatC) availa!le at ;http:>>%n,ccc.int>kyoto+protocol>#ackgro%nd>item&>'))'.php= BAccessed on &- Decem!er -::'F
Internal Teaching Use Only '4
&7 3. rotocol to $mend the Convention on /etland& o, International Importance e&pecially a& /ater,owl 6a#itat, GD)' Ado%ted on 4 Decem!er &7"-) this Protocol was intended to render the &7 & .amsar (onvention more effective. Among its %rinci%al %rovisions intended to im%rove the .amsar (onvention is the incl#sion of article lOfe to define a mechanism to amend the (onvention. It also declared that all the original text of the (onvention are e>#ally a#thentic) while stating that the revised text of the original French version of the convention is re%rod#ced in the annex to the %rotocol. The %rotocol enterened into force on &st Octo!er &7"'. Convention on International Brade in Endangered -pecie& o, /ild Fa%na and Flora 5CIBE-7 GDA0)@ Ado%ted on 4 /arch &7 4 !y %arties meeting in 1ashington D() the (IT+* entered into force on & G#ly &7 3 with the %rinci%le o!?ective of %rotecting endangered s%ecies from overex%loitation !y means of a system of im%orts@ex%ort %ermits. The sco%e of the (onvention
extends to animals and %lants) whether dead or alive) and any recognisa!le %arts or derivatives. The legal regime #nder (IT+* o%erates thro#gh a%%endices) with A%%endix I covering endangered s%ecies) the trade in which is to !e tightly controlledE A%%endix II covering s%ecies that may !ecome endangered #nless trade is reg#latedE A%%endix III covering s%ecies that any %arty may wish to reg#lateE and A%%endix IF containing model %ermits. *trict %ermits to !e iss#ed !y the scientific and@or management a#thorities of either the *tate of im%ort or ex%ort) as the case may re>#ire) are re>#ired for s%ecies listed #nder A%%endix I and II. These %ermits sho#ld state that this ex%ort@im%ort will not !e detrimental to the s#rvival of the s%ecies in >#estion. Convention Concerning the rotection o, the /orld C%lt%ral and 1at%ral 6eritage, GDA' )H The Convention Concerning the rotection o, the /orld C%lt%ral and 1at%ral 6eritage was ado%ted on &' 2ovem!er &7 - !y %arties meeting #nder the a#s%ices of the <eneral (onference of the United 2ations +d#cational) *cientific and (#lt#ral Organisation BU2+*(OC meeting in Paris) at its seventeenth session. The key o!?ective of the (onvention is to esta!lish an effective system of collective %rotection of the c#lt#ral and nat#ral heritage of o#tstanding #niversal val#e) organised on a %ermanent !asis and in accordance with modern scientific methods. It confers on each *tate %arty the %rimary d#ty of identification) %rotection) conservation and
"3 *ee "' *ee
disc#ssion in context !y Okidi M&775aN. disc#ssion in 0ameri6/!ote M-::-N.
transmission of its c#lt#ral and nat#ral heritage to f#t#re generations. The legal regime of the (onvention re>#ires %arties to integrate the %rotection of their heritage into com%rehensive
%lanning %rogrammes and to set #% services to %rotect s#ch heritage. Parties are re>#ired to s#!mit) to the 1orld 9eritage (ommittee esta!lished #nder the convention) a list of %ro%erties forming %art of its c#lt#ral and nat#ral heritage. The committee is then re>#ired to maintain a =1orld 9eritage ,ist= consisting of those %ro%erties s#!mitted !y *tate %arties and which it considers as having o#tstanding #niversal val#e. The (onvention also esta!lishes a world heritage f#nd from which any %arty may re>#est assistance for %ro%erty forming %art of its heritage) with s#ch assistance !eing granted in the form of st#dies) %rovision of ex%erts) training of staff) s#%%ly of e>#i%ment) loans) etc. The (onvention entered into force on & Decem!er &7 3. Convention on the Con&ervation o, "igratory -pecie& o, /ild $nimal&, GDAD This (onvention was ado%ted on -4 G#ne &7 7 and entered into force on & 2ovem!er &7"4 with the %rimary o!?ective of %rotecting those s%ecies of wild animals that migrate across or o#tside national !o#ndaries." The (onvention a%%lies an a%%endix system #nder which all endangered migratory s%ecies are to !e listed in A%%endix I while all migratory s%ecies that have an #nfavo#ra!le conservation stat#s and which re>#ire international agreements for their conservation and management or wo#ld significantly !enefit from s#ch a system) are listed in A%%endix II. For this reason) the (onvention re>#ires range *tates to endeavo#r to concl#de agreements where so doing wo#ld !enefit the s%ecies) es%ecially those that %eriodically cross one or more national !o#ndaries or are in an #nfavo#ra!le conservation stat#s. The *ecretariat to the (onvention is re>#ired to com%ile and maintain a list of range *tates of all migratory s%ecies listed in A%%endices I and II. Convention on Iiological 8iver&ity, GDD' The (onvention on $iological Diversity B($DC was ado%ted !y the (onference for the
Ado%tion of the Agreed Text of the (onvention on $iological Diversity in 2airo!i) 0enya on -/ay &77-. It was then o%ened for signat#re on 3 G#ne &77- d#ring the United 2ations (onference on +nvironment and Develo%ment BU2(+DC in .io de Ganeiro) $raDil. "" The o!?ective of the (onvention is to conserve !iological diversity) %romote s#staina!le #se of its com%onents and enco#rage e>#ita!le sharing of the !enefits arising o#t of the #tilisation of genetic reso#rces.
"
9ei?ns!ergen M&77 N. commentary in Tinker M4773;&7&6-:"N.
"" *ee
It is im%erative to note that the ($D restates the %rinci%le of national sovereignty over domestic nat#ral reso#rces s#!?ect to res%ect for the rights of other *tates. It) however) %laces a d#ty on *tate %arties to conserve !iological diversity within their national ?#risdictions. *tates are also re>#ired to co6o%erate in res%ect of areas !eyond national ?#risdiction and other matters of m#t#al concern for the conservation and s#staina!le #se of !iological diversity. In addition) the a#thority to determine access to genetic reso#rces rests with the national governments #nder national legislation. Access to s#ch genetic reso#rces is to !e on m#t#ally agreed terms and s#!?ect to %rior informed consent of the contracting %arty %roviding s#ch reso#rces. F#rther) *tate %arties have an o!ligation to #ndertake in &it% conservation of !iological diversity thro#gh a system of %rotected areas. Parties are also re>#ired to ado%t meas#res for the e< &it% conservation of !iological diversity %refera!ly in their co#ntry of origin) as well as ado%ting economically and socially so#nd meas#res that act as incentives for the conservation and s#staina!le #se of !iological diversity. Parties are also re>#ired to #ndertake meas#res to ens#re %#!lic ed#cation and awareness on environmental matters and to introd#ce meas#res
re>#iring environmental im%act assessment. Under the regime of this framework (onvention) %arties are re>#ired to take meas#res to ens#re s#staina!le #se of !iological diversity thro#gh integration of s#staina!ility into national decision6makingE minimise adverse im%acts on !iodiversityE and enco#rage c#stomary %ractices that are com%ati!le with s#staina!le #se. Parties #nder the (onvention #ndertake to facilitate transfer of technologies that are relevant to the conservation and s#staina!le #se of !iodiversity. *#ch transfer to develo%ing co#ntries is to !e facilitated #nder fair and most favo#ra!le terms) incl#ding on toncessional and %referential terms where m#t#ally agreed. The ($D is a framework treaty) covering a very !road range of iss#es ranging from desertification) %lanning and management of land reso#rces to the %romotion at s#staina!le #tilisation of all living reso#rces. Its %rovisions are mostly ex%ressed as overall goals) rather than %recisely defined o!ligations. It th#s lays down vario#s g#iding %rinci%les at the international level) which *tate %arties are re>#ired to take into acco#nt in develo%ing national law and %olicy to im%lement its o!?ectives."7 For this reason) it is desira!le that national legislative instr#ments) as well as regional and s#!6regional agreements sho#ld !e in harmony with it.
Cartagena rotocol on Iio&a,etyD(
On -7 Gan#ary -:::) the (onference of the Parties to the (onvention on $iological Diversity ado%ted a s#%%lementary agreement to the (onvention) known as the Cartagena rotocol on
"7 $irnie
K $oyle M-::-; 3 &N.
Internal Teaching Use Only ''
Iio&a,ety. The Protocol seeks to %rotect !iological diversity from the %otential risks %osed !y living modi,ied organi&m& B,/OsC res#lting from modern !iotechnology. It esta!lishes an
advance in,ormed agreement 5$I$7 %roced#re for ens#ring that co#ntries are %rovided with the information necessary to make informed decisions !efore agreeing to the im%ort of s#ch organisms into their territory. The Protocol contains reference to the preca%tionary approach and reaffirms the %reca#tion lang#age in Princi%le &3 of the .io Declaration on +nvironment and Develo%ment. The Protocol also esta!lishes a Iio&a,ety Clearing!6o%&e to facilitate the exchange of information on living modified organisms and to assist co#ntries in the im%lementation of the Protocol.7& The Protocol came into force on && *e%tem!er -::4. The main o!?ective of the Protocol is to contri!#te to ens#ring an ade>#ate level of %rotection in the field of safe transfer) handling and #se of living modified organisms res#lting from modern !iotechnology that may have adverse effects on the conservation and s#staina!le #se of !iological diversity) taking into acco#nt risks to h#man health and trans!o#ndary movement.7- For this reason) each %arty is re>#ired to take all the necessary and a%%ro%riate legal) administrative and other meas#res to im%lement its o!ligations #nder the Protocol. 74 This sho#ld !e done in tandem with taking ste%s to ens#re that the develo%ment) handling) trans%ort) #se) release and transfer of any living modified organisms is done in a manner s#fficient to %revent or mitigate risks to !iodiversity and h#man health. 75 The sco%e of the Protocol) however) excl#des ,/Os that are %harmace#ticals for h#mans) which re6addressed !y other international legal instr#ments.73 Article &3 re>#ires %arties to make decisions on im%ort of ,/Os for intentional introd#ction into the environment in accordance with scientifically so#nd risk assessments. It sets o#t ) in $nne< ill) general %rinci%les) methodological *te%s and %oints to consider in the cond#ct of risk
assessment. The general %rinci%les incl#de; inter alia, the following conce%ts; .isk assessment sho#ld !e carried o#t in a scientifically so#nd and trans%arent mannerE lack of scientific knowledge or scientific consens#s sho#ld not necessarily !e inter%reted as indicating a %artic#lar level of risk) an a!sence of risk) or an acce%ta!le riskE risks sho#ld !e considered in the context of risks %osed !y the non6modified reci%ients or %arental organismsE and that risks sho#ld !e assessed on a case6!y6!ase !asis. Parties are re>#ired to ado%t meas#res and strategies for %reventing adverse effects and for managing and controlling risks identified !y risk assessments. Parties are also re>#ired to take meas#res to %revent #nintentional trans6
7: United
2ations +nvironment Programme M-::3; -5'N. to the (onvention on $iololgical Diversity; $ackro#nd to the (artagena Protocol on $iosafety) availa!le
7& *ecretariat
at ;http:>>%nv<v.#iodiv.org>#io&a,ety>#ackgro%nd.&html= Baccessed on 4: /arch -:: C.

7- Article 74 Article 75 Article 73 Article
&. -B&C. -B-C. 3.
!o#ndary movements.7' +ach Party to the Protocol has the o!ligation to take necessary meas#res that will kee% ,/Os handled) %ackaged and trans%orted #nder conditions of safety) taking into consideration relevant international r#les and standards. In addition) %arties are re>#ired to identify ,/Os in accom%anying doc#mentation.7 F#rther) %arties are re>#ired on their own and in co6o%eration with other *tates and international !odies) to %romote and facilitate %#!lic awareness and ed#cation) incl#ding access to information regarding the safe transfer) handling and #se of ,/Os.7" In the &pirit of ca%acity !#ilding) %arties are re>#ired to co6o%erate in the develo%ment arid strengthening of ca%acities in !iosafety) incl#ding thro#gh existing organisations and thro#gh %rivate sector involvement. *#ch co6o%eration incl#des) inter alia, scientific and technical
training and the enhancement of technological ca%acities in !iosafety. 77 In order to reg#late and meas#re the degrees of im%lementation !y the %arties) Article 44 re>#ires %arties to monitor im%lementation of their o!ligations #nder the Protocol and to re%ort to the conference of the %arties serving as the meeting of the Parties to the Protocol on meas#res taken to im%lement the Protocol. 9evi&ed $,rican Convention ,or the Con&ervation o, 1at%re and 1at%ral 9e&o%rce&, '((0 5original GDH)7 The 9evi&ed $,rican Convention ,or the Con&ervation o, 1at%re and 1at%ral 9e&o%rce& is the s#ccessor to the $,rican Convention ,or the Con&ervation o, 1at%re and 1at%ral 9e&o%rce& BAlgiers (onventionC) which was ado%ted #nder the a#s%ices of the Organisation of African Unity in &7'". The &7'" (onvention moved away from the conce%t of nat#ral reso#rce conservation solely centered on #tilitarian %#r%oses !y) for instance) calling for the conservation and rational #se of nat#ral reso#rces for the welfare of %resent and f#t#re generations.&:: The Algiers (onvention was signed and ratified !y 4: African *tates and it served well as a !asis for the efforts of newly inde%endent African nations to take ste%s for the conservation of the environment and nat#ral reso#rces. The (onvention did not) however) %rovide the instit#tional str#ct#res that wo#ld have facilitated its effective im%lementation !y the %artiesE neither did it esta!lish mechanisms to enco#rage com%liance and enforcement. $eca#se of all these) and the ra%id %rogress in scientific knowledge in the environmental field and s#!se>#ent
7'
Article &'. *ee also ;http:>>www.#iodiv.org>#io&,ety>i&&%e&>ri&k.&html= BAccessed on 4: /arch -:: C. Article &". Article -4. Article --. 1orld (onservation Union BIU(2C L'((?:?!@M.
7"
77
&::
Internal Teaching Use Only '"
legal evol#tion) it !ecame necessary to revise the Algiers (onvention. &:& Ado%ted !y the 9eads of *tates and <overnments of the mem!er *tates of the African Union BAUC in G#ly -::4) the 9evi&ed $,rican Convention ,or the Con&ervation o, Nat%re and 1at%ral 9e&o%rce& a%%lies to all areas that are within the limits of national E#risdiction of any %arty and to the activities carried o#t #nder the ?#risdiction or control of any %arty within the area of its national ?#risdiction or !eyond the limits of its national ?#risdiction. The (onvention has so far !een ratified !y only five %arties o#t of the thirty fo#r B45C co#ntries that signed it #%on its ado%tion.&:The (onvention ex%resses its o!?ectives as !eing to enhance environmental %rotectionE to foster the conservation and s#staina!le #se of nat#ral reso#rcesE and to harmonise and coordinate %olicies in these fields with a view to achieving ecologically6rational) economically so#nd and socially acce%ta!le develo%ment %olicies and %rogrammes. The (onvention %laces a f#ndamental o!ligation on the %arties to ado%t and im%lement all meas#res necessary to achieve its o!?ectives) in %artic#lar thro#gh %reventive meas#res and the a%%lication of the %reca#tionary %rinci%le. Parties are o!ligated to take effective meas#res to %revent land degradation) and develo% long6term integrated strategies for the conservation and s#staina!le management of land reso#rces. In addition) the %arties to the (onvention are re>#ired to esta!lish and im%lement %olicies for the %lanning) conservation) management) #tilisation and develo%ment of #ndergro#nd and s#rface water) The (onvention re>#ires the %arties to maintain and enhance s%ecies and genetic diversity of %lants and animals) whether terrestrial) fresh6water or marine. This is in addition to taking of a%%ro%riate meas#res to %revent) mitigate and eliminate detrimental effects on the environment
from radioactive) toxic and other haDardo#s s#!stances and wastes. It is im%ortant to note that the (onvention %laces o!ligations on %arties to ado%t legislative and reg#latory meas#res necessary to ens#re timely and a%%ro%riate dissemination of environmental informationE access of the %#!lic to environmental informationE %artici%ation of the %#!lic in decision6making with a %otentially significant environmental im%actE and access to ?#stice in matters related to %rotection of the environment and nat#ral reso#rces. F#rther o!ligations on the %arties are with regard to conferment of %rotection on traditional knowledgeE and enhance %artici%ation !y local comm#nities in conservation. In addition) %arties are ex%ected to #ndertake transfer of technology on m#t#al and acce%ta!le terms. Parties are re>#ired to %romote environmental ed#cation) training and awareness creation at all levels in order to enhance their %eo%les8 a%%reciation of nat#ral reso#rces !y incl#ding
&:&
l#id. $,rican Enion 5$E7, Li&t o, Co%ntrie& which have &igned, rati,ied>acceded to the 9evi&ed $,rican Convention on t,ie
&:-
Con&ervation o, 1at%re and 1at%ral 9e&o%rce&, availa!le at ;www.a,rica!%nion.org=.
environmental iss#es in ed#cational and training %rogrammes at all levels as well as %#!lic cam%aigns. $y its nat#re) the African (onvention now ass#mes the stat#s of a framework environmental treaty for Africa. $eca#se it has taken into acco#nt all existing environmental treaties) it is desira!le that all regional and s#!6regional instr#ments as well as national stat#tes sho#ld !e in harmony with it. -%#!regional agreement& %nder the a%&pice& o, the Ea&t $,rican Comm%nity At the s#!6regional level) there are certain agreements that have !een ado%ted #nder this category. A !road and encom%assing s#!6regional instr#ment foc#sing on the ,ake Fictoria
$asin and entitled Protocol for *#staina!le Develo%ment of ,ake Fictoria $asin was ado%ted !y 0enya) Uganda and TanDania as %artner *tates to the +ast African (omm#nity on -7 2ovem!er -::4. It is a Protocol #nder the Breaty ,or E&ta#li&hment o, the Ea&t $,rican Comm%nity o, 0( 1ovem#er GDDD. *#ffice it to say here that in its %ream!le) one of the o!?ectives of the %rotocol is the develo%ment and im%lementation of meas#res to enhance safety of life) navigation and %reservation of a>#atic environment on ,ake Fictoria $asin. It also esta!lishes the ,ake Fictoria $asin (ommission as a !ody for the s#staina!le develo%ment and management of the ,ake Fictoria $asin.&:4 At the same s#!6regional level) within the framework of the +ast African (omm#nity) we have the ,ake Fictoria Fisheries Organisation B,FFOC) which is an instit#tion of the +ast African (omm#nity. The ,FFO is esta!lished !y the convention esta!lishing the ,ake Fictoria Fisheries Organisation ado%ted on 4: G#ne &775 !y 0enya) Uganda and TanDania. The o!?ectives of the ,FFO incl#de fostering co6o%eration among the %arties in matters regarding ,ake Fictoria) harmoniDing national meas#res for the s#staina!le #tilisation of the living reso#rces of the lake) and the develo%ment and ado%tion of conservation and management meas#res to ens#re the lake8s ecosystem health and s#staina!ility of the living reso#rces. Agreements on the )arine Environment There was very ra%id develo%ment of treaty law on the environment !etween &735 and &7 ". Pres#ma!ly) the ra%id growth of maritime commerce and trans%ort) es%ecially on hydrocar!ons to s#%%ort ind#strialisation) led to indiscriminate and deli!erate discharges) es%ecially de!allasting and tank fl#shing. These) co#%led with the concern over maritime safely in general)
led co#ntries with large sea6going fleets to %#sh for esta!lishment of an international agency to look after the twin o!?ectives of maritime safety and control of %oll#tion of the sea !y oil.
&:4 *ee
generally +ast African (omm#nity B+A(C M-::5N.
Internal Teaching Use Only :
Under the aegis of the United 2ations) a convention to esta!lish the Inter6<overnmental /aritime (ons#ltative Organisation BI/(OC was ado%ted at <eneva on & /arch) &75". It was agreed that when the convention comes into force) the infant organisation !e !ased in ,ondon. That convention came into force in &73" and I/(O !ecame o%erational in Gan#ary &737) ready to take over matters of maritime safety and %oll#tion of the sea !y oil from seagoing vessels. It is im%ortant to %oint o#t) !y way of %reface) that the first convention was ado%ted in ,ondon in &735 and the series of initiatives c#lminated in the &7 4 convention) amended later !y a &7 " %rotocol #nder the aegis of I/(O.&:5 In addition to I/(O initiatives) a total of &' regional conventions have !een ado%ted #nder the aegis of .egional *eas Programme of U2+P) which was initiated in &7 3 !eginning with the /editerranean *ea. This cha%ter will only disc#ss the 2airo!i (onvention on +astern Africa) which is directly relevant to 0enya. &:3 International Convention ,or the revention o, oll%tion o, the -ea #y Oil, GD@? $efore I/(O (onvention entered into force) the $ritish <overnment convened an international conference to negotiate an agreement for the %rotection of the seas from %oll#tion !y oil. The agreement was ado%ted in ,ondon on &- /ay &735) and entered into force on -' G#ly &73". It relied largely on %rohi!ition of deli!erate discharge of oil or oily waters. In other words) it did not take into acco#nt the fact that oil in water can !e carried !y ocean c#rrent. /oreover) it %rohi!ited discharges !#t made no %rovision as to where the oils co#ld !e de%osited. In &7'-)
amendments were ado%ted) ex%anding the %rohi!ited Dones and also re>#iring %ort *tates to %rovide rece%tion facilities for oily waters that they kee% on !oard. There was a f#rther amendment ado%ted on -& Octo!er &7'7 limiting discharge to oily mixt#res dil#ted to a certain degreeE tankers at least 3: miles from the nearest landE and retaining the re>#irement for %ort rece%tion facilities. *hi% owners were given &- months within which to fit shi%s with facilities to %revent oil from entering !ilges. Two f#rther amendments were ado%ted in &7 &. The first one was s%ecific to %rotection of <reat $arrier .eef of A#stralia !y %rohi!iting discharges close thereto. This was ado%ted on &Octo!er &7 &. Then) on &3 Octo!er) an amendment limiting tanker siDes in order to red#ce chances of wides%read environmental damage in event of tanker accident was ado%ted. Tankers were re>#ired to carry certificates from flag *tate government attesting to com%liance. There were also re>#irements of tanker constr#ction s%ecifications. Altho#gh the &735 (onvention is largely s#%erseded !y the &7 4 (onvention) it remains !inding as !etween %arties that have not acce%ted the latter.
&:5 The8
f#ll st#dy of the agreements is !eyond the sco%e of this cha%ter. For detailed analysis of the history of legal
arrangements on marine environment see Okidi M&7 "N.

&:3 For
a concise #%date on the .egional *eas Programme) see U2+P M-::&N.
International Convention ,or the revention o, oll%tion ,rom -hip& GDA0 G(H $y &7 &) it had !ecome evident that %iecemeal amendments to the &735 (onvention were evolving an awkward and conf#sing legal regime. Therefore) it was resolved that %re%arations sho#ld commence towards a glo!al conference to ado%t a consolidated treaty on %revention of
%oll#tion from shi%s in &7 4. The International Convention ,or the revention o, oll%tion ,rom -hip& was ado%ted at ,ondon #nder the aegis of I/(O on - 2ovem!er &7 4. The o!?ective of the (onvention is to eliminate intentional %oll#tion !y oil and other harmf#l s#!stances and the minimisation of accidental discharge !y s#ch s#!stances from shi%s. The term shi% is given a !road definition to incl#de not only the conventional vessels and tankers !#t also infrastr#ct#re for ex%loitation of marine reso#rcesE it was the &7 & feat#res for tanker constr#ction standardsE %rovisions for re%orting of incidents involving harmf#l s#!stances at seaE s%ecifications of ty%es of oilsE and reg#lations regarding noxio#s li>#id s#!stances carried in !#lk. The (onvention also makes %rovision for reg#lations regarding %ackaged cargo) freight containers) %orta!le tanks) sewage and gar!age. In one of the Annexes) the (onvention %rovides for a Protocol on Intervention on the 9igh *eas in (ases of /arine Poll#tion !y s#!stances other than oil) whose origin we shall disc#ss !elow. There was a &7 " Protocol to the &7 4 (onvention. It modified certain %rovisions in Annex I to the %arent convention) which deals with %revention of %oll#tion !y oil. F#rther) it delayed the !aseline time frame for entry into force of Annex II) which deals with noxio#s li>#ids carried in !#lk) !y three years. International Convention 9elating to Intervention on the 6igh -ea& in ca&e& o, Oil oll%tion Ca&%altie& GDHD The colla%se of the Borrey Canyon, an oil tanker with its load of &-:)::: tons of cr#de oil on entering the +nglish (hannel) off the coa&t o, (ornwall in /arch &7' rang new alarm !ells over %oll#tion of the seas from shi%s.&: The %ro!lem for the United 0ingdom was that the loc%&
in :%o was a!o#t &:: miles away and th#s !eyond national ?#risdiction within the legal region recognised !y the government. The government was not easily %ers#aded to a%%ly the doctrine of self defence even tho#gh the drifting oil was washing the so#thern coast of +ngland and drifting a!o#t -:: miles eastwards to 2ormandy and $rittany in France. &:" $y the time environmental devastation %ers#aded U0 to intervene and to !om! and set the tanker and its
&:' *ee
details on the (onvention in I/O) "$9 OL A0!A): Con&olidated Edition, '((' Articles) Protocols) Annexes.
Unified Inter%retations of the International (onvention for the Prevention of Poll#tion from *hi%s) &7 4) as modified !y the Protocol of &7 " relating thereto B,ondon) I/OC B-::-C. Texts of other related conventions are re%rinted in 0iss M&7"4N.
&:
Disc#ssed in Okidi M&7 "; -")4765:N. details) see i#id at &&'6&-3.
&:" For
load on fire) most of the volatile fractions had eva%orated and the rest of the load settled on ocean floor and in the s#%er?acent waters. From that %oint) it was agreed that an international agreement to ex%ressly %ermit %arties to intervene in the high seas sho#ld !e %re%ared. The (onvention was ado%ted at $r#ssels on -7 2ovem!er &7'7 and entered into force on ' /ay &7 3. Its %rovisions a#thorise coastal *tates to take action on the high seas in cases of maritime cas#alty res#lting in danger to the coastline. The (onvention also esta!lished that s#ch an action wo#ld not %re?#dice the %rinci%le of freedom of the high seas. It is to !e noted that the &7'7 (onvention was limited to %oll#tion !y oil. The sco%e to s#!stances other than oil was ex%anded !y the Protocol disc#ssed a!ove #nder the &7 4 (onvention. International Convention on Civil Lia#ility ,or Oil oll%tion 8amage, GDHD +x%erience of the Borrey Canyon disaster woke #% the international comm#nity to the necessity for a legal regime to ens#re ade>#ate com%ensation to %ersons who s#ffer damage from an oil
%oll#tion accident. There was also necessity for standardiDed r#les and %roced#res for determining >#estions of lia!ility and com%ensation. The (onvention was ado%ted at $r#ssels #nder the aegis of I/(O on -7 Oovem!er) &7'7 and entered into force on &7 G#ne &7 3. Convention on the revention o, "arine oll%tion #y 8%mping o, /a&te& and Other "atter, GDA' +nvironmental reg#lation) es%ecially as related to dis%osal of haDardo#s wastes !ecame increasingly stringent in 1estern +#ro%e in the &7':s. Dis%osal in water ways) for instance) was strictly %rohi!ited. A c#lt#re of waste dis%osal !y containers and tankers loaded at different centres for d#m%ing in the ocean emerged. Twelve 1estern +#ro%ean co#ntries were concerned eno#gh to ado%t for themselves a regional convention at Oslo on &3 Fe!r#ary &7 -. (ontracting *tates %rohi!ited loading or trans%ort of haDardo#s wastes for d#m%ing in the ocean. They realiDed very >#ickly that tankers carrying s#ch wastes were trans%orted for d#m%ing o#tside their ?#risdiction in the 2orth6west Atlantic. Bhe Iriti&h <overnment convened an international conference in ,ondon where on -7 Decem!er &7 -) the <lo!al (onvention on the Prevention of /arine Poll#tion !y D#m%ing of 1astes and Other /atter was ado%ted. It was o%ened for signat#re at ,ondon) /exico (ity) /oscow and 1ashington) which were also formal de%ositories. The %arties enco#raged ado%tion of s#%%lementary regional agreements similar to the Oslo (onvention. The ,ondon D#m%ing (onvention) as it is %o%#larly known) a%%lied to all seas and covered
all deli!erate dis%osals. (ontracting %arties #ndertook to enforce meas#res %rohi!iting on all flag aircrafts and shi%s from loading at their %orts or within their territories wastes for d#m%ing in
oceans anywhere. For %#r%oses of control) wastes were identified in three Annexes. *#!stances or wastes in Annex I are strictly %rohi!itedE those in Annex II are allowa!le only !y s%ecial %ermitE those in Annex III are allowa!le !y general %ermits. The (onvention re>#ires %arties to designate the national instit#tion as a focal %oint for enforcement of the (onvention. The (onvention makes a s%ecial %rovision for training of national ex%erts to im%lement the agreement. The (onvention entered into force on 4: A#g#st &7 3. rotocol to the Convention on the revention o, "arine oll%tion #y 8%mping o, /a&te& and Other "atter, GDDH This %rotocol takes into acco#nt develo%ments since &7 -) es%ecially ,aw of the *ea (onvention of &7"-) .io Declaration and Agenda -&) and was ado%ted at ,ondon #nder the aegis of I/(O on 2ovem!er &77') !#t is not yet in force. The feat#res of the Protocol incl#de commitment among the %arties to individ#ally and collectively take meas#res to %rotect the marine environment from all so#rces of %oll#tion and to ado%t the !est scientific knowledge and technology in that %#rs#it. Parties agreed to take %reca#tionary a%%roach in handling any dis%osal of wastes at sea) which wo#ld mean environmental im%act assessment) environmental risk assessment) environmental a#dit) environmental monitoring and the %reca#tionary %rinci%le. Incineration of wastes is strictly %rohi!ited. In every case) the %oll#ter %ays %rinci%le is to !e a%%lied. Enited 1ation& Convention on the Law o, the -ea, GD)' The formal codification of the law of the sea commenced with the fo#r <eneva (onventions and an o%tional %rotocol ado%ted in A%ril &73". They are; The (onvention on (ontinental *helfE The (onvention on 9igh *easE The Convention on Fi&hing and Con&ervation o, the hiving 9e&o%rce& o, the 6igh -ea&. and the Optional rotocol 9elating to -ettlement o, 8i&p%te&.G(D +ach of them has %rovisions of environmental significance and each is legally
!inding among the co#ntries that have not esta!lished acce%tance of the &7"- (onvention. (onsidering the efforts and contri!#tion of 0enya to the negotiations #% to the concl#sion of the &7"- (onvention) this cha%ter will %refera!ly foc#s on the latter) ass#ming that f#t#re %ractice of 0enya will foc#s there.&&:
&:7 For
that historical acco#nt) see I#id, (ha%ters II and III at '&6'4E Ian M&7 4N (ha%ter IF %%.&"46-3& K Dean M&7'7;
4:564-3N.
&&: *ee
0enya8s contri!#tion to the negotiation in Okidi M&7"-; 476 &N. *ee also the collection of %a%ers in Okidi
M&7 "N.
The (onvention on the ,aw of the *ea makes extensive %rovisions of direct and indirect relevance to %rotection of marine environment. For the first time) the regime of territorial sea is settled in a glo!al instr#ment with all the %owers of the coastal *tate. (oastal *tates have sovereign rights and excl#sive ?#risdiction over an +xcl#sive +conomic Hone extending to -:: na#tical miles from the !aseline) and with excl#sive %owers to %rescri!e and enforce laws for the conservation) ex%loration and ex%loitation of living and non6living reso#rces as well as for environmental %rotection in a manner consistent with internationally agreed standards. *cientific research in the Hone is s#!?ect to consent !y the coastal *tate. The traditional freedoms of the high seas) incl#ding fishing and scientific research are maintained !y the (onvention. *imilarly) international r#les are to !e develo%ed for the %revention) red#ction and control of the marine environment) with conditions for %ossi!le regional arrangements) which has %ermitted ado%tion of agreements #nder U2+P8s .egional *eas Programme. 1hile coastal *tates have excl#sive ?#risdiction for conservation of marine living reso#rces) %rovisions are made for highly migratory s%ecies that have no res%ect for the artificial !o#ndaries. That is why) in &773) *tates moved to ado%t a s%ecial agreement on migratory and straddling stocks. The management regime #nder the convention for living reso#rces re>#ires coastal *tates to determine the di&tri#%tion and a#%ndance o, &%ch reso#rces. For that) they assess the total
allowa!le catch or maxim#m s#staina!le yield) in conservation terms) !efore the coastal *tate determines how m#ch it sho#ld harvest for national needs. The (onvention re>#ires that foreigners sho#ld !e %ermitted to harvest any s#r%l#s stocks #nder m#t#ally agreed access agreements that are !eneficial to the coastal *tate. The coastal *tate may then determine whether or not %referential treatment sho#ld !e given to neigh!o#ring land locked co#ntries. $greement ,or the Implementation o, the rovi&ion& o, the Enited 1ation& Convention on the Law o, the -ea o, G( 8ecem#er GD)' 9elating to the Con&ervation and "anagement o, &traddling Fi&h -tock& and 6ighly "igratory Fi&h -tock&, GDD@GGG This agreement a%%lies to the conservation and management of straddling and highly migratory fish stocks !eyond areas of national ?#risdiction. The exce%tion is that Article ' Bon the a%%lication of %reca#tionary meas#res and Article Bon ;he com%ati!ility of conservation and
management meas#resC a%%ly also to the conservation and management of s#ch stocks within areas #nder national ?#risdiction. These) however) are s#!?ect to the different legal regimes that a%%ly ithin areas #nder national ?#risdiction and in areas !eyond national ?#risdiction as
&&& Ado%ted
!y the United 2ations <eneral Assem!ly BU2<AC d#ring its 'th *ession) -5 G#ly6 5 A#g#st &773. .ef
2o. A@(O2F.&'5@4 ) availa!le at ;www.%n.org>dep$o&>convention+agreemen.t&= BAccessed on &5 Decem!er -::'C. For $ackgro#nd to the Agreement) see <rDy!owski et al M&773; 576 5N.
%rovided for in the &7"- (onvention. The agreement #rges coastal *tates and *tates fishing on the high seas to %#rs#e co6o%eration in relation to straddling fish stocks and highly migratory fish stocks either directly or thro#gh a%%ro%riate s#!6regional or regional fisheries management rrganisations or arrangements to ens#re effective conservation and management of s#ch stocks. For this reason) where a s#!regional or regional fisheries management organisation or arrangement has the com%etence to
esta!lish conservation and management meas#res for %artic#lar straddling fish stocks or highly migratory fish stocks) *tates fishing for the stocks on the high seas and relevant coastal *tates are re>#ired to give effect to their d#ty to co6o%erate !y !ecoming mem!ers of s#ch organisation or %artici%ants in s#ch arrangement) or !y agreeing to a%%ly the conservation and management meas#res esta!lished !y s#ch organisation or arrangement. The agreement f#rther #rges states to esta!lish s#!6regional or regional fisheries management organisations or enter into s#!6regional or regional fisheries management arrangements for straddling fish stocks and highly migratory fish stocks and agree on the stocks to which conservation and management meas#res a%%ly. *imilarly) they m#st agree on the area of a%%lication) and the characteristics of the s#!6region or region) incl#ding socio6economic) geogra%hical and environmental factors. *#ch arrangements sho#ld also !e clear on the relationshi% !etween the work of the new organisation or arrangement and the role of any relevant existing fisheries management organisations) and the mechanisms !y which the organiDation will o!tain scientific advice and review the stat#s of the stocks. The agreement r#rther re>#ires *tates to %rovide for trans%arency in the decision6making %rocess as well as on other activities of s#!6regional and regional fisheries management organisations and arrangements. The regime of the agreement sets o#t to reign in *tates that are not mem!ers of a s#!regional or regional fisheries management organisation !y extending to them o!ligations not to a#thorise vessels flying its flag to engage in fishing o%erations for the straddling fish stocks or highly migratory fish stocks) which are s#!?ect to the conservation and management meas#res esta!lished !y s#ch organisation or arrangement. Under this agreement) there are sti%#lated certain r#les to reg#late the cond#ct of flag *tates. Th#s) a *tate whose vessels fish on the high seas is re>#ired to take all necessary meas#res to
ens#re that vessels flying its flag com%ly with s#!6regional and regional conservation and management meas#res and do not engage in any activity that #ndermines the effectiveness of s#ch meas#res. To achieve this) flag *tates are re>#ired to take meas#res) inter alia, to control s#ch vessels on the high seas !y means of fishing licencesE esta!lishment of reg#lationsE esta!lishment of a national record of fishing vessels a#thorised to fish on the high seas and %rovision of access to the information contained in that record on re>#est !y directly interested *tates. *#ch a *tate sho#ld esta!lish re>#irements for marking of fishing vessels and fishing
gear for identification in accordance with #niform and internationally recognisa!le vessel and gear marking systemsE re>#irements for recording and timely re%orting of vessel %osition) catch of target and non6target s%ecies) fishing effort and other relevant fisheries data. The agreement %rimarily confers the ?#risdiction on enforcement of com%liance mechanisms on the flag *tate. It also re>#ires international co6o%eration) either directly or thro#gh s#!regional or regional fisheries management organiDations or arrangements to ens#re com%liance with and enforcement of s#!6regional and regional conservation and management meas#res for straddling fish stocks and highly migratory fish stocks. Port *tates are em%owered to take certain meas#res #nder this agreement to %romote the effectiveness of regional and glo!al conservation and management meas#res witho#t discriminating against the vessels of any *tate. To achieve this) a %ort *tate may ins%ect doc#ments) fishing gear and catch on !oard fishing vessels when s#ch vessels are vol#ntarily in its %orts or at its offshore terminals. The agreement re>#ires that *tates do give f#ll recognition
to the s%ecial re>#irements of develo%ing *tates in relation to conservation and management of straddling fish stocks and highly migratory fish stocks and develo%ment of fisheries for s#ch stocks. Glo#al rogramme o, $ction ,or the rotection o, the "arine Environment ,rom Land! Ia&ed $ctivitie& The <lo!al Programme of Action for the Protection of the /arine +nvironment from ,and!ased Activities was ado%ted on 4 2ovem!er &773 !y the Inter6governmental (onference) which met for that %#r%ose in 1ashington D( from -4 Octo!er to 4 2ovem!er &773. As the title states) this is not a legally !inding agreement. As a %rogramme of action) it is only hortatory. (ontrol of marine %oll#tion land6!ased so#rces still remains a serio#s %ro!lem !eca#se states resist !inding agreements on the matter. The <lo!al Programme of Action B<PAC aims at %reventing the degradation of the marine environment from land6!ased activities !y facilitating the realisation of the d#ty of *tates to %reserve and %rotect the marine environment. It is designed to assist *tates in taking actions individ#ally or ?ointly within their res%ective %olicies) %riorities and reso#rces) which will lead to the %revention) red#ction) control and@or elimination of the degradation of the marine environment) as well as to its recovery from the im%acts of land6!ased activities. &&The legal and instit#tional framework of the <PA is largely set #%on the d#ties) o!ligations and res%onsi!ilities of *tates #nder the United 2ations (onvention on the ,aw of the *ea
&&- United
2ations +nvironment Programme BU2+PC) Glo#al rogramme o, $ction ,or the rotection o, the
"arine Environtnent ,rom Land!#a&ed $ctivitie&. Ado%ted !y the Intergovernmental (onference to Ado%t a <lo!al Programme of Action for the %rotection of the /arine +nvironment from ,and6!ased Activities) 1ashington D(. 4 2ovem!er &773.
among) other international legal instr#ments for the %rotection and conservation of the marine
environment. The Programme of Action is designed to !e a so#rce of conce%t#al and %ractical g#idance to !e drawn #%on !y national and@or regional a#thorities in devising and im%lementing s#stained action to %revent) red#ce) control and@or eliminate marine degradation from land6!ased activities. +ffective im%lementation of this Programme of Action is a cr#cial and essential ste% forward in the %rotection of the marine environment intended to %romote the o!?ectives and goals of s#staina!le develo%ment. It reflects the fact that *tates face a growing n#m!er of commitments ring from Agenda -& and related conventions. The <PA re>#ires three levels of action; at the national levelE in the context of regional coo%erationE and international co6o%eration. In the context of action at the national level) the !asis for action is informed !y the fact that many co#ntries de%end on so#rces of income from activities that wo#ld !e directly threatened !y degradation of the marine environment) s#ch as ind#stries in fishing.and to#rism. The s%ecifics of the %rogramme of action at the national level set o#t certain o!?ectives and actions in the context of integrated coastal area management) which incl#de the identification and assessment of %ro!lemsE esta!lishment of %rioritiesE setting management o!?ectives for %riority %ro!lemsE identification) eval#ation and selection of strategies and meas#res) incl#ding management a%%roachesE criteria eval#ating the effectiveness of strategies and %rogrammesE and %rogramme s#%%ort elements. The <PA sets o#t a !asis for regional co6o%eration since regional and s#!6renal co6o%eration and arrangements are cr#cial for s#ccessf#l actions to %rotect the marine environment from land6!ased activities. In the context of regional co6o%eration) the <PA sets o#t to strengthen and) where necessary) create new regional co6o%erative arrangements and ?oint actions to s#%%ort effective action) strategies and %rogrammes for the identification and assessment of
%ro!lemsE and esta!lishment of targets and %riorities for action. It f#rther re>#ires *tates to rartici%ate in regional and s#!6regional arrangements and to ens#re the effective f#nctioning of regional and s#!6regional arrangements. The third level of action #nder the %rogramme of action is international co6o%eration. This is !ased on the fact that international co6o%eration serves a central role in enhancing ca%acity!#ilding) technology transfer and co6o%eration) and financial s#%%ort. /oreover) effective im%lementation of the Programme of Action re>#ires efficient s#%%ort from a%%ro%riate international agencies. It is also !ased on the recognition that at the glo!al level) there is need for reg#lar reviews of the state of the world marine environment) as well as dialog#e !ased on re%orts from relevant regional organisations on im%lementation of regional action %rogrammes) incl#ding exchange of ex%eriences) the flow of financial reso#rces in s#%%ort of the im%lementation Bin %artic#lar !y co#ntries in need of assistanceC of national action to %revent and red#ce marine degradation ca#sed !y land6!ased activities as well as scientific and
technological coo%eration and transfer of cleaner technology) in %artic#lar to co#ntries in need of assistance. Convention ,or the rotection, "anagement and 8evelopment o, the "arine and Coa&tal Environment o, the Ea&tern $,rican 9egion, 1airo#i GD)@GG0 From & 6-& G#ne &7"3) a (onference of Pleni%otentiaries on the Protection) /anagement and Develo%ment of the /arine and (oastal +nvironment of the +astern African .egion was held in 2airo!i to ado%t a n#m!er of %olicy and legal doc#ments) key among them the Convention ,or the rotection, "anagement and 8evelopment o, the "arine and Coa&tal Environment o, the Ea&tern $,rican 9egion. All nine +astern African co#ntries) namely; the (omoros) France B,a
.e#nionC) 0enya) /adagascar) /a#riti#s) /oDam!i>#e) *eychelles) *omalia and TanDania have ratified the (onvention and its %rotocols. *o#th Africa has lodged an a%%lication to accede to the (onvention. The (onvention a%%lies to the area of the marine and coastal environment of that %art of the Indian Ocean sit#ated within the +astern African region and falling within the ?#risdiction of the contracting %arties to this (onvention. The (onvention %laces o!ligations on the contracting %arties to) individ#ally or ?ointly) take all a%%ro%riate meas#res to %revent) red#ce and com!at %oll#tion of the (onvention area and to ens#re so#nd environmental management of nat#ral reso#rces #sing) for this %#r%ose) the !est %ractica!le means at their dis%osal) and in accordance with their ca%a!ilities. F#rther) the agreement re>#ires the %arties to co6o%erate with the com%etent international) regional and s#!6regional organisations to ens#re the effective im%lementation of the convention and its %rotocols. To s#%%ort this initiative) %arties are re>#ired to assist each other in f#lfilling their o!ligations #nder this (onvention and its %rotocols. *#!stantively) this regional (onvention sets o#t a regime to %rotect the marine environment of eastern African region) es%ecially with regard to %revention and control of %oll#tion from shi%s) %oll#tion from land6!ased so#rces) %oll#tion ca#sed !y d#m%ing) %oll#tion from sea !ed activities) air!orne %oll#tion) %rotection of s%ecially %rotected areas) among other areas. $eing a regional international instr#ment) it is im%erative to note that since the (onvention came into force in &77') a n#m!er of significant develo%ments have occ#rred) which have affected the (onvention regime. These incl#de the (a%e Town (onference on an African
%rocess for the Develo%ment and Protection of the (oastal and /arine +nvironment) %artic#larly in *#!6*aharan Africa. The conference) held on -4 2ovem!er to 5 Decem!er &77" res#lted in the ado%tion of U(a%e Town Declaration on an African Process for the Develo%ment and Protection of the (oastal and /arine +nvironment) %artic#larly in s#!6*aharan Africa.V
&&4 For
a detailed commentary on the (onvention and associated %rotocols) see Okidi M&7"3; 5463&N.
This declaration was sais to !e a contin#ing effort leading to the streghtening of the two *#!6*aharn (oventions) namely the 1airo#i Convention and the Convention ,or Co! operation in the rotection and 8evelopment o, the "arine and Coa&tal Environment o, the /e&t and Central $,rican 9egion Bcommonly referred to as the A!id?an (onventionC) which came into force in &7"5. The declaration %ro%oses the esta!lishment of a ?oint im%lementing mechanism) a %artnerhi% conference) and the %ro%osed esta!lishment of a continent6wide (ommission on *#staina!le develo%ment iss#es BAgenda -&C and conventions. The (a%e Town Declaration noted with concern the contin#ing deterioration of Africa8s coastal and marine environment and erosion of its reso#rce6!ase largely d#e to lack of mechanisms to %rovide ade>#ate co6ordination of all %lanned coastal develo%ment and s#staina!le #se of coastal and marine reso#rces. For this reason) as recognised that the A!id?an and 2airo!i (onventions are the most s#ita!le regional agreements to serve as the legal framework for the mo!iliDation of regionally co6ordinated efforts fostering the s#staina!le develo%ment of coastal and marine areas of the African region. (#rrently) th#s) there is in %lace a Goint Im%lementation Unit of the 2airo!i and A!id?an (onventions) !ased at the *ecretariat of
the 2airo!i (onvention) which is the United 2ations +nvironment Programme *ecretariat in 2airo!i. Agreements on the )anagement of International 1atercourses International waterco#rses generally traverse national !o#ndaries) or form %art or whole of the !o#ndary of one or more *tates) and are therefore shared !y different nations. Their %ossi!le #ses are as diverse as the n#m!er of *tates sharing them) !#t then so are the %otential conflicts and #ns#staina!le #ses. This has led mem!ers of the international comm#nity) at different times and in different fora) to engage in exercises aimed at concl#ding agreements on the #se of s#ch shared waterco#rses. In this section) we shall disc#ss one agreement c#lminating o#t of s#ch efforts. Enited 1ation& Convention on the Law o, 1on!1avigational E&e& o, International /aterco%r&e&, GDDAGG? The concl#sion of the United 2ations (onvention on the ,aw of 2on62avigational Uses of International 1aterco#rses in &77 #nderscores the enormo#s %ro!lem of working o#t a general international agreement on international water reso#rces. +vol#tion of %rinci%les) which c#lminated in the (onvention) started in the &"::s largely led !y learned societies and
&&5 2early
twenty ex%erts in the field of international water law wrote commentaries with disc#ssions on articles
of the draft convention at the =Doman (ollo>#i#m on the ,aw of International 1aterco#rses; .eview of the I,( Draft .#les on the 2on62avigational Uses of International 1aterco#rses= %#!lished in Colorado 3o%rnal o, International Environmental Law and olicy, Fol. 4. 2o. &) 1inter &77-.
Internal Teaching Use Only ":
c#lminating in the so6called 9elsinki .#les ado%ted !y the International ,aw Association in &7''. The International ,aw (ommission of the United 2ations took #% the task in &7 : and finally %resented an acce%ta!le draft) which was ado%ted #nder the aegis of the United 2ations
on -& /ay &77 . It is) !y its nat#re and sco%e) a framework treaty setting o#t) for the first time) a glo!ally acce%ted treaty that can s#!se>#ently !e s%elled o#t in im%lementa!le terms for s%ecific !asins or waterco#rses. The sco%e of the (onvention is limited to #ses of international waterco#rses and their waters for non6navigational %#r%oses and to take meas#res of %rotection) %reservation and management related to the #ses of those waterco#rses. The (onvention %rovides that every waterco#rse *tate is entitled to %artici%ate in the negotiation and concl#sion of any waterco#rse agreement that a%%lies to their res%ective international waterco#rse. A *tate whose #se of an international waterco#rse may !e affected) to a significant extent) !y the im%lementation of a waterco#rse agreement is entitled to %artici%ate in negotiations) in good faith) for s#ch a %ossi!le agreement. The (onvention makes %rovision to deal with any meas#res %lanned to !e taken with regard to an international waterco#rse. For this reason) *tates are re>#ired to exchange information) cons#lt each other and negotiate on the %ossi!le effects of %lanned meas#res on the condition of an international waterco#rse. F#rther) !efore a waterco#rse *tate im%lements or %ermits the im%lementation of %lanned meas#res) which may have a significant adverse effect #%on other waterco#rse *tates) it is re>#ired to iss#e those other *tates with timely notification. *#ch a notification sho#ld take at least six months for the notified *tates to st#dy and make their re%ly. If a notified *tate makes no re%ly within this d#ration) the %lanned meas#res may !e #ndertaken. In the event that a *tate intends to im%lement meas#res that may have adverse effects witho#t
notification of other waterco#rse *tates) the aggrieved stateBsC may re>#est s#ch a *tate to a%%ly Article &-) which re>#ires notification of other waterco#rse *tates of any %lanned meas#res that may have an adverse effect. 1here the im%lementation of %lanned meas#res is of the #tmost #rgency in order to %rotect %#!lic health) %#!lic safety or other e>#ally im%ortant interests) the *tate %lanning the meas#res may) s#!?ect to the %rinci%le of e>#ita!le and reasona!le #tilisation and %artici%ation) immediately %roceed to im%lementation. $eyond these overarching o!ligations to co6o%erate) the (onvention also %rovides for the age6old doctrine of &ic %tere t%o. It entrenches the o!ligation not to ca#se significant harm in the co#rse of im%lementation of any %ro?ect. A formal declaration of the #rgency of the meas#res sho#ld !e comm#nicated to the other waterco#rse *tates together with the relevant data and information witho#t delay. 1aterco#rse *tates are re>#ired) individ#ally and@or ?ointly) to take meas#res to %rotect and %reserve the ecosystems of international waterco#rses. In addition to this) waterco#rse *tates are re>#ired to) individ#ally and@or ?ointly) %revent) red#ce and control the %oll#tion of an international waterco#rse that may ca#se significant harm to other waterco#rse *tates or to their environment) incl#ding harm to h#man health or safety) to the #se of the waters for any
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!eneficial %#r%ose or to the living reso#rces of the waterco#rse. *#ch waterco#rse *tates sho#ld take ste%s to harmonise their %olicies in this regard. 1aterco#rse *tates are also re>#ired to take the meas#res necessary to %revent the
introd#ction of s%ecies) alien or new) into an international waterco#rse) which may have detrimental effects on the ecosystem of the waterco#rse and res#lting in significant harm to other waterco#rse *tates. They sho#ld also take all meas#res that are necessary to %rotect and %reserve the marine environment) incl#ding est#aries) raking into acco#nt generally acce%ted international r#les and standards. The (onvention %rovides that the waterco#rse *tates may) at the re>#est of any of diem) enter into cons#ltations concerning the management of a given international waterco#rse) which may incl#de the esta!lishment of a ?oint management mechanism. In this regard) the (onvention re>#ires waterco#rse *tates to) individ#ally or with others) take all a%%ro%riate meas#res to %revent or mitigate conditions that may !e harmf#l to other waterco#rse *tates) whether res#lting from nat#ral ca#ses or h#man cond#ct s#ch as flood or ice conditions) water!orne diseases) siltation) erosion) salt6water intr#sion) dro#ght or desertification. In the event of an emergency sit#ation s#ch as floods) earth>#akes or landslides) a water co#rse *tate is re>#ired to) witho#t delay and !y the most ex%editio#s means availa!le) notify other %otentially affected *tates and com%etent international organisations of any emergency originating within its territory. 1hen necessary) waterco#rse *tates sho#ld ?ointly develo% contingency %lans for res%onding to emergencies) in co6o%eration with other %otentially affected *tates and com%etent rnational organisations. It will !e interesting to ascertain the extent to which the %rinci%les and r#les in this (onvention are incor%orated in the 2ile $asin Agreement whose negotiation started after the ado%tion of the &77 agreement. A$ ee#ents on t&e Re$+lat%on of T ansbo+n*a ' Mo)e#ent of 0a5a *o+s Wastes The trans!o#ndary movement of haDardo#s wastes has !een a %erennial %ro!lem aro#nd the world) which is well evidenced !y the discovery of haDardo#s wastes shi%%ed and d#m%ed in develo%ing co#ntries. A recollection is im%ortant of the &7" incident where haDardo#s wastes were discovered in 0oko) 2igeria after Italian !#sinessmen shi%%ed toxic waste of several
Italian ind#stries to 2igeria for age in the !ackyard of a 2igerian !#sinessman) who descri!ed them merely if miscellaneo#s constr#ction materials. This was only discovered months later hen the !arrels of waste !egan leaking into the s#rro#nding area. &&3 A more recent exam%le is the discovery) in *e%tem!er -::') of toxic wastes d#m%ed aro#nd A!id?an) the commercial ca%ital of Ivory (oast. The waste com%rised of *>#id sl#dge containing large >#antities of
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$asel Action 2etwork B$A2C) in 1ake of the African D#m%ing *candal; Toxic Trade Activists (all for .a%id
+ntry into Force of $asel $an and Actions Against (riminal 1aste Traffickers) availa!le at ;http:>>www.#an.org> ban"ne#s$%&&'$&'&9%'"activists"call(html) 3Accessed on ' Gan#ary -:: C.
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hydrocar!ons) contaminated with at least three s#!stances; hydrogen s#l%hide) merca%tans and ca#stic soda. It was r discovered that it had !een #nloaded !y a shi% from Panama) the ro#o Koala on &7 A#g#st -::'. ,ocal a#thorities re%orted that ' %eo%le had died and close to 7)::: %eo%le so#ght treatment since the toxic wastes were d#m%ed on o%en6air sites aro#nd A!id?an.&&' To overcome this kind of %ro!lem) *tates have concl#ded agreements to reg#late the trans!o#ndary movement of these toxic and haDardo#s wastes. Ia&el Convention on the Control o, Bran&#o%ndary "ovement& o, 6a2ardo%& /a&te& and their 8i&po&al, GD)D The (onvention on the (ontrol of Trans!o#ndary /ovement of 9aDardo#s 1astes and their Dis%osal was ado%ted at $asel) *witDerland on -4 /arch) GD)D.GGA Its a%%lication is limited to trans!o#ndary movement of haDardo#s wastes) incl#ding haDardo#s wastes as defined in Annex I to the (onvention or those that are defined as) or are considered to !e) haDardo#s wastes !y the domestic legislation of the *tate of ex%ort) im%ort or transit. The (onvention) however) ex%ressly excl#des radioactive wastes. The (onvention re>#ires each %arty to notify the *ecretariat of the (onvention of the wastes)
other than those defined in the (onvention) considered or defined as haDardo#s #nder its national legislation and of any re>#irements concerning trans!o#ndary movement %roced#res a%%lica!le to s#ch wastes. Parties have a general o!ligation to %rohi!it the ex%ort and im%ort of haDardo#s wastes and other wastes so long as they d#ly notify other %arties of their decision. F#rther) the (onvention re>#ires %arties to %rohi!it the ex%ort of haDardo#s wastes and other wastes if the *tate of im%ort does not consent in writing. In this res%ect) the (onvention has similarity with the ,ondon D#m%ing (onvention disc#ssed earlier in this cha%ter. Parties to the (onvention are o!ligated to designate or esta!lish one or more national com%etent a#thorities as focal %oints. One com%etent a#thority shall !e designated to receive the notification in case of transit of s#ch wastes. The *ecretariat sho#ld !e d#ly notified of the national instit#tions that are so designated. The (onvention %rovides a mechanism for %rior notice !y *tates) from the ex%orting to the im%orting *tates and also !y any *tate of transit. This mechanism allows for denial of consent) granting of consent or even re>#iring additional information !efore a decision is made. The (onvention %rohi!its illegal traffic of wastes and re>#ires that wastes so trafficked) if interce%ted) !e ret#rned to the co#ntry of ex%ortE or to the generator or !e destroyed in accordance with the (onvention.
&&'
I!id. *ee the (onvention in (ontext) in 0wiatkowska K *oons BedsC M&774N.
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Iamako Convention on Ian o, the Import into $,rica and the Control o, 6a2ardo%& /a&te& within $,rica, GDDG The $amako (onvention is the only African legal instr#ment to#ching on the dis%osal of haDardo#s wastes in the African continent. It was ado%ted #nder the a#s%ices of the then Organisation of African Unity BOAUC) now the African Union BAUC at $amako) /ali on &: Gan#ary &77&. African co#ntries were generally dissatisfied !y a mere !an on transitory
movement. The sco%e of this (onvention is similar to the $asel (onvention) !#t it adds haDardo#s s#!stances that have !een !anned) cancelled or ref#sed registration !y government reg#latory action) or vol#ntarily withdrawn from registration in the co#ntry of man#fact#re) for h#man health or environmental reasons and radioactive wastes. The (onvention re>#ires the %arties to f#rnish the *ecretariat with their definitions of haDardo#s wastes #nder their national laws. The (onvention totally %rohi!its the im%ortation of haDardo#s wastes into Africa from noncontracting %arties) and declares s#ch im%ort to !e illegal and criminal. It %rohi!its the d#m%ing of haDardo#s wastes at sea) incl#ding incineration at sea as well as sea!ed and s#!6sea!ed dis%osal) !y contracting %arties) whether in internal waters) territorial seas) excl#sive economic Dones or high seas. All %arties generating any haDardo#s wastes are re>#ired to inform the *ecretariat) and to take rreca#tionary meas#res. Under the regime of this (onvention) there are g#idelines for the trans!o#ndary movement of haDardo#s wastes within African *tates) as well as an ela!orate rroced#re of notification. Parties are also re>#ired to designate a com%etent national a#thority as well as focal %oints for administration of the (onvention nationally. Conclusion This cha%ter offers working definitions of environment and associated management tools s#ch as conservation) %reservation and s#staina!le #se. As these definitions were linked to the conce%t of s#staina!le #tilisation) it is also %ossi!le to offer a working definition of environmental law and th#s harmonise the key domain for %#r%oses of cha%ters in this !ook. In the %rocess) we have !een a!le to identify the f#nction of environmental law as !eing to %rotect
the threshold of s#staina!ility in #tilisation of environment and inter6generational e>#ity. The cha%ter also sets o#t) al!eit !riefly) the different com%onents of environmental law com%rising the common law fo#ndation thereof) the character of constit#tional entrenchment of environmental norms) and the range of stat#tory enactments in the field. Th#s) the different stat#tes dealt with in the ens#ing cha%ters hang !elow as %art of national environmental law and they find an #m!rella !elow which they hang. This is %artic#larly tr#e of the section on constit#tional entrenchments. 1here a#thors find it %ertinent to refer to the constit#tional
#nder%innings of their res%ective to%ics) this can !e done witho#t the necessity of ela!oration on constit#tional entrenchment. That is also tr#e of the disc#ssion offered on international agreements. <iven that there are over -:: agreements in the field of environment) coverage in this cha%ter had to !e only selective and re%resentative) not exha#stive. +fforts have !een made in this cha%ter to o#tline %rinci%al %rovisions of agreements in the field. The effect is that the a#thors of sectoral %a%ers do not have to disc#ss details of res%ective treaty texts concerning their to%ics. 2ational environmental stat#tes are clear in their sco%e to incl#de nat#ral reso#rces and the context within which they exist) going !eyond em%hasis on %oll#tion. ,ike the constit#tional %rovisions examined in the cha%ter) the stat#tes clearly demonstrate the fact that the core f#nction of environmental law is %rotection of the threshold of s#staina!ility6 In most cases) determination of the threshold is left to national regime of im%lementation. Only in a few instances of marine %oll#tion has it !een stated what exactly constit#tes the threshold of s#staina!ility. (oastal *tates are re>#ired to determine the distri!#tion and a!#ndance of marine living reso#rces and the total allowa!le catch or maxim#m s#staina!le yield. That will change from time to time and confers an onero#s res%onsi!ility on the coastal state.
It is on the %ro!lem of climate change where the world comm#nity determined that emission of greenho#se gases exceeded the threshold of s#staina!ility. Th#s) the 0yoto Protocol #rged the glo!al comm#nity to red#ce emission to the &77: levels. *#ch %rescri%tions) it will !e recalled) were ex%ressed in conventions on marine %oll#tion where discharge standards were s%ecified. The str#ct#re of environmental law needs to !e %erceived in its totality even tho#gh in this cha%ter) it is im%ractical to give an exha#stive analysis of all and each category. Ill#strations given here will s#ffice for #nderstanding the conce%t) f#nction and str#ct#re of environmental law.
Chapter 0
Economic Issues for Environmental and esource )anagement in -en&a

1I,F.+D 2JA2<+2A
Int o*+!t%on
The nex#s !etween growth) economic %olicies and the environment has !ecome a %rimary concern in 0enya and neigh!o#ring co#ntries. This is !eca#se environmental and reso#rce degradation in the region has accelerated dramatically over the last few decades. There is a strong correlation !etween so#nd environmental management and %overty red#ction. +nvironmental degradation #ndermines livelihoods and f#t#re o%%ort#nities among the co#ntry8s %o%#lation) with A@ %er cent of the %oor living in r#ral areas. The r#ral %oor) with limited alternative livelihood) de%end on their nat#ral reso#rces to s#rvive. Additionally) the to#rism ind#stry) which contri!#tes &: %er cent of <DP) largely de%ends on %r#dent management of the
environment) incl#ding wildlife and forests. Deforestation) !iomass degradation) air and water %oll#tion and over6a!straction of vario#s reso#rces %ose serio#s concerns for %olicy makers. /a?or ca#ses of environmental degradation have !een identified as deforestation) reclaiming of wetlands) %oll#tion) over6a!straction of reso#rces) and dis?ointed sectoral laws. 0enya has over : stat#tes that relate to environmental concerns. /ost are sector6s%ecific) covering iss#es s#ch as water) land) forest) %rotected areas) among others. Im%lementation of these sectoral laws has !een weak) inconsistent and ad hoc) leading to conflicts and th#s making it diffic#lt to administer nat#ral reso#rces. +fficient co6ordination across the sectors is critical !eca#se different agencies have their own %olicies and o!?ectives) which may !e in conflict with those of other agencies. For instance) gro#nd water mining and %oll#tion %#ts %ress#re on land and water >#ality. Poll#tion of water from ind#strial waste) %oorly treated sewage) and r#noff of agric#lt#ral chemicals is a ma?or contri!#tor to h#man disease. /oreover) !eca#se of the increasing com%etition for water reso#rces) allocation has to !e done in an integrated manner) not only considering irrigation) !#t also ho#sehold and ind#strial demand. Discharge of solid and li>#id waste) gaseo#s emissions and d#m%ing of %lastics has also affected most of 0enya8s #r!an and r#ral areas) %osing ma?or challenges for environmental management. Deteriorating environmental conditions lead to lower >#ality of life) loss of %rod#ctivity and higher healthcare costs B1orld 9ealth Organisation) &77 C. Other effects of environmental degradation incl#de red#ced rainfall) soil infertility) drying of water towers)
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water %oll#tion and erosion of genetic material. In con?#nction with the %rogress of #r!anisation) the nat#ral landsca%e is increasingly altered) leading to dimin#tion of green s%aces) and #r!an dwellers have increasingly less access to nat#re in their every day life.
In the international realm) glo!al environmental %ro!lems W s#ch as climate change occasioned !y a !#ild #% of car!on dioxide and other greenho#se gas emissions in the atmos%here W have emerged. The !#ild #% of car!on dioxide and s#l%h#r dioxide will !ring a!o#t an increase in glo!al tem%erat#res) leading to climatic change. As climatic conditions change) entire ecosystems or s%ecies may !e #na!le to kee% %ace. In addition to the val#e of ecosystems) the %redicted effects for the environment and for h#man life are n#mero#s and varied. The Inter6governmental Panel on (limate (hange BIP((C %redicts a variety of res#lting effects s#ch as rising sea levels) altered %atterns of agric#lt#re) increased extreme weather events and an ex%ansion of the range of tro%ical diseases. .ecent economic models have estimated damages as great as U*X 5 trillion if climate change is allowed to contin#e #na!ated B*tern) -::'C. 0enya) like other develo%ing co#ntries) will face serio#s challenges in mitigating and ada%ting to the effects of climate varia!ility. The first stages of warming have already !egan to %#t essential ecosystems at risk and will f#rther strain the economy and the government8s a!ility to res%ond. The climate system and economic activities that affect it have enormo#s moment#m. It is not %ossi!le to wait #ntil things get then. Action has to !e taken long !efore the co#ntry ex%eriences the f#ll severity of the %ro!lem. ,arge scale and creative a%%roaches are needed to c#r! the %ro!lem. In this context) there are three critical iss#es. First) is to #nderstand the near term damages from climate change as a sign of m#ch worse to come if nothing is done to sto% it. *econd) concerted action at glo!al) regional and local level lacks !eca#se of the com%lexity of environmental %ro!lems and !eca#se of the ina!ility of %olitical and economic
systems to deal with them. A f#ndamental reason why a develo%ing co#ntry like 0enya may !e rel#ctant to address these iss#es is !eca#se the a!atement costs far exceed the !enefits. Finally) develo%ing co#ntries see ind#strial nations as the so#rce of many environmental %ro!lems and sho#ld address these iss#es. At iss#e is whether or not climate change) environmental and reso#rce degradation will not !ecome a st#m!ling !lock for economic growth. The links !etween environmental degradation and %overty are com%lex and diffic#lt to !reak. Poverty leads to #ns#staina!le #se of reso#rces !eca#se the %oor have few immediate alternative o%tions o%en to them in the short r#n. $eca#se they de%end on nat#ral reso#rces for their livelihood) the degradation of these reso#rces exacer!ates their condition. For instance) as a res#lt of declining forest and water reso#rces) many %oor %eo%le have to s%end many ho#rs looking for these commodities at the ex%ense of other economic activities. The %ro!lem is f#rther com%o#nded !y the fact that degradation of environmental reso#rces contin#es #na!ated des%ite existing laws. It is for these reasons that
0enya needs to em!race so#nd environmental management to address rising %overty concerns as well as over6de%endence on environmental reso#rces. The <overnment of 0enya has enacted vario#s laws and %olicies towards environmental %rotection and conservation. An im%ortant %iece of s#ch legislation is the +nvironmental /anagement and (o6ordination Act B+/(AC of &777. The Act mainly calls for the ado%tion of a co6ordinated a%%roach to the im%lementation of national environmental law. 1hile +/(A constit#tes a #sef#l framework law on environmental reg#lation and management in 0enya) m#ch em%hasis is on fiscal incentives and disincentives) and mandatory command and control environmental
reg#lations to %rotect environmental >#ality. Altho#gh +/(A acknowledges that economic %olicy incentives are an im%ortant means of maintaining a clean environment) little research has !een done to assess the a%%lica!ility of these tools in 0enya. There is need for analytical research to fill this ga% and also g#ide the %olicy reform %rocess. Additionally) coercion thro#gh reg#lations can fail in other ways. First) the infrastr#ct#re needed to enforce the reg#lations is weak or even a!sent. *econd) the transaction costs of im%osing coercive sol#tions are often so high as to make s#ch sol#tions im%ractical. Third) when degradation or %oll#tion comes from a large n#m!er of small or =non6%oint so#rces= as is the case with %esticide or fertiliDer resid#es from agric#lt#ral r#noff) it !ecomes extremely diffic#lt to determine who is ca#sing environmental degradation. ,astly) information a!o#t environmental violations is often inade>#ate. In addition) local reg#lators are often strongly infl#enced !y %rivate sector interests and lack the %olitical will for strict enforcement. In this regard) it may !e #sef#l to com%lement +/(A with alternative a%%roaches s#ch as %#!lic disclos#re) and vol#ntary reg#lation !y individ#al firms to im%rove environmental %erformance. & In light of the foregoing) environmental economics has m#ch to say a!o#t environmental governance) es%ecially regarding the most efficient form of reg#latory intervention to #se for s%ecific environmental %ro!lems. - ,iterat#re on economic instr#ment choices) monitoring and enforcement are %artic#larly relevant. It %rovides %owerf#l insights into the %ro!lems that arise d#e to im%erfect information and) to some extent) on the limitations of availa!le %enalties. This literat#re can !e !roadened to %lay a #sef#l role in a %ositive theory of environmental governance in 0enya. 1ithin this context) this cha%ter seeks to %rovide a !ackgro#nd for examining
& Fol#ntary
reg#lation %rovides incentives rather than mandates for degradation control. economics addresses the interface !etween economics and the earth8s life s#%%ort system.
- +nvironmental
.eso#rce economics tackles !oth geological reso#rces s#ch as oil) and increasingly !iological reso#rces s#ch as fisheries and forests.
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s#staina!ility) environmental and reso#rce %ro!lems) existing %olicy and %rovoke de!ate in these sectors in 0enya. The cha%ter aims to esta!lish a firm common gro#nd on the !asic facts on environmental and reso#rce management) the driving forces that any legislation aims to affect and the tradeoffs involved in environmental %olicy design. 1e also analyse the a%%lica!ility of economic instr#ments and %ossi!le constraints to their im%lementation. The cha%ter foc#ses on a few nat#ral reso#rces s#ch as water) fisheries) land and forests that are ecologically significant) economically im%ortant and ill#strative of the com%lex iss#es involved. Environmental Sustaina"ilit& An overriding o!?ective of 0enya8s develo%ment agenda is C&%&taina#le %&e o, nat%ral re&o%rce& and con&ervation o, the environmentC B.e%#!lic of 0enya) &775C. *#staina!le develo%ment can !e inter%reted as economic develo%ment that is consistent with long6term sta!le environmental >#ality and reso#rce availa!ility. *#staina!ility considerations are addressed when develo%ment activities incor%orate ways to deal with negative environmental im%acts. 9owever) the integration of environmental considerations into develo%mental activities re>#ires m#ch !roader levels. /ainstreaming environmental concerns means that environmental stewardshi% is not only a matter for governments) !#t that society also shares the val#es #nderlying all as%ects of environmental goods and services. /ainstreaming re>#ires s#!stantive and sometimes radical reforms in instit#tional and h#man !ehavio#r. It has !een arg#ed that %resent economic systems need to transform towards a s#staina!le economic system) with new %olicies) instit#tions and mechanisms BO%schoor)&775C. . D#ring the initial stages of growth) environmental %ress#re is %rimarily exerted in
agric#lt#re) forestry and fisheries W the 8green8 areas. Pro!lems with air %oll#tion) d#m%ing of %esticides) toxic waste and so on are !o#nd to arise. As develo%ment %rogresses) increased %ress#res are exerted on the 8!rown8 areas) incl#ding air and water %oll#tion and the acc#m#lation of other waste %rod#cts. At high income levels) the co#ntry will have reso#rces to address %oll#tion %ro!lems) and other areas of the environment will exhi!it clear im%rovements thro#gh investments in clean technologies) more efficient %rod#ction techni>#es and im%roved infrastr#ct#re) %artic#larly water s#%%ly and sanitation. Following this arg#ment) most co#ntries have %#rs#ed economic develo%ment witho#t taking environmental iss#es into acco#nt. They now face the conse>#ences; water and air %oll#tionE and rising glo!al tem%erat#res ca#sed !y greenho#se gasesE %esticides in the food s#%%ly chain) and so on. A %ositive as%ect of these %ro!lems is that they %rovide a lesson in terms of mistakes made) which sho#ld !e avoided !y 0enya and other develo%ing co#ntries. Another as%ect of these %ro!lems is that co#ntries m#st !eware of the irreversi!ility) %artic#larly in the context of environmental degradation and loss of !iodiversity. Once !iodiversity loss has escalated !eyond certain thresholds) reversing the sit#ation is im%ossi!le.
Economic !olic& Instruments In this section) we %resent some of the main categories #sed in economics for environmental and nat#ral reso#rces %olicy. The %#r%ose is to %rovide !ackgro#nd and context for the s#!se>#ent analysis. +conomic instr#ments for environmental and nat#ral reso#rce management are economic incentives designed to infl#ence the !ehavio#r of economic agents and ens#re
s#staina!le #se of reso#rces. There is a long list of economic instr#ments. Table 6,7: Class%f%!at%on of e!ono#%! %nst +#ents Us%n$ #a /ets C eat%on of #a /ets En)% on#ental e$+lat%ons En$a$%n$ t&e (+bl%! +nvironmental Taxes and charges Pro%erty and decentralisation *tandards P#!lic %artici%ation *#!sidy red#ction Tradea!le %ermits and rights $ans Information disclos#re User charges International offset systems %ermits and >#otas De%osit ref#nd systems Honing Targeted
s#!sidies ,ia!ility -o%rce: $dapted ,rom /orld Iank 5GDDA7 The classification of instr#ments differs from one co#ntry8s ex%erience to the other. 2o single taxonomy is necessarily %refera!le. 1e ada%t a ty%ology #sed !y the 1orld $ank B&77 C for organising the rich diversity of instr#ments !ased on act#al ex%eriences from other co#ntries. The %olicy instr#ments are divided into fo#r categories; #sing markets) creating markets) environmental reg#lations and %#!lic information %rovision. Information %lays an im%ortant role in %olicy making and is an im%ortant instr#ment on its own. At a general level) all %olicy de%ends on information as %olicy makers m#st #nderstand the ecology and technological iss#es #nder consideration. In o#r categoriDation) the first set of instr#ments involves %&ing market&, incl#ding s#!sidies) environmental charges on %oll#tants) in%#ts) o#t%#tsE #ser charges) de%osit6ref#nd systems) environmental targets and %erformance !onds. The creation o, market& category consists of mechanisms for delineating rights. This is %artic#larly relevant in develo%ing co#ntries for reso#rces s#ch as land and other nat#ral reso#rces. The category of environmental reg%lation&
incl#des standards) !ans) %ermits) >#otas and activity Doning. Also incl#ded in this gro#% are lia!ility and licenses r#les) linking them to a !road area of law6making and the %olitical economy of enforcement. Instr#ments s#ch as lia!ility !onds) %erformance !onds and %enalties are %art of these tools. Conditions and criteria for economic instruments There are a n#m!er of #sef#l criteria to eval#ate when ado%ting an economic instr#ment for environmental management. E,,iciency The main strength of economic instr#ments is that they are cost6efficient and allow flexi!ility
that %romotes efficiency in the overall economy. It is im%ortant to assess) on a case !y case !asis) whether the economic instr#ment !eing %ro%osed is cost6efficient and whether there is sco%e for increasing overall efficiency in the economy. If administrative costs for im%lementing the instr#ment o#tweigh alternative a%%roaches !ased on efficiency alone) then the alternatives may rightly !e %referred. E,,ectivene&& It is critical that an instr#ment is effective in controlling the environmental %ro!lem in >#estion. It wo#ld !e wrong to imagine that every environmental %ro!lem can !e addressed !y an economic instr#ment. On the other hand) it is im%ortant to ens#re that the economic instr#ment selected addresses the %ro!lem at hand. Fle<i#ility $ good economic instr#ment ada%ts fast to changing circ#mstances s#ch as economics) technology and markets. For instance) a well designed market %ermit scheme wo#ld contin#e to !e effective even as %rices change or even as a new technology enters the market. A charges system) on the other hand) may have its effectiveness eroded d#e to inflation #nless the charges are linked to an index. In ado%ting economic instr#ments) one needs to assess the extent to which the instr#ment is flexi!le. E:%ity *ome economic instr#ments are s#sce%ti!le to highly skewed distri!#tion of costs and !enefits. It is a!sol#tely im%ortant to #nderstand the distri!#tional im%act of the instr#ment first !efore ado%ting it. *kewed distri!#tional im%acts may lead to %olitical #nacce%ta!ility of the
instr#ment. /ore im%ortant) if an instr#ment makes the %oor worse off in their %#rs#it of
livelihood) it wo#ld !e defeating the long term o!?ective of %overty alleviation and may) therefore) !e #ns#ita!le for ado%tion. olitical ,ea&i#ility Any %olicy instr#ment wo#ld inevita!ly to#ch on some vested interests in the society. If the negative effects on vested interests are %rofo#nd and wides%read) the interest may meet formida!le %olitical resistance. To red#ce %olitical resistance) %artici%atory and cons#ltative a%%roaches are needed in designing economic instr#ments for environmental management. A%art from the economic criteria a!ove) there is need to examine the %ractical conditions for ado%ting economic instr#ments for environmental management. These incl#de; Legal &tr%ct%re Introd#ction of economic instr#ments re>#ires legal !acking that clearly s%ecifies Ihe ?#risdiction of different organs) the o!ligations and lia!ilities of the %layers) and mechanisms for ens#ring com%liance. 1itho#t well6designed legal !acking) %eo%le co#ld resort to legal action to fr#strate the reg#latory agency. Bran&parency The criteria and %roced#res #sed to iss#e %ermits need to !e known !y all stakeholders and a!ided !y the reg#latory agency. Bechnical capacity *ome economic instr#ments re>#ire availa!ility of certain technical a!ility. For exam%le) collection of some #sed %rod#cts re>#ires that the technical means of recycling are availa!le. Once these !road criteria are addressed) it remains to analyse each s%ecific economic instr#ment to see how to design it) the %otential o!stacles) and sol#tions. *ome of these instr#ments are s%ecific to the reso#rce or environmental %ro!lem. 1e !egin o#r examination of
the %ro!lems of reso#rce #tilisation for selected reso#rces !y looking at water. The reso#rces selected for analysis here is !ased on several criteria. First) is the large n#m!er of %eo%le involved in the ex%loitation of the reso#rce and contri!#tion to national acco#nts. *econd) is the contri!#tion) !oth act#al and %otential) to %overty red#ction in the co#ntry. ,ast) is the danger %osed to h#man health !y the effl#ent or activity. For each identified system) we !riefly foc#s on act#al or %otential economic val#es and im%lications for loss or over#se.
1ater
As in many %arts of the world) water constit#tes the f#ndamental reso#rce s#staining local
livelihood and national food sec#rity. 1ater also %lays a strategic role in the economy as a reso#rce for #r!an cons#m%tion) energy generation) agric#lt#re) livestock) to#rism and ind#strial develo%ment. The im%ortance of water reso#rces in national develo%ment is reaffirmed in %olicy doc#ments Be.g. .e%#!lic of 0enya) &777C) which em%hasises the im%ortance of water reso#rces management as a !asis for %overty red#ction and %romotion of socio6economic develo%ment. 1e em%hasise these key o!?ectives of government %olicy as follows; Q (onservation and %rotection of availa!le water reso#rces) Q *#%%ly of ade>#ate and >#ality water to meet vario#s needs) Q +ns#re safe dis%osal of waste water to safeg#ard ecological and environmental %rocesses)
Q +sta!lish an efficient and effective instit#tional) %olicy and legal framework to
achieve systematic develo%ment and management of water reso#rces) and

Q Develo% a so#nd and s#staina!le financing mechanism for effective water
reso#rces management and s#%%ly systems. Interestingly) 0enya is classified as a chronically water scarce co#ntry B1orld $ank) -::5C.
The co#ntry8s ann#al renewa!le freshwater s#%%ly of a!o#t '5 c#!ic metres %er ca%ita falls way !elow the &)::: c#!ic metres %er ca%ita threshold set as a mark for water scarcity B1orld $ank) -::5C. The co#ntry8s storage ca%acity is) however) grad#ally !eing red#ced !y siltation and destr#ctive nat#ral calamities s#ch as heavy flooding. (onsidering all the factors governing the availa!ility and accessi!ility of water reso#rces) it is clear that im%rovement in the management of water reso#rces is of %riority concern. *trong demogra%hic %ress#re) migration and #r!anisation) among other factors) have led to degeneration of water so#rces and livelihood systems. 1ith declining %er ca%ita water availa!ility) additional concerns centre on inefficiencies in water allocation and #se) water #se conflicts and increasing %ro!lems of water %oll#tion. A n#m!er of re%orts indicate that %oor governance of catchment areas has increased the v#lnera!ility of the co#ntry to the reg#lar occ#rrence of floods and dro#ghts B.e%#!lic of 0enya) &777E U2+P@<overnment of 0enya) -:::C. For instance) the cost attri!#ted to degradation of water catchments) siltation of water storage facilities) %oll#tion of s#rface and gro#ndwater) e#tro%hication of lakes and water systems and #na#thorised a!straction can !e s#!stantially red#ced !y %artici%atory management. Des%ite the acknowledged role of water reso#rces in socio6economic develo%ment and growth) there is little information on the im%act of water degradation on the national economy. The %ro!lem is exacer!ated !y excessive and #ncontrolled a!straction from rivers and #ndergro#nd so#rces) which is largely illegal. The water allocation %ro!lems are felt most d#ring dro#ghts !eca#se of inade>#ate storage) %oor allocation and enforcement mechanisms. The 1ater Act -::- does not %rovide
government agencies with the %owers they need to resolve water dis%#tes) nor does it %rovide
for effective reso#rce management and %oll#tion control. /ater poll%tion 1ater reso#rces in 0enya are increasingly !ecoming %oll#ted from !oth %oint and non %oint so#rces. Poll#tion im%oses a high cost on the economy thro#gh detrimental health effects) increased treatment costs for drinking water) red#ction in f#t#re #se o%tions for the water B%artic#larly gro#ndwaterC) loss of economically significant fa#na and flora) and degradation of environmentally im%ortant areas. 0ey so#rces of water %oll#tion are; Q Discharge of #ntreated or semi6treated #r!an sewage and storm6water) Q Ind#strial effl#ents and #r!an solid wastes) Q *ea water intr#sion into water a>#ifers) Q *#rface erosion@ r#n6off of sediments and n#trients) Q Atmos%heric de%osition of n#trients Bes%ecially in the case of ,ake FictoriaC) and Q Agro6chemicals. 1eak enforcement of reg#lations controlling %oll#ting activities sim%ly transfers costs ca#sed !y %rivate enter%rises to the %#!lic sector or f#t#re generations. Poll#ters need to !e confronted with the f#ll cost of their activities in line with the 8%oll#ter %ays %rinci%le8. /onitoring needs to !e im%roved and %#!lic interest gro#%s need to !e increasingly involved so that %oll#ting activities are seen to !e socially #nacce%ta!le. Ind%&trial e,,l%ent The ind#strial sector in 0enya ex%erienced ra%id growth in the early &7 :s with an ann#al growth rate of a!o#t ' %er cent. /ost of the ind#stries are !ased within or near #r!an centres. *#ch ind#stries incl#de tanneries) textile mills) !reweries) creameries) %a%er %rod#ction and recycling %lants) chemical %rocessing %lants) and sla#ghterho#ses) which discharge effl#ents into the existing sewers and th#s exert more %ress#re on the existing sewerage infrastr#ct#re.
1ater %oll#tion arising from #r!an6!ased ind#stries is evident in 2airo!i Bchemical %rocessing) %a%er recycling and sla#ghterho#sesC) 1e!#ye B%a%er %rod#ctionC) Thika Btanneries) textile ind#stries) and chemical %rocessingC) Athi .iver Bsla#ghterho#se and tanneryC) 2ak#r# Bchemical and textile ind#striesC) 0is#m# Bfishing) chemical %rocessing) and agro6%rocessingC) and /om!asa Bfishing ind#stry) chemical ind#stries) oil ind#stry) and agro6%rocessingC. Agric#lt#ral %rod#ce from irrigated areas has !een re?ected in ex%ort markets !eca#se of
contamination !y heavy metals from ind#strial waste B9enson et al.) -:::C. A n#m!er of agro6%rocessing ind#stries are located within r#ral areas. *#ch ind#stries incl#de coffee %#l%ing and fermenting ind#stries) tea %rocessing) fi!re %rocessing) s#gar %rocessing and canneries. The discharges from these ind#stries are mainly organic) with high $iological Oxygen Demand B$ODC loads. For exam%le) s#gar milling cons#mes large >#antities of water and the discharge has a $OD range of 4)::: to 3)::: mg@& B/wango) -:::C. The >#ality of the final effl#ent is invaria!ly %oor and de%resses the oxygen levels of the receiving waters. /ater re&o%rce degradation The im%act of water degradation on the economy is significant and affects many sectors. 1ater allocation decisions are !ased on inade>#ate hy drological information. <ro#nd water reso#rces have also !een ex%loited !eyond their s#staina!le yield level) %artic#larly at the (oast. Th#s) sea water is contaminating some a>#ifers) necessitating some hotels to s%end a!o#t 0sh ':: million %er ann#m in desalination and a!o#t 0sh " : million in %#m%ing costs d#e to lowering of the gro#ndwater ta!le) B/ogaka et al., -::3C. 1ater >#ality has also deteriorated thro#gh !oth
#ncontrolled discharge of #r!an and ind#strial wastes. This is estimated to im%ose an additional 0sh "3: million %er ann#m in treatment costs alone. Poll#tion of water !odies with sediments and agro6chemicals from catchment so#rces im%oses additional costs. The economic and ecologically im%ortant ,ake Fictoria is now choking from excessive n#trient in%#ts) which may lead to the loss of %otential earnings from 2ile %erch ex%orts alone) estimated to !e 0sh '": million. Ta!le - s#mmariDes the %otential so#rces of water degradation and their %otential economic im%lications.
Table 6,6: S+##a ' of (&'s%!al %#(a!ts of -ate Iss+e P&'s%!al I#(a!t
eso+ !es *e$ a*at%on
Over6a!straction of water Q Illegal a!straction of water red#ces %rod#ction from irrigators holding %ermits. Q Illegal6 a!stractions have led to conflicts res#lting in social disr#%tion) in?#ry) and deaths. Q Illegal a!stractions and over6a!straction red#ce !eneficial f#nctioning of wetlands) lakes and water !odies. Q Over6a!straction of gro#ndwater for #r!an #se and irrigation increases the cost of %#m%ing and red#ces f#t#re water #se o%tions. Forest clearance Q Increased erosion with high sediment loads !eing delivered to dams) wetlands) lakes)
est#aries) and coastal regions. Q Increased erosion leading to loss of #r!an water s#%%ly facilities. Q Increased flows) incl#ding flash flood %eaks) when clearance is followed with low vegetation cover) leading to increases in flooding with cro% losses and water !orne diseases) Poor soil management Q Increases in riverine sediment and n#trient loads) leading to siltation of dams) %ans) wet lands) lakes) est#aries) and coastal regions.
Q Increases in d#st and attached %oll#tants s#ch as n#trients) leading to e#tro%hication of receiving water !odies. Q Increases in soot and n#trients from st#!!le and grassland !#rning) leading to e#tro%hication of water !odies. Q Increases in soot and n#trients from st#!!le and grassland !#rning) leading to e#tro%hication
Discharge of h#man waste Q Poor o%eration of sewage treatment %lants res#lts in micro!ial contamination)deoxygennation) and e#tro%hication of receiving water !odies. Q (ro%s grown in contaminated water ca#se health effects and may lead to re?ection of ex%ort cro%s. Q $OD loading and heavy metal contamination of receiving waters.
Q (ro%s grown with contaminated water ca#se health effects and may lead to re?ection of ex%ort cro%s. Poor management of agric#lt#ral chemicals Q ,eaching of agro6chemicals can threaten a>#atic life) incl#ding fish and !irds. Q The health of agric#lt#ral workers is affected !y %oor handling of chemicals. Occ#rrence of invasive weeds Q 1eeds choke har!o#rs and landing sites) har!o#r %ests) red#ce fishing accessi!ility) clog water offtakes) and affect navigation. The costs of water degradation to the economy are hard to estimate. $ased on limited data availa!le) water degradation costs the co#ntry at least 0sh 4.4 !illion B:.3R <DPC ann#ally B/ogaka et al, -::3C. This cost can !e minimised !y increased investment in water infrastr#ct#re and more efficient and %artici%atory management of water reso#rces. /ost of the im%acts of water degradation and %oll#tion disc#ssed in Ta!le - a!ove cannot !e immediately >#antified for several reasons. First) there is lack of data covering most of the im%acts. *econd) from a theoretical %ers%ective) some of the im%acts do not have readily availa!le %rices and lack market %rices. The diversity of im%acts s#ch as loss of fisheries %rod#ction and health costs to water treatment re>#ire com%licated val#ation techni>#es to ca%t#re. (onse>#ently) the estimates availa!le may !e #nder6estimates. The #nderlying lesson is that the magnit#de of the
cost to the national economy is large. /ater admini&tration and in&tit%tion& In times of growing water scarcity and com%etition regarding access to water reso#rces) water rights !ecome a %ivotal iss#e in the str#ggle of %eo%le to defend their livelihoods and sec#re their f#t#re. In order to %enetrate dee%er into the im%ortance and f#nctioning of water rights) and to !etter #nderstand the com%lexity of water management arrangements fo#nd in real life
sit#ations) it is necessary to analyDe water rights as a m#ltilayered conce%t B$oelens K Doorn!os) -::&E .oth) -::4C. 1ater rights do not refer to water access and #se only. The m#ltilayered character of water rights can !e conce%t#ally re%resented !y the =!#ndle of rights= conce%t involving water #se and o%erational rights as well as management decision6making rights) and showing enormo#s diversity and divergence from one locality to another B*chlager and Ostrom) &77-C. Different rights6holders therefore have different rights and %owers. O!vio#sly) local normative systems do not and have never come into !eing within a social vac##m) nor are they limited to inde%endent develo%ment. Alongside %hysical and ecological conditions) their develo%ment is interwoven with the %ast and %resent history of the c#lt#ral) %olitical) economic) technological and instit#tional fo#ndations of the 0enyan society. They com%rise normative frameworks that are locality6s%ecific) dis%laying enormo#s variety from one region to another. ,ocal framework of rights) o!ligations and working r#les define water distri!#tion) system o%eration and maintenance) incl#ding the !asic agreements that define the organisational str#ct#re and a%%lication of sanctions for infringements. *tr#ggles over water rights and !enefits) therefore) involve conflicts a!o#t access to and withdrawal of this %owerf#l reso#rce) as well as a!o#t control over its management and recognition of the res%ective
a#thorities8 legitimacy. This is an im%ortant iss#e in 0enya since it is %recisely the a#thority of locals that is increasingly !eing denied) their water #sage rights that are !eing c#t off and their control over decision making %rocess that is !eing overlooked. olitical economy o, water management As in other %arts of the world) new %olicies for the reg#lation) intervention and ada%tation of water management are needed in 0enya as an answer to water crises. In %rinci%le) s#ch %olicies are s#%%osed to enco#rage decentralisation) and co#ld !e a ma?or ste% towards strengthening #sers8 rights !y granting them greater decision making %ower and sec#rity in their water rights) and res%ecting s#fficient a#tonomy for water management according to their needs and their own %otential sol#tions in %artic#lar contexts. 9owever) in recent times of neo6li!eralisation and government downsising in 0enya) %artici%ation is often a facade for the #nderlying intention to a!andon essential %#!lic tasks and c#t!ack on %#!lic s%ending in water management. The negative im%acts and lack of f#nctionality in water management %olicy at the national level with regard to local sit#ations means that new water %olicies will !e controversial. For instance) it is common to see that %owerf#l stakeholders manage to dis%ro%ortionately infl#ence new reg#lations and %olicies) or mono%olise water access and control rights. Also) the effectiveness of to%6down decentralisation %olicies is >#estioned es%ecially since this #s#ally involves transfer of tasks !#t not decision making %owers to lower management levels. At the same time) there are fears that the government8s action to %rivatise water services and to
esta!lish markets may not !e com%lemented !y ade>#ate frameworks or reg#latory !odies to
%rotect collective interests and water rights of locals. 1here new reg#lations and instit#tions have recently !een im%lemented) they lack s#fficient !acking in terms of realistic strategies or ca%acities for im%lementation. D#e to lack of #nderstandingof locals8 norms and ways of thinking) and the a!sence of a%%ro%riate forms of colla!oration and interactive strategies) even well6intentioned water %ro?ects have !roken down existing norms of organising water systems. As a res#lt) there are many exam%les of negative organisational and infrastr#ct#ral im%acts of to% down rater %rogrammes that are g#ided !y ineffective legislative frameworks. The government and %eo%le sho#ld recognise the social) economic and %olitical risk Associated with %oor water reso#rce management. There is need to !#ild %olitical commitment) increase water storage ca%acity) im%rove water management thro#gh decentralisation) greater trans%arency and increased comm#nity %artici%ation) and increase the knowledge !ase for management. Fisheries Fish are an im%ortant so#rce of %rotein and) therefore) %lays an essential role in %#!lic health and contri!#tes directly towards %overty eradication. Fishing is an im%ortant so#rce of em%loyment and foreign exchange earner. Fishing also re%resents a recreational val#e. ,astly) the stock of fish is an im%ortant indicator of me state of the environment since fish live in the water that covers most of the earth8s s#rface and is also the re%ository of a large share of ind#strial and agric#lt#ral %oll#tion. D#ring the -::3@:' financial year) the sector realised a reven#e collection of 0shs. 5.' !illion B.e%#!lic of 0enya) -:: C. To #nderstand fisheries and their %ro!lems) one m#st disting#ish the com%lex ecosystems they are %art of. In 0enya) the most v#lnera!le fisheries are demersal fish) which feed from the continental shelf and ocean !ottom) and are a!#ndant in shallow waters and are ty%ically the main so#rce of local s#!sistence.
Bhe nat%re o, the challenge Fisheries)!elong to what is known as common %ool reso#rces) which involve nonexcl#sion in reso#rce extraction. In fisheries) the market generally fails witho#t reg#lation !eca#se the !asic re>#isite of reso#rce ownershi% is not %resent. Pro%erty rights matter for g#iding and constraining h#man !ehavio#r. It has long !een #nderstood among social scientists that %eo%le may over#se or fight over reso#rces in which excl#sion has not !een defined. As a class) fisheries have two characteristics that disting#ish them from other kinds of reso#rces. First) is the diffic#lty of excl#sion d#e to lack of individ#al water rights W one cannot %revent others from access and control to the reso#rce. *econd) there is s#!tracta!ility) which im%lies the ca%a!ility of each #ser to take away from the welfare of others. These two %ro!lems often create
a divergence !etween individ#al and collective economic res%onsi!ility which) #nless mitigated) leads to a 8tragedy of the commons8) a sit#ation that occ#rs in the a!sence of %ro%erty rights to the reso#rce BFeeny et ah, &77'C. Unclear or non6existent rights res#lt in over6ex%loitation !eca#se no one is res%onsi!le for the fishery W a mining mentality as concerns #se of the fishery) !eca#se long term res%onsi!ility or lia!ility does not exist. This leads to declines in fish stocks and diminishing levels of !iodiversity Bgene and s%eciesC. 1here economists have tended to %art ways with other social scientists is their dogged foc#s on and %romotion of %rivate %ro%erty rights to the excl#sion of other ty%es of %ro%erty rights systems. The economic arg#ment for %rivate %ro%erty rights is well known and convincing. Pro%erty rights create an incentive str#ct#re that ens#res that %eo%le defend their
%ro%erty against over6#se and degradation. In fisheries) for exam%le) fishing rights can !e iss#ed and distri!#ted among fishermen in a manner that the total catch does not exceed the !iologically s#staina!le yield of the fishery and the economically o%timal catch. The confinement to a small geogra%hic area makes it easy to monitor fish catch. Fishermen co#ld also !e allowed to trade the fishing %ermits among themselves. The less efficient fishermen can sell their fishing rights to more efficient o%erators. In this way) efficiency is %romoted m#ch in the same way as it wo#ld have !een if %ro%erty rights were assigned and allowed to o%erate in a com%etitive setting. In addition) the fish stock is %revented from colla%sing. *#ch %ermits in the fisheries sector are known as Individ#ally Transfera!le I#otas BITIC. In order for the %ermits to work) a n#m!er of criteria are necessary; the n#m!er of %ermits iss#ed sho#ld !e limited and well defined to give them val#e and enco#rage tradeE transactions costs sho#ld !e lowE there sho#ld !e an acc#rate and effective monitoring mechanism to detect cheating and a!#seE and %enalties for violations m#st !e high to enco#rage %rod#cers to adhere to the r#les. Once these criteria are in %lace) the modalities for iss#ance of %ermits m#st !e agreed #%on. Permits can !e allocated thro#gh an a#ction system to the highest !idder irres%ective of the history of reso#rce harvest. This system has the disadvantages of alienating historical #sers who may feel that they have historical rights over the reso#rce. There is also the iss#e of e>#ityE while a#ctioning %rod#ces efficient o#tcomes) %eo%le with modest reso#rces may feel disenfranchised.
The other form of %ro%erty rights is the comm#nity6!ased ownershi%) a sit#ation where the reso#rce is owned neither %rivately nor !y the *tate. This ty%e of %ro%erty rights regime im%lies that the reso#rce ownershi% and management is in the hands of an identifia!le gro#% of individ#als who can excl#de others and reg#late the #se of the fishery. It has !een shown that s#ch comm#nally6owned reso#rces can !e well managed) ex%loited in a s#staina!le manner and even enhance efficiency BOstrom) &77-C. The main strength of s#ch a rights regime is that !enefits from the fishery are shared within the comm#nity and) th#s) the iss#e of skewed distri!#tion of !enefits is minimised. In addition) the system is in tandem with the traditional
Internal Teaching Use Only &::
val#es of most African societies. 1hen the reso#rce is regional as o%%osed to local) it !ecomes diffic#lt to monitor #se and restrict the !enefits of good stewardshi%. For ,ake Fictoria) the o%en nat#re of the fishery has meant that fishing fleets have grown in siDe) n#m!er and technology. These increases have !een followed !y stagnation or decline in fish stocks. The fishing sector rarely identifies an a%%ro%riate level and sticks to it. The conse>#ence has !een over6fishing and n#mero#s conflicts !etween fishing fleets within the co#ntry and even with fleets from neigh!o#ring co#ntries. Instead of restricting fishing effort) %reventing over6#se and allowing stocks to recover) many governments in the region sim%ly =assist the fishermen= !y %roviding incentives to ex%and %rod#ction as if they were a standard ind#stry. Th#s) there are credits and low interest loans %rovided to %#rchase faster and !igger !oats) longer and more meshed !oats and to %#rchase new fish finding e>#i%ment s#ch as sonar and <lo!al Positioning *ystem B<P*C. *#!sidies that lower the cost of fishing are !ad %olicy if the main %ro!lem as identified is overfishing
as a res#lt of o%en access. *everal %olicies a%%ear to work) incl#ding =%artial %ro%erty rights)=4 for instance the -:: mile excl#sive DoneE fishing licensesE restrictions on gear or seasonsE and fishing >#otas. *ol#tions to the 8commons8 %ro!lem involve some form of access control and some form of instit#tional design to reg#late #se and to minimise the s#!tracta!ility %ro!lem. The economics8 literat#re recognises that sol#tions exist thro#gh three !asic kinds of %ro%erty regimes. First is *tate %ro%erty in which government agencies act on !ehalf of all the citiDens. *econd is comm#nal %ro%erty) which means that the reso#rce is held !y an identifia!le comm#nity of #sers who can excl#de others and reg#late their own #se. ,astly) there is %rivate %ro%erty) which refers to a sit#ation in which an individ#al or cor%orate !ody has the right to excl#de others and reg#late the #se of the reso#rce. There are a n#m!er of draw!acks of %ro%erty rights. First) assigning %ro%erty rights is a %olitically6sensitive matter as it involves excl#ding others in the #se of nat#ral reso#rces and environmental facilities. *econd) the assignment of %ro%erty 6 rights may easily enco#rage ne%otism and corr#%tion in reso#rce allocation. ,astly) if the assignment of %ro%erty rights to %rod#ctive assets in an economy is skewed) it may res#lt in skewed distri!#tion of wealth. The over6em%hasis on the virt#es of %rivate ownershi% in the management of nat#ral reso#rces and the environment sho#ld !e >#estioned. It is critical that the three regimes of %ro%erty rights W that is %rivate ownershi%) comm#nityW!ased ownershi% and *tate ownershi% W!e recognised and a%%lied !ased on which one is more effective) economically efficient and %olitically acce%ta!le.
4 This
is a switch from inde%endent to co6ordinated action) in which a local organiDation is created to self reg#late
and manage the fishery in >#estion.
Internal Teaching Use Only &:&
Away from %ro%erty rights) an im%ortant consideration in fisheries management is ade>#ate water >#ality. +x%ansion of c#ltivation in the highlands) co#%led with increased #r!anisation and ind#strialisation) has led to higher levels of water %oll#tion. Poll#tion from %oorly controlled develo%ment aro#nd water !odies is a threat to the ind#stry) %artic#larly the segment that is de%endent on ex%orts to co#ntries with strict food safety reg#lations. The concentration of metals like Dinc and lead in ,ake Fictoria is a case in %oint. (#rrently) the coastline and in %artic#lar the -:: mile +xcl#sive +conomic Hone B++HC is largely #nder6ex%loited mainly d#e to lack of technology. F#t#re develo%ment of the ++H will !e %artly governed !y the >#ality of water draining from ma?or catchments into the sea. "anagement o, &mall &cale ,i&herie& Fisheries in 0enya %redominantly involve s#!sistence fishing) in which individ#al and often %art time fishers land their catch in small !oats. *#ch fisheries are diffic#lt to manage centrally !eca#se of their highly scattered nat#re of landings and costly enforcement of reg#lations. Traditionally) s#ch fisheries have !een managed locally and not centrally. They %rovide good exam%les of (omm#nal Pro%erty .eso#rces B(P.sC management regimes. A common %ro%erty reso#rce is a reso#rce that is owned neither %rivately nor !y the *tate. In this regard) ownershi% and management is in the hands of an identifia!le gro#% of individ#als who can excl#de others and reg#late the #se of the fishery. /echanisms for excl#ding non6 %artici%ants are im%ortant for (P.s and access to the sea or lake may !e limited !y vario#s means; actively defending fishing sites) formal excl#sion) and restricting information BD#rren!eger and Palsson) &7" C. .estricting fishing seasons is an indirect method #sed when catch is diffic#lt to monitor) !#t
also has n#mero#s disadvantages. .eso#rce de%letion is not the only %ro!lem faced !y fisheries) altho#gh it is the dominant one. An im%ortant iss#e relates to the val#e of the fish) which is strongly related to its freshness. .estrictions s#ch as %hysical >#antity or season restrictions tend to enco#rage fishing com%etition d#ring the =o%en= %eriod agreed #%on !y the mem!ers. This leads to what is known as =over6ca%italisation= in economics) im%lying a r#sh to ca%t#re the highest rents within the year. The extra ca%acity may !e idle %art of the year or contri!#te to over6fishing elsewhere. For instance) one can imagine differing seasons in ,ake Fictoria for the three co#ntries. A fisherman in an o%en access fishery takes no acco#nt of the %otential !enefits to the society that a red#ction of fishing effort today may yield !eca#se these !enefits are not excl#sively his. 1hen %ro%erty rights are not assigned) the reso#rces tend to !e over6#sed and degraded !eca#se every!ody strives to extract the reso#rce fast !efore others. An emergent and interesting form of management is co6management. 5 (o6management is a middle co#rse
5
The government has esta!lished !each management #nits B$/UsC. 9owever) these are serio#sly wanting in
a n#m!er of res%ectsE for instance) there are no criteria or g#idelines for settling dis%#tes !oth internally and
Internal Teaching Use Only &:-
!etween state %ro%erty and comm#nal %ro%erty regimes. (o6management involves the recognition and legitimiDation of informal local level management systems. One f#ndamental iss#e in co6management is whether reso#rce #sers can !e entr#sted to manage their reso#rces. It is also de!ata!le whether government reso#rce managers are willing to share a#thority. <overnment managers have well considered reasons to !e ske%tical a!o#t local6level management. To convince managers that local6level management is %ossi!le) %art of the
res%onsi!ility lies with local#sers themselves. The a!ility for self management) in t#rn) %artially de%ends on the a!ility of the local comm#nity to control the reso#rce in >#estion. /anagersV reasons for ske%ticism incl#de the lack of a%%ro%riate knowledge and know6how on the %art of fishers) and the a!ility of fishers to organiDe themselves to manage for long6 term s#staina!ility. +ach of the a!ove %oints o%ens #% its own de!ate. It is tr#e that fishers tend to have lower levels of formal ed#cation than the general %o%#lation. One may arg#e that the relevant knowledge of the fishers is not the same as formal ed#cation. It is acknowledged that knowledge held !y fishers) es%ecially in traditional societies in which s#ch knowledge acc#m#lates !y c#lt#ral transmission) may !e detailed and relevant for reso#rce management. Indeed) it is the com%lementarities !etween s#ch local knowledge and scientific knowledge that makes co6management stronger than either comm#nity6!ased management or government management. (o6o%eration) whether formal or informal) is f#ndamental for h#man society and %lays an im%ortant role in reso#rce management. An im%ortant feat#re of co6o%eration is its shared interest and vol#ntary nat#re) distinct from coercion. /em!ers can contri!#te in collective decision making) setting r#les of cond#ct of a gro#% and designing management r#les) im%lementing decisions and monitoring adherence to r#les. Formal or informal organisations may !e hel%f#l in co6ordinating collective action. 3 (ollective action can manifest itself and can !e #nderstood as an event) as an instit#tion or as a %rocess. Instit#tionalisation de%ends on the goal of collective action and is likely to !ecome an instit#tion in case of a rec#rrent need in a comm#nity or gro#% of #sers. A ma?or advantage of instit#tionalisation is the red#ction of transaction costs of renegotiation) as well as #ncertainty. 9owever) the more instit#tionalised collective action is) the less flexi!le and ada%ta!le it !ecomes. Fishers8 a!ility to organise for collective action has a n#m!er of %rere>#isites) essentially
involving the >#estion of local instit#tions) defined here as the set of r#les act#ally #sed Br#lesin6 #seC !y a gro#% of individ#als to organise their activities B2orth) &77:E Ostrom) &77-C. 2ot all gro#%s of fishers have a%%ro%riate local instit#tionsE in s#ch case) any co6management initiative will necessarily have to start with instit#tion !#ilding. $#t instit#tion !#ilding is a
regionally.
3
1e define collective action as an action taken !y a gro#% Beither directly or on its !ehalf thro#gh an organiDationC in %#rs#it of
mem!ersV %erceived shared interests.
Internal Teaching Use Only &:4
long6term and costly %rocess. Another key iss#e for co6management is to identify what management f#nctions are !est handled at the local or comm#nity level as o%%osed to the national government level. The core f#nctions to !e covered incl#de; BiC data gatheringE BiiC logistical decisions s#ch as who can harvest and whenE BiiiC allocation decisionsE BivC %rotection of the reso#rce from environmental damageE BvC enforcement of reg#lationsE BviC enhancement of long6term %lanningE and BviiC more incl#sive decision making. 2o single form#la exists to im%lement a co6management arrangement to cover these f#nctions. The sol#tion lies in co#ntry6s%ecific and site6s%ecific conditions) and may !e #ltimately a %olitical decision. Agriculture The interface !etween agric#lt#re and environmental iss#es is ?#st too !road and cross6c#tting to !e covered in a small section of a cha%ter. 1e dwell on some iss#es s#ch as land ten#re sec#rity farm %ractices and land degradation among small scale o%erators that govern the com%lex interactions with nat#re. At a general level) the economics of %oor r#ral ho#seholds who de%end on small scale agric#lt#re is ty%ically very different from sim%le %rofit maximiDing models of a
firm. They constit#te ": %er cent of the %o%#lation and have limited alternative livelihoods. *mallholders are confronted with missing markets and information) lack of sec#re rights) and constraints in vario#s factor markets Bla!o#r) ins#rance) credit) in%#ts and o#t%#tsC. (onse>#ently) sim%le %rofit maximisation leads to =corner sol#tions= in which first order conditions do not hold. *mall6scale farming that is common in 0enya may !e the !est way of managing agric#lt#re. 9owever) %ro!lems s#ch as ten#re insec#rity) together with other factors) may lead to #ns#staina!le %ractices and !ehavio#r. For instance) land degradation creates ma?or %ro!lems that clearly make a st#dy on land degradation a %#!lic %olicy iss#e. First) there are significant social costs and !enefits BexternalitiesC associated with !ad land management. Poor management of the nation8s water catchments has led to excessive soil erosion) increased cost of water treatment) ra%id siltation of water !odies and a red#ction of their economic life. For exam%le) soil erosion has local@ regional effects s#ch as sedimentation into water !odies s#ch as ,ake Fictoria. .ecent estimates indicate that the .iver 2yando catchment !asin alone looses soil worth U*X 54 million every year Bthe soil is val#ed at U*X &- %er metric tonC B(ohen et ah, -::'C. *econdly) %overty red#ction and food sec#rity are ma?or develo%ment goals in 0enya and the %oor are overwhelmingly r#ral. Alleviating %overty is a %#!lic %olicy iss#e which) therefore) m#st involve land management. This is also im%ortant for overall economic growth as well as for e>#ity considerations. Thirdly) f#t#re generations have a right to a via!le soil reso#rce and the government as a c#stodian of the
land has an o!ligation to ens#re it ha%%ens. ,astly) the co#ntry) in addressing land degradation) will !e meeting some of its glo!al environmental o!ligations as evidenced !y the signing and
ratification of vario#s environmental conventions. ' <iven the %ervasive nat#re of h#nger and famine) many develo%ing co#ntries tend to foc#s on food sec#rity iss#es B*en) &777C. *ome >#estion that stand) arg#ing that the long6r#n s#staina!ility of agric#lt#re is more cr#cial B*cherr) -:::C. They %oint o#t that vario#s as%ects s#ch as soil conservation) water management) f#el wood s#%%ly and conservation and ado%tion of technology are the central feat#res. One %ro!lem with this a%%roach is the foc#s on %artial s#!6goals rather than farmers8 welfare. It is im%ortant to im%rove the agric#lt#ral %rod#ctivity of the land. The %rimary goal is sim%ly to hel% farmers achieve higher s#staina!le income) altho#gh other o!?ectives incl#de red#cing r#noff and down stream effects s#ch as formation of g#llies that wash away other farmers8 soils) destroy roads and other infrastr#ct#re. Understanding the interactions !etween social and ecological str#ct#re is critically im%ortant in managing ecosystems. The extensive #se of cattle in ecosystems to which they are not %erfectly ada%ted has created %ress#re on rangeland in 0enya. .angeland degradation is detrimental to the %oor) who live and work in the degraded areas. In times of dro#ght) a certain %ercentage of livestockis at risk of dying. This im%lies a loss of savings to the individ#al) and the rational individ#al res%onse may #e to increa&e &aving& Olive&tock. The pro#lem is that if all savings are in cattle) then the %ress#re on the ecosystem will rise. The individ#al res%onse may) therefore) !e self defeating at an aggregate level. Im%roved !anking and ins#rance may !e the
!est !et as a mechanism of offering %eo%le alternative co#rses of action to increasing their stock of cattle. *tarting !anks and ins#rance com%anies in these areas is not easy. The reasons range from high risk) economies of scale) asymmetric information and high costs of information. A so#rce of %oll#tion in agric#lt#re is the organic waste from s#gar %lants) %a%er mills) tanneries and waste6%rod#cing %lants that %rocess coffee. The waste is !iological in origin and) #nder a%%ro%riate conditions) is !iodegrada!le. It is not in itself haDardo#sE however) d#m%ed in large >#antities in rivers it can effectively kill the existing ecosystem thro#gh e#tro%hication) !eca#se decom%osition #ses #% all the oxygen availa!le. In s#ch circ#mstances) fresh water fish can no longer s#rvive) water is #n#sa!le and in some cases the oxygen levels may !e so low as to enco#rage anaero!ic decom%osition) %rod#cing s#!stances s#ch as hydrogen s#lfide) ammonia and toxic com%o#nds. 1ells may have to !e d#g) creating additional costs to already %oor ho#seholds. The stench may also !e so !ad that %eo%le have to !e relocated. The <overnment can not envision closing ind#stries that acco#nt for ex%ort earnings and em%loyment generation.
' These
incl#de; Enited 1ation& Convention to Com#at 8e&erti,ication B&77 C) Convention on Iiological 8iver&ity B&77-C
and Enited 1ation& Framework Convention on Climate Change B&775C.
Internal Teaching Use Only &:3 Forests
Bhe nat%re o, the challenge One of the ma?or challenges facing the 0enyan society is resolving the over6ex%loitation that res#lts when %rivate costs of forest reso#rce #se Bmainly la!o#r) ca%ital and transaction costsC do not incl#de all the social costs. The excl#ded costs incl#de soil erosion) loss of !io6 and
c#lt#ral diversity) greenho#se gas emissions) and watershed degradationWall within the context of the %otential irreversi!ility of deforestation. 1hen external %rod#ction diseconomies are not reflected in the %rices for forest %rod#cts) there will !e little incentive for forest regeneration and s#staina!le forest management. .edressing the divergence !etween %rivate and social costs sho#ld !e recognised in any legal reform strategy. 9owever) the vario#s doc#ments on the sector in 0enya have not addressed these iss#es. 8e,ore&tation and degradation o, ,ore&t& in Kenya Forests %rovide a range of %rod#cts and services) incl#ding tim!er and non6tim!er forest %rod#cts) the #tilisation of forest !iomass as a fertility in%#t Bwhen converted to ash thro#gh slash6and6!#rn techni>#esC) the conservation of im%ortant !iodiversity) the %rotection of soil reso#rces and watersheds) the %revention of desertification) and the reg#lation of local and glo!al climatic %atterns thro#gh car!on se>#estration. One of the main %#DDles of the agric#lt#re6forest interface is the inherent conflict !etween the fertility f#nction of forest !iomass in agric#lt#re and the other forest f#nctions that are com%romised when forest land is cleared for agric#lt#re. .esolving this and other %ro!lems in managing the reso#rce re>#ires acc#rate meas#ring) monitoring) and social val#ation of forest f#nctions. 9owever) a ma?or %ro!lem in 0enya and most of +ast Africa is the lack of relia!le and consistent statistics on the extent of forest cover and condition and its changes over time. From the vario#s existing estimates of deforestation in 0enya) %oliticians) environmental ists) and other concerned stakeholders are a!le to choose the estimate !est s#ited to s#%%orting their %osition. <iven the local and glo!al im%ortance of forests and the considera!le variation in estimates of vegetation cover and change) it is im%erative that a relia!le and indis%#ta!le international
monitoring mechanism !e develo%ed." The ra%id evol#tion in remote sensing technologies

Trade in tim!er) !oth soft and hardwood) increased from 45' to 775 c#!ic metres !etween &777 and -::3. This) however) is an #nder6estimate !eca#se non6tim!er forest %rod#cts are not incl#ded. Fal#ation of forest services that incl#des non6tim!er forest services is left for f#t#re work.
" 8The
c#rrent monitoring of the world8s forests %rovided !y FAO is too coarse to %rovide acc#rate meas#res of
change. It is !ased on national level assessments of often d#!io#s >#ality for fixed %oints in time that are then ad?#sted #sing a deforestation model develo%ed to %ermit the correlation of forest cover change over time with ancillary varia!les) incl#ding %o%#lation change and density) initial forest cover and the ecological Done of the
Internal Teaching Use Only &:'
offers the !est %otential for >#antifying glo!al) national) and regional %atterns of !iomass and forest change BPrince and <oward) &773E <aston et ah, &77"C. .elia!le and re%lica!le estimates from s#ch techni>#es wo#ld !e of great #se to %olicy makers and other stakeholders. For instance) signatories of the E1 Framework Convention on Climate Change Be.g. 0enyaC m#st inventory their so#rces and sinks of greenho#se gases) incl#ding car!on Bas (: -C from changes in land #se. For the +ast African co#ntries) the availa!ility of data for making car!on fl#x estimates from changes in land #se are limited) making the glo!al (onvention rather meaningless. There is a clear need for a concerted international effort to im%rove this critical glo!al monitoring. 0enya m#st !e %art of this effort and do its %art. In designing a strategy) it is im%ortant to consider that forest degradation is more diffic#lt to monitor than deforestation as it is generally #no!serva!le #sing satellite imagery. The more im%ortant degradation iss#es of forest@woody !iomass reso#rces incl#de; BiC the long6r#n s#staina!ility of logging o%erations) and BiiC the secondary im%acts of logging) agric#lt#re) and %o%#lation growth on !iodiversity reso#rces. *#ccessf#lly addressing these iss#es will re>#ire a strong %olitical commitment to the %rovisions for s#staina!le forest management in the new
forest strategy) often in the face of o%%osition from a strong foreign6dominated logging lo!!y that is viewed !y many as not having the long6r#n s#staina!le develo%ment of the forest sector as a main o!?ective. Ca%&e& o, de,ore&tation and degradation As noted a!ove) a distinction sho#ld !e made !etween deforestation and degradation) es%ecially as the act#al rate of deforestation in 0enya is not extreme. 9owever) the increase in degradation associated with the ra%id growth of the logging ind#stry in recent years is of growing concern. The three dynamic mechanisms of forest reso#rce degradation and deforestation can all !e fo#nd to varying extent in 0enya; -hortened ,allow cycle&: This is the most common so#rce of deforestation in (ameroon and is attri!#ted to smallholder agric#lt#re. As %o%#lation %ress#res increase and fallow %eriods !ecome shorter) fallow com%osition changes from secondary forest %ioneer s%ecies s#ch as Berminalia &pp to shr#!s and grasses. Ultimately) the s#ccession %rocess of the nat#ral forest may !e endangered. Increased ann#al food cro%%ing over time threatens the integrity and via!ility of the forest ecosystem and with s#fficient %o%#lation %ress#re transforms the landsca%e into a c#ltivation@forest mosaic as now fo#nd in most of the former forested areas of 0iam!# and 2ak#r#. 9owever) there are s#staina!le %athways for r#ral develo%ment that can minimise the damage and in some cases even im%rove the environmental services of the c#ltivation@forest mosaic ecosystem.
forest area #nder consideration BFAO) &77 ;&77C.
Internal Teaching Use Only &:
8irect conver&ion: 1hereas smallholder agric#lt#re res#lts in a grad#al Transformation of the landsca%e as fallows shorten over generations) large6scale %lantations are created following
the direct conversion of forest lands #sing mechanical or man#al techni>#es of site %re%aration to remove existing forest vegetation. -%&taina#le ,ore&t management The tim!er ind#stry is often viewed as the %rinci%al means of generating val#e from a forest and is) therefore) the %rinci%al g#ardian against alternative land #ses. If forestry were !anned) it is arg#ed) governments wo#ld a!andon all %rotection of forest areas. The other non6market and often glo!al val#es of a forest Bexistence and o%tion val#es) car!on se>#estration) !iodiversityC are yet to !e transferred into local incentives and) therefore) do not enter into the c#rrent calc#l#s of decision makers. Th#s) in order to %reserve the tro%ical forest %atrimony) s#staina!le management that can g#arantee the contin#ed stream of economic !enefits from tro%ical forests m#st !e develo%ed. One of the %rinci%al tools for s#staina!le management is a forest Doning %lan) which 0enya needs to develo%. In %rinci%al) &: %er cent of the national territory is to !e #ltimately incl#ded in the %ermanent forest estate. Of %artic#lar im%ortance to the forest sector and the largest com%onent of the %ermanent forest estate are %rod#ction forest Dones) which are the designated locations for active logging concessions. The most %rogress has !een made on the technical silvic#lt#ral as%ects of s#staina!le forest management. The recommended management %ractices consist of three interde%endent %arts. The first is to develo% knowledge of the reso#rce !ase) which incl#des; BaC detailed forest inventories on & %er cent of concession lands in order to esta!lish the tree diameter distri!#tionsE
B!C aerial %hotogra%hs and vegetation st#dies to esta!lish ma%s of tree %o%#lationsE and BcC st#dies of !iodiversity Bflora and fa#naC to determine fragile areas or %artic#larly rich areas that wo#ld re>#ire %rotection. The second is the develo%ment and transfer of knowledge for s#staina!le management of forest reso#rces to the actors involved Bstate) local %o%#lation) logging com%anyC. The third dimension is the determination of the %arameters necessary for informing a rational ex%loitation of the forest. The latter incl#des the calc#lation of the o%timal rotation %eriod !ased on tree diameter distri!#tions and growth rates) determination of the !o#ndaries) and the determination of the minim#m ex%loita!le diameters for vario#s tree s%ecies. Thro#gh the com!ination of these three dimensions) the technical dimensions of s#staina!le forest management can !e accom%lished. Solid 1aste An estimated &)3:: tons of solid waste is generated daily in the city of 2airo!i alone) of which
Internal Teaching Use Only &:"
only -3 %er cent gets collected. The rest is left in o%en s%aces) markets) drains and roadsides) forming mo#ntains of decom%osing) smelly and #nsightly sites BIkiara et al, -::5C. The sit#ation in 2airo!i is a common feat#re in other 0enyan towns) al!eit on a smaller scale. Owing to the %oor %rovision of %#!lic services) waste is %icked several days after !eing d#m%ed in %#!lic %laces. In addition) waste collection is severely #nder6e>#i%%ed. D#m%ing sites are %oorly managed) with severe leakage to water a>#ifers. Dis%osal of solid wastes and the flow of #ntreated effl#ents can disr#%t sensitive ecosystems) leading to the deterioration of water >#ality and th#s %oor h#man health. The handling of haDardo#s waste %oses a serio#s %ro!lem. There is a worrisome emergent trend in which develo%ed co#ntries d#m% their waste in develo%ing co#ntries and) 0enya) like other develo%ing
co#ntries) is v#lnera!le.7 A related iss#e is the weak statistical ca%acity on trade statistics and a!ility to monitor trade. Under the Ia&el Convention all trade is s#%%osed to !e registered. A lot of effort has !een ex%ended to waste management !#t most of it a%%ears to !e more sym!olic than effective. Interest on solid waste management is of %riority concern for two main reasons. First) is the increasing cost and com%lexity of waste management) which is overwhelming for many local a#thorities. *econd) is the concern for environmental im%acts of growing waste flows. The latter concern covers three %ers%ectives; %ro!lems for environmental health of #r!an residentsE health and safety haDards for those working with solid wasteE and %ro!lems of s#staina!le develo%ment with res%ect to recycling of waste materials. Politicians and %olicy makers have %romoted recycling as a way o#t !#t not eno#gh effort has !een devoted to what sho#ld !e recycled) why and which %olicy instr#ments sho#ld !e #tilised. The %rice mechanism on #sed goods offers #sef#l insights that need to !e gras%ed in order to #nderstand recycling. *ome %rod#cts have a high %rice) therefore the market recycles a#tomatically. For instance) there are no %iles of gold or %recio#s metals in waste d#m%s. A !asic tenet in economics is that if a good !ecomes scarce) its %rice rises) creating incentives for recycling or re#se. Inevita!ly) 0enya as a co#ntry with rising income will %rod#ce more waste with time. Policy makers who insist on recycling may have to not only %romote recycling !#t m#st esta!lish and maintain a market for recycled goods. *#ch a system m#st !e !ased on known val#e clearly #nderstood !y the market. For certain categories of waste witho#t inherent val#e) a need arises to collect it so as to avoid %oll#ting the ecosystems where the waste is d#m%ed. (#rrently) there is mis%laced em%hasis non6haDardo#s waste s#ch as %a%er) glass) scra%) etc while there is
ins#fficient mention %aid to haDardo#s waste. /atters of costs for monitoring haDardo#s waste sho#ld !e an im%ortant com%onent of the analysis for vario#s waste dis%osal mechanisms. In the following section) we disc#ss the vario#s %olicies for waste management mechanisms) their
7 In
%rinci%le) this %ractice is reg#lated !y the $asel (onvention !#t some #nscr#%#lo#s com%anies ex%ort waste to
other co#ntries #nder false la!els or to co#ntries that have corr#%t officials and@ or low ca%acity for ins%ection.
cost) im%lications and %ro!lems. Economic incentive& in wa&te management Fario#s mechanisms) incl#ding differentiated waste fees and other incentives for waste minimisation) recycling) and increased com%ositing are in #se worldwide F#llerton and 0innaman) &773C. Their efficacy varies from region to region de%ending on local demogra%hic factors. In 0enya) local a#thorities have levied fixed collection fees for ho#sehold waste. This a%%roach is inefficient !eca#se the effective marginal %rice of waste dis%osal is Dero) whereas the marginal collection ,id dis%osal cost is %ositive. *im%ly stated) there is no extra charge on an additional #nit of waste dis%osal. It does not matter whether one contri!#tes one or ten !ags of gar!age as the cost of dis%osal is fixed. A change in legislation to charge !ased on vol#me or wreight of waste wo#ld !e more desira!le on efficiency gro#nds. The o!?ective is to motivate individ#als and firms to c#t down on the amo#nt of waste dis%osed. The timing) however) of introd#ction of charges is critical !eca#se it can ca#se li>#idity %ro!lems for firms. In some cases) %oll#ters may !e rel#ctant to acce%t higher charges if they are not certain a!o#t how reven#e generated is going to !e #sed to im%rove environmental >#ality. Two6%art tariffs) which involve a fixed minim#m service at a !ase rate) then marginal charges for excessive waste wo#ld !e innovative and relatively easy to im%lement. In addition) they
wo#ld %rovide a sta!le so#rce of reven#e for the local a#thorities. For some #sers) there wo#ld !e no additional cost while for others the additional cost may enco#rage recycling of ho#sehold waste thro#gh com%ositing. 9owever) for some #sers) the increased cost wo#ld enco#rage illegal waste dis%osal) which incl#des d#m%ing) !ackyard !#rning or %lacing waste in other %eo%le8s !ins or %#!lic ones. De%osit ref#nd system is an economic instr#ment for enco#raging cons#mers to ret#rn containers to a%%ointed centres for %ro%er dis%osal or recycling. It may also !e #sed to enco#rage cons#mers to ret#rn some #sed and %otentially haDardo#s %rod#cts s#ch as !atteries with a high content of merc#ry or cadmi#m to redem%tion centres for %ro%er dis%osal. For %rod#cts that are %otentially haDardo#s to the environment) an extra %rice on the %rod#ct is im%osed as a s#rcharge. 1hen the cons#mer is done with the %rod#ct) he can take it !ack and claim the s#rcharge. The !ase of de%osit6ref#nd systems is increasing in %o%#larity for conventional de%osit items s#ch as scra% metal) %a%er) !ottles and cans as economic incentives and an information signal. Aggressive marketing and increased ref#nds co#ld increase recovery rates for these items. In some co#ntries s#ch as *weden) waste dis%osal has decreased at the ho#sehold and some of the ex%lanatory factors incl#de age) and attit#des a!o#t the diffic#lty or ease of recycling B*terner &777E -::4C. These factors are im%ortant and it is val#a!le to
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#nderstand the role of de%osits) information) o%inion) social norms) ha!its and ease of recycling. The extra reven#e from other waste dis%osal mechanisms co#ld !e #sed to set #% or im%rove
recycling centres in the) co#ntry. 9o#sehold dis%osal for haDardo#s waste s#ch as oil) solvents) car !atteries) etc sho#ld !e made easier. For instance) there co#ld !e a %osted sched#le of neigh!o#rhood collection of haDardo#s waste. 9owever) s#ch a mechanism may not !e cost efficient if few %eo%le #se it. Alternatively) there co#ld !e a %assive de%osit !ox and small environmental de%osits at f#el or !#s stations. These co#ld !e effective !eca#se they fit into %eo%le8s everyday ro#tine. The following are some %otential h#rdles in im%lementing a de%osit6ref#nd system. First) there are some costs involved in collection of #sed %rod#cts and containers) which cannot easily !e !orne !y retailers. *econd) the s#rcharge on %rod#cts makes them more ex%ensive) %rom%ting cons#mers to look for s#!stit#tes with lower %rices and which may !e harDado#s. /a&te management and the to%ri&m &ector +coto#rism is to#ted as a !enign reso#rce #se for sensitive ecosystems. 9owever) the effects of to#rism may not !e that !enign. (r#ise !oats and other shi%s d#m% wastes and effl#ents into the very coastal ecosystems that s#%%ort them. The coral reefs at the coast are very easily damaged !y n#trients) tem%erat#re variation and %hysical damage. ,ike other to#rist sites) the 0enyan coastline is heavily affected) yet there is diffic#lty in %rotecting it. At the same time) management of local waste from to#rist hotels is a severe %ro!lem. +fforts to have shi%s %ay for waste dis%osal at the %orts of call have met stiff resistance from shi%%ing lines) with the threat to shift to other %orts that do not charge s#ch fees. (o6ordinated effort in the region8s %orts of call
is necessary to have a harmonised charge. Any attem%ts towards redress m#st take into acco#nt the following factors; First) the ecosystem is !oth sensitive to waste and val#a!le as a so#rce of to#rism reven#e and as a life s#%%ort f#nction for fisheries) etc. *econd) the environment %ro!lem has !oth domestic and international ca#ses. ,astly) the generation and d#m%ing of waste is readily o!serva!le) making a Pigo#vian tax diffic#lt to im%lement.&: The foregoing scenario is com%licated !y hotels and other low income inha!itants who are #sed to dis%osing trash into the sea informally. One wo#ld ex%ect resistance to initiatives seeking to make them %ay waste management fees. +ffl#ents that drain into sewage are an im%ortant waste stream that !y%asses m#nici%al collection in 0enya. *oa% and other detergents) incl#ding the dirt they are intended to remove are one s#ch kind of effl#ent. The non6%oint so#rce characteristics make it extremely diffic#lt to charge or a monitoring system to detect from a ho#sehold drain. (onse>#ently) %olicy makers
&: A
Pigo#vian tax Bcommonly a %er #nit chargeC is a tax a%%lied to emissions or %oll#tion and is designed to internalise an
environmental externality.
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m#st set standards that co#ld !e a%%lied to dish6washing and la#ndry detergents. 9owever) a n#m!er of cottage ind#stries in 0enya are involved in the %rod#ction of soa%s and detergents. These are not amena!le to ins%ection and a large n#m!er of com%lex ingredients #tilised make taxation diffic#lt. In s#ch circ#mstances) one may a%%eal to vol#ntary instr#ments s#ch as information disclos#re and la!elling. Three characteristics of la#ndry detergents make la!elling %artic#larly a%%ro%riate; the ecological and Technical criteria are com%lexE the main haDards lie
in the %rod#ct and not the %rod#ction %rocessE the %rod#ct is %#rchased solely !y ho#seholds. +co6la!elling !y a certified agency is necessary to give cons#mers the confidence and credi!ility. If the eco6la!elled %rod#cts are really less environmentally damaging) then the %olicy or reg#lation will significantly red#ce the toxicity of effl#ents) th#s decreasing the im%act ofof ho#sehold waste. To !ecome environmentally certified) com%anies m#st f#lfil a set of criteria and %ay a fee. The criteria foc#s on the %rod#ction %rocess or ingredients. Pro%onents of eco6la!elling arg#e that com%anies will !e forced to decrease or eliminate the #se of vario#s harmf#l ingredients s#ch as %hos%hates from la#ndry %owders. 9owever) o%%onents to eco6la!elling arg#e that the criteria contain fairly lengthy lists of ingredients that no lay%ersons can com%are. *ome of the ingredients are !iodegrada!le and sho#ld !e #sed. Another criticism is that eco6la!elling criteria is static in nat#re and only hel%s to =lock= the technology at one %oint in time and make it im%ossi!le to !enefit from technical %rogress. (isaster )anagement The im%ortance of %romoting disaster risk management at the international) regional and local levels has recently !een recognised in a n#m!er of m#ltilateral frameworks and declarations. 0ey among these is the =Framework for Action= ado%ted at the 1orld (onference on Disaster .ed#ction held in Ga%an in -::3. The conference %rovided an o%%ort#nity to %romote a strategic and systematic a%%roach to red#cing v#lnera!ilities) risks and haDards. The framework %rovides the !asis for an international acknowledgement that efforts to red#ce disaster risks m#st !e systematically integrated into national %olicies) %lans and laws. 0enya) like other neigh!o#ring co#ntries) has ex%erienced an increase in the n#m!er of disasters in the %ast decade. Disaster loss is on the rise with dire conse>#ences for the s#rvival and livelihood of individ#als) %artic#larly the Door. Disaster risk is also increasingly of
regional concern !eca#se im%act and action in one region can have an im%act on risks in another and vice versa. This is com%o#nded !y increasing v#lnera!ility related to changing technological and socio6economic conditions) #n%lanned #r!anisation) and develo%ment within high risk Dones) environmental degradation) climate change and geological haDards. Des%ite the growing awareness and acce%tance of the im%ortance of disaster risk red#ction and increased disaster res%onse ca%acities) disasters) and in %artic#lar their management and red#ction of risk)
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contin#e to %ose challenges at the national level. Ta!le 4 highlights some of the recent disasters that have afflicted the co#ntry from &7 5 to -::'. Table 6,8: Sele!te* o!!+ en!e an* fatal%t%es of *%saste s %n Ken'a9 7:;<16==> ?ea D%saste T'(e A ea Affe!te* Effe!ts@affe!te* &7 5 Air accident +m!akasi Air%ort ': dead &7 3 D o+$&t 2ationwide &')::: affected &7 3 $om! !last OT( !#s termin#s - dead &7 ' Train derailment Dara?ani6Foi 3: dead &7": D o+$&t 2ationwide 5:)::: affected &7"& $om! !last 2orfolk 9otel 3 dead) 3 in?#red &7"- Fire 2airo!i &:)::: dis%laced &7"- Floods 2yanDa 5)::: dis%laced &7"4@"5 Dro#ght 2ationwide -::)::: affected &7"56-::' 9IF@ AID* 2ationwide -.- million affected &77&@7- Dro#ght A*A, areas &.3 million affected &77- Train accident /tito Andei 4& dead) -: in?#red &775 Ferry accident /tongwe) /om!asa - : dead
&773@7' Dro#ght 1ides%read &.5& million affected &77 +l 2ino floods 1ides%read &.3 million affected &77" $om! !last 2airo!i -&5 dead) 3)':: in?#red &777@-::: Dro#ght 1ides%read 5.5 million -::- Floods 2yanDa) $#sia) Tana .iver $asin &3:)::: affected -::- ,andslide /#ranga) /er#) 2andi -)::: affected -::5@-::3 @-::' Dro#ght 1ides%read 5.3 million -::3 +thnic clashes /arsa!it 7: killed) 3::: dis%laced
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-::' $#ilding colla%ses 2airo!i &' dead) 4:: in?#red -::' Plane crash /arsa!it &5 dead) 4 in?#red -::' Floods (oast 4 dead) 5:: families dis%laced Altho#gh a n#m!er of disasters can !e classified as man6made) there is a nota!le n#m!er of nat#ral disasters. Dro#ght is the most common among nat#ral disasters) whose coverage is wides%read across the co#ntry and affecting increasingly large n#m!ers of %eo%le over time. The c#m#lative effects of dro#ght incl#de the erosion of ho#sehold assets s#ch as livestock and a decreased a!ility to co%e with f#t#re dro#ght e%isodes. For instance) the dro#ght in -::3@:' affected an estimated 5.3 million %eo%le in 4 o#t of " districts. (#rrently) 9IF@Aids is a
ma?or e%idemic affecting 0enya. It is estimated that a!o#t -.- million %eo%le in the co#ntry are infected with 9IF@Aids. A%%roximately 3 %er cent of re%orted cases occ#r among those aged !etween &3657 years) who incidentally are the most economically %rod#ctive gro#% of the %o%#lace. In addition) this is the age at which investment in ed#cation may !e !eginning to %ay off and it is also the family formation stage. The %eo%le) skills) knowledge and man%ower lost im%ly dire social and economic conse>#ences for the co#ntry. Presently) the link !etween environmental management and risk red#ction exists as evidenced thro#gh the +nvironmental /anagement (o6ordination Act &777. The coverage risk and haDard areas are) however) limited to wetland management) watershed management) reforestation management) #r!an land #se and agric#lt#ral %ractices. There is inade>#ate %rovision for %reventive and res%onse meas#res to non6reso#rce haDards s#ch as fires) floods) etc. There is need for enactment of com%rehensive legislation that covers all ty%es of haDards even !eyond those o#tlined here. The #m!rella legislation sho#ld incor%orate existing %rovisions s#ch as the Fire Preca#tions Act and Fire *ervices Act) revision of the !ill esta!lishing the 2ational Disaster /anagement A#thority B2ADI/AC and so on. The em%hasis sho#ld transcend the %iecemeal ,oc%& on individ#al sectors which) acting in isolation) will not achieve desired res#lts d#e to fail#re to ex%loit synergies. Pol%t%!al Feas%b%l%t' an* Cost of En)% on#ental LaIt is cr#cial for reasons of %olitical feasi!ility to consider the distri!#tions of costs. P#!lic %olicies or laws are not only formed !y a!stract considerations of o%timality !#t thro#gh lo!!ying. Different laws and %olicies res#lt in different cost allocations !etween %oll#ters and among %oll#ters) victims of %oll#tion and society. These differences are also im%ortant. *ometimes) #sers assert historic rights to their activities Be.g. fishermen !orn into the
%rofession taking over from generations of fishers !efore themC. They may resist the idea of
government taking rights even if it did !ring down #tilisation to s#staina!le levels. In some cases) some %oll#ters may !e too %owerf#l to tax. *#ch factors o#ght to !e looked into and ways fo#nd to handle the %ro!lem) s#ch as esta!lishing f#ll %ro%erty rights. *#ch a move may !e !eneficial from environmental and overall welfare %ers%ectives. ent Seeking and !olitical Econom& P#!lic %olicies and reg#lations are not only formed !y a!stract considerations of o%timality !#t thro#gh lo!!ying and the inter%lay of vario#s interest gro#%s. Policy makers sho#ld antici%ate this !ehavio#r and avoid %olicies that tend to %romote it. Iss#es of rent seeking are likely to !e im%ortant if the targeted %oll#ters have any of several characteristics; Q If they are ethnically different) they may feel discriminated against. Q If they are %oor) welfare considerations !ecome im%ortant. Q If they are rich and %owerf#l) they may have the %ower to sto% or stall im%lementation. Conclusion 0enya faces serio#s environmental and reso#rce challenges. The most #rgent class of %ro!lems are those in which environmental degradation and %overty occ#r together. The effects of !oth %ro!lems commonly reinforce each other. Therefore) environmental degradation leads to decreased access to water) f#elwood) and other im%ortant materials. The short6sightedness ca#sed !y %overty may com%el %oor %eo%le into #ns#staina!le %ractices that worsen reso#rce degradation. The reso#rce and environmental challenges in 0enya are significant !#t not ins#rmo#nta!le. It is an im%ortant challenge to ada%t and strive for a more s#staina!le economy. The eval#ation and com%arison of ex%eriences is integral to the %rocess. For some of these %ro!lems) new technology offers n#mero#s ways of solving them. Too
often) however) %otential sol#tions are not #sed !eca#se the reg#lations in %lace either are in conflict or do not offer strong eno#gh incentives. In some cases) the technology is not availa!le and so%histicated socio6economic and legal str#ct#res are needed to create the right incentives. +nvironmental %olicy making and legislation is not a sim%le choice !etween r#les) command and control and market6!ased instr#ments. In order to f#nction well) society needs intermediate %olicies with fine6t#ning. In order to meet several o!?ectives s#ch as efficiency) s#staina!ility and fair distri!#tion) a com!ination of instr#ments may !e re>#ired. An array of %olicy instr#ments has !een designed for environmental and nat#ral reso#rce iss#es. These range from the definition and enforcement of %ro%erty rights) the efficiency of the co#rt system) information %rovision) la!eling and lia!ility cla#ses. *ometimes) however) laws
and %olicies are inadvertent since they are not form#lated with environmental goals in mind. +conomists ass#me that the overriding criterion for society is welfare maximisation and this welfare is meas#ra!le as a f#nction of individ#al #tilities. The social and economic context within which reg#lations are made sho#ld !e #nderstood. For instance) for common %ool reso#rces Be.g. marginal lands) fishing gro#nds) water so#rces and mangrovesC that are %artic#larly im%ortant for the %oorest segment of society) (omm#nal Pro%erty .eso#rces B(P.sC management is recommended. It is not easy to craft new (P.s. *ocial instit#tions that hinge on re%#tation and social str#ct#re) which create tr#st) are needed. *#ch str#ct#res take time to !#ild. Fol#ntary agreements rather than com%lex laws that may !e diffic#lt to enforce or monitor may !e %referred. In this cha%ter) we have disc#ssed the #se of economic instr#ments for environmental and nat#ral reso#rce management) which are designed to infl#ence the !ehavio#r of economic
agents that ens#re s#staina!le #se and %rotection of the environment. 1e have also highlighted the diffic#lties involved in real6life %olicy making for reso#rce and environmental management. The cha%ter has highlighted ihe !attles !etween lo!!y gro#%s fighting for s#rvival) %ersonal !enefits) %ower and environmental goals. The dominant factors vary from reso#rce to another and may + context6s%ecific. *ometimes) s#ch reality demands a great deal of so%histication to match the com%lexities of technology) ecology and society.
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Chapter 2
*he Continuing
ole of Common Law in
Sustaina"le (evelopment
A,$+.T /U//A
Introduction
The +nvironmental /anagement and (o6ordination Act B+/(AC &777 esta!lishes the legislative framework for the management of the environment in 0enya. *ection 4B&C of the Act %rovides every %erson in 0enya an entitlement to a clean and healthy environment. *ection 4B4C states that =MINf a %erson alleges that the entitlement conferred #nder s#!6section B&C has !een) is !eing or is likely to !e contravened in relation to him) then.. .that %erson may a%%ly to the 9igh (o#rt for redress.= Th#s) +/(A %rovides for co#rt action to !e taken !y a %rivate citiDen for %#r%oses of redressing environmental grievances. A %rivate citiDen wishing to take co#rt action might %roceed #nder either the criminal law or the civil law. In either case) the s#!stantive law #nder which s#ch a %rivate citiDen wo#ld
%roceed is the (ommon ,aw) which a%%lies in 0enya !y virt#e of section 4B&C of the G#dicat#re Act) (ha%ter " of the ,aws of 0enya. This states that =the ?#risdiction of the 9igh (o#rt... shall !e exercised in conformity with.. .the s#!stance of the (ommon ,aw.Y This cha%ter examines the role of the (ommon ,aw in %romoting s#staina!le develo%ment in light of 0enya8s framework environmental law. It disc#sses the (ommon ,aw ca#ses of action and the remedies availa!le #nder them and analyses their contin#ing relevance to environmental management in 0enya) against the !ackgro#nd of the conce%t of s#staina!le develo%ment. The cha%ter arg#es that (ommon ,aw remains a ro!#st !ody of law) which is an in dis%ensa!le com%onent of the legal framework for environmental management and the %romotion of s#staina!le develo%ment in 0enya. Common Law Cause of Action .as%s of a Co##on La- !a+se of a!t%on The (ommon ,aw r#le is that a %rivate %erson can only take co#rt action to seek redress for a %rivate in?#ry. & Any %rivate individ#al who wishes to !ring action to redress an in?#ry to the
& The
ideological rationale for this (ommon ,aw r#le lies in the history of the (ommon ,aw as a !ody of law for the %rotection
of the interests of the landed class. In light of the fact that this (ommon ,aw r#le has !een eliminated in 0enya A as in other
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%#!lic has to seek the %ermission of the Attorney <eneral to #se his name in an action known as a relator action. This means that #nlike a %#!lic !ody) which may take co#rt action ex%licitly to
%rotect the environment) a %rivate individ#al may not do so. This (ommon ,aw %osition fo#nd ex%ression in the ?#ris%r#dence of the co#rts in (ommon ,aw ?#risdictions. Go%riet v Enion o, o&t O,,ice /orker& ' is a leading +nglish a#thority on the %oint. In this case) the 9o#se of ,ords stated the %osition as follows;
.. .the 3%ri&diction o, a civil co%rt to grant remedie& in private law i& con,ined to the grant o, remedie& to litigant& who&e right& in private law have #een in,ringed or are threatened with in,ringement. Bo e<tend that 3%ri&diction to the grant o, remedie& ,or %nlaw,%l cond%ct, which doe& not in,ringe any right& o, the plainti,, in private law, i& to move o%t o, the ,ield o, private law into that o, p%#lic law with which analogie& may #e deceptive and where di,,erent principle& apply.
9owever) the (ommon ,aw recognised that a %rivate individ#al may !ring a s#it in his name on the !asis of an interference with a %#!lic right in two sit#ations; where the interference with the %#!lic right also interferes with some %rivate right of the %erson concerned or where) in the a!sence of any interference with a %rivate right) the %erson concerned has s#ffered damage %ec#liar to himself) which is additional to that s#ffered !y the rest of the %#!lic. 4 In 0enya) as in many other (ommon ,aw ?#risdictions) this restriction on s#its !y %rivate individ#als has !een removed thro#gh stat#tory intervention. *ection 4B4C MsicN of +/( A sti%#lates that =A %erson %roceeding #nder s#!section B4C... shall have the ca%acity to !ring an action notwithstanding that s#ch a %erson cannot show that the defendant8s act or omission has ca#sed or is likely to ca#se him any %ersonal loss or in?#ry...= This stat#tory %rovision) therefore) eliminates the (ommon ,aw re>#irement that the %laintiff demonstrates loc%& &tandi to s#e. Ca%&e& o, action
The !asis of a (ommon ,aw claim is a =ca#se of action=. This arises when an in?#ry is ca#sed to a %erson or to %ro%erty. If the in?#ry is ca#sed !y a %#!lic !ody) 5 the ca#se of action is in %#!lic law) whereas if it is ca#sed !y a %rivate %erson the ca#se of action is in %rivate law. D#ring the
?#risdictions A thro#gh stat#tory intervention) an examination of this rationale is no longer %ertinent.
- M7
"NA(543 generally /#mma M-::&N. 4 of the Inter%retation and <eneral Provisions Act) (ha%ter - defines =%#!lic !ody= to mean; BaC the
4 *ee
5 *ection
<overnment...or any de%artment instit#tion or #ndertaking thereofE or B!C deletedE BcC a local a#thorityE BdC any a#thority) !oard) commission) committee) or other !ody) whether %aid or #n%aid) which is invested with or is %erforming) whether %ermanently or tem%orarily) f#nctions of a %#!lic nat#re.
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early history of the (ommon ,aw) hardly any %#!lic !odies existed and) ty%ically) grievances were remedied on the !asis of %rivate law ca#ses of action. 3 The ca#ses of action in %#!lic law are %ltra vire&, nat#ral ?#stice and error of law. The remedies for their redress are certiorari, %rohi!ition) mandam%&, and declaration. (onversely) the ca#ses of action in %rivate law are tres%ass) n#isance) the r#le in yland& v Fletcher Bthe trict lia!ility r#leC and negligence. The remedies for their redress are an award of damages) in?#nction and a declaratory ?#dgment. An action in %#!lic law is designed for challenging the legal validity of the decisions and actions of %#!lic !odies.' This is the (ommon ,aw %rocess of =?#dicial review=. It is now largely %rovided for #nder Order 34 of the (ivil Proced#re Act) (ha%ter -& of the ,aws of 0enya. G#dicial review is not to !e conf#sed with action taken in %rivate law to redress %rivate wrongsE one may not seek ?#dicial review in %lace of an action in %rivate law sim%ly !eca#se the
defendant ha%%ens to !e a %#!lic a#thority. The remedy is s%ecifically designed for challenging the exercise of %#!lic %ower or the %erformance or fail#re to %erform a %#!lic d#ty. 1here the dis%#te with the %#!lic !ody does not relate to the exercise of %#!lic %ower Bor the %erformance of a %#!lic d#tyC) redress cannot !e so#ght thro#gh a ?#dicial review a%%licationE the %#!lic !ody m#st !e s#ed thro#gh an action in %rivate law) like any other wrongdoer. K%dicial review G#dicial review is a remedy that may !e #sed to >#ash a decision 5certiorari7P sto% #nlawf#l action B%rohi!itionCE re>#ire the %erformance of a %#!lic d#ty 5mandam%&7. declare the legal %osition of the litigants BdeclarationCE give monetary com%ensationE and maintain the &tat%& :%o Ba stayC. G#dicial review orders may !e awarded where a %#!lic !ody has committed wrongf#l acts or omissions. This may !e where the %#!lic !ody has acted !eyond its legal %owers Bi.e. %ltra vire&7. A decision or an act of a %#!lic !ody may !e %ltra vire& for reasons s#ch as the fail#re to take into acco#nt relevant matters or taking into acco#nt irrelevant matters. Orders may also !e where the %#!lic !ody has acted contrary to the %rinci%les of nat#ral ?#stice) " which re>#ire an a!sence of !ias and a fair hearing in decision making. Thirdly) orders may !e awarded where a %#!lic !ody
3 *ee ' In
generally Gian K Gain) M&7"';&6"N.
recent times the %henomenon has !egan to emerge of %rivate !odies %erforming %#!lic f#nctions) for instance
in sit#ations where the <overnment has contracted o#t its f#nctions to a %rivate !ody to carry o#t on its !ehalf. 1hetherWand the extent to whichWs#ch %rivate !odies are amena!le to ?#dicial review is an area that merits detailed examination !#t is o#tside the sco%e of this (ha%ter. The remedy of ?#dicial review is necessitated !y the need to %rotect the rights of the %rivate individ#al from the
a!#sive exercise of the vast %#!lic %ower vested !y law in %#!lic !odies Wsee generally !an K Gain M&7"'; 6"N.
" 2at#ral
?#stice is a ma?or com%onent of ?#dicial review. For an inde%th disc#ssion on this %rinci%le) see for instance
9als!#ry8s laws of +ngland) 5th edition) Fol. &B&C) (ha%ter 5 from %aragra%hs 37.
has acted in error of law.7 G#dicial review as a remedy is availa!le to an individ#al who seeks redress for a %rivate grievance arising from the acts or omissions of a %#!lic !ody exercising %#!lic %owers. In this res%ect) it is a %rivate remedy. It is also availa!le to a mem!er of the %#!lic who) tho#gh not having a %rivate grievance) wishes to challenge the acts or omissions of a %#!lic !ody. In this res%ect) it is a %#!lic remedy. Originally develo%ed !y the co#rts as a (ommon ,aw remedy) it has !een ado%ted !y stat#te and now o%erates as a stat#tory remedy in accordance with Order 34 of the (ivil Proced#re Act) (ha%ter -& of the ,aws of 0enya. G#dicial review is now #sed as the %rinci%al common ca#se of action for challenging %#!lic !odies exercising reg#latory f#nctions in the field of environmental management) either on acco#nt of fail#re to act or on acco#nt of taking some action) which the challenger !elieves falls o#tside of the ?#risdiction of the %#!lic !ody. It is availa!le to redress grievances against the 2ational +nvironmental /anagement A#thority B2+/AC and the lead agencies that have stat#tory res%onsi!ility for environmental management #nder +/(A as well as #nder the sector6 s%ecific stat#tes.
K%dicial review a& a private remedy

*tat#tes ty%ically %rovide that %ersons who are aggrieved !y the decisions of a r#!lic !ody may
a%%ly for review to the co#rts. $efore %roceeding) the a%%licant m#st demonstrate that he is a %erson ggrieved. =Person aggrieved= was defined in a leading +nglish a#thority $.G. 5Gam#ia7 v 13ieG( where ,ord Denning said that;
Bhe word& 4per&on aggrieved4 are o, wide import and &ho%ld not #e &%#3ected to a re&tricted interpretation. Bhey do not incl%de, o, co%r&e, a mere #%&y#ody who i& inter,ering in thing& that do not concern him, #%t they do incl%de a per&on who ha& a gen%ine grievance #eca%&e an order ha& #een made which pre3%dicially a,,ect& hi& intere&t&.
One can see) therefore) that even tho#gh incor%orated in stat#te) ?#dicial review retains its (ommon ,aw origins with the %rinci%al f#nction of redressing %rivate rather than %#!lic grievances. +nvironmental iss#es m#st conse>#ently !e cast in terms of %rivate grievances) if they are to !e redressed thro#gh the mechanism of ?#dicial review as a %rivate remedy. This can #ndermine the #tility of ?#dicial review as a mechanism for the %romotion of s#staina!le develo%ment in 0enya. This having !een said) it m#st !e acknowledged that given the increasingly %rogressive inter%retation to standing in 0enyan co#rts today and section 4 of +/(A) the constraint im%osed on the #tility of ?#dicial review as a mechanism for the redress of grievances arising from the exercise of %ower !y %#!lic !odies charged with environmental
7 For
&:
a disc#ssion of this gro#nd see 9als!#ry ,aws of +ngland) i#id.
M&7'&N-All+...3:5at3&&.
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management res%onsi!ilities will diminish as ?#ris%r#dence grows thro#gh reliance on section 4 of +/(A. K%dicial review a& a p%#lic remedy A mem!er of the %#!lic may also resort to ?#dicial review to challenge the decisionsand actions of %#!lic !odies. In 0enya) Order 34 of the (ivil Proced#re Act sti%#lates the %roced#re to !e ado%ted in s#ch cases.&&
Order 34 re>#ires that the a%%licant seek leave of the co#rt !efore filing the a%%lication. ,eave is only granted if the co#rt considers that the a%%licant has =s#fficient interest= Bor loc%& &tandi7 in the matter in iss#e. (o#rts aro#nd the world have given varying inter%retations to this conce%t) %artic#larly in the context of environmental litigation. The conce%t of =s#fficient interest= has served a %#r%ose akin to the conce%t of =%erson aggrieved.= In order to overcome the limitations im%osed !y the (ommon ,aw origins of ?#dicial review as a mechanism for the %rotection and s#staina!le management of the environment) co#ntries have taken action #nder stat#te to remove the re>#irement that a litigant demonstrate interest !efore !eing granted leave to %roceed. In *o#th Africa) for instance) this has !een done thro#gh a %rovision in the (onstit#tion. In 0enya) section 4 of the +nvironmental /anagement and (oordination Act) &777 has ex%anded the sco%e of loc%& &tandi !y removing the re>#irement to show interest. The laws of the other +ast African ?#risdictions have similar %rovisions. $ction in private law The (ommon ,aw ca#ses of action in %rivate law are tres%ass) n#isance) the r#le in 9yland& v FletcherG' Bthe strict lia!ility r#leC and negligence. A ri%arian owner Bi.e. a land owner whose land ad?oins a waterco#rseC may also !ring action to enforce the ri%arian rights !#t this action) %ro%erly s%eaking) falls within the categories of the other %rivate law ca#ses of action. Bre&pa&& Tres%ass arises where a %erson ca#ses %hysical matter to come into contact with another8s land. Tres%ass) therefore) %rotects an occ#%ier8s right to en?oy his or her land witho#t #n?#stified interference. It is limited) however) to direct rather than indirect interferences. It is archety%ical
of the (ommon ,aw %rovisions) which %rotect land owners) rather than environmental interests in land. In a sit#ation where) for instance) gar!age is d#m%ed onto land) the occ#%ier or owner
&&
(ha%ter -&) ,aws of 0enya. The case originated as Fletcher v 9yland& B&"''C ,.& +xch. -'3. The 9o#se of ,ords decision is re%orted as 9yland&
&-
v Fletcher B&"'"C) ,. 4 9, 44:.
Internal Teaching Use Only &-&
of land might have a ca#se of action in tres%ass. &4 1%i&ance There are two ty%es of n#isance; %#!lic n#isance and %rivate n#isance. Often) the same act gives rise to !oth ty%es of n#isance at the same time. A %#!lic n#isance is an interference with the %#!lic8s reasona!le comfort and convenience. It is an interference with a %#!lic right and constit#tes a (ommon ,aw criminal offence) >#ite a%art from %roviding a ca#se of action in %rivate law. In the +nglish case of $ttorney General v .Q. $. R%arrie& Ltd,G? ,ord Denning said of %#!lic n#isance; It i& a n%i&ance which i& &o wide&pread in it& range and &o indi&criminate in it& e,,ect that it wo%ld not #e rea&ona#le to e<pect one per&on to take proceeding& on hi& own re&pon&i#ility to p%t a &top to it, #%t that it &ho%ld #e taken on the re&pon&i#ility o, the comm%nity at large.4 $ %#!lic n#isance is a (ommon ,aw mechanism for environmental %rotection) and co#ld only !e resorted to !y the Attorney <eneral or other %#!lic !ody like a local a#thority. &3 A %rivate n#isance is an interference with an occ#%ier8s #se and en?oyment of his land. 2ot all interferences) however) amo#nt to a n#isance. 2#isances are nose interferences that are #nreasona!le) ca#sing material and &%#&tantial in3%ry to %ro%erty. The lia!ility of the defendant arises from #sing land in s#ch manner as in in?#re a neigh!o#ring occ#%ier. Th#s) n#isance
im%oses the d#ty of reasona!le #se on occ#%iers. It is the ca#se of action most s#ited to resolving environmentally6related dis%#tes !etween neigh!o#ring landowners. The reasona!leness) or #nreasona!leness of the #se giving rise to the com%laint is determined on the !asis of the locality in which the activity in iss#e is carried o#t. The +nglish case of -t%rge& v IridgemanGH is ill#strative of this %oint. A confectioner had for more than twenty years #sed a %estle and a mortar in his !ack %remises) which a!#tted on the garden of a %hysician. The noise and vi!ration were not felt as a n#isance and were not com%lained of. 9owever) in &" 4) the %hysician erected a cons#lting room at the end of his garden) and then the noise and vi!ration !ecame a n#isance to him. 9is action for an in?#nction was granted) the co#rt holding that =whether anything is a n#isance or not is a >#estion to !e determined) not merely !y an a!stract consideration of the thing itself) !#t !y reference to its circ#mstances.= The location of the offending activity is therefore an im%ortant consideration in determining whether the n#isance in
&4
*ee 9als!#ry8s ,aws of +ngland) 5th +dition) Fol. 53B-C at %aragra%h 3:3. M&73 G - I.$. &'7. Indeed) #nder the P#!lic 9ealth Act) (ha%ter -5-) %rovisions are fo#nd in section &&" as well as in Part IO of the Act for the
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&3
a!atement of n#isances #sing the criminal law.

&'
B&" 7C && (h. D. "3-.
Internal Teaching Use Only &--
>#estion can !e remedied !y a s#it #nder the (ommon ,aw. In order to minimise the %otential for n#isances to arise) stat#te has introd#ced land #se %lanning) or Doning) which is a stat#tory device for se%arating incom%ati!le #ses !y re>#iring that %otentially incom%ati!le #ses !e located in different Dones. In 0enya) land #se %lanning is %rovided for #nder the Physical Planning Act) (ha%ter -"'.
St %!t L%ab%l%t': T&e R+le %n *ylands v Fletcher This r#le is !ased on the facts of the +nglish case after which it is named. & The defendant had constr#cted a reservoir to collect and hold water for his mill. Under his land were #ndergro#nd workings of an a!andoned coal mine) whose existence he was #naware of. After the reservoir had !een filled the water esca%ed down the #ndergro#nd workings thro#gh some old shafts) and flooded the %laintiff8s colliery. The %laintiff filed s#it and the co#rt decided that;
Bhe per&on who ,or hi& own !p%rpo&e& #ring& on hi& land and collect& and keep& there anything likely to do mi&chie, i, it e&cape& m%&t keep it at hi& peril, and i, he doe& not do &o, i& prima ,acie an&wera#le ,or all the damage which i& the nat%ral con&e:%ence o, the e&cape.
The decision was taken !y way of a%%eal to the +nglish 9o#se of ,ords) which #%held the decision) !#t with the rider !y one of the ?#dges that the defendant was lia!le !eca#se he had !een engaged in a =non6nat#ral #se of his land.= The r#le makes an occ#%ier strictly lia!le Bi.e. lia!le notwithstanding that he@she has not !een negligentC for the conse>#ences of esca%es from his land. 9owever) this ca#se of action has not !een relied on a great deal %artly !eca#se of diffic#lties in ascertaining the tr#e meaning of =non6nat#ral #se=. *ome have arg#ed that =non6nat#ral #se= refers to the cond#ct of #ltrahaDardo#s activities on land) while others hold that it means no more than !ringing on to land things =not nat#rally there.= In (ommon ,aw ?#risdictions s#ch as India) this ca#se of action has !een #sed to im%ose lia!ility for environmental %oll#tion arising from haDardo#s ind#strial activities. There has not !een a case in 0enya in recent times filed on the !asis of the (ommon ,aw ca#se of action of 9yland& v Fletcher. 1egligence
2egligence arises from a fail#re to exercise the care demanded !y the circ#mstances) with the res#lt that the %laintiff s#ffers an in?#ry. In contrast to the three other ca#ses of action disc#ssed a!ove) the !asis for this ca#se of action is not the occ#%ation of %ro%erty !#t the fail#re !y the defendant to exercise care) which res#lts in foreseea!le damage to the %laintiff. 2egligence is a
&
*ee &%pra note &-.
Internal Teaching Use Only &-4
recent ca#se of action) only develo%ed in &74- in the +nglish case of 8onogh%e v -teven&on,G) In that res%ect) it is not a traditional (ommon ,aw ca#se of action. A %erson !ringing action #nder negligence needs to show that the defendant owes him a =d#ty of care=) and that the defendant has !reached that d#ty of care) with conse>#ent in?#ry to the %laintiff. In 8onogh%e v -teven&on, which remains the leading a#thority on negligence) ,ord Atkinson said that the d#ty of care is owed to =%ersons so closely and directly affected !y the defendant8s act that he o#ght reasona!ly to have them in contem%lation as !eing so affected when directing his mind to the acts or omissions which are called into >#estion.= In other words) the d#ty of care is owed to those whom the defendant co#ld foresee might s#ffer in?#ry as a res#lt of the defendant8s act or omission. 2egligence can) therefore) !e #sed to redress a wide range of environmentally damaging cond#ct. rotection o, the riparian ownerC& right to water There is one other entitlement #nder the (ommon ,aw) which can form a !asis of environmental litigation; the ri%arian owner8s right to water. Under the +nglish (ommon ,aw) a landowner is %res#med to own everything on the land =#% to the sky and down to the center of the earth=. 9owever) r#nning water) air and light are
considered to !e =things the %ro%erty of which !elongs to no %erson !#t the #se to all=. &7 Therefore) a landowner has no %ro%erty in r#nning water) air and lightE what his %ro%rietorshi% entitles him to) as an incident of s#ch %ro%rietorshi%) is a =nat#ral right= to #se these elements. Th#s) a landowner whose land a!#ts r#nning water) i.e. a riparian owner) has a nat#ral right to water. The ri%arian owner is a!le to exercise) as of right) the right availa!le to all mem!ers of the %#!lic to #se r#nning water since he has access to the water) which non6ri%arian owners do not have. The right of #se is availa!le e>#ally to all ri%arian owners and) therefore) any one ri%arian owner m#st #se it reasona!ly. 2o one ri%arian owner may #se the water in s#ch a way as to %re?#dice the right of other ri%arian owners. Other ri%arian owners have a ca#se of action if there is #nreasona!le #se !y any one owner. The sco%e of the ri%arian owner8s right extends to access) >#antity and >#ality. Access ena!les the ri%arian owner to navigate) em!ark and disem!ark on his land. I#antity ena!les the ri%arian owner to a!stract) divert) o!str#ct or im%o#nd the water to the extent of its nat#ral >#antity. 9e may #se the water a!stracted for ordinary BdomesticC %#r%oses s#ch as drinking) cooking and washing) and for these %#r%oses may a!stract as m#ch as he needs witho#t restriction. *econdly) he may #se it for =extraordinary= %#r%oses s#ch as irrigation) !#t in this case m#st restrict the >#antity he a!stracts to that which does not %re?#dice the rights of other
&"
8onogh%e v -teven&on, M&74-N A( 3'-. Liggin& v Inge B&"4&C &4&) +. -'4 at -'".
&7
ri%arian owners. Thirdly) a ri%arian owner may attem%t to a!stract water for #se o#tside of his
land) !#t the (ommon ,aw disallows s#ch =foreign= #se of water. On >#ality) the ri%arian owner is entitled to have the water in its nat#ral state of %#rity. -: If any of these rights are interfered with) the ri%arian owner has a ca#se of action. 9owever) as the 9o#se of ,ords held in the +nglish case of Cam#ridge /ater Company v Ea&tern Co%ntie& Leather pic,'G the s#it itself m#st !e !ased on the traditional (ommon ,aw ca#ses of action; tres%ass) n#isance) 9yland& v Fletcher Bstrict lia!ilityC and negligence. It is the in?#ry s#ffered that arises o#t of ri%arian ownershi%. The ri%arian owner may still s#e to %rotect ri%arian rights) notwithstanding the fact that #nder the 1ater Act) -::- the ri%arian owner m#st o!tain a %ermit in order to Utilise the waters flowing %ast ri%arian land. This %osition was reaffirmed in the case of 1airo#i Gol, 6otel& Ltd v elican Engineering and Con&tr%ction Co. Ltd, 9(((2o. :' of l77 .-emedies The three remedies in %rivate law for action #nder the %rivate law ca#ses of action are damages) in?#nction) and declaratory ?#dgment. An award of damage& is com%ensation given to a %arty who has s#ffered an in?#ry. The s#m awarded is !ased on the %rinci%le that the in?#red %erson sho#ld !e %laced in the %osition he or she wo#ld have !een in if he had not !een in?#red. An in3%nction is an order from the co#rt directing a %arty either to do or to refrain from doing something. It is granted to sto% a contin#ing or rec#rring in?#ry) or in circ#mstances where damages wo#ld not !e an ade>#ate com%ensation. Ty%ically) an in?#nction will not !e granted #nless the damage is serio#s. The co#rt will !alance the inconvenience) which declining to grant the in?#nction wo#ld ca#se the %laintiff against the inconvenience) and which granting it wo#ld
ca#se the defendant. A declaratory ?#dgment is the co#rt8s declaration of the rights and d#ties of the %arties !efore it. Its val#e lies in resolving a dis%#te !y setting o#t clearly the legal %osition. /ost litigants will act in accordance with the (o#rt8s declaration witho#t the need for f#rther orders. 9owever) as the 9o#se of ,ords stated in the +nglish case of Go%riet v Enion o, o&t O,,ice /orker&: '0
Bhe 3%ri&diction o, the co%rt i& not to declare the law generally or to give advi&ory opinion&. it i& con,ined to declaring conte&ted legal right&, &%#&i&ting or ,%t%re, o, the partie& repre&ented in the litigation #e,ore it and not tho&e o, anyone el&e.
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/#mma K Torori M&77';&54N. M&775N & All +. 7&:. .e%orted in (om%endi#m of G#dicial Decisions on /atters .elated to +nvironment; 2ational Decisions; Fol. & at 54-. *w%ra note -.
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Th#s) there m#st !e a live dis%#te !etween real %arties. The co#rt cannot !e asked to make declarations a!o#t hy%othetical iss#es. These remedies are fashioned for com%ensating for %rivate loss and damage. They are #ns#ited to redressing general environmental damage. Th#s) for instance) the (ommon ,aw has no mechanism for calc#lating and com%ensating for general environmental damage) which is #nrelated to loss to a %rivate %arty. Ty%ically also) the (ommon ,aw is reactive) and does not act in a %reventive manner) which means that it will only o%erate once the in?#ry has manifested itself) exce%t in a few cases that do not re>#ire demonstration of act#al damage. Common Law in the Conte't of Emerging Environmental ights and !rinciples
The (ommon ,aw ca#ses of action and remedies are increasingly !eing #sed to im%lement and
give effect to vario#s emerging environmental rights and %rinci%les) which have emerged in the era of s#staina!le develo%ment. This serves to demonstrate the %oint made earlier that the (ommon ,aw remains relevant to modern environmental %ro!lems and concerns) as can !e ill#strated thro#gh exam%les of co#rt cases from several co#ntries aro#nd the world. Bhe right to environment and loc%& &tandi The following cases ill#strate some of the innovative decisions aro#nd the world in which the (ommon ,aw ca#ses of action have !een #sed to advance the conce%t of the right to environment and the diverse meanings that have !een attached to the right. Opo&a v Factoran'? raised the iss#e whether the %etitioners) who were minors) had a ca#se of action to %revent the misa%%ro%riation or im%airment of Phili%%ine rainforests. The com%laint was instit#ted as a tax%ayers class s#it. It alleged that the %laintiffs = MwereN all citiDens of the .e%#!lic of the Phili%%ines) tax%ayers and entitled to the f#ll !enefit) #se and en?oyment of the nat#ral reso#rce treas#re that is the co#ntry8s virgin tro%ical rainforests.= The s#it was said to !e filed for the %etitioners and other e>#ally concerned !#t =so n#mero#s that it MwasN im%ractica!le to !ring them all !efore the co#rt.= The minors asserted that they =re%resent MedN their generation as well as generations yet #n!orn.= They so#ght orders to; B&C cancel all existing tim!er licence agreements in the co#ntryE and B-C sto% a%%roving new tim!er licence agreements. The defendant so#ght a dismissal of the s#it on the gro#nds that; B&C there was no ca#se of action as the %etitioners had not alleged a s%ecific legal right violated !y the res%ondentE and B-C the iss#e raised was a %olitical >#estion) which %ro%erly %ertained to the legislative and ?#dicial !ranches of government. 9owever) the %etitioners asserted that granting tim!er licence
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<. 2o &:&:"4 re%orted inThe (om%endi#m of G#dicial Decisions in /atters related to the +nvironment; 2ational
Decisions Fol. & BU2+PC M&77"N.
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agreements to cover more areas for logging than what was availa!le was a ?#dicial >#estion as it involved an a!#se of discretion. The co#rt held that the case was a class s#it as the s#!?ect matter of the com%laint was of common and general interest not ?#st to several) !#t to all citiDens of the Phili%%ines. (onse>#ently since the %arties were so n#mero#s) it was im%ractica!le) if not im%ossi!le) to !ring all of them !efore the co#rt. The %laintiffs were n#mero#s and re%resentative eno#gh to ens#re the f#ll %rotection of all concerned interests. The co#rt held f#rther that the %etitioners co#ld file a class s#it for themselves) for others of their generation and for the s#cceeding generations. Their %ersonality to s#e on !ehalf of s#cceeding generations co#ld only !e !ased on the conce%t of inter6generational res%onsi!ility in so far as the right to a !alanced and healthf#l ecology was concerned. The co#rt held also that the com%laint foc#sed on one s%ecific f#ndamental legal right) the right to a !alanced and healthf#l ecology) which was incor%orated in the (onstit#tion. In 8r "ohi%ddin Faroo:%e v Ianglade&h,'@ the a%%ellant was the *ecretary <eneral of the $angladesh +nvironmental ,awyers Association B$+,AC) an organiDation working in the field of environment and ecology. The co#rt held that it was an aggrieved %erson !eca#se the ca#se it es%o#sed) !oth in res%ect of f#ndamental rights and constit#tional remedies) was a ca#se of an indeterminate n#m!er of %eo%le in res%ect of a s#!?ect matter of %#!lic concern. F#rther) the organiDation was acting #ona ,ide and did not seek to serve an o!li>#e %#r%ose. 9owever) the co#rt re?ected the s#!mission that the Association re%resented not only the %resent generation !#t also the generation yet #n!orn. It stated that this finding in the Opo&a Ca&e had !een !ased
on constit#tional %rovisions in the Phili%%ines) which did not exist in $angladesh. In the /alaysian case of Ka3ing B%#ek v Ekran Ihd S Other&,'H the %laintiffs were residents of logho#ses in $elaga) *arawak who were affected !y the <overnment8s %ro%osed develo%ment of a hydroelectric %ro?ect. They so#ght a declaration that !efore the %ro?ect co#ld !e im%lemented) the defendants had to com%ly with the +nvironmental I#ality Act of &7 5 re>#iring an +IA for %rescri!ed activities. $y an order) the /inister had excl#ded the a%%lication of this Act to *arawak and instead s#!?ected the %ro?ect to a %roced#re which) #nlike the &7 5 Act) did not %rovide for %#!lic %artici%ation in the +IA %rocess. The defendants challenged the %laintiffs8 standing to !ring the s#it. The co#rt held that the %laintiffs8 claim that their homes and land wo#ld !e destroyed and their lives #%rooted !y the %ro?ect) and that they wo#ld s#ffer far more greatly and directly than other mem!ers of the %#!lic as their =land and forest are not ?#st a so#rce of livelihood !#t constit#te life itself) f#ndamental to their social) c#lt#ral and s%irit#al s#rvival as native %eo%les=
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(ivil A%%eal 2o. -5 of &773)& $,D BADC &77 Fol. OFII) at &) re%orted in the (om%endi#m of G#dicial Decisions) i#id. &77' /alayan ,aw Go#rnal re%orted in (om%endi#m of G#dicial Decisions) i#id.
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were s#fficient to ?#stify their having a s#!stantial or gen#ine interest to have the legal %osition declared. In the Ugandan case of Green2%atch v $.G. S 1E"$ B-::&C the a%%ellant so#ght a declaration that the #se of %lastics violated the right of Ugandans to a clean and healthy environment. The res%ondents o!?ected that the a%%lication had !een !ro#ght on !ehalf of Ugandans who had not a#thorised the a%%licants to do so and witho#t the leave of the co#rt. The
a%%licant was an 2<O) whose o!?ectives incl#ded dealing with iss#es relating to the environment. The co#rt fo#nd the s#!?ect matter of the a%%lication was of common and general interest not ?#st to a gro#% !#t to all Ugandans and that it was im%ractica!le for all Ugandans to consent to the a%%lication as re>#ired !y the r#les of %roced#re for a re%resentative s#itE that any concerned %erson or organisation may !ring a %#!lic interest action on !ehalf of gro#%s or individ#al mem!ers even if #naware of the s%ecific violation of their f#ndamental rights and freedoms. These cases ill#strate the innovative ways in which the (ommon ,aw co#rts aro#nd the world have !een a!le to overcome the (ommon ,aw8s limited conce%tion of %rivate interest) often enforced thro#gh the r#le relating to loc%& &tandi. In the 0enya case of Kohn eter "%reithi and Other& v Bhe $ ttorney General and Other& 2airo!i 9igh (o#rt /isc. (ivil A%%lication 2o. &3" of -::3)- the a%%licants !ro#ght ?#dicial review %roceedings on !ehalf of the "#ari!ya!"%rathami clan challenging the ac>#isition of their ancestral land !y the (atholic (onsolata /ission d#ring the emergency %eriod when residents had !een moved to emergency villages in &733. The a%%licants contended that since #nder 0ik#y# c#stomary law the land !elonged to the clan) they have the necessary standing or loc%& &tandi.Bhe res%ondents contended) inter alia, that; BiC the a%%licants have no loc%& &tandi. BiiCC the a%%licants remedy lies in %rivate law rather than in %#!lic law andE BiiiC the claim is !arred !y limitation and that there had !een #nd#e delay of #% to 5: years. 9on. G#stice 2yam# held that;
Bhe clan mem#er& and their &%cce&&or& are &%,,iciently aggrieved &ince they claim an
intere&t in the !parcel& o, land which they allege wa& clan and tr%&t land and which i& now part o, a vi#rant "%nicipality. I ,ind it in order that the applicant& repre&ent them&elve& a& individ%al& and the wider clan and I %ne:%ivocally hold that they have the re:%ired &tanding to #ring the matter to thi& co%rt. "oreover in thi& ca&e I ,ind !the claim that the land #elonged to the clan and ,inally there cannot #e a #etter challenger than mem#er& o, the a,,ected clan.
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Unre%orted decision on file with the a#thor.
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In $l#ert 9%t%ri S $nother v Bhe "ini&ter ,or Finance S Other&, ') the 0enya $ankers Association challenged the constit#tionality of (entral $ank of 0enya BAmendmentC Act) -::: B%o%#larly known as the 8onde Iill7. The Attorney <eneral challenged the loc%& &tandi of the Association to !ring these %roceedings since it had no right to litigate on !ehalf of its mem!er !anks and that since each mem!er !ank is a legal entity) its right if infringed or threatened with infringement can !e redressed !y the affected individ#al !anks coming to co#rt. The co#rt stated that with regard to re%resentative s#its !y organisations on !ehalf of mem!ers) the s#it will !e %ermissi!le %rovided that; BiC the organisation8s mem!ers have standing to s#e in their own rightE BiiC the interest which the organisation seeks to %rotect are germane to the organisation8s %#r%oseE BiiiC neither the claim nor the relief so#ght re>#ires the individ#al %artici%ation of the mem!ers. The co#rt added that where an organisation is formed for the very %#r%ose of %romoting a %artic#lar interest) it is ridic#lo#s to say that it does not have the right to litigate to %rotect s#ch interest of its own. Bhe preca%tionary principle The United 2ations (onference on +nvironment and Develo%ment) which was held in .io de Ganeiro) $raDil in G#ne &77- marked an im%ortant milestone in the develo%ment of the law on environmental conservation. Among the im%ortant doc#ments ado%ted at 9io was the 9io 8eclaration o, Environment and 8evelopment. This is a set of - %rinci%les) which *tates are
#rged to ado%t in order to integrate environmental conservation in their develo%ment %rogrammes. It is not a legally !inding doc#ment. 9owever) it sets standards for *tates to follow and falls #nder the category of =soft law.= Princi%le &3 deals with the conce%t of %reca#tion. It states that; In order to protect the environment, the preca%tionary approach &hall #e widely applied #y -tate& according to their capa#ilitie&. /here there are threat& o, &erio%& or irrever&i#le damage, lack o, ,%ll &cienti,ic certainty &hall not #e %&ed a& a rea&on ,or po&tponing co&t e,,ective mea&%re& to prevent environmental degradation. The cases that follow ill#strate the way in which co#rts aro#nd the world have dealt with the iss#e of %reca#tion #sing (ommon ,aw ca#ses of action. 9 v -ecretary o, -tate ,or Brade and Ind%&try e< parte 8%ddridge 'D was an a%%lication for ?#dicial review of the decision of the *ecretary of *tate for Trade and Ind#stry of the U0) where he declined to iss#e reg#lations to the 2ational <rid (om%any %lc and@ or other licence holders #nder the +lectricity Act &7"7 so as to restrict the electromagnetic fields from electric ca!les) which were !eing laid as %art of the national grid. The a%%lication was !ro#ght on !ehalf of
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M-::-N 0,.) Fol. & at '&. Ko%rnal o, Environmental Law, Fol. A, 2o. - at --5.
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three children who lived in an area where the 2ational <rid (om%any was then laying a new high voltage #ndergro#nd ca!le. The a%%licants alleged that non6ioniDing radiation) which wo#ld !e emitted from the new ca!les when commissioned and wo#ld enter their homes and schools) wo#ld !e of s#ch a level as might ex%ose them to a risk of develo%ing le#kemia. They arg#ed that the *ecretary of *tate sho#ld iss#e reg#lations that wo#ld remove any s#ch risk !y re>#iring
that the electromagnetic fields do not exceed a sti%#lated level or some other level at which) on c#rrent research) there was no evidence to s#ggest or otherwise hy%othesiDe any %ossi!le risk to the health of those ex%osed to s#ch fields. The a%%licants arg#ed that) in considering whether there existed any danger or risks of %ersonal in?#ry from electromagnetic fields B+/FsC) the *ecretary of *tate had a%%roached the matter in the wrong wayE he had asked himself whether there was any evidence that s#ch ex%os#re does in fact give rise to a risk of childhood le#kemia. $eca#se the scientific evidence did not esta!lish that there was s#ch a risk) he concl#ded that he needed not #se his %ower to reg#late +/Fs. They s#!mitted that the %ro%er a%%roach wo#ld have !een to ask himself whether there was any evidence of a po&&i#le risk even tho#gh the scientific evidence was %resently #nclear. This wo#ld have %itched the threshold for action at a lower level of scientific %roof and the answer wo#ld have !een yes) and he wo#ld have !een o!liged to make reg#lations. The !asis of the a%%licants8 arg#ment in favo#r of the lower threshold of scientific %roof was that the *ecretary of *tate was o!liged to a%%ly the %reca#tionary %rinci%le when considering whether to take action for the %rotection of h#man health. That %rinci%le re>#ired that %reca#tionary action !e taken where the mere %ossi!ility existed of a risk of serio#s harm to the environment or to h#man health. 1here this %ossi!le risk existed) a cost6!enefit analysis had to !e #ndertaken so as to determine what action wo#ld !e a%%ro%riate. An a%%lication of the %rinci%le in this case wo#ld have re>#ired that the *ecret ary of *tate cond#ct a cost6!enefit analysis to ascertain what action co#ld !e taken and at what cost so as to red#ce any %ossi!le
risk to health from ex%os#re to +/Fs. This wo#ld have had to !e done even tho#gh the scientific evidence did not show that the risk to health act#ally existed. The *ecretary of *tate had not done this and) said the a%%licants) this fail#re vitiated the exercise of his discretion. The *ecretary of *tate arg#ed that he was #nder no o!ligation to a%%ly the %reca#tionary %rinci%le #nder the +nglish (ommon ,aw or other law. The a%%licants acce%ted that #nless the *ecretary of *tate was !o#nd to a%%ly the %reca#tionary %rinci%le) his acce%tance of the advise that there was no !asis on which to restrict h#man ex%os#re to +/Fs and the conse>#ent exercise of his discretion to decline to iss#e reg#lations co#ld not !e im%#gned !y ?#dicial review. The (o#rt acce%ted that if the *ecretary of *tate was shown to !e #nder a legal o!ligation to
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a%%ly the %reca#tionary %rinci%le to legislation concerned with health and the environment) the %ossi!ility of harm raised !y the existing state of scientific knowledge was s#ch as to o!lige him to a%%ly it in considering whether to iss#e reg#lations to restrict ex%os#re to +/Fs. 9e wo#ld !e o!liged to cond#ct the cost6!enefit analysis necessary for the %ro%er a%%lication of the %rinci%le. The (o#rt held that (omm#nity law did not im%ose #%on mem!er *tates an immediate o!ligation to a%%ly the %reca#tionary %rinci%le in considering legislation relating to the environment or h#man health. Therefore) the a%%licants had failed to show any gro#nd for im%#gning the *ecretary of *tate8s decision not to iss#e reg#lations. *imilarly) in -hehla Fia v /$ 8$,0( which arose in Pakistan) citiDens having a%%rehension against constr#ction of a grid station in a residential area sent a letter to the *#%reme (o#rt for
consideration as a h#man rights case. (onsidering the gravity of the matter) which might involve and affect the life and health of the citiDens at large) notice was iss#ed to the A#thority B1APDAC. The (o#rt noted that there was a trend in s#%%ort of the fact that there might !e a likelihood of adverse effects of electro6magnetic fields on h#man health. It held that) as there was a state of #ncertainty) the a#thorities sho#ld o!serve the r#les of %r#dence and %reca#tion. The r#le of %reca#tion was first to consider the welfare and safety of the h#man !eings and the environment and then to %ick #% a %olicy and exec#te the %lan) which was more s#ited to o!viate the %ossi!le danger or take s#ch alternate %reca#tionary meas#res that might ens#re safety. To stick to a %artic#lar %lan on the !asis of old st#dies or inconcl#sive research co#ld not !e said to !e a %olicy of %r#dence and %reca#tion. The co#rt therefore a%%ointed a (ommissioner to examine and st#dy the scheme) %lanning device and techni>#e em%loyed !y the A#thority and re%ort whether there was any likelihood of any haDard or adverse effect on the health of the residents of the locality. The (ommissioner might also s#ggest a variation in the %lan to minimise the danger. Greenpeace $%&tralia v 9ed#ank ower Company ty Ltd S -ingleton Co%ncil 0G raised the a%%lica!ility of the %reca#tionary %rinci%le in the context of the o!ligations #nder (limate (hange (onvention. As in the 8%ddridge ca&e the attem%t to a%%ly the %reca#tionary %rinci%le failed to %ers#ade the co#rt that the decision of the %#!lic a#thority sho#ld !e reviewed. In /arch &775) *ingleton (o#ncil granted to .ed!ank Power (om%any develo%ment consent for the constr#ction of a %ower station and ancillary facilities. <reen%eace A#stralia ,td o!?ected contending that the im%act of air emission from the %ro?ect wo#ld #nacce%ta!ly
exacer!ate the greenho#se effect and that the co#rt sho#ld a%%ly the %reca#tionary %rinci%le and ref#se develo%ment consent for the %ro%osal. The co#rt o!served that the evidence esta!lished that the %ro?ect wo#ld emit car!on dioxide)
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P,D&775 *#%reme (o#rt '74 BPakistanC. B 773C "' ,<+.A&54 A#stralia re%orted in (om%endi#m of G#dicial Decisions) i#id.
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a greenho#se gas) an iss#e which <reen%eace contended sho#ld o#tweigh all other factors to !e taken into acco#nt in the assessment of the %ro?ect) and sho#ld lead to the ref#sal of the consent. The co#rt o!served) however) that the relevant %olicy doc#ments sto%%ed short of %rohi!iting energy develo%ment) which co#ld emit greenho#se gases. F#rther) there was #ncertainty in the evidence a!o#t the effect of car!on dioxide emission from this %ro?ect. Altho#gh it wo#ld emit car!on dioxide) the im%act that wo#ld have on glo!al warming was very #ncertain. <reen%eace8s contention was that scientific #ncertainty sho#ld not !e #sed as a reason for ignoring the environmental im%act of car!on dioxide emission. The co#rt sho#ld take into acco#nt the %reca#tionary %rinci%le. 9owever) the co#rt held that the a%%lication of the %reca#tionary %rinci%le dictated that a ca#tio#s a%%roach sho#ld !e ado%ted in eval#ating the vario#s relevant factors in determining whether to give consentE it did not re>#ire that the greenho#se iss#e sho#ld o#tweigh all other iss#es. *imilarly) in 1icholl& v 8irector General o, 1ational ark& and /ildli,e, 0' the a%%licant %%ealed against the decision of the Director <eneral to grant a licence to the forestry (ommission to take or kill= any %rotected fa#na in the co#rse of carrying o#t forestry o%erations within a s%ecified area. The a%%licant8s case was directed against alleged im%erfections in the fa#na im%act
statement. The co#rt held that the a#na im%act statement was only one of a n#m!er of tools to !e #sed in determining whether or not a general licence sho#ld !e iss#ed) and the a%%licant8s attack failed to take acco#nt of the ongoing o%%ort#nities for ins%ection) s#rvey and assessment) which co#ld lead to res%onsive changes to the conditions of the licence. F#rther) the a%%licant arg#ed that the (o#rt was o!liged) as a matter of law) to take into acco#nt A#stralia8s international o!ligations) i.e. the %reca#tionary a%%roach. 9owever) the (o#rt held that the %reca#tionary %rinci%le was not framed is a legal standard. Leatch v 1ational ark& S /ildli,e -ervice00 was an instance in which the a%%lication of the %reca#tionary %rinci%le res#lted in a review of the %#!lic a#thority8s decision. In this case) *hoalhaven (ity (o#ncil a%%lied to the Director <eneral of the 2ational Parks and 1ildlife *ervice for a licence to =take or kill= endangered fa#na. The need for the licence arose from the granting of develo%ment consent !y the (o#ncil to itself for the constr#ction of a link road. The licence a%%lication was s#%%orted !y a fa#na im%act statement %#rs#ant to s.7-$ of the 2ational Parks and 1ildlife Act. The Director <eneral granted the licence. An o!?ector) /ay ,eatch) a%%ealed) s#!mitting that there had !een a fail#re to incl#de =to the f#llest extent reasona!ly %ractica!le= a descri%tion of the fa#na affected !y the actions. *he arg#ed f#rther that the %reca#tionary %rinci%le sho#ld !e a%%lied. The (o#rt o!served that the %reca#tionary %rinci%le was a statement of common sense and
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B&775N "5 ,<+.A 47 re%orted in the (om%endi#m of G#dicial Decisions) i!id. M&774N "& ,<+.A - : re%orted in the (om%endi#m of G#dicial Decisions) i#id.
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had already !een a%%lied !y decision makers in a%%ro%riate circ#mstances %rior to the %rinci%le !eing s%elt o#t. The co#rt held that) while there was no ex%ress %rovision re>#iring consideration of the %reca#tionary %rinci%le) consideration of the state of knowledge or #ncertainty regarding a s%ecies) the %otential for serio#s or irreversi!le harm to an endangered fa#na and the ado%tion of a ca#tio#s a%%roach in %rotection of endangered fa#na was consistent with the s#!?ect matter) sco%e and %#r%oses of the Act. The a%%lication of the %reca#tionary %rinci%le was the most a%t in a sit#ation of scarce scientific knowledge of s%ecies %o%#lation) ha!itat and im%acts) which was the case in this instance. Accordingly) the licence sho#ld not !e granted #ntil m#ch more was known. !olluter !a&s !rinciple ,ike the Preca#tionary Princi%le) the Poll#ter Pays Princi%le has !een enshrined in the .io Declaration on +nvironment and Develo%ment as Princi%le &'. It states as follows;
1ational a%thoritie& &ho%ld endeavo%r to promote the internali&ation o, environmental co&t& and the %&e o, economic in&tr%ment&, taking into acco%nt that the poll%ter &ho%ld, in principle, #ear the co&t& o, poll%tion, with d%e regard to the p%#lic intere&t and witho%t di&torting international trade and inve&tment.
The Poll#ter Pays Princi%le addresses lia!ility for environmental damage. It is aimed at ens#ring that %ersons engaged in %otentially %oll#ting activities internaliDe the environmental costs of their activities and %#t in %lace %reventive meas#res. The Poll#ter Pays Princi%le is given effect in the (ommon ,aw ca#ses of action of tres%ass) n#isance) the r#le in 9yland& v Fletcher and negligence) which define the nat#re and extent of the %oll#ter8s lia!ility. The cases that follow are instances of the #se of the conce%t of the Poll#ter Pays Princi%le to allocate lia!ility for environmental damage. The first case) dealing with ca#sation) deals with the
>#estion =who is the %oll#terL=) an iss#e that can %rove >#ite diffic#lt to resolve in the context of environmental litigation. The second case defines the extent of lia!ility of the %oll#ter. 1atal Fre&h rod%ce Grower& $&&ociation v $gro&erve 5 ty7 Ltd 0? deals with the %ro!lem of ca#sation) a key element in im%osing lia!ility. The %laintiffs instit#ted action for an order interdicting the defendants from man#fact#ring and@or distri!#ting in *o#th Africa hormonal her!icides. The first %laintiff was the 2atal Fresh Prod#ce <rowers Association) one of whose o!?ects was the =%romotion and %rotection of the interests of growers of all kinds of fresh %rod#ce.= The second and third %laintiffs were farmers who grew fresh %rod#ce in an area within and ad?oining the %lace generally known as Tala Falley) 2atal. The defendants were registered man#fact#rers and@or di&tri#%tor& o, certain hormonal her#icide&. The %laintiffs alleged that hormonal her!icides #sed within *o#th Africa were Trans%orted
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M&::7:N 5 *A 57 re%orted in the (om%endi#m of G#dicial Decisions.
thro#gh water and air and de%osited on fresh %rod#ce growing within 2atal. They alleged that this had damaged and wo#ld contin#e to damage %lants crown and owned !y the %laintiffs. F#rther) that the damage flowed as a res#lt of the distri!#tion and conse>#ent #se of the her!icides and that the #se was ca#sed) accommodated and enco#raged !y6the man#fact#re and distri!#tion of die her!icides for #se within *o#th Africa. The %laintiffs arg#ed that the damage wo#ld not !e %revented exce%t !y the elimination of the #se of these her!icides within *o#th Africa. The defendants %ointed o#t that they did no more than man#fact#re and distri!#te hormonal her!icides) which were d#ly registered for sale #nder the relevant laws. These activities were lawf#l and the man#fact#red %rod#cts were ca%a!le of %erfectly lawf#l #se. They s#!mitted that
the lawf#l man#fact#re and distri!#tion of these %rod#cts was not rendered wrongf#l !y the fact that they were #sed to the detriment of the %laintiff farmers !y third %arties for whose cond#ct the defendants were not legally res%onsi!le. The (o#rt held that it co#ld not !e the case that any #se of hormonal her!icides anywhere in *o#th Africa res#lted in damage to fresh %rod#ce in Tala Falley. F#rther) the allegation that the #se of hormonal her!icides was ca#sed) accommodated and enco#raged !y their man#fact#re and distri!#tion was not warranted !y the facts. $y man#fact#ring and distri!#ting their %rod#cts) the defendants facilitated or accommodated the #se of hormonal her!icides !y others) !#t that did not amo#nt to %roc#ring) instigating or enco#raging s#ch #se as to make them legally res%onsi!le for the actions of the #sers. The facts did not warrant the concl#sion that the man#fact#re and distri!#tion of hormonal her!icides ca%&ed the #se of s#ch her!icides !y others) in the sense that the man#fact#rers were legally res%onsi!le for s#ch #se. The only connection !etween the activities of the defendants and the damage %rod#cing #se of hormonal her!icides !y others was that the man#fact#re and distri!#tion of hormonal her!icides facilitated s#ch #se. 9owever) that was not eno#gh to saddle the man#fact#rers with legal res%onsi!ility for the cond#ct of the #sers. The second case deals with the nat#re and extent of the %oll#ter8s lia!ility for environmental damage. The (o#rt in this case went f#rther and strictly a%%lied the Traditional (ommon ,aw r#le in 9yland& v Fletcher in defining the nat#re and extent of a %oll#ter8s lia!ility. In Indian Co%ncil ,or Enviro!Legal $ction v Enion o, India,0@ the res%ondents o%erated chemical
factories witho#t the re>#isite licences and had not installed e>#i%ment for treatment of highly toxic effl#ent) which they discharged. The discharges %oll#ted water a>#ifers and the soil. An environmental organiDation filed a %etition !y way of %#!lic interest litigation on !ehalf of the villagers whose right to life had !een infringed !y the res%ondents8 action. The co#rt o!served that) according to the r#le laid down !y the (onstit#tional $ench of the
43
M&77'N 4 *(( -&-) re%orted in the (om%endi#m of G#dicial Decisions) i#id.
*#%reme (o#rt in Ole%m Ga& Leak Ca&e, once the activity carried on is haDardo#s or inherently dangero#s) the %erson carrying on s#ch activity is lia!le to make good the loss ca#sed to any other %erson !y his activity irre&pective of whether he took reasona!le care while carrying on his activity. The r#le is %remised #%on the very nat#re of the activity carried on. In the words of the (onstit#tional $ench) s#ch an activity =... can !e tolerated only on condition that the enter%rise engaged in s#ch haDardo#s or inherently dangero#s activity indemnify all those who s#ffer on acco#nt of the carrying on of s#ch haDardo#s or inherently dangero#s activity regardless of whether it is carried on caref#lly or not.= The (onstit#tional (o#rt assigned the reason for stating the law in those terms to !e that the enter%rise alone has the reso#rces to discover and g#ard against the haDards) and not the %erson affected) and the %ractical diffic#lty on the %art of the %erson affected in esta!lishing the a!sence of reasona!le care or that the damage to him was foreseea!le !y the enter%rise. The $ench also o!served that s#ch lia!ility is not s#!?ect to any of the exce%tions) which o%erate vi&!a!vi& the tort#o#s %rinci%le of strict lia!ility #nder the r#le in 9yland& v Fletcher, a%art from
%roof of damage to the %laintiff !y the actor and negligence of the defendantE these are foreseea!ility and non6nat#ral #se of land. The co#rt o!served that the >#estion of lia!ility of the res%ondents to defray the costs of remedial meas#res co#ld also !e looked at from another angle) vi2, the Poll#ter Pays Princi%le) according to which the res%onsi!ility for re%airing the damage was that of the offending ind#stry. The co#rt held that the res%ondents were a!sol#tely lia!le to com%ensate for the harm ca#sed !y them to the villagers in the affected area) to the soil and to the #ndergro#nd water. The res%ondents were therefore !o#nd to take all necessary meas#res to remove the sl#dge and other %oll#tants lying in the affected area) and also to defray the cost of the remedial meas#res re>#ired to restore the soils and #ndergro#nd water so#rces. *he Common Law and the State in the !romotion of Sustaina"le Environmental )anagement *#staina!le environmental management re>#ires the intervention of the *tate in the actions of %rivate individ#als and entities. This is !eca#se) in the a!sence of state control) a %rivate %erson or entity may carry on activities freely) #nless checked !y neigh!o#rs. Under the (ommon ,aw) a %rivate individ#al or entity has no o!ligation to %rotect the environment or to refrain from damaging actions or omissions) #nless these interfere #nd#ly with a neig!o#ring owner or occ#%ier. The %ower of the *tate #nder the (ommon ,aw to control the #ses to which a landowner may %#t his land is referred to as =%olice %ower.= The law of most ?#risdictions recognises the
right of the *tate to %rotect the %#!lic8s interest. *#ch c#rtailment of an individ#al8s rights may) however) amo#nt to a confiscation of the rights in >#estion. The di&tinction #etween the legitimate e<erci&e o, the police power and the confiscation of the rights is a matter of degree of damage. 1here the restriction involved can !e considered reasona!le) the exercise of %olice %ower is valid and the damage s#ffered !y the individ#al is sim%ly an incidental conse>#ence of an otherwise valid action. 9owever) where the restriction is so great that an individ#al o#ght not to !ear s#ch a !#rden for the %#!lic good) the restriction has !een held to !e confiscatory Bor in the U*A) a constr#ctive takingC even tho#gh %ro%erty !elonging to the individ#al has not !een transferred to the *tate so as to amo#nt to a confiscation in the traditional sense.4' In the U*A) where the ?#ris%r#dence on this iss#e has advanced f#rthest) the co#rts have held that whether or not a confiscation has occ#rred de%ends #%on whether the restriction %ractically or s#!stantially renders an individ#al8s land #seless for all reasona!le %#r%oses. 4 If the land can !e %#t to some !eneficial #se) the restriction will not !e considered #nreasona!le. F#rther) if the damage is s#ch as to !e s#ffered !y many similarly sit#ated and o#ght to !e !orne !y the individ#al as a mem!er of society for the good of %#!lic safety or health or the general welfare) it will !e considered a reasona!le exercise of %olice %ower. 9owever) if the damage is so great to the individ#al that he o#ght not to !ear it #nder contem%orary standards) then co#rts are inclined to treat it as a taking of the %ro%erty or an #nreasona!le exercise of the %olice %ower. (onversely) the *tate takes %ro%erty =!y eminent domain= or com%#lsory ac>#isition Bthe theory that the *tate is the owner of last resort of all real %ro%ertyC !eca#se the %ro%erty is needed for a %#r%ose that is #sef#l to the %#!lic) and restricts #se of %ro%erty #nder the %olice %ower where s#ch #se is harmf#l to the %#!lic. From this res#lts the difference !etween the %ower of eminent domain and %olice %ower. 1here %ro%erty is taken #nder the %ower of
eminent domain) the owner is entitled to com%ensation !#t if #se of %ro%erty is restricted in exercise of %olice %ower) there is no right of com%ensation. Th#s) the necessity for monetary com%ensation for loss s#ffered to an owner thro#gh the exercise of %olice %ower arises when restrictions are %laced on %ro%erty in order to create a %#!lic !enefit rather than to %revent a %#!lic harm. A n#m!er of cases relying on (ommon ,aw ca#ses of action have !een !ro#ght in co#rts aro#nd the world !#t which) in reality) ill#strate the #se of %olice %ower for %#r%oses of environmental management. The cases arise o#t of challenges !y landowners of %owers !eing exercised !y reg#latory agencies on the !asis that the reg#latory %owers are #nreasona!le and
4' *ee
generally the disc#ssion in the (om%endi#m of G#dicial Decisions on /atters .elated to +nvironment) 2ational Decisions)
Fol. Ill BU2+P -::&C at &46&'.

4 I#id.
Internal Teaching Use Only &4'
#n?#stified. They are th#s an attem%t !y landowners) #sing the (ommon ,aw mechanisms) to restrict the exercise !y the *tate to take reg#latory meas#res designed to advance s#staina!le environmental management. K%&t v "arinette Co%nty 5E-$70) was a case in which landowners so#ght declaratory ?#dgment that a shoreland Doning ordinance was #nconstit#tional. The co#nty had so#ght a mandatory in?#nction to restrain the landowners from %lacing in!,ill material on their %ro%erty witho#t first o!taining a conditional #se %ermit as re>#ired !y the ordinance. In &7'&) several years %rior to the %assage of the ordinance) the G#sts %#rchased land along a naviga!le lake. *#!se>#ently) the ordinance in iss#e was %assed and the land owned !y the G#sts designated as a swam%. Following this) in order to %lace more than 3:: s>#are feet of fill on this %ro%erty) the G#sts were re>#ired to o!tain a conditional #se %ermit. In &7'") after the ordinance !ecame effective) the G#sts) witho#t sec#ring a conditional #se %ermit) ha#led sand onto the %ro%erty in violation of the ordinance.
The iss#e !efore the co#rt was whether the wetland filling restrictions were #nconstit#tional !eca#se they amo#nted to a constr#ctive taking of the G#sts land witho#t com%ensation. The co#nty arg#ed that the restrictions were a %ro%er exercise of %olice %ower and did not so severely to limit the #se or de%reciate the val#e of the land as to constit#te a taking witho#t com%ensation. The co#rt held that this was a restriction on the #se of a citiDen8s %ro%erty not to sec#re !enefit to the %#!lic !#t to %revent harm from the change in the nat#ral character of the citiDen8s %ro%erty. It held that the %#!lic %#r%ose so#ght to !e o!tained !y the ordinance was to %rotect naviga!le waters and the %#!lic rights therein from the degradation and deterioration) which wo#ld res#lt from #ncontrolled #se and develo%ment shorelands. The ordinance %rovided for %ermitted #ses and conditional #ses) one of which was the conditional filling) drainage or dredging of wetlands #nder a conditional #se %ermit. Accordingly) the shoreland Doning ordinance was not #nconstit#tional as !eing confiscatory or #nreasona!le. Again) in Enited -tate& v 9iver&ide Iayview 6ome& Inc, 0D the (lean 1ater Act %rohi!ited any discharge of dredged or fill materials into naviga!le waters defined as =waters of the United *tates= #nless a#thorised !y a %ermit iss#ed !y the Act to cover all =freshwater wetlands= that were ad?acent to other covered waters. The (or%s iss#ed a reg#lation defining s#ch wetlands as =those areas that are in#ndated or sat#rated !y s#rface or gro#nd water at a fre>#ency and d#ration s#fficient to s#%%ort and) #nder normal circ#mstances) do s#%%ort a %revalence of vegetation ty%ically ada%ted to life in sat#rated soil conditions.= After the res%ondent !eg#n %lacing fill material on its %ro%erty near the shores) the (or%s
4"
-:& 2.1. -d '&. .e%orted in the (om%endi#m of G#dicial Decisions.
47
filed a s#it to sto% it from filling its %ro%erty witho#t the (or%s8 %ermission. The (o#rt of
A%%eals took the view that the (or%s a#thority m#st !e narrowly constr#ed to avoid a taking witho#t ?#st com%ensation. 9owever) the *#%reme (o#rt held that the land fell within the (or%s ?#risdiction. The (o#rt noted that governmental land #se reg#lation co#ld) #nder extreme circ#mstances) amo#nt to a taking of the affected %ro%erty) more so in sit#ations where the ordinance did not s#!stantially advance legitimate *tate interests or denied an owner economically via!le #se of his land. 9owever) the mere assertion of reg#latory ?#risdiction !y a governmental !ody did not constit#te a reg#latory taking. A re>#irement that a %erson o!tain a %ermit !efore engaging in a certain #se of his %ro%erty did not itself take the %ro%erty. Indeed) the %ermit system im%lied that the %ermission may !e granted) leaving the landowner free to #se the %ro%erty as desired. /oreover) even if the %ermit was denied) there may !e other via!le #ses availa!le to the owner. Only when a %ermit was denied and the effect of the denial was to %revent =economically via!le= #se of the land in >#estion co#ld it !e said that a taking had occ#rred. The co#rt also held that e>#ita!le relief was not availa!le to en?oin an alleged taking of %rivate %ro%erty for %#!lic #se d#ly a#thorised !y law) when a s#it for com%ensation co#ld !e !ro#ght s#!se>#ent to the taking. In the 0enyan case of eter /awer% v the 9ep%#lic, /isc. (ivil A%%lication 2o. &&" of -::5)5: -4 o#t of a!o#t -:: %ersons who had !#ilt se%tic tanks that were discharging waste sewage into local waterco#rses were charged with criminal offences #nder the P#!lic 9ealth Act) (ha%ter -5-. They s#ccessf#lly challenged their %rosec#tion ran the gro#nds that the selection of only a n#m!er of the offenders for %rosec#tion was discriminatory and contrary to
the (onstit#tion. The co#rt noted) however) that there was need to take meas#res to install %ro%er sewage treatment facilities in order to avoid the risk of environmental %oll#tion occ#rring as a res#lt of the #n%lanned develo%ments going on in the area. Con!l+s%ons It has !een demonstrated that (ommon ,aw has %rovided the main framework within which modern environmental law has develo%ed. It has %rovided the theoretical #nder%innings of environmental law and sha%ed stat#tory reform) which often has !een designed to redress %erceived weaknesses in (ommon ,aw. Th#s) (ommon ,aw has %rovided the tr#e !ackgro#nd to environmental law as we know it today. F#rther) (ommon ,aw remains versatile and ca%a!le of ada%ting. It has taken on !oard new develo%ments in environmental law and has !een #sed to deal with modern conce%ts and
5: Unre%orted
decision on file with the writer.
Internal Teaching Use Only &4"
%rinci%les. +xam%les of this versatility can !e seen in the a!ility of the (ommon ,aw to deal with modern conce%ts s#ch as the Poll#ter Pays Princi%le) the %reca#tionary %rinci%les) and even inter6generational e>#ity) all %ost6.io soft law conce%ts. (onse>#ently) (ommon ,aw sho#ld !e #sed to s#%%lement the reg#latory efforts of stat#tory reg#latory agencies. In co#ntries s#ch as 0enya) where reg#latory !odies are often lacking in technical and financial ca%acity to enforce and im%lement environmental laws) %rivate action and action !y %#!lic interest !odies #nder the (ommon ,aw to seek redress for environmental damage can %lay an im%ortant com%lementary role) which wo#ld !e a mistake to #nderestimate.
Chapter
*he #se of Criminal Law in Enforcing Environmental Law

PAT.I(IA 0A/+.I6/$OT+
Introduction (rime com%rises an #nlawf#l act or defa#lt) which is an offence against laws made to %rotect the %hysical conditions in which %eo%le live. The la!el of =crime= and the accom%anying &ocial &tigma are normally reserved for those activities that are in?#rio#s to the general %o%#lation or the *tate) incl#ding some that ca#se serio#s loss or damage to individ#als. +nvironmental crimes fit the la!el. The la!el is intended to assert hegemony of a dominant %o%#lation) or to reflect a consens#s of condemnation for the identified !ehavio#r and to ?#stify a %#nishment im%osed !y the *tate in the event that an acc#sed %erson is tried and convicted of a crime. The term =crime= can also technically refer to the #se of criminal law to reg#late minor infractions) s#ch as traffic violations. Us#ally) the %er%etrator of the crime is a nat%ral per&on !#t) in some ?#risdictions and in some moral environments) legal per&on& are also considered to have the ca%a!ility of committing crimes.& 1hile modern environmental law deals with environmental crimes as tho#gh they com%rise a
new field of law) it is clear from existing law that the convergence !etween criminal !ehavio#r and environmental infractions is not new at all. Indeed) the %#!lic health and the %rotection of game animals from colonial times have made extensive #se of criminal law. +nvironmental crimes can) however) !e seen to cover new gro#nd when they criminalise acts or defa#lts that were %revio#sly not %erceived as crimes !#t are now %erceived in that way on acco#nt of s#staina!le environment management im%eratives. For the %#r%oses of this cha%ter) environmental crime is crime against the environment. It incl#des crimes s#ch as air) water or land %oll#tion and the destr#ction of endangered &pecie&. The relevance of criminal law in the enforcement of environmental law has come into shar% foc#s with arg#ments for and against the #se of criminal sanctions to elicit com%liance with environmental law. One arg#ment is that environmental law has distinctive >#alities that are not easy to deal with #nder criminal law. /y arg#ment here is that it is %recisely !eca#se of this distinctive nat#re that all availa!le sanctions sho#ld !e availed to enforce com%liance with
& $lackstone
M&7 7N.
environmental law. +nvironmental law is m#ltifaceted and re>#ires m#lti%le ways of enforcing or %roc#ring adherence to set norms. Diverse activities s#ch as #nreg#lated ind#strial develo%ment leading to environmental %oll#tionE land #se %ractices that affect other %eo%le8s en?oyment of their %ro%ertyE the need to s#staina!ly manage fa#na and flora from excessive ex%loitationE and the concern that technological develo%ment sho#ld not negatively im%act on the environment all make a valid case for the #se of criminal sanctions to enforce environmental law. Over the years) different %rinci%les have emerged to g#ide s#staina!le environmental
management. These incl#de inter6 and intra6generational e>#ityE the %reca#tionary %rinci%leE environment im%act assessmentE risk assessment and risk management in trans!o#ndary movement of living modified organismsE access and !enefit sharing of %roceeds from environmental reso#rces and the Poll#ter Pays Princi%le. These are de%osited in different instr#ments at the international) regional and national levels covering different s#!?ect matter Bclimate change) !iodiversity) oDone layer de%letion) haDardo#s waste) among othersC. The s#!stance of environmental law is technical and the enforcement mechanisms are varied and diverse) ranging from command and control mechanisms where the acce%ta!le standard is esta!lished and the conse>#ences of non6adherence therewith are set Balso referred to as the #se of the 8!ig stick8C to the esta!lishment of incentives BcarrotsC to elicit acce%ta!le !ehavio#r. The need to !alance these mechanisms is demanded !y environmental law) which is !y nat#re com%lex and indeterminate. +nvironmental law seeks to !ring a!o#t radical change in h#man !ehavio#r to minimise environmental degradation and haDards to %#!lic health. Indeed) these distinctive feat#res hold the key to the develo%ment of a fair and worka!le %olicy regarding whether and when it is a%%ro%riate to invoke criminal law sanctions. - The distinctive feat#res of environmental law sho#ld !oth inform criminal enforcement as well as %rescri!e its !o#nds. The role of national instit#tions and law enforcement agencies in making s#staina!le environmental management a reality is very critical !eca#se environmental reso#rces are fo#nd within nation *tates with the %eo%le. F#rther) !eing a new field) national instit#tions need to develo% innovative interventions to elicit com%liance) while o%timally #tilising availa!le mechanisms set o#t in the law. Des%ite the fact that environmental crime is relatively new to the
criminal law lexicon and that environmental conscio#sness has only recently emerged) there is s#%%ort for treating c#l%a!le environmental violations as serio#s crimes. As %eo%le have !ecome more aware of the negative im%acts of certain h#man activities on the environment) environmental crimes have %rovoked moral o#trage and %rom%t demands for severe sanctions and strict enforcement.
- ,aDar#s
M&773N.
Criminal Law (riminal law is intended to enforce &ocial control !y disco#raging !ehavio#r that is harmf#l to societal well6!eing) as well as !ehavio#r that challenges the government8s a%thority and legitimacy. (riminal law and %#nishments are designed to serve as a deterrent, hel%ing to restrain !ehavio#r. 1hile some crimes 5mal%m in &e7 are o#tlawed nearly #niversally) s#ch as m%rder and rape, other crimes 5mal%m prohi#it%m7 reflect society8s social attit#des and morality) s#ch as laws %rohi!iting #se of mari3%ana0 (riminal law esta!lishes %roced#re for %#nishing o,,ender&, with %#nishment handled !y the -tate) and not the victim who might otherwise seek revenge.5 (riminal law) th#s) deals with legal wrongs %#nisha!le !y the *tate. ,aw is therefore central to designation of what is a 8legal wrong8. The determination of what these wrongs are is drawn from societal consens#s on the d#ties that a %erson owes to the society. (rimes or legal wrongs constit#te derogation from those d#ties. For cond#ct to !e criminalised) it has to f#lfill some
conditions; BaC The cond#ct@ act m#st !e wrongf#l B!C It m#st !e necessary to em%loy criminal law to condemn or %revent s#ch cond#ct BcC It m#st !e %ermissi!le to criminalise the activity There are three different schools of tho#ght #nder which an act may !e deemed wrongf#l. First) the legal moralists %redicate wrongf#lness on whether the act is immoral. *econd) the %aternalists %erceive an act as wrongf#l when it ca#ses harm to the actor herself. Third) the li!erals %erceive an act as wrongf#l when it ca#ses harm or serio#s offence to others. In the case of environmental crimes) the foc#s is on environmentally6harmf#l cond#ct. The criminalisation of environmental violations therefore draws #%on three distinctive concerns) namely; harm) c#l%a!ility and deterrence. 3 (riminal law seeks to %revent harm) which is the link !etween the criminal cond#ct and the %#nitive sanction. ' *ome crimes) however) address cond#ct that creates a risk of harm thro#gh reckless endangerment. +ven when harm is not an element of the crime) any res#lting act#al harm may !e relevant for %#r%oses of grading the serio#sness of the violation and determining the range of the a#thorised %#nishment or determining the sentence to !e meted o#t. (#l%a!ility or criminal lia!ility is enshrined in the maxim Cact%& non ,acit re%m ni&i men& &it reaC Bthe doing of an act does not make a man g#ilty #nless he has a g#ilty mindC. $ct%& 9e%& Bthe %rohi!ited actC and men& rea Bthe g#ilty mindC are !oth essential elements to %rove criminal
4 Phtt%;@@en.wiki%edia.org@wiki@+nvironmentalScrimeT 5 9all
3
BAccessed on 3th A%ril -:: C.
MI7':N.
$rickey M&77'; 5" N. 9all MI7':N.
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lia!ility. "en& rea %lays a %aramo#nt role in criminal theory. (riminal law ex%resses society8s
sense of moral o#trage and condemnation !eca#se the actor8s cond#ct is deemed c#l%a!le. (riminal lia!ility may) however) also arise o#t of negligence or inadvertence. (#l%a!ility and deterrence are inextrica!ly intertwined as the former stigmatiDes actions or cond#ct to shame the convicted offender and deter others from risking similar disgrace. Deterrence is the coercive %ower of the *tate to im%ose %#nishment with the ex%ected o#tcome of deterring %otential offenders from engaging in a %artic#lar activity or cond#ct. It is arg#ed that environmental crimes or the threat of criminal %enalties %rovides a strong incentive to com%ly with the law) es%ecially for cor%orate officials) since 8?ail time is the one cost of !#siness that cannot !e %assed to the cons#mer.8" In a%%lying criminal law to enforce environmental law) some iss#es that arise are whether criminal law can elicit !ehavio#r that contri!#tes to s#staina!le develo%ment) given that it is mainly concerned with #nacce%ta!le !ehavio#rE the sco%e and nat#re of the offences and the re>w#isite state of mindE the re>#isite standard of %roof given %rinci%al of %reca#tion Bsho#ld it !e !eyond reasona!le do#!t or on a !alance of %ro!a!ilitiesLCE who !ears the !#rden of %roofE the ty%es of evidence re>#ired B#se of ex%ert witnessesCE and the a%%ro%riate r#les of %roced#re. Inte se!t%on of En)% on#ental La- -%t& C %#%nal La<iven the m#ltifaceted nat#re of environmental law o#tlined a!ove) there is clearly a need to #se m#lti%le methods to enforce the set norms. (riminal enforcement of environmental law is necessary to %rotect the integrity of the reg#latory system) %revent harm to the environment) %rotect %#!lic health and welfare) and to %#nish c#l%a!le violations. The reasons why criminal law sho#ld !e #sed to enforce environmetal law are; the inade>#acy or fail#re of civil @ administrative law to ade>#ately deter violations) #se of criminal sanctions as a !ack6#%) where
civil remedies are not s#ita!le or cannot remedy sit#ation and societal %reference to criminaliDe actions as an ex%ression of moral o#trageE and to %rohi!it the activity. In the case of moral o#trage) the commonality of interest in an iss#e forms the !asis for %rosec#tion of a wrong. (riminal sanctions %#nish the res%onsi!le %arty and make it clear that non6com%liance is a crime.7 At another level) there is an economic rationale for #sing criminal law sanctions !eca#se an effectively enforced criminal stat#te raises the cost of certain kinds of cond#ct and) therefore) enco#rages com%liance with laws and reg#lations htat wo#ld otherwise !e largely ignored. This
9edman M&775N.
"
Preston Gr. M-::';&"5N. /#chnicki M&77:;4&N.
m#st) however) !e accom%anied !y effective mechanisms for a%%rehending offenders and deterrent %#nishment. In this regard) it is im%ortant to synchronise criminal %enalties with the economic val#e of an activity to ens#re that the %enalty is more ex%ensive that the gains made o#t of criminaliDed cond#ct.&: .ationalisation of criminal sanctions for environmental wrongs sho#ld as%ire to internaliDe environmental externalities. Indeed) witho#t the threat of criminal sanctions) the !#siness comm#nity co#ld treat civil and administrative fines as the cost of doing !#siness. /oreover) environmental crimes and traditional crimes share many common traits; they threaten the infliction of harm Benvironmental crimes have the %otential to ca#se catastro%hic harm to the environment) %#!lic health and local economies and ways of lieC. && +nvironmental
crimes also re>#ire c#l%a!ility. It is im%ortant to note) however) that men& rea@g#ilty mind is not a %rere>#isite in all environmetal offences. *ome stat#tes re>#ire th>t the violator act Uwilf#llyV) knowinglyV or UnegligentlyV. These words are critical in determining whether the mental element is re>#ired to commit an offence.&- *tat#tory environmental offences may fall into one of three categories; "en& rea offencesE strict lia!ility offences where men& rea does not constit#te an element of the offence and %roof of the act%& re%& is s#fficient Bthe defendant may raise the defence of =honest and reasona!le mistake of fact=CE and a!sol#te lia!ility offences where men& rea %lays no %art and the %rosec#tor need only %rove the o!?ective elements of the offence. The defence of honest and reasona!le mistake is not availa!le for an a!sol#te lia!ility offence. &4 Under the (ommon ,aw) the r#le is that crimes re>#ire %roof of men& rea exce%t in cases of p%#lic n%i&ance, criminal and !las%hemo#s li#el, and criminal contempt o, co%rt. 1here the lia!ility arises #nder a &tat%te, there has !een considera!le inconsistency) with different r%le& o, con&tr%ction in &tat%tory interpretation %rod#cing varying inter%retations. 9owever) in -weet v ar&ley M&7 :N A( &4-) ,ord .eid laid down the following g#idelines for all cases where the offence is criminal as o%%osed to >#asi6criminal; Q 1herever a section is silent as to men& rea, there is a %res#m%tion that) in order to give effect to the will of Parliament) words im%orting men& rea m#st !e read into the %rovisionE Q If a %enal %rovision is reasona!ly ca%a!le of two inter%retations) the inter%retation most favo#ra!le to the acc#sed m#st !e ado%tedE
&:
For instance) the 1ildlife Act %rohi!its the ex%ort of tro%hiesE wild animals. *ee also 9eynold& "etal& (o. v ,am%ert) 4-5
F.-d.5'3 B7th (irc#it &7'4C where a manager of a %lant stated that it was chea%er to %ay claims than to control fl#orides and that is why the %lant failed to #se !etter fl#oride controls.
&&
Diminished access to water) %oll#tion of ha!itats) among others. This is the case in the United *tates. In 2*1 (ha%ter 3 of the Protection of the +nvironment O%erations Act &77
&-
B2*1C BP+O ActC categoriDes environmental offences committed #nder the Act as tier & offences) which involve men& rea. tier - offences) which are generally strict lia!ility offencesE and tier 4 offences) which are generally a!sol#te lia!ility offences. *ee 9ono#ra!le G#stice $rian G. Preston M-::'N) -.
&4
Preston M-::'N) on file with the a#thorC. *ee also 6e Kaw Beh v 9 B&7"3C &3 (,. 3-4) and s#mmarised in . v
/amp,ler B&7" C && 2*1,. 35& at 35' cited !y Preston M-::'N.
Q The fact that other sections of the Act ex%ressly re>#ire men& rea is not in itself s#fficient to ?#stify a decision that a section that is silent as to men& rea creates an a!sol#te offence. It is necessary to go o#tside the Act and examine all relevant circ#mstances in order to esta!lish that this m#st have !een the intention of Parliament. Therefore) the literal r%le i& :%ali,ied, and there i& a re#%tta#le pre&%mption that Parliament intended a men& rea to !e a re>#irement in any section) which creates an offence where the social stigma following conviction and the p%ni&hment availa!le to !e im%osed show this to !e a tr#ly criminal offence. In Gammon v $G ,or 6ong Kong B&7"3C A( &) ,ord *carman re!#tted the %res#m%tion !eca#se %#!lic safety was threatened. Therefore) stat#tes involving %oll#tion) dangero#s dogs) and acting as a director while dis>#alified have !een inter%reted as im%osing strict lia!ility. In Environment $gency 5,ormerly 1ational 9iver& $%thority7 v Empre&& Car Co. 5$#ertillery7 Ltd B&77"C - 1,.) 43:) exam%les are given of cases in which strict lia!ility has !een im%osed for =ca#sing= events that were the immediate conse>#ence of the deli!erate acts of
third %arties) !#t which the defendant had a d#ty to %revent or take reasona!le care to %revent. If words like =knowingly= or =wilf#lly= a%%ear in the section) the inference is that Parliament intended a men& rea re>#irement in that section. 9owever) if words im%lying a men& rea are %resent in some sections !#t not others) this s#ggests that Parliament deli!erately excl#ded a men& rea re>#irement in those sections) which are silent. In considering offences created in the (hildren Act &7':) ,ord 9#tton in I 5a minor7 v 8 %osition to !e;
the te&t i& not whether it i& a rea&ona#le implication that the &tat%te r%le& o%t men& rea a& a con&tit%ent part o, the crime 6 the te&t i& whether it i& a nece&&ary implication.
B-:::C & A+. "44 states the c#rrent
Th#s) the co#rt m#st examine the overall %#r%ose of the stat#te. If the intention is to introd#ce >#asi6criminal offences) strict lia!ility will !e acce%ta!le to give >#ick %enalties to enco#rage f#t#re com%liance. 9owever) if the %olicy iss#es involved are s#fficiently significant and the %#nishments more severe) the test m#st !e whether reading in a men& rea re>#irement will defeat Parliament8s intention in creating the %artic#lar offence. The iss#e seems to !e a concern that the defendants sho#ld not esca%e lia!ility too easily !y %leading ignorance) as this wo#ld not address the =mischief= that Parliament was attem%ting to remedy. In 9. v 9o#ert $2emia and Or&, the *#%reme (o#rt of *eychelles held that #nlawf#l %ossession of t#rtle meat contrary to section 4 of the 1ild Animals BT#rtlesC Protection reg#lations #nder the 1ild Animals and $irds Protection Act was a strict lia!ility offence !earing in mind the %#r%ose of the law in >#estion. The co#rt concl#ded that any offence involving %oll#tion of the environment) destr#ction or de%letion of marine reso#rces and the %rotected
fa#na and flora is an indirect assa#lt on the right to life enshrined in the co#ntry8s constit#tion as a
f#ndamental right as well as constit#ting a social evil) which the reg#lation #nder the Act seeks to deal with.&5 F#rther) the co#rt was of the view that the defendant co#ld easily evade the %rohi!ition if the a!sence of men& rea was allowed as a defence.&3 This arg#ment has !een %#shed f#rther !y assertions that 8%#!lic disa%%roval of vario#s forms of !ehavio#r may !e marked !y the #se of sanctions witho#t %roof of fa#lt8E that 8!#siness %eo%le o#ght not %oll#te rivers and if they do so) they sho#ld !e made to %ay irres%ective of whether they knew that the emissions co#ld have contained %oll#tants8E and 8the doctrine Bof strict lia!ilityC o!liges %eo%le to ado%t high standards8.&' There are) however) views that strict lia!ility does not necessarily raise standards.& There is also a case to !e made for considering the a%%lication of strict lia!ility within the context of fairness to the acc#sed %erson #nder section AA of the 0enyan constit#tion) for instance. +/(A designation of offences #nder it as strict lia!ility offences removes the am!ig#ity that ,ord *carman was dealing with a!ove. There are) however) still many environmental offences #nder sectoral laws that re>#ire inter%retation of the co#rt with regard to the nat#re of lia!ility. This is an iss#e that sho#ld !e addressed in review of sectoral laws to align them with +/(A. $e that as it may) there is a !ody of environmental criminal law consisting of the aggregation of interrelated %rovisions that address certain kinds of cond#ct that are core to environmental
concerns. The offences may !e characterised as s#!stantive or administrative. *#!stantive environmental crimes incl#de discharging %oll#tants into the air or water and storing or trans%orting haDardo#s waste in violation of a stat#te) reg#lation or %ermit. Administrative environmental crimes consist of fail#re to com%ly with administrative re>#irements im%osed !y law. These involve omissions s#ch as failing to s#%%ly re>#ired information) failing to notify the government of a re%orta!le event or to monitor discharges) or acts of commission s#ch as s#!mitting a false re%ort or tam%ering with or disa!ling a monitoring device. Administrative crimes interfere with the government8s a!ility to monitor %oll#tion6creating activity and %oll#tion itself. Permit violations can lie somewhere in !etween. The %ermit system is the organisational ca%stone of m#ch of environmental reg#lation. Permits are needed to lawf#lly discharge %oll#tants into the environment or to store) trans%ort) or dis%ose of haDardo#s waste. Activities that violate the terms and conditions of a %ermit ordinarily constit#te s#!stantive environmental crimes. Th#s) for exam%le) while a %ermit might allow the discharge of wastewater containing
&5 <ovinden &3 *ee
M-::'N.
also Gammon v $.G.,or 6ong Kong B&7"3C A( &. M-::'N.
&' <ovinden &
Dickson G., in the *#%reme (ity (o#rt of (anada8s case of (ity of *a#lt *te /arie M&7 "N "3 D,. B4dC &'&) >#oted
in<ovinden M-::'N.
min#sc#le amo#nts of lead) discharging wastewater containing large amo#nts wo#ld violate !oth the %ermit and the s#!stantive %rohi!ition against releasing large >#antities into the sewer. +ngaging in reg#lated activity witho#t first o!taining the re>#isite %ermit co#ld fall within
either gro#%) de%ending on the circ#mstances of the case. 1hile one who engages in an activity for which a %ermit wo#ld have !een iss#ed had it !een so#ght Bs#ch as discharging ade>#ately treated wastewater into the sewerC wo#ld fail to com%ly with an administrative re>#irement) one who engages in activity for which a %ermit wo#ld not have !een iss#ed had it !een so#ght Bs#ch as discharging #ntreated wastewater into the sewerC wo#ld violate a s#!stantive %rohi!ition. &" International Environmental Criminal Law 1hile environmental miscond#ct increasingly extends !eyond the national !orders) and international law has now develo%ed a !ody of law designated as international law) the %rinci%le of territoriality makes effective enforcement of %enal %rovisions in m#ltilateral environmental agreements a reserve of m#nici%al law. /ost m#ltilateral environmental agreements contain %enal %rovisions co#ched in different ways. *ome re>#ire *tates %arties to develo% a%%ro%riate national legislation to ens#re the a%%lication of the agreements and to %#nish infractions against their %rovisions.&7 Others re>#ire the enactment and enforcement of legislation necessary to effect#ate their %rovisions with 8a%%ro%riate %enalties for violation thereof. *ome go even f#rther !y %roviding that violations 8shall !e an offence %#nisha!le #nder the law of the territory in which the shi% is registered8.-: *ome agreements ex%ressly recogniDe their deterrent f#nction B8the %enalties s%ecified #nder the law of a %arty shall !e ade>#ate in severity to disco#rage violations of the %resent (onvention8.-& The $amako (onvention) for instance) %rovides that;
Each -tate &hall introd%ce appropriate national legi&lation ,or impo&ing criminal penaltie& on all per&on& who have planned, carried o%t, or a&&i&ted in &%ch illegal import&. -%ch penaltie& &hall #e &%,,iciently high to p%ni&h and deter &%ch cond%ct.
*ome conventions also contain %olicing %rovisions) allowing %arties to take action on the s%ot to enforce r#les of the agreement. They may %rovide for seiD#re of %ersons ca#ght in violationE-- maintenance of g#ards or some controlE-4 and instit#tion of ins%ectors a#thorised to
&" $rickey
&7
M&77'N.
For instance) The $asel (onvention on the (ontrol of Trans!o#ndary /ovements of 9aDardo#s 1astes re>#ires
%arties to 8consider illegal traffic in haDardo#s wastes and other wastes to !e criminal8 and to introd#ce national legislation to %revent and %#nish illegal traffic.
-:
International Convention ,or the revention o, oll%tion o, the -ea #y Oil. U2(,O*E $amako (onvention !anning im%ort into and movement within Africa of haDardo#s waste. Convention ,or the re&ervation o, F%r -eal& in the 1orth aci,ic, Article &)&7&&. I#id, Article A,&7&&.
-&
--
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search.-5 The net effect of these %rovisions is to %rohi!it or %revent environmental violations and %#nish %er%etrators of s#ch violations. The +#ro%ean Union has an ex%licit Convention on the rotection o, the Environment thro#gh criminal law) which was concl#ded in &77". It defines 8#nlawf#l8 to mean infringing a law) an administrative reg#lation or a decision taken !y a com%etent a#thority) aiming at the %rotection of the environment. This ca%t#res the s#!stantive and administrative as%ects of the offence. The (onvention o#tlines !oth intentional and negligent offences. Intentional offences incl#de; BaC discharge) emission or introd#ction of a >#antity of s#!stances or ionising radiation into air) soil or water) which ca#ses death or serio#s in?#ry to any %erson) or creates a significant risk of ca#sing death or serio#s in?#ry to any %ersonE B!C #nlawf#l discharge) emission or introd#ction of a >#antity of s#!stances or ionising radiation into air) soil or water) which ca#ses or is likely to ca#se their lasting
deterioration or death or serio#s in?#ry to any %erson or s#!stantial damage to %rotected mon#ments) other %rotected o!?ects) %ro%erty) animals or %lantsE BcC #nlawf#l dis%osal) treatment) storage) trans%ort) ex%ort or im%ort of haDardo#s waste) which ca#ses or is likely to ca#se death or serio#s in?#ry to any %erson or s#!stantial damage to the >#ality of air) soil) water) animals or %lantsE BdC #nlawf#l o%eration of a %lant in which a dangero#s activity is carried o#t and which ca#ses or is likely to ca#se death or serio#s in?#ry to any %erson or s#!stantial damage to the >#ality of air) soil) water) animals or %lantsE BeC #nlawf#l man#fact#re) treatment) storage) #se) trans%ort) ex%ort or im%ort of n#clear material or other haDardo#s radioactive s#!stances) which ca#ses or is likely to ca#se death or serio#s in?#ry to any %erson or s#!stantial damage to the >#ality of air) soil) water) animals or %lants. 2egligent offences #nder the (onvention incl#de the ones en#merated a!ove when committed thro#gh negligence. Other criminal offences Badministrative offencesC are; BaC the #nlawf#l discharge) emission or introd#ction of a >#antity of s#!stances or ionising radiation into air) soil or waterE B!C the #nlawf#l ca#sing of noiseE BcC the #nlawf#l dis%osal) treatment) storage) trans%ort) ex%ort or im%ort of wasteE BdC the #nlawf#l o%eration of a %lantE BeC the #nlawf#l man#fact#re) treatment) #se) trans%ort) ex%ort or im%ort of n#clear
-5
International $greement ,or the 9eg%lation o, /haling, Article &)&74 .
materials) other radioactive s#!stances or haDardo#s chemicalsE BfC the #nlawf#l ca#sing of changes detrimental to nat#ral com%onents of a national %ark) nat#re reserve) water conservation area or other %rotected areasE BgC the #nlawf#l %ossession) taking) damaging) killing or trading of or in %rotected wild flora and fa#na s%ecies. Parties are re>#ired to ado%t s#ch a%%ro%riate meas#res as may !e necessary to esta!lish as
criminal offences #nder their domestic law aiding or a!etting the commission of any of these offences. This #nderscores the role of national law in delineating criminal activity or cond#ct. On ?#risdiction) it re>#ires %arties to ado%t a%%ro%riate meas#res to esta!lish ?#risdiction over environmental criminal offences in its territory) on shi%s or aircraft) among others. The African /odel ,aw on *afety in $iotechnology) concl#ded in -::& to assist African co#ntries in %#tting in %lace reg#latory mechanisms for !iosafety incl#des a list of activities that are criminalised at Article &3;-3 Q Im%ortation) release) %lacement on the market or contained #se of any genetically modified organism or %rod#cts thereof witho#t the written a%%roval of the (om%etent A#thorityE Q Fiolation of any conditions attached to the grant of a%%rovalE Q Fail#re to f#rnish any information as re>#ired !y the lawE withholding information availa!le to a %erson after the a%%roval of her@ his@ its a%%lication that co#ld change the eval#ation of the risk %osed !y her@his@its %ro?ectE Q Providing false) misleading or dece%tive information in order to sec#re an a%%rovalE Q Fail#re to la!el) %ackage or identify any genetically modified organism or a %rod#ct thereof with the law or any conditions im%osed #nder the lawE Q False) misleading or deceptive la#elling, %ackaging or identifying of any genetically modified organism or a %rod#ct thereofE Q +x%orting a genetically modified organism or a %rod#ct thereof witho#t the advance informed agreement o, the importing co#ntryE Q Partici%ating in %roceedings related to decision taking in res%ect of a s#!?ect matter covered !y this law in which s@he@it has any direct or indirect interest of any kindE and Q Fail#re to declare any conflict of interest arising in a national or instit#tional !iosafety committee of which s@he is a mem!er) or in the eval#ation of a risk
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Phtt%;@@www.africa!io.com@%olicies@/OD+,R-:,A1R-:O2R-:$IO*AF+TJSff.htmT BAccessed on -: /av -:: C.
assessment in which s@he is involved and fail#re to withdraw from its activities in relation to that case. The /odel ,aw %rovides for fines and im%risonment as %ossi!le %enalties for infractions witho#t giving s%ecific extent of those fines and im%risonment terms. It is noteworthy that the criminal %rovisions are very extensive) covering a host of actions. African co#ntries) incl#ding 0enya) have #sed the /odel ,aw in drafting their national !iosafety laws and incl#ded criminal %enalties for infractions. The 0enya Draft $iosafety $ill makes withholding of information an offenceE contained #se of) release into the environment) %lacement on the market) im%ortation or ex%ortation of a genetically modified organism witho#t the a%%roval of the A#thorityE -' contravention of any conditions attached to an a%%rovalE fail#re to f#rnish any information as re>#iredE #se of any confidential information for any a#thorised %#r%oseE #se of a genetically modified organism for mischievo#s or #nethical %#r%osesE and o!str#ction or fail#re to assist the A#thority or officers of the A#thority in the %erformance of their d#ties offences %#nisha!le !y fines not exceeding one million shillings or im%risonment for a term not exceeding three years.-en&an Situation Se!to al La-s 0enya has #tilised criminal law sanctions to enforce environmental management over the years) even witho#t the #se of the term environmental criminal law. /any of the environmental
legislations s#ch as those on forests) wildlife and water have %enal sanctions to enforce com%liance. For instance) #nder Article 3B-C of the 1ater Act -::-) 8any %ermit holder who fails to com%ly with the %rovisions of this %aragra%h shall !e g#ilty of an offence8 and a %erson who neglects or fails to com%ly with any order or re>#irement given or im%osed on him !y or #nder the Fo#rth *ched#le dealing with a!straction of water 8shall !e g#ilty of an offence and lia!le on conviction to a %enalty not exceeding one h#ndred tho#sand shillings8. *imilarly) the 1ildlife and Forestry Acts criminalises illegal taking of %rod#cts s%ecified in the Acts. The following are offences #nder the 1ildlife B(onservation and /anagementC Act) (a%. 4 'E Q 9#nting in a national %arkE Q .esiding in a national %ark otherwise than in the co#rse of d#tyE Q Fail#re to re%ort %ossession of a tro%hy to the governmentE Q Im%ortation of ele%hant ivory or rhinoceros hornE and
-'
*ection -" of Draft $ill M-::3N) on file with the a#thor. I#id. *ection 54.
Q 0ee%ing animals in ca%tivity witho#t a %ermit. Under the Forestry Act -::3) offences incl#de #nlawf#l mining and >#arrying in forests and destr#ction of or interference with trees %rotected !y the President. Under the *eeds and Plant Farieties8 Act-") offering for sale seed that fails to meet the re>#isite standards or has !een re?ected at any seed ins%ection stage and intentionally tam%ering with seed lots and seed sam%les are offences.
A n#m!er of %rosec#tions have !een made #nder the P#!lic 9ealth Act for n#isance -7 and non6com%liance with demolition orders.4: +nvironmental ,anagement and Co-ordination .ct The +nvironment /anagement and (o6ordination Act B+/(AC makes %rovision for !oth s#!stantive as well as administrative offences. *#!stantive offences incl#de; BaC Discharge of any %oison) toxic) noxio#s or o!str#cting matter) radioactive waste or %oll#tants into the a>#atic environment in contravention of the water %oll#tion control standards B*ection -CE B!C Discharge and dis%osal of any wastes in a manner that ca#ses %oll#tion to the environment or ill health to any %erson B*ection " CE BcC O%eration of a motor6vehicle) train) shi%) aircraft or other similar conveyance in a manner that ca#ses air %oll#tion and im%orting any machinery) e>#i%ment) device) or similar thing that will ca#se emissions into the am!ient air in contravention of %rescri!ed emission standards B*ection "-CE BdC Discharge of haDardo#s s#!stance) chemical) oil or mixt#re containing oil into any waters or any other segments of the environment B*ection 74CE BeC Dis%osal of %esticides or toxic s#!stances into the environment B*ection 7"CE and BfC Im%ortation of haDardo#s waste. Administrative offences incl#de; BaC O%eration of a waste dis%osal site witho#t a licence B*ection )A7. and B!C +x%ortation from and trans%ortation within 0enya of haDardo#s waste witho#t a %ermit B*ection 7&C.
-"
(ha%ter 4-' of the ,aws of 0enya. *ee Iarclay& Iank o, Kenya v City Co%ncil o, 1airo#i, re%orted in B-::'C 0enya ,aw .e%orts B+nvironment and
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,andC '43 determining the >#estion whether fail#re to re%aint %remises is an offence #nder section &&" of the P#!lic 9ealth Act) (ha%ter -5- of the ,aws of 0enya and holding that it did notE "%rnir v 9ep%#lic on %ossession of food in diseased and #nwholesome condition witho#t lawf#l exc#se #nder section &4& of the P#!lic 9ealth Act (ha%ter -5-E and in eter /awer% v Bhe 9ep%#lic, 9igh (o#rt of 0enya at 2airo!i) /iscellaneo#s (ivil A%%lication 2o. &&" of -::5.
4:
K$9$ v City Co%ncil o, 1airo#i (riminal A%%eal 2o. 4 4 of &73' re%orted in B-::'C 0enya ,aw .e%orts
B+nvironment and ,andC 4".
Part OIII of the +nvironment /anagement and (o6ordination Act B+/(AC incl#des %rovisions on additional environmental offences. These incl#de offences relating to ins%ection B*ection &4 CE offences relating to +nvironment Im%act Assessment B+IAC B*ection &4"CE offences relating to records B*ection &47CE offences relating to standards B*ection &5:CE offences relating to haDardo#s wastes) materials) chemicals and radioactive s#!stances B*ection &5&CE offences relating to %oll#tion B*ection &5-CE and offences relating to environmental restoration orders) easements and conservation orders B*ection &54C. Fines of #% to two million shillings and im%risonment for #% to two years are %rescri!ed for the %roscri!ed activities or cond#ct=. *ection &53 deals with lia!ility of cor%orations. It states that;
/hen an o,,ence again&t the $ct i& committed #y a #ody corporate, the #ody corporate and every director or o,,icer o, the #ody corporate who had knowledge or who &ho%ld have had knowledge o, the commi&&ion o, the o,,ence and who did not e<erci&e d%e diligence, e,,iciency and economy to en&%re compliance with thi& $ct, &hall #e g%ilty o, an o,,ence.
Im%#ting lia!ility on the %art of directors and officers of the !ody cor%orate makes them %#t in %lace mechanisms for environmental com%liance and forestall the %ossi!ility of %assing the cost of non6com%liance to cons#mers. The Act also makes it an offence for anyone to violate a %rovision of the Act or reg#lation #nder the Act) and for this a general %enalty of either #% to &" months ?ail term) a fine of #% to 0sh 43:)::: or !oth is %rovided B*ection &55C. It is noteworthy that environmental offences #nder +/(A are strict lia!ility offences. The %rosec#tion does not have to esta!lish the defendant8s state of mind as an element of the offence.
Proof of the act%& re%& of the offence will s#ffice. In addition to fines and im%risonment) +/(A also incl#des innovative %#nishments s#ch as; BaC Payment for the cost of cleaning the %oll#ted environment and removing the ca#se of %oll#tion B*ection &5-B-BBaCC B!C Forfeit#re of the s#!stance or e>#i%ment #sed to commit an offence to the *tate BcC (ancellation of licence BdC Payment of the cost of dis%osal of s#!stance or e>#i%ment forfeited to the *tate BeC .estoration of the environment 0enyan co#rts have increasingly had to inter%ret the %rovisions of +/(A. In the case of Gathoni v 9ep%#lic, it wa& held that fail#re to o!ey an order of the District +nvironmental (ommittee is not an offence #nder the Penal (ode8s section &4&) which deals with fail#re to o!ey a lawf#l order. In the G#dge8s o%inion) this section of the Penal (ode a%%lies in sit#ations where %#!lic %eace and harmony were at risk. A closer reading of the decision s#ggests that the G#dge8s o%inion was informed !y the fact that +/(A had %rovisions dealing with infractions #nder it and
that !ringing the action #nder the Penal (ode was erroneo#s. 4& Lessons from 3ther 4urisdictions Co (o ate l%ab%l%t' As cor%orations have legal %ersonality) like h#man !eings) they are ca%a!le of inc#rring criminal lia!ility either directly) vicario#sly or accessorily. 4- The general %rinci%le of cor%orate criminal lia!ility stems from the decision of the United 0ingdom 9o#se of ,ords in Be&co -%permarket& Ltd v
1attra&& LGDA'M $C G@0, which stated that a cor%oration wo#ld only !e held lia!le if its to% level management) or those who re%resent the =directing mind and will of the enter%rise=) exhi!it the re>#ired degree of fa#lt) as it is only those %eo%le who are =s%eaking or acting for the com%any= Bat & :C. If one or more of these managers has a g#ilty mind) then that g#ilt will !e im%#ted as the g#ilt of the com%any. 44 +nvironmental legislation is relatively to#gher on cor%orations than other areas of law. In many criminal %rosec#tions against cor%orations) the target is not only the com%any em%loyees who engaged in im%ro%er activities !#t also any high6 level cor%orate officers aware of the activities. A %ro!lem may arise where the officer in >#estion does not %ossess s#ch knowledge. In 2ew *o#th 1ales) directors and other officers of cor%orations can !e held %ersonally lia!le for environmental offences committed !y the cor%oration. In effect) this means that the cor%oration and the relevant officer@s can !e fo#nd g#ilty of the same offence. 45 In ?#risdictions s#ch as the United *tates of America) it does not matter whether or not an officer has knowledge of the offence !eing committed. In the early days of environmental reg#lation) violations carried insignificant civil fines as %enalties. 43 Under this regime) cor%orations had little incentive to com%ly with environmental laws as it was more cost6 effective to contin#e to %oll#te more than the law allowed and sim%ly %ay the fine Bif the cor%oration was
act#ally ca#ght violating the lawC.4' Over the co#rse of the &7":s) (ongress) the De%artment of G#stice BDOGC) and the +nvironmental Protection Agency B+PAC realised that a more stringent enforcement regime was necessary to ens#re com%liance with environmental laws. 4 Towards this end) (ongress increased the com%lexity of the reg#latory regime and raised many violations from misdemeanors to felonies.4" This has led to >#estions regarding the %ro%riety of #sing the %#!lic
4&
(riminal A%%eal 2o. -7 of -::5 re%orted in B-::'C 0enya ,aw .e%orts B+nvironment and ,andC '7E *ee Preston M-::'N. I#id. I#id. *ee ,aD#r#s M&773N. Adler K ,ord M&77&N. *ee ,aD#r#s M&773N. (lean Air Act Amendments of &77:.
4-
44
45
43
4'
4"
welfare offense rationale in environmental cases where the government has needed to %rove only minimal facts for criminal conviction in environmental cases. The *#%reme (o#rt seems ready) in a%%ro%riate environmental felonies8 %rosec#tion) to re>#ire the government to demonstrate the defendant8s knowledge of more material facts that define the elements of an offence than the lower co#rts. The DOG esta!lished an +nvironmental (rimes *ection) and the +PA was allowed to increase the n#m!er and legal %owers of its environmental investigators. 47 The theory was) and remains) that witho#t criminal sanctions) incl#ding heavy fines and occasionally the im%risonment of cor%orate officers) cor%orations wo#ld contin#e to treat environmental violations as a =cost of
doing !#siness.=5: The DOG and +PA were very s#ccessf#l even in the formative years of criminal enforcement. From &7"4 to &77:) the DOG assessed a total of X3 )43")5:5 in criminal %enalties and o!tained sentences of im%risonment for 33 %er cent of criminal defendants. 5& P#!lic reaction towards environmental crime also ste%%ed #% the %ress#re to o!tain stiff er %enalties. In one s#rvey of %#!lic %erce%tion of the severity of vario#s crimes) environmental crime ranked seventh Ba!ove armed ro!!eryC and other serio#s crimes. 5- Th#s) for nearly two decades) the %revailing view%oint Band %rosec#torial standardC has !een to %#nish the cor%oration as a criminal. Increasingly) this has also entailed the #se of criminal sanctions against individ#al officers of these cor%orations.54 In Enited -tate& v Koch Ind%&trie&, the DOG indicted 0och Ind#stries and fo#r of its cor%orate officers on 7 co#nts of violating federal and *tate environmental laws. 0och8s %rimary offense involved the release of 7& metric tons of the carcinogen !enDene) a!o#t fifteen times the federal limit) from a refinery in (or%#s (hristi) Texas. The DOG8s 44 %age indictment alleged that 0och and its officers had engaged in a cons%iracy to violate the law and to cover #% the violations) all in the name of cor%orate %rofita!ility. According to 0och) the com%any tried to com%ly with federal reg#lations. As %art of that effort) it installed a thermal oxidiDer to convert the !enDene into car!on dioxide and water. The e>#i%ment did not o%erate %ro%erly) however) and 0och claimed that an em%loyee had concealed that information from the com%any. Unaware of the %ro!lem) 0och s#!mitted re%orts to federal and local officials stating that the %lant was in com%liance with the reg#lations. 1hen 0och discovered the em%loyee8s actions) the em%loyee
was fired immediately. The fo#r officers charged in the indictment claimed no knowledge of the violations) insisting that they had no idea that the factory was not in com%liance and) f#rthermore)
47
*tarr M&77&N. *mith M&77-N. *tarr M&77&N. *ee $rickey M&77'N) *tarr M&77&N.
5:
5&
5-
54
that they had no way of knowing that the thermal oxidiDer was not f#nctioning %ro%erly. 0och maintained that the %#!lic health was never endangered and that tests showed that !enDene in the atmos%here remained within safe levels. The DOG8s laws#it set the stakes extremely high. 0och Ind#stries faced maxim#m civil fines of X5".3 million and federal criminal fines #% to X43million. /oreover) each of the cor%orate officers individ#ally faced fines of at least one million dollars and !etween -: to 43 years in %rison #nder the res%onsi!le cor%orate officer doctrine and for violations of *tate environmental stat#tes. After months of legal wrangling !y !oth sides) the District G#dge ordered the co#nts red#ced from 7 to 7) acc#sing the DOG of do#!ling #% on many of the co#nts. The citiDens of (or%#s (hristi W those in the %osition most likely harmed !y the violationWgenerally s#%%orted 0och and wondered why it had !een singled o#t for %rosec#tion. In the end) the DOG acce%ted a settlement in which 0och wo#ld %ay X-: million; X&: million in fines and X&: million in com%ensation to (or%#s (hristi. In ret#rn) the DOG agreed to dro% all charges against the cor%orate officers.
-entencing Prior to &7"5) federal ?#dges en?oyed wide discretion in sentencing decisions. (oncerns over #nconstrained ?#dicial discretion and sentence dis%arities for similar crimes %rovided the im%et#s for the *entencing .eform Act of &7"5. The Act esta!lished sentencing g#idelines to limit the range of acce%ta!le sentences federal ?#dges co#ld im%ose on convicted defendants. Under the g#idelines) a ?#dge m#st a%%ly the sentence corres%onding to the %artic#lar criminal offense for which the defendant has !een convictedE a ?#dge8s discretion to determine the length of a sentence is limited to the narrow range set o#t !y these federal g#idelines. In A%ril -::4) (ongress so#ght to red#ce federal ?#dicial discretion in sentencing criminals from this range thro#gh the %assage of the P.OT+(T Act. A section of this Act) termed the Feeney Amendment) limits the federal ?#diciary8s %ower to de%art and re>#ires re%orts to (ongress on any ?#dge who de%arts downward from the sentencing g#idelines. *even federal environmental stat#tes c#rrently contain %rovisions for criminal %enalties. *entencing of these environmental crimes committed !y individ#als is governed !y (ha%ter -) %art I of the <#idelines. The recommended sentence reflects a grading system !ased %rimarily on the severity of harm ca#sed !y the violation and the mental state of the violator. This scheme creates three categories of environmental offenses; knowing endangerment)
knowing or willf#l violations of reg#latory re>#irements) and negligence. The sentence) however) can !e enhanced or red#ced at the discretion of the co#rt !ased on s%ecific characteristics %rovided !y the sentencing g#idelines.
Con!l+s%on an* Wa' Fo -a *

The exigencies of environmental law enforcement demand the #se of all availa!le mechanisms.
There is arg#a!ly need to !alance incentives BcarrotsC to elicit com%liance with and command and control mechanisms BsticksC in the interest of environmental s#staina!ility. This necessitates a framing of enforcement mechanisms that yield o%timal com%liance. For instance) the criminallisation of !ehavio#r that constit#tes %eo%le8s lifelines) s#ch as collecting forest %rod#ce) makes %eo%le resent the legal %rovisions and a!ets violation of law. Additionally) s#ita!le mechanisms o#ght to !e %#t in %lace to address environmental miscond#ct that extends !eyond national !orders d#e to the dictates o, territorial sovereignty. Tho#gh international law is re%lete with exam%les of %enal %rovisions) it relies on m#nici%al instit#tions to enforce them) #nderscoring the central role that national instit#tions %lay in the >#est for s#staina!le develo%ment. There is a growing !ody of criminal environmental law. In ?#risdictions s#ch as the United *tates of America) Ga%an and A#stralia) law enforcement !odies have inter%reted existing normative %rovisions of environmental law and have come #% with g#iding %rinci%les on the a%%lication of criminal law for enforcing environmental law. 0enya can !orrow a leaf from s#ch ?#risdictions in the >#est to innovatively #se criminal law for s#staina!le develo%ment. The
classification in A#stralia of men& rea, strict lia!ility and a!sol#te lia!ility offences is instr#ctive in this regard. (larity on the defences availa!le) the re>#isite standard of %roof) the !earer of the !#rden of %roof on s%ecific iss#es) so#rces of lia!ility and sentencing %rinci%les wo#ld go a long way in making criminal law an effective tool for enforcing criminal law in 0enya. The existence of international %rovisions on environmental crimes also %rovides a good !asis for !#ilding on the nascent environmental criminal law in 0enya. It is) however) inc#m!ent #%on #s to determine the %#rview of criminal environmental law in the enforcement of environmental law. At a %ractical level) it is im%ortant to synchronise %enalties #nder +/(A with %enalties #nder sectoral laws to ens#re consistency in sentencing and alignment of older %enal %rovisions with c#rrent trends and develo%ments. This sho#ld also !e linked to sensitiDation of criminal law enforcement agents to ens#re that environmental crimes are a%%ro%riately and com%etently dealt with. It is im%ortant to %oint o#t that environmental criminal cases that are wrongly %rosec#ted can delay action in cases demanding immediate attention. Defective charges and fail#re to %roof a matter to the re>#isite standard are iss#es that have affected %rosec#tions #nder the re%ealed Forests Act) (a%. 4"3 and the P#!lic 9ealth Act) (a%. -5-. In the 1awer# (ase cited a!ove) for instance) the fail#re of the P#!lic 9ealth Officer to follow the re>#ired %roced#res led to the >#ashing of criminal %rosec#tions against the offenders even tho#gh the %residing ?#dges descri!ed the iss#e of sewerage at hand as 8a ticking time !om!8.
The re>#irement for %roof !eyond reasona!le do#!t can also !e %ro!lematic for environmental cases where %reca#tion is the r#le.
Chapter 5
Background to -en&a6s Framework Environmental Law

(9A.,+* O. O0IDI
Introduction
0enya8s framework environmental law) the +nvironmental /anagement and (o6ordination Act) was enacted !y Parliament after a lengthy !#t cordial de!ate) in &777. This cha%ter ex%lains the %rocess that led to the $ill) witho#t ex%loring the s#!stantive as%ects of the Act disc#ssed in (ha%ter '. At the end of this cha%ter) we sho#ld !e clear =whose law= it act#ally is) given the contem%orary sensitivity that environmental matters sho#ld !e !roadly6!ased and involve %#!lic %artici%ation as is #rged in Princi%le &: of .io Declaration of Princi%les. 1as the draft develo%ed and disc#ssed !y different stakeholdersL This is a fact which sho#ld enhance acce%ta!ility of the new law. Finally) it sho#ld !e clear if develo%ment of the law was advised !y different com%arative exam%les) even if it is to !e a 0enyan law. The section) entitled =+arly Ad?#stments=) ex%lains what %rom%ted early initiatives in develo%ment of environmental tho#ght) the origins of modern %rinci%les and how 0enya took on
the initiative to commence develo%ment of environmental law. It is in that context that we introd#ce the false start to develo% 2ational +nvironment +nhancement and /anagement $ill in &7"& !y the 2ational +nvironment *ecretariat B2+*C. After that effort failed) the administrative 2+*) witho#t significant legislative a#thority) went silent over %ros%ects for a framework law for a decade. The new initiatives) which were started !y the 0enya /ission to U2+P) !#t significantly driven !y the Office of the Attorney6<eneral al!eit with some co6ordinating role of 2+* are also disc#ssed. A n#m!er of seemingly %arallel tracks and gro#%s that logistically involved overla%s in mem!ershi% introd#ced considera!le consens#s leading to the draft !ill readily within the Attorney6<eneral8s domain and easily %re%ared for Parliament. There were considera!le consens#s6!#ilding initiatives in this %rocess) and these commenced with the initial %re%arations. The final section s#mmarises the de!ate in Parliament and %rovides highlights of what the lawmakers considered as the key attri!#tes of the $ill. $y its nat#re) this cha%ter is more descri%tive and narrative rather than analytic.
Earl& Ad7ustments A $lobal,o)e )%eThe general environmental setting moved from its %ristine setting grad#ally) often im%erce%ti!ly) over cent#ries. Po%#lation growth) with associated cons#m%tion and settlement) as well as #ncontrolled a%%lication of technology grad#ally threatened the threshold of s#staina!ility and
re>#ired ?#ridical interventions to either enforce or ind#ce a !alance. It !ecame increasingly clear that the traditional ?#ridical arrangements !ased on enhancement of %rod#ction and cons#m%tion) with command and control reg#latory arrangements) were manifestly inade>#ate to deal with the threat to environmental s#staina!ility. It was in fact the %#!lications of %o%#lar o!servers in the &7':s that stirred attention and com%elled the %#!lic to %ay attention to ra%id deterioration of the environment. & A few scientific st#dies) s#ch as The *t#dy of (ritical +nvironmental Pro!lems) - raised awareness on the scientifically inclined glo!al comm#nity. The tr#ly r#de awakening) %artic#larly in the western world) sym!oliDed !y the United *tates) was the com!ination of #r!an filth and s>#alor. This was com%o#nded !y forces of %overty and racism) which led to ex%losion of violence in #r!an centres s#ch as Detroit) 9arlem) 1atts) /o!il and 2erwark) all in the &7':s. It !ecame ra%idly clear that environmental %ro!lems re>#ired com%rehensive attention at !oth glo!al and national levels. The re%resentative of *weden introd#ced the %ro!lem of h#man environment at the United 2ations <eneral Assem!ly in &7'". $y U2 <eneral Assem!ly .esol#tion -47" BOOIIIC on 4 Decem!er &7'") it was o!served that there was a =...contin#ing and accelerating im%airment of the >#ality of h#man environment ca#sed !y s#ch factors as air and water %oll#tion) erosion and other forms of soil deterioration) waste) noise and the secondary effects of !iocides) which are accent#ated !y ra%idly increasing %o%#lation and ra%id
#r!anisation=. In %ream!#lar %aragra%hs) the .esol#tion stressed that the increasing environmental degradation was #ndermining the h#man well6!eing) his dignity and en?oyment of h#man rights. As a conse>#ence) there was a need for intensified action at national) regional and international levels) as a matter of #rgency. Therefore) !y that .esol#tion) the U2 <eneral Assem!ly decided to convene a United 2ations (onference on 9#man +nvironment. 4 Th#s) %re%arations commenced towards what is well6known as the *tockholm (onference of G#ne &7 -. Thro#gh its Princi%les) the *tockholm (onference #shered a new e%och in develo%ment of environmental law) %artic#larly in treaty law. At the national level) there was #nderstanda!ly committed search for a new legal order of
&
*ee) for instance) (arsons M&7'- NE /arie M&7'7NE /arx M&7' NE 1ard K D#!os M&7 -N. *t#dy of (ritical +nvironmental Pro!lems M&7 :N. The details of this !ackgro#nd may !e fo#nd in a n#m!er of so#rces) incl#ding United 2ations M&7'"; 5 465
or United 2ations M&7 &; :6 3N.
environmental %rotection in the United *tates of America. The U* (ongress had commissioned two st#dies from which they were to disc#ss and extra%olate some of the feat#res of %resent6 day framework environmental laws) in general) and environmental im%act statements) in %artic#lar. One of the ex%erts s#ggested that (ongress create a legal regime that forces action on the %art of each de%artment in the exec#tive !ranch of government. 9e said.
4I wo%ld %rge that in &haping &%ch a policy, it ha& an action!,orcing, operational a&pect. /hen we &peak o, the policy we o%ght to think o, a &tatement which i& &o written that it i& capa#le o, implementation. that i& not merely a &tatement o, thing& hoped ,or. it i& a &tatement that will compel or rein,orce or a&&i&t all the&e thing&, the e<ec%tive in partic%lar, #%t going #eyond thi&, the 1ation a& a whole, to take the kind o, action which will protect and rein,orce what I have called the li,e &%pport &y&tem o, thi& co%ntry.4?
In agreeing with the cons#ltant *enator 9enry Gackson) the (hairman of the legislative committee concl#ded that=.. .realistically what is needed in restr#ct#ring the governmental side of this %ro!lem is to legislatively create those sit#ations that will !ring a!o#t an action6enforcing %roced#re the de%artments m#st com%ly with=. It was in the rigoro#s interrogation of these ideas that the congressional committee %ro%osed) first) the conce%t of +nvironmental Im%act Finding and later settled for +nvironmental Im%act *tatement B+I*C) which was the cornerstone of the 2ational +nvironmental Policy Act B2+PAC of &7'7. Altho#gh 2+PA was not to !e a framework environmental law as s#ch) its main feat#res of +I* and the ?#ridical arrangement) which is action6enforcing and !inding on all de%artments of the government) ca%t#red imagination of those who were concerned with environmental governance glo!ally. Framework environmental laws) with +I* as a central com%onent) were enacted in (anada) western +#ro%e) (hina and Ga%an. In Africa) the trend ca#ght on a!o#t a decade later with the earliest framework environmental laws in ,i!ya B&7"-C) Algeria B&7"4C) *enegal B&7"4C and TanDania B&7"4C. The im%ortant %oint is that these stat#tes were of different degrees of
so%histication. For instance) the TanDanian 2ational +nvironmental /anagement Act BAct 2o. &7C of &7"4 had) as its main feat#res) re>#irement for environmental im%act assessment enforced !y a 2ational +nvironment /anagement (o#ncil) #nder a Director6<eneral. There were no other str#ct#res exce%t for financial arrangements. The system hardly worked as a framework law) leaving a conflict6laden mechanism that took two decades to correct. TanDania finally enacted a com%rehensive framework environmental law in -::5. *he -en&an setting Altho#gh 0enyan di%lomats s#ccessf#lly %ers#aded the United 2ations di%lomatic comm#nity at
5
*ee those acco#nts in $onine K /c<arity M&7"5; '6 N.
*tockholm in &7 - to locate the newly esta!lished United 2ations +nvironment Programme in 2airo!i) the co#ntry had no history of environmental governance to s%eak of. There was only a /inistry of 2at#ral .eso#rces in the conventional sense. 9owever) when the U2 <eneral Assem!ly ado%ted a resol#tion convening the *tockholm (onference) it !ecame essential for the government to esta!lish a national focal %oint) which wo#ld co6ordinate all %re%arations for the conference) incl#ding %re%aration of doc#ments. On " Decem!er &7 &) the 0enya <overnment (a!inet decided to esta!lish the 2ational +nvironment *ecretariat B2+*C within the /inistry of 2at#ral .eso#rces to act as a clearingho#se
and co6ordination centre on environmental matters. 2+* remained a formal instit#tion after the *tockholm (onference. In fact) on A Fe!r#ary &7 5) the government gave 2+* a somewhat higher stat#s !y transferring it to the Office of the President) still #nder directorshi% of <eorge /#hoho who) it was !elieved) had little diffic#lty getting the s#%%ort of the then 9ead of *tate. 9o%ef#lly) it wo%ld en3oy &ome %restige vi& aC vi& other line ministries. It %res#ma!ly #sed that stat#s to ens#re a s%ecific section on environment and its conservation in the &7 56&7 " 2ational Develo%ment Plan. At the same time) the section called for esta!lishment of a national working committee to !e a watchdog on environmental matters. *hortly thereafter) a new /inistry of +nvironment and 2at#ral .eso#rces was esta!lished and 2+* was %ositioned there in &7": as a technical de%artment headed !y a director) with administrative and not legislative mandate) to exert reg#latory or enforcement %owers.3 That transfer occ#rred in the middle of yet another 2ational Develo%ment Plan of &7 7 to &7"4. In its (ha%ter - entitled =Policy Framework=) the (ha%ter had a section on =+nvironmental /anagement Policy=) which em%hasised) inter alia, that the %revention of harmf#l environmental effect is less costly than their s#!se>#ent correction) and added that environmental exigencies m#st !e !#ilt into develo%ment %lanning and management to ens#re s#staina!le develo%ment with a healthy environment. For these %#r%oses) it added that =+nvironmental Im%act .e%orts= wo#ld !e re>#ired for all new %ro?ects and) th#s) radiating the core conce%t in U*A 2+PA. This was
%ro!a!ly the first time environmental im%act assessment was im%lied in any ma?or %olicy doc#ment in 0enya. Therefore) the %olicy framework recognised that 2+*) with its location in the Office of the President) wo#ld !e res%onsi!le for co6ordination of all environmental matters. In addition) 2+* was ex%ected to review existing laws relating to environment and to s#ggest changes necessary to give force of law to the sectoral standards) %roced#res and environmental im%act re%orts. $#oyed !y these mandates) 2+* commenced drafting of a new law %roviding for normative re>#irements and instit#tional framework) which they #nderstood the develo%ment %lan to have called for. There was no known st#dy or review as #rged in the %olicy framework and no %#!lic
3
*ee also f#rther disc#ssion in Okidi K 0ameri6/!ote M-::&;& 6-4N.
Internal Teaching Use Only &':
de!ate on the re>#isite legal arrangement to !e %ro%osed. It is well6known tho#gh that 2+*) or at least within its framework) %re%ared The 2ational +nvironment +nhancement and /anagement $ill B2++/AC) whose revised co%y was iss#ed in Fe!r#ary &7"&. ' 1hat came to !e %o%#larly known as 2++/A had %ractically seven s#!stantive %arts; II 2ational +nvironment PolicyE Ill62ational +nvironment *ecretariat and its %owersE IF +nvironmental Im%act Assessment %roced#resE F6Poll#tion OffencesE FI62oiseE FII6,egal ProceedingsE and FIII6.eg#lations. The o!vio#s limitations of the !ill were three. First) the sco%e was very limited. +ven with the %reca#tionary conce%t of environmental im%act assessment) the
!ill was still in the mire of command and control sanction6oriented legislative format. *econdly) 2+* drew #% a framework for a law they were to enforce) a fact that %ro!a!ly alienated) and co#ld have angered) the senior ministries th#s weakening its fo#ndation and role. Thirdly) there is no evidence that a %rocess of consens#s !#ilding was ever cond#cted for the !ill. (onse>#ently) what is known of the !ill is that it never received (a!inet a%%roval to !e considered for Parliament. 2+* did not exercise any meaningf#l role of co6ordination. /oreover) they did not initiate any work towards develo%ment of environmental law accorded #nder the &7 76&7"4 mandate of the 2ational Develo%ment Plan. Instead) they convened) from &7"&) a loosely str#ct#red Inter6 /inisterial (ommittee on the +nvironment BI/(+C) which !ro#ght together line agencies with interest in environmental matters. The main %artici%ants were /inistries of 9ealth) 1ater) Agric#lt#re) Ind#stry) +nergy and .egional Develo%ment. Another fre>#ent %artici%ant was the Tana and Athi Develo%ment A#thority. I/(+ generally dealt with non6contentio#s iss#es and the agencies generally attended meetings when their agenda was to !e disc#ssed. Fery soon I/(+ lost its l#ster and ceased o%eration. 2othing ha%%ened towards framework law for a decade. Ne- %n%t%at%)es9 7::817::< The %eriod &7746&775 was a fl#rry of activitiesWmost of them related W aimed at develo%ing a
framework environmental law for 0enya. The activities do not constit#te a series of activities as s#ch) !#t were generally synergistic. In the end) the o#t%#t in terms of a draft !ill for a framework law was well co6ordinated and received wide national s#%%ort. These activities were; BaC A#tonomo#s initiative of the (hairman of 0enya ,aw .eform (ommissionE B!C Initiative of the Permanent /ission of 0enya to U2+P and its follow #%) incl#ding work of the Attorney <eneral8s (ommittee of +x%ertsE BcC The 2ational +nvironment Action Plan B2+APC %rocessE and B5C Attorney <eneral8s Taskforce. Bhe $%tonomo%& Initiative o, Law 9e,orm Commi&&ion
'
For a detailed a%%raisal see Okoth6O!!o M&7"3N.
Internal Teaching Use Only &'&
The (hairman of the ,aw .eform (ommission) /r Games 9amilton) witho#t m#ch knowledge of environmental law as a field of law) was in &774 very #nha%%y that there was no %rogress in develo%ment of a com%rehensive framework environmental law. 9e considered that if s#ch a law was to !e develo%ed) the first target %ro!lem sho#ld !e air %oll#tion. 1ith assistance of some of his staff) he %re%ared what they called the 2ational +nvironment $ill) &774. The draft !ill had two com%onents) one instit#tional and the other thematic. The instit#tional com%onent %ro%osed a 2ational +nvironment (ommission with rather scanty f#nctions. 9owever) on the thematic side the (ommission wo#ld only control =Air I#ality= with %enal sanctions. 9is arg#ment was that the %ro!lems are enormo#s !#t the co#ntry m#st start with the most %ro!lematic iss#e and then !y way of amendments) ex%and to other to%ics.
Altho#gh 9amilton had intended to %ass on the draft to the Attorney6<eneral) other develo%ments with !roader coverage ca#ght on with him. 9e therefore contri!#ted the %ro%osal for consideration of the committee of ex%erts) which was esta!lished !y the Attorney <eneral to develo% a draft framework law. ermanent "i&&ion o, Kenya to E1E In A#g#st &774) the Permanent .e%resentative of 0enya to U2+P) Professor *amson Ongeri) a%%ealed to U2+P to %rovide s#%%ort to 0enya to commence develo%ment of a framework environmental law. In the de!ates and disc#ssions at U2+P) he realised that 0enya had not made any effort in ten years towards develo%ment of a com%rehensive environmental law. U2+P was %re%ared to s#%%ort s#ch an initiative and they agreed that the !eginning %oint was to !e a thoro#gh st#dy) which co#ld lead to drafting of s#ch a law. $oth agreed and the assignment was given to one Prof. (. O. Okidi in A#g#st &774. The re%ort of that assignment and mission) entitled =.eview of the Policy Framework and ,egal arid Instit#tional Arrangements for the /anagement of +nvironment and 2at#ral .eso#rces in 0enya= was s#!mitted to U2+P in Octo!er) &774. The %rinci%al %arts of the re%ort were; Introd#ctionE $ackgro#ndE A %rofile of national environment %olicyE A review of existing national environmental lawsE Partici%ation in international agreementsE An eval#ation of existing laws and instit#tions) and detailed recommendations for the
new legal and instit#tional frameworks. 1ith comments and o!servation from U2+P) the re%ort was revised and re6iss#ed in A%ril &775. The re%ort was later to !e the !asis of considera!le work on develo%ment of 0enya8s framework environmental law. As a first ste%) the -55 %ages re%ort was %resented !y Prof. Okidi) as a cons#ltant) in a national seminar on legislative %olicy held in 0wale from -46- /ay &775) and attended !y the Attorney6 <eneral and a n#m!er of *tate (o#nsels. ,ogistical arrangements were !y 2+*) while U2+P was re%resented !y Donald 0aniar#) Dan Ogolla and /an?it I>!al.
Okidi M&775N.
Internal Teaching Use Only &'-
According to U2+P mission re%ort)" there were 53 %artici%ants) !eing stakeholders from government agencies and non6governmental organisations. The seminar a%%roved a follow6#% on the recommendations and re>#ested the Attorney6<eneral to esta!lish a (ommittee of +x%erts to take #% the re%ort and recommendations of the cons#ltant after the 0wale seminar to develo% a draft framework law. The (ommittee of +x%erts com%rised; $. P. 0#!o) the *olicitor <eneral as (hairmanE ..F. /#go) Director of 2+* as Fice (hairmanE and (aroli Omondi) a *tate (o#nsel) as *ecretary. /em!ers were Prof. G. $. O?wangE ,.1. /as#a) *enior Parliamentary (o#nselE <. O.
Ow#or) First *ecretary) 0enya /ission to U2+PE and (. 1. /#nyao) *tate (o#nsel from 0enya ,aw .eform (ommission. Prof. (. O. Okidi) *enior ,egal Officer from U2+P) was designated as reso#rce %erson. The terms of reference incl#ded st#dying the re%ort and recommendations as a!ove) !#t also to cons#lt) inter alia, the following instit#tions; U2+P) Attorney <eneral8s Taskforce for the .eform of Penal ,aws and Proced#res) the 2ational +nvironment Action Plan B2+APC) 2+*) 0enya ,aw .eform (ommission) 0enya +nergy 2on6<overnmental Organisation B0+2<OC) and 0enya Association of /an#fact#rers. The terms of reference went !eyond the st#dies a!ove) which were to lead to drafting and finalising the draft framework environmental legislation. The (ommittee was also ex%ected to draw #% im%lementing reg#lations #nder that central law. $esides) the committee was asked to develo% draft !ills for im%lementation of environmental treaties relevant to 0enya. Finally) they were ex%ected to develo% a%%ro%riate sectoral legislation) harmoniDing them with the framework environmental law. In the co#rse of its work) the (ommittee made references to related doc#ments and !ills from Uganda) +thio%ia) /a#riti#s) *eychelles) *o#th Africa) Ireland and /alawi. They also examined the re%ort of the 0wale seminar as well as the cons#ltant8s re%ort) which had !een disc#ssed) and the 2ational +nvironment Action Plan) &775.
The (ommittee %#rs#ed a %lan of work encom%assing examination of doc#ments and meetings to collect o%inions from Gan#ary &773 when it was constit#ted !y the Attorney <eneral) to /ay &773 when their draft !ill was ready and s#!mitted to the Attorney <eneral. Two of the cons#ltations were with the 2ational +nvironmental Action Plan B2+APC and the +nvironmental Offences (ommittee of the Attorney6<eneral8s Taskforce for the .eform of Penal ,aws and Proced#res) !oth of which are disc#ssed !elow. *e%arately) the two %rocesses were detailed and made significant contri!#tions to the event#al !ill. At this stage) the (ommittee8s %lan was to finaliDe the draft !ill in A%ril and to s#!mit it to the Attorney6<eneral in /ay &773. A national seminar or worksho% to !ring together all stakeholders was ex%ected to !e in G#ne &773. 9owever) the national stakeholders8 worksho% was event#ally held from '6" *e%tem!er &773.
"
0aniar# et al M&775N.
Internal Teaching Use Only &'4
Bhe 1ational Environment $ction lan 51E$ 7 proce&& 2+AP was a massive exercise involving over &:: %rofessionals to assess national environmental %ro!lems and %riorities and to %ro%ose a%%ro%riate %olicy action for a given s#!se>#ent %eriod. The whole %ro?ect) which lasted !etween &774 and &775) was !ased at the /inistry of +nvironment and 2at#ral .eso#rces) with the Permanent *ecretary as the (hairman of the overall (o6ordinating (ommittee. The (hief +xec#tive Officer Ba co6ordinatorC was Prof. /ichael 0orir
0oech) working with -7 mem!ers) all fairly senior %eo%le in environment6related fields and drawn from %#!lic and %rivate sectors and also incl#ding non6governmental organisations. 7 The entire mem!ershi% of 2+AP team worked thro#gh ten different taskforces. +ach taskforce was assigned to cover a theme in environmental management. In the %rocess they were res%onsi!le for %re%aring draft %olicy and cond#cting seminars and %#!lic hearings all over the co#ntry to seek %#!lic o%inion and other in%#ts !efore synthesiDing and %resenting a single %olicy doc#ment. Taskforce 2o. & had res%onsi!ility for %olicy) instit#tional) legislative and economic incentives. Its co6chairmen were Prof. *. 0. Ongeri) the 0enya Permanent .e%resentative to U2+P whom) it will !e recalled) had raised the >#estion of framework environmental law for 0enya with U2+P. The other two co6chairmen were Dr. /ohmmed Isahakia) the Director of 2ational /#se#ms of 0enya and /r. 9. <. 0imar#) (hief +xec#tive Officer of the Permanent Presidential (ommission on *oil (onservation and Afforestation. The taskforce had a secretary and &5 mem!ers drawn from %#!lic and %rivate sectors as well as non6governmental organisations) and incl#ded the %resent a#thor) as a mem!er. For o!vio#s reasons) this taskforce !egan with) and relied largely #%on) the U2+P cons#ltant8s re%ort) which was %resented at the 0wale seminar. The recommendations of the re%ort were disc#ssed extensively and did) indeed) determine the contri!#tion of 2+AP &: to the drafting work of the Attorney6<eneral8s (ommittee) which was esta!lished after the 0wale national seminar.
Bhe $ttorney!GeneralC& Ba&k,orce ,or the 9e,orm o, enal Law& and roced%re& In &774) the Attorney6<eneral did) !y notice in the official gaDette) esta!lish a Taskforce for the .eform of Penal ,aws and Proced#res) and was la#nched !y himself on &' A#g#st &774. 9e a%%ointed &' mem!ers) incl#ding the %resent a#thor) and /r. $enna ,#tta as (hairman. Other mem!ers whose names will inevita!ly feat#re !elow were Prof. G. $. O?wang8 and /r. $. P. 0#!o) !oth of whom are now ?#dges of the 9igh (o#rt of 0enya. The mandate of the taskforce was !road) as it was ex%ected to examine the entire system of criminal ?#stice) incl#ding %rotection of
7
*ee the 0enya 2ational +nvironment Action Plan B2+APC re%ort %rod#ced !y the /inistry of +nvironment and
2at#ral .eso#rces) 2airo!i) G#ne &775. The re%ort was act#ally la#nched on -: 2ovem!er &775.
&: *ee
I#id, at &'36&75.
h#man rights) and to make recommendations for reform. The Attorney <eneral was s%ecific that the taskforce sho#ld give s%ecial attention to environmental offences. In discharging its mandate) the taskforce chose to work thro#gh fo#r committees) one of which was +nvironmental Offences (ommittee) conceived to draw #% recommendations for environmental offences and the corres%onding %enal sanctions. 9owever) the mem!ers a%%ealed) and the Attorney <eneral acce%ted) that it was more a%%ro%riate at that time to %re%are a draft framework environmental law to cover general %rinci%les and o!ligations) environmental %lanning and management) as well as fiscal incentives and overall instit#tional arrangement. 1ith those
com%onents) then the law will %rovide for environmental offences and corres%onding sanctions. The (ommittee) com%rising the %resent a#thor as the (hairman) with $. P. 0#!o as the *ecretary and Prof. G. $. O?wang8 as a mem!er retained its title as +nvironmental Offences (ommittee to avoid the necessity of amending the gaDette notice. 1hile the different fora as disc#ssed so far) s#ch as 0wale seminar and the 2+AP %rocess) did a great deal in examining legal %rinci%les and instit#tional arrangement) this committee made the single6most im%ortant contri!#tion to the work of the Attorney <eneral8s (ommittee !y translating all that into a draft !ill. A%art from intensive st#dy of the cons#ltant8s re%ort from the 0wale seminar) this committee had a chance to do a technical com%arison of the evolving %rinci%le here and cognate %ractices in environmental law6making elsewhere. They st#died framework laws or its variants from United 0ingdom) Thailand) /alaysia) India) *t. (hristo%her and 2evis) Israel) <reece) *weden) Ga%an) *ri ,anka) 9#ngary) 2etherlands) Uganda and the U*. The committee ca%italised on the ca%acity of /r. 0#!o as the *olicitor6<eneral to #se di%lomatic channels to o!tain doc#ments from diverse co#ntries. It was im%ortant that they draw on ex%erience of co#ntries at different levels of develo%ment) while com%aring their legislative frameworks with what had emerged as !eing s#ita!le for 0enya. Th#s) the committee %re%ared the draft !ill and a thoro#ghly analytic re%ort of 4 %ages on which the !ill was to !e !ased. It is for that reason that there is %ro!a!ly striking similarities !etween this committee8s draft and the final draft) which event#ally !ecame law. The draft law
section of the committee re%ort was com%leted in G#ne &773 and handed over to the Attorney6 <eneral8s (ommittee which) it will !e recalled) was set #% after the 0wale seminar. The f#ll re%ort of the (ommittee was integrated into the final re%ort of the taskforce) which was s#!mitted to the Attorney6<eneral at a m#ch later date.&& 9owever) the draft !ill was finaliDed !y the Attorney6 <eneral8s (ommittee in readiness for the national consens#s !#ilding worksho% in 2aivasha three months later. This section ca%t#res a vigoro#s range of activities that ended a decade of total inactivity in
&&
<overnment of 0enya M&77 N. 2ote that while the re%ort was for different reasons delayed) %ages & :6- " relating
to environment were sent to the Attorney6<eneral earlier.
develo%ment of environmental law in 0enya. After the de!acle with the 2++/A initiative in &7"&) it may well !e that 2+* s#ffered two ma?or handica%s. On the one hand) it lacked cadre of ex%erts knowledgea!le in environmental law and committed to %#rs#ing new develo%ment for 0enya. On the other hand) it lacked legislative stat#s) !eing a weak %olitical and administrative creat#re %oised to co6ordinate %owerf#l ministries with strong interest in maintaining stat#s >#o. Arg#a!ly) anchoring the %rocess on the Attorney <eneral) !#t with active %artici%ation of 2+*) hel%ed move the %rocess. The reasona!le moment#m !ecame the dynamism at the 0enya /ission to U2+P) which s%eedily initiated the st#dy that led to a framework environmental law. Th#s) the 0wale seminar did not only excite interest in develo%ment of environmental law) !#t fort#nately esta!lished a
(ommittee of +x%erts) which was directly linked to the Office of the Attorney6<eneral and with a mandate to cond#ct st#dies and cons#ltation towards a draft framework environmental law. The terms of reference also re>#ired that their draft !ill !e %resented to the Attorney6<eneral as well as /inister for +nvironment and 2at#ral .eso#rces. $y involving 2+* in the cons#ltation and st#dies) the (ommittee mandate avoided the inertia that had %revailed in 2+*) !#t witho#t alienating the latter. This maintained a steady motion to create an environmental law. 2+* %artici%ated in co6ordination of the ma?or seminars and) therefore) maintained its ministerial relevance in the %rocess. The 2+AP %rocess %rovided a %owerf#l cons#ltative %rocess) which also %o%#larised and enhanced acce%tance of the conce%ts and instit#tional str#ct#re that originated from the 0wale seminar. In fact) many as%ects of instit#tional str#ct#re that are +/(A may have come from the seminar !#t were settled in the ela!orate 2+AP %rocess. Indeed) these were hel%ed !y the overla%%ing %artici%ation and drive from 0wale. As a conse>#ence of these develo%ments) the Attorney <eneral8s taskforce and its +nvironmental Offences (ommittee were a!le to %rod#ce not only a detailed re%ort and commentary !#t also a %reliminary draft !ill. In %re%aration of the !ill) therefore) the first stage had involved extensive cons#ltations. At the same time it was !ased on detailed st#dy of laws and %ractices from diverse co#ntries. Consensus Building of (raft Bill The cons#ltations and disc#ssions in 0wale) 2+AP %rocess in &774 to &775 and Attorney <eneral8s (ommittee of +x%erts in &773 led to agreement on %rinci%les) r#les and instit#tional
str#ct#re and these created the draft !ill) and led to a n#m!er of ste%s to %o%#lariDe it and %romote chances of %#!lic acce%tance of the law. That %rocess incl#ded; B&C a national seminar for stakeholdersE B-C *eminar of 0enya Association of /an#fact#rersE B4C one half6day sym%osi#m for Parliamentary (ommittee on 2at#ral .eso#rces and +nvironmentE B5C One half6day sym%osi#m for /em!ers of ParliamentE and B3C An overview.
Internal Teaching Use Only &''
1ational Con&en&%& I%ilding -eminar This was the most im%ortant for#m convened to disc#ss the draft !ill) once it was s#!mitted !y the Attorney6<eneral8s (ommittee of +x%erts. The /inistry of +nvironment and 2at#ral .eso#rces) thro#gh 2+*) colla!orated with the Attorney6<eneral8s (ham!ers and 0enya /ission to U2+P in s#%%orting the seminar) f#nded !y U2+P. To give em%hasis to the exercise) three leaders) namely; 9on. Amos 1ako) Attorney6<eneralE 9on. Gohn *am!#) /inister of +nvironment and 2at#ral .eso#rcesE and 9. +. Professor *amson Ongeri) Permanent .e%resentative to U2+P attended and all stayed on for the rigoro#s disc#ssion from '6" *e%tem!er) &773. Another 3 %artici%ants re%resenting key stakeholder agencies) nongovernmental organisations as well as U2+P) U2DP and the 1orld $ank attended. Pre%arations were thoro#gh) with the draft !ill distri!#ted to invited %artici%ants ahead of time.
The %resent a#thor) as reso#rce %erson to the Attorney <eneral8s (ommittee of +x%erts) and to the seminar) %re%ared =(omments on the Draft 0enya +nvironment /anagement and (o6 ordination $ill) &773)=&- with &&5 >#estions on different sections to hel% foc#s attention of %ros%ective %artici%ants on the details of the text ahead of the seminar. The Attorney6<eneral gave the o%ening address with an em%hasis on the significance of a framework law on environment and his descri%tion of the %ath from the 0wale seminar) the work of the (ommittee of +x%erts and the c#lmination on the draft !ill. *econdly) he #rged the (ommittee to commence the larger task of develo%ment and harmonisation of sectoral stat#tes as soon as the !ill is enacted. This task sho#ld) in his view) seek to ens#re com%leteness and #%dating of sectoral laws and to remove any inconsistencies with the framework law) as well as among s#ch laws. The task of develo%ment and harmonisation of sectoral laws was also em%hasised !y the Permanent .e%resentative to U2+P who) in a vote of thanks) also a%%reciated the %rogress since he made an a%%lication for s#%%ort to U2+P in &774. The Attorney6<eneral) the Permanent .e%resentative and the /inister Bwho closed the seminarC conc#rred in the timeliness of the !ill. All re>#ested U2+P to %rovide s#%%ort for develo%ment and harmonisation of sectoral laws and in ca%acity develo%ment to enhance >#ality of im%lementation of environmental law in 0enya. The de!ates on the draft were !risk and detailed. There were %lenary sessions !#t for areas re>#iring detailed deli!eration) the seminar !roke into fo#r 1orking <ro#%s) namely; B&C Princi%les) Policies and <#idelinesE B-C Instit#tional ArrangementsE B4C +nvironmental Im%act Assessment) +nvironmental I#ality *tandards) +nvironmental .estoration Orders) and
+nvironmental +asementsE and B5C +nvironmental Planning) /anagement and Information. These disc#ssions res#lted in confirmation of the text) which !ecame +/(A. It deserves mention that the one instit#tional %rovision that %roved critical when %artici%ants ex%ressed fears of a %owerf#l
&-
Okidi M&773N.
Internal Teaching Use Only &'
Director <eneral of 2+/A was the little known *tandards and +nforcement .eview (ommittee) now in *ections : and & of the stat#te. As the title denotes) the (ommittee has the %owers to review and %rovide direction on the standards that sho#ld !e ado%ted and how they are to !e enforced. Initially) several %artici%ants) as de%artmental heads and exec#tives of agencies) had reservations a!o#t the %owers and f#nctions of the national +nvironment /anagement A#thority) fearing that the Director6<eneral wo#ld have #nchecked %owers over them. 9owever) the fact that the *tandards and +nforcement .eview (ommittee wo#ld com%rise of heads of the lead agencies ass#red them that they co#ld check %ossi!le excesses of the Director6<eneral. In fact) the disc#ssions concl#ded that with that clear #nderstanding) it was likely that the heads of those agencies listed in *ched#le Three wo#ld want to either attend the meetings %ersonally or !e re%resented at a%%ro%riate senior level. It was also antici%ated that the (ommittee wo#ld meet fre>#ently eno#gh to give s#%%ort to im%lementation of the Act. This instit#tional arrangement also drove acce%tance of *ection &5") which granted s#%erior
force to the +/(A over any other written law on environment. 9eads of agencies considered it %ossi!le that they co#ld check any %ossi!le excesses. There was) a%%arently) an oversight at advanced drafting stages that reference was left only at =any written law) in force immediately !efore the coming into force of this Act= and not all written law) as s#ch. I refer to advanced drafting stages !eca#se the earlier version %re%ared !y +nvironmental Offences (ommittee) and which was handed over to the Attorney6<eneral8s (ommittee) had made a distinction on this #nder section &-: and &-& entitled =Act to %revail over other environmental stat#tes.= Their draft section &-: referred to =any law existing !efore coming into force of this Act...= while draft section &-& referred generally to =...Inconsistency !etween this Act and any other sectoral or other law relating to the %rotection and conservation of the environment and nat#ral reso#rces...= The +/(A %rovision is somewhat am!ig#o#s and sho#ld !e inter%reted in context %ending an amendment for clarity. It is neither %ossi!le nor necessary to comment on each %rovision in +/(A. 1hat is clear is that in its draft form) the !ill received a very thoro#gh consens#s !#ilding scr#tiny. The seminar recommended that the (ommittee of +x%erts finaliDe the draft and forward to the Attorney6 <eneral for legislative %rocessing. U2+P /ission ass#red the government that they co#ld %rovide s#%%ort for review and %re%aration of the sectoral laws. -eminar o, Kenya $&&ociation o, "an%,act%rer&
It will !e recalled that the 0enya Association of /an#fact#rers B0A/C was incl#ded in Attorney6 <eneral8s (ommittee of +x%erts and %artici%ated thro#gh their cons#ltant. According to the .e%ort
Internal Teaching Use Only &'"
of the (ommittee of +x%erts)&4 the team met with the management of the 0enya Association of /an#fact#rers in A%ril) &773 to disc#ss the evolving !ill. 0A/ had retained the services of Peter 0. Orao as a cons#ltant and organiDer of the seminar. Once the !ill was ready for %arliamentary de!ate) 0A/ organised a one6day seminar for mem!ers to !e ac>#ainted with the law. Presentations were made !y reso#rce %ersons from 2+*) Attorney6<eneral8s (ham!ers) and U2+P. The main themes disc#ssed were the conce%t and f#nction of environmental law as well as the conce%t and a%%lication of framework lawsE instit#tional str#ct#re #nder +/(A !illE the %reca#tionary meas#re) %artic#larly +I A) environmental monitoring and a#ditE environmental restorationE financial %rovisionsE and fiscal incentives. The one item that the %artici%ants fo#nd %artic#larly attractive and an incentive to em!race the law was =Fiscal Incentives)= now #nder *ection 3 of +/(A. In fact) the %artici%ants ex%ressed their ho%e that the clearance of the Treas#ry wo#ld !e so#ght soon thereafter so that the %ertinent reg#lations can !e %rom#lgated. A!o#t ': cor%orate re%resentatives attended the seminar. Altho#gh this attendance may !e
considered a significant n#m!er) it is still small) considering the large siDe of the cor%orate sector in 0enya. The n#m!er is nevertheless indicative of the interest in %romoting vol#ntary com%liance with environmental law) so long as awareness is !#ilt #% in the %rivate sector. -ympo&i%m ,or arliamentary Committee on Environment and 1at%ral 9e&o%rce& The Parliamentary (ommittee on Agric#lt#re) ,ands and 2at#ral .eso#rces) within whose docket +/(A $ill fell) was very im%ortant for effective handling of the !ill in Parliament. Arrangements were made for the mem!ers to f#lly #nderstand the !ill and) if %ossi!le) in com%arison with ex%erience in other co#ntries that were familiar with framework laws. To ens#re this o!?ective) U2+P organised a half6day sym%osi#m for mem!ers of the (ommittee to hold disc#ssion with Gohn Ugolo) *enior (o#nsel to 2igerian Federal +nvironmental Protection AgencyE ,arsey /ensah) ,egal Advisor to <hana8s +nvironmental Protection AgencyE +rnest /akawa) ,egal Advisor to /alawi 2ational +nvironment (ommissionE and .o!ert 1a!#noha) *enior (o#nsel of Uganda8s 2ational +nvironment /anagement A#thority. The *ym%osi#m was held at U2+P head>#arters in 2airo!i on &3 Octo!er &777 and attended !y mem!ers of the (ommittee and re%resentatives of 2+* and other government de%artments. Also attending were three st#dents from the Fac#lty of ,aw) associated with the (entre for .esearch in +nvironmental +d#cation and ,aw B(.++,C) who later lo!!ied for the !ill in
&4
.e%ort Introd#cing the Draft +nvironmental /anagement and (o6ordination $ill to the United 2ations
+nvironment Programme and the 2ational *eminar on the Draft $ill B.e%ort !y the (ommittee of +x%erts on the Develo%ment 2ational +nvironment ,egislation) U2+P PAD+,IA ArchiveC.
Parliament.
The fo#r senior foreign co#nsels were res%onsi!le for enforcement of framework environmental laws in their co#ntries where they had had ex%erience with enforcement. 2igeria had ado%ted a framework environmental law in &7"") <hana in &775) Uganda in &773 and /alawi in &77'. +ach of them had received and st#died the +/(A!ill and were a!le to make !rief %resentations com%aring and contrasting +/(A $ill with their own national laws !efore engaging (ommittee mem!ers in fairly thoro#gh disc#ssions. At the end of the disco#rse) the (ommittee mem!ers were convinced that the +/(A $ill was so#nd and sho#ld !e given a chance for a%%lication in 0enya. -ympo&i%m ,or "em#er& o, arliament 2+* colla!orated with U2+Pin organising a one6day sym%osi#m on environmental law) an event of the kind given to 0A/ as a!ove) for mem!ers of Parliament in general. The event was attended !y a!o#t 3: mem!ers of Parliament) thanks to the interest and s#%%ort for the !ill !y 9on. Goa! Omino) who was De%#ty *%eaker of the 2ational Assem!ly. Overview All the a!ove consens#s6!#ilding initiatives aimed at two %rinci%al o!?ectives; The national consens#s !#ilding seminar was to !#ild acce%tance and ownershi% of the draft !ill in the core gro#% of government officers who wo#ld determine a%%roval of the draft !ill !y (a!inet. The %artici%ants incl#ded heads of lead agencies) who wo#ld advise ministers. It is ?#st %ossi!le that witho#t that effort) the draft !ill wo#ld have had some diffic#lties with a%%roval !y (a!inet. Th#s) even tho#gh its sco%e and content was in stark contrast to that of 2++/A) their fates co#ld %ossi!ly have !een the same. The second o!?ective was to !#ild #% a core gro#% in the government and civil society who #nderstood how the law was to work. The seminar for 0enya Association of /an#fact#rers was %artly to diff#se %ossi!le o!?ection
to the !ill) which co#ld !e a so#rce of lo!!y force in Parliament. It was vital that 0A/ mem!ers #nderstand. As far as has !een ascertained) only the hotel ind#stry organised some lo!!y force against the !ill. Fort#nately for them) mem!ers of Parliament were already convinced over the %#r%ose and timeliness of the !ill and committed to s#%%orting the !ill in Parliament. $y the same token) co6o%eration of man#fact#rers is essential for s#ccessf#l im%lementation of the law. /ore of the %rivate sector sho#ld still !e reached) es%ecially at the senior exec#tive level. It is also essential that reg#lations on fiscal incentives !e %rom#lgated #rgently in order to o%en the way towards greater #se of vol#ntary com%liance. The efforts that targeted Parliament were aimed at %romoting f#ll #nderstanding and acce%tance and s%eedy ado%tion of the !ill. To that end) it is essential that this cha%ter sho#ld
Internal Teaching Use Only & :
review what mem!ers of Parliament tho#ght of the !ill and the o!?ective of the law. In terms of o#tlook) the Attorney6<eneral and the Permanent .e%resentative to U2+P #rged that as soon as the framework law is enacted) national legislative efforts sho#ld !e directed at review of existing sectoral laws and to draft amendments to harmonise s#ch stat#tes among themselves and with the framework laws. /inister Gohn *am!# was %artic#larly em%hatic a!o#t laws that im%lement environmental agreements and those develo%ing new laws for %ro!lems like air %oll#tion and haDardo#s wastes. *he (e"ate in !arliament The !ill was de!ated in Parliament from 6&' Decem!er &777 and attracted nine mem!ers8
addresses) at least two of the mem!ers taking the floor more than once. All the s%eakers welcomed and s#%%orted the !ill arg#ing that introd#ction of s#ch law was) in fact) long overd#e. Two mem!ers) 9on. 1ycliffe Os#ndwa) the (hairman of the Parliamentary (ommittee on 2at#ral .eso#rces and 9on. 0hamasi) told Parliament that some re%resentatives of hotel ind#stry had lo!!ied against the $ill. 9on 0hamasi said;
4On the hotel ind%&try, when we were di&c%&&ing thi& Iill in the 8epartment Committee, we &aw a lot o, re&i&tance. Bhey never wanted thi& #ill to #ecome an $ct and that wa& ,or o#vio%& rea&on&. 1ow that thi& #ill i& going to #ecome an $ct, it will p%t them on alert to make &%re that the total poll%tion that they ca%&e i& controlled.4 G?
All the s%eakers identified environmental iss#es that were most critical to them. The link !etween so#nd environmental conservation on the one hand) and develo%ment %lanning and management on the other) was fre>#ently stressed. *ome mem!ers #rged for ca#tion in im%lementation of %ro?ects to avoid degradation of ecological systems like ,ake Fictoria !asin. Others #rged the government to manage rivers and flood %lains to red#ce flooding. Poll#tion of rivers was considered a %ro!lem for very #rgent attention. *%ecific concerns were ex%ressed over the %oll#tion of 2airo!i .iver) 2yando and 2Doia. The s%eakers #rged 0enyans to %ress 2+/A and its chief exec#tive officer to take advantage of the law to save the 0enyan environment. There were s%ecific references to the new loc%& &tandi r#le) which corrected the ?#ridical %rinci%le that led the 9igh (o#rt to throw away the /angari "aathai case. Th#s) mem!ers of Parliament #rged every 0enyan to !e a whistle6!lower when it comes to %rotection of the environment. /anagement of solid wastes dominated the s%eeches) referring to the n#mero#s hea%s of gar!age all over the towns in 0enya. There were calls for %lanning of #r!an centres to ens#re that
s%ecific Dones are identified for waste dis%osal) with clear %lans for recycling or other forms of
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0enya 2ational Assem!ly Parliamentary De!ates) 1eekly 9ansard) "th Parliament) 4rd *ession Fol. &) 2#m!er
7567 )&56&' Decem!er M&777; -73'N. *ee=also 2#m!ers 7:674) 67 Decem!er &777.
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destr#ction. $oth) 9on. Affey and 9on. 0hamasi #rged that the new law !e #sed to %revent the d#m%ing of haDardo#s wastes in 0enya. They referred s%ecifically to instances of #ltra6 haDardo#s wastes) which had !een d#m%ed #ndergro#nd !y international com%anies that were %#r%ortedly drilling for oil.&3 The wastes had now !een %#shed to the s#rface !y tectonic movements and were health haDards to the local %o%#lation. It is in this connection that some s%eakers considered that even tho#gh the %enalties were higher than in %revio#s environmental laws) they might not !e severe eno#gh to deter reckless !#t rich com%anies. &' The new law) in the view of the %arliamentarians) sho#ld !e enforced to %rotect forests. 9owever) it wo#ld !e more effective if all excision of forests co#ld !e s#!?ect to a%%roval !y Parliament.& This) in their view) wo#ld %rotect the technical civil servants. 1henever the government wants to degaDette a forest) %ermission of Parliament wo#ld !e so#ght first. The mem!ers #rged for concerted environmental ed#cation in the co#ntry to ens#re that highly trained %ersonnel are availa!le for im%lementation of the new law. &" To achieve that goal effectively) environmental ed#cation sho#ld !e introd#ced in all ed#cational instit#tions and all levels. The !ill was) in the end) ado%ted !y Parliament witho#t any reservation.
Summar& and Conclusion 0enya woke #% to the glo!al trend in develo%ment of framework environmental law in &7"&. After a flawed start) there was inertia for one decade. A rationalised) deli!erate and foc#sed initiative started in &774 with a review of cognate %ro!lems) %olicy %ers%ectives and existing legal regime. The critical a%%raisal was accom%anied !y %ro%osals as to the a%%ro%riate normative and instit#tional framework. The 0wale seminar in /ay &775 was therefore the t#rning %oint for 0enyan environmental legislation. The (ommittee of eight ex%erts) incl#ding a reso#rce %erson from U2+P) was esta!lished within the Attorney <eneral8s s#%ervisory framework. This (ommittee %rovided leadershi% and foc#s #ntil the drafting %rocess was com%leted. 9owever) cons#ltations were decentralised with a mem!er of the (ommittee seeking views from a diverse range of stakeholders and !asing consens#s on 0wale doc#ments and re%ort. The same doc#ment was taken within the 2+AP %rocess where the normative %rovisions and the %ro%osals for instit#tional str#ct#re were de!ated
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I#id at -
563. The allegation that #ltra6haDardo#s wastes were #ndergro#nd in 2orth +astern 0enya have also
!een on %o%#lar %ress. 2ote that this is not far fetched as similar kinds of wastes were d#m%ed in A!id?an in A#g#st -::') and ca#sed six deaths and &')::: %eo%le hos%italiDed. 3-" c#!ic metres Bor &&')::: gallons of wastes were d#m%ed at eleven sites in residential areas of A!id?an. *ee Economi&t, &' *e%tem!er) -::' at 3-.
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I#id, 1eekly 9ansard at - '' and - '7. l#id at 'AA(. l#id at - '&)- ' ) - '7.
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co#ntrywide. /eanwhile) the Attorney6<eneral8s Taskforce for the .eform of Penal ,aws and Proced#res) drawing on the same doc#ments and re%orts as well as com%arative st#dy of framework
environmental laws from different ?#risdictions) %re%ared a re%ort and a draft !ill) which was availed to the (ommittee of +x%erts. Thereafter) a draft !ill co#ld !e %re%ared !y the (ommittee. The draft !ill was s#!?ected to a rigoro#s national seminar of stakeholders) incl#ding government and 2<O re%resentatives) in *e%tem!er &773 after which the (ommittee com%leted its work on the draft framework environmental law and handed over to the %arliamentary co#nsel for advanced drafting and cleaning #%. Thoro#gh and detailed disc#ssions of the %#!lished !ill were still cond#cted with the %arliamentary de%artmental committee) mem!ers of the 0enya Association o, /an#fact#rers) and mem!ers of %arliament in general. The o!?ective was to %romote an #nderstanding of the conce%t of framework environmental law and how it works. A session was organised for mem!ers of the De%artmental (ommittee to disc#ss the !ill in com%arison with fo#r African co#ntries that had enacted framework environmental laws) namely; <hana) /alawi) 2igeria and Uganda. As it was %resented to Parliament the !ill was tr#ly 0enyan. 1ith contin#ed ca%acity !#ilding) im%lementation of the law sho#ld !e efficacio#s.
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Chapter 8
An 3verview of the Environmental )anagement and Co$ordination Act
A22+ 2. A2<1+2JI
Introduction
Prior to &777) 0enya had no framework environmental legislation. 0enya8s a%%roach to environmental legislation and administration was !ased on (ommon ,aw and sectoral legislation with environmental management com%onents) which were form#lated largely in line with nat#ral reso#rce sectors. Therefore) a %rominent feat#re of 0enya8s environmental legislation was its diff#se nat#re) with %rovisions !eing contained in a!o#t AA stat#tes. /ost of the stat#tes were sectoral) either !y the nat#ral reso#rces s#ch as fisheries) water) forestry and wildlife) or !y the f#nctional sectors s#ch as %#!lic health) agric#lt#re) factories) mining) shi%%ing or (hiefs8 a#thority. This a%%roach to reso#rce management was the legacy of =colonial reso#rce= management legislation) which was %rimarily concerned with reso#rce allocation and ex%loitation and) therefore) had very limited %rovision for the reg#lation of the adverse im%acts of that %rocess on the environment. +nvironmental conservation com%onents were later grafted #%on this str#ct#re of %iecemeal allocation and ex%loitation and mainly in res%onse to the emergence of critical instances of environmental degradation. The sectoral a%%roach had also diff#se %ower and res%onsi!ility in n#mero#s government de%artments and created ?#risdictional overla%s and conflicts and ignored the indivisi!ility of and the interrelationshi%s within the ecosystem. It) therefore) !ecame very necessary to have a focal %oint within the government to co6ordinate %olicies and activities) and to
advise the government on environmental management iss#es. Thro#gh administrative directives) several instit#tions were created to serve in vario#s areas of environmental management. These incl#ded the 2ational +nvironment *ecretariat B2+*C esta!lished in &7 &) and the Permanent Presidential (ommission on *oil (onservation and Afforestation esta!lished in &7"&. +nvironmental activism and the 0enya government8s a%%reciation of the significance of a so#nd legislative framework for environmental legislation c#lminated in the enactment of the +nvironmental /anagement and (o6ordination Act Bhereinafter) +/( AC. & 1ith the enactment of
&
Act 2o. " of &777.
+/( A) the f#ndamental %rinci%les on the environment es%o#sed in vario#s m#ltilateral environmental agreements and intellect#al disco#rse were incor%orated into 0enyan law. From the onset) it m#st !e em%hasised that +/( A does not re%eal existing sectoral legislation and instead seeks to co6ordinate the activities of the vario#s government agencies tasked with reg#lating different sectors of the environment. Prior to the enactment of +/(A) the %lethora of laws in 0enya a%%lica!le to environmental management de%icted vario#s weaknesses. First) the fact that environmental reg#lations were scattered across the vario#s sectors im%eded a co6ordinated a%%roach to environmental management.- 9owever) while there was a need for a co6ordinated a%%roach) there was concern that vesting environmental management in a single instit#tion wo#ld res#lt in a massive !#rea#cracy) which wo#ld !e alienated from the management ex%erts in the sectoral line de%artments and ministries.4 *econdly) the legislative framework vested enforcement discretion in
government officials who did not always act to enforce the law) with the res#lt that %#!lic interest litigation to %rotect the environment was disco#raged. Thirdly) the vario#s laws were generally %#nitive in nat#re) dealing largely with the detrimental effects to the environment !y fixing criminal %enalties or lia!ility. In most cases) there was hardly any %rovision for the %er%etrator to %ay for the a!atement of the in?#ries ca#sed !y their acts) and %enalties were often %altry and did not act as s#fficient deterrent against environmental degradation. 5 F#rther) the laws did not %rovide for the assessment of %ro?ects to %revent or mitigate their adverse environmental conse>#ences.3 +/(A was enacted to remedy these deficiencies. Its %ream!le declares its %#r%ose to !e =to %rovide for the esta!lishment of an a%%ro%riate legal and instit#tional framework for the management of the environment in 0enya and for matters connected therewith and incidental thereto.= +/(A is !ased on the recognition that im%roved co6ordination of the diverse sectoral initiatives is necessary for !etter management of the environment. This cha%ter examines the organisational framework set #% !y +/(A) its vario#s %ertinent %rovisions with regard to environmental governance and the %romotion of s#staina!le develo%ment in 0enya. It concl#des !y highlighting the strengths and weaknesses that arise from im%lementation of the Act and %rovides a %ossi!le way forward in addressing these weaknesses.
E)CA6s 3rganisational Framework
To facilitate a co6ordinated a%%roach to environmental management) +/(A esta!lishes several
organs as disc#ssed !elow;

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Okidi K 0ameri6/!ote M-::&; 'N. I#id. I#id at "". I#id.
1ational Environment Co%ncil The 2ational +nvironment (o#ncil) esta!lished #nder *ection 5) is the highest %olicy6making organ #nder +/(A that is inter alia res%onsi!le for %olicy form#lation and direction) setting national goals and o!?ectives) determining %olicy and %riorities for the %rotection of the environment and the %romotion of co6o%eration among %#!lic and %rivate !odies engaged in environmental %rotection %rogrammes. ' The (o#ncil is chaired !y the /inister res%onsi!le for environmental matters and its com%osition is drawn from all sectors of the co#ntry. The mem!ershi% is aimed at reflecting re%resentation from all relevant ministries of government) as well as a !road range of other interests. *tat#tory mem!ers incl#de; BaC #% to &" Permanent *ecretariesE B!C - re%resentatives of %#!lic #niversitiesE BcC - re%resentatives of s%ecialiDed research instit#tionsE BdC 4 re%resentatives of the !#siness comm#nity) incl#ding one oil marketing com%any re%resentativeE BeC - re%resentatives of non6governmental organisations in the environmental fieldE BfC co6o%ted mem!ers whose n#m!er is to !e determined !y the /inisterE and BgC Director6<eneral) who is also the *ecretary. A%art from the Permanent *ecretaries and the Director <eneral) all the mem!ers are a%%ointed !y the /inister !y name for a renewa!le %eriod of three years. It is instr#ctive to note that the (o#ncil8s mem!ershi% is a high6%rofile inter6ministerial instit#tion com%rising of eminent %#!lic
administrators) scholars) !#siness %eo%le and re%resentatives of non6governmental organisations. It seems that the o!?ective of esta!lishing the (o#ncil8s re%resentation was to ens#re the %artici%ation of all the ma?or stakeholders on environmental management in decision6making at the highest level so as to facilitate %romotion of %#!lic awareness on the environment and com%liance with stat#es that to#ch on environmental management and %rotection. In recent times) the /inister has reiterated that the Permanent *ecretary mem!ers are not %ermitted to designate re%resentatives to the (o#ncil and instead m#st attend in %erson. This) however) can !e weighted against a %ositive and negative scaleE %ositive !eca#se it ens#res that the Permanent *ecretaries attend (o#ncil meetings %ersonally instead of dis%atching ill6informed dis%ensa!le f#nctionaries to (o#ncil meetings. 1ith s#ch high %rofile attendance) recommendations of the (o#ncil that re>#ire the in%#t or action of relevant lead agencies can !e easily effected as the decisions are reached !y the highest acco#nting officers of the ministries. It co#ld) however) !e viewed in a negative form in that Permanent *ecretaries) who are not
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+/(A) *ection 5.
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d#ly sensitised to a%%reciate the %rimary role of the environment) may decide to ski% meetings and there!y fr#strate (o#ncil %roceedings. In addition) the Permanent *ecretaries have very !#sy sched#les and many are times they ski% meetings thro#gh no fa#lt of their own) which may again fr#strate the (o#ncil8s %roceedings. To date) the (o#ncil has served for two terms. Decisions on %olicy directives and %riorities are yet to !e taken other than tho&e that e&ta#li&hed the
o%erationaGisation o, the 2ational +nvironment /anagement A#thority B2+/AC. F#rther) attendance at the meetings has !een !alanced) with almost e>#al re%resentation of the Permanent *ecretaries Bor their alternatesC. In addition to %olicy form#lation) other f#nctions of the (o#ncil %ertain to a%%ointment of the seven mem!ers to the $oard of the 2ational +nvironment /anagement A#thority B=the A#thority or= 2+/AC where!y the /inister is re>#ired to cons#lt the (o#ncil for recommendations !efore s#ch a%%ointments. In addition) once the $oard of the 2ational +nvironment Tr#st F#nd determines who is to get %riDes and awards for exem%lary service in environmental management and %rotection) the same is s#!?ect to the (o#ncil8s endorsement. " 1here it is necessary to %rescri!e de%osit !onds as sec#rity for good environmental %ractice) recommendation of the (o#ncil is mandatory. 7 Perha%s the most im%ortant role of the (o#ncil lies with relation to the P#!lic (om%laints (ommittee BP((C) an instit#tion we shall disc#ss in more detail later in this cha%ter. The P(( is mainly res%onsi!le and acco#nta!le to the (o#ncil as it is re>#ired !y law to s#!mit all its re%orts and findings to the (o#ncil.&: The (o#ncil also determines the rem#neration) fees and allowances %aya!le to the chairman and mem!ers of the P((. Indeed) it has !een arg#ed that if the P(( is active) the (o#ncil is likely to !e very !#sy if the re%orts of the P(( are %#!lished %rom%tly and reg#larly as recommended for action !y the (o#ncil. && It is only when the %#!lic see their com%laints !eing %#!lished and acted #%on !y P(( and the (o#ncil) and indeed the relevant government agencies to which stat#tory action is mandated) can the (o#ncil and P(( en?oy
res%ect and goodwill in the eyes of the %#!lic. This is as a res#lt of the %#!lic knowing that they are !eing listened to and that they have a %lace to go to lodge com%laints and that action follows their com%laints. This sort of action s#%%orts the level of access to environmental ?#stice that +/(A was enacted to attain. Another f#nction that may kee% the (o#ncil fairly active is that of considering for
+/(A) *ection &:B&C BcC.
"
+/(A) *ection -5B3C. *ection -" of +/(A re>#ires that the /inister of Finance may re>#ire %ersons engaged in activities or in o%erating
ind#strial %lants and other #ndertakings) which have or are most likely to have significant adverse effects on the environment) to %ay ade>#ate de%osit !onds.
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+/(A) *ection 4-. +/(A) *ection 4'B&C.
&&
recommendation to the /inister of Finance who or which %ersons or !odies deserve government tax and other fiscal incentives or disincentives) or fees that can !e #sed to ind#ce or %romote the %ro%er management of the environment and nat#ral reso#rces) or the %revention or a!atement of environmental degradation.&- This co#ld %ossi!ly !e an area a!o#nding in a%%lications for c#stoms and excise waivers and tax re!ates. 9owever) the same is yet to !e %#t to test. Another area that may also kee% the (o#ncil !#sy is that %ertaining to international treaties) conventions and agreements concerning the management of the environment to which 0enya is a %arty or sho#ld !e a %arty. 0enya is a %arty to several m#ltilateral environmental agreements. 1ith the ex%ansion of the develo%ment of these agreements on the glo!al scene and the develo%ment of several %rotocols im%lementing these agreements) the (o#ncil is !o#nd to !e
active. This is !eca#se +/(A re>#ires 2+/A to act) #nder the direction and control of the (o#ncil) in initiating legislative %ro%osals for consideration !y the Attorney <eneral to im%lement s#ch m#ltilateral environmental agreements.&4 In order to give effect to any other instr#ments or to ena!le 0enya to %erform her o!ligations or exercise her rights #nder them) the (o#ncil is similarly em%owered to g#ide the A#thority. *#!?ect to s#ch direction and control) the A#thority is also re>#ired to identify other a%%ro%riate meas#res necessary for the national im%lementation of any treaty) convention or agreement. It has not) however) !een %ossi!le to ascertain whether the (o#ncil has %rovided any form of direction or g#idance to 2+/A for %#r%oses of im%lementing) thro#gh legislative %ro%osals) several of the environmental agreements 0enya is %arty to. 1ational Environment "anagement $%thority The 2ational +nvironment /anagement A#thority B2+/AC is esta!lished #nder *ection of the Act) as a !ody cor%orate with %er%et#al s#ccession) ca%a!le of s#ing and !eing s#ed) holding and dis%osing of %ro%erty) !orrowing money) and entering into contracts in its cor%orate name. It is head>#artered in 2airo!i !#t has %rovincial and district offices thro#gho#t the co#ntry. O%erationally) the A#thority is the most im%ortant agency esta!lished !y the Act. In s#mmary) its o!?ect and %#r%ose can !e highlighted as twofold; Q to ens#re s#staina!le management of the environment thro#gh exercising general s#%ervision and co6ordination over the matters relating to the environmentE and Q to !e the %rinci%al instr#ment of <overnment in the im%lementation of all %olicies relating to the environment.&5
At the time 2+/A was esta!lished) there were many other government ministries) de%artments)
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+/(A) *ection 3 . +/(A) *ection &-5B&C. +/(A) *ection 7B&C.
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%arastatals and local government !odies Bknown as lead agenciesC in whom any law vests res%onsi!ilities for environmental management to address s%ecific environmental iss#es or to manage certain reso#rces. These instit#tions) with their sectoral mandates) are still legally maintained #nder 0enyan law as +/(A did not re%eal any laws nor did 2+/A re%lace any instit#tions Bsave for the 2ational +nvironment *ecretariat and the Permanent Presidential (ommission on *oil (onservation and AfforestationC. In addition) d#e to the fact that 2+/A cannot !e all over the co#ntry at all times and in order not to create a !loated !#rea#cracy) the Act %rovides for the discharge of some of 2+/A8s f#nctions thro#gh lead agencies. It sho#ld) therefore) !e 2+/A8s strategy to work in close liaison with all these =lead= agencies. As s#ch and for %ro%er co6ordination and strategic #se of reso#rces distri!#ted from the government8s !#dgetary allocations) it is im%erative that these lead agencies develo% internal ca%acity to contri!#te to s#staina!le environmental management) collect data and disseminate information) and %romote environmental ed#cation and %#!lic awareness in their res%ective sectors. 2+/A will have to work with lead agencies to harmonise and co6ordinate the com%etences and mandates in their sectors. The effective governance of the environment re>#ires a harmonised and co6 ordinated
a%%roach of the com%etences and mandates of the lead agencies in each of their res%ective sectors. 1itho#t the %ro%er finances and technical know6how of res%ective lead agencies) 2+/A cannot manage the ?o! of ens#ring a clean and healthy environment for all in 0enya. 2+/A8s f#nctions) which determine its sco%e of activities) are more %artic#larly set o#t in *ection 7B-C of the Act. They incl#de inter!alia co6ordination of the vario#s environmental management activities !eing #ndertaken !y the lead agencies and %romoting the integration of environmental considerations into develo%ment %olicies) %lans) %rogrammes and %ro?ectsE esta!lishing and reviewing) in cons#ltation with relevant lead agencies) land #se g#idelinesE advising the <overnment on legislative and other meas#res for the management of the environment or the im%lementation of relevant international conventions) treaties and agreements in the field of environmentE advising the <overnment on regional and international environmental conventions) treaties and agreements to which 0enya is a %artyE mo!iliDing and monitoring the #se of financial and h#man reso#rces for environmental managementE and rendering advice and technical s#%%ort where %ossi!le to entities engaged in national reso#rces management and environmental %rotection so as to ena!le them to carry o#t their res%onsi!ilities satisfactorily. Other %owers) f#nctions and d#ties of the A#thority relate to the vario#s iss#es s#ch as environmental %lanning) %rotection and conservation) im%act assessments) a#dit and monitoring) >#ality standards) restoration and conservation. 2+/A is managed !y a $oard of /anagement whose (hairman is a%%ointed !y the President while the rest of the mem!ers of the $oard are a%%ointed !y the /inister of +nvironment and 2at#ral .eso#rces. 9owever) altho#gh the /inister a%%oints the mem!ers of the $oard) their a%%ointment is s#!?ect to the recommendation of the 2ational +nvironment (o#ncil. The
mem!ers of the $oard are a%%ointed !y virt#e of their knowledge and ex%erience in environment management. The %rinci%al role of the $oard is to review the %olicy and strategic %lan of 2+/A) oversee their im%lementation and %rovide g#idance to the Director <eneral of 2+/A. The $oard also a%%roves the ann#al !#dget and %lans of 2+/A and monitors and eval#ates its %erformance against !#dgets and %lans. In addition) the $oard is em%owered to esta!lish and a%%rove r#les and %roced#res for the a%%ointment) disci%line) termination and terms and conditions of service of staff) administrative matters and financial matters. The following constit#tes the make6#% of the $oard of /anagement of the A#thority; Q the Permanent *ecretary of the /inistry =res%onsi!le for matters relating to the A#thority= or his designated officerE Q a *ecretary) a%%ointed !y the A#thorityE Q Director <eneral) a%%ointed !y the PresidentE Q 4 Directors who shall !e officers of the A#thorityE and Q %ersons Bnon6%#!lic officersC a%%ointed !y the /inister in
cons#ltation with the (o#ncil. The %rovision for three Directors who shall !e officers of the A#thority is somewhat anomalo#s as the Act does not state whose a%%ointees they will !e; /inister8s or Permanent *ecretary8s or Director <eneral8s. 9owever) cor%orate governance str#ct#res in 0enya today %oint to the incl#sion of senior management officers within the $oard to ens#re %ro%er re%orting and
exec#tion of the directions given !y the $oard. It is no longer ade>#ate to have only the (hief +xec#tive sit on a $oard of /anagement witho#t his@her technical ex%erts at hand for o!vio#s reasons. 9owever) d#e to the iss#e on a%%ointment of these three Directors) it is im%erative that the Act !e amended to %rovide for the trans%arent modality for the a%%ointment of these individ#als. In order %erha%s to avoid the %oor and scandalo#s %erformance of %arastatal !oards of yesteryears) the Act deli!erately %rovides for s%ecific >#alifications of the $oard mem!ers to ens#re that only those who are most deserving are act#ally a%%ointed onto the $oard. A%art from the Permanent *ecretary or his designate) who are mem!ers merely !y virt#e of the office they hold) the $oard of the A#thority is another high6level organ of academic l#minaries. They m#st each hold at least a =%ost6grad#ate degree from a recognised #niversity in the fields of environmental law) environmental science) nat#ral reso#rce management or a relevant social science=. The Director <eneral) the chief exec#tive of the A#thority m#st) in addition) have a minim#m of &3 years working ex%erience in the relevant field. &3 All this goes to show the %re6eminence accorded !y Parliament to the A#thority. Indeed) this is one of the very few enactments in 0enya8s stat#te !ooks that takes the ca#tion to define ?o! >#alifications of an a%%ointee6to6!e. 9owever) one m#st
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+/(A) *ection &:B-C.
Internal Teaching Use Only &":
!e ca#tio#s in a%%roaching the a%%ointment of mem!ers of the $oard and not !e tem%ted to !loat the $oard with only academic l#minaries. The management of any effective !oard in 0enya
re>#ires %ersons who are not only vested in scientific) academic and theoretical %rowess) !#t with %ersons who have dis%layed management and governance skills that are re>#ired to r#n cor%orate %#!lic entities of the nat#re of 2+/A. It is) therefore) im%erative that a mixt#re of talent !e #sed to fill the %ool of $oard mem!ers of the A#thority to ens#re !alanced and efficient dis%osition of the $oard8s administrative d#ties. The Act f#rther %rovides res%ective terms of office to !e held !y the mem!ers as well as for making of decisions) voting) vacation of office) etc. rovincial and 8i&trict Committee& In addition to the a!ove national organs) there are a n#m!er of %rovincial and district6!ased stat#tory committees. The Act %rovides for the a%%ointment !y the /inister of +nvironment and 2at#ral .eso#rces) of =Provincial and District +nvironment (ommittees of the A#thority) which is chaired !y the res%ective Provincial (ommissioners and District (ommissioners. &' These (ommittees are created for %#r%oses of disc#ssion and decision6making on matters relating to the %ro%er management of the environment within the res%ective %rovince or district. The Act) therefore) ena!les local administrators to !e involved in the management of the environment. +nvironment (ommittees are created at the lowest levels of the local government str#ct#res to ena!le %#!lic %artici%ation in environmental decision6making at those levels. This kind of instit#tional framework ens#res that nat#ral reso#rces are controlled and managed !y comm#nities for their own !enefit on s#staina!le !asis. This is es%ecially so d#e to the re>#irements of the com%osition of the committees.
The com%osition of these committees is s#ch that local comm#nities who are closely connected to the reso#rces are em%owered to have a say in their management. Among the mem!ers of the Provincial +nvironmental (ommittee BP+(C are two re%resentatives of farmers or %astoralists within the %rovince) two re%resentatives of the !#siness comm#nity within the %rovince) and two re%resentatives of 2<Os engaged in environmental management %rogrammes within the %rovince. 1ith res%ect to the District +nvironmental (ommittee BD+(C) mem!ershi% incl#des fo#r re%resentatives of farmers) women) yo#th and %astoralists within the district) two re%resentatives of 2<Os engaged in environmental management %rogrammes in the districts and two re%resentatives of comm#nity6!ased organisations engaged in environmental %rogrammes in the district. This ela!orate constit#tion of the committees not only enhances the roles of individ#als and comm#nity6!ased gro#%s) !#t also facilitates their %artici%ation in the decision6making %rocess and there!y !oosts environmental governance. This has !een seen as one of the modalities
&'
+/(A) *ection -7B&C.
Internal Teaching Use Only &"&
that allows for %artici%ation of the %#!lic at grassroots levels thro#gh involvement of 2<Os) ($Os) farmers) %astoralists) etc who may !e seen as re%resenting the voice of the %#!lic in s#ch areas. On close examination of the Act) it is not easy to discern why these are referred to as =(ommittees of the A#thority=. ,egislative %rovisions do not %rovide for them to f#nction #nder
the direction of or re%ort to the A#thority) !#t rather to the /inister who may) from time to time) assign to them =additional f#nctions= !y notice in the 0enya <aDette. & 2o f#nctional link with the A#thority is discerni!le.&" The Act sti%#lates that the A#thority shall %rovide secretarial services to the (ommittees thro#gh the res%ective offices of the Provincial and District +nvironment Officers who are in t#rn re>#ired to liaise with 2+/A on all matters relating to the environment in their districts@%rovinces and to make s#ch re%orts to 2+/A. These officers are fo#nd within 2+/A8s administrative str#ct#res. It is) therefore) inc#m!ent on these officers to %rovide relevant s#%%ort and co6ordination f#nction in res%ect of the (ommittees) in addition to %romoting environmental awareness thro#gh %#!lic ed#cational cam%aigns) gathering and management of information on the environment) #tilisation of nat#ral reso#rces in the districts and ens#ring enforcement and com%liance of environmental standards. These committees are charged with the %ro%er management of the environment in their res%ective administrative areas and shall %erform s#ch additional f#nctions as are %rescri!ed #nder the Act or as may !e assigned !y the /inister) not the $%thority, !y notice in the 0enya <aDette.&7 On the gro#nd) and to allow for effective re%orting of activities) the Provincial +nvironmental (ommittees BP+(sC and District +d#cation (ommittees BD+(sC s#!mit their recommendation for
management of the environment in their res%ective %rovinces and districts to 2+/A thro#gh the Provincial and District +nvironmental Officers. The (ommittees) altho#gh not receiving directives from the Director <eneral of 2+/A) work closely with the res%ective environmental officers to ens#re that the s%irit and essence of +/(A is im%lemented. 9owever) it is im%erative that this loo%hole in the Act !e amended to %rovide for a clear relationshi% !etween the P+(s and D+(s and the A#thority and for efficient administration and management of the environment. Bechnical $dvi&ory Committee +/(A also %rovides for the esta!lishment of other committees. One s#ch committee is the
&
*ee +/(A) *ection 4:B!C. .a#tta6Athiam!o M-::4N making reference to The .e%ort of the Task Force on the .eform of Penal ,aws and
&"
Proced#res) 0enya <aDette *#%%lement 2o. 4 BAct 2o. " of &777C) s%elt o#t the %owers and d#ties of the Provincial and District +nvironment Officers and clearly sti%#lated that they were to !e res%onsi!le to the Director <eneral; *ee cla#ses "-6"5 at -'-64 of the .e%ort. For inex%lica!le reason) this link was c#t off in the final doc#ment.
&7
+/(A) *ections -7 K 4:.
Internal Teaching Use Only &"-
Technical Advisory (ommittee to advise the A#thority on environmental im%act assessment re%orts.-: *ection 3" of the Act %rovides that certain %ro?ects m#st #ndergo environmental im%act assessment and %ro?ect re%orts are to !e s#!mitted to the A#thority. *#ch %ro?ects incl#de any activity o#t of character with its s#rro#nding) ma?or changes in land #se) #r!an develo%ments) trans%ortation) dams) rivers) aerial s%raying) mining) forestry6related activities) agric#lt#re) %rocessing and man#fact#ring ind#stries) electrical infrastr#ct#re) and management of hydrocar!ons) nat#ral conservation areas) n#clear reactors and ma?or develo%ments in technology.-& The (ommittee) which is to !e known as the Technical Advisory (ommittee on
+nvironmental Im%act Assessment) is likely to !e a !#sy one more so if it !ecomes a standing committee. 9owever) the Act %rovides that 2+/A may esta!lish s#ch ty%e of (ommittee and its terms of reference and r#les of %roced#re are to !e %rescri!ed !y the Director <eneral of the A#thority. Inter%retation of this %rovision that #ses discretionary lang#age im%lies that s#ch a committee is an ad hoc one to !e esta!lished as and when need arises. This need es%ecially arises when 2+/A is faced with com%lex environmental decisions re>#iring extremely technical knowledge that is not within the ca%acity of the A#thority. The Act) therefore) allows 2+/A to rely on scientific and technical ex%ertise of mem!ers of s#ch a (ommittee that is a%%ointed. Indeed) the A#thority will certainly de%end on this committee8s advice !efore it can iss#e an environmental im%act assessment licence #nder section '4. 1ational Environment $ction lan Committee Another !ody that falls #nder the aegis of the A#thority is the 2ational +nvironment Action Plan (ommittee) chaired !y the Permanent *ecretary in the /inistry of +conomic Planning and Develo%ment. A Director of the A#thority is its *ecretary. *ection 4 of the Act %rovides for its mem!ershi% to incl#de the Permanent *ecretaries in the /inistries res%onsi!le for matters s%ecified in the First *ched#le of the Act) fo#r re%resentatives of the !#siness comm#nity as a%%ointed !y the /inister) re%resentatives of each of the instit#tions s%ecified in the Third *ched#le) five re%resentatives of 2<Os nominated !y the 2ational (o#ncil of 2<Os) and re%resentatives of s%ecialiDed research instit#tions that are engaged in environmental matters as may !e determined !y the /inister. The mem!ershi% of this (ommittee can easily add #% to 57Z
This large n#m!er co#ld easily im%air the work of the (ommittee as decisions may take long to !e made and administering s#ch a committee may !e >#ite c#m!ersome. 9owever) on the %ositive side) d#e to s#ch wide re%resentation on the (ommittee) one can say that the in%#t made from s#ch a committee is as re%resentative as %ossi!le from all relevant sectors of stakeholders involved in environmental management in 0enya. The main role of the (ommittee is to %re%are 36
-:
+/(A) *ection '&. *ee *econd *ched#le of +/(A.
-&
Internal Teaching Use Only &"4
year national environmental action %lans for consideration and ado%tion !y the 2ational Assem!ly. *#ch a %lan shall) among other things) contain an analysis of the nat#ral reso#rces for each %rovince or district with an indication as to any %attern of change in their distri!#tion and >#antity over time) a recommendation of a%%ro%riate legal and fiscal incentives that may !e #sed to enco#rage the !#siness comm#nity to incor%orate environmental re>#irements into their %lanning and o%erational %rocesses) %ro%osed g#idelines for the integration of standards of environmental %rotection into develo%ment %lanning and management) and identification and recommendation of %olicy and legislative a%%roaches for %reventing) controlling or mitigating s%ecific as well as general adverse im%acts on the environment. -- The 2ational +nvironment Action Plan8s B2+APC content is also re>#ired to take into acco#nt the District +nvironment Action Plans BD+APsC. The 2+AP is s#!?ect to ado%tion !y the 2ational Assem!ly) !efore !eing disseminated to the %#!lic as a !inding doc#ment #%on which all %ersons and all <overnment de%artments) agencies and organs sho#ld adhere. To date) this (ommittee has yet to %#!lish a
five6year +nvironment Action Plan. -tandard& and En,orcement 9eview Committee Another stat#tory committee is the *tandards and +nforcement .eview (ommittee esta!lished #nder *ection : of the Act) which is chaired !y the Permanent *ecretary in the /inistry res%onsi!le for environmental matters. The com%osition of the (ommittee is determined !y *ections : and the Third *ched#le of the Act. The f#nctions of the (ommittee incl#de advising 2+/A on how to esta!lish criteria and %roced#res for the meas#rement of water >#ality) recommending to 2+/A minim#m water >#ality standards for all waters of 0enya) analyDing and s#!mitting to the Director <eneral conditions for discharge of effl#ents into the environment) and doc#menting the analytical methods !y which water >#ality and %oll#tion control standards can !e determined and a%%ointing la!oratories for the analytical services re>#ired. Other stat#tory f#nctions of the committee are advising 2+/A on how to esta!lish criteria and %roced#res for the meas#rement of air >#ality B*ection "C) the iss#e of reg#lations and g#idelines and the %rescri%tion and s#!mission to 2+/A of draft standards on %esticides and toxic s#!stances B*ection 75C) recommending to the A#thority standards for emissions of noise and vi!ration %oll#tion into the environment B*ection &:&C) and the esta!lishment of standards for ionising and other radiation B*ection &:5C. In this res%ect) the Act confers on the *tandards and +nforcement (ommittee r#lemaking %owers. +nvironmental >#ality criteria and standards are essential com%onents of environmental management) %artic#larly for ens#ring an environment that is ade>#ate for health and general
well6!eing re>#irements. +/( A) !eing the framework law) %rovides the as%ects of the
--
+/(A) *ection 4 .
environment that re>#ire having s#ch criteria and standards. The levels of the criteria and standards as well as the modality for their a%%lication and reg#lation are left for s#!sidiary legislation to take care of) taking acco#nt of the conditions and circ#mstances o!taining in 0enya for which they are !eing ela!orated. *tandards are) therefore) !enchmarks for meas#ring %oll#tion. They %rovide consistency and certainty in decision6making and %rovide %rotection of health and the environment. In %ractice) the draft reg#lations and standards are ado%ted !y the $oard of /anagement for ownershi% and then forwarded to the /inister for %rom#lgation and gaDettement. The (ommittee) therefore) acts as the technical arm of 2+/A in setting these standards. To date) the following reg#lations have !een %rom#lgated !y the /inister of +nvironment and 2at#ral .eso#rces and in exercise of the mandate of the (ommittee. *ince the Act came into o%eration) the reg#lations that have !een develo%ed incl#de; Q The +nvironmental BIm%act Assessment and A#ditC .eg#lationsE -4 Q +nvironmental /anagement and (o6ordination B1ater I#alityC *tandards and .eg#lationsE-5 Q +nvironmental /anagement and (o6ordination B1aste /anagementC .eg#lationsE -3 Q +nvironmental /anagement and (o6ordination B(onservation of $iological Diversity and .eso#rces) Access to <enetic .eso#rces and $enefit *haringC .eg#lationsE-' and
Q +nvironmental /anagement and (o6ordination B(ontrolled *#!stancesC .eg#lations)- ,2 44 of -:: . At the time of writing this cha%ter) 2+/A was in the %rocess of develo%ing reg#lations and standards on +nvironmental Air I#ality *tandardsE 2oise *tandards and (ontrol .eg#lationsE and 1etlands) .iver $anks and ,ake *hores /anagement .eg#lations. 3ther elevant Bodies +/(A also %rovides for the esta!lishment of two other key !odies that directly relate to environmental management in 0enya. The 1ational Environment Br%&t F%nd is esta!lished to facilitate research intended to f#rther the re>#irements of environmental management) ca%acity !#ilding) environmental awards) environmental %#!lications) scholarshi%s and grants. It is vested in the A#thority and sho#ld !e r#n
-4
,2&:& of -::4. ,2&-: Of -::'. ,2 &-& of -::'. ,2 &': of -::'. ,2 44 of -:: .
-5
-3
-'
!y a $oard of Tr#stees of five %ersons to !e a%%ointed !y the /inister -" and !y dint re%orting to the a%%ointing a#thority. /oney for this f#nd comes from donations) endowments) grants and gifts) together with money or other %ro%erty s%ecifically designated to the Tr#st F#nd from the <eneral f#nd. The main o!?ect of this F#nd is to facilitate research intended to f#rther the re>#irements of environmental management) ca%acity !#ilding) environmental awards) environmental %#!lications) and
scholarshi%s and grants. The #sef#lness of incentives and disincentives to %romote environmental !ehavio#r that is com%ati!le with s#staina!le develo%ment is now well esta!lished. One way in which not only good environmental !ehavio#r !#t also exce%tional achievements in the environmental area can !e %romoted is thro#gh the esta!lishment of a system where !y individ#als and organisations can !e %rovided with recognition and award) incl#ding financial award. For exam%le) recognition and awards for cor%orate !odies or individ#al entre%rene#rs who are known to achieve and consistently maintain com%liance to environmental re>#irements will not only %rovide them with a sense of %ride !#t will also enco#rage others to do likewise. It is not #nreasona!le to arg#e that s#ch an a%%roach can contri!#te) among others) to minimising the cost of enforcement. 9owever) des%ite its esta!lishment in -::5) the Tr#stees are yet to formalise their o%erations and start f#ndraising for the Tr#st in addition to making the vario#s awards as mandated. 9owever) a /anager was hired in -::' to administer the *ecretariat of the Tr#st F#nd and it is ho%ed that with this added ca%acity) the Tr#stees will !e in a %osition to discharge their mandate. Under the aegis of the A#thority lies the 2ational +nvironment .estoration F#nd. The o!?ect of the .estoration F#nd is to act as s#%%lementary ins#rance for the mitigation of environmental degradation. It will !e #sed in cases where the %er%etrator of the damage is not identifia!le) or exce%tional circ#mstances force the A#thority to intervene in the control or mitigation of environmental degradation. The monies from this f#nd come from several so#rces) namely; money levied from %ro?ect
%ro%onents !y notice in <aDette !y the /inisterE money received !y way of fees levied or de%osit !ondsE and money received !y way of donation or levies from ind#stries and other %ro?ect %ro%onents and investment and interest. To date) the A#thority has esta!lished an acco#nt for these monies !#t the F#nd has yet to discharge its mandate as %rovided !y the Act. The A#thority is in the %rocess of %re%aring g#idelines to !e #sed for identifying areas and %riorities that have !een environmentally degraded and fall within the stat#tory re>#irements of the Act) there!y allowing for dis%ensation of the monies from the F#nd.-7
-"
+/(A) *ection -5. +/(A) *ection -5 K -3.
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(ispute esolution Bodies The Act %rovides for two ma?or mechanisms for com%laints handling and dis%#te settlement) namely the P#!lic (om%laints (ommittee and the 2ational +nvironment Tri!#nal. Disc#ssions leading to the esta!lishment of one of these mechanisms envisaged an +nvironmental Om!#dsman to receive com%laints and %etitions of technical and non6technical character. The other was the +nvironmental Tri!#nal to settle dis%#tes and review administrative decisions. 4: %#lic Complaint& Committee The ideology !ehind the esta!lishment of the committee was to have a !ody that wo#ld receive com%laints directly from mem!ers of the %#!lic) m#ch like an om!#dsman. Instead of the creation of an om!#dsman that wo#ld !e inde%endent from the Director <eneral) the P#!lic (om%laints
(ommittee BP((C was esta!lished as a committee of the A#thority. 4& *tat#tory inter%retation of *ection 4& of the Act %laces the P(( as !eing directly #nder or s#!ordinate to the administrative str#ct#res of the A#thority) which r#ns co#nter to the conce%t and theory of this instit#tion. It has !een arg#ed that in having the mandate to investigate the action of the Director <eneral) it is im%ro%er to %lace the P(( #nder the s#%ervision of the A#thority des%ite the fact that the P(( re%orts directly to the (o#ncil and it is #%on these re%orts that the (o#ncil acts on the recommendations of the P((. 9owever) des%ite these flaws in the legislation) the P(( is still recognisa!le as a !ody fashioned after the instit#tion of the Om!#dsman. Until the Act is amended) it m#st act within the content of the Act or its actions may !e challenged as !eing %ltra vire&. *ections 4&64' of the Act %rovide for the esta!lishment and mandate of the (ommittee. In s#mmary) the committee is headed !y a %erson >#alified for a%%ointment as a 9igh (o#rt ?#dge and a%%ointed !y the /inister. The f#nctions of the (ommittee incl#de investigation of allegations or com%laints against any %erson or against 2+/A in relation to the condition of the environment in 0enya or any s#s%ected cases of environmental degradation. It has >#asi6?#dicial f#nctions with %owers to &%#poena witnesses and com%o#nd offences. It f#nctions like an environmental om!#dsman. U%on investigating and hearing the %#!lic on their com%laints) the (ommittee is re>#ired to make a re%ort of its finding and recommendation thereon to the 2ational +nvironment
(o#ncil which) in t#rn) directs 2+/A on the im%lementation of the recommendations. The (ommittee %rovides a %rocess for legal em%owerment of the %#!lic as well as a for#m to check and control %rivate and %#!lic %olicies and decisions in order to ens#re environmental acco#nta!ility and) conse>#ently) so#nd environmental management. In addition to having %owers to investigate any com%laint made to it !y the %#!lic against any
4:
-%pra note - at &&:E .e%ort of the Taskforce -%pra note &" at &"3)&7:. +/(A) *ection 4.
4&
Internal Teaching Use Only &"
%ersons or even against the Director <eneral of 2+/A) the P(( en?oys considera!le investigative %owers. It can commence and carry o#t investigations &%o moto when it s#s%ects that any act or omission is or might !e harmf#l to the environment. It need not !e %assive) waiting for allegations or com%laints to !e lodged with it !y other %arties !efore investigation. Des%ite the mem!ers of the P(( !eing very !#sy %rofessionals) %roced#ral g#idelines can %rovide for f#ll time staff within the P(( to #ndertake %reliminary investigations on a com%laint. De%endent on the re%orts made) the P(( can then decide whether or not a f#ll committee is re>#ired for investigation or ?#st a few of its mem!ers are re>#ired to #ndertake field visits. This is in order to save on h#ge administrative costs that are re>#ired for s#ch visits. /oreover) in res%ect of anything done !ona fide !y its (hairman or mem!er) no %roceedings will lie against eitherE they en?oy imm#nity against any %roceedings. 4- The P(( has investigated h#ndreds of com%laints and com%leted re%orts on the same. 9owever) only one of its ann#al
re%orts has !een %resented to the (o#ncil for f#rther action. This action is yet to !e taken with regard to the re%ort. The other re%orts are awaiting ta!ling !efore the (o#ncil for f#rther action. It is envisaged that the re%orts of the P(( !ecome %#!lic once they are ta!led !efore the (o#ncil) since these %eriodic re%orts of its activities shall form %art of the ann#al re%ort on the state of the environment)44 which the /inister is ex%ected to lay !efore Parliament. *#ch re%orts can !e viewed as a reflection of the citiDens concerns with their environment and may) in themselves) !e viewed as a form of access to ?#stice and decision making on environmental matters. This is es%ecially so if Parliament takes it #%on itself to disc#ss the %ertinent iss#es that arise o#t of the re%ort and act on the recommendations with regard to %olicy re>#irements that the P(( may make. Des%ite the legislative shortcomings that have affected the efficacy of the P(( as an environmental om!#dsman) one can discern that so long as its investigations remain im%artial and a!ove !oardE so long as it %rotects the interests of the individ#al com%lainantE it %romotes access to and dis%ensation of s%eedy environmental ?#stice and the %roced#re for lodging com%laints is clear and #ncom%licated to the ordinary aggrieved %ersonsE then) the P#!lic (om%laints (ommittee will !e >#ite an effective !ody within the stat#tory framework designed #nder the Act. The P(( will !e a key %artner of the 2ational +nvironment Tri!#nal in the %rocess of dis%#te settlement. +ven tho#gh it does not have the %ower to determine dis%#tes) it is ex%ected that many
individ#al com%lainants will seek assistance from the P(( in order to avoid %ossi!le costs and ex%enses. *ince it is em%owered to reg#late its own %roced#re) the (ommittee sho#ld make s#ch r#les of %roced#re as will strengthen its o%erations and the manner of going a!o#t com%laints.45
4-
+/(A) *ection 45. +/(A) *ection 4-B!C. #id.
44
45
Internal Teaching Use Only &""
1ational Environment Bri#%nal0@ The second inde%endent instit#tion esta!lished #nder +/(A is the 2ational +nvironment Tri!#nal. This instit#tion is esta!lished #nder *ection &-3 of the Act and chaired !y a %erson >#alified for a%%ointment as a ?#dge of the 9igh (o#rt of 0enya) nominated !y the G#dicial *ervice (ommission. Other mem!ers incl#de an advocate of the 9igh (o#rt of 0enya nominated !y the ,aw *ociety of 0enya) a lawyer with %rofessional >#alification in environmental law a%%ointed !y the /inister) and two %ersons who have demonstrated exem%lary academic com%etence in the field of environmental management a%%ointed !y the /inister. The Act also %rovides for vacation of mem!ershi%. It is c#rio#s to note that *ection &-3BcC %rovides that a mem!er of the Tri!#nal may !e removed from mem!ershi% !y the /inister for fail#re to discharge the f#nction of his office whether arising from infirmity of !ody of mind or from any other ca#se or for mis!ehavio#r Bem%hasis addedC. It is not clear what defines =from any other ca#se=. *#ch a %rovision may !e s#!?ect of a!#se in
the hands of a /inister as it gives wide discretion and does not call for any reasons to !e given for s#ch action. F#rthermore) when one closely reviews the Act) one finds that the chairman of the Tri!#nal) who is nominated into mem!ershi% of the Tri!#nal !y the G#dicial *ervice (ommission) can !e removed like) or along with) any other mem!er !y the /inister for !og#s reasons) and so can the nominee of the ,aw *ociety of 0enya. This #ntena!le sit#ation needs to !e rectified sooner rather than later. Facation of office of any mem!er of the Tri!#nal m#st !e made s#!?ect to rigoro#s conditions so as to disco#rage removals !ased on the vicissit#des of some individ#als. Tri!#nals m#st not) as we have seen a!ove) !e regarded as ad?#ncts to the administration !#t;
&ho%ld properly #e regarded a& machinery provided #y arliament ,or ad3%dication rather than a& part o, the machinery o, admini&tration. Bhe e&&ential point i& that... arliament ha& deli#erately provided ,or a deci&ion o%t&ide and independent o, the department concerned. 0H
The Tri!#nal8s %rimary f#nctions are to hear dis%#tes of a technical nat#re on the administration of the Act as well as a%%eals against the administrative decision taken !y 2+/A and other organs res%onsi!le for enforcement of the Act and reg#lations or re>#irements there#nder. *#ch a%%eals may !e la#nched !y any %erson aggrieved !y) for instance) on the ref#sal to grant a licence #nder the Act) the im%osition of an environmental restoration or im%rovement order or the >#ant#m of
fees he is re>#ired to %ay #nder the Act. The Act %rovides that the Tri!#nal shall not !e !o#nd !y the r#le of evidence a%%lica!le in reg#lar ?#dicial %roceedings) there!y making the Tri!#nal8s
43
For an extensive review of the exercise and f#nction of 0enya8s 2ational +nvironmental Tri!#nal) see .a#tta6 Athiam!o
M-::4N.
4'
*ee .e%ort of the (ommittee on Administrative Tri!#nals and +n>#iries) 9/*O (omnd -&") G#ly &73 %aragra%h
5: %artly re%rod#ced !y Prof. *. 9. $ailey) Prof. $. ,. Gones and A. .. /ow!ray in (ases and /aterials on Administrative ,aw) third edition) %. 5 as disc#ssed !y .att#a6Athiam!o M-::4; 57N.
%roceedings non6technical in nat#re and hence accessi!le to every %erson. The Tri!#nal is em%owered to make s#ch orders and awards as it may deem ?#st. Any %erson aggrieved !y the order or award of the Tri!#nal may a%%eal to the 9igh (o#rt) which has %owers to confirm) set aside or vary the decision of the Tri!#nal or to remit the %roceedings of the Tri!#nal for f#rther consideration) or to make s#ch other order as it may deem ?#st. In the decision as to whether or not to have environmental a%%eals follow the #s#al ?#dicial %rocess or not) a tri!#nal was deemed to !e the most a%%ro%riate for#m for the settlement of environmental dis%#tes in 0enya. This was %erha%s d#e to the fact that o#r co#rts are not only choking with cases) !#t they are also c#rrently ill6e>#i%%ed to handle all the as%ects of environmental dis%#tes. /any iss#es) !oth civil and criminal) will of co#rse contin#e to !e determined !efore these co#rts of law. For exam%le) if a %erson alleges contravention of his entitlement to a clean and healthy environment) he m#st seek redress straight from the 9igh (o#rt)4 and all environmental offences are %rosec#ted !efore the criminal co#rts. 4" 9owever) when it comes to administrative decisions dis%ensed with solely !y theA#thority8s committees or !y 2+/A) an environmental tri!#nal was felt to !e more efficacio#s. 47 The 2ational +nvironment Tri!#nal has !een set #% #nder +/(A =to entertain a%%eals with regard to matters related to licences #nder the Act and the im%osition of environmental restoration
orders as well as to decisions of the A#thority and its committees. 5: In a way) the Tri!#nal will largely de%end on s#ch work as will !e created for it !y the A#thority and its committees. *ince its esta!lishment in -::4) the work of the Tri!#nal has grad#ally increased from dealing with no cases in -::4 and -::5 to dealing with three cases in -::3 and now with cases increasing !y n#m!er. At the time of writing this cha%ter) -- a%%eals had !een filed in the Tri!#nal) some of which had !een dis%ensed with) some %ending hearing and only three had !een taken on f#rther a%%eal !y the litigants to the 9igh (o#rt. Perha%s this somewhat lack of work was a res#lt of lack of awareness !y the %#!lic and advocates at large of the existence of the Tri!#nal as an effective for#m to vent o%%osition has hitherto existed. 9owever) with awareness of the existence of the Tri!#nal and f#ll o%erationalisation) the f#nctioning of the Tri!#nal has changed dramatically. It has created a %latform to canvass for individ#al comm#nity rights) where legal standing and costs will no longer !e an ins#rmo#nta!le im%ediment and where administrative ?#stice will !e g#aranteed. The Tri!#nal has !een %romoting awareness of its existence thro#gh worksho%s at district level. In as m#ch as cases are filed in 2airo!i) the Tri!#nal) in %laying its role in the %romotion of access to ?#stice) visits sites of dis%#ted activities and takes evidence at those sites
4
+/(A) *ection 4. +/(A) *ections &4 6&5'.
4" ;
47
8The .e%ort of the Taskforce on the .eform of Penal ,aws and Proced#res) 0enya <aDette *#%%lement 2o. 4 Act
2o. " of &777.

5:
+/(A) *ection &-' B-C.
when necessary. The main %#r%ose of the 2+T is to hear a%%eals from the decisions of; BaC the Director <eneralE B!C the A#thorityE and BcC (ommittees of the A#thority. 5& *imilarly) when the A#thority or any of its committees makes a referral to it regarding any matter) it m#st in>#ire into the same. A referral !y the A#thority sho#ld !e =in relation to a matter that a%%ears to the A#thority to involve a %oint of law or which a%%ears to !e of #n#s#al im%ortance or com%lexity=.5- The A#thority and the %arties thereto =shall !e entitled to !e heard.. .!efore any decision is made in res%ect of s#ch matter=. It is f#rther clarified !y the Act that the %arties to a referral may a%%ear %ersonally or !e re%resented !y an Advocate. 54 1here an a%%eal has !een lodged with it) and once done with its in>#iry) the Tri!#nal is em%owered to =make an award) give directions) make orders or make decisions thereon=. In this res%ect) it has the following %owers;55 BaC To confirm) set aside or vary the order or decision in >#estionE B!C To exercise any of the %owers) which co#ld have !een exercised !y the A#thorityE BcC To make s#ch other orders) incl#ding an order for costs) as it may deem ?#stE BdC To make orders for com%elling attendance of any %ersonE BeC To make orders for the discovery or %rod#ction of any relevant doc#mentE BfC To order for the investigation of any contravention of the ActE
BgC To take evidence on oath and administer oathsE BhC To hear on its own motion) %erson as a witnessE 53and BiC To a%%oint) thro#gh its (hairman) %ersons to act as assessors in any advisory ca%acity. In t#rn) the Tri!#nal8s decisions and orders are a%%eala!le to the 9igh (o#rt of 0enya. The decision of the 9igh (o#rt on any a%%eal from the Tri!#nal shall !e final. On first glance) one may wonder why +/(A is silent as to the enforcement of the orders of the Tri!#nal. 9owever) if one
5&
+/(A) *ection &-7B&C. +/(A) *ection &4-. +/(A) *ection &4-B&C. There a%%ears to !e an error in drafting of this last %rovision as it is re%eated !oth in
5-
54
*ection &4- and *ection &4-B-C. From a drafting %ers%ective) it seems that cla#se was s#%%osed to stand alone) so that !y strict r#les of inter%retation) it wo#ld a%%ly) as it a%%ears intended) to all a%%eals !efore the 2ational +nvironmental Tri!#nal. As it stands) it co#ld !e arg#ed that it a%%lies or relates to referrals only) which wo#ld render the s#!6section meaningless.
55
+/(A) *ection &-7. +/(A) *ection &- B&C.
53
caref#lly looks at the orders iss#ed !y the Tri!#nal more so from BaC to BcC) one sees that these are self6enforcing. For instance) !y confirming 2+/A8s orders or setting aside its orders and iss#ing new orders) or exercising %owers as can !e exercised !y 2+/A) at the end of the day those orders will !e as tho#gh 2+/A had iss#ed them and it is inc#m!ent #%on 2+/A to ens#re their enforcement in carrying o#t its monitoring and com%liance role. Orders s#ch as those from BdC to BiC can !e handled in a more administrative manner thro#gh relevant a#thorities.
The %owers of the Tri!#nal with res%ect to investigations) s#mmons of witnesses) a%%ointment of assessors and determination of own %roced#res are also %rovided for in *ection &- of the Act. To date) the Tri!#nal has not !een forced to #ndertake its own investigations) s#mmons of witnesses or a%%ointment of assessors. 9owever) on every occasion) the Tri!#nal has made #se of its wide %owers of determining its own %roced#re and taken the o%%ort#nity of visiting all the sites to which the a%%eal has !een lodged in order to get a !etter a%%reciation of the matter !efore it. This has !een an eye o%ening ex%erience for !oth the Tri!#nal mem!ers and the litigants as many iss#es have !een clarified !y s#ch site visits. All %arties are !etter a!le to a%%reciate the reality on the gro#nd. In as m#ch as the Act %rovides for Tri!#nal8s determination of its own %roced#re) some %rovisions have !een made in +/(A that govern the Tri!#nal) namely; Q The Tri!#nal is not to !e !o#nd !y r#les of evidence as contained in the +vidence ActE Q A%%eals to the Tri!#nal m#st !e in writingE Q The Tri!#nal m#st chose times and %laces it will sitE Q Proceedings of the Tri!#nal are o%en to the %#!lic. 9owever) if there is good ca#se) it may direct otherwiseE Q The >#or#m of the Tri!#nal while hearing and determining any ca#se or matter m#st !e three) the (hairman and two others of its mem!ersE Q 1here a mem!er has direct interest in any matter !efore the Tri!#nal) he m#st not %artici%ate in the relevant %roceedingsE 5'
In addition) in -::4) the Tri!#nal gaDetted the 2ational +nvironment Tri!#nal .#les of Proced#re.5 Th#s) a tri!#nal) !eing an ad?#dicating a#thority) m#st o%erate inde%endently and im%artially. This sho#ld not only !e soE it m#st seem or !e seen to !e so. A close look at the f#nctions and %owers of the main instit#tions created #nder the Act discloses that no linkages are envisaged !etween the Tri!#nal and those instit#tions that may contradict the inde%endence of the Tri!#nal.
5'
+/(A) *ection &-'. ,egal 2otice & of -::4.
9owever) the s#ccess of a tri!#nal s#ch as the 2ational +nvironment Tri!#nal is de%endent on strong and active <overnment s#%%ort. For instance) in the case of the *tate (or%orations A%%eals Tri!#nal) the /inister of Finance is directed to =%rovide the Tri!#nal with s#ch facilities) material and f#nds as are necessary for the %ro%er cond#ct of its f#nctions.= 5" Altho#gh this has not !een legislated for in +/(A) it is as it sho#ld !e in the case of the 2ational +nvironment Tri!#nal. It stands no chance of s#ccess witho#t the tax%ayers or *tate s#%%ort) !oth in h#man and %hysical reso#rces and sheer goodwill. *#ch an im%ortant entity that de%icts access to environmental ?#stice sho#ld not !e !ogged down !y !#rea#cratic indecisions with regard to its financial !#dget lines and %rovision of s#fficient staffing. Indeed) s#ch a tri!#nal m#st !e %rovided with a%%ro%riate reso#rces !y the *tate. ,ike a co#rt)
a tri!#nal is %art and %arcel of the administration of ?#stice and the %#!lic that has a stake in it m#st %ay for the services rendered. 1hat is re>#ired is for administrators to !e a!le to disting#ish !etween their administrative res%onsi!ilities with res%ect to tri!#nals and the o!?ective for which the tri!#nals are esta!lished in the first %lace. *econdly) %roced#res for the selection and a%%ointment of its mem!ers m#st !e %#t in %lace early and s#ch %roced#res sho#ld !e fair and inde%endent of the administrative a#thorities of government) which have a direct interest in the tri!#nal8s decisions. A%art from a%%ointment of the right and >#alified %ersons) the a%%ointees m#st en?oy re>#isite sec#rity of ten#re) s#!?ect to clearly laid r#les for removal from office in case of %oor %erformance) mis!ehavio#rs or inca%acity. Financial so#rces from the /inistry of +nvironment and 2at#ral .eso#rces reveal that the 2ational +nvironment Tri!#nal initially o%erated on an im%rest arrangement) which was formerly doled o#t to it !y and at the discretion of the Director <eneral of the A#thority. 9owever) a case was made for it to !e allocated a se%arate !#dget line !y Parliament and this was agreed to and it has since !een o%erated distinctively. It is im%ortant to note that the inde%endence of the Tri!#nal m#st !e ?ealo#sly %rotected in order for its decisions to !e viewed !y the %#!lic as tr#ly im%artial. It wo#ld !e a highly #ntena!le sit#ation where the !#dgetary allocation of a !ody that was created to !e inde%endent from the !ody it receives a%%eals against is controlled !y this same !ody. The
A#thority cannot control the %#rse that f#nds the Tri!#nal to which its decisions are a%%ealed. It is a !ad system that sho#ld not !e allowed to ha%%en. This does not re>#ire any legislation to !e set forth !#t only administrative %r#dence. A review of f#nding arrangements s#ch as those for .ent .estriction Tri!#nals and the Ind#strial (o#rt can %rovide #sef#l g#ides on how the 2ational +nvironment Tri!#nal sho#ld also !e treated. These are f#nded directly !y the Treas#ry and are assigned !#dgetary vote heads and items showing amo#nts allocated #nder each item of ex%endit#re. In s#mmary) on a review of the mandate and %rocesses of the 2ational +nvironment Tri!#nal)
5"
*tate (or%orations Act) (ha%ter 55') ,aws of 0enya) section --B-C.
one can see reasons for %referring a tri!#nal to settle environmental dis%#tes as o%%osed to the co#rt systems. The iss#e of ex%ertise weighs in heavily. In %artic#lar) the iss#e of ex%ertise m#st have weighed greatly in the choice. It is worth re%eating that tri!#nals are invaria!ly chea%er than the co#rtsE that !eing essentially informal they are more readily accessi!leE that they are designed to !e free of legalese) legality and %roced#ral technicalities and that they are more ex%editio#s while at the same time ens#ring high >#ality decisions. 9eneral !rinciples Part II of +/(A sets o#t the %rinci%les of environmental management and s#staina!le develo%ment designed to %rovide the conce%t#al !asis for the meas#res to !e taken !y entities involved in the management of the environment) !oth as #sers and conservers of environmental
reso#rces. +ns#ring that these %rinci%les are adhered to is the d#ty and res%onsi!ility of the instit#tions earlier disc#ssed. *ection 4 of the Act en#nciates the <eneral Princi%les that will g#ide the im%lementation of the Act. First) +/(A %rovides that every %erson in 0enya is entitled to a clean and healthy environment and has the d#ty to safeg#ard and enhance the environment. 57 Th#s) this entitlement to a clean and healthy environment carries correlative d#ties. These d#ties can !e en#merated as follows; BaC a d#ty to refrain from activities in?#rio#s to the environment or any com%onent of it) e.g. not to engage in im%ro%er waste dis%osalE B!C a d#ty to %erform s%ecific tasks on a reg#lar !asis to ens#re environmental >#ality at all times) e.g. carry o#t gar!age collection and cleaning exercisesE BcC to g#arantee a floor of >#ality of life eno#gh to ens#re that all s#rvive) es%ecially the h#man s%ecies. The foc#s on this d#ty is to %revent loss of >#ality of nat#re@ecosystems) e.g. !y not destroying forests) we ens#re that the >#ality of the ecosystems that man relies on for his s#rvival are g#aranteedE and BdC a d#ty to %olice) s#%ervise) monitor and eval#ate the %erformance of individ#als and all agencies on which the first three d#ties or any other d#ties are im%osed. 3: *econdly) +/(A ado%ts a %ermissive a%%roach to the >#estion of loc%& &tandi Bthe right to !e heard !y a co#rt of lawC !y %roviding that =any %erson who alleges that his or her entitlement to a clean and healthy environment is !eing or is likely to !e contravened may a%%ly to the 9igh (o#rt
for redress.=3& *#ch a %erson need not esta!lish that the defendant8s act or omission has ca#sed or is likely to ca#se him or her any %ersonal loss or in?#ry. 3- 9owever) the Act >#alifies this right !y re>#iring that the action sho#ld not !e frivolo#s or vexatio#s or amo#nt to an a!#se of the
57
+/(A) section 4. (omm#nity <#ide to +nvironmental /anagement in 0enya. Instit#te for +nvironmental ,aw and <overnance M-::4N) -:. +/(A) section 4B4C. +/(A) section 4B5C.
3:
3&
3-
co#rt %rocess.34 The general r#le on loc%& &tandi that is followed !y the co#rts is that in order for a %erson to take a case to co#rt) they have to show that they have some direct %ersonal interest on the matter. The strict a%%lication of this r#le to environmental matters led to a n#m!er of s#its not !eing heard on their merit d#e to the fact that many a time) the danger or harm may not !e attri!#ted to any s%ecific individ#al or entity. 35 Until recently) the most litigated matter on environmental law in 0enya stood on the iss#e of standing. For a long time) the co#rts ado%ted an #nd#ly restrictive a%%roach to standing. This rigid a%%roach was es%ecially witnessed in the case of /angari "aathai v Bhe Kenya Bime& "edia Br%&t@@ in which case Prof. 1angari /aathai went to co#rt to sto% the %ro%osed constr#ction of a m#lti6story !#ilding at Uh#r# Park. The co#rt dismissed the s#it claiming that she had no legal right to !e in co#rt on the matter. The co#rt8s reasoning was that in cases of violations to the
environment affecting the %#!lic generally) the %erson who has an interest and right to s#e in the case is the Attorney <eneral and not the %rivate citiDen. The G#dge in this case r#led that the a%%licant had no standing since she had not alleged that =the defendant com%any MwasN in !reach of any rights) %#!lic or %rivate in relation to the %laintiff nor MhadN the com%any ca#sed her any damage.=3' 9owever) in &77- shortly after the 1angari /aathai case) in the case of "aina Kamanda and $nother v 1airo#i City Co%ncil and $nother@A, a %#rely %#!lic interest case) the 9igh (o#rt ado%ted a fairly li!eral %osition and granted the %laintiff the right to !e heard. 9owever) des%ite the /aina 0amanda case in &77-) the co#rts contin#ed to hold their restrictive view on loc%& &tandi. For instance) in another case filed in &775 !y Prof. /angari "aathai v 1airo#i City Co%ncil@) the co#rt held that the %laintiff had no loc%& &tandi to seek in?#nctive relief as she did not have s#fficient interest to !ring the action and that only the Attorney <eneral co#ld s#e on !ehalf of the %#!lic for the %#r%ose of %reventing %#!lic wrongs. The co#rt f#rther arg#ed that the %laintiffs in this case failed to show that there had !een any fail#re of any %#!lic d#ty in which they alone had a #ni>#e interest as o%%osed to that of the general %#!lic. In the case of Lawrence 1ginyo Kari%ki v Co%nty Co%ncil o,Kiam#%,@D the co#rt re?ected the %laintiff8s arg#ment that !eca#se he was a shareholder of a farming com%any that
34
I#id. -%pra note 3: at -&. /angari "aathai v Bhe Kenya "edia Bime& Br%&t M&7"7N 0,. -' . I#id. 9((( 2o. '&34 of &77-. "aathai and ' Other& v City Co%ncil o, 1airo#i and ' Other&, (ivil (ase 2o. - of &775. Lawrence 1ginyo Kari%ki v Kitirn#% Co%nty Co%ncil, 9.(. /isc 2o. &55' of &775.
35
33
3'
3"
37
owned land ad?acent to a forest) which the res%ondent %ro%osed to alienate) he had s#fficient interest@ loc%& &tandi to maintain a s#it for restraining orders. The ?#dge stated that the %laintiff8s interest in the s#it was restricted d#e to stat#te law and the s#fficiency of the %laintiff8s interest in the s#it land. In the case of Law -ociety o, Kenya v Commi&&ioner o, Land& S Other&,H( the ?#dge r#led that it was only the Attorney <eneral who co#ld !ring a s#it to co#rt. In this case involving %#!lic land) which the ,aw *ociety arg#ed had !een im%ro%erly allocated) the ?#dge o%ined that matters of %#!lic interest are the excl#sive domain of the Attorney6<eneral. 9e ex%lained his %osition as follows; I, the intere&t i&&%e i& a p%#lic one, then the litigant m%&t &how that the matter complained o, ha& in3%red him over and a#ove in3%ry, lo&& or pre3%dice &%,,ered #y the re&t o, the p%#lic in order to have a right to appear in co%rt and to #e heard on the matter. Otherwi&e p%#lic intere&t& are litigated %pon #y the $ttorney!General or &%ch other #ody a& the law &et& o%t.HG This errant trend ca#sed a lot of conf#sion on the iss#e of loc%& &tandi in 0enya8s ?#ris%r#dence. In the a!sence of ex%ress stat#tory or constit#tional %rovisions) loc%& &tandi over %#!lic interest matters s#ch as environmental %rotection was often %ro!lematic with the tem%erament of the %residing ?#dge holding sway. 9owever) with time) 0enyan co#rts !egan taking a more li!eral a%%roach towards ?#ris%r#dence related to loc%& &tandi in cases filed on gro#nds of %#!lic interest. For instance) in the r#ling of the three G#dge (onstit#tional (o#rt on the so6called =Donde Act=) Kenya Ianker&
$&&ociation v "ini&ter ,or Finance S $nother,H' delivered on -5 Gan#ary -::-) the co#rt was clearly of the o%inion that technical restrictions) restraints) r#les of %roced#re affecting reliefs so#ght wo#ld not !e #sed as a !ar to achieving ?#stice. The co#rt went on to %rono#nce that in %#!lic interest ty%e cases) any %erson or social gro#% acting in good faith co#ld a%%roach the co#rt seeking ?#dicial redress for legal in?#ry ca#sed or threatened to !e ca#sed to a defined class of %ersons. Indeed) with time) the co#rts in 0enya have ado%ted a somewhat li!eral a%%roach on the iss#e of loc%& &tandi, re?ecting the older strict standards. Therefore in 9ep%#lic v "ini&ter o, In,ormation S Iroadca&ting and $hmed Ka#ril e< parte Ea&t $,rica Belevi&ion 1etwork Limited, H0 the co#rt stated that a%%licant only needs to demonstrate that he or she has =s#fficient interest= in the matter !efore the co#rt and com%ly with the %roced#ral re>#irements of Order 34 of the (ivil Proced#re .#les in order to !e granted standing. In the case of $l#ert 9%t%ri and Other& v "ini&ter ,or
':
9(((2o.5'5of-:::. I#id. /isc (ivil A%%. 2o.7:" of -::&. 2airo!i 9igh (o#rt /isc. (ase 2o. 5:4 of &77".
'&
'-
'4
Finance and $nother,H? the co#rt stated that =as a %art of reasona!le) fair and ?#st %roced#re to #%hold constit#tional g#arantees) the right of access to ?#stice entails a li!eral a%%roach to the >#estion of loc%& &tandi.H@ In the case of 9odger& "%ema 12ioka and Other& v Biomin Kenya Limited,HH the co#rt stated that in cases where a %erson seeks to vindicate his or her right to a clean and healthy environment) he or she does not need to demonstrate a right or interest in the land
alleged to !e invaded. F#rther) the ?#dge went on to state that the traditional tests for the grant of an in?#nction esta!lished in the decisive case of Giella v Ca&&man IrownHA may need to !e revised in cases concerning environmental degradation. This li!eral a%%roach %rovides an im%ortant instr#ment for environmental %rotection as it ena!les co#rts to act to save the environment in cases where government agencies may !e rel#ctant to do so. '" Indeed) the co#rts have affirmed +/(A8s li!eral a%%roach to standing in several instances other than that of 9odger& "%ema 12ioka and Other& v Biomin Kenya Limited. For instance in the case o, eter Kin%thia "waniki S' Other& v eter 13%g%na Gicheha S 0 Other&, HD the co#rt held that tho#gh the matter of loc#s was not raised in the defence or in the iss#es filed in co#rt) it still fo#nd it %r#dent to refer to the iss#e and) tho#gh the %laintiffs were not the owners of the land in dis%#te) they nevertheless had a#thority to s#e) which a#thority was derived thro#gh *ection 4B4C of +/( A. The co#rt therefore fo#nd that the %laintiffs had loc%& to file the case in co#rt as their entitlement to a clean and healthy environment was likely to !e contravened if the defendants started the o%eration of their !#siness in contravention with the Act. 9owever) for the avoidance of do#!t) it is im%ortant to note that +/(A s%ecifically makes %rovisions to address the iss#e of loc%& &tandi. *%ecifically)6the Act gives any citiDen) either as an individ#al or as a gro#%) right to !ring a case to co#rt against any %erson or organisation that is
doing harm to the environment. : 9enceforth) it is not necessary to show that the right or interest has !een directly violated or is likely to !e violated. This %rovision %romises to !e a very #sef#l tool for environmental %rotection. 9owever) it m#st !e remem!ered that the Act %rovides minim#m standards that act as safeg#ards and that have to !e met !efore a case is heard !y the co#rt) namely that the s#it is not frivolo#s) vexatio#s or an a!#se of the co#rt %rocess. +/(A f#rther %rovides novel %rovisions for im%lementation of the general %rinci%les !y sti%#lating that in exercising the ?#risdiction conferred #%on it #nder section B4C) the 9igh (o#rt
'5
M-::-N & 0,. 35 I#id. /om!asa 9igh (o#rt (ivil *#it 2o. 7 of -::&. M&7 4N+A43". Akech M-::';-5N. eter K. "waniki and ' Other& v eter 13%g%na Gicheha and 0 Other& (ivil (ase 2o. 4&4 of -:::. +/(A) section 4.
'3
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'
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'7
shall !e g#ided !y %rinci%les of s#staina!le develo%ment s#ch as %#!lic %artici%ation) international co6o%eration in management of environmental reso#rces that r#n across !orders) inter and intra6generational e>#ity) the %reca#tionary %rinci%le and the %oll#ter %ays %rinci%le.
&
The 9igh (o#rt has had occasion to ela!orate on these %rinci%les. For exam%le) in eter K. /a2%er% v 9ep%#licA' the co#rt in !eing g#ided !y the %rinci%les of s#staina!le develo%ment) and in inter%reting section & of the 0enyan (onstit#tion on the right to life) stated that;
In o%r view the right o, li,e i& not 3%&t a matter o, keeping #ody and &o%l together #eca%&e in thi& modern age that right co%ld #e threatened #y many thing& incl%ding the environment. Bhe right to a clean environment i& primary to all creat%re& incl%ding man...A0
The co#rt went on to state that =...altho#gh the %resent case did not call for a#thoritative determination on environmental concerns) the iss#e had arisen and the co#rt =has fo#nd it necessary to com%are the affected lives downstream 0iserian .iver with the economic activities of the 0iserian Town develo%ers in %oll#ting their environment and therefore denying them a healthy life. In !alancing their rights we have fo#nd the two Pakistani a#thorities 5Fia v /$ 8$ and in aki&tan -alt "iner& La#or Enion v Bhe 8irector o, Ind%&trie& and "ineral 8evelopment7 extremely %ers#asive.= The co#rt f#rther %ointed o#t that in a !id to ens#re that the citiDens of the locale en?oy a clean and healthy environment) government agencies and indeed 2+/A sho#ld sto% f#rther develo%ment in the area #ntil s#ch time as they co#ld afford the citiDenry sanitation facilities that wo#ld not im%air the environment. The co#rt advised the a%%lication of the %rinci%les in *ection 4 and in %artic#lar the %reca#tionary %rinci%le to halt f#rther develo%ment. F#rther) the co#rt in opinion dicta stated that intra6generational e>#ity) which involves e>#ality !etween the %resent and f#t#re generations) 8...incl#des the !alancing of the economic rights of the town dwellers with the rights of the down6stream dwellers to #se #n%oll#ted water. If the !alance is achieved) the chances of achieving inter6generational e>#ity shall have !een enhanced...the need to form#late and maintain ecologically s#staina!le develo%ment that does not interfere with the s#stenance) via!ility and the >#ality of the water ta!le and the >#ality of the river waters...gives rise to the e>#ally im%ortant %rinci%le of inter6generational e>#ity !eca#se the water ta!le and the rivers co#rses affected are held in tr#st !y the %resent generation for the f#t#re
&
+/(A) *ection 4B3C. The 9igh (o#rt shall !e g#ided !y the following %rinci%les of s#staina!le develo%ment;
the %rinci%le of %#!lic %artici%ation in develo%ment of %olicies) %lans and %rocesses for the management of the environmentE the c#lt#ral and social %rinci%les traditionally a%%lied !y any comm#nity in 0enya for the management of the environment and nat#ral reso#rces in so far as the same are relevant and are not re%#gnant to ?#stice and morality or inconsistent with any written lawE the %rinci%le of international co6o%eration in the management of environmental reso#rces shared !y two or more co#ntriesE the %rinci%le of inter6generational e>#ityE the %oll#ter6%ays6%rinci%lesE and the %reca#tionary %rinci%le.
-
eter K. /a2%er% v 9ep%#lic "i&c. (ivil A%%lication 2o. &&" of -::5. l#id.
generations.=
F#rther) in -am Odera and other& v Bhe 1ational Environmental "anagement $%thority and E" Comm%nication&A@, a case that challenged 2+/A8s iss#ance of an +nvironmental Im%act Assessment B+IAC licence to +/ (omm#nications for the setting #% of a telecomm#nication mast on a residential a%artment com%lex witho#t the re>#ired %#!lic %artici%ation in reviewing the +IA .e%ort) G#stice 2yam# in dismissing the a%%lication for an #ndertaking of damages em%hasised the fact that in considering whether or not to order an #ndertaking as to damages) it is im%ortant for co#rts to #nderstand the sco%e of the %reca#tionary %rinci%le so as to %revent serio#s irreversi!le environmental damages or in?#ry to health %ending the determination of the case. The learned ?#dge f#rther took cognisance of the %rinci%le of %#!lic %artici%ation in environmental iss#es !y stating that =co#rts sho#ld !e caref#l not to stifle the right of access to the co#rts and the hearing on merit !y im%osing #ndertaking es%ecially in matters of environment and health=. In addition to the a!ove %rinci%les) one co#ld conceiva!ly identify a n#m!er of other %rinci%les and conce%ts thro#gho#t +/(A that are essential in dealing with matters incidental to or
connected to s#staina!le management of the environment) s#ch as; aC6 The %romotion of maxim#m %artici%ation of the %eo%le in the develo%ment of %olicies) %lans and %rocesses for the management of the environment. This %rinci%le is com%lemented with two other %rinci%les) i.e. ens#ring that environmental awareness is treated as an integral %art of ed#cation at all levels and that %#!lishing information on environmental >#ality and reso#rces #se are also legal re>#irements. ' A %o%#lation that is not aware and does not have access to information cannot %artici%ate effectively in management of its s#rro#nding environment. !C The conservation of the environment and nat#ral reso#rces as well as the c#lt#ral heritage and their e>#ita!le #tilisation for the !enefit of %resent and f#t#re generations. This is the %rinci%le of the s#staina!le and e>#ita!le #tilisation of environmental reso#rces. It re>#ires that reso#rces !e #tilised in s#ch a manner as to ens#re e>#ity among %resent #sers as well as !etween %resent #sers and f#t#re #sers. This is what is known as intra6generational and inter6generational e>#ity. *#staina!ility is to !e ens#red thro#gh reclamation of lost ecosystems as well as sta!ilising and maintaining the f#nctioning relations !etween the living and non6living %arts of the environment thro#gh the conservation of !iological diversity and adherence to the %rinci%le of o%tim#m s#staina!le yield in the #se of nat#ral reso#rces.
5
eter K. /awer% v 9ep%#lic "i&c. (ivil A%%lication 2o. &&" of -::5. -am Odera and Otlier& v 1ational Environment "anagement $%thority and E" Comm%nication&, 9( /isc (ivil
A%%lication 2o. 5:: of -::'.

' +/(A)
*ections 3BaC) 7B&C BhC) BmC) BnC K B%C.
cC The %romotion of international co6o%eration in the field of the environment; This is another %rinci%le deemed im%ortant for the %rotection and management from trans6!o#ndary im%acts arising from activities carried o#t !y co#ntries. The %rinci%le recognises that environmental concerns co#ld have s#!6regional) regional and glo!al im%lications. Today) there are many conventions that have come into !eing to deal with environmental %ro!lems. 0enya has
!ecome and contin#es to !ecome %arty to several s#ch international environmental conventions and agreements as well as !eing the host to the United 2ations +nvironment Programme head>#arters) the only s#ch U2 agency !ased in a develo%ing co#ntry. )echanisms for !rotection and Conservation of the Environment Framework environmental laws also %rovide for the management of s%ecific environmental as%ects) whether they are of a sectoral nat#re or of cross6sectoral nat#re or !oth. O!vio#sly) %roviding for the management of cross6sectoral as%ects is indis%ensa!le) as these as%ects are not taken into acco#nt in sectoral laws. On the other hand) it is increasingly !ecoming essential to %rovide for the management of sectoral as%ects in order to ens#re that the !road g#iding %rinci%les) %olicies and strategies as reflected in the 2ational +nvironment Action Plan B2+APC are adhered to and made !inding !y law. Part F of +/(A %rovides legal tools for s#staina!le management of the environment. It covers the %rotection and management of wetlands) hilly and mo#ntaino#s areas) forest) environmentally significant areas) the oDone layer and the coastal Done. It f#rther %rovides for the conservation of energy and !iological diversity) access to genetic reso#rces and environmental incentives. This Part of +/(A delegates to the Director <eneral of 2+/A vario#s res%onsi!ilities to ens#re %rotection and s#staina!le management of the environment. In addition) the %art also gives the /inister in charge of environmental affairs the mandate to give orders) directions or reg#lations and standards vide <aDette notice. The Act re>#ires the Director <eneral) in #ndertaking his res%onsi!ilities) to do so in close cons#ltation and colla!oration with the relevant lead agencies in the management of the following
areas; lakes and rivers) lakeshores and river!anks) wetlands) hillto%s) hill6sides) and mo#ntaino#s areas) conservation of !iological reso#rces) forests) %lanting of woodlots) andE range lands) and land #se %lanning. These environment management areas are s%ecifically selected !eca#se of their immediate relevance to comm#nity #se and) hence) the need to involve local comm#nities. The key em%hasis is to %ermit the #se of reso#rces within their ca%acity to regenerate and as s#ch whatever management decisions that are taken sho#ld !e done in cons#ltation with the local comm#nities Bthro#gh the D+(s and P+(sC and the relevant lead agencies. Part F of +/(A also recognises the need for financial incentives and disincentives designed to enco#rage reso#rce #sers to com%ly with environmental re>#irements. 9owever) 2+/A in colla!oration with the /inistry of Finance is yet to #ndertake the develo%ment of s#ch financial
Internal Teaching Use Only -::
mechanisms. Environmental Impact $&&e&&ment +nvironment Im%act Assessment B+IAC is a tool that hel%s those involved in decision6making concerning develo%ment %rogrammes or %ro?ects to make their decisions !ased on knowledge of the likely im%acts that will !e ca#sed on the environment) whether negative or %ositive. 1here the im%acts are negative and likely to res#lt in significant harm) decision6makers will !e a!le to decide what kind of mitigating meas#res sho#ld !e taken to eliminate or minimise the harm. In cases where mitigating meas#res are not availa!le and the harm to the environment is
#nacce%ta!le) a decision may res#lt in the disa%%roval of a %rogramme or a %ro?ect. Th#s) +IA is an antici%atory) and where there is harm) a %reventive mechanism. +/(A %rovides some detail for +IA. Pro?ects that are %otentially s#!?ect to +IA are s%ecified in the *econd *ched#le of +/(A. An +IA will !e #ndertaken !y the develo%er where the lead agency) in cons#ltation with 2+/A) is of the view that the %ro?ect may have an im%act on the environmentE is likely to have a significant im%act on the environmentE or will have a significant im%act on the environment. De%ending on the scale and %ossi!le effects of the %ro%osed %ro?ect) an environmental review) an environmental im%act eval#ation or an environmental im%act st#dy will !e cond#cted. The first two %hases are %art of the screening %rocess #sed to decide whether a %ro?ect needs to #ndergo an environmental im%act st#dy or not. 1here 2+/A) in cons#ltation with the relevant lead agency) is satisfied that an environmental im%act review or an environmental im%act eval#ation does not disclose %ossi!le significant im%act on the environment) it may a%%rove the environmental as%ects of the %ro?ect. On the other hand) where a lead agency) in cons#ltation with 2+/A) is satisfied after considering the environmental im%act review or the environmental im%act eval#ation that the %ro?ect will lead to significant im%act on the environment) it shall re>#ire that an environmental im%act st#dy !e cond#cted. The +IA reg#lations %rovide a g#ideline as to how environmental im%act reviews) environmental im%act eval#ations) and environmental im%act st#dies are to !e carried o#t.
In addition) the im%ortance of %#!lic %artici%ation in decision6making in environmental matters is f#rther highlighted !y the re>#irement for environmental im%act assessment st#dy re%ort #nder Part FI of the Act B*ection 3"6' C Any %erson) !eing a %ro%onent of a %ro?ect) is re>#ired to a%%ly for and o!tain an +IA licence from 2+/A !efore he can finance) commence) %roceed with) carry o#t) exec#te or cond#ct any #ndertaking s%ecified in the *econd *ched#le of the Act. The +IA st#dy re%ort is %#!lished for two s#ccessive weeks in the <aDette and in a news%a%er circ#lating in the area or %ro%osed area of the %ro?ect and the %#!lic is given a maxim#m %eriod of sixty days for ins%ection of the re%ort and s#!mission of oral or written comments on the same.
For a f#ll a%%reciation of the +IA %roced#re) see +nvironmental BIm%act Assessment and A#ditC .eg#lations) ,2 &:& of -::4.
Internal Teaching Use Only -:&
This %eriod may !e extended on a%%lication !y any %erson. +IA is therefore #sed to identify the environmental and social im%acts of a %ro?ect %rior to decision6making. It aims to %redict environmental im%acts at an early stage in %ro?ect %lanning and design) find ways and means to red#ce adverse im%acts) sha%e %ro?ects to s#it the local environment and %resent the %redictions and o%tions to decision6makers. $y #sing +IA) !oth environmental and economic !enefits can !e achieved) s#ch as red#ced cost and time of %ro?ect im%lementation and design) avoided treatment@ clean6#% costs) and im%acts of laws and reg#lations. In addition) the +IA %rocess gives individ#als and comm#nities a
voice in iss#es that may !ear directly on their health and welfare and entitlement to a clean and healthy environment. The +IA %rocess and decisions made !y the A#thority has !een the s#!?ect of several a%%eals made !efore the 2ational +nvironment Tri!#nal and the 9igh (o#rt. The %#!lic has !ecome more and more aware of their rights #nder +/(A as a res#lt of %#!lication of many of the +IA re%orts in the news%a%ers and 0enya <aDette and !eing aggrieved !y the decisions of 2+/A have challenged these. This has o%ened #% the field of litigation in environmental matters and indeed has %#t not only the A#thority to test !#t also the %rovisions of the legislation. Peo%le are now more willing to fight for %rotection of their environment knowing that they have ade>#ate legislative !acking. Develo%ers are now taking more cogniDance of neigh!o#rhood associations and their say in develo%ments within residential areas and ecologically6sensitive areas. Access to information is availed !y the %#!lication of the +IA re%orts) which are availed to the %#!lic thro#gh vario#s centres thro#gho#t the co#ntry free of charge. The %#!lic is welcome to review the re%orts and give their feed!ack within ': days of the date of %#!lication. In addition) and in cases of contentio#s matters) the A#thority can call for %#!lic hearing to !e chaired !y a %residing officer. To date) these have !een the Provincial or District Officers of the
area. 9owever) some have criticiDed this a%%roach noting that a conflict of interest may arise if the same P+( or D+( recommended a%%roval of a %ro?ect and now the P( or D( is %residing over the %#!lic hearing. 9owever) it can !e arg#ed that the role of the %residing officer is to ens#re decor#m in s#ch meetings and to allow all %arties a fair hearing. 1hatever recommendations that are made are !ased on the hearings and these are non6!inding on the A#thority. 9owever) it wo#ld !e %r#dent for g#idelines to !e iss#ed on the terms of reference and %roced#re for s#ch %#!lic hearings to avoid instances where the A#thority or %residing officers are acc#sed of !eing com%romised. Environmental $%dit and "onitoring Part FII of the Act B*ections '"6'7C gives 2+/A the res%onsi!ility of ens#ring the carrying o#t of environmental a#dits of all activities that are likely to have significant effect on the environment. An environmental a#dit is a %rocess that assesses the nat#re and extent of environmental concerns at an existing facility; an ind#strial %lant) an a!andoned site) a mine area)
Internal Teaching Use Only -:-
or any other site where the existence of ind#strial %oll#tion %ro!lems is identified or antici%ated. It is #sed to %rovide data on the extent of %oll#tion in an ind#strial area) to >#antify the scale of %oll#tion at a %artic#lar site) or to examine the ca#ses and %otential remedies of %ro!lems at a facility. The %#r%ose is to esta!lish the environmental %erformance of an existing %ro?ect. If any weaknesses are identified they can then !e addressed with relevant technical advice from the A#thority and lead agencies concerned.
F#rther) in cons#ltation with lead agencies) the Act also a#thorises 2+/A to carry o#t environmental monitoring of all environmental %henomena and o%erations of ind#stry) %ro?ects or activities to determine their im%acts. 2+/A has !een #ndertaking monitoring of vario#s facilities !ased on information %rovided in environmental a#dits and thro#gh &%o motto investigations. As a res#lt of this exercise) several facilities have now cleaned #% their act in accordance with the law and are now com%lying with the law. The Act contains) in addition to the %rovisions relating to management of nat#ral reso#rces) im%ortant %rovisions on the control of %oll#tion. *ince %oll#tion is a relative state of affairs) the Act %rovides for mechanisms to esta!lish environmental standards and criteria for what is considered environmentally acce%ta!le !ehavio#r and %henomena. 1here a %erson wishes to exceed the standards that have !een set) s#ch a %erson m#st a%%ly for a %oll#tion license #nder Part FIII of the Act. The develo%ment of these reg#lations and standards was disc#ssed earlier on the section detailing the role of the *tandards and +nforcement (ommittee. *#ffice it to say that the .eg#lations and *tandards develo%ed !y this (ommittee is what is #sed to ens#re com%liance and assist in enforcement of national environmental standards. 1itho#t these .eg#lations and *tandards) facilities have nothing to g#ide them in terms of discharge) and 2+/A has nothing to com%are with in terms of meas#ra!le standards of %oll#tion. It is) therefore) im%erative for the A#thority to finaliDe the develo%ment of these reg#lations to ena!le it %#rs#e its f#ll mandate
on ens#ring a clean and healthy environment free from %oll#tion for all in 0enya. *tandards for the control of air and noise %oll#tion and chemicals management are now !eing form#lated. The licensing of %oll#tion has already !een disc#ssed a!ove. There are) however) other activities that re>#ire s%ecific %ermits. These incl#de the im%ort) man#fact#re) and dis%osal of haDardo#s chemicals) wastes and s#!stances. In order to control the environmental effects of these s#!stances) the law re>#ires their classification and la!elling. 2+/A is in the %rocess of develo%ing relevant reg#lations that will deal more %artic#larly with these activities. It is worth mentioning that the Act clearly %rovides that management meas#res sho#ld !e carried o#t in con?#nction with the a%%lication of social and economic incentives) incl#ding taxation meas#res and environmental %erformance !onds. " This sort of scheme is known as environmental incentives and disincentives. It is %ossi!le to have tax and fiscal incentives and fees to !enefit those who %romote so#nd environmental management thro#gh the #se of
Internal Teaching Use Only -:4
environmentally friendly technology. *#ch mechanisms can involve c#stoms and excise waivers) tax re!ates) etc. *#ch ty%e of schemes are enco#raged es%ecially in instances where an ind#stry goes over and !eyond its call of d#ty on environmental management and sho#ld !e enco#raged) since s#ch ty%e of technology may !e ex%ensive to %#rchase yet the !enefit are felt not ?#st !y the ind#stry !#t !y the general %#!lic at large. In addition) fiscal disincentives sho#ld !e administered in cases where !ad environmental !ehavio#r is %racticed or im%osition of high #ser fees for those who #se a nat#ral reso#rce to %ay for the %ro%er val#e of s#ch a reso#rce. For exam%le) a #se tax
in sho%s can !e im%osed on c#stomers who #se %lastic !ags instead of re6#sing old !ags or kiondo&. This will inevita!ly res#lt in less #se of %lastic !ags and more re6#se of the same !y c#stomers who do not want to !e charged for this extra item at the end of their sho%%ing. This will also enco#rage s#%ermarkets and man#fact#res to ex%lore ways of man#fact#ring more d#ra!le !ags and re#sa!le !ags. These schemes will ens#re a fair %laying gro#nd for those ind#stries that s#!scri!e to %ro%er cor%orate social res%onsi!ility regimes) which re>#ire for their %ro%er %ayment of the val#e of nat#ral reso#rces. Environmental Easements Part 7 of the Act B*ection &:"6&&'C em%owers the A#thority to iss#e and serve environmental restoration or conservation orders #%on any %erson who has !een res%onsi!le for environmental degradation) damage or in?#ry. *#ch orders re>#ire the %ersons to whom it is served not to #ndertake an activity that wo#ld or is likely to do harm to the environment) to restore s#ch environment to its %revio#s stat#s or %ay the cost of restoring the environment inc#rred !y a#thorised %ersons or organisations if s#ch action has already !een taken and award com%ensation to the %ersons whose environment or livelihood has !een harmed !y the activity. The restoration order sho#ld clearly s%ecify what it re>#ires from the %erson it is served on. The %erson to whom an environment order is iss#ed has a right to a%%eal to the co#rts. $efore going to the co#rts) the %erson can a%%ly for reconsideration of the order to 2+/A. The latter has the %ower to enter any %remises to ascertain@ ins%ect the effects of the activity. .ef#sal or neglect to take estoration 3rders, Conservation 3rders and Environmental
action as re>#ired !y a restoration order will res#lt in 2+/A taking the meas#res for the enforcement of the order. 2+/A can claim in a civil s#it the cost inc#rred in s#ch an event. (o#rts may also iss#e restoration orders. Those who s#e in co#rts #nder this section need not demonstrate that they have a right or interest in the %ro%erty) environment or land alleged to have !een harmed or in the environment or land contig#o#s to s#ch environment or land. A %laintiff need not show a %ersonal or %ro%rietary right in s#ch %ro%erty. The co#rt may) therefore) iss#e s#ch an order on any %erson who has harmed) is harming or is reasona!ly likely to harm the
" +/(A)
*ection @A.
environment. In #ndertaking its reg#latory role) 2+/A has #sed these environmental orders when calling for com%liance !y vario#s facilities and individ#als who are violating the environmental laws of the land. /any of these orders have !een com%lied with and many of those they have !een iss#ed against have called #%on the A#thority for g#idance in ens#ring com%liance. 9owever) at the same time) many aggrieved %ersons who do not wish to com%ly have taken the A#thority to co#rt. To date) none of the cases filed in the 9igh (o#rt on orders iss#ed !y the A#thority have !een finalised. The A#thority is looking keenly to see how the co#rts will decide and will take it #%on itself to ens#re that the orders iss#ed !ecome more and more watertight to ens#re that the co#rts do not overt#rn the administrative decisions made !y the A#thority.
Environmental Ea&ement Order&
*ection &&- deals with environmental easements. +asements #nder this section are granted to facilitate the conservation and enhancement of the environment !y im%osing one or more o!ligations regarding the #se of land B!#rdened landC in the vicinity of the !enefited environment. +asements may !e im%osed in %er%et#ity or for fixed %eriod and restrict the rights of any %erson on the !#rdened land s#!?ect to com%ensation. (om%ensation is d#e from the a%%licant for easement. (o#rts can) on the a%%lication of a %erson or a gro#% of %ersons) also grant easements. +nvironment easements are iss#ed to facilitate the conservation and enhancement of the environment !y im%osing one or more o!ligations in res%ect of the #se of land. An easement may !e im%osed and remain in force on the !#rdened land in %er%et#ity) for a s%ecified term of years or for an e>#ivalent interest #nder c#stomary law as the co#rt may determine. *ection &&-B5C of the Act delineates the enc#m!rances %laced on land that is #nder an easement order. One m#st note that com%ensation is %rovided for a %erson who has lost his %ro%rietary right thro#gh the iss#ance of an easement order. This is where the monies from the 2ational +nvironmental .estoration F#nd may come in handy for %ayment of s#ch com%ensation. In&pection&, $naly&i& and 9ecord& Another im%ortant mechanism of ens#ring that environmental re>#irements are met and which is an im%ortant as%ect that is %rovided for in +/(A is that of ins%ections) analysis and kee%ing of records. This re>#ires the esta!lishment of ins%ectorates whose mem!ers carry o#t ro#tine
ins%ections to ascertain com%liance with environmental re>#irements as laid down in the law and to enforce or ens#re the enforcement of s#ch re>#irements. +nforcement is ens#red thro#gh #se of im%rovement or restoration orders as well as orders for restraining an esta!lishment or individ#al from contin#ing activities #ntil s#ch time as it@he can meet the environmental re>#irements. The %owers of ins%ectors incl#de entry into any %remises at reasona!le ho#rs) taking sam%les
of items s#s%ected of ca#sing %oll#tion or containing %oll#tants and analyDing or having s#ch items analyDed. In addition) and s#!?ect to a#thoriDation of the Attorney <eneral) environmental ins%ectors also have %rosec#torial %owers) %#rs#ant to *ection &&" of the Act. 7 9owever) to date) no environmental ins%ectors have !een granted s#ch %owers of %rosec#tion as the A#thority is yet to %#t forward s#ch a re>#est to the Attorney <eneral. Pending this) s#ch %rosec#tions are #ndertaken !y state %rosec#tors from the state law offices. Part O of the +/(A contains detailed %rovisions for s#ch ins%ection and matters incidental thereto. These %rovisions relate to the manner in which ins%ectors are a%%ointed) what their %owers are and how they are ex%ected to carry o#t their res%onsi!ilities in the exercise of their %owers. The %rovisions also relate to the o!ligation of %ersons or esta!lishments that are carrying o#t activities that have or are likely to have significant im%act on the environment) to kee% records relating to the amo#nt of waste and !y6%rod#cts generated !y the activity) the im%act of s#ch activity on the environment and the degree of com%liance to the %rovisions of +/(A. Finally) +/(A %rovides that the form and manner of taking sam%les will !e %rovided !y
2+/A) in cons#ltation with the lead agencies concerned and that analytical and reference la!oratories as well as analysts may !e designated to carry o#t analysis of sam%les taken !y ins%ectors. To ens#re com%liance with the %rovisions of the Act) Part &: B*ection && 6&&"C of 2+/A has #ndertaken training and gaDettement of environmental ins%ectors) and the designation of la!oratories for analysis of sam%les) iss#ance of certificates of analysis and maintenance of records. ,a!oratories have !een designated and gaDetted and the A#thority is c#rrently monitoring the o#t%#t of these la!oratories. /ost of the la!oratories a!le to ade>#ately handle sam%les s#!mitted to them are located in 2airo!i) with only one located in /om!asa. These la!oratories are either government6owned) !elong to #niversity or learning instit#tions or are %rivately6owned. (oncern) however) has !een raised on some of the la!oratories o#tside #r!an areas) which face constraints incl#ding lack of e>#i%ment) lack of technical ex%ertise for re%airs and availa!ility of s%are %arts. Other reasons are incom%ati!ility of com%onents of instr#ments from different s#%%liers) %oor handling and inade>#ate f#nding. As s#ch) one may do#!t their a!ility to handle the sam%les for analysis. This iss#e is of great concern since not all environmental %oll#tion will occ#r in 2airo!i or /om!asa. *am%les collected will need to !e handled in an a%%ro%riate manner so as to withstand any evidentiary tests if a case goes to co#rt on the !asis of environmental %oll#tion. Pertaining to kee%ing of records !y the A#thority) it is worth noting that other than the +IA .egister for environmental ex%erts and for +IA licences iss#ed) no other register has !een o%ened and ke%t as mandated !y the law. 9owever) this is arg#a!ly d#e to the fact that no other ty%es of
7 +/(A)
*ection &&".
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licences have !een iss#ed !y the A#thority. Once these licences are iss#ed) a register that is accessi!le to all 0enyans will need to !e ke%t. As s#ch) the A#thority m#st look into investing on the %ro%er installation and management of environmental information systems. En)% on#ental Offen!es The %#r%ose of Part OIII B*ection &4 6&5'C of the Act is to define offences #nder the Act and the %enalties in res%ect to s#ch offences. The degree of the %enalty de%ends on the nat#re and@or serio#sness of the offence. This %art of the Act is essential for enforcing the %rovisions of the Act. It is to !e noted that modern environmental law lodges the %enal arrangements within the !road context) which encom%asses %lanning) management and economic incentives. This is a de%art#re from the traditional reliance on command and control %rovisions. It is worth noting that *ection &53 s%ecifically targets !ody cor%orates) %artnershi%s) %rinci%als and em%loyers. It is no longer eno#gh for the manager to !lame the cor%oration. +/(A is very clear that every director) manager or officer or the !ody cor%orate who had knowledge of the commission of the offence and who did not exercise d#e diligence) efficiency and economy to ens#re com%liance with the Act shall !e g#ilty of the offence. The same a%%lies to %artners or officers of a %artnershi%. +m%loyers or %rinci%als shall also !e lia!le for offences committed !y an em%loyee or agent #nless where it has !een %roved to the satisfaction of the co#rt that the act constit#ting the offence was done against his ex%ress or standing directions. Enforcement of Environmental Law
=+nforcement= relates to those set of actions that government or other designated %ersons or entities take to achieve com%liance to certain re>#irements within the reg#lated comm#nity and to correct or halt sit#ations that endanger the environment or %#!lic health. +/(A does not define the word enforcement. 9owever) the Oxford +nglish Dictionary defines the word enforce as; BiC to com%el o!servance of a law etc) BiiC im%ose Ban action) cond#ct) ...C and@or) BiiiC %ersist in Ba demand or arg#mentC. /ost environmental enforcement strategies derive from legal re>#irements that m#st !e met !y individ#als) facilities and@ or com%anies whose activities or o%erations ca#se or may ca#se #ndesira!le environmental im%acts. These legal re>#irements are an essential fo#ndation for environmental and %#!lic health %rotection) !#t they are only the first ste%. The second essential ste% is com%liance W getting the gro#%s that are reg#lated to f#lly im%lement the re>#irements. 1itho#t com%liance) the legal re>#irements will not achieve the desired res#lts) since com%liance does not ha%%en a#tomatically once legal re>#irements are iss#ed. Achieving com%liance #s#ally involves efforts to enco#rage and com%el !ehavio#ral changes needed to achieve com%liance W
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hence the need for enforcement. +nforcement actions may incl#de a%%lying one or a com!ination of the following actions) among others; Q Ins%ections and monitoring to determine the com%liance stat#s of the reg#lated comm#nity
and to detect and res%ond to violationsE Q 2egotiations with the violators or facility managers to develo% m#t#ally agreea!le sched#les and a%%roaches for achieving com%lianceE Q Awareness creation to sensitise the reg#lated comm#nity on the re>#irements to !e metE Q Taking legal action) where necessary to com%el com%lianceE and) Q (om%liance %romotion among the reg#lated comm#nity thro#gh ed#cational %rogrammes) technical assistance and incentives) among others. (om%liance occ#rs when sti%#lated re>#irements are met and desired changes are achieved) for exam%le when standards are met. 1hen com%liance !ehavio#r and the reasons for noncom%liance are known) it is %ossi!le for a#thoriDed agencies and@or officials to ad?#st their enforcement strategies to achieve the desired com%liance. *ome of the reasons for noncom%liance may !e associated with the following; BiC La!/ of es(ons%b%l%t' fo #ana$e#ent of t&e en)% on#ent 1hile it is generally an environment management %rinci%le that every!ody has a d#ty to care for the environment and) while for exam%le) it is ex%ected that every landowner) occ#%ier or #ser who is ad?acent or contig#o#s with a wetland has a d#ty to %revent the degradation or
destr#ction of the wetland) and to maintain ecological and other f#nctions of the wetland) in %ractice) this is not ha%%ening. 1ith this lack of individ#al res%onsi!ility) management of the environment has tended to !e treated as =2+/A8s !#siness=. 3%%4 Fa%l+ e of %nst%t+t%onal l%n/a$es fo #ana$e#ent of t&e en)% on#ent 1hereas) for exam%le) a n#m!er of nat#ral reso#rces are held in tr#st !y local a#thorities
for the common good of the %eo%le of the area) some exam%les of nat#ral reso#rces a!#se have incl#ded cases where local a#thorities have !een the very violators of these constit#tional and legal %rovisions as seen in cases of land gra!!ing and illegal allocation of land in highly environmental sensitive areas. 1here this has ha%%ened) local a#thorities have indicated that they converted these nat#ral reso#rces for the sake of %roviding their comm#nities with economic growth o%%ort#nities and for fighting %overty. It is) therefore) a dilemma that the very instit#tions entr#sted with the %rotection of nat#ral reso#rces have
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in some cases not assisted the efforts for their conservation. 3%%%4 Iss+an!e of lan* t%tles %n -etlan* a eas b' t&e !ent al an* lo!al a+t&o %t%es 1hereas it is a legal re>#irement that areas that are wetlands are held in tr#st !y <overnment for the common good of all the citiDens of 0enya) there have !een incidences where the very instit#tions that are charged with this res%onsi!ility are the very ones that alienate these wetlands and even iss#ed land titles. This contin#ed iss#ance of land titles and allocations on wetland areas has made enforcement of the laws on wetlands rather diffic#lt as those who are iss#ed with titles view enforcement actions against them as
contradictions within <overnment instit#tions. 3%)4 La!/ of enfo !e#ent !a(a!%t' at all le)els 1hereas enforcement of environment reg#lations is ex%ected to !e done thro#gh a hierarchy of enforcement levels %rovided for !y +/(A) from national B2+/AC) to districts down to comm#nity levels) the enforcement ca%acity availa!le at all these levels a%%ears not to !e a!le to 6match the wides%read nat#re of the %ro!lem of environment a!#se. For exam%le) the efforts to !#ild ca%acity of ,ocal +nvironment (ommittees as organs for environment management at lower comm#nity levels have not yielded eno#gh %ositive action in the area of enforcement. In addition) while the res%onsi!ility for environment management has !een vested #nder the local a#thorities) cases of local a#thority intervention on environment a!#ses are still few) im%lying that even where local a#thority intervention wo#ld have !een eno#gh to sto% the a!#se) s#ch cases still contin#e to !e referred to 2+/A. It sho#ld !e stressed that this state of affairs for a dis%ersed %ro!lem s#ch as environment a!#se re>#ires enforcement and intervention mechanisms that are closer to the comm#nity level if tangi!le res#lts are to !e achieved.
3)4 V%olat%ons of en)% on#ent #ana$e#ent eA+% e#ents *+ %n$ &ol%*a's o o** &o+ s
1itho#t an effective grassroots enforcement mechanism) it has !een extremely diffic#lt to control indiscriminate environment a!#ses s#ch as d#m%ing of materials Bfly ti%%ingC or discharge of trade effl#ents in wetlands) along the roads and other remote areas !y anonymo#s individ#als s#ch as tr#ck drivers d#ring holidays and night ho#rs when s#ch a!#sers have f#ll knowledge that <overnment enforcement officers are o!vio#sly not on d#ty and) therefore) are not readily availa!le to take action. Time and again) %eo%le living in and aro#nd areas where environmental
a!#ses have taken %lace have indicated that s#ch a!#ses are done !y #nknown individ#als d#ring odd ho#rs. It still remains an #%hill task to %rosec#te these cases as the violators are diffic#lt to identify and with local enforcement str#ct#res not in %lace to a%%rehend them. 3)%4 De!ent al%sat%on of #ana$e#ent an* enfo !e#ent es(ons%b%l%t' to ele)ant lea* a$en!%es9 lo!al a+t&o %t%es an* eso+ !e +se s 1ith the ex%ansion of central <overnment enforcement machinery not likely to ha%%en in the foreseea!le f#t#re) it is %la#si!le to !elieve that increased local a#thority and local comm#nity role on matters of enforcement thro#gh enhanced comm#nity %olicing co#ld !e a more s#staina!le way to im%rove enforcement and stem f#rther environmental degradation. 9owever) there still remains a f#ndamental weakness in the sense that local a#thorities have not translated the a#thority vested #nder them for nat#ral reso#rces management into meaningf#l action as far as nat#ral reso#rces are concerned.
3)%%4 La!/ of &a #on%sat%on of + ban (lann%n$9 la $e s!ale a$ %!+lt+ al *e)elo(#ents an* lan*1+se %n $ene al -%t& #o*e n *e)elo(#ent an* !onse )at%on $oals Until now) 2+/A contin#es to receive develo%ment %ro%osals in areas ad?acent to wetlands) river !anks and streams and highly ecologically sensitive areas that have !een demarcated as %lots !y %lanning a#thorities. This) a%%arently) contin#es to send wrong signals to other develo%ers who seem to %erceive a sense of no action !eing taken in es%ecially #r!an areas where s#ch encroachment contin#es. 3)%%%4 Po)e t' an* nat+ al eso+ !es +se elat%ons&%( Over the recent years) there a%%ears to !e increasing cases of encroachment into nat#ral reso#rces) mostly wetlands and forest areas) in the name of fighting %overty. 1hile some of these activities are o#trightly not com%ati!le with nat#ral reso#rces conservation goals) their %romoters have vigoro#sly defended them as intended to assist in fighting %overty. Activities s#ch as develo%ment of a%artment com%lexes) large scale agric#lt#ral irrigation schemes) lodges in ecologically sensitive areas right down to washing of cars in lakes and rivers) are done for economic gains witho#t regard to conservation or restoration of the affected wetlands. +nforcement of the legal re>#irements #nder s#ch sit#ations has generated a lot of #nrest) es%ecially as the %o%#lations of %oor comm#nities involved have) in most cases) attracted sym%athy against the enforcement agents. e%uired Action to Enhance Enforcement Capacit& BiC 2+/A needs to start earnest %rosec#tion of violators) with severe %enalties !eing given o#t
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BiiC There is need to !#ild enforcement ca%acity at lead agency) district and comm#nity levels BiiiC There is also need to show6case B%#!liciseC exam%les of enforcement s#ccess stories
BivC +nforcement actions yet to !e o%erationalised incl#de) among others; Q Ind#stries to f#lfil the re>#irement for self monitoring and self re%orting and s#!mit ann#al monitoring re%orts to 2+/A as re>#ired !y law. Q +nforcing the =%oll#ter %ays %rinci%le= for those discharging !eyond set standards. Q (o#rt action against violators of environment management re>#irements is still very limited in sco%e. 3vercoming Enforcement Challenges $eca#se the area of environmental law is so new) the ?#dges and magistrates in 0enya are facing a great challenge. To overcome the challenge satisfactorily) a n#m!er of worksho%s and sym%osia have !een organised to sensitise and ed#cate ?#dges and magistrates on environmental matters) incl#ding ?#dicial intervention on environmental matters. In the recent %ast) 2+/A in colla!oration with the Instit#te for ,aw and +nvironmental <overnance BI,+<C and the (entre for Advanced *t#dies in +nvironmental ,aw and Policy B(A*+,APC with f#nding from U2+P and the U0 De%artment for International Develo%ment) cond#cted several sensitisation %rogrammes for mem!ers of the ?#diciary. These efforts have not only e>#i%%ed a significant n#m!er of ?#dges and magistrates in 0enya with the skills and knowledge re>#ired to deal with environmental litigation in general and the a%%lication of the !road loc%& &tandi re>#ired in environmental %#!lic interest cases !#t has also given im%et#s to those ?#dges and magistrates to make tremendo#s %ersonal effort to enhance their skills and knowledge in this area. /ost recently) d#ring a sym%osi#m organised for (o#rt of A%%eal G#dges from the three +ast
African co#ntries) in A%ril -:: ) 0enya8s (hief G#stice stated that environmental law training will !e a re>#irement for all sitting ?#dges and magistrates. In addition) the Attorney <eneral f#rther stated d#ring the same sym%osi#m that all *tate %rosec#tors and co#nsel will from now henceforth !e re>#ired to take a co#rse in environmental law as %art of their legal ed#cation training. There is no do#!t that the efforts to !#ild the ca%acity of) among others) ?#dges) magistrates and %rosec#tors in 0enya will %ay off following on6going efforts of enforcing environmental law in 0enya. In addition) 2+/A has taken tentative ste%s in engaging the %rivate sector in efforts of ens#ring com%liance with +/(A and related s#!sidiary legislation. This has !een done thro#gh contact with the 0enya Association of /an#fact#rers. 2+/A has em!arked on sensitisation worksho%s designed to !ring a!o#t changes in cor%orate !ehavio#r. +ssentially) 2+/A is attem%ting to !ring forward two im%ortant iss#es; the first is that if they do not #se the
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environment s#staina!ly and damage it !y %oll#tion) they will) in the end) have no reso#rce left to #se. The second is that !y investing a little in meas#res that %rotect the environment) they will) in most cases) not lose !#t in fact may gain some more %rofit. It is ho%ed that the ind#stries will soon realise that meas#res to introd#ce technologies will minimise %oll#tion with likely financial gains as a res#lt of more efficient #se of reso#rces) incl#ding energy. 2+/A is) therefore) attem%ting to !ring a!o#t awareness to this sector #sing a nonconfrontational
a%%roach to s%read the gos%el on environmental management !y stressing the need for s#staina!le develo%ment !y em!racing the %rivate sector and involving them in the decision making %rocess. This involvement has ena!led the %rivate sector to enco#rage staff of 2+/A to a%%roach ind#stries as friends)": so as to avoid negative reactions that might lead ind#stry to lo!!y forces against the environment and the conse>#ences thereof. The %rivate sector has !een and is colla!orating with 2+/A) incl#ding in the following areas; Q Involvement in the taskforces develo%ing vario#s environmental >#ality standards) where ind#stries infl#ence changesE Q Goint sensitisation of the !#siness comm#nity thro#gh worksho%sE Q .e%resentation in the 2ational +nvironment (o#ncilE and Q +sta!lishment of desk officers Bthe Petrole#m Instit#te of +ast Africa has a designated %etrole#m officer who is a 2+/A officerC. In addition) strengthening civil society instit#tions and residents associations thro#gh instit#tions s#ch as the 0enya Alliance of .esidents Associations is necessary !eca#se they are essential %artners in many areas) incl#ding im%lementation of environmental %rogrammes and %romoting com%liance) since they act as environmental watchdogs. 2+/A has develo%ed a very good tradition of inviting environmental 2<Os to its worksho%s. This has led to reci%rocity on the %art of 2<Os that are also develo%ing the %ractice of inviting 2+/A staff to their own worksho%s to disc#ss environmental iss#es. The effort to develo% %artnershi%s with 2<Os working at comm#nity levels is also starting to %ay off as more and more 2<Os are !ecoming interested in the form#lation as well as im%lementation of the environmental action %lans as
envisaged in +/(A. (ivil society has !een contri!#ting a great deal in %romoting com%liance and enforcement !y; Q +nhancement of %#!lic %artici%ation in environmental law com%liance and enforcement) Q Advocacy Bcreating awareness a!o#t the rights of %eo%leC)
":
For the %ast two years since -::3) 0enya Association of /an#fact#rers and the Petrole#m Instit#te of +ast Africa
has enco#raged its mem!ers to s#!mit ann#al +nvironmental A#dit re%orts to 2+/A in a timely fashion as re>#ired !y law.
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Q Training ?#dges) lawyers and magistrates on enforcement) "& and Q Undertaking %#!lic %olicy research) to infl#ence %olicy as well as %rovide technical and legal information to facilitate litigation. It is ho%ed that s#ch colla!oration and good will develo%ed th#s far with the %rivate sector and civil society will allow 2+/A to forge ahead in environmental management in the co#ntry. ole of Lead Agencies and elations with .E)A
*ince 2+/A is not an im%lementing instit#tion) it m#st %erform its d#ties thro#gh co6 o%eration with other instit#tions. 2+/A is horiDontally linked to the lead agencies in the environment sector. 2+/A is also vertically linked to the local government str#ct#re) the %rivate sector) and civil society. Under the vario#s sectoral %olicies and legislation there are lead agencies co6 ordinated !y 2+/A for %#r%oses of addressing environmental iss#es !y virt#e of *ection 7 of the Act. The lead agencies have the res%onsi!ility to develo% internal ca%acity and contri!#te to s#staina!le environmental management) collect data and disseminate information) and %romote environmental ed#cation and %#!lic awareness in their res%ective sectors. They also ens#re enforcement)
im%lementation) com%liance) and monitoring of laws) %olicies and activities within their ?#risdictions. The lead agencies are also ex%ected to s#%ervise) within their legal and administrative set#%) the cond#ct of environmental assessments) and carry o#t ins%ections related to the environment in colla!oration with 2+/A8s environmental officers and gaDetted ins%ectors. Over the years) some sectoral ministries and de%artments have com%lained that 2+/A has !een encroaching on their sectoral mandates. (onf#sion has res#lted in the stat#tory %rovisions of the Act %roviding 2+/A with the overall res%onsi!ility for the management of the environment and at times 2+/A has moved into im%lementation contrary to what was envisaged !y the Act. 2+/A has) on occasion) ?#stified intervention on the gro#nd that the lead agencies are not %erforming their roles %ro%erly and that 2+/A m#st %rod them to ens#re diligent im%lementation of environmental law. *hort of ?#dicial inter%retation of the %rovisions of 2+/A8s f#nction) it is recommended that the %ro%osed +nvironment Policy"- clearly %rovides for 2+/A8s role as overall monitoring) %lanning and co6ordination of environment@nat#ral reso#rces matters) and f#rther ill#minate on the im%lementation role of the sectoral ministries) de%artments and agencies. To a large extent) +/( A is also fairly clear a!o#t the res%onsi!ilities and f#nctions of 2+/A as well as of the lead agencies. In addition to the fre>#ent re>#irement that 2+/A sho#ld cons#lt relevant lead
"&
I,+< and (A*+,APhave !een instr#mental in these training exercises since -::5 to date. the time of writing this cha%ter) work on the +nvironment Policy had !een commissioned and %#!lication antici%ated !y
"- At
G#ly -::".
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agencies) there are three %rovisions in the +/(A B*ections &- and *ection 4"B&C that %rescri!e s%ecific roles for the lead agencies. All these are designed to make it ex%licitly clear that the %rimary im%lementers of the 2ational +nvironment Action Plan are the lead agencies. *ection &- of +/(A %rovides that a lead agency will not !e released from %erforming its d#ties as %rescri!ed !y law as a res#lt of the exercise !y 2+/A of its co6ordinating) monitoring and s#%ervisory f#nctions. *ection &- of the Act states that the A#thority may after giving reasona!le notice of its intention so to do) direct that any lead agency do %erform) within s#ch time and in s#ch manner as it shall s%ecify) any of the d#ties im%osed #%on the lead agency !y or #nder this Act or any other written law) in the field of environment and if the lead agency fails to com%ly with s#ch directions) the A#thority may itself %erform or ca#se to !e %reformed the d#ties in >#estion and the ex%ense inc#rred !y it in so doing shall !e a civil de!t recovera!le !y the A#thority from the lead agency. *ection 4"B&C %rovides that 2+AP shall !e !inding #%on all %ersons and all government) agencies and organs. In other words) lead agencies are !o#nd !y law to carry o#t their res%onsi!ilities of im%lementing the 2+AP in the manner s%ecified therein. *ection 7B-C B%C of +/(A f#rther attem%ts to create a re%orting link !etween 2+/A and the lead agencies. This section %rovides that each lead agency charged with the management of any segment of the environment #nder any law shall s#!mit to 2+/A state of environment re%orts on the state of the sector of the environment #nder the administration of that lead agency. This
%rovision is designed to ens#re that 2+/A can follow #% what is going on in the lead agencies in terms of carrying o#t their im%lementation f#nctions. O!vio#sly) these %rovisions alone are not s#fficient. It is recommended that the com%letion of 0enya8s 2+AP and the +nvironment Policy !e done as a matter of #rgency. $oth %rocesses will !ring into sha%e areas that will re>#ire the review and) where necessary) overha#l and reform of the laws that govern the lead agencies so that environmental concerns can !e %ro%erly incor%orated. Indeed) some lead agencies Bthe traditional nat#ral reso#rces managers s#ch as forestry) and water and wildlife which is #ndertaking a review of the wildlife %olicy in 0enyaC have #ndergone revision of their sector %olicies and legislation) !#t other line agencies) !y and large) still contin#e with legislation that does not s%ecifically re>#ire them to take the environment into acco#nt in their %lanning. Perha%s as a res#lt of this conf#sion and %ro!lems) some %rovisions within +/(A need detailed review and s#ggestions made for their amendment. The >#estion to ask in s#ch a review exercise is whether the activities of 2+/A and a %artic#lar lead agency are cross6c#tting and) where they are not) if they can !e carried o#t !y the lead agencies. If the activities are crossc#tting) it is 2+/A that will have to take the res%onsi!ility in view of the n#mero#s instit#tions that may need to !e co6ordinated to carry o#t the activity satisfactorily. 9owever) even if they are not cross6c#tting) it may !e that the activities are not easily amena!le for carrying o#t !y any of
the lead agencies !eca#se of lack of a clear mandate or the non6existence of a mandate) in which
case it will !e a%%ro%riate for 2+/A to take over the f#nctions or) even !etter) orchestrate %erformance !y the relevant lead agencies. There a%%ears to !e only two feasi!le o%tions to deal with this sit#ation. The first is to examine these %rovisions caref#lly to find o#t if they cannot !e carried o#t !y the relevant lead agencies and then amend the +/(A on the !asis of the res#lts of s#ch examination. The second is to make %rovision in +/(A for the delegation in every case) to lead agencies to carry o#t these f#nctions. 9owever) the %ro!lem with this is whether a *tate cor%oration can delegate to a line ministry or de%artment activities that are not stat#torily within its am!it. In the latter case) however) it is im%ortant that 2+/A limit its exercise in delegation to those activities and f#nctions that are clearly vested in 2+/A) since one cannot delegate a f#nction that is not his in the first %lace. In addition) in order to facilitate co6ordination) 2+/A may choose to invest in the %romotion of esta!lishment of +nvironmental ,iaison Units B+,UsC in the lead agencies. These Units will !e made #% of staff of the agencies) who will !e %rovided with the res%onsi!ility of incor%orating environmental re>#irements within the day6to6day o%erations of the agencies. /eas#res m#st !e taken to ens#re that esta!lishment of s#ch #nits !ecomes a legal o!ligation of the lead agencies thro#gh a %ro%osed amendment of +/(A as %art of the agencies instit#tional arrangements
for environmental management as well as to ela!orate their f#nctions. One may arg#e that 2+/A) initially) had to act forcef#lly !eca#se some lead agencies were not res%onding to their roles #nder +/(A and their own stat#tory mandates. 2+/A sho#ld not !e seen to !e im%lementing stat#tory roles of other agencies even in its s#%ervisory role) !#t sho#ld do all it can to enco#rage lead agencies to %erform as ex%ected !y +/(A and their own sectoral legislation) where s#ch legislation has !een revised for harmonisation with +/(A. It is) therefore) recommended that a closer review of +/(A !e made to esta!lish whether or not there are any %rovisions that need to !e amended to #n!#rden 2+/A from a n#m!er of res%onsi!ilities and f#nctions that can %ro%erly !e carried o#t !y lead agencies as %rimary role %layers in environmental management. Conclusion The +nvironmental /anagement and (o6ordination Act is framework law that esta!lished the legal and instit#tional framework for the co6ordination of the diverse sectoral initiatives for environmental management in 0enya. 9owever) as framework legislation) its im%lementation is de%endant on the %rom#lgation of ena!ling reg#lations that 2+/A is c#rrently working on. Indeed) some have arg#ed that framework law is the least efficacio#s as an instr#ment for managing the environment."4 *o long as s#ch framework stat#te clearly esta!lish a strong environment agency se%arate from any of the line ministries and de%artments) and creates legal
"4
Okoth6Ogendo M-::&; 33N arg#es that framework environmental stat#tes generally re%resent com%romises hammered o#t !y
agencies or line ministries #nwilling to give #% their discrete f#nction to any of them.
standing of the agency) with clear legislative mandates) clear hierarchy for information flows and management %rocess within their legal mandate) then it is %ossi!le to have coherent and com%rehensive governance of the environment #sing framework legislation. 9owever) it m#st !e remem!ered that s#ch framework legislation %rovides only the skeleton for environmental governance. The meat and flesh of s#ch governance is %rovided !y the re>#isite s#!sidiary legislation in the form of reg#lations and g#idelines %rom#lgated to im%lement and enforce the %rovisions of the framework law. 1itho#t s#ch %rom#lgation) the framework is almost im%ossi!le to im%lement. In addition) if the framework law does not re%eal or re6designate the mandate of any of the lead agencies !#t recognises and strengthens the role of s#ch agencies) and %rovides for a co6ordinated and harmonised a%%roach to environmental governance) then it is %ossi!le to !ring all the relevant government agencies to work together in ens#ring effective governance. 1hat m#st !e made clear is the role) %owers and f#nctions of s#ch agencies vi&! a!vi& the newly created environmental agency. This has !een the case in Uganda8s 2ational +nvironment Act) which %rovides for the clear role of lead agencies to work in %artnershi% with 2+/A6Uganda. "5 In addition) the instit#tional and administrative framework in Uganda is s#ch that District +nvironment Officers remain #nder the local government a#thorities and carry o#t their relevant mandates in environmental management. 9owever) #nder its mandate of co6ordinating the work of s#ch agencies) 2+/A Uganda has managed to ens#re a harmonised a%%roach to management of environment of Uganda
witho#t s#s%icions or hostility from these agencies. F#rther) the s#!?ect matter of legislation is of essence to the style of instr#ment chosen. 1here there is need to create clarity in the existing legal norms and to !ring them into one com%rehensive text) a code is a%%ro%riate."3 1here the aim is to maintain sectoral com%etencies and yet ens#re co6ordination) framework legislation has !een fo#nd a%%ro%riate. A framework ty%e of legislation has !een defined as =legislation) which lays down !asic legal %rinci%les witho#t attem%ting to codify all relevant stat#tory %rovisions=. 1hile codification is a%%ro%riate to certain sectoral concerns Bfor exam%le) water) wildlife and energyC) framework legislation is a%%ro%riate as a !asic law on the environment with a mission to co6 ordinate existing sectoral concerns. *ince the mission of the framework legislation is standard6setting and co6ordination) it follows that sectoral laws have to !e strengthened in order to create a strong system of environmental law. In 0enya) the Act has !een in o%eration for nearly five years. 9owever) 2+/A is still ac>#iring a critical mass of ex%ertise not only to cover its vast array of f#nctions) !#t also to !#ild #% credi!ility and !laDe the trail in the enforcement of the law for so#nd environmental
"5
(ha%ter &34 of the ,aws of Uganda. environmental code wo#ld entail !ringing together all the environmental legislative norms and %lacing them
"3 An
into one text instead of having them scattered into vario#s texts@stat#tes. *#ch an a%%roach has !een ado%ted in *weden) which has an +nvironmental (ode !ringing together some &' or so stat#tes into one code.
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management in 0enya. 9owever) with the develo%ment and gaDettment of at least 5 ena!ling reg#lations) which have !een %rom#lgated and come into force) the efficacy of the framework law
will now !e %#t to test as well as the instit#tions esta!lished to ens#re %ro%er governance of nat#ral reso#rces in the co#ntry. One will then !e in a %osition to %ro%erly eval#ate the efficacy of the Act and the instit#tions therein. It is) therefore) still too early to call for ma?or amendments of the Act as the same can only !e said to !e 5: %er cent in o%eration B!eing a framework lawC. 9owever) that is not to say that the areas that this cha%ter has identified as having loo%holes in the legislation sho#ld remain #nattended to. It is %ossi!le to rectify) witho#t overha#ling the Act) these small anomalies thro#gh miscellaneo#s stat#te amendments. It is critical to allow this %rogressive law a chance to revol#tionalise the way environment is governed in 0enya and this can only !e done with %ro%er #nderstanding of why the Act was !ro#ght to life) what the Act ho%es to accom%lish in terms of access to environmental ?#stice) access to information and involvement of the %#!lic in the decision making %rocesses of their nat#ral reso#rces. In addition) government commitment in terms of ade>#ate !#dgetary allocations for the effective dis%ensation of mandates of the instit#tions created #nder the Act is critical. ,astly) it is inc#m!ent to realise that witho#t a %ro%erly managed environment) 0enya will have no ho%e in achieving her commitments on the /illenni#m Develo%ment <oals) and the many glo!al and regional o!ligations in connection to treaties) since a %oor environment leads to f#rther %overty and the more %overty the more environmental degradation is witnessed.
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Chapter ,
Institutional Arrangements for Environmental )anagement in -en&a

$+2*O2 O1UO. O(9I+2<8
Introduction
The character of instit#tional arrangements and the distri!#tion of %ower in a management context is a cr#cial determinant of the efficacy of a system and the %ossi!le im%lementation strategies 6that may !e em%loyed. In relation to the environment) instit#tional models that revolve aro#nd dominant state instit#tions %lanning for and managing the #se of nat#ral reso#rces may !e #nres%onsive to %ertinent interests of local %eo%le) there!y com%romising their legitimacy and effectiveness as they fail to ca%t#re the cr#cial in%#ts and innovations that the citiDenry and the %rivate sector can !ring to !ear on management. In contrast) management a%%roaches that involve local comm#nities and recognise local !ehavio#r and %atterns of reso#rce #se can Utilise locallydevelo%ed and controlle res%onses) making them more likely to !e s#ccessf#l in solving environmental %ro!lems. *triking the right !alance !etween maintaining a role for the *tate and em%owering local comm#nities and the civil society) in its vario#s forms) to take charge of environmental management is critical in crafting an o%timal instit#tional model for managing the environment. This cha%ter examines the a%%ro%riateness of the instit#tional arrangements for environmental
management in 0enya. It shows how the mandates of environmental instit#tions have evolved from !eing %rimarily concerned with reso#rce allocation and ex%loitation d#ring the colonial era to !eing concerned with conservation and management of the environment. It necessarily considers how !est to arrange the instit#tional systems and %rocesses of the *tate to s#%%ort the management of the environment. As a !asis for analysis) the next section #nderscores the different instit#tional models for environmental management. The aim is to %rovide the !road framework within which environmental management instit#tions in 0enya have evolved and can !e analyDed. The cha%ter then %roceeds to ex%lore the evol#tion of environmental management instit#tions in 0enya) as well as the social) %olitical and economic im%eratives that have sha%ed them. The third %art of the cha%ter examines) in detail) the different categories of environmental management instit#tions in 0enya. The fo#rth %art analyses the workings of the environmental management instit#tions while the fifth %art examines the salient feat#res that sho#ld characterise new instit#tional models for
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managing the environment in 0enya. The last section) six) concl#des the cha%ter. Conceptuali:ing Institutional Arrangements 8Instit#tions8 is a conce%t with many definitions and inter%retations. & Jet) it is a key conce%t in environmental management. It is thro#gh instit#tions that management systems work. Indeed) the
efficacy of environmental management is largely a >#estion of instit#tional design and dynamics. In its !roadest sense) instit#tions refers to r#les !y which societies govern themselves. - These r#les may #e ,ormal or in,ormal. Formal instit#tional arrangements are codified in constit#tions) stat#tes) reg#lations) %lans and %olicies. Th#s) in relation to 0enya) formal instit#tional arrangements for environmental management encom%ass all those codified r#les relating to s#ch environmental iss#es as land #se) %ro%erty rights) decision making and nat#ral reso#rce management. As for the informal instit#tional arrangements) they are manifest in the normative ex%ectations and the r#les governing relationshi%s within families) clans) firms or comm#nities vi&!a!vi& the environment. They are inherent in the traditional laws and c#stoms of a %eo%le or comm#nity and incl#de social norms that infl#ence the management of the environment in s#ch ways as thro#gh societal ex%ectations of reso#rce access and #se. 9owever) instit#tions can also !e constr#ed sim%ly as actors. 4 In this sense) instit#tional arrangements for environmental management refer to the organiDations concerned with managing the environment and the way they are str#ct#red to carry o#t that mandate. This is the sense of instit#tional arrangements) which concerns #s most in this (ha%ter. 1e %ro%ose not to foc#s on the entire range of environmental laws and %olicies) which are the concern of this !ook. .ather) o#r interest here is to examine the way the laws and %olicies infl#ence the !ehavio#r of actors in the environmental arena. This necessarily calls into >#estion the efficacy of the actors)
the a%%ro%riateness of c#rrent distri!#tion of %ower and e>#ity) and the ade>#acy of decision making %rocesses. This is essentially a governance challenge) for it calls into foc#s ways and means of streamlining the instit#tional landsca%e where it is tho#ght to !e too com%lex) rigid) !#rea#cratic) #nrealistic in relation to the economic environment or availa!le reso#rces) or insensitive to s#ch %rogressive governance ideals as decentralisation. O#r ty%ology of analysis ado%ts a five6fold criteria to examine instit#tional arrangements for environmental management in 0enya. The first criterion foc#ses on whether the instit#tional arrangement envisages the environmental challenge as a systemic iss#e re>#iring a holistic a%%roach or whether it views environmental %ro!lems as inde%endent challenges for which single sol#tions are %referred. Over the years) the design of instit#tional arrangements in 0enya has
& *ee
9#kkinen M&777NE ,ane M-::-NE *ma?gl et al M-::5N. et al M-::5N. M&777N.
- *ma?gI
4 9#kkinen
tended to ignore the interde%endence of environmental %ro!lems. In this regard) the im%ortant >#estion to address is the extent to which the instit#tional arrangements ca%t#re the !reath of related environmental %ro!lems and controls. The second criterion rests at the core of governance. <iven that a n#m!er of African co#ntries are im%lementing decentralisation %olicies as a means of im%roving governance) there is always the %ossi!ility of tension !etween the central and local government in attaining a reasona!le !alance of power in managing the environment and nat#ral reso#rces. If s#ch tensions res#lt in adversarial relationshi%s that #ndermine the a%%lication of the s#!sidiarity %rinci%le) the #ltimate o#tcome is the ineffectiveness of !oth the decentralisation and the environment or nat#ral
reso#rce %olicy. *imilar o#tcomes may res#lt from lack of effective co6ordination and synergy among vario#s instit#tions res%onsi!le for environmental management. In the s%ecific case of this analysis) therefore) the >#estion to determine is the extent to which the instit#tional arrangements com%ly with the co#ntry8s decentraliDation norms !y seeking to ens#re synergy and to maximise local initiatives. A third im%ortant iss#e is the need for instit#tional arrangements to !e sensitive to the reso#rce needs) technical and financial. This is !eca#se the evolving economic environment infl#ences the level of reso#rces that !ecome availa!le for instit#tions to im%lement the %olicies in >#estion. It is in this light that we examine the degree to which the dynamics of the economic environment and the availa!le reso#rces are a!le to facilitate the o%erations of the esta!lished instit#tions as o#r third criterion of analysis. ,ike many of its African co#nter%arts) 0enya is known for its ela!orate range of nat#ral reso#rce laws) %olicies and reg#lations. 9owever) non6com%liance with these %olicies is a #!i>#ito#s %ro!lem. The long6standing traditional command6and6control %olicy im%lementation str#ct#res have largely !een ineffective. A key way thro#gh which this can !e remedied is to ado%t innovative a%%roaches that a%%ly systems of incentives rather than force. Th#s) o#r fo#rth criterion
of analysis examines the degree to which instit#tional str#ct#res em%loy rational strategic mechanisms to maximise com%liance. In doing so) we examine the extent to which the evolving environmental management regime in 0enya shifts from the traditional command6and6control str#ct#res to an integrated %lan that #tiliDes several com%liance devices s#ch as market incentives) ins#rance re>#irements) self6reg#lation) taxes and fees) %ermitting) ad?#dication and ins%ections in %#rs#ing com%liance with environmental laws. Finally) it is now close to a decade since the +nvironmental /anagement and (o6ordination Act B+/(AC came into force.5 This framework legislation %rovidesan ela!orate instit#tional framework for environmental management in 0enya. Jet) the f#ll range of instit#tional str#ct#res %rovided for in the legislation is yet to !e set #%. It is) th#s) im%erative to examine the extent to
5 Act
2o. " of &777) ,aws of 0enya.
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which the instit#tions %ro%osed in +/(A have !een set #% and o%erationalised. Environmental )anagement Institutions in -en&a +nvironmental management instit#tions in 0enya are not a new %henomenon. An environmental %ers%ective has always existed in the traditions of virt#ally all the comm#nities that constit#te what is now the .e%#!lic of 0enya. These %ers%ectives reflect in the traditions) aesthetics) theology) nat#ral history) and anthology of these comm#nities) and remain a f#ndamental infl#ence in their social6economic relationshi%s. They are s#%erintended !y vario#s instit#tions that govern many 0enyan comm#nities in r#ral areas to date.
9owever) the develo%ment of formal instit#tional arrangements for environmental management has !een a slow evol#tionary %rocess tracea!le to the advent of colonialism in the t#rn of the &7th cent#ry. These formal arrangements have evolved from ad hoc centralised models of the colonial and immediate %ost6 colonial era to the more decentralised instit#tional models seen in the recent years. *#%%lementing the traditional and central government instit#tions are the local government instit#tions that retain and exercise enormo#s infl#ence and ?#risdiction over a wide range of critical environmental sectors. $elow) we examine in detail the role of each of these instit#tional categories in managing the environment in 0enya. Central 9overnment Institutions Colonial in&tit%tional legacy The evol#tion and o%erationalisation of formal environmental management in 0enya can !est !e #nderstood against the !ackdro% of the %olitical economy of colonialism. From the time the $ritish colonised 0enya in &"73) the main %olitical6 economic agenda was to ex%and im%erialism !y maximising the ex%loitation of nat#ral reso#rces. A legal and %olicy edifice was develo%ed to %er%et#ate a dis?ointed system of allocation) ex%loitation) a%%ro%riation and ex%ro%riation of nat#ral reso#rces to f#rther this mission. (onservation was conceived in the narrow sense of %rotecting selected nat#ral reso#rces Bfor exam%le wildlife s%ecies) forests) to% soil in v#lnera!le landsca%es) etcC from h#man activity. The conse>#ence was a formida!le command and control regime of sectoral laws) %olicies and instit#tions on agric#lt#re) forests and water reso#rces)
among others. 9owever) in no sector did colonial %olicy machinations ca#se more %rofo#nd effect on the environment than in relation to land. From the very early %eriod of colonialism) the +ast Africa B,andsC Order6in6(o#ncil of &7:& and the (rown ,and Ordinance of &7:- %laced control over the more %rod#ctive land and reso#rces therein in the hands of the $ritish <overnment) %aving way
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for wide6scale alienation of s#ch land for the settlement of +#ro%ean immigrants. 3 The &7&3 (rown ,ands Ordinance f#rther !#ttressed the colonial administration8s stranglehold on land and nat#ral reso#rces !y declaring all land within the %rotectorate (rown ,and) regardless of whether it was occ#%ied !y the natives or reserved for their occ#%ation. ' The official attit#de of the colonial administration towards the existing traditional instit#tions was largely am!ivalent. This is a%tly demonstrated in the following statements) a!o#t the /aasai) !y *ir (harles +liot) 0enya8s second <overnor;
Bhe only hope ,or the "a&ai i& that %nder intelligent g%idance, they may grad%ally &ettle down and adopt a certain mea&%re o, civili2ation. $ny plan o, leaving them to them&elve& with their old military and &ocial organi&ation %nto%ched &eem& to me ,ra%ght with grave danger ,or the pro&perity o, the tri#e a& well a& ,or the p%#lic peace A I cannot admit that wandering tri#e& have a right to keep other and &%perior race& o%t o, large tract& merely #eca%&e they have ac:%ired the ha#it o, &traggling over ,ar more land than they can Etili&e.)
Th#s) the colonial administrative str#ct#res were designed with the main o!?ective of %er%et#ating this ideology !y wrestling control of reso#rces from the indigenes and maximising their ex%loitation !y the settlers.7 An all6%owerf#l exec#tive analogo#s to the %resent6day %rovincial administration exercised a!sol#te a#thority over reso#rces on !ehalf of the (rown. The legislat#re and the ?#diciary assisted the administration !y facilitating the allocation and ex%loitation of the nat#ral reso#rces !y the settlers. In the case of I&aka /ainaina S $nother v "%rito wa Indagara S Other&,G( for exam%le) (hief G#stice $arth asserted that Africans were mere tenants at the will of the (rown with no more than tem%orary occ#%ancy rights to land. *everal colonial instit#tions with environmental f#nctions were esta!lished d#ring the colonial %eriod. The earliest among these was the *ociety for the Preservation of the Fa#na of the +m%ire) esta!lished !y the $ritish (rown in res%onse to the &7:: (onvention for the Preservation of 1ild Animals) $irds and Fish in Africa 5London Convention7GG Its mandate was to oversee the im%lementation of the (onvention. The colonial office #rged the society to set aside Americanty%e large tracts of land for wildlife conservation and #se the money raised from h#nting licenses
3
For more on the role of colonialism in the develo%ment of land law and %olicy in 0enya) see Okoth6Ogendo M&77&N. *ee (rown ,ands Ordinance) &" /ay &7&3. +liot M&7:3N.
'
"
+liot) >#oted in .e%ort of the 0enya ,and (ommission. ,ondon; 9/*O) &" . Okoth6Ogendo M&77&N. M&7--6-4N 0,. Fol. IO&:-. ,ondon (onvention was signed in ,ondon !y the main colonial %owers) namely France) <ermany) <reat $ritain) Italy)
&:
&& The
Port#gal and *%ain with a view to %reserving Africa in its %ristine condition) !y stemming #ncontrolled h#nting and killing of animals.
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for game %reservation.&- This was the !eginning of the %rotected areas system that dominates 0enya8s conservation a%%roach to6date. Persistent conservation challenges led the colonial government to %rom#lgate more conservation %olicies and create more instit#tions. &4 For exam%le) the <ame Policy (ommittee was created in &74" as an advisory !ody to the colonial government on matters relating to conservation. In &753) the .oyal 2ational Parks Ordinance was %rom#lgated with a view to strengthening conservation initiatives !y shifting %olicy from %rotection thro#gh h#nting laws and reg#lations to %reservation thro#gh land %rotection in res%onse to increasing h#man and livestock %o%#lations. The Ordinance vested the <overnor with %ower) s#!?ect to consent of the legislative co#ncil) to declare any area of land a national %ark thro#gh gaDettement. 9owever) the <overnor was en?oined to seek the consent of the 9ighlands $oard or the 2ative Tr#st $oard if the land in >#estion was in the highlands or native areas. The Ordinance vested a $oard of Tr#stees with the res%onsi!ility for controlling and managing the national %arks. These initiatives went a notch higher with the %rom#lgation in &73& of the 1ild Animals Protection Ordinance) whose main effect was to o#tlaw h#nting witho#t a license or %ermit. It introd#ced two main instit#tions; the 0enya 2ational Parks Organisation B02POC and the <ame De%artment. .#n !y a $oard of Tr#stees) the 02PO was charged with the res%onsi!ility of administering national %arks. The $oard of Tr#stees was also vested with %owers to s#e and ac>#ire %ro%erty for %#r%oses relating to conservation. 9onorary wardens and tr#stees were a%%ointed to assist the $oard in the day6to6day management of conservation areas. The <ame
De%artment) on the other hand) was to assist and advise local co#ncils to esta!lish game reserves in which h#nting wildlife was for!idden. *imilar de%artments were created for other nat#ral reso#rce sectors like forestry) mining and fisheries. Evol%tion o, po&t!independence in&tit%tion& At inde%endence) the new administration largely inherited the colonial environmental instit#tions. From very early time of the inde%endence %eriod) the m#ch6referenced *essional Pa%er 2o. &: of &7'3 on $,rican -ociali&m and $pplication to lanning in KenyaG? registered the <overnments interest in conserving nat#ral reso#rces. This interest was a%tly demonstrated in the vigo#r and enth#siasm with which 0enya %re%ared for the United 2ations (onference on the 9#man +nvironment) held in *tockholm in G#ne &7 -. Thro#gh a (a!inet decision made on " Decem!er &7 &) the <overnment esta!lished a small secretariatWthe 2ational +nvironment *ecretariat
&- 0ameri6/!ote &4 /ac0enDie &5 .e%#!lic
M-::-N.
M&7""NE *teinhart M&7"7NE *teinhart M&775N.
of 0enya M&7'3N.
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B2+*C W in the /inistry of 2at#ral .eso#rces to oversee %re%arations for the event. The %re%arations were so thoro#gh that the 0enyan (onference delegation managed to %ers#ade the glo!al comm#nity to locate the United 2ations +nvironment Programme in 2airo!i. &3 Following the *tockholm (onference) 2+* was elevated !y !eing transferred to the Office of the President where it co#ld en?oy relative %restige in relation to other line ministries. 9owever) in
&7":) it was again relocated to a newly created /inistry of +nvironment and 2at#ral .eso#rces where it remained for the next two decades as a technical de%artment headed !y a director. The secretariat maintained a lean staff and was ill6reso#rced to co6ordinate and effectively manage the diverse environmental challenges that faced 0enya. Increasing government recognition of the inter6connectedness of the environmental sectors as ca%t#red in the &7 76&7"4 8evelopment lan !ro#ght im%ortant instit#tional develo%ments. For one) it led to the esta!lishment of the m#ch6%raised ,ong6.ange Planning Unit in the /inistry of Planning and 2ational Develo%ment. The Unit8s role was to %romote the integration of environmental conservation and s#staina!le #tilisation im%eratives into develo%ment %olicy %lanning. It maintained the %osition of environmental@nat#ral reso#rce economist to advise on the im%lications of develo%ment initiatives on the environment. $ com%ara!le effort was seen in the creation of the Inter6/inisterial (ommittee on the +nvironment BI/(+C in &7"&. (onvened !y Director of 2+*) the I/(+ com%rised the /inistries o, 9ealth) Ind%&try, 1ater) Agric#lt#re) +nergy) 9egional Develo%ment) and the Tana and Athi .ivers Develo%ment A#thority. The initiative %rovided a m#lti6sectoral high6level for#m for disc#ssing cognate environmental iss#es s#ch as environmental im%act a%%raisal of %ro%osed %ro?ects. Altho#gh interest in the for#m waned over years as ministries receded to %referring making im%ortant decisions on their own) the (ommittee remained an im%ortant cons#ltative for#m for non6contentio#s iss#es d#ring the life of 2+*. In res%onse to the ever6growing challenges of deforestation and loss of vegetation cover) the
<overnment thro#gh a &7"& %residential administrative directive created the Permanent Presidential (ommission on *oil (onservation and Afforestation BPP(*(AC. PP(*(A was to foc#s on ways and means of conserving soil and water catchments. In addition) it was re>#ired to review the existing legislation relating to soil conservation) afforestation) and flood control with a view to recommending an effective co#rse of action. It is worthy to note that the (ommission8s terms of reference did not make any reference to the need for co6o%eration with the decadeold 2+*) to which several references had !een made in the &7 76&7"4 Develo%ment Plan. ,ike in the colonial %eriod) the %rovincial administration retained considera!le environmental management %owers in %ost6inde%endence 0enya. It is thro#gh the %rovincial administration that the many) al!eit ad hoc, environmental conservation initiatives W like %lanting trees and !#ilding
&3 Okidi
K 0ameri6/!ote M-::&N.
ga!ions and terraces W of the PP(*(A were carried o#t. This role was later to !e consolidated in &7"" thro#gh the <overnment8s %olicy of district foc#s for r#ral develo%ment) which so#ght to decentralise %olicy im%lementation to the districts) there!y giving the district commissioners) officers and chiefs considera!le environmental management res%onsi!ilities. Under the initiative) an inter6sectoral %olicy decision6making a#thority called the District Develo%ment (ommittee BDD(C chaired !y the District (ommissioner was esta!lished in each district. The <overnment also esta!lished the %ositions of District +nvironment Officer BD+OC for each administrative
district. The D+O was res%onsi!le for s#%ervising and co6ordinating all environmental matters at the district level. It is worth noting that the D+Os worked in the Office of the President while 2+* was located in the /inistry of +nvironment and 2at#ral .eso#rces. To the instit#tions descri!ed a!ove) one m#st add the vast range of sectoral instit#tions and agencies with environmental f#nctions set #% #nder vario#s ministries. 1orthy of note are the Fisheries De%artment) the Forest De%artment Bnow the 0enya Forest *erviceC) and the De%artment of /ines and <eology Wall esta!lished in the /inistry of +nvironment and 2at#ral .eso#rces. 9owever) the %rinci%al concern of these instit#tions has to a large extent !een on %rotection and ex%loitation rather than %lanned co6o%erative management of the reso#rces for which they are res%onsi!le. The 2ational /#se#ms of 0enya &' and the vario#s develo%ment a#thorities& res%onsi!le for develo%ing their res%ective !asins are also worth noting as im%ortant environmental management instit#tions in 0enya. Current institutional frame#or/ The develo%ments descri!ed in the %revio#s section ill#strate a long6standing search for s#ita!le instit#tional arrangements for environmental management in 0enya. /any of these instit#tions contin#e to %erform these f#nctions in the c#rrent instit#tional dis%ensation for managing the environment. The c#rrent instit#tional framework com%rises the vario#s ministries concerned with nat#ral reso#rce sectors like water) agric#lt#re and wildlife) the n#mero#s agencies created #nder
vario#s laws) and a vast range of instit#tions esta!lished #nder the +nvironmental /anagement and (o6ordination Act.&" $elow) we disc#ss the key central government instit#tions res%onsi!le for managing the environment in 0enya today. +,C. institutions The enactment of +/(A s%elt an immensely critical e%och in the develo%ment of environmental
&' +sta!lished &
#nder the Anti>#ities and /on#ments Act) (ha%ter -&3) ,aws of 0enya.
These are the (oast Develo%ment A#thority) ,ake $asin Develo%ment A#thority) Tana and Athi .ivers
Develo%ment A#thority) and +waso 2g8iro 2orth and *o#th Develo%ment A#thorities.
&" Act
instit#tions in 0enya. 2ot only did +/(A create) for the first time) an a%ex environmental !ody) it also %rovided for a wide range of instit#tions charged with diverse environmental f#nctions) s#ch as form#lation of environmental %olicy) iss#ance and maintenance of standards) monitoring and enforcement of environmental standards) investigation) and ar!itration of environmental dis%#tes. 1e consider it %ertinent to disc#ss in detail some of the key instit#tions created #nder +/(A. *ection 5 of the Act esta!lishes the 1ational Environment Co%ncil and vests it with very im%ortant %owers. The s%ecific f#nctions of the (o#ncil are threefold; form#lating %olicy and giving directions on the im%lementation of +/(AE setting national goals and o!?ectives) and determining %olicies and %riorities for the %rotection of the environmentE and %romoting coo%eration among %#!lic de%artments and stakeholders in environmental management. &7
The (o#ncil is com%osed of the /inister for the time !eing res%onsi!le for the environment as the (hair%erson) the Director <eneral of 2+/A as the *ecretary) and re%resentatives of all the lead agencies s%ecified in the First *ched#le to the Act. -: The other mem!ers of the (o#ncil are two re%resentatives of %#!lic #niversities) two re%resentatives of s%ecialiDed research instit#tions in 0enya) three re%resentatives of the !#siness comm#nity) and two 2<Os re%resentatives W all a%%ointed !y the /inister from a list of nominees !y the relevant organisations. One of the re%resentatives of the %rivate sector m#st re%resent oil marketing com%anies. The /inister may also co6o%t %eo%le into the (o#ncil as s@he deems fit. /em!ers of the (o#ncil serve for a renewa!le term of three years. The 2ational +nvironment /anagement A#thority B2+/AC) esta!lished #nder section of +/(A) is a most im%ortant organ as far as environmental management in 0enya is concerned. Its creation gave 0enya the first a%ex environmental management organ with res%onsi!ility for s#%ervision and co6ordination of all environmental activities in the co#ntry. Indeed) the esta!lishment of 2+/A was received with m#ch enth#siasm !y the environmental comm#nity) who saw it as an im%ortant mechanism for harmonising environmental management endeavo#rs of the lead agencie&.'G +xec#tive a#thority for managing 2+/A is vested in the Director <eneral) who works #nder the s#%ervision of the $oard. +/(A em!races %la#si!le %rovisions aimed at decentraliDing environmental management
thro#gh the mechanisms of Provincial and District +nvironment (ommittees. These are to !e set #% in each %rovince and district. They com%rise re%resentation of different stakeholder gro#%s s#ch as !#siness) farmers) lead agencies) comm#nity6!ased organisations and 2<Os in the res%ective districts and %rovinces. +ach District and Provincial +nvironment (ommittee is chaired
&7 *%ecific -: A
stakeholders mentioned in the Act are local a#thorities) %rivate sector and 2<Os.
lead agency is defined in *ection - of +/(A as =Any government ministry de%artment) %arastatal) *tate cor%oration or
local a#thority) in which any law vests f#nctions of control or management of any elements of the environment or nat#ral reso#rces.=
-& For
more on the roles of the lead agencies) see the relevant cha%ters on management of the relevant nat#ral reso#rce sectors.
Internal Teaching Use Only --'
!y the Provincial and District (ommissioner) as the case may !e. In addition) +/(A esta!lishes several instit#tions res%onsi!le for %lanning) enforcement and com%liance iss#es. These incl#de the 2ational +nvironment Action Plan (ommittee) -*tandards and +nforcement .eview (ommittee) -4 the P#!lic (om%laints (ommittee BP((C) the 2ational +nvironment Tri!#nal B2+TC)-5 and the offices of the +nvironment Ins%ectors. -3 The 2ational +nvironment Action Plan (ommittee is res%onsi!le for co6ordinating reso#rce assessments) environmental %lanning and re%orting. P(( is a form of an om!#dsman res%onsi!le for hearing %#!lic com%laints and fact6finding on matters concerning environmental degradation. 2+T o%erates as a >#asi6?#dicial !ody res%onsi!le for resolving dis%#tes of a technical nat#re on the administration of +/(A. It carries o#t this f#nction !y hearing and determining a%%eals against administrative decisions taken !y organs res%onsi!le for enforcing standards and com%liance with the Act.
It is im%ortant to note that there is so far limited ex%erience with the workings and effectiveness of some of these instit#tions. For one) it took close to five years after +/(A came into force to set #% the !asic str#ct#res that co#ld start im%lementing 2+/A8s mandate. This was %artly d#e to lack of reso#rces to esta!lish and o%erationaliDe the ela!orate range instit#tions %rovided for in the stat#te. +>#ally %ertinent was the dilemma of transitioning the f#nctions of the erstwhile environmental instit#tions) es%ecially the PP(*(A) 2+* and the De%artment of .eso#rce *#rveys and .emote *ensing BD.*.*C. F#rthermore) it took time for the citiDenry to #nderstand the f#nctions and workings of s#ch instit#tions as the P(( and 2+T. +ven after considera!le delay in esta!lishing 2+T) for instance) it did not entertain a single environmental case in its first three years of existence) mainly d#e to lack of awareness of its f#nctions among lawyers. The co#rts contin#ed Band still doC to entertain matters that sho#ld ideally !e the %reserve of the Tri!#nal. Only a handf#l of environmental ins%ectors have !een gaDetted so far) and many districts are yet to have their environmental committees or District +nvironmental Officers BD+OsC. Lead agencies The vario#s sectoral ministries) de%artments) and agencies contin#e to %erform im%ortant nat#ral reso#rce management f#nctions in their res%ective sectors; fisheries) water) energy) health) agric#lt#re) wildlife) %hysical %lanning) and ind#stry) among others. /ost of these instit#tions contin#e to o%erate #nder the sectoral laws and %olicies inherited from the colonial era. The
-- *ection -4 *ection -5 Part
4 . &.
OII. &&
-3 *ection
Internal Teaching Use Only --
difference today is that virt#ally all of them %#r%ort to !e re6orienting their management a%%roaches from centralised models to more o%en ones) with a view to ens#ring %artici%ation of stakeholders and enhancing legitimacy of their work. *ome) like the Fisheries De%artment and the 01*) are #sing limited %rovisions in the old sectoral laws and their discretion to introd#ce ela!orate schemes for involving local comm#nities in the management of nat#ral reso#rces. +xam%les of these can !e seen in the co6 o%erative arrangements !etween 01* and local comm#nities in the develo%ment of wildlife sanct#aries and %reservation of wildlife corridors. *imilar arrangements are !eing instit#tionalised in the fisheries sector thro#gh the introd#ction of !each management #nits B$/UsC. It is also worth noting that many of these instit#tions are !ecoming more accommodative to colla!orative arrangements with their co#nter%arts and 2<Os. These develo%ments are attri!#ta!le as m#ch to the changing %aradigms in environmental management as to the growing reforms in %olitical governance in the co#ntry. 9owever) the fact remains that any s#ch initiatives not !ased on com%rehensive legal %rovisions are) at !est) ten#o#s) for they de%end on the goodwill and !enevolence of the government instit#tion in >#estion) or) many times) on the head of the instit#tion. 9owever) new sectoral laws and %olicies in some sectors are !ringing im%ortant develo%ments
in so far as the role of lead agencies in environmental management is concerned. The new water and forest %olicies and legislation are good exam%les in this regard. The Forestry Act -' esta!lishes a com%rehensive instit#tional framework for managing forests in 0enya. It creates the 0enya Forests *ervice B0F*C res%onsi!le for overseeing the s#staina!le develo%ment of forests to re%lace the erstwhile Forest De%artment whose mandate was merely to %rotect forests. It also makes ela!orate %rovision for involving local comm#nities in forest management thro#gh forest comm#nity associations) and a system of incentives for ens#ring com%liance as o%%osed to the meager fines and %#nitive sanctions that existed in the re%ealed legislation. The new 1ater Act and 1ater Policy have !ro#ght forth similar develo%ments. The Act has a!olished the 1ater A%%ortionment $oard B1A$C of the old stat#te and re%laced it with the 2ational 1ater $oard Wa central !ody res%onsi!le for allocating water rights) co6ordinating the .iver $asin $oards and the District 1ater $oards) managing data !anks) monitoring water reso#rces and all other key f#nctions of the res%onsi!le ministry. Of the && mem!ers of the 2ational 1ater $oard) 3 are chosen !y the /inister from the %rivate sector) #ser and environmental interests. This m#lti6stakeholder com%osition of the national 1ater $oards looks m#ch more favo#ra!le com%ared to that of the 1A$) which com%rised solely of /inistry em%loyees and government officials. In addition) the %olicy framework envisages delegation of many of the f#nctions of the 2ational
-' Act
2o.
of -::') ,aws of 0enya.
Internal Teaching Use Only --"
1ater $oard to the .iver $asin $oards. Th#s) the !oards are res%onsi!le for a%%roving
a%%lications for water %ermits from within their catchments) form#lating recommendations on water #se and conservation) and monitoring and enforcing water #se in their areas. The Act directs that stakeholder %artici%ation and !ottom6#% a%%roach !e ens#red in the form#lation of river !asin conservation %lans. This means that develo%ment of river !asin conservation %lans m#st !e informed !y views of the District Develo%ment (ommittees and District +nvironmental (ommittees) as well as the o%inions of local stakeholder gro#%s. Provincial administration ,ike the sectoral instit#tions) the %rovincial administration seems %oised to maintain an end#ring role in 0enya8s environmental management landsca%e. This is %artic#larly so considering that the Provincial (ommissioner BP(C and the District (ommissioner BD(C are the designated chairs of the Provincial and District +nvironment (ommittees) res%ectively) #nder +/(A. The D(s are also the designated chairs of District Develo%ment (ommittees BDD(sC and sec#rity committees. At the lower levels) the instit#tion of the (hief contin#es to wield considera!le %owers in relation to environmental management #nder the (hief8s A#thority Act. For exam%le) the Act em%owers (hiefs to iss#e orders restraining c#tting of tim!er) wastef#l destr#ction of vegetation) and the control of grass fires. Local government institutions The esta!lishment of ,ocal 2ative (o#ncils B,2(sC in &7-5 !y the colonial government marked
an im%ortant %oint in the evol#tion of environmental management in 0enya. As Oy#gi rightly o!serves) it s%elt the !eginning of the demise of the remaining vestiges of traditional forms of local governance !ased #%on co#ncils of elders. ,2(s were %rinci%ally instr#ments of coercion thro#gh which the colonial government so#ght to %#sh their se%arate develo%ment agendas for +#ro%eans and Africans. Oy#gi writes that;
LIMn practice the L1C& emerged a& the arena& where centrally determined policie& and deci&ion& were legitimi2ed, #e,ore #eing p%&hed to the gra&&root& thro%gh the chie,& ,or implementation.')
+ach ,2( had the District (ommissioner a%%ointed !y the (entral <overnment as its (hairman. The D(s were a#tocratic administrators who a%%lied strict r#les in ens#ring com%liance with government %olicies. /any of these %olicies related to environmental iss#es s#ch as soil
-
Oy#gi M&7"4N. at &&3.
-" I0d
conservation and the %reservation of water catchments. The #se of forced la!o#r and cor%oral %#nishment as means of %#rs#ing com%liance with environmental o!?ectives was common%lace. An Ordinance %rom#lgated in &74 %rovided for limited democracy thro#gh the esta!lishment of %ositions of elected co#ncilors. 9owever) the ,2(s contin#ed to have little a#tonomy and %rovided only a narrow range of services. F#rther attem%ts were made towards devolving greater degree of a#tonomy to the local co#ncils thro#gh the &73: African District (o#ncils Ordinance. 9owever) the D( retained his %osition as co#ncil (hairman.
1ith inde%endence) the African District (o#ncils and the +#ro%ean (o#ncils were dissolved and the str#ct#re of local government in 0enya #nified. 9owever) the (entral government retained tight control over local a#thorities. Indeed) the local a#thorities !ecame 4&imply appendage& o, the central government4'D The (o#ncils shared the same administrative areas delineated !y %rovincial) district and divisional !orders of the %rovincial administration. The local a#thorities retain a considera!le degree of leverage as far as environmental management is concerned. They are the instit#tions vested with a#thority over the tr#st lands) which straddle m#ch of 0enya8s arid) semi6arid) grassland and woodland areas re6known for their vast !iodiversity) es%ecially wildlife. They exercise this ?#risdiction !y licensing vario#s ty%es of land and reso#rce access and #ses. This incl#des allocating land to individ#als) gro#%s or comm#nities for constr#ction of !#siness enter%rises and extraction of tim!er. Over the years) many local a#thorities have ceded the a#thority to licence tim!er extraction to the District (ommissioners of their res%ective districts. /any other local a#thority res%onsi!ilities have very direct im%lications for environmental management. These incl#de dis%osal of waste) town and city %lanning) constr#ction of r#ral access roads and form#lation and enforcement of !y6laws. In fact) a large %ercentage of local a#thority !y6laws are geared towards ens#ring clean and healthy environments. They foc#s) inter alia, on iss#es to do with health and sanitation) waste dis%osal and destr#ction of vegetation. These !ylaws
are legally enforcea!le in mainstream co#rts of law. The local a#thorities also maintain a cadre of a&kari& well6known for their rog#e manners when enforcing the !y6laws or co#rt orders. F#rthermore) s#ch activities as licensing and collection of taxes from !#sinesses !y the local a#thorities also !ring forth environmentally !eneficial effects. ,evying taxes on charcoal and fish sales) for instance) can !e disincentives for trade in these %rod#cts) there!y acting as im%ortant disincentives for over6ex%loitation of these reso#rces. It is #nfort#nate that the local a#thorities scarcely ever see their licensing a#thority as a means of disco#raging wanton #se of s#ch reso#rces. Indeed) this f#nction may have worsened the sit#ation in res%ect of reso#rce #se) as it is o%en to a!#se !y individ#als who can afford the licenses. Of even greater significance for the environment is the ?#risdiction local a#thorities have over game
-7 I#id
at &-4.
Internal Teaching Use Only -4:
reserves. They are res%onsi!le for managing these reserves for the !enefit of the local comm#nities in their areas. 2ot only do they raise fees for entry into the reserves for to#rism %#r%oses) they also license !#sinesses to !e o%erated within the reserves. These activities %rovide im%ortant reven#es for r#nning local a#thorities) which have game reserves within their areas of ?#risdiction. Indeed)
the richer local a#thoritiesWlike 0a?iado (o#nty (o#ncil Ware those with game reserves in the wildlife6rich areas of the co#ntry. 9owever) it is evident that this f#nction of local a#thorities needs rethinking) streamlining) and reinforcement. ,ocal a#thorities are ill6e>#i%%ed and ill6reso#rced to deal effectively with the highly technical challenge of managing wildlife. This has made most local a#thorities with game reserves to rely heavily on the (entral <overnment) %rivate enter%rises) and 01* in managing the reserves. The end res#lt is that the instit#tional arrangements tend to engender considera!le controversy in light of the weaknesses of the local a#thorities and the vario#s interests involved. 1rangles over reso#rce sharing with central government) !#sinesses) and local comm#nities are a common feat#re of these local a#thorities. It is diffic#lt to s#%%ose that this facilitates %lo#ghing !ack of reven#es into the management of the reserves. /any district and %rovincial level local a#thorities W the m#nici%alities and co#nties) res%ectively W maintain directorates of environment or) at least) the %osition of an environmental officer. The same a%%lies to s#ch environmental iss#es as %hysical %lanning) and health and water services. These officers are res%onsi!le for advising the local a#thorities on environmental im%lications of activities in the areas where the a#thorities are res%onsi!le. They are also res%onsi!le for ens#ring that the local a#thorities %rotect and enhance the environment. 0raditional institutions
As stated) the concern with the environment among 0enyan comm#nities %redates the advent of colonialism. The c#lt#res and traditions of these comm#nities are re%lete with diverse and im%ortant r#les relating to ecological stewardshi% and %rotection of nat#ral reso#rces. These r#les were enforced !y vario#s instit#tions at different levels of the comm#nity organisation) starting with the individ#al) family) clan and tri!e. The instit#tions of the ho#sehold and clan heads) the chiefs) and the co#ncils of elders were Band still areC foremost in enforcing c#stomary environmental laws and norms. Of these instit#tions) the co#ncils of elders were %artic#larly instr#mental in so far as allocation and #se of reso#rces was concerned. Among the T#rkana) for exam%le) the co#ncil of elders was Band still isC res%onsi!le for enforcing an environmentally6 sensitive system of graDing called Ekapa, which restricts access to the mo#ntaino#s areas that tend to har!o#r %ast#re d#ring the drier seasons. The system seeks to %reserve these areas for the lean times and ens#re e>#ity of access for different clans. (om%ara!le f#nctions are carried o#r !y co#ncils of elders among other %astoralist comm#nities like the /aasai and <a!ra. Among the <a!ra) for exam%le) access to
Internal Teaching Use Only -4&
graDing areas has long !een governed !y the traditional co#ncil of elders) the Qaa,0( which historically sanctions s%atio6tem%oral #se of nat#ral reso#rces within <a!ra territory. The Jaa may) for instance) allow destit#te comm#nity mem!ers who have lost their livestock d#ring dro#ght to settle tem%orarily in reserved hilly areas #ntil they re!#ild their herds. The elders %aid %artic#lar attention to indicators of !iodiversity and reso#rce s#staina!ility as
they deli!erated on reso#rce #se) with an eye towards the health of the ecosystem on which the comm#nity de%ended. Among the non6%astolist comm#nities like the 0ik#y#) the ,#o and the /i?ikenda) they were res%onsi!le for s#%erintending ela!orate !eliefs and ta!oos that governed reso#rce access and #se W s#ch as the !eliefs that c#tting down certain trees Blike Olwa among the ,#o) and cocon#t %alm among the /i?ikendaC wo#ld !ring !ad omen) or that killing Omieri) a %ython !elieved to hold good fort#nes for the ,#o comm#nity) wo#ld attract a !ad omen. /any of these %rotected %lants and animals were designated as sacred em!lems to ens#re that they were not interfered with or dist#r!ed.4& The co#ncils of elders wo#ld cond#ct cleansing ceremonies and met o#t %#nishment for violation of these norms. The instit#tions of the co#ncils of elders) the chiefs and clan heads enforced these norms. The elders also exercised oversight on com%liance with r#les regarding reso#rce extraction and #se. This was so %artic#larly in res%ect of common reso#rces s#ch as shared %ast#rage and water reso#rces. They wo#ld determine when to im%ose %eriodic em!argos on access to the more fragile or sensitive and rich im%ortant ha!itats of great im%ortance to reso#rce regeneration. This a%%lied to s#ch activities as fishing) graDing and watering of livestock. Individ#als) ho#sehold heads and gro#%s also had res%onsi!ility to ens#re that everyone acted
in the !est interests of the comm#nity. (ommon reso#rces s#ch as %ast#rage) fisheries and water were to !e extracted res%onsi!ly. For instance) among s#ch fishing comm#nities as the ,#o of ,ake Fictoria !asin and $a?#ni of coastal 0enya) the fisher6gro#%s wo#ld restrict access to fish or other animals8 !reeding gro#nds of the rivers) lakes and ocean waters. Among h#nting comm#nities like the /i?ikenda) each h#nting gro#% was res%onsi!le for defending their h#nting gro#nd to ens#re that their wildlife reso#rces were s#staina!ly #tilised. In any event) the #se of s#ch r#dimentary tools as !ows) arrows) s%ears) nets) %its and tra%s meant that there was little danger of wanton destr#ction of reso#rces d#e to over6ex%loitation. Instit#tions charged with s#%erintending these r#les had vario#s ways and means of ens#ring com%liance. These varied from com%elling an individ#al to release any animal #nlawf#lly tra%%ed) thro#gh fines %aid in the form of livestock) to cor%oral %#nishment or even !anishment from the comm#nity. *ince the norms were well a%%reciated as %art of comm#nal interco#rse) com%liance with the terms of the %#nishment followed as a matter of co#rse. In many areas) the instit#tion of
4: The
Jaa is the traditional co#ncil of elected clan re%resentatives that form the center of religio#s and %olitical
activities in <a!ra society.

4& ;This
%ractice is called totenism. For more) see D#rkeim M&7'5N.
Internal Teaching Use Only -4-
the chief contin#ed to %lay an im%ortant role in s#%%lementing and reinforcing the traditional
instit#tions in their environmental management endeavo#rs. Th#s) the traditional instit#tions %rovided) and to some extent still %rovide) im%ortant mechanisms for form#lating and enforcing the ela!orate r#les and c#stoms relating to the environment. Altho#gh they have !een severely weakened today) the co#ncils of elders still constit#te a cr#cial >#asi6?#dicial !ody with %owers to ad?#dicate reso#rce6related dis%#tes and claims) and to im%ose fines) among many 0enyan comm#nities. They do this in colla!oration with the instit#tions of the chief and s#!6chief. 9owever) their effectiveness is severely #ndermined !y the fact that they are rarely) if ever) recognised in the mainstream legal and %olicy circles. This creates considera!le disharmony and tension !etween the traditional regimes and the mainstream %olicy regimes) es%ecially in the more remote %arts of the co#ntry where comm#nities still retain vestiges of their traditional forms of comm#nity living. 1on-2tate actors An examination of instit#tional arrangements for environmental management in 0enya wo#ld !e incom%lete witho#t #nderscoring the contri!#tion of non6*tate actorsE 4- that is) the civil society in its diverse forms. These instit#tions have %layed an im%ortant com%limentary role in %#rs#ing s#staina!le develo%ment since inde%endence. According to a s#rvey #ndertaken !y Fowler in &774)44 a total of -7& develo%ment6oriented 2<Os were registered in 0enya then. This re%resented a six6fold increase in the n#m!er registered at the time of inde%endence in &7'4. The estimated U*X --3 million s%ent !y 2<Os in &7" re%resented almost half the official develo%ment assistance received. Two thirds of the 2<Os s#rveyed !y Fowler had an ann#al
!#dget in excess of U*X &::):::) with the (atholic *ecretariat and 2ational (o#ncil of (h#rches in 0enya B2((0C s%ending a staggering U*X 3 million and U*X 3: million) res%ectively. In terms of the sectors in which 0enyan 2<Os are involved) Fowler fo#nd from the -' organisations s#rveyed that ed#cation was most commonly cited Bwith 35 %er cent at least %artially involvedC while agric#lt#re and environmental %rotection were cited !y 5" and 5' %er cent of 2<Os) res%ectively. An area in which 2<Os have !een %artic#larly active is r#ral afforestation. /#ng8ala re%orts that as of &774) over 3 2<Os were involved in tree %lanting and environmental conservation in 0enya.45 The contri!#tions of s#ch organisations as the <reen $elt /ovement that c#lminated into its fo#nder and leader Prof. 1angari /aathai winning the -::3 2o!el Peace PriDe is world re6
4- 1e
#se this term as an e>#ivalent of the word =civil society= as a%%lied !y the United 2ations. *ee U2+P M-::-N. M&77&; 346"5N. M&774N.
44 Fowler
45 /#ng8ala
known) so is the work of the now def#nct 0enya +nergy and +nvironment Organisation B0+2<OC) fo#nded in &7"& to %rovide co6ordination among 0enyan 2<Os engaged in renewa!le energy and comm#nity develo%ment work.43 These initiatives have hel%ed a great deal towards meeting %erennial !#dgetary and h#man reso#rce shortfalls that dog government instit#tions res%onsi!le for environmental management. /any of these organisations have fo#nd their niches on vario#s environmentally relevant initiatives and networks. *ome) like the African (entre for Technology *t#dies BA(T*C) have
made significant contri!#tions in %romoting #nderstanding of the role of science and technology in s#staina!le develo%ment %olicy. Others like the .eso#rces (onflict Instit#te work in the arid and semi6arid areas on reso#rce6related conflicts) livestock develo%ment) and water conservation iss#es. Jet) others like the Instit#te for ,aw and +nvironmental <overnance BI,+<C are %ioneering research and ca%acity develo%ment initiatives linking environmental management) governance and the search for s#staina!le develo%ment in 0enya. 4' To these) one m#st add the many conservation6oriented organisations that foc#s on environment6develo%ment initiatives s#ch as ecoto#rism) introd#ction of im%roved !reeds) the %rovision of veterinary reso#rces) and the develo%ment of alternative marketing str#ct#res to those =%rovided !y the *tate. Universities and national research instit#tes are also making im%ortant contri!#tions in this regard. Firt#ally all #niversities in 0enya) %#!lic and %rivate) have recently introd#ced environmental co#rses in their c#rric#la) while some like /oi and 0enyatta have f#llfledged environmental science instit#tes) de%artments and schools. The creation of the (entre for Advanced *t#dies in +nvironmental ,aw and Policy B(A*+,APC as a ?oint initiative of University of 2airo!i8s *chool of ,aw and its Instit#te for Develo%ment *t#dies BID*C is telling a!o#t the serio#s concern to %romote excellence in environmental st#dies at the local #niversities. /any of these environmental schools and de%artments carry o#t research activities and im%lement vario#s environmental %rogrammes either inde%endently or in colla!oration with 2<Os) government ministries) and national research instit#tes s#ch as the 0enya Agric#lt#ral .esearch Instit#te B0A.IC and 0enya Forestry .esearch Instit#te B0+F.IC. The national research instit#tions
themselves cond#ct research and im%lement n#mero#s environmental management initiatives. As regards the role of the %rivate sector) its involvement in environmental management has !een very minimal) if any) over the years. This is %artly !eca#se there has !een little a%%reciation of s#staina!ility %rinci%les !y !#siness. The fact that the laws have !een weak as far as reg#lation and com%liance !y the %rivate sector is concerned did not hel% matters in this regard. 9owever) recent develo%ments %oint to great %rogress in the right direction. The 0enya Association of /an#fact#rers B0/AC has recently !een involved in im%lementing a n#m!er of s#staina!le
43 For 4' For
more on the work of 0+2<O) see Ar#m M&775;&536&3"N. more on I,+<8s work) see ioiow.ilegkenya.org.
develo%ment %ro?ects in a wide range of iss#es) incl#ding renewa!le energy) cleaner %rod#ction and climate change. In addition) many %rivate enter%rises are starting to s#%%ort environmental %ro?ects in res%onse to the vog#e cor%orate res%onsi!ility %aradigm that is moving #% the agenda in the cor%orate world) !oardrooms and shareholders meetings. Des%ite the manifest contri!#tion of civil society in environmental management in 0enya) %ertinent >#estions remain regarding their %lace and mode of o%eration. The relationshi% !etween many 2<Os and the <overnment has always !een) and still is) nothing less than s#s%icio#s. Im%ortant >#estions contin#e to !e raised a!o#t ca%acities) effectiveness) and governance and acco#nta!ility of these instit#tions. +ven more %ertinent are concerns a!o#t the ina!ility of 2<Os
to synergiDe their work and streamline it with the national s#staina!le develo%ment %olicies. *ome have res%onded !y creating networks of the so6called =like6minded=. 9owever) the effectiveness of these networks has also come #nder criticism !y some commentators. According to G#ma) for instance) many s#ch networks conceal the ineffectiveness of individ#al 2<Os and are mainly concerned with 8self %reservation8 rather than %erformance. 4 2onetheless) as G#ma adds) there are many 2<Os that have drawn their legitimacy from their s#ccesses rather than the 4mere claim o, having mem#er&hip.T0) The %receding sections reveal a n#m!er of im%ortant insights into the strengths and weaknesses inherent in 0enya8s instit#tional arrangement for environmental management. As %ro%osed in o#r conce%t#al framework) the %ro%riety of these instit#tions to carry o#t their res%onsi!ilities can !e examined on the !asis of many %ers%ectives. 9owever) we chose five categorical and encom%assing iss#es on which we !ase eval#ation of this instit#tional framework. These iss#es are; com%rehensiveness) decentralisation) reso#rce needs) enforcement mechanisms) and the o%erationalisation of +/( A instit#tions. Comprehensiveness of the Institutional Framework The evol#tion of 0enya8s environmental %olicy) in general) and instit#tional arrangements for managing the environment) in %artic#lar) are a classic st#dy in how sectoral foc#s to environmental management and #se of ad hoc administrative fiat can #ndermine the legitimacy and efficacy of instit#tions. The sectoral instit#tions inherited from the colonial era were illstr#ct#red
to deal with systemic environmental concerns that faced %ost6inde%endence 0enya. They had narrowly defined f#nctions dealing with s%ecific activities in their res%ective sectors. These f#nctions were aimed at facilitating allocation and ex%loitation of nat#ral reso#rces thro#gh a r#le6oriented system of fines and %#nishment for non6com%liance. This has made it very diffic#lt for these instit#tions to reorient their mod%& operandi even after environmental
4
G#ma M&77&N. at @A.
4" I#id
management shifted from the %rotectionist agenda of the %ost6*tockholm era to s#staina!le develo%ment of the %eriod after the .io +arth s#mmit. The ad hoc manner in which these sectoral instit#tions have !een created m#st !e credited) at least %artly) with their fail#re to match the modern environmental management challenges. This is %artic#larly evident in the case of 2+* and PP(*(A. $eing the %rod#cts of ad hoc administrative orders not !acked !y com%rehensive legislation) these instit#tions had very circ#mscri!ed terms of reference. 2+* was often times erroneo#sly viewed as an a%ex environmental !ody. The fact is that it did not have stat#tory %owers to enforce environmental laws or carry o#t oversight and co6ordination res%onsi!ilities re>#ired of an a%ex environmental a#thority. It was no more than a technical de%artment that at one time even lacked a sta!le home) as it ke%t !eing shifted from one ministry to another. Th#s) s#ccess of its work with other governmental instit#tions de%ended on its a!ility to %ers#ade them rather than demand %artic#lar res%onses. (onsidera!le %rogress has !een made since the enactment of +/( A) which esta!lished
2+/A as an a%ex environmental agency. The stat#te clearly sets o#t 2+/A8s com%rehensive mandate to exercise general s#%ervision and co6ordination over all matters relating to the environment and to !e the %rinci%al instr#ment of <overnment in the im%lementation of all %olicies relating to the environment. This %rovides a means thro#gh which all the environmental management f#nctions of the lead agencies can !e streamlined and harmonised. Indeed) all sectoral legislation need to !e revised to !ring them into harmony with +/(A. This incl#des harmonising f#nctions and res%onsi!ilities of the lead agencies with 2+/A8s oversight and coordination mandate. Unfort#nately) very few laws have !een so revised) almost a decade since +/(A was enacted. Th#s) the %arochial %#rs#it6 of the vario#s sectoral environmental instit#tions inherited from the colonial era contin#e to dominate 0enya8s environmental management a%%roaches. (ecentralisation and !articipation Decentralised management of nat#ral reso#rces is a new %aradigm in 0enya8s environmental management scene. As stated) the command6and6control a%%roach %hiloso%hy is what has %redominantly informed the develo%ment of 0enya8s environmental regime. This a%%roach relies on centraliDing a#thority for environmental management in the hands of %#!lic instit#tions) with little) if an[8) delegation of res%onsi!ilities to other a#thorities or comm#nities. It %ermits little room for %artici%ation of local comm#nities. These are the incidences that have informed the %#rs#it of environmental o!?ectives !y government agencies in 0enya. Altho#gh environmental f#nctions have !een s%read across a diverse range of sectoral agencies) there has !een little effort towards harmonising) streamlining)
Internal Teaching Use Only -4'
and synergising the f#nctions and activities of the vario#s instit#tions involved. It has not !een #ncommon to find different government agencies and ministries im%lementing closely related %rogrammes in the same area witho#t any reference to each other. The <overnment8s own 8evelopment lan of &775 records a telling ill#stration of this assertion in the (hy#l# 9ills) !ordering /achakos and 0a?iado Districts) where there was a water reservoir administered !y the 2ational 1ater (onservation and Pi%eline (or%oration) a settlement scheme administered !y the /inistry of ,ands and *ettlement) a water conservation scheme #nder the control of the /inistry of ,and .eclamation) .egional and 1ater Develo%ment) wildlife conservation #nder the 0enya 1ildlife *ervice) and environmental %rotection administered !y the /inistry of +nvironment and 2at#ral .eso#rces.47 The existence of several instit#tions with environmental management f#nctions at vario#s levels of governance may mislead a cas#al o!server to concl#de that environmental management in 0enya is decentralised. This is not tr#e. The vario#s sectoral agencies that reach even the s#!district level) hierarchies of %lanning committees down to s#!6location level) the river !asin a#thorities) and the local a#thorities rarely create linkages of comm#nication and re%orting channels for their activities. Only a limited n#m!er of initiatives have involved com%rehensive coo%erative arrangements !etween different environmental agencies. A good exam%le is the &77-
/emorand#m of Understanding !etween the Forest De%artment and 0enya 1ildlife *ervice B01*C on the management of /t 0enya Forest .eserve. 9owever) recent years have witnessed considera!le %rogress in im%roving co6 o%eration) coordination and governance of the environment in 0enya. +merging %olicies and laws are starting to instit#tionalise and harmonise co6ordination of environmental initiatives from central government agencies to the local levels. This can !e seen in the new forest and water %olicies and laws) as well as +/(A. +/(A esta!lishes the 2ational +nvironment /anagement A#thority B2+/AC as the a%ex instit#tion res%onsi!le for co6ordinating and %roviding leadershi% in managing the environment. It vests %owers on lead agencies to %lay constr#ctive roles in their res%ective sectors. It also devolves environmental res%onsi!ilities from the national level thro#gh the Provincial and District +nvironmental (ommittees to the individ#al level. A more or less similar a%%roach is ado%ted in the new 1ater Policy and legislation. 5: Prior to these) 0enya8s water sector was dominated !y the /inistry res%onsi!le for water reso#rces. The /inistry was highly centralised and scarcely a%%reciated the im%ortant role of stakeholders in managing water reso#rces. The main instit#tions thro#gh which the /inistry worked were 1ater A%%ortionment $oard B1A$C res%onsi!le for a%%ortioning water rights. The 1A$s de%ended on the .iver $asin Develo%ment A#thorities B.$DAsC and other instit#tions for data to ena!le it
47 .e%#!lic 5: .e%#!lic
of 0enya M&775N. of 0enva &&777&.
carry o#t its role. 9owever) this data was rarely availa!le. In addition to the 1A$) there were six (atchment $oards and District 1ater $oards.
9owever) the (atchment $oards were forever cash6stra%%ed and s#ffered from ac#te lack of %olitical will and legal a#thority to enforce their decisions. In addition) they were often at loggerheads with the District 1ater $oards. The other dilemma in the matrix was the .iver $asin Develo%ment A#thorities B.$DAsC) formed with the %rime o!?ective of %lanning and co6ordinating develo%ment activities in their areas of ?#risdiction. 9owever) their mandates have occasioned lack of clarity on the delineation of res%onsi!ilities !etween them and the other government instit#tions. Their =advisory role= does not enco#rage harmony or co6o%eration from the other instit#tions) es%ecially the District Develo%ment (ommittees BDD(sC) which generally see them as a threat to their a#thority. Altho#gh the .$DAs do not have %owers to allocate water) their %lanning role im%lies conferment of some control and reg#latory a#thority) which often %#ts them in direct conflict with the (atchment $oards. As stated a!ove) the new 1ater Policy and 1ater Act seek to c#re these %ro!lems !y ens#ring a harmonio#s decentraliDed framework for managing water reso#rces. A most radical change regarding instit#tions concerns re%lacement of the Forest De%artment with a 0enya Forest *ervice. Unlike the De%artment) which is an organ of the central government and hence has !een characterised !y centralised decision6making and inade>#ate financing) the *ervice is a semi6a#tonomo#s instit#tion managed !y a $oard a%%ointed !y the /inister and constit#ted !y <overnment as well as non6government re%resentatives. The 0enya Forestry Association) 2<Os) local) comm#nities) and %rivate sector are involved in %lanning and im%lementation of forest management activities. An inter6ministerial committee !ringing together
forest6related sectors is s#%%osed to find mechanisms for achieving harmoniDation of the vario#s sectoral %olicies that to#ch on forestry. It is) th#s) evident that 0enya8s environmental %olicies are serio#sly taking on !oard the need for a%%ro%riate instit#tional mechanisms for environmental management. Reso+ !e Nee*s There is no evidence to s#ggest that concern with the dynamics of economic environment and availa!ility of technical and financial reso#rces for im%lementation has !een a %riority in 0enya8s %olicy6making agenda. This %artly ex%lains the oft6 stated fact that the main %ro!lem in 0enya has not !een lack of good %olicies !#t the fail#re to im%lement them. ,aws esta!lishing ela!orate instit#tions are #s#ally enacted only to !e left in the shelves !eca#se there are no reso#rces to o%erationaliDe them. It took more than three years after +/(A was enacted to start setting #% the instit#tions created #nder the Act. To date) the entire instit#tional %rovisions of the Act are yet to !e o%erationalised. A similar fate has !efallen the im%lementation of the 1ater Act and the Forestry Act.
Internal Teaching Use Only -4"
+nvironmental %olicy6making and im%lementation in 0enya has tended to over6rely on the !enevolence of m#ltilateral and !ilateral donor f#nds. $#dgetary allocations from treas#ry !arely cover administrative costs of the vario#s relevant environmental agencies. The main limitation
with these reso#rces is that they have always %roved inade>#ate and #n%redicta!le. This makes it extremely diffic#lt to hire and retain ade>#ate com%etent staff committed to their work in these instit#tions. The few instit#tionalised financing mechanisms) mainly fines and charges for %ermits) fall far short of meeting the financial needs of %olicy im%lementation. This %osition is !o#nd to change with the emergence of a trend towards more innovative and forward6looking %olicies on environment) water and forest sectors. Indeed) one of the key o!?ectives of the new 1ater Policy is to =Md?evelo% a so#nd and s#ita!le financing system for effective water reso#rces management) water s#%%ly and sanitation develo%ment.= The Policy goes on to introd#ce a new t#rn in water management from a freely s#%%ly oriented to demand6 driven one. That means that an economic %ers%ective and s#staina!ility are key considerations in the new %olicy a%%roach to managing water reso#rces in 0enya. 9owever) it rightly notes the discre%ancies in %#rchasing %ower !etwTeen the r#ral and #r!an dwellers) and advocates a tariff str#ct#re that will ens#re cost recovery) even as it %rotects the r#ral %oor. Enfo !e#ent an* Co#(l%an!e Me!&an%s#s The command and control a%%roach to environmental %olicy6making in 0enya !red a myo%ic and %#nitive system of ens#ring com%liance !ased %rimarily on fines) forfeit#re and im%risonment. ,acking in innovation) these meas#res scarcely met their intended %#r%ose of %#nishing and deterring the offenders. Indeed) they may well have acted as incentives for offenders as the cost of
significant !reaches of the sectoral environmental %olicies tended to !e m#ch less than the !enefit the offenders are likely to derive from s#ch offence. 9owever) some %ositive %olicy develo%ments are taking %lace in terms of instit#tional mechanisms for fostering com%liance. For exam%le) +/(A %rovides a clear and a#thoritative framework for enforcing environmental rights and d#ties. Part II of the Act deals with general %rinci%les and states; =every %erson is entitled to a clean and healthy environment and has the d#ty to safeg#ard and enhance the environment=.5& This entitlement incl#des the right of access to segments of the environment for recreational) ed#cational) health) s%irit#al and c#lt#ral %#r%oses.5Any %erson whose entitlement is infringed may a%%ly to the 9igh (o#rt for redress. 54 The Act gives the 9igh (o#rt original ?#risdiction to hear and determine matters and orders relating to the environment. In addition) the s#!ordinate co#rts retain ?#risdiction over n#mero#s environmental
5&
+/(A) section 4B&C. +/(A) section 4B-C. +/(A) sectionB4C.
5-
54
offences identified in +/(A. An im%ortant %olicy develo%ment in the Act is the li!eral inter%retation of loc%& &tandi. *ection 4B5C %rovides that a %erson %roceeding #nder s#!6section B4C shall have the ca%acity to !ring an action notwithstanding that s#ch a %erson cannot show that the defendant8s act or omission has
ca#sed or is likely to ca#se him any %ersonal loss or in?#ry. The only %roviso is that s#ch action sho#ld not !e frivolo#s or an a!#se of the co#rt %rocess. In exercising its ?#risdiction) the 9igh (o#rt m#st !e g#ided !y %rinci%les of s#staina!le develo%ment. 55 Another im%ortant %olicy develo%ment for com%liance is the instit#tionaliDation of the Poll#ter Pays Princi%le. This %rinci%le means that the %oll#ter sho#ld !ear the ex%enses of carrying o#t %oll#tion %revention and control meas#res to enco#rage rational #se of scarce environmental reso#rces to ens#re that the environment is in an acce%ta!le state. 53 Th#s) it is #sed for the allocation of res%onsi!ility for the costs of %oll#tion %revention and control. $oth the 1ater Policy and +/(A make s%ecific reference to a%%lication of Poll#ter Pays Princi%le in 0enya. ,astly) in this regard) all new environmental %olices im%ose higher and more reasona!le %enalties for environmental offences. Offences that attracted %enalties of less than ten tho#sand 0enya shillings are now %#nisha!le !y fines of half a million shillings or more in the %ost6 +/(A dis%ensation. This has tremendo#sly increased the cost of environmental offences and is likely to act as deterrence.
E)CA Institutions
The %rovision of an a%%ro%riate instit#tional framework to oversee harmonio#s im%lementation of s#staina!le develo%ment in 0enya was one of the key reasons for enacting +/(A as a framework law. +/(A did fairly well in creating an ela!orate framework that caters for virt#ally all the vital
iss#es one can envisage in the context of national environmental management challenges. 9owever) there are still im%ortant iss#es to contend with in res%ect of +/(A. D#e to lack of reso#rces) it took close to five years to start o%erationaliDing 2+/A. +ven then) it took donors to avail the reso#rces that s#%%orted the ex%ert gro#%) which was a%%ointed to o%erationaliDe the stat#te. It is less than a year since the 2ational +nvironment (o#ncil W the foremost environmental %olicy making organ as far as the stat#te is concernedWwas esta!lished. Another instit#tional iss#e worthy of note is that 2+/A seems not to have a critical mass of %ersonnel to effectively im%lement the stat#te. It is !arely managing to retain a single officer) the District +nvironment Officer BD+OC) in each district. Indeed) some districts are yet to get their D+Os. *ome District +nvironmental (ommittees are either yet to !e set #% or they remain dormant. Firt#ally all the fo#r directorates of 2+/A are
55 +/(A)
sectionB3a6fC. -N.
53 *eeO+(DM&7
grossly #nderstaffed. If one adds to this the fact that only a handf#l of environmental ins%ectors have !een a%%ointed so far) one !egins to a%%reciate how m#ch gro#nd still needs to !e covered !efore +/(A instit#tions can start living #%6to the %romise for which they were esta!lished. *owards a ;euristic Institutional Framework It is clear from the foregoing that the instit#tional framework for environmental management in 0enya has evolved %iecemeal over a long %eriod of time. The instit#tional landsca%e has %rimarily !een com%osed of sectoral agencies res%onsi!le for s%ecific environmental iss#es s#ch
as water) forestry) wildlife and land. These instit#tions have hardly had any concrete he#ristic framework in terms of some !asic organisational conce%t or theory of environmental management as a co6o%erative %rocess re>#iring the involvement of all concerned citiDens. A n#m!er of iss#es ex%lain this he#ristic diffic#lty. First) the core idea !ehind the creation of these instit#tions was the need to allocate and ex%loit reso#rces rather than manage them. This narrowed the sco%e for setting #% com%rehensive str#ct#res and %rinci%les to g#ide these instit#tions in their environmental management endeavo#rs. Th#s) des%ite the changing %erce%tions in environmental management from the *tockholm8s %rotectionist agenda to .io8s em%hasis of s#staina!ility) the a%%roach and mindset of the sectoral instit#tions remained fairly %rotectionist. The fact that 0enya lacks a com%rehensive %olicy that artic#lates and consolidates the co#ntry8s environmental management agenda has only served to #ndermine efforts to re6 orient the mindset of these instit#tions. The ar!itrary manner in which some of the instit#tions were esta!lished is also an iss#e. (onse>#ences of this was %artic#larly evident in the case of 2+* and the PP(*(A. ,acking legal a#thority and com%rehensive terms of reference) the a#thority and legitimacy of these instit#tions to do their work was always >#estioned. In s#ch circ#mstances) it was diffic#lt for these instit#tions to marshal the com%etencies of the vario#s sectoral agencies towards a common goal. The enactment of +/(A in &777) to some extent) resolved this he#ristic diffic#lty. $y creating 2+/A) the long6standing need for an a%ex !ody to exercise general s#%ervision and coordination
over environmental matters was met) at least on %a%er. This sho#ld go a long way in harmonising the work of the vario#s instit#tions involved in managing the environment. Another critical develo%ment !ro#ght forth !y +/(A is the decisive %rovision of ela!orate mechanisms for %#!lic %artici%ation in the management of the environment and nat#ral reso#rces. This can !e realiDed not ?#st thro#gh the wider inter%retation of loc%& &tandi in the Act) !#t also !y the ela!orate %rovisions concerning %eo%le8s %artici%ation in +I A %rocesses) and the devol#tion of environmental management res%onsi!ilities to the district and %rovincial environmental committees. 9owever) there is still considera!le gro#nd to cover towards meeting o%timal
instit#tional arrangements for environmental management in 0enya. As stated) some of the key instit#tions %rovided for in +/(A are yet to !e esta!lished. The case of environmental ins%ectors stands o#t in this regard. Provided for #nder *ection && of +/(A) +nvironmental Ins%ectors stand o#t as one of the most im%ortant mechanisms for enforcing the Act. 2ot only are they res%onsi!le for monitoring com%liance with environmental standards and %atterns of reso#rce #se) they are also em%owered to cond#ct environmental a#dits. They can enter any %remises and ins%ect any esta!lishments for %#r%oses of enforcing environmental standards. They are also vested with %owers to %rosec#te environmental offences.5' It is worth noting that only a handf#l of environmental ins%ectors have !een a%%ointed so far. The same a%%lies to district environment officers and environmental committees. It is also instr#ctive
to note that it is only recently) less than one year ago) that the <overnment set #% the 2ational +nvironment (o#ncil. Jet) this is the organ res%onsi!le for form#lating %olicy and directing the im%lementation of the Act) setting national environmental %olicy goals and %riorities) and %romoting co6o%eration among organisations involved in managing the environment. 5 The (o#ncil has only had one meeting so far. Of e>#ally im%ortant significance is the fact the #tility and a#tonomy of some of the +/(A instit#tions may !e com%romised !y the way they have !een set #%. This is %artic#larly so in the case of the P#!lic (om%laints (ommittee BP((C) created #nder section 4& of +/(A. The idea of s#ch a committee is that it wo#ld act as an environmental om!#dsmanWa flexi!le) non6 ?#dicial or) at most) >#asi6?#dicial machinery for hearing %#!lic com%laints or views on s%ecific environmental iss#es.5" Its main f#nction is to determine the sco%e of facts on an iss#e and recommend %#!lic action to redress the com%laint. This re>#ires that mem!ers of this organ !e disting#ished in their integrity and !e !roadly knowledgea!le on environmental matters. It is also im%ortant that the Om!#dsman !e com%letely inde%endent. This im%ortant %rinci%al a%%ears to have !een com%romised in the case of P(() which is esta!lished as an organ of 2+/A. Its a#tonomy may also !e com%romised !y the wide discretion given to the /inister in res%ect of a%%ointing the (ommittee8s mem!ers) %artic#larly the (hair%erson. The only >#alification re>#ired of the (hair%erson to P(( is eligi!ility to !e a ?#dge. This does not g#arantee that the %erson is well6e>#i%%ed to handle the technical task of chairing an environmental om!#dsman.
Finally) the >#estion of ca%acity of environmental instit#tions is of %remi#m val#e. The com%lexity of environmental management makes a com%elling case for ens#ring that relevant instit#tions retain a critical mass of well6trained s%ecialists. This a%%lies as m#ch to the exec#tive officers of the a%ex environmental !ody) as to the om!#dsman) the tri!#nals and the co#rts
5'
+/(A) section &&". *ee *ections 5 K 3 of +/(A. Okidi K 0ameri6/!ote M-::&N.
5"
charged with res%onsi!ility of im%lementing %olicies and enforcing environmental laws. It is arg#ed that this critical mass of well6trained ex%erts does not exist in the ma?ority of environmental management instit#tions. +ven the national statistics may not reveal an ade>#ate n#m!er of s%ecialists in environmental law and %olicy. The first formal co#rse in environmental law was only introd#ced in &7 7 !y the University of 2airo!i8s Fac#lty of ,aw. *imilarly) the environmental co#rses introd#ced !y the vario#s #niversities across the co#ntry are fairly nascent. The n#m!er of st#dents o%ting to s%ecialiDe in %#rs#ing these co#rses is also small. The iss#e of ca%acities gets an even more significant dimension when one considers the im%ortant role of the co#rts) environmental litigation and individ#als in environmental management. <iven the nascent nat#re of environmental training in 0enya) many ?#dicial officers and lawyers) %artic#larly the more senior cadres of these categories) are not well versed in environmental conce%ts and %rinci%les. One res#lt of this is the lack of ca%acity of lawyers to engage effectively in environmental litigation. Th#s) environmental %#!lic interest litigation is yet to gain gro#nd in
0enya. This also acco#nts for the dearth of ?#ris%r#dence in m#ch of the ?#dicial reasoning in a n#m!er of environmental cases that came !efore the co#rts in the &7":s and &77:s. /any of these cases were lost on mere %roced#ral technicalities revolving aro#nd iss#es of standing. Other instit#tional ca%acities concerns relate to the levels of awareness of individ#als and comm#nities a!o#t their rights and d#ties in environmental management. Altho#gh emerging laws and %olicies make ela!orate %rovisions aimed at %romoting %#!lic %artici%ation) they have not !een ade>#ately %#!liciDed. This means that %eo%le8s engagement in the im%lementation of environmental laws and %olicies remains >#ite limited. (oming from a !ackgro#nd of command and control systems) the citiDenry contin#es to consider environmental management as the %reserve of governmental instit#tions. Th#s) the need to create greater awareness a!o#t the emerging environmental laws and %olicies cannot !e over6em%hasised. Conclusion O#r examination of instit#tional arrangements for managing the environment in 0enya ret#rns a mixed verdict. 1e reveal considera!le ga%s regarding the str#ct#ral design and ca%acities of the environmental management instit#tions. 9owever) the negative as%ects of the verdict are tem%ered !y not ?#st the drastic legal and %olicy changes seeking to strengthen and streamline environmental management) !#t also the changing %aradigms in %olitical governance from closed centralised systems to more devolved and %artici%atory a%%roaches that seek to im%rove engagements with civil society.
Five iss#es stand o#t for em%hasis in this eval#ation. First) the lack of a com%rehensive %olicy on the environment is com%romising 0enya8s a!ility to marshal the com%etencies of the diverse instit#tions involved in environmental management towards common organising mission) vision and targets. In the circ#mstances) it remains diffic#lt to identify the s%ecific agenda and targets
aro#nd which 2+/A sho#ld rally the lead agencies) local a#thorities) the civil society) and the citiDenry. There is need to develo% a com%rehensive environmental %olicy for 0enya. *econd) environmental management is ham%ered !y serio#s reso#rce needs. 2+/A and the lead agencies ex%erience %erennial !#dgetary shortfalls. This greatly #ndermines the a!ility of these agencies to %erform their f#nctions and achieve their stated o!?ectives. The limited reso#rces given to environmental instit#tions in !#dgetary allocations may !e an indicator of the %riority that the <overnment attaches to environmental management. The environmental agencies co#ld act#ally do !etter with more reso#rce allocations. Third) efforts to decentralise environmental management in 0enya are yet to ret#rn their %romise. /any of the decentralised a#thorities are not yet esta!lished. 1here they exist) the a#thorities have not !een ade>#ately facilitated in terms of technical and reso#rce needs. Decentralisation efforts are also com%romised !y lack of awareness among the citiDenry of the facilitating %rovisions of the new laws and %olicies) es%ecially as relates to their rights and d#ties.
There is need to accelerate the %rocesses of o%erationaliDing new laws. There is also need for ed#cation and awareness creation a!o#t new environmental %olicies and legislation. Fo#rth) there are str#ct#ral ga%s in the design of instit#tional arrangements for managing the environment in 0enya. These ga%s incl#de overla%%ing mandates and com%rises inde%endence of some instit#tions. The stated case of P(( and 2+/A a%tly ill#strates the iss#e of a#tonomy. As regards overla%%ing instit#tional mandates) the %ro%osed revision of sectoral laws to streamline environmental management with +/( A has !een extremely slow) with the res#lt that the instit#tional overla%s) tensions and rivalries that have dogged 0enya8s environmental management scene %ersist. It is in this light that the need to accelerate revision and harmonisation of sectoral laws and %olicies needs to !e a%%reciated. Finally) there is need to enhance ca%acities of all instit#tions involved in environmental management in 0enya.
Chapter /
S&nchronising !h&sical !lanning Law with the Framework Environmental Law

.O*+/A.J 1A(9I.A
Introduction *ection &5" of the +nvironmental /anagement and (o6ordination Act B+/(AC & %#ts o#t +/(A as the s#%reme law on all environmental matters across all sectors. Jet) >#estions arise on whether the
Physical Planning Act- is a sectoral law and to which sector it addresses itself. The Physical Planning Act) like +/(A) is a framework law that %rovides a co6ordinated !asis #%on which vario#s im%lementing agencies can develo% their individ#al %lans or %rogrammes of work for which they have exec#tive res%onsi!ility. Taken in this context) the Physical Planning Act) which confers legal re>#irements on all matters of land #se %lanning) can !e referred to as an integrative or co6ordinating Act. (onf#sion has often arisen when referring to the two terminologies of =9#man settlement %lanning= and =Planning for land and land6!ased reso#rces=. At times) they are referred to within a context that signifies se%arate %rocesses with different o!?ectives and goals. 9owever) the +arth *#mmit held in .io de Ganeiro B$raDilC in &77- heralded a new a%%roach thro#gh its advocacy of local) national and international %lanning for s#staina!le develo%ment. Agenda -&4 recognises the centrality of h#man !eings and their im%ortant role in determining the attainment of s#staina!le develo%ment. (ha%ters and &: of Agenda -& clearly show the
close linkages !etween s#staina!le h#man settlement develo%ment and %lanning and management of land and land6!ased reso#rces. Article .-" states the o!?ective of s#staina!le land #se %lanning and management as the %rovision for the land re>#irement of h#man settlement develo%ment thro#gh environmentally so#nd %hysical %lanning and land #se) so as to ens#re access to land to all ho#seholds. Under Article .4:) this was ex%ected to !e achieved thro#gh develo%ment of national landreso#rce
management %lans to g#ide land reso#rce develo%ment and #tilisation. $ased on this
& Act
2o. " of &777) ,aws of 0enya. -"') ,aws of 0enya) &77'.
- (ha%ter 4 United
2ations (onference on +nvironment and Develo%ment; Agenda -& Ado%ted at .io de Ganeiro M&77-N.
a%%roach) a close link exists !etween %hysical %lanning %ractices and environmental s#staina!ility) which forms the !asis for s#staina!le develo%ment. This cha%ter %rovides an analytical framework that defines the relationshi% !etween environmental %lanning and land #se %lanning) and how !oth can !e %&ed to res%ond to indicators of s#staina!le develo%ment. To #nderstand the c#rrent im%act of land #se %lanning %ractice in 0enya) one needs to go !ack in the %lanning history to show how weak laws and instit#tions have contri!#ted over time to the c#rrent low environmental stat#s. !lanning Legislation !rior to 1++/ Three main Acts of Parliament governed the %lanning %ractice in 0enya !efore the Physical Planning Act came into existence.5 The Acts were !y and large enacted d#ring colonial times and generally reflected the governance %attern at the time. The sco%e of the Town Planning Act B(a%. &45C of &74& was confined to the %re%aration of Town Planning *chemes in #r!an areas. Tho#gh it referred to classification of scheme area BDonationC) the f#ll %#r%ose of the Act was to facilitate administration of land for ownershi% rights and %rovision of infrastr#ct#re. The environmental iss#es at the time were limited to conservation of nat#ral !ea#ty of the #r!an areas) incl#ding lakes
and other inland waters) !anks of rivers) foreshore of har!o#r and other %arts of the sea) hill slo%es and s#mmit and valleys. The Act also advocated for the %reservation and enhancement of historic !#ildings and o!?ects of historical or scientific interest. The Act had its ?#risdiction in all gaDetted m#nici%alities and townshi%s and em%owered the <overnor Bafter inde%endence) the /inisterC to a%%oint two !odies to assist in the administration of the Act. The %re%aratory a#thorities) in %ractical sense) were the local a#thorities esta!lished #nder the m#nici%ality ordinance B(a%. &4'C !#t re%ealed in &7'3 to !ecome the ,ocal <overnment Act B(a%. -'3C. They had %ower to %re%are %lanning schemes and forward them to the <overnor B/inister after inde%endenceC for a%%roval. In addition) they were em%owered to control evelo%ment in their res%ective areas. The %ower to exec#te the scheme) %artic#larly in allocation and land administration) was confined to a se%arate !ody Bthe +xec#tive A#thorityC a%%ointed !y the <overnor. The (ommissioner of ,ands a%%roved all %lanning schemes in areas ad?acent to the <aDetted #r!an areas. After inde%endence) most of the exec#tive a#thority and a%%roval of %lanning schemes reverted !ack to the (ommissioner of ,ands. It is to !e noted that #% to &7'") the Town Planning Advisor headed a section #nder the (ommissioner of ,ands for %#r%oses of advising on all %lanning matters) and held no stat#tory role within the whole %lanning %rocess. The enactment of the =Develo%ment and #se of ,and BPlanningC
5 8These
were the Town Planning Act of &74& B(ha%ter &45) ,aws of 0enyaCE the /#nici%ality Ordinance B(ha%ter
&4') ,aws of 0enyaC) which was re%ealed in &7'3 to !ecome the ,ocal <overnment Act B(ha%ter -'3) ,aws of
0enyaCE and the ,and Planning Act B(ha%ter 4:4) ,aws of 0enyaC.
.eg#lation of &7'&=) which were later amended to the ,and Planning Act B(a%. 4:4C %rovided an a%%ro%riate framework for orderly develo%ment of areas o#tside #r!an areas. The %ro%osed amendment to the .eg#lation gave way to the enactment of ,and Planning Act B(a%. 4:4C) whose main o!?ective was to !ring in line the f#nction of the newly created De%artment of Physical Planning within the ex%ected contri!#tion to national develo%ment. The ,and Planning Act conferred the %owers of a%%roval and hearing of a%%eals to the /inister for the time !eing in charge of town %lanning. 9owever) after inde%endence) these %owers were all delegated to the (ommissioner of ,ands) who !ecame !oth the a%%roving a#thority and exec#tive a#thority. These %owers never varied even when the De%artment of Physical Planning was transferred to different ministries. The Act did not confer any %owers to the Director of Physical Planning) either for %lanning) a%%roval or enforcement and his role contin#ed to !e that of advisory to !oth the local a#thorities and (ommissioner of ,ands. The Act gave very little regard to environmental iss#es and the only reference is fo#nd in section &3B!C where (entral A#thority) a !ody formed #nder section 7BAC) was re>#ired to have regard to the health) amenities) and convenience of the comm#nity when considering a%%lications made to it. 9owever) inter%retations of these two Acts against the ,ocal <overnment Act does not give a clear mandate of %lanning roles in !oth #r!an and r#ral areas. Tho#gh it was ass#med that the ,ocal <overnment Act referred to #r!an areas within tr#st
land) section &'' confers rights to local a#thorities to control the develo%ment and #se of land and !#ildings in the interest of the %ro%er and orderly develo%ment of its areas. On environmental iss#es) the ,ocal <overnment Act gives local a#thorities a wide range of %owers to esta!lish and maintain elements of ecosystem s#ch as woodlands) wildlife) nat#re reserves) %#!lic mon#ments) recreation gro#nds) and other amenities. Tho#gh these %owers were all s#!?ect to any other written laws relating thereto) local a#thorities s#ccessf#lly a%%lied these %owers thro#gh fees and charges) vario#s licenses) and making of !y6laws. In addition to these three main land #se %lanning Acts) %lanning and in %artic#lar develo%ment control of land #se and reso#rce develo%ment) was also em!edded in other stat#tes s#ch as Agric#lt#re Act B(a%. 4&"C) 1ildlife Act B(a%. 4 'C) Forest Act B(a%. 4"3C) 1ater Act B(a%. 4 -C and all the stat#tes related to land administration and management. For years) %lanning %ractice in 0enya contin#ed #nder #nclearly defined legal %ower) %roced#res) instit#tions and res%onsi!ilities. As a res#lt) %lanning contin#ed on shaky gro#nds) laying a weak fo#ndation for most of socio6economic and environmental develo%ment %arameters. !h&sical !lanning Act <Cap= 0/8> 1++8 This Act was %re%ared and enacted at a time when increased #r!an and r#ral develo%ment
activities highlighted the inade>#acies and shortcomings of the vario#s laws governing land #se %lanning. The %#!lic o#tcry on the social in?#stices and ine>#ity in access to land) %artic#larly to
the disadvantaged for develo%mentE the deteriorating environmental stat#sE the inade>#ate %rovision of social amenities and lack of framework for the ex%loitation of land6!ased reso#rces) !ro#ght to the fore the need for a well codified land #se %lanning Gaw. (ertain concerns were noted at the %re%aratory stage of form#lating the %lanning law) namely; the scattered %rocess of legislation on %lanning) lack of cohesive instit#tional str#ct#re for forging %lanning disci%line in the co#ntry) lack of enforcement machinery for %lanning decisions) and the most critical one of %#!lic o#tcry on lack of involvement in the making of %lanning decisions. ,ain theme of the Physical Planning .ct The Act addresses the iss#e of se%aration of %ower for %#r%ose of trans%arency and acco#nta!ility. There is a clear se%aration of role in a%%roval of %lans !y the /inister) the exec#tive role !y the (ommissioner of ,ands) the %re%aratory role of the Director of Physical Planning) and the im%lementation of %lan !y local a#thorities. 9owever) the <overnment ,ands Act needs to !e amended in line with these defined roles.3 The clear defined role !etween %lan %re%aration and %lan im%lementation ens#res that there is ade>#ate feed!ack mechanism and %olicing of all elements of %lan %re%aration and im%lementation as defined in the Act. F#rthermore) %#!lic involvement in the whole %lan %re%aration) im%lementation and s#!se>#ent amendment is ade>#ately em!edded in the Act. This serves as a good %illar of %ro%er %lanning %ractice. The right to !e cons#lted %artic#larly in areas of technical knowledge is another area where the Physical Planning Act has !een well rated. This ens#res that all technical ex%erts and actors who directly contri!#te to s#staina!le social economic and environmental %lanning are %ositively
involved in %lanning %re%aration and its im%lementation. The right to access ?#stice thro#gh district and the 2ational Physical Planning ,iaison (ommittee and all the way to the 9igh (o#rt ens#res that %lanning decisions are %ractical in addressing the needs and the will of the %#!lic. 3nstitutional structures under the Physical Planning .ct The office of the /inister for the time !eing res%onsi!le for %hysical %lanning has the overall res%onsi!ility of ens#ring %lanning decisions conform to the defined %lanning %rocess and that nat#ral ?#stice is seen to !e done d#ring the whole %lanning %rocess. 9e is the a%%roving a#thority for all %lanning decisions. The Director of Physical Planning is conferred with the role of the administration of the Act. The Director is the chief government advisor on all matters relating to %hysical %lanning and
3 (ha%ter
-":) ,aws of 0enya.
he@she is ex%ected to exercise this role thro#gh %artici%atory form#lation of national) regional and local %hysical develo%ment %lans) %olicies) g#idelines and strategies. In line with the ,ocal <overnment Act) and to ens#re that local a#thorities are f#lly involved in the %lanning of their areas) the Physical Planning Act confers %ower of im%lementation of a%%roved develo%ment %lans. The im%lementation is carried o#t thro#gh control of #se and develo%ment of land and its enforcement thro#gh iss#ance of licenses for commercial) ind#strial or occ#%ation #se and develo%ment %ermission. To ens#re effective enforcement) local a#thorities are re>#ired to cons#lt widely among the technical offices) incl#ding the Director of Physical Planning and the %#!lic at large.
Two levels of tiers of liaison committees are created !y the Physical Planning Act) namely; the 2ational Physical Planning ,iaison (ommittee Breferred to as 2ational ,iaison (ommitteesC and the District Physical Planning ,iaison (ommittee Breferred to as District ,iaison (ommitteesC. D#e to its #ni>#e %lanning %ro!lems) a s%ecial liaison committee for 2airo!i is esta!lished se%arately. The %rime role of these committees is to ens#re that aggrieved %ersons or %arty !y any %lanning decision !y the Director of Physical Planning or local a#thority is heard and ?#stice administered accordingly. The main f#nction of the District and 2airo!i Province ,iaison (ommittee) among others) is to in>#ire into and determine com%laints in exercise of the f#nctions #nder the Physical Planning Act. The f#nction of the 2ational ,iaison (ommittee is to hear and determine a%%eals lodged !y a %erson or local a#thority aggrieved !y the decision of any other liaison committee. In addition) the liaison committees are re>#ired to determine develo%ment a%%lication relating to ind#strial locations) d#m%ing sites or sewerage treatment) which may have in?#rio#s im%act on the environment as well as a%%lications in res%ect of land ad?oining or within a reasona!le vicinity of safeg#arding areas. -hortcoming& o, the hy&ical lanning $ct The <overnment8s heavy re%resentation in the liaison committee has !een fo#nd to !e a ma?or weakness of the Act) %artic#larly !earing in mind that the same mem!ers of liaison committees
ad?#dicating cases !ro#ght to the committee are likely to !e the main actors of decision making of s#ch cases. To ens#re that ?#stice is rightly dis%ensed) there is a need to re6examine the mem!ershi% of these committees in order to reflect fairness and ?#stice in their deli!erations and to enhance !etter %lanning decisions for the s#staina!ility of develo%ment activities. The Act is also weak in its enforcement. There are no ex%licit re>#irements to ens#re that the im%lementation of decisions of the liaison committees is g#aranteed. In addition) there is no clear mechanism to ens#re that local a#thorities in their im%lementation of develo%ment activities
adhere to the a%%roved %lans of their areas. +nvironmental considerations in the Physical Planning .ct The Physical Planning Act) #nlike earlier %lanning legislation) has reasona!ly addressed the iss#e of !etter environment in %lan %re%aration and its im%lementation. Under section &:BdC) the liaison committees are re>#ired to determine develo%ment a%%lications relating to ind#strial location) d#m%ing sites or sewerage treatment) wTtich may have in?#rio#s im%act on the environment as well as a%%lication in res%ect of land ad?oining or with a reasona!le vicinity of safeg#arding areas. In Part F) dealing with %owers of local a#thorities to control develo%ment) the Act gives a wide range of control meas#res #nder which local a#thorities can effectively control environmental degradation. Under section -7BeC) local a#thorities are em%owered to form#late !y6laws to reg#late
Doning in res%ect of #se and density of develo%ment. *#!6section BfC re>#ires local a#thorities to reserve and maintain all the land %lanned for o%en s%aces) %arks) #r!an forests and green !elt in accordance with the a%%roved %hysical develo%ment %lan. Perha%s the one single im%ortant %ower in this Act for local a#thorities towards !etter environmental %reservation and conservation is #nder section 4') which re>#ires develo%ment a%%roval together with an +nvironmental Im%act Assessment re%ort if the local a#thority regards a %ro?ect to have in?#rio#s im%act on the environment. The Director of Physical Planning has a critical role in determining !etter environmental management. Under %art IF) which re>#ires the Director to %re%are .egional and ,ocal Physical Develo%ment Plans) there is an o%%ort#nity to incor%orate environmental iss#es and consideration in the overall framework. The inter%retation of environmental concerns and how the %lan can mitigate against them thro#gh a%%ro%riate and %rofita!le land #ses is the !est way of minimiDing environmental %ro!lems !y tackling them at so#rce. The details of local %hysical develo%ment %lans as shown in the Third *ched#le indicate some matters that may !e dealt with as conservation of nat#ral !ea#ty of the area) incl#ding lakes and other inland waters. ,ocal %hysical develo%ment %lans encom%ass renewal and redevelo%ment %lanning) which aims at either im%rovement of general #%grading areas or com%rehensive c#m#lative redevelo%ment for all areas whose conditions are #ndesira!le. *ection -4B&C re>#ires the Director) !y notice in the <aDette) to declare an area with #ni>#e develo%ment %otential or %ro!lems as a s%ecial %lanning area for the %#r%ose of %re%aration of a
%hysical develo%ment %lan) irres%ective of whether s#ch an area lies within or o#tside the area of a local a#thority. E)CA? Land #se !lanning !rovision The +nvironmental /anagement and (o6ordination Act B+/(AC esta!lishes a link !etween
environmental concerns and the long6term and short6term land #se %lanning. Under %art IF) the Act esta!lishes a cross6sectoral national committee charged with the res%onsi!ility of %re%aring a 2ational +nvironmental Action Plan B2+APC for consideration and a%%roval !y the 2ational Assem!ly. *ome of the ex%ected o#t%#ts of 2+AP are related to %lanning and management of land6!ased reso#rces as well as a%%raising of r#ral and #r!an settlements. In fact) all com%onents of 2+AP have a direct relationshi% with the way h#man !eings ex%loit their nat#ral reso#rces and how the Act can assess s#ch ex%loitation to ens#re s#staina!le #se of the environment and nat#ral reso#rces. The %rotection and conservation of fragile ecosystems) %artic#larly the wetland) coastal area lakes and rivers descri!es meas#res that sho#ld !e taken. Among those meas#res as descri!ed in 5-B4C BaC is the develo%ment of s#ch areas) taking into acco#nt the relevant sectoral interest. It f#rther s%ecifies #nder 5-B3C that any %erson who contravenes or fails to com%ly with any orders) reg#lations or standards iss#ed shall !e g#ilty of an offence. In a different section) the Act calls for %re%aration of nat#ral strategies) %lans and %rogrammes
for conservation and s#staina!le #se of forest) !iological diversity) environmentally significant areas M35B&CN and %rotection of the coast Dones M33B&CN. (ritical to develo%ment control and im%lementation of %hysical develo%ment %lans is the role of +nvironmental Im%act Assessment B+IAC. This makes %rovision BiiC A (entral Forest *%ine B(F*C shall !e esta!lished to form the !ack!one of the +nvironmentally *ensitive Area network. BiiiC *ensitive coastal ecosystems shall !e %rotected and #sed in a s#staina!le manner. BivC ,and develo%ment in highlands shall !e strictly controlled to safeg#ard h#man safety and environmental >#ality. BvC All s#rface and gro#nd water reso#rces are strategic assets to !e safeg#arded and #sed o%timally. 9owever) to ens#re %lan im%lementation and that environmental iss#es are safeg#arded) the %#!lic is f#lly involved at its ince%tion) d#ring the %lanning %rocess and its s#!se>#ent reviews. Its im%lementation !y the *tate and local a#thorities has integrated the environmental im%act assessment in its %ractice. )issing Links Between E)CA and !h&sical !lanning Act ,and #se %lanning %resents a contin#o#s challenge to national) regional and local instit#tions as choices m#st !e made among the diverse demands %laced on land reso#rces !y com%eting stakeholders. This) in t#rn) calls for a contin#o#s assessment of environmental im%act of land #se %ractices re>#iring that %lanning systems) which are closely concerned with land #se iss#es)
ass#me greater environmental im%ortance in order to enshrine s#staina!le develo%ment as a goal.
One iss#e that co#ld !e de!ated in %lanning systems is its im%ortance as an instr#ment for the %rotection and enhancement of the environment. This can ade>#ately !e answered !y #nderstanding the o!?ectives and goals of the two laws. The role of environmental law is largely to s#%%ort environmental >#ality o!?ectives where they are set) to ens#re that environmental a%%raisal and assessment of %ro?ects and %olicies takes %lace where re>#ired) and generally #nder%in the work of environmental %erformance indicators as they are %#t in %lace. ,and #se %lanning law as well may !e viewed as a framework of tools and a%%roaches #sed to #nderstand and infl#ence the %rocess of change affecting comm#nity in the context of relationshi% !etween the comm#nity and the land they occ#%y) the reso#rces they #se and the environment in which they live. $oth laws have s#staina!le develo%ment as a goal and the need to %rotect land in its vario#s as%ects as a finite reso#rce. This) therefore) re>#ires that !oth laws !e in harmony and com%lementary to each other. A critical look at !oth laws reveals weaknesses and overla%s that do not reflect the #ltimate goal for which the laws were intended. These shortcomings can !e analysed against the indicators of s#staina!le develo%ment) namely; f#nctional instit#tions) economic growth) social@c#lt#ral cohesion and environmental conservation. Functional institutions The roles of the instit#tions created in !oth Acts sho#ld !e com%lementary in a lot of areas and sho#ld ens#re that close cons#ltation) exchange of information and data is freely #ndertaken. Jet) a close look at the com%osition of the instit#tions created !y the two laws reveals that altho#gh
2+/A is re%resented in the ,iaison (ommittee) no land #se %lanning agencies are re%resented in 2+/A8s str#ct#re. Unfort#nately) 2+/A is not one of the instit#tions that local a#thorities have to cons#lt when considering develo%ment a%%lications and yet) #nder section 4') +nvironmental Im%act Assessment re%orts have to accom%any develo%ment a%%lication that have in?#rio#s im%act on the environment. Tho#gh 2+/A has the instit#tional and legal machinery as the central !ody) with the res%onsi!ility of ens#ring a co6ordinated a%%roach to environmental management) there is no legal o!ligation on these agencies to cons#lt and co6o%erate with one another. The mechanism of cons#ltation defines common acce%ta!le standards and environmental g#idelines) which form the common normative a%%roaches for all instit#tions. 9owever) it is to !e noted that #nder +/(A) the esta!lishment of *tandards and +nforcement .eview (ommittee is restricted to %oll#tion control only. 2owhere in the two Acts is the esta!lishment of mechanisms for enforcing standards for #r!an develo%ment and land #se %lanning given any recognition. The Physical %lanning Act lacks clear enforcement and com%liance mechanisms and the environmental concerns that the Director of Physical Planning or local a#thorities are ex%ected to
safeg#ard may go #nnoticed or #n%#nished. Under the Physical Planning Act) the Director of Physical Planning is ex%ected to form#late national) regional and local %hysical develo%ment
%lans and %olicies. Under %art F) the Act gives the local a#thorities the %ower to im%lement the local %hysical develo%ment %lans within their area of ?#risdiction. 2owhere does the Act define how and !y whom the national and regional develo%ment %lans will !e im%lemented. 1hereas it may !e s#!s#med that local a#thorities will im%lement the regional %lans) the %ractica!ility of it !rings %ro!lems) since s#ch im%lementation re>#ires co6ordination of vario#s a#thorities and agencies) a role which the local a#thorities do not have. The Physical Planning Act does not create an instit#tion ca%a!le eno#gh to co6ordinate and create linkages for all other sectors involved in land #se %lanning and management. *#ch instit#tions will need to !e harmonised with the instit#tions already created #nder +/(A to ens#re that there is no d#%lication of roles and res%onsi!ilities. Economic growth considerations Planning is %rimarily concerned with orderly management of change !y %roviding a framework within which vario#s iss#es and val#es can !e weighed against one another. I#ite often) economic arg#ments tend to o#tweigh environmental concerns. This re>#ires that land #se %lanning as an integrative tool m#st make deli!erate efforts to ens#re that the im%ortance of environmental concerns are ade>#ately addressed if s#staina!le %rod#ctivity and #se are to !e maximised. These two f#nctions are contained in the f#nction of the Director of Physical Planning to form#late national) regional and local %hysical develo%ment %lans) %olicies and strategies that assist in increased o%%ort#nities and alienation of %overty for the comm#nity of the area of delineation. On the other hand) 2+/A is mandated to develo% the 2ational +nvironment Action
Plan B2+APC. The %#r%ose of 2+AP is to integrate environmental considerations into develo%ment %olicies) %lans) %rogrammes and %ro?ects with a view to ens#ring the %ro%er management and rational #tilisation of reso#rces on a s#staina!le !asis for the im%rovement of the >#ality of h#man life. The two %rocesses r#n %arallel to one another and yet no legal mechanism exists to link the two. 2+APs) which are %re%ared after five years) tend to view develo%ment and its environmental effects retros%ectively and hence reactively rather than !eing %ro6active and %roviding a !asis for orderly growth. Social indicators $oth Acts %rovide ade>#ately for %#!lic %artici%ation and attem%t to facilitate the active involvement and %artici%ation of comm#nities and %eo%le at local level in decision making. In the Physical Planning Act) %#!lic %artici%ation is enshrined in !oth the %lanning stages as well as the im%lementation stages of the %lanning %rocess. Under the Act) cons#ltation with the %#!lic is
mandatory and the Director of ,ocal A#thorities takes legal res%onsi!ility to ens#re that it ha%%ens and can !e s#ed if %roved to contravene this re>#irement. *tr#ct#res #nder the liaison committees have !een set #% to receive and ad?#dicate %#!lic com%lains on %lanning decisions. 1here the com%lainant is dissatisfied with the r#ling of the 2ational ,iaison (ommittee) he@she can a%%eal to the 9igh (o#rt. 9owever) the mechanisms for enforcement of com%liance with the decisions made !y liaison committees are weak and hence the tendency for the %#!lic to forward their claims
directly to the 9igh (o#rt. +/(A %rovides for the esta!lishment of a P#!lic (om%laints (ommittee BP((C. This is the committee concerned with inde%endent investigation of com%laints against the a#thority and any environmental damage and degradation in general. The re%ort of the finding) together with its recommendation) can form a !asis for legal %roceedings. The g#idelines and administrative %roced#res for +nvironmental Im%act Assessment B-::&C detail the mechanisms of %#!lic involvement in +nvironmental Im%act Assessment. 9owever) this %artici%ation is limited to %#!lic access to doc#ments B+IA st#dy and review re%ortsC and channeling com%laints in the form of written comments for consideration. The Act tends to !e general and non6committal on the right of mem!ers of the %#!lic to !e cons#lted on +nvironmental Im%act Assessment. +>#ally) the Act does not indicate how the %#!lic8s right to !e involved in the %re%arations of 2+AP is enforced. Environmental indicator $oth Acts %rovide for the management and co6ordination of harmonio#s and %rogressive develo%ment) which %romotes health) safety) order) convenience and general welfare of its entire inha!itant. They also advocate for the conservation of the nat#ral !ea#ty of the area) incl#ding wetlands) lakes and other inland waters) !anks of rivers) foreshore of har!o#rs and other %arts of the sea) hill slo%es and s#mmits and valleys. +/(A #ses the framework a%%roach for the %re%aration of 2ational +nvironmental Action Plans) ann#al re%orts on the stat#s of the environment) +nvironmental Im%act Assessment re%orts) A#dit Assessment re%orts) and *trategic Im%act Assessment re%orts to %lan) im%lement and
monitor the trend of environmental im%rovement or degradation. The Physical Planning Act) on the other hand) %rovides a framework for develo%ing and reviewing %olicies that s#%%ort the !est %ossi!le #se of land and s#staina!le management of land reso#rces. 1hereas the two Acts s%ell o#t the !est of intentions for environmental s#staina!ility) in %ractice the two %rocesses have failed to diff#se and com%lement one another for maxim#m res#lt. On the one hand) the Physical Planning Act falls short in its legal mechanism to re>#ire environmental consideration to !e integrated in the entire %lanning %rocess. +/(A) likewise) has failed to entrench val#a!le tools and a%%roaches in land #se %lanning) land management and administration in realiDing co6ordinated res#lts to its o!?ectives and goals. As they stand at
%resent) the two Acts have tended to !e conf#sing to the #sers of the d#al %rocesses.
Conclusion
The Physical Planning Act and +/(A are !oth laws that s#%%ort s#staina!le develo%ment and %rovide a framework for co6ordination and linkage to all sectors of develo%ment. The Physical Planning Act also %rovides g#idelines and standards that form the !asis for decision making for reso#rce allocation. There is need to review the two Acts) %artic#larly the reg#lations and enforcement %roced#res) in order to identify im%rovements needed to s#%%ort s#staina!le land #se and management of land and land6!ased reso#rces. The review sho#ld allow for the ado%tion of
%lanning systems that facilitate the integration of environmental com%onents into %lan making. $asically) this may call for entrenching in the Act the %re%aration of %artici%atory environmental %lans to form the !asis for overall %lanning framework of land #ses and reso#rce allocation. The linkages of +/(A to land #se %lanning %rocess and the whole iss#e of land rights and their effects on the environment needs to !e strengthened.
Pa t II SECTORAL AND FUNCTIONAL ENVIRONMENTAL LAW

C&a(te :
Mana$%n$ t&e A$ a %an Se!to fo En)% on#ental S+sta%nab%l%t'

9. 1. O. O0OT96O<+2DO
Int o*+!t%on The need for %r#dent and s#staina!le management of the environment is now well esta!lished. .ealiDing that need is an o#tcome of com%lex interaction !etween nat#ral and anthro%ogenic %rocesses) it is im%erative that a%%ro%riate mechanisms !e %#t in %lace for the management of all critical sectors constit#ting the environment. This cha%ter examines the nat#re of the legal
mechanisms in %lace in 0enya for the management of one s#ch sectorWthe agrarian sector W and assesses the extent to which it %rovides an effective framework for the s#staina!le realisation of that need. T&e A$ a %an Se!to %n t&e En)% on#ent For %#r%oses of this cha%ter) the agrarian sector is conce%t#alised as a constellation of reso#rces made #% of fo#r essential com%onents. The first is land for agric#lt#re) %ast#re and r#ral settlements) and related nat#ral reso#rces s#ch as forests and water. The second is c#lt#rally6defined or economically6determined %rod#ction systems thro#gh which the land factor is converted into s#staina!le livelihoods. The third are %revailing technologies of reso#rce #tilisation) incl#ding s#%%ort services infrastr#ct#re %rovided !y the *tate. And the fo#rth is h#man reso#rce ca%acity) incl#ding collective knowledge systems. Th#s) conce%t#alised) it is clear that for most of Africa and for a long time to come) the agrarian sector is and will remain at the heart of the environmental management disco#rse. This is %rinci%ally for two reasons. The first is that activities in the agrarian sector im%act most directly on the health of the environment. Indeed) those activities are the so#rce of direct environmental damage !y way of land6!ased %oll#tion) greenho#se gas emissions and #ltimately the modification of the overall hydro6meteorological cycle. *%ecifically) agrarian activities are often res%onsi!le for the removal of ecosystems) red#ction of !iodiversity) destr#ction of soils) %oll#tion of water so#rces
thro#gh nitrate infiltration) %oll#tion of wetlands and marine systems thro#gh siltation and adverse landsca%e changes. The second is that the >#ality of life in Africa will) for m#ch of this cent#ry) contin#e to !e determined !y the s#staina!ility of the agrarian sector. As agrarian activities ex%and
or are mechaniDed) it is often the %oor that will contin#e to !e systematically marginalised) rendered landless and dislocated from age6old livelihood systems. The fact that Africa contin#es to wallow in a serio#s agrarian crisis consisting of a m#ltit#de of maladies) incl#ding distortions in systems of access to land reso#rces) wides%read deterioration in the >#ality of agrarian reso#rces) severe food shortages) destr#ction and wanton %l#nder of nat#ral reso#rces) weak str#ct#res for reso#rce governance at all levels of social organisation) and o!solete technologies of land #se is) therefore) a most intracta!le im%ediment. $eca#se of that crisis) Africa remains the only continent that still cannot %rod#ce eno#gh food for its fast growing %o%#lation. The attainment of national and glo!al %overty red#ction o!?ectives as o#tlined) inter alia, in the United 2ations /illenni#m Develo%ment <oals)& therefore) will de%end to a large extent on the way in which that sector is managed. /anaging that crisis is) therefore) the first item in the agenda of environmental s#staina!ility in all co#ntries. In terms of %rocess) this will re>#ire the design and o%erationalisation of strategies that em%ower those who Utilise or whose activities
im%act directly on the >#ality of agrarian reso#rces to manage them %r#dently) efficiently and s#staina!ly. *he Legal 3rganisation of the Agrarian Sector A t& ee1ban* (a a#ete Altho#gh strategies for the management of the agrarian sector are generally %resented in terms of %olicy %rescri%tions) many of which are c#lt#ral) economic and %olitical) law and legal instit#tions often %rovide the framework thro#gh which these are most effectively im%lemented. That framework o%erates as an integrated three6!and %arameter. The first is the regime of law that defines the manner in which access rights over agrarian reso#rces may !e o!tained. The second is the regime of law) which ex%resses the %olice %ower of the state in the agrarian sector. And the third is the regime of law) which creates facilitative infrastr#ct#re for effective #se of those reso#rces. In 0enya) the organisation of the agrarian sector is sat#rated with laws and legal instit#tions #nder each as%ect of that %arameter. That framework ass#mes that %olicies exist for the management of that sector as an integrated %rod#ction system. An assessment of that framework m#st) therefore) take into acco#nt the goals) o!?ectives and strategies ex%licit or im%licit in those %olicies. T&e ( o( %eta ' (a a#ete The %ro%rietary %arameter is directed %rimarily at three concerns. The first is to define who holds Bor may have access toC what interest in agrarian reso#rces. These may !e individ#als)
&
U2<A.es. 33@&'- B-:::C.
comm#nities or other ?#ral entities. The second is to clarify how the s%ecific rights it defines may !e created) ascertained and administered. The third is to s%ecify the conditions #nder which access rights may !e held) transferred or otherwise transmitted. In 0enya) the %ro%rietary %arameter is set !y n#mero#s laws com%rising at least two s#!stantive and five %roced#ral regimes. In the one category are %rinci%les derived from indigeno#s land law o%erating either thro#gh the Tr#st ,and Act - or !y reason of %ersistence of social or c#lt#ral val#es) and those im%orted from Anglo6+#ro%ean law em!odied in the Transfer of Pro%erty Act of India)4&""-) the .egistered ,and Act5 and similar stat#tes incor%orating the content of that law. In the other category are laws esta!lishing land rights administration %roced#res among which are #nwritten indigeno#s %ractices) the .egistration of Titles Act) 3 the .egistration of Doc#ments Act)' and of co#rse the registration %rovisions of the .egistered ,and Act. These are the laws that define the nat#re and >#ant#m of rights in agrarian reso#rces and the instit#tional str#ct#res thro#gh which s#ch rights are administered and en?oyed. T&e e$+lato ' (a a#ete An im%ortant %arameter in the management of the agrarian sector is the regime of law ex%ressing the reg#latory Bor %oliceC %ower of the *tate. Ultimately) it is that regime which most directly enforces *tate or comm#nity %olicies and strategies for that sector. This %arameter com%rises laws and legal instit#tions at three o%erative levels; ,evel I consists of legislations that set !road %rinci%les and goals for the management of the
land sector as a whole. These o%erate on the ass#m%tion that land sector actors will) in their dayto6 day activities) incor%orate target %rinci%les set !y instit#tions esta!lished for that %#r%ose. Those %rinci%les) tho#gh generally of a framework nat#re) are >#ite often framed in terms of %rescri%tions for which com%liance is mandatory. 0enya8s three most im%ortant level I legislations are the +nvironmental /anagement and (o6ordination Act ") the Physical Planning Act)7 and the 1ildlife B(onservation and /anagementC Act.&: ,evel II consists of legislations directed s%ecifically at the management of agrarian reso#rces. (oncern at this level is to ens#re that s%ecific %rod#ction) develo%ment and #tilisation targets are set for the co#ntry8s agric#lt#re and livestock develo%ment. This is the level at which iss#es thro#gh which land #se o%erations f#nctionE technologies of %rod#ction are reg#latedE the >#ality of agrarian reso#rces are a#dited) and reso#rces com%lementary to agrarian #ses s#ch
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(ha%ter -"") ,aws of 0enya. <ro#% ". (ha%ter 4::) ,aws of 0enya. (ha%ter -"&) ,aws of 0enya. (ha%ter -"3) ,aws of 0enya. I#id.
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Act 2o." of &777) ,aws of 0enya. (ha%ter -"') ,aws of 0enya. (ha%ter 4 ') ,aws of 0enya.
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as water and forests are %rotected. The most im%ortant legislation at this level is the Agric#lt#re Act.&& Others incl#de the Irrigation Act)&- the Forestry Act)&4 the /ining Act)&5 and the 1ater Act.&3
These legislations are f#rther com%limented !y others designed to ens#re that a healthy environment exists for the #tilisation of agrarian reso#rces. These incl#de the (ro% Prod#ction and ,ivestock Act)&' the *tock and Prod#ce Theft Act)& seeds) weeds and %lant and animal diseases legislation) es%ecially the Plant Protection Act)&" *eeds and Plant Farieties Act)&7 Plant (ontrol Prod#cts Act-: and Animal Diseases ActE-& and FertiliDers and Animal Foodst#ffs Act.-,evel III consists of legislations directed at discreet %rod#ction activities within the agrarian sector. (oncern at this level is to ens#re that #ni>#e facilities are %rovided for the %rod#ction of s%ecific W mainly ex%ort6oriented W agrarian o%erations. The range of legislation in o%eration at this level covers virt#ally every cro% and animal %rod#ct. Among these are the Tea Act) -4 the (offee Act)-5 the *isal Ind#stry Act)-3 the (otton Act)-' the Fisheries Act- and 0enya /eat (ommission Act.-" In addition) 0enya8s agrarian sector is also reg#lated) if rather tangentially) !y international instr#ments and %olicies im%acting on the domestic management of agrarian reso#rces. These incl#de the 1orld Trade Organisation B1TOC agreements) international environmental governance %rinci%les and conventions) and inter6governmental agreements on trade in agrarian %rod#cts. T&e s+((o t se )%!es an* %nf ast +!t+ e (a a#ete All economies recognise the need to %rovide s#%%ort in the form of services and infrastr#ct#re if
o%erations in the agrarian sector are to remain s#staina!le. 1hat varies is the nat#re and extent of s#%%ort that the *tate sho#ld %rovide !eyond the market. 9istorically) 0enya has had an ela!orate framework for the s#%%ort of agrarian o%erations in the form of reg#lation of agric#lt#ral la!o#r) the %rovision of marketing services) and an instit#tional framework for the %rovision of agric#lt#ral credit. 1ith economic li!eraliDation and %ress#re from international trade cartels) most of the legislations forming %art of this %arameter) s#ch as the
&&
(ha%ter 4&") ,aws of 0enya. (ha%ter 45 ) ,aws of 0enya. (ha%ter 4"3) ,aws of 0enya. (ha%ter 4:') ,aws of 0enya. (ha%ter 4 -) ,aws of 0enya. (ha%ter 4-&) ,aws of 0enya. (ha%ter 433) ,aws of 0enya. (ha%ter 4-5) ,aws of 0enya. (ha%ter 4-') ,aws of 0enya. (ha%ter 45') ,aws of 0enya. (ha%ter 4'5) ,aws of 0enya. (ha%ter 453) ,aws of 0enya. (ha%ter 454) ,aws of 0enya. (ha%ter 443) ,aws of 0enya. (ha%ter 45&) ,aws of 0enya. (ha%ter 444) ,aws of 0enya. (ha%ter 4 ") ,aws of 0enya.
&-
&4
&5
&3
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&7
-:
-&
--
-4
-5
-3
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Internal Teaching Use Only -':
.eg#lation of 1ages and (onditions of +m%loyment Act)-7 the Agric#lt#ral Finance (or%oration)4: the 9ides) *kin and ,eather Trade Act)4& and the Dairy Ind#stry Act4- have virt#ally fallen into o!solescence.
An %nflat%ona ' e$%#e From the %ers%ective of agrarian reso#rce managers 6 namely those who interact on a contin#o#s !asis with the agrarian sector 6 farmers) livestock %rod#cers conservationists) and reso#rce merchants 6 the legal organisation o#tlined a!ove is anything !#t friendly. A ro#gh and !y no means extensive diagrammatic sketch of this organisation looks somewhat as follows; Le$en* &. International %olicy and legal framework
-" (ha%ter -7 (ha%ter 4: (ha%ter 4& (ha%ter 4- (ha%ter
4'4) ,aws of 0enya. --7) ,aws of 0enya. 4-4) ,aws of 0enya. 437) ,aws of 0enya. 44') ,aws of 0enya.
Internal Teaching Use Only -'&
-. +nvironmental management legislation 4. 2at#ral reso#rces legislation 5. Physical %lanning legislation 3. Foreign trade and investment re>#irements '. Overall national economic %olicy framework . Agric#lt#ral sector %olicy framework ". Pro%erty legislation 7. Agric#lt#ral sector legislation &:. ,and administration legislation &&. ,egislation on s%ecific land #ses &-. The social and c#lt#ral land #se context The agrarian sector managers That ?#ridical str#ct#re has created a regime that is not only inflationary !#t characterised !y a n#m!er of systemic %ro!lems. T&e ( oble# of !o#(le2%t'
The first %ro!lem is its sheer com%lexity. There is so m#ch law in this sector that even the most ade%t legal technician may not !e a!le to #nravel its fa!ric when faced with s%ecific decision making contexts. It is estimated that in excess of " %ieces of legislation) not to mention ministerial reg#lations) orders and administrative directives) are a%%lica!le or relevant to the management of this sector. That com%lexity is the res#lt of a n#m!er of develo%ments. The first was the manner in which that system grew. +ssentially) the reg#latory framework of the agrarian sector grew in res%onse to demands !y colonial +#ro%ean agric#lt#ral cartels for %referential treatment Bor s%ecial %rivilegesC in exchange for their %erceived contri!#tion to the co#ntry8s <ross Domestic Prod#ct. $eca#se those demands were not always artic#lated #nder a holistic view of the agrarian sector) the res#lt was target6s%ecific and s#!6sectoral legislative o#tcomes from the colonial government. Ty%ically) therefore) most of these laws were foc#sed on detailed min#tae a!o#t cro%s) diseases and %rod#ction >#otas rather than on cross6c#tting iss#es of im%ortance to the develo%ment of the agrarian sector. These laws and the instit#tions created in virt#e of them remain in 0enya8s stat#te !ooks. The second were attem%ts at the !eginning of the decolonisation %eriod to extend the legal regime of +#ro%ean agric#lt#re to the %redominantly African small6scale sector. Th#s) from &735) a decision was made to convert African land ten#re systems into %rivate %ro%erty !ased on Anglo6 +#ro%ean law) and in &733 enact a single agric#lt#ral management stat#te Bc#rrent Agric#lt#re
ActC for the whole co#ntry. The res#lt of those decisions was to s#%erim%ose an alien regime of
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law on %rod#ction systems) which had hitherto f#nctioned on the !asis of socially and c#lt#rallydefined normative and instit#tional im%eratives. The res#lt was not only the emergence of overla%%ing systems of %ro%erty law !#t also ina!ility to enforce a reg#latory framework) which the ma?ority of the smallholder sector did not internalise. The third was the enactment) in more recent times) of laws that go !eyond framework %rinci%les to esta!lish reg#latory mechanisms in areas already covered !y sectoral or s#!6 sectoral legislation. +/(A is %erha%s the most o!vio#s of these. 1hat is creating com%lexity is the fact that that a%%roach) witho#t effective mechanisms for intra6sectoral co6ordination and rationalisation) !reeds com%etition for ?#risdiction and reso#rces. The fact that section &5" of +/(A %rovides that its %rovisions override those of other legislations enacted #e,ore it is clearly not a sol#tion to this %ro!lem. T&e ( oble# of o $an%! %nte$ at%on Partly !eca#se of that com%lexity !#t also d#e to excessive concern !y its vario#s com%onents with discreet activities) the legal organisation of the agrarian sector is not designed to f#nction as an organic system. *#ch a system %res#%%oses that all legislative com%onents foc#s on a clear goal or related goals and that they are %art of a strategic instr#ment for the attainment of %redetermined o#tcomes. 1itho#t s#ch foc#s) legislative com%onents will at !est im%ede decisionmaking and at worst foster internal conflict among instit#tions esta!lished to enforce them.
Internecine wars !etween line ministries res%onsi!le for vario#s as%ects of the agrarian sector Bagric#lt#re) co6o%eratives) livestock and financeC) which ex%lode into the %#!lic domain every now and then) are clear evidence of that %ro!lem. Altho#gh the %ro!lem of organic integration can !e managed) inter alia, thro#gh com%rehensive %olicy develo%ment and@or aggressive environmental ?#ris%r#dence !y the co#rts) !oth of these are yet to !e realised. In the one case) existing %olicies) incl#ding those directed at environmental media) still do not address the land factor as an integrated system and) in the latter) co#rts contin#e to a%%ly conventional %rinci%les drawn from the (ommon ,aw rather than engage in creative doctrinal develo%ment !ased on contem%orary nat#ral reso#rce science. T&e ( oble# of s'ste# *'sf+n!t%on An im%ortant conse>#ence of lack of organic integration is wides%read system dysf#nction. There are two manifestations of this. The first is the %ersistence of m#lti%le and often incom%ati!le str#ct#res and norms in the agrarian sector. These are !ased largely on conflicts arising from largely #ninternaliDed *tate legislation and social %ractices regarded as legitimate !y agrarian comm#nities. The fact that social %ractices have always lacked state s#%%ort means that their o%eration does not facilitate that
Internal Teaching Use Only -'4
of the *tate legislation. 1hat this means is that the vast small6scale Bor %easantC com%onent of 0enya8s agrarian sector f#nctions o#tside the *tate system. The second is administrative fragmentation in the agrarian sector. 2ot only is a large !#rea#cracy in existence !#t) lack of reso#rces and infrastr#ct#re means that it is essentially
#n%rod#ctive. (ontem%orary assessments of that !#rea#cracy in 0enya and elsewhere have concl#ded that this leads inevita!ly to corr#%tion thro#gh rent6seeking) inefficiency and wides%read %olitical infl#ence. This is %artic#larly the case in res%ect of the delivery of land services) incl#ding registration) allocation) transfers) s#rveys and dis%#te %rocessing. T&e ( oble# of e2te nal%t%es Ultimately) the agrarian sector as c#rrently organised is ex%ensive to manage not only for the *tate !#t also for those in charge of its com%onent reso#rces. Its very com%lexity has attracted a vast we! of externalities in the form of extra6legal %rocesses) attracting s#!stantial and informal s#!sidies. That in t#rn de%rives the agrarian sector of reso#rces that wo#ld otherwise !e invested directly in its develo%ment. 1itho#t formal infrastr#ct#ral services) the existence of law has !ecome more of an im%ediment than a facilitation. Environmental )anagement Effects An assess#ent #at %2 1e t#rn now to an assessment of the s#ita!ility or effect of the legal organiDation %resented a!ove in the s#staina!le management of the environment. *#staina!ility is meas#red in terms of the extent to which that organisation is; Q ca%a!le of facilitating the maintenance of agrarian reso#rces for an indefinite %eriod) and Q a!le to ens#re the conservation of environmental e>#ili!ria ,aw and legal instit#tions im%act on the environment !y defining decision6making choices of reso#rce managers in terms of either the exec#tion of com%eting anthro%ogenic activities or the reg#lation of nat#ral %rocesses of change. This ass#mes that %#!lic %olicy) law and legal
instit#tions will g#arantee f#ll safety and economy of %rod#ction to those managers in res%ect of those choices. A #sef#l matrix for assessing the im%act of the legal organisation of 0enya8s agrarian sector on the environment) therefore) involves en>#iry at fo#r levels. The first is whether it %rovides clear g#idelines and standards for environmental managementE the second is whether it indeed %rovides a dynamic framework for decision6makingE the third is whether it facilitates the allocation of ade>#ate reso#rces for environmentally relevant activitiesE and the fo#rth is whether the *tate has the ca%acity to enforce that organisation.
Establ%s&#ent of en)% on#ental #ana$e#ent stan*a *s An im%ortant f#nction of legislation is to ens#re that environmental >#ality standards are availa!le or ca%a!le of scientific definition and effective im%lementation. This is generally arrived at thro#gh the %rom#lgation of #niversal standards in the relevant legislation) or !y way of esta!lishment of %roced#res for the design) from time to time) of s#ch standards. 1here the one a%%roach is taken) the standards are #s#ally %resented in a framework form to allow for their ada%tation in different environmental contexts and circ#mstances. The other a%%roach is #s#ally targeted at s%ecific Bor discreetC environmental %arameters) given relevant scientific data. $oth a%%roaches have !een #sed in legislation) im%acting on the management of the agrarian sector in 0enya.
Th#s) +/(A lays down ela!orate standards for the %rotection and conservation of a wide range of agrarian reso#rces.44 These incl#de; Q .ivers) lakes and wetlandsE Q ForestsE Q $iodiversityE Q +cosystemsE and Q <enetic reso#rces. In addition) +/(A creates a *tandards and +nforcement .eview (ommittee whose main f#nction is to develo% standards for the management of) inter alia: Q water >#ality) Q effl#ent discharge) and Q air %oll#tion. In res%ect of all anthro%ogenic %rocesses) incl#ding agric#lt#re and livestock develo%ment) 45 mechanisms and %roced#res for environmental im%act assessment and environmental a#dit are also in %lace. The %rovisions of +/(A are reinforced !y those of the Physical Planning Act) which re>#ire the incor%oration of environmental concerns in regional Br#ralC land #se %lanning. The Agric#lt#re Act) the main framework legislation for agrarian land #se) tho#gh a m#ch older enactment) incor%orates many of the re>#irements for environmental >#ality contained in +/(A. In %#rs#it of its foc#s on the maintenance of sta!ility in the agric#lt#ral ind#stry) modalities of sec#ring efficient %rod#ction) and g#arantee of food sec#rity) the Act lays down standards) inter alia, for;43
44
+/(A) sections 5-63 . +/(A) sections :6&: . +/(A) %arts F) FI K FII.
45
43
Q %lanned land develo%mentE Q the %reservation) #tilisation and develo%ment of agric#lt#ral landE and Q the conservation of the land and its fertility. These standards m#st !e read in con?#nction with those contained in s#!6sectoral legislation governing the health of s%ecific cro%s and associated land #ses. It may) th#s) !e concl#ded that s#fficient a#thority exists for the esta!lishing of environmental >#ality standards for the agrarian sector. 1hether standards so develo%ed are a%%ro%riate in s%ecific contexts will de%end #%on the state of scientific knowledge a!o#t their im%act on the environment. Fa!%l%tat%on of *e!%s%on1#a/%n$ *ince res%onsi!ility for the management of the environment lies #ltimately with agrarian reso#rce managers rather than *tate agencies) it is im%ortant to en>#ire into ;he manner in which the legal regime infl#ences or is likely to sha%e anthro%ogenic decisions. That en>#iry needs to address fo#r s%ecific >#estions) namely; Q Are those standards %art of the social) c#lt#ral and economic matrix in which these managers o%erateL Q Is it in their interest to com%ly and does com%liance add val#e to existing %racticesL Q (an they afford the cost of com%lianceL and Q (an they s#stain that com%liance on a long6term !asisL Analysis of decision making %rocesses in the agrarian sector s#ggests that the large !ody of laws and instit#tions o#tlined a!ove f#nction mainly as externalities to !e evaded rather than com%lied with.4' An im%ortant reason for that %erce%tion is that the r#ral %easantry cannot afford the enormo#s financial and h#man reso#rce threshold necessary for com%liance with those
%rescri%tions. Indeed) it is a historical fact that the re>#irements of the Agric#lt#re Act were develo%ed for the small ex%ort6sector of the ind#stry rather than its large smallholder co#nter%art. In any event) the fact that 0enya8s agrarian sector is !eset with serio#s environmental %ro!lems) s#ch as loss of soil cover and %oll#tion) is s#fficient evidence of the fact either that the law is ro#tinely ignoredE that after fifty years) agrarian o%erations have not internaliDed its %rescri%tive re>#irementsE or that the regime is serio#sly defective as an instr#ment of s#staina!le management. Fa!%l%tat%on of allo!at%on of eso+ !es
4'
Okoth6Ogendo M&7"3N.
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Altho#gh statistical analysis of intra6sectoral flow of reso#rces for environmental management is not availa!le) existing literat#re shows that in the agrarian sector) reso#rces have generally !een channeled to the elite) who manage its large farm com%onent. This incl#des infrastr#ct#re) in%#t services) credit) and extension management. +x%eriments designed to extend those !enefits to small6scale =!etter= farmers have long !een a!andoned. Therefore) these n#merically larger reso#rce managers o%erate essentially on their meager savings and witho#t the !enefit of new technologies of %rod#ction and management services. 1itho#t a strong infrastr#ct#ral services !ase) and ade>#ate reso#rces) agrarian reso#rce managers can hardly !e ex%ected to meet the costs associated with efficient environmental action. Ca(a!%t' to se!+ e !o#(l%an!e The foregoing disc#ssion s#ggests that vol#ntary com%liance with environmental >#ality
standards in the agrarian sector may take a long time and s#!stantial investment to sec#re. The corollary to this is to en>#ire into the ca%acity of *tate instit#tions to make that ha%%en. There are three dimensions to that en>#iry. The ,ir&t is whether relevant legislations esta!lish an efficient administrative system for that %#r%ose. +/(A) the Physical Planning Act) and the Agric#lt#re Act %roceed a!o#t this !y esta!lishing oversight committees at the national) %rovincial and co#nty BdistrictC levels to %rocess information and advice relevant *tate agencies on the state of the environment. Those committees are !acksto%%ed !y a com%lex maDe of line ministry officers whose mandates and !#dgetary allocations are not always co6ordinated. This administrative system has not served the environment well. 2ot only is it costly and %rone to #n%rod#ctive com%etition over mandate) !#t their to%6down a%%roach to management has tended to isolate agrarian reso#rce managers at the land #se level. 1itho#t effective %artici%ation of these managers) that system is #nlikely to sec#re com%liance with environmental standards. The second is whether the com%liance mechanism !#ilt into relevant legislations is a%%ro%riate or effective. That mechanism is !#ilt essentially aro#nd the criminal ?#stice system. Indeed) the general lang#age of +/(A and the Agric#lt#re Act is #s#ally in the form of %rohi!itions and im%osition of sanctions and %enalties) rather than of incentives and %ers#asion. That mechanism has not worked in the %ast and may not do so in the f#t#re. For one) the colonial %ractice of
de%loying land rangers) investigators and monitors is no longer regarded as %olitically acce%ta!le. This means that the *tate m#st rely on others B#s#ally environmental non6governmental organisationsC to re%ort on the state of the environment. For another) the com%liance mechanism is) in any case) not cost effective. Under the Agric#lt#re Act) for exam%le) %enalties are so low that were they to !e exacted) what is s%ent in doing so ro#tinely exceeds act#al recoveries. In other words) it sim%ly is not economical to enforce the %rovisions of these laws. The third is the tendency to treat com%liance matters as %art of the %rocess of %olitical
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administration. The time6hono#red %ractice) therefore) is to manage the environment thro#gh chiefs and administration %olice acting) res%ectively) thro#gh the (hiefs Act) 4 and the Administration Police Act.4" That a%%roach has tended to alienate land #sing comm#nities from the reso#rces for which they are res%onsi!le. Refo #%n$ t&e Le$al O $an%sat%on of t&e A$ a %an Se!to T&e ole of la/eas#ring the im%act of legal and instit#tional str#ct#res and %rocesses on the environment is not always easy) since many factors other than law are involved in land #se decision6making. The only g#arantee that the legal r#les will have effect is if they !ecome integrated into the social economic and c#lt#ral %syche of those who manage environmental reso#rces on a day to day !asis. The o!?ective of reforming the legal organisation of environmental management in the agrarian sector) therefore) is to facilitate that integration. T&e s!o(e of efo # <iven that goal) we !elieve that the sco%e of reform sho#ld encom%ass !oth the %olicy and
legislative dimensions of the land system. 2ote has !een taken in many fora of the need to develo% a com%rehensive %olicy framework for land and land6!ased reso#rces. This wo#ld ens#re) inter alia, that the land system regains its central role in the co#ntry8s %olitical economy. The c#rrent existence of fragmented %olicies in the land sector has made it diffic#lt for agrarian reso#rce managers to consolidate a wholistic vision of the likely conse>#ences of their activities on the health of that sector. 1itho#t that vision) the many legislative instr#ments and instit#tions governing that sector will contin#e to send conflicting signals to those managers. An attem%t is now in %rocess to correct that im%ediment thro#gh the develo%ment of a com%rehensive 2ational ,and Policy B2,PC. The 2ational ,and Policy seeks to %rovide %#!lic %olicy g#idance on a wide range of iss#es) incl#ding land management and develo%ment. On the environment) the draft 2,P %rovides) inter alia, that;
Bo achieve an integrated and comprehen&ive approach to the management o, the environment and nat%ral re&o%rce&, all policie&, reg%lation& and law& dealing with land #a&ed re&o%rce& &hall #e harmoni&ed with the ,ramework e&ta#li&hed #y the Environmental "anagement and Co!ordination $ct 5E"C$7, GDDD.0D
The draft %olicy) th#s) contem%lates more than %olicy integration. It re>#ires corres%onding
4
(ha%ter &-") ,aws of 0enya. (ha%ter "3) ,aws of 0enya. Paragra%h &- ) Fe!r#ary -:: version.
4"
47
Internal Teaching Use Only -'"
reform of the legal framework as a whole. This has three im%ortant com%onents; the %ro%erty str#ct#re) the land #se str#ct#re and the s#%%ort services str#ct#re. .eform m#st address the normative am!ig#ities inherent in the m#lti%licity of %ro%rietary
regimes extant in 0enya8s agrarian landsca%e. Once distinct in origin and confined in o%eration to s%ecific s#!6sectors of the land system) im%osed and c#stomary regimes have !ecome so f#sed and reci%rocally intr#sive of each other that they are evolving into a system of overla%%ing val#es) rights and o!ligations. One effect of this is to retard the ro!#stness of the incidents of !oth regimes. Th#s) while the c#stomary regime remains #na!le to a!sor! changes in the technology of land #se) its foreign co#nter%art contin#es to o%erate o#tside the decision6making framework of the vast ma?ority of agrarian reso#rce managers. The %ro%erty system m#st) therefore) !e reformed to; Q facilitate more efficient and socially6relevant decision6making) Q sec#re confidence and sec#rity in access to agrarian reso#rces) and Q ena!le %artici%ation in land governance) at the land #se level. 1hat m#st !e ex%lored) therefore) is the design of a %ro%erty str#ct#re that is free of the com%lexities of the c#rrent system) accords greater e>#ity of access to land reso#rces) and em%owers agrarian reso#rce managers to make a%%ro%riate and s#staina!le environmental decisions. .eform m#st also address the conf#sion inherent in the !#rea#cratic maDe that characterises the land #se str#ct#re. That !#rea#cracy m#st not only !e streamlined and sim%lified) it m#st !e reengineered in s#ch as way that it facilitates effective %lanning and im%lementation) faster and relevant information %rod#ction and transmission for #se in the agrarian sector) and %ro%er and
environmentally s#staina!le stewardshi% of agrarian reso#rces. That will involve an overha#l of how that !#rea#cracy f#nctions in matters that relate to the environment) and ex%loration of more #ser6friendly methods of sec#ring com%liance with >#ality standards set !y relevant legislation. An essential goal of that overha#l is to make the decision6making %rocesses of that !#rea#cracy %artici%atory) trans%arent and cost6effective. Finally) reform m#st f#rther address the need to %rovide and s#stain accessi!le s#%%ort services infrastr#ct#re for the agrarian sector. +x%erience indicates that this will add val#e to land #se o%erations in that sector. It will also facilitate >#ality o#t%#ts !y g#aranteeing cost6effective decisions. +xisting laws and instit#tions relating to the %rovision of credit) factor in%#ts) r#ral access roads and marketing arrangements) will need to !e revisited and where %ossi!le reactivated. To !e effective) those reforms will need to !e %receded !y a n#m!er of s%ecific exercises. These incl#de a detailed eval#ation of existing str#ct#res and infrastr#ct#re) effective reform im%lementation %rocesses) constant rea%%raisal and monitoring) and the f#ll and informed
%artici%ation !y agrarian reso#rce managers) es%ecially the %easantry on which 0enya8s agrarian sector de%ends. It is ex%ected that that %rocess will commence as soon as the 2ational ,and Policy is a%%roved and its im%lementation strategies o%erationalised. Con!l+s%on This cha%ter arg#es that the existing legal organisation of the agrarian sector does not %rovide a
rational framework for environmentally so#nd decisions. The reason is its com%lexity) o%acity) a#thoritarian orientation and lack of cost effectiveness for !oth managers and the *tate. *ince that sector is a ma?or so#rce of environmentally deleterio#s effects) the cha%ter calls for #rgent reforms to re6engineer that organisation into a socially6relevant) hence accessi!le) mechanism to the vast ma?ority of land #sers whose activities im%act on the environment. That reform m#st target the overall framework within which the land systems f#nction) its %ro%erty str#ct#re) #se str#ct#re and s#%%ort services infrastr#ct#re.
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C&a(te 7=
Fo est ' La- an* t&e En)% on#ent

F.A2(I* D. P. *ITU/A
Int o*+!t%on
In common %arlance) forests are large tracts of land covered with trees and #ndergrowth) sometimes mixed with %ast#re. They may also !e defined as any areas of nat#ral or c#ltivated vegetation in which the dominant s%ecies are trees) with crowns that to#ch each other to form a contin#o#s cano%y. 0enya8s forestry registration defines a forest area as any land declared !y the minister to !e a forest land) and incl#des farm forestry. From an environmental %ers%ective) forests form the largest and most im%ortant %art of the !iological factors of %lants that constit#te the
environment. Indeed) the conce%t of environment wo#ld in itself !e incom%lete excl#sive of forests. Forests have vario#s economic) social c#lt#ral and ecological val#es. They %rovide materials for !#ilding) making of tools) forage for domestic animals and raw materials for wood6!ased ind#stries %rod#cing tim!er) %#l% and %anels) In 0enya) a!o#t 5 million %eo%le living ad?acent to forests de%end on them for energy) food) medicine) and other non6tim!er %rod#cts. Forest activities %rovide em%loyment to r#ral comm#nities. 9ighland forest ecosystems) wetlands and arid or semi6arid lands are home to 0enya8s val#a!le s%ecies of flora and fa#na. *ignificant n#m!ers and variety of wildlife occ#r in 0enya8s forest reserves) forested national %arks and reserves. *%ecies diversity is greatest in the forests on the coastal and western %latea#x and the Taita and Taveta 9ills. Forests also %rovide many of the co#ntry8s c#lt#ral and s%irit#al sites) are cr#cial for water catchment and conservation and %rovide energy so#rces in the form of f#elwood and charcoal for virt#ally all r#ral dwellers and low income gro#%s in #r!an areas. & Forests and trees are also im%ortant in the reg#lation of glo!al climate. Forests act as car!on sinks) and estimates indicate that a!o#t -: %er cent of car!on emissions that contri!#te to glo!al warming are attri!#ta!le to glo!al deforestation and forest degradation. (ar!on se>#estration thro#gh afforestation and control of deforestation have significant im%acts on glo!al climate change) a factor that has %laced the im%ortance of forests on the international %lane. & *ee
/inistry of +nvironment) 2at#ral .eso#rces and 1ildlife M-::5NE (raftes) et al LGDAA: &5&6&55N and Okowa6 $enn#n K
/wangi M&77';& 36&7 N.

- *ee
for instance) the &77- U2(+D Forest Princi%les) re%rinted in 4&I,/ ""& B&77-C.
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Forests %lay a cr#cial role as water catchment areas. 0enya8s five main water towers 6 /t. 0enya) the A!erdares) /t. +lgon) the /a# +scar%ment and (herangani 9ills 6 which are also home to 0enya8s indigeno#s forests are now #nder threat from deforestation and %oor catchment management. /t. 0enya and the A!erdares are the main catchments of the Tana .iver) from which most of 0enya8s hydro%ower is generated. 2airo!i de%ends entirely on the A!erdares for its drinking water. The /a# +scar%ment is a cr#cial water catchment) which %rovides water to the /ara .iver 6 the lifeline of the /asai /ara <ame .eserve and the related *erengeti 2ational Park 6 the *ond#6/iri# and the Jala rivers. Its degradation has led to declines in the water levels of these rivers. <iven that 0enya is a water scarce co#ntry) the im%ortance of s#staina!le forestry cannot !e over6em%hasised. Forests are critical ha!itats for !iological diversity. A!o#t 3: %er cent of !iological reso#rces are fo#nd in forests. Forests are 9ome to diverse s%ecies of mammals) !irds) !#tterflies and woody %lants.4 2on6tim!er forest %rod#cts are of great im%ortance %artic#larly to the livelihoods of the r#ral comm#nities. In some cases) they acco#nt for a s#!stantial share of ho#sehold incomes) altho#gh this is #s#ally %oorly reflected in the national statistics !eca#se the market systems are #nderdevelo%ed and m#ch of the trade in non6tim!er forest %rod#cts takes %lace in the informal sector.5 Des%ite these cr#cial f#nctions and services) there has !een considera!le decline in the nat#ral
forest cover) largely d#e to over6ex%loitation and degradation. 0enya is considered to !e a low forest cover co#ntry as it has less than &: %ercent of its total land area classified as forest. (#rrent estimates vary !etween &. and -.& %er cent of its land area. <overnment %olicies and %rogrammes) s#ch as the 2yayo Tea Hones and resettlement) have led to decrease in the forest cover !y !oth indigeno#s and %lantation forests) there!y #ndermining the realisation of s#staina!le forest management.3 The Forests Act enacted !y the colonial administration in &75- has %rovided the legal regime for the management of forests in 0enya. ' The stat#te %rovided for the esta!lishment) control and reg#lation of central forests) forests and forest areas in 2airo!i area and on #nalienated <overnment land. 9owever) the 0enya Parliament) noting the vario#s shortcomings of the stat#te in the light of modern develo%ment and 0enya8s international legal o!ligations enacted a new Forests Act in -::3. This Act received %residential assent on &" 2ovem!er -::3) and came into o%eration on Fe!r#ary -:: following ,egal 2otice 2o. &7 of -:: iss#ed !y the /inister
4 1ass 5 I#id. 3 *ee)
M&773;&&6&"NE /atir# M-:::; 3363'N.
/inistry of +nvironment and 2at#ral .eso#rces M-::'N. 4"3) ,aws of 0enya B.evised +dition) &77-C. The Act commenced or !ecame o%erational on & /arch &75- and
' (ha%ter
#nderwent several revisions c#lminating with the one in &77-. Act 2o. of -::3. As %er the section '5) the -::3 Act re%ealed the Forest Act when it !ecame o%erational on & Fe!r#ary -:: .
Internal Teaching Use Only - -
%#rs#ant to section & of the Act. Accordingly) this cha%ter disc#sses the forestry legislation em!odied first) in the %re6-::3 stat#te) and in the -::3 stat#te) which has re%ealed the former.
Fo est ' Le$%slat%on P %o to 6==B The &75- Forests Act granted the /inister to determine which areas of the co#ntry shall !e s#!?ect to the %rovisions of the Act. *ection 5 granted the /inister the %ower to declare) !y notice in the gaDette; BaC Any #nalienated <overnment land to !e a forest areaE B!C The !o#ndaries of a forest and from time to time alter those !o#ndariesE and BcC That the forest area shall cease to !e a forest area. The law did not re>#ire the /inister to give any reasons for s#ch declaration in s%ite of the fact that) as will !e seen) s#ch declaration had considera!le administrative) socio6economic and c#lt#ral conse>#ences. $esides) the law did not re>#ire the /inister to have any reference to stakeholders thro#gh) for instance) %#!lic cons#ltation or deli!eration) an omission that was inimical to so#nd forest management. The /inister was also em%owered) !y notice in the gaDette) to declare a forest area or a central forest or any %art thereof to !e a nat#re reserve for the %#r%ose of %reserving the nat#ral amenities thereof and the flora and fa#na therein. " The /inister who also em%owered to declare that a nat#re reserve shall cease to !e a nat#re reserve. 7 The conse>#ences of the /inister declaring any land to !e a forest area) a central forest) or a nat#re reserve was to initiate the conservation mechanism that was the %reserve of the (hief (onservator of Forests. 2o c#tting) graDing) removal of forest %rod#ce or dist#r!ance of the flora was allowed in a nat#re reserve) save with the rermission of the (hief (onservator of Forests. *#ch %ermission was only given with the o!?ect of conservation of the nat#ral flora and amenities
of the reserve.&: *imilarly) no h#nting) fishing or dist#r!ance of the fa#na is allowed in a nat#re reserve) save with the %ermission of the (hief (onservator of Forests) in cons#ltation with the Director of 0enya 1ildlife *ervice) given only when considered necessary or desira!le to take or kill any s%ecies.&& Fario#s activities were %rohi!ited in a forest area or central forest) namely; Q Felling) c#tting) taking) !#rning) in?#ring or removing any forest %rod#ce Q $eing or remaining therein !etween 7.:: %.m. and '.:: a.m.) #nless #sing a recognised
" Forests 7 I#id. &: l#id, && I#id,
Act) *ection 'B&C.
*ection "B&C BaC. *ection "B-C B!C.
Internal Teaching Use Only - 4
road or foot %ath or !eing in occ#%ation of a !#ilding a#thoriDed !y the (hief (onservator of Forests Q +recting any !#ilding or cattle enclos#re Q *etting fire to or assisting any %erson to set fire to any grass or #ndergrowth or forest %rod#ce Q *moking) where this is !y kindling) carrying or throwing down any fire) match or other lighted material Q De%ast#ring cattle or allowing any cattle to !e therein Q (learing) c#ltivating or !reaking #% law for c#ltivation of for any other %#r%ose Q (a%t#ring or killing any animal) setting or !eing in %ossession of any tra%) snare) g#n or net) or digging any %it) for the %#r%ose of catching any animal) or #sing or !eing in %ossession of any %oison or %oisoned wea%on Q (onstr#cting any road or %ath Q +ntering any %art thereof that may !e closed to any %erson Q (ollecting any honey or !ees wax) or hanging on any tree or elsewhere any honey !arrel
or other rece%tacle for the %#r%ose of collecting honey or !ees wax) or !eing there with any e>#i%ment designed for the %#r%ose of collecting honey or !ees wax Q Damaging) altering) shifting) removing or interfering in any way whatsoever with any !eacon) !o#ndary mark) fence) notice or notice !oard. &*imilarly) a n#m!er of activities were %rohi!ited in forests on #nalienated government land) namely; BiC Felling) c#tting) taking) !#rning) in?#ring or removing any tree BiiC (ollecting any honey or !ees wax) or hanging on any tree or elsewhere any honey !arrel or other rece%tacle for the %#r%ose of collecting honey or !ees wax) or entering therein with any e>#i%ment designed for the %#r%ose of collecting honey or !ees wax BiiiC ,ighting any fire or throwing down any material or other lighted material within the vicinity of a forest area or central forest in s#ch a manner as to s#!?ect the forest area or central forest to the risk of fire.&4 The a!ove activities co#ld take %lace in a forest area or central forest or forest on #nalienated <overnment land #nder the license of the (hief (onservator of Forests or %#rs#ant to %rovisions
&- I#id. &4 I#id,
*ection 'B-C.
of s#ch s#!sidiary legislation) as might !e %rom#lgated #nder the Act. &5 A%%arently) the stat#te so#ght to maintain the %ristine nat#re of declared forest areas !y allowing the minim#m %ossi!le interference from #na#thorised h#man activities. Accordingly) the stat#te criminalised #na#thorised cond#ct that might com%romise the nat#re
of the forest or its %rod#ce. Under the %rovisions of section 7 of the Act it was an offence for any %erson) witho#t lawf#l a#thority to; aC /ark any forest %rod#ce or affix #%on any forest %rod#ce a mark #sed !y any forest officer to indicate that the forest %rod#ce is the %ro%erty of the government or that it may !e lawf#lly c#t or removed !C Alter) o!literate) remove or deface any stam%) mark) sign) licence) or other doc#ments lawf#lly iss#ed #nder the a#thority of the Act) or remove or destroy any %art of a tree !earing the stam% or other mark #sed !y any forest officer cC (over any tree or st#m% in any central forest or forest area or any #nalienated <overnment land with !r#shwood or earth) or !y any other means whatsoever to conceal) destroy or remove or attem%t to conceal) destroy or remove or attem%t to conceal destroy or remove s#ch tree st#m% or any %art thereof dC 1ear any #niform or %art of a #niform or any !adge) or other mark iss#ed !y the Forest De%artment to !e worn !y forest officers or other em%loyees of the Forest De%artment. It was also an offence) #nder section 7) to co#nterfeit or iss#e witho#t lawf#l a#thority any license or other doc#ment %#r%orting the same to !e iss#ed #nder the stat#te or any r#les made there#nder. The stat#te also made %rovisions for com%o#nding of offences. A forest officer em%owered !y the /inister !y notice in the gaDette wo#ld) with the consent of the (hief (onservator of Forests) acce%t from a %erson who had committed an offence #nder the stat#te a s#m of money !y way of com%ensation for the offence) altogether with the forest %rod#ce) if any) in res%ect of which the offence had !een committed.&3 9owever) the com%ensation wo#ld !e acce%ted only in cases
where the %erson reasona!ly s#s%ected of having committed an offence had ex%ressed his consent to the offence !eing so com%o#nded and) in any event) the com%ensation m#st not exceed five times the val#e of the estimated val#e of the estimated damage or) where the val#e co#ld not !e estimated) -:: shillings for each offence.&' /agistrates) forest officers or %olice officers) the Director and senior officers of 0enya 1ildlife *ervice were em%owered to search and arrest %ersons s#s%ected to !e in violation of the
&5 I#id, &3 I#id, &' I#id,
*ection 'B4C. *ection &:B&C. *ections &:B&C K B-C.
%rovisions of the stat#te and any item #sed in s#ch an event. & The %enalty im%osed for the violation of the stat#te was a fine of #% to 4)::: shillings or im%risonment of #% to six months or !oth as well as the forfeit#re of any license that might have !een iss#ed.&" 1here forest %rod#ce was damaged or in?#red or removed) the co#rt wo#ld) in addition) order for %ayment of com%ensation of the val#e of the %rod#ce so damaged) in?#red or removed.&7 The /inister was em%owered to make r#les of general a%%lication or in res%ect of a %artic#lar central forest) forest area or any #nalienated <overnment land reg#lating certain activities therein) r#les for the %rotection and management of indigeno#s forests on alienated <overnment land) and
r#les for the !etter carrying o#t of the %rovisions of the stat#te. -: E)al+at%on of t&e Fo ests A!t A close analysis of this stat#te reveals nota!le lac#nae that created a ma?or constraint to forest conservation and the develo%ment of a s#staina!le forestry ind#stry. The command and control a%%roach to forest conservation ado%ted !y the stat#te was not only inimical to nat#ral reso#rces conservation) !#t had also led to illegal felling -:of trees as well as illegal conversions of forest land into farming land !y %o%#lations !ordering forest areas. The stat#te did not %rovide any incentives for the comm#nity and %rivate sector involvement in the management of forests) there!y alienating them from c#stody and #ses of forests and forest %rod#ce. Forestry management #nder the stat#tes was) in essence) the excl#sive res%onsi!ility of the central government with no in%#t from the %rivate sector or grassroot organisations. Iss#es related to s#staina!le forestry management) s#ch as good governance) %o%#lation increase) %overty) land co6ordination of !oth %rivate and %#!lic stakeholders agencies were not addressed !y the legislation. The conse>#ences were de%letion of !iological diversity) desta!ilisation of ecosystems) and changes in weather %atterns. As already stated a!ove) the conce%t of a 8forest8 in 0enya8s legal regime was wholly de%endent on the /inister8s declaration. The law does not %rovide any criterion to g#ide the /inister in deciding when to declare an area of land to !e or to cease to !e a forest area. There was no
mechanism !y which the /inister was to !e constantly a%%raised of the fact#al existence of land areas that sho#ld !e declared forest areas. The essence of this lac#na in the law was that there might have !een so many land areas in the co#ntry that >#alified as forests) !#t which were) #nder the stat#te) not forests !eca#se the /inister has not declared them to !e so. *imilarly) the a%%arent a!sol#te %owers of the /inister to terminate the forest stat#s or nat#re
&
I#id, *ection &&. *ection &5B&:C. *ection &5B-C. *ection &3.
&" I#id, &7 I#id, -: I#id,
Internal Teaching Use Only - '
reserve characteristic of any area militated against s#staina!le forestry management. 1itho#t the involvement of %rofessional instit#tions) local comm#nities and other stakeholders) the identification) declaration and management of forest areas) as well as the termination of their stat#s) were #nlikely to ens#re so#nd economic) social and environmental management of these areas. 1hereas the legal %rohi!itions im%osed on vario#s activities in or within declared forest areas and nat#re reserves might have !een aimed at controlling or c#rtailing certain h#man activities that are likely to lead to degradation of the areas) they fail to address a n#m!er of f#ndamental iss#es that were cr#cial to their s#ccess. *trict enforcement of the legal %rohi!itions was likely to !e co#nter%rod#ctive in its fail#re to harness the %ositive traditional nat#ral reso#rce conservation %ractices
o!served !y local comm#nities over several generations. Instead of de%ending on %enal sanctions as the mechanisms of ens#ring good forest h#s!andry) it is im%ortant to !lend the time6tested traditional conservation %ractices with the modern scientific ones in order to ens#re s#staina!le management of forests) es%ecially the indigeno#s ones. De%endence on %enal sanctions excl#des local comm#nities from the res%onsi!ility of conservation of the existing forest areas and the esta!lishment of new and additional areas. The local comm#nities) conse>#ently) do not associate themselves with the forests and %artici%ate in their management) there!y fr#strating the %artici%atory and colla!orative forest management in the co#ntry. 1hen it was realised that d#e to these and other related %ro!lems) the Forests Act) in its c#rrent form co#ld not solve the co#ntry8s forestry %ro!lems 6diminishing acreage of forests areas) heavy demands for f#el wood !y an increasing %o%#lation) encroachment on forests areas for agric#lt#re and settlement with the res#ltant de%letion of !iological diversity and ha!itats for wildlife 6 Parliament) in -::3) enacted a new stat#te for the esta!lishment) develo%ment and s#staina!le management) incl#ding conservation and rational #tilisation of forest reso#rces for the socioeconomic develo%ment of the co#ntry. This new stat#te is the Forests Act) -::3. -& T&e Fo ests A!t9 6==B The %hiloso%hical !asis of the enactment of this %iece of legislation is stated in the %ream!le. The
legislation was !ased on the recognition that forests %lay a vital role in the sta!iliDation of soils and gro#ndwater) there!y s#%%orting the cond#ct or relia!le agric#lt#ral activity) and that they %lay a cr#cial role in %rotecting water catchments in 0enya and moderating climate !y a!sor!ing greenho#se gasesE the f#rther recognition that forests %rovide the main loc#s of 0enya8s !iological diversity and a ma?or ha!itat for wildlifeE the acknowledgement that forests are the main so#rce of domestic f#el wood for the 0enyan %eo%le and that they %rovide essential raw materials for wood!ased ind#stries and a variety of non6wood forest %rod#ctsE and the acknowledgement of the fact that 0enya is committed to the inter6sectoral develo%ment and s#staina!le #se of forestry
-& *ee
the %ream!le to the Act) &%pra, note .
reso#rces and is committed #nder international conventions and other agreements to %romote the s#staina!le management) conservation and #tilisation of forests and !iological diversity. The Act a%%lies to all forests and woodlands on state) local a#thority and %rivate land. -- The essence of a%%lying the Act to all forests is to transform all ty%es of forests) incl#ding dry land forest reso#rces) into via!le %rod#ction systems ca%a!le of s#%%orting forest ind#stries !esides environmental conservation. The Act offers g#idance and identifies the vario#s categories of stakeholders that will contri!#te to the develo%ment of forestry in 0enya. A %artici%atory) crosssectoral a%%roach is esta!lished to ena!le contri!#tions from governmental to non6governmental
organisations and instit#tions to the develo%ment of forestry. Th#s) the Act creates an ena!ling environment for the facilitation and %romotion of %rivate sector involvement in forestry management. The s#!stantive %arts of the Act deal with administration) creation and management of forests) comm#nity %artici%ation) and enforcement and offences. A*#%n%st at%on The Act esta!lishes the 0enya Forest *ervice as a !ody cor%orate entr#sted with the overall res%onsi!ility for the administration of the Act. -4 The *ervice) which will re%lace the %resent Forest De%artment of the <overnment and ass#me its assets and lia!ilities)-5 shall have inter alia, the following stat#tory f#nctions; BaC form#lating %olicies and g#idelines regarding the management) conservation and #tilisation of all ty%es of forest areas in the co#ntryE B!C management of all state forestsE BcC management of all %rovisional forests in cons#ltation with forest ownersE BdC %rotecting forests in 0enya in accordance with the %rovisions of the ActE BeC %romoting forestry ed#cation and trainingE BfC colla!orating with individ#als and %rivate and %#!lic research instit#tions in identifying research needs and a%%lying research findingsE BgC drawing or assisting in drawing #% of management %lans for all indigeno#s and %lantation state) local a#thority) %rovisional and %rivate forestsE BhC colla!orating with other organisations and comm#nities in the management and conservation of forests and for the #tilisation of the !iodiversity thereinE
-- I#id, -4 I#id, -5 I#id,
section -. section 5. section ''.
Internal Teaching Use Only - "
BiC %romoting the em%owerment of associations and comm#nities in the control and
management of forestsE B?C managing forests in water catchment areas for the %#r%ose of water and soil conservation) car!on se>#estration and other environmental servicesE and BkC %romoting national interests in relation to international forest related conventions and %rinci%les.-3 It sho#ld !e noted) however) that the realisation of s#staina!le management) conservation and #tilisation of forests and forest reso#rces will not come from the mere transformation of a former <overnment de%artment into a state cor%oration. The lethargy) corr#%tion) and lack of financial and h#man reso#rces that had led to inefficient management of forests !y the De%artment m#st !e addressed if the service has to make any difference. This is %artic#larly cr#cial since the *ervice will a!sor! the entire staff of the former De%artment) there!y r#nning the risk of the contin#ation of !#siness as #s#al. The challenge here lies in t#rning the former De%artment into an efficient) acco#nta!le) trans%arent and %rofessionally efficient service. Asixteen6%erson $oard) whose mem!ershi% shall !e e>#ally divided !etween the %#!lic and %rivate sectors) taking into acco#nt the %rinci%le of gender and regional %resentation) shall carry o#t the management of the *ervice.-' Th#s) altho#gh the service is esta!lished as a state cor%oration) the com%osition of its !oard reflects and re%resents the wide variety of stakeholders interests in the forestry sector. <overnment dominance and strong control of the sector are considera!ly lessened. The f#nctions of the $oard incl#de the following;
BaC ens#ring the efficient management of the *erviceE B!C considering and recommending to the /inister the esta!lishment of state forests on #nalienated <overnment land and any other <overnment land and the determination and alteration of the !o#ndaries thereofE BcC considering all management agreements) incl#ding the granting of management licences for state %lantation forestsE BdC negotiating for financial and other incentives for the advancement of the forestry related activities of %rivate %ersons) com%anies) comm#nities) non6governmental organisations and local a#thoritiesE BeC develo%ing modalities and g#idelines for ?oint management of forests !etween the service) local a#thorities) forest comm#nities) government agencies and the %rivate sectorE
-3 Forests -' I#id,
Act M-::3N) section 3.
sections 'BlC6B5C.
BfC advising the /inister on all matters %ertaining to the esta!lishment) develo%ment) conservation and #tilisation of forests in 0enyaE and BgC esta!lishing forest conservancy areas for the %#r%oses of conservation and management. The $oard has all the %owers necessary for the %erformance of its f#nctions #nder the Act) incl#ding the %ower of a%%roval and ratification of the %olicies of the *erviceE management) control and administration of the assets of the *ervice in s#ch a manner and for s#ch %#r%oses as are !est to %romote the %#r%ose for which the *ervice is esta!lishedE receiving any gifts) grants) donations or endowments made to the *erviceE and co6o%erating with local or foreign organisations #ndertaking f#nctions similar to its own)-" a %rovision that o%ens aven#es for interstate colla!oration in cases of trans!o#ndary forestry management iss#es) since some of 0enya8s forest reso#rces are shared !y neigh!o#ring co#ntries.
The $oard is also em%owered to esta!lish forest conservancy areas for the %ro%er and efficient management of forests and may divide s#ch conservancy areas into forest divisions and stations. +ach conservancy area shall have a forest conservation area) whose f#nctions shall incl#de informing the $oard on the ideas) desires and o%inions of the %eo%le within the forestry conservation areas in all matters relating to the conservation and #tilisation of forests within s#ch areaE monitoring the im%lementation of the Act and other forest reg#lations within the areaE reg#lating the managements of forests in the relevant conservancy areaE assisting local comm#nities to !enefit from royalties and other rights divided from flora or fa#na traditionally #sed or newly discovered !y s#ch comm#nitiesE and identifying areas of #nalienated <overnment land or tr#st land to !e set aside for the creation of forests. -7 The Act esta!lishes a Forest /anagement and (onservation F#nd to !e #sed for) inter alia, the develo%ment of forestsE the maintenance and conservation of indigeno#s forestsE the %romotion of commercial forest %lantationE the reha!ilitation of %rovisional forestsE the %romotion of comm#nity forest6!ased %ro?ectsE the maintenance and %rotection of sacred trees and groves and other areas of c#lt#ral) ethno6!otanical or scientific significanceE the %rotection and management of #ni>#e trees for !iodiversity conservationE and the management and %rotection of %rotected trees. 4: The F#nd shall consist of monies a%%ro%riated for its %#r%oses !y ParliamentE levies #%on forest
!eneficiaries as shall !e determined !y the /inisterE income from investments made !y the $oardE and s#ch grants) donations) !e>#ests or other gifts as may !e made to the F#nd. 4&The F#nd shall !e managed !y a finance committee a%%ointed !y and em%owered in that) on !ehalf of the $oard.4- It
-
l#id, section . section ". section &4BlC6B4C. sectionl".
-" l#id, -7 I#id, 4: I#id,

4&
I#id, section &7. I#id, section -:.
4-
Internal Teaching Use Only -":
is noteworthy that the esta!lishment of the F#nd creates a %ermanent and reg#lar financial mechanism and reso#rces for forest management activities in the co#ntry. Unlike in the %ast where the forest de%artment was de%endent on !#dgetary allocation thro#gh the /inistry) the F#nd will ena!le the service to have financial a#tonomy) with the res#lt that the monies will !e managed %#r%osively for forestry management. In the %ast) lack of financial reso#rces was one of the ma?or constraints to the efficient management of the forestry sector. C eat%on an* Mana$e#ent of Fo ests *ection -& of the Act vests all forests in 0enya) other than the %rivate and local a#thority forests) in the *tate) s#!?ect to any rights of #ser which) !y or #nder the Act or other written law) have !een or are granted to any other %ersons. 9owever) %re6existing c#stomary rights of access to and #ser of forest %rod#ce are reserved. *ection -- %rovides;
1othing in thi& $ct &hall #e deemed to prevent any mem#er o, a ,ore&t comm%nity ,rom %&ing, &%#3ect to &%ch condition& a& may #e pre&cri#ed, &%ch ,ore&t prod%ce a& it ha& #een the c%&tom o, that comm%nity to take ,rom &%ch ,ore&t otherwi&e than ,or the p%rpo&e o, &ale.
The /inister is then em%owered) on the recommendation of the $oard) to declare !y notice in the gaDette any #nalienated <overnment land or any land %#rchased or otherwise ac>#ired !y the <overnment) to !e a *tate forest.44 It is noteworthy that #nlike in the %ast) when the /inister8s discretion in the declaration of forest areas was virt#ally #nfettered) he now may make this declaration to create *tate forests only on the recommendation of the $oard. The /inister8s %owers to create local a#thority forests are similarly restricted. The /inister shall declare any land #nder the ?#risdiction of a local a#thority to !e a local a#thority forest #%on the recommendation of the local forest conservation committee) the local a#thority #nder whose ?#risdiction the land in sit#ated) and the $oard.45 $esides) the land and the forest thereon m#st meet certain conditions. The land m#st !e an im%ortant catchment area) a so#rce of water s%rings) a fragile environment rich in !iodiversity or m#st contain rare) threatened or endangered s%ecies. The forest m#st !e of c#lt#ral or scientific significance) s#%%orting an im%ortant ind#stry) and a ma?or so#rce of livelihood for the local comm#nity. 43It is not clear from the stat#te how the local a#thority forests will !e managed !y the local a#thorities. 9owever) if the management of forests on tr#st land #nder their ?#risdiction is to !e #sed as a yardstick to ga#ge their ca%acity) management of local a#thority forests may similarly s#ffer from the a#thorities8 ine%tit#de) corr#%tion and %olitical interference that have contri!#ted to forest loss on tr#st land. 4'
44
I#id, section -4. I#id, section -5. II#id *ee 1orld $ank M-:: ; -:N.
45
43
4'
Internal Teaching Use Only -"&
A %erson who owns a %rivate forest) incl#ding a forest in the co#rse of esta!lishment) on his own land) may a%%ly to the *ervice for registration where s#ch forest meets the %rescri!ed criteria #nder the Act.4 The owner of a registered %rivate forest shall !e entitled to receive from the *ervice technical advice regarding a%%ro%riate forestry %ractices and conservation as well as loans from the F#nd for the develo%ment of the forest in accordance with the %roced#res set !y the *ervice.4" In addition) the %erson may a%%ly to the relevant a#thorities for exem%tion from the %ayment of all or %art of the land rates and any other charges %aya!le in res%ect of the land on which the forest is esta!lished.47 1here) in the o%inion of the $oard) a local a#thority forest or %rivate forest is mismanaged or neglected) the $oard may recommend to the /inister who may) !y order in the gaDette) declare s#ch forest to !e %rovisional forest.5: A declaration of a %rovisional forest shall only !e made where the forest is an im%ortant catchment area or a so#rce of water s%rings) is rich in !iodiversity and contains rare) threatened or endangered s%ecies) is of c#lt#ral or scientific significance) or s#%%orts an im%ortant ind#stry and is a so#rce of livelihood for the s#rro#nding forest comm#nities.5& $esides) the local a#thority or %rivate owner m#st have failed to com%ly with or !een #na!le to #ndertake s%ecified %ractices in a notice iss#ed !y the Director re>#iring s%ecific remedial meas#res to !e #ndertaken.5A %rovisional forest shall !e managed !y the *ervice) together with the owner) for a %eriod of
three years) s#!?ect to review) and any %rofits thereof %aid to the owner less the management ex%enses inc#rred !y the *ervice.54 The forest shall revert to the owner when the $oard is satisfied that it has !een ade>#ately reha!ilitated and the owner has given an #ndertaking to efficiently manage it in accordance with s#ch conditions as may !e %rescri!ed !y the $oard. 55 Altho#gh criteria for registration of %rivate forests have note !een %rescri!ed) the exercise of the /inister8s %owers to declare %rovisional forests #nder this section may have far reaching legal im%lications with res%ect to %rivate forests. The constit#tion g#arantees the sanctity of %rivate %ro%erty. De%rivation of %rivate %ro%erty is caref#lly circ#mscri!ed with attendant detailed
4
Forests Act M-::3N) sections -3B&C K B-C. section -3B4C. section -3B5C. section -'B&C. section -'B-C.
4" I#id, 47 I#id, 5: I#id, 5& I#id, 5- I#id. 54 I#id, 55 I#id,
section-'B4C. section - .
Internal Teaching Use Only -"-
safeg#ards in !oth the constit#tion and the ena!ling legislation. $esides) the freehold land ten#re system %rovides for a!sol#te %ro%rietorshi% with ena!led en?oyment of the same) s#!?ect only to s%ecific overriding interests. Accordingly) in the light of the fact that there is no direct consideration given !y the *ervice for the registration of %rivate forests) the declaration of the forest as a %rovisional forest and the conse>#ences thereof may !e inter%reted !y the %rivate land owner as tantamo#nt to enc#m!ering or fettering the en?oyment of his constit#tional or ten#rial rights to his %ro%erty. There is great %otential for litigation and) to ?#stify the exercise of this %ower !y the /inister) the criteria for registration of forest m#st.!e not only so#nd in law !#t
clear and com%rehensive to %rovide a firm !asis for the /inister8s declaration in the event of the !reach of his #ndertakings !y the %rivate land owner. The need for a clear and com%rehensive legal framework for the management of %rivate forests cannot !e overstated. A detailed %roced#re is %rovided for the variation of !o#ndaries or revocation of *tate or local a#thority forests. A %ro%osal for the %#!lication of a notice to vary the !o#ndaries of a *tate or local a#thority forest or to declare that a forest shall cea&e to #e a -tate or local a%thority ,ore&t m%&t #e recommended #y the -ervice. Ie,ore the -ervice make& &%ch recommendation, BaC the propo&al m%&t have !een a%%roved !y the forest conservation committee for the area in which the forest is sit#atedE B!C the *ervice m#st !e satisfied that the %ro%osed variation of !o#ndary or cessation of forest) BiC will not endanger any rare) threatened or endangered s%ecies) BiiC will not adversely affect the forest val#e as a water catchment area) and BiiiC will not %re?#dice !iodiversity conservation) c#lt#ral site %rotection of the forest or its #se for ed#cational) recreational) health or research %#r%oses. $esides) the %ro%osal m#st have !een s#!?ected to an inde%endent environmental im%act assessment as well as %#!lic cons#ltation in accordance with the %rovisions of the Act. The final re>#irement is that the %ro%osal m#st !e a%%roved !y resol#tion of Parliament !efore the notice to effect the changes is %#!lished. 53 This is a radical de%art#re from the %revio#s legal regime where the /inister a%%arently en?oyed the f#ll discretion to declare an area to !e or to
cease to !e a forest area) irres%ective of the im%lications of s#ch declaration. The re>#irements for %#!lic cons#ltation and resol#tion of Parliament will have the sal#tary effect of making the variation of !o#ndaries and revocation of forests national iss#es for %#!lic de!ate and %artici%atory decision making. This is !o#nd to enhance trans%arency and governance and) there!y) contri!#te to s#staina!le forestry management. $esides) the detailed %roced#re is likely to facilitate the %romotion and a%%lication of contem%orary forestry management %rinci%les in decision making at all levels. For %#r%oses of enhancement of efficient management and %rotection of forests) the $oard is em%owered to exchange %art of a forest area with %rivate land. 9owever) the exchange m#st !e e>#ita!le to !oth the *ervice and the %rivate land owner according to an inde%endent val#ation.
53 I#id,
section -".
Internal Teaching Use Only -"4
An environmental im%act assessment m#st have !een cond#cted and shown that the exchange will not adversely affect the environment) and the forest area to !e exchanged m#st !e shown not to contain rare) threatened or endangered s%ecies and not to !e a water catchment area or a so#rce of s%rings.5' The *ervice itself or a local a#thority is em%owered) with the a%%roval of the /inister) to %#rchase any land s#ita!le to !e declared a state forest or local a#thority forest. In !oth cases of exchange and %#rchase of land) there m#st !e %rior %#!lic cons#ltation carried o#t in accordance with the %rovisions of the Act.5
+very local a#thority is re>#ired to esta!lish and maintain ar!oreta) mini6forests or recreational %arks for the non6cons#m%tive #se of %ersons residing within its area of ?#risdiction. The local a#thority is also re>#ired to esta!lish and maintain a recreational %ark in every market centre within its area of ?#risdiction. The *ervice is re>#ired to facilitate and initiate the %rovision of technical assistance to the local a#thorities in the esta!lishment and maintenance of these areas. Once esta!lished) these areas shall not !e converted to any other #se witho#t the local a#thorities cons#lting the residents of the areas in which they are sit#ated. 5" ,ocal a#thorities have generally !een known to !e wanting in res%ect of delivery of social services to their residents. The low level of delivery of services has !een generally attri!#ted to lack of financial reso#rces. 1itho#t financial assistance from the service) it is do#!tf#l whether the local a#thorities will s#ccessf#lly esta!lish and s#staina!ly manage s#ch areas) es%ecially in the light of the fact that forest management is not the core mandate of local a#thorities and that they) therefore) do not have ca%acity in this field. The /inister is em%owered) %#rs#ant to the recommendation of the *ervice and in cons#ltation with the /inister res%onsi!le for local a#thorities where a%%ro%riate) !y notice in the <aDette) to declare any forest area) woodland) or any %art thereof) which has a %artic#lar environmental)
c#lt#ral) scientific or other s%ecial significance to !e a nat#re reserve for the %#r%ose of %reserving its !iodiversity and nat#ral amenities thereof. 57 1here a nat#re reserve is declared within a %rivate forest) the /inister m#st arrange for com%ensation of the land owner. *#ch com%ensation sho#ld !e !ased on val#ation carried o#t !y an inde%endent val#er a%%ointed !y the $oard on the recommendation of the relevant %rofessional !ody. 3: (#tting) graDing) removal of forest %rod#ce) h#nting or fishing shall not !e allowed in a nat#re reserve save with the %ermission of the Director) granted in cons#ltation with the conservation agencies and only with the o!?ect of facilitating
5' I#id, 5
section -7B&C.
I#id, section -7B4C. section 4:. section 4-B&C. section 4-B-C.
5" I#id, 57 I#id, 3: I#id,
research.3& Any forest comm#nities or %ersons desiro#s of #tilising or conserving any grove or forest that is %art of a nat#re reserve for c#lt#ral) religio#s) ed#cational) scientific or other reasons m#st a%%ly in the %rescri!ed form to the $oard thro#gh the forest conservation committee of the local area. The $oard may) within three months of recei%t of the a%%lication and on making the relevant en>#iries) grant the a%%lication as re>#ested) grant the a%%lication on s%ecified terms and conditions) or ref#se to grant the a%%lication giving reasons therefore. 3- Any %erson aggrieved
!y the decision or the $oard regarding the a%%lication may a%%eal to the 2ational +nvironment Tri!#nal.34 2o interference with sacred groves fo#nd in *tate forests) nat#re reserves) local a#thority forests or %rivate forests is allowed. Penal sanctions are im%osed for any #na#thorised felling) c#tting) damaging or removal of s#ch groves or trees or regenerations thereof or !iodiversity therein.35 The Act em%owers the President) on the advice of the /inister) to declare any tree) s%ecies or family of tree s%ecies to !e %rotected either thro#gho#t the co#ntry or in s%ecific areas of the co#ntry. Trees s#!?ect to the regime of farm forestry are a%%arently not s#!?ect to %residential %rotection) %ro!a!ly !eca#se of the constit#tional im%lication of s#ch declaration. Trees so %rotected cannot !e felled) c#t) damaged) removed) traded in or ex%orted. The %residential %rotection may !e revoked where the President is) on the advice of the /inister) satisfied that the same is no longer necessary. 33 The stat#te esta!lishes an ela!orate management regime for forests. The management of all *tate forests) local a#thority forests and %rovisional forests m#st !e !ased on management %lans %re%ared and maintained in accordance with the Act. The *ervice is res%onsi!le for the %re%aration and maintenance of management %lans with res%ect to *tate forests and %rovisional forests while local a#thorities are res%onsi!le for those with res%ect to local a#thority forests within their ?#risdiction.3' The *ervice and local a#thorities are re>#ired to cons#lt with the local forest conservation comm#nities in the %re%aration of management %lans. 3 The Director is em%owered) with the a%%roval of the $oard) to concl#de agreements with %ersons for the ?oint management of forests. *#ch agreements may) s#!?ect to com%ensation for
the o%%ort#nity cost thereof) en?oin s#ch %ersons to #se or refrain from #sing s#ch forests or any
3& I#id, 3- I#id, 34 I#id, 35 I#id, 33 I#id,
3'
section 4-B4C. sections 44B&C K B-C. section 44B4C. section 44B5C. section 45.
I#id, sections 43B&C) B-C K B4C. I#id, section 43B3C.
%arts thereof in %artic#lar ways in order to ens#re the conservation of !iodiversity. The agreements have the legal nat#re of restrictive covenants as they are enforced against s#ccessors in title) assignees and all other %ersons deriving title from the %ersons who so agree with the Director.3" The *ervice shall !e res%onsi!le for the management) on a s#staina!le !asis) of all %lantation forests owned !y the *tate for the %rimary o!?ective of the %rod#ction of wood and other forest %rod#cts and services for commercial %#r%oses. 9owever) where the $oard is satisfied that all or %art of a %lantation forest owned !y the *tate may !e efficiently managed thro#gh a license) concession) contract or ?oint agreement) it may call for a%%lications from and award licences) concessions) contracts to or enter into ?oint agreements with interested %ersons in accordance with the %rovisions of the Act.37 ,ocal a#thorities shall) with the assistance of the *ervice) !e res%onsi!le for the %rotection and management of all forests and woodlands #nder their ?#risdiction and shall ens#re that the forests are managed on a s#staina!le !asis %#rs#ant to a%%roved management %lans. ': Forest officers res%onsi!le for the res%ective areas m#st) in cons#ltation with the local forest conservation
committees) make ins%ection visits to the forests #nder local a#thority management and re%ort to the Director as to whether the forests are managed in accordance with the %rovisions of the Act. A local a#thority forest that is) on the !asis of s#ch re%ort) deemed not to !e %ro%erly managed may) on the recommendation of the $oard) !e declared to !e a %rovisional forest and %#t #nder the management of the *ervice.'& ,ocal a#thorities are also em%owered) after a%%roval !y the $oard) to enter into a%%ro%riate management agreements with com%anies) government agencies) forest comm#nities) %rofessional associations) ed#cational instit#tions) non6governmental organisations) co6o%erative societies) or individ#als for all or %arts of forests within their ?#risdictions. '- *#ch management agreements shall not o%erate to transfer or vest in any instit#tion) organisation or %erson any right of ownershi% of any land declared to !e a local forest other than the %rivilege of management and control. 2either shall they convert local a#thority forests into settlement areas. '4 1here the $oard is satisfied that #tilisation of a forest can !e done thro#gh concessions) the *ervice is em%owered !y license to grant s#ch concessions s#!?ect to an environmental im%act license iss#ed in accordance with the +nvironmental /anagement and (o6ordination Act) '5 and #%on the concessionaire #ndertaking to o!serve the s%ecific conditions %rovided for #nder the
3"
I#id, section 4' I#id, section 4 . I#id, section 4"B&C. I#id, sections 4"B4C6B3C. I#id, section 47B&C.
37
':
'&
'-
'4
l#id, sections 47B5C K B3C. Act 2o. " of &777.
'5
Internal Teaching Use Only -"'
Act.'3 1here any of these conditions are !reached) the $oard is em%owered to withdraw the concession.'' All indigeno#s forests and woodlands shall !e managed) %#rs#ant to management %lans %re%ared !y the *ervice in cons#ltation with the local forest conservation committees) on a s#staina!le !asis and for the %#r%oses of; BiC conservation of water) soil and !iodiversityE BiiC riverline and shoreline %rotectionE BiiiC c#lt#ral #se and heritageE BivC recreation and to#rismE BvC s#staina!le %rod#ction of wood and non6wood %rod#ctsE BviC car!on se>#estration and other environmental servicesE BviiC ed#cation and researchE and BviiiC%rovision of ha!itat for wildlife in terrestrial forests and fisheries in mangrove forests. ' For the %#r%ose of the stat#te) indigeno#s forests are those that have come a!o#t !y nat#ral regeneration of trees %rimarily native to 0enya and incl#de mangrove and !am!oo forests.'" The Act does not %rovide any detail regarding the content of format of the management %lans and agreement. These are to !e %rescri!ed !y s#!sidiary legislation made #nder the Act after cons#ltation with local forest conservation committees. It is) therefore) ex%ected that there will !e as many and diverse management %lans and agreements as the *tate) local a#thority and %rovisional forests themselves as well as conservation committees. 9owever) for the %#r%oses of develo%ment and s#staina!le management of forests and rational #tilisation of forestry reso#rces) the management %lans and agreements sho#ld address iss#es s#ch as analysis of the distri!#tion and conservation stat#s of the forestsE legal and fiscal incentives for comm#nity and
%rivate sector investment in the forestry managementE identification and a%%raisal of r#ral settlement and agric#lt#ral %atterns and their negative im%acts on forestry management and how these im%acts may !e addressedE integration of traditional nat#ral reso#rce and contem%orary %rinci%les of forestry managementE and identification and recommendation of reso#rce for ca%acity !#ilding in s#staina!le forestry management for national develo%ment. /ining and >#arrying o%erations in forest areas shall !e allowed !y the $oard only where; &C the forest in >#estion does not contain rare) threatened or endangered s%ecies) sacred groves or trees) does not have any c#lt#ral im%ortance and is not an im%ortant catchment area or so#rce of s%ringsE -C an inde%endent environmental im%act assessment has !een carried o#tE 4C the miner has exec#ted a !ond #ndertaking to reha!ilitate the site) #%on com%letion of the o%erations) to the level %rescri!ed !y the $oardE and
'3
Torests Act M-::3N) sections 5:BlC6B4C. I#id, section 5:B5C. I#id, section 5&. I#id, section 4.
''
'
'"
Internal Teaching Use Only -"
5C the o%erations are not carried o#t in contravention of any r#les made #nder the Act. '7 $esides) the *ervice and local a#thorities are em%owered) res%ectively) to license mining and >#arrying o%erations in *tate and local a#thority forest where the a%%licant for a license has im%lemented safely meas#res to %revent in?#ry to h#man) livestock and wildlife traversing the forest and has also o!tained consent from the (ommissioner of /ines.
:
The Act im%oses a general re>#irement to the effect that where any a#thoriDed activity in a forest is likely to lead to de%letion of forest cover) the %erson so a#thorised to carry o#t the activity m#st #ndertake com%#lsory revegetation immediately #%on com%letion of the activity and in cons#ltation with the *ervice) which shall determine the seeds and seedlings to !e needed in s#ch
vegetation.
&
Any activities within a forest area which are not incl#ded in a management %lan shall not !e allowed witho#t the consent of the $oard and in accordance with the Act. Co##+n%t' Pa t%!%(at%on 9itherto) the legal regime on forestry foc#sed on the central government as the manager) with little or no involvement of civil society. The conse>#ence has !een that the government was the excl#sive %olicy form#lator) decision maker and im%lementer witho#t comm#nity involvement. This) in t#rn) has led to comm#nities having a red#ced sense of res%onsi!ility for the management of forests and %erceiving themselves as not !eing recognised as cr#cial %artners with interest in the management of forests. ,ocal sense of comm#nity ownershi%) res%onsi!ility and control of forests and their !enefits has largely !roken down. In the meantime) government management has lacked the ca%acity to maintain the >#ality of forests) which have !een severely over6ex%loited for vario#s tim!er and non6tim!er %rod#cts. 9owever) the new legislation seeks to enhance environmental governance !y incor%orating %artici%atory and colla!orative management of forests thro#gh involvement of comm#nities as not only interested gro#%s) !#t also as key stakeholders. This a%%arent shift in res%onsi!ilities and roles from the government to comm#nities sho#ld enco#rage effective %artici%ation of local %eo%le in conservation and s#staina!le #se of forests. *ection 5' of the Act em%owers %ersons who are mem!ers of forest comm#nities) together with %ersons resident in the same area) to register comm#nity forest associations for the %#r%ose of %artici%ation in the conservation and management of *tate forests or local a#thority forests) %#rs#ant to %ermission granted !y the
-
Director on their a%%lication. Forest associations %ermitted !y the Director to %artici%ate in the
'7
I#id, section 5-B&C. I#id, sections 5-B-C K B4C. I#id, section 54. I#id, section 53.
&
Internal Teaching Use Only -""
conservation and management of forests have s%ecific stat#tory f#nctions. These are; BiC the %rotection) conservation and management of forests or %arts thereof %#rs#ant to a%%roved management agreements and %rovisions of a%%lica!le management %lansE BiiC the form#lation and im%lementation of forest %rogrammes consistent with the traditional forest #ser rights of the comm#nities concerned in accordance with s#staina!le #se criteriaE BiiiC the %rotection of sacred groves and %rotected treesE BivC the assisting of the *ervice in the enforcement of the Act and any r#les and reg#lations made there#nder in relation to illegal harvesting of forest %rod#ceE BvC s#!?ect to the a%%roval of the $oard) entering into %artnershi%s with other %ersons for the %#r%ose of ens#ring the efficient and s#staina!le conservation and management of forestsE BviC kee%ing the service informed of any develo%ments) changes and occ#rrences within the forest which are critical for conservation of !iodiversityE BviiC hel%ing in fire fightingE and BviiiC doing any other act that is necessary for the efficient conservation and management of forests.
4
The relative im%ortance of local val#es of a local forest will infl#ence the a%%ro%riate level of comm#nity %artici%ation. The stat#te incor%orates this conce%t. A management agreement !etween the Director and forest association confers #%on the association several forest #ser rights. These incl#de; BaC collection of medicinal her!sE B!C harvesting of honeyE BcC harvesting of tim!er or f#el woodE
BdC grass harvesting and graDingE BeC collection of forest %rod#ce for comm#nity !ased ind#striesE BfC ecoto#rism and recreational activitiesE BgC scientific and ed#cation activitiesE BhC %lantation esta!lishment thro#gh non6resident c#ltivationE BiC contracts to assist in carrying o#t s%ecified silvic#lt#ral o%erationsE B?C develo%ment of comm#nity wood and non6wood forest !ased ind#striesE and
4 I#id,
section 5 B&C.
BkC s#ch other !enefits as may !e agreed #%on from time to time !etween the association and the *ervice.
5
It is envisaged that these #ser rights will motivate the forest association to invest in s#staina!le forestry management. There will !e need) however) for the service to %rovide technical assistance in line with contem%orary forestry management %rinci%les. An association may) with the a%%roval of the Director) assign all or any of its rights #nder a management agreement to a s#ita!ly >#alified agent on m#t#ally agreed terms %rovided that the assignment does not derogate from the main o!?ective of the management agreement and) f#rther) the association remains lia!le for all the activities) acts and omissions of the assignee.
3
The Director is em%owered to terminate a management agreement with an association or to withdraw a %artic#lar #ser right where; BaC the association !reaches the terms and conditions thereofE B!C he considers s#ch action necessary for the %#r%oses of %rotecting and conserving !iodiversityE or
BcC the association itself so re>#ests.
'
*#ch termination or withdrawal may also !e gro#nded on the terms of the %artic#lar management agreement. 9owever) !efore the Director terminates a management agreement or withdraws a %artic#lar #ser right there#nder) he m#st give the affected association thirty days8 notice to show ca#se why this sho#ld not !e done. A%%eals against the Director8s decisions are made to the $oard. Enfo !e#ent an* Offen!es The enforcement of the Act is carried o#t at three levels. First) a Forest Officer is em%owered to; BaC demand from any %erson the %rod#ction of an a#thority or licence for any act done or committed in any forest for which a license is re>#ired #nder the Act. B!C re>#ire an acco#nt from any %erson who has in his %ossession any forest %rod#ce s#s%ected to have !een #nlawf#lly taken from any forest and where the acco#nt is not satisfactory) arrest and take s#ch %erson !efore a magistrateE BcC search and arrest any %erson s#s%ected of having committed an offence #nder the Act or of !eing in %ossession of any forest %rod#ce in res%ect of which an offence
5 I#id, 3 l#id,
'
section 5 B-C. *ection 5".
l#id, *ection 57B&C. I#id, *ection 57B-C.
has !een committed) and to seiDe and detain any !aggage) %ackage) %arcel) conveyance) tent) h#t or !#ilding #nder the control of that %erson or his agentE BdC search any vehicle or vessel and seiDe and detain any forest %rod#ce in res%ect of which there is reason to !elieve that an offence has !een committed) together with any tools or im%lements #sed in the commission thereof and re%ort to the magistrate with local ?#risdictionE
BeC seiDe and detain any livestock fo#nd in *tate) local a#thority or 8 %rovisional forests witho#t any %erson in charge of themE and BfC confiscate any e>#i%ment or rece%tacle %laced witho#t a#thority in *tate) local a#thority or %rovisional forests.
"
*econd) the Director is em%owered toE BaC enter any %rivate forest registered #nder the Act to assess the condition thereof or to %erform any act necessary in the circ#mstancesE B!C enter the %remises of any forest6!ased ind#stry or forest %rod#ce dealer to ins%ect any forest %rod#ce %laced or fo#nd on the %remises to confirm that the %rovisions of any license in res%ect thereof are violatedE BcC take all reasona!le ste%s to %revent the commission of an offence #nder the ActE and BdC where >#alified to do so) administer oaths and take sworn testimony for the %#r%oses of an investigation cond#cted #nder the Act.
7
An officer of the *ervice !elonging to the disci%lined offices cadre may !e a#thorised to #se s#ch firearms as may !e necessary for service to carry o#t its f#nctions #nder the Act. ": The third level of enforcement of the Act is at the %#!lic level. +very citiDen of and every resident in 0enya who has reason to !elieve that the %rovisions of the Act have !een) are !eing) or are a!o#t to !e violated) may %etition the 9igh (o#rt for the following orders) namely; BaC a declaration that the %rovisions of the Act have !een) is !eing) or is a!o#t to !e contravenedE B!C an in?#nction restraining any s%ecified %erson from carrying o#t s#ch a contraventionE
BcC a writ of mandam#s against any officer or %erson who has failed to %erform any
"
I#id, *ection 3:B&C. I#id, *ection 3:B-C. I#id, *ection 3&
":
d#ty im%osed !y or #nder the ActE and

BdC any remedy at law or in e>#ity for %reventing or enforcing the %rovisions of the
Act."& The /inister is em%owered) on the recommendation of the $oard) to make r#les for any matter which is necessary or ex%edient for carrying o#t or giving effect to the Act. These incl#de; BaC controlling the harvesting) collection) sale of and dis%osal of forest %rod#ceE B!C reg#lating the #se and occ#%ation of *tate forestland for residence) c#ltivation) graDing) c#lt#ral activities) etcE BcC reg#lating the felling) working and removal of forest %rod#ce in areas where trees may !e felled or removedE BdC reg#lating entry into a nat#re reserveE BeC %roviding for conditions of administration and management of forests and forestryE BfC reg#lating the esta!lishment of forest6 !ased ind#stryE BgC %oviding for meas#res that enhance comm#nity %artici%ation in the conservation and management of forests at the local levelE BhC %roviding for the esta!lishment of new forest areasE and BiC %rescri!ing the manner of nomination of re%resentatives of forest associations to forest conservation committees. "Another s#!?ect that the /inister is em%owered to reg#late thro#gh s#!sidiary legislation is the %rod#ction) trans%ortation and marketing of charcoal. The Act) therefore) legitimiDes charcoal as a legal forest %rod#ct whose %rod#ction and marketing m#st !e streamlined and %romoted on a s#staina!le !asis d#e to its %otential to degrade forests and the environment. Fario#s offences are created and %enalties im%osed !y the Act. *ection 3- lists a n#m!er of activities that are %rohi!ited in *tate) local a#thority or %rovisional forests) exce%t #nder the
%rovisions of a licence) %ermit or management agreement. These are the same activities that are %rohi!ited in a forest area or central forest #nder section "B&C BaC of the %re6-::3 stat#te. The %enalty for carrying o#t any of these activities contrary to the %rovisions of the Act is a fine of not less than 3:)::: shillings or im%risonment for the term of not less than six months) or !oth s#ch fine and im%risonment."4 Unlawf#l affixing of any marks #%on any forest %rod#ceE altering) defacing or removing any stam%) licence) %ermit or other doc#ment lawf#lly iss#ed #nder the ActE im%ersonating
"&
I#id, *ection 3" I#id, section 37. I#id, section 3-.
"-
"4
em%loyees of the *ervice !y wearing any #niform or %art thereof or any !adge iss#ed !y the *erviceE or co#nterfeiting any licence or other doc#ment %#r%orting it to !e gen#inely iss#ed #nder the Act are all offences %#nisha!le with a fine of not less than -)::: shillings or im%risonment for at least three years) or !oth s#ch fine and im%risonment. "5 The severest offence #nder the Act is committed !y any %erson who) in any forest area; aC introd#ces any exotic genetic material or invasive %lants witho#t a#thority from the *erviceE !C d#m%s any solid) li>#id) toxic or other wastesE cC grows any %lant from which narcotic dr#gs can !e extractedE or dC extracts) removes or ca#ses to !e removed) any tree) shr#! or %art thereof for ex%ort. *#ch %erson is lia!le on conviction to a fine of at least 4 million shillings or im%risonment for at least ten years) or to !oth s#ch fine and im%risonment. "3 Other offences incl#de !reach or fail#re to com%ly with the %rovisions of the Act) any terms or
conditions of a licence) or any lawf#l re>#irements or demand made or given !y a forest officerE o!str#ction of a %erson in the exec#tion of his %owers or d#ties #nder the ActE making or !eing fo#nd in %ossession of charcoal in a state) local a#thority or %rovisional forestE wilf#lly or malicio#sly setting fire to any %rivate) %rovisional) local a#thority or *tate forestE o%erating a sawmill in a manner contrary to r#les #nder the ActE and the ca%t#ring or killing or setting any tra% or snare for the %#r%ose of catching any animal witho#t or contrary to the conditions of a valid licence or %ermit iss#ed #nder the 1ildlife B(onservation and /anagementC Act. Penalties range from a fine of at least 3:)::: shillings to 3::)::: shillings or im%risonment for a term of not less than one year to at least three years or !oth s#ch fines and terms of im%risonment. "' The general %enalty for any offence #nder the Act for which no s%ecific %enalty is %rovided is a fine of not less than &:)::: shillings or im%risonment for not more than three months. " Altho#gh the -::3 Act %rovides a more com%rehensive legal framework for forestry conservation than the %revio#s one) there are nota!le challenges to fores; conservation that are not ade>#ately addressed. These challenges o#tstri% the %ossi!le gains that may arise from the strict legal regime %rovided !y the Act. The first challenge arises from the relationshi% !etween land ten#re and forestry management. The vario#s %ro%erty regimes in force affect forest conservation and the s#staina!le #tilisation of forest reso#rces in several ways) incl#ding !eing motivating or de6motivating factors for
"5
I#id, section 34.
"3
l#id, section 35B"C. I#id, sections 35BlC6B5C. l#id, section 3 .
"'
"
conservation. The second challenge is the growing %o%#lation %ress#re and the attendant com%eting economic needs. Press#re to convert %ortions of land #nder forest into areas of settlement and agric#lt#re has !een evident in several %arts of the co#ntry. $esides) %overty has !ro#ght to the fore the challenge of the o%%ort#nity cost inc#rred in conservation against the ex%loitation of the forests for economic s#rvival. These challenges are not addressed !y the legal regime) tho#gh it is a%%arent that they have led to de%letion of forests with serio#s conse>#ences to the ecosystems and their nat#ral f#nctions. Ot&e Le$%slat%on Affe!t%n$ Fo est ' The a!ove legal regime does not cover the management of forests in their totality. Other existing legislation has im%acts on the administration and management of forests) this !eing) in most cases) incidental to the core o!?ect of legislation. The (hiefs Act em%owers any chief to iss#e) from time to time) orders to !e o!eyed !y ;he %ersons residing or !eing within the local limits of his ?#risdiction for) inter alia, reg#lating the c#tting of tim!er and %rohi!iting the wastef#l destr#ction of trees."" This %ower is exercised in relation to land that is not declared a forest area) !e it *tate)
local government or %rovisional forests. The 1ildlife B(onservation and /anagementC Act not only defines wildlife to incl#de flora) !#t its *ection &3 em%owers the /inister to declare s%ecial areas) known as %rotection areas) within national %arks) game reserves and local sanct#aries for ens#ring the sec#rity of animal or vegeta!le life or for %reservation of the ha!itat and ecology thereof. "7 Under s#ch orders) the /inister may %rohi!it or reg#late activities in s#ch areas) there!y affording %rotection to the tree cover of forest in s#ch %arks) reserves or sanct#aries. F#rther) in &77&) the 0enya 1ildlife *ervice B01*C signed with the then Forest De%artment a /emorand#m of Understanding for the ?oint management of selected forests) with a d#ration of -3 years. The /oU aims %rimarily at the conservation of !iological diversity in 0enya and the maintenance of the f#nctioning of ecological %rocesses s#ch as water catchment in forested areas. /anagement is !ased on ?ointly %re%ared and a%%roved management %lans. Forests #nder the /oU were selected on the !asis of their richness in wildlife) their %otential for to#rism) and the occ#rrence of damage !y wild animals to ad?acent %lantations and agric#lt#re. Forest to#rism is to !e develo%ed !y the 01* and the reven#es generated are to !e invested in forest conservation. ,and #nder the /oU incl#des forest reserve) national %arks) national reserves and
"" (ha%ter "7 (ha%ter
&-") ,aws of 0enya B.evised edition) &77-C) section &:. 4 ') ,aws of 0enya B.evised +dition) &77-C.
sanct#ary. 7: The /oU forests incl#de; the A!erdares) /o#nt 0enya) 2amanga 9ills) 2g#r#mani@,oita)
2gong 9ills) /a# Forest) 0akamega) Ara!#ko *okoke) *hima 9ills) /o#nt +lgon) /o#nt 0#lal) /arsa!it) (hy#l#) 2yam!ene) (herangani) and Tinderet. 7& The im%lementation of the /oU has !een %romoted thro#gh the a%%ointment of a senior officer res%onsi!le for the /oU within each instit#tion) and the creation of a secretariat. One of the main foc#ses of the secretariat has !een the esta!lishment of ?oint management #nits at individ#al forest level. Goint management activities incl#de !iodiversity conservation) law enforcement) fire management) comm#nity %artici%ation) %ro!lem animal control) eco6to#rism develo%ment) management %lanning) research co6ordination) monitoring and training. 7The Anti>#ities and /on#ments Act74 %rovides for the gaDettement of national mon#ments) incl#ding %rotected areas) some of which have areas of indigeno#s forest cover. Forests occ#rring within the gaDetted national mon#ments) s#ch as <edi .#ins) 0itale .iverine forest) and the coastal 0aya forests in 0wale District are managed !y the 2ational /#se#ms of 0enya. The /inister is em%owered to make r#les for) inter alia, reg#lating access to and management of s#ch mon#ments or %rotected areas.75 Altho#gh the essence of the Agric#lt#re Act 73 is the %romotion and maintenance of a sta!le agric#lt#re) the %rovisions of the Act dealing with the conservation of soil and the %revention of the destr#ction of vegetation are of s%ecial relevance to indigeno#s forest conservation. 7' The Act em%owers the /inister to make) and a#thorise the District Agric#lt#ral (ommittees and the Provincial Agric#lt#ral $oards to enforce land %reservation r#les) which may control the clearing
of land for c#ltivation and other destr#ction of vegetation) or re>#ire the afforestation or reafforestation of land and the %rotection of slo%es and catchment areas. 7 The framework +nvironmental /anagement and (o6ordination Act 7" also has vario#s %rovisions that im%act the conservation and management of forests. Under section 55) the 2ational +nvironment /anagement A#thority is re>#ired) in cons#ltation with the relevant lead agencies) to develo%) iss#e and im%lement reg#lations) %roced#res) g#idelines and meas#res for the
7: 1ass 7& I#id, 7- I#id. 74 (ha%ter 75 I#id,
M&773; "N.
A%%endix ID.
-&3) ,aws of 0enya B.evised +dition) &77-C.
section 5'. 4&") ,aws of 0enya B.evised +dition) &7"'C.
73 (ha%ter 7' I#id, 7
sections 5" 6 35.
I#id, sections -3)4- K 5". 2o. " of &777.
7" Act
s#staina!le #se of hill sides) hill to%s) mo#ntain areas and forests. *#ch reg#lations) g#idelines) %roced#res and meas#res m#st !e aimed at the control of harvesting of forests and any nat#ral reso#rces located in or on a hill side) hill to% or mo#ntain area so as to %rotect water catchment areas) %revent soil erosion and reg#late h#man settlement. The relevant lead agency in the case of forests is) a%%arently) the 0enya Forest *ervice. In addition) every District +nvironment (ommittee is re>#ired to identify the hilly and mo#ntaino#s areas #nder their ?#risdiction) which are at risk from environmental degradation and
s%ecify which ones m#st !e targeted for reforestation and afforestation. 77 F#rther) the Director <eneral of the 2ational +nvironment /anagement A#thority is em%owered) after cons#ltation with the (hief (onservator of Forests Bnow) the Director of 0enya Forest *erviceC) to enter into contract#al arrangements with %rivate land owners on s#ch terms and conditions as may !e m#t#ally agreed for %#r%oses of registering their land as forest land. In res%ect of any forest or mo#ntain area) the Director <eneral is not allowed to take any action %re?#dicial to the traditional interest of local comm#nities c#stomarily resident within or aro#nd s#ch forest or mo#ntain area.&:: The A#thority is also re>#ired) in cons#ltation with the relevant lead agencies) to %romote the #se of renewa!le so#rces of energy !y) inter alia, taking meas#res to enco#rage the %lanting of trees and woodlots !y individ#al land #sers) instit#tions and !y comm#nity gro#%s. &:& F#rthermore) the /inister is em%owered) in cons#ltation with the relevant lead agencies) and !y notice in the <aDette) to declare any area of land) sea) lake or river to !e a %rotected nat#ral environment for the %#r%ose of %romoting and %reserving s%ecific ecological %rocesses) nat#ral environment systems) nat#ral !ea#ty or s%ecies of indigeno#s wildlife or the %reservation of !iological diversity in general. The A#thority is re>#ired) in cons#ltation with the relevant lead agencies) to iss#e g#idelines and %rescri!e meas#res for the management and %rotection of areas so declared to !e %rotected nat#ral environments. &:- The /inister may also declare areas to !e %rotected coastal Dones) there!y !ringing the nat#ral flora thereof) s#ch as mangroves and marshes) #nder s%ecial %rotection.&:4
In the light of these detailed %rovisions of the framework stat#te) the logical ex%ectation was that the new Forests Act) !eing the later in time) wo#ld seek to harmonise and synchronise !oth the instit#tional mandates and %roced#res for forestry management within the framework of s#staina!le develo%ment. The new Forests Act fails to !ring a!o#t this harmony with the res#lt
77 I#id,
sections 53 K 5'. section 5". section 57. section 35. section 33.
&:: I#id, &:& I#id, &:- I#id, &:4 I#id,
that there are !o#nd to !e conflicts of instit#tional mandates !etween the 2ational +nvironment /anagement A#thority and the Forestry *ervice. For instance) how the Forestry (ommittees will !e linked with the Provincial or District +nvironment (ommittees esta!lished !y the framework stat#te is !o#nd to !e %ro!lematic in the new set #% of forestry management. $esides) the 2ational +nvironment /anagement A#thority B2+/AC is mandated #nder the framework stat#te to %rovide overall coordination of all matters relating to the environment and to !e the %rinci%al instr#ment of the government in the o%erationalisation of all %olicies and %rogrammes relating to the environment. 9owever) the new Forests Act fails to clarify 2+/A8s role in) for instance) the creation of forests) the variation of !o#ndaries or revocation of *tate or local a#thority forests) or exchange of forest areas with %rivate lands) des%ite the fact these actions have f#ndamental
environmental im%lications. F#rthermore) the new Forests Act fails to ado%t and entrench the %rinci%les of environmental management en#nciated !y the framework stat#te as if s#staina!le forestry management can !e delinked from environmental management. Princi%les s#ch as %#!lic %artici%ation in the develo%ment of %olicies) %lans and %rocesses for environmental management or intergenerational and intragenerational e>#ity have direct relevance to forest management. Programmes s#ch as the 2ational +nvironmental Action Plans) the Provincial +nvironmental Action Plans as well as the District +nvironmental Action Plans and remedies s#ch as environmental restoration and conservation orders and easements that are mandated !y the framework stat#te will have direct im%acts on the im%lementation of the new Forests Act and need to !e acco#nted for !y any sectoral environmental legislation in order to create a%%ro%riate synergies and avoid or red#ce conflicts of instit#tional mandates. Concluding emarks
The legal regime in %lace cannot) per &e, halt and reverse the r#nway state of deforestation and degradation facing the forestry sector. Des%ite the fact that the new legislation goes a long way to esta!lish a %artici%atory and colla!orative regime on the conservation and management of the co#ntry8s forests) the government will have to ado%t strict management meas#res in the enforcement of the legislation. Policies have to !e form#lated to ease the %ress#re exerted on the forests in terms of energy s#%%ly for !oth r#ral and #r!an %o%#lations) agric#lt#re and h#man settlements. The r#ral comm#nities) who have !een targeted as the ma?or stakeholders in the
new regime m#st !e sensitiDed a!o#t the conse>#ential economic and o%%ort#nity costs of the fail#re to manage) conserve and Utilise forests and forest %rod#ce in a s#staina!le manner. Failing these) the new legislation will not halt deforestation and im%rove on the conservation and overall management of the forestry sector.
Chapter 11
Land *enure and Sustaina"le Environmental )anagement in -en&a

Introduction ,and is a very im%ortant reso#rce in 0enya as it is the !ase #%on which many activities s#ch as agric#lt#re) %astoralism) and wildlife conservation are carried o#t. At the international law level) land is the !asis for a *tate8s sovereignty over its territory. Indeed) an individ#al *tate8s management of its environmental reso#rces is an incident of the notion of %ermanent sovereignty over nat#ral reso#rces.& 0enya lies astride the e>#ator and is sit#ated on the +ast African highlands with a total area of aro#nd --3)::: s>#are miles.- It has wide differences in the amo#nt) relia!ility and seasonal distri!#tion of rain. There is also great elevation variation) which has %rod#ced regions with shar%ly contrasting environments. 4 The terrain consists of low %lains rising to the central
highlands) which are !isected !y the .ift Falley) leading on to the fertile western %latea#. Forest vegetation is confined to areas that are 3)::: feet a!ove sea level while savannah) com%rising tall grass with scattered trees and shr#!s or acacia trees) are a characteristic of the %latea# area to the so#th and so#th west of 0enya. The most common vegetation) however) is the dry !#shland and thornscr#!.5 0enya %ossesses a very limited reso#rce !ase com%ared to some African co#ntriesE it lacks ma?or ex%loita!le mineral reso#rces) and ara!le land is scarce. The main economic activities are !ased on the %rimary sector) %redominantly agric#lt#re) 3 which is !oth a so#rce of food as well as a
& *ee
for exam%le) <.A. .es. &":4 BOFIIC) ermanent -overeignty over 1at%ral 9e&o%rce&, &5 Decem!er &7'-) re%rinted
in -&.,./. --4 B&7'4C K *ands M-::4;&"' ff?.

- O<,ord 4 *ee 5 *ee
$tla& ,or Ea&t $,rica B&7' C.
+dwards M&73'N. Tra%nell K ,angdale6$rown M&7'-; 7-N. *ee also <riffiths M&7'-; 7N) noting that most of it) however) has extremely arid
climate with too little rain to s#stain any form of agric#lt#re.

3 For
the %#r%oses of this cha%ter) the term =agric#lt#re= denotes c#ltivation and livestock kee%ing. 1e #se the terms =settled
agric#lt#re= when we disc#ss areas where livestock kee%ing is %ractised alongside c#ltivation. This disting#ishes Dero6graDing from nomadic %astoralism) a distinction that has significant im%lications for o#r %rescri%tions.
reven#e earner. The co#ntry can !e divided !roadly into three land categories !ased on agric#lt#ral %rod#ction and the amo#nt of rainfall received.' These are the high) medi#m and low %otential areas. Over A@ %er cent of the h#man %o%#lation live in the high %otential area to the so#th and
west. /#ch of the northern and eastern 0enya is too dry to s#%%ort any agric#lt#re. 0enya is) however) endowed with great fa#nal and floral diversity) incl#ding forests) woodlands) swam%s) grasslands) %lant and animal s%ecies. <rowth in %o%#lation and climate change have led to environmental degradation owing to over6c#ltivation) over6graDing and the clearing of forestlands and cro% %lantation areas to make way for #r!an ex%ansion. F#rther) %o%#lation growth has o#tstri%%ed the agric#lt#ral ca%acity of the land in well watered areas and res#lted in migration to drier low agric#lt#ral %otential areas designated in official %olicy as arid and semi6arid areas BA*A,sC. .emote sensing analysis shows that land #se change has !een wides%read and remarka!le in 0enya !etween &7 3 and -::3. These land #se changes have affected the com%osition and distri!#tion of flora and fa#na across the landsca%e. As a conse>#ence) all ty%es of nat#ral ecosysterris have shr#nk) leading to ha!itat and s%ecies8 loss as well as changing the interactions !etween local comm#nities and their environment. Additionally) the existence of m#lti%le land ten#re ty%es and increased conversion of land from one ten#re ty%e to another witho#t regard for ecological im%eratives has res#lted in loss of ha!itat for wildlife and deforestation. For instance) a!o#t - %er cent of 0enya8s land area is covered !y closed cano%y forest B&.-5 million hectaresC com%ared to the %otential for &- %er cent B'." million hectaresC that may have !een forested !efore h#man clearance !egan and since
gaDettement !egan in the &7::s. Official registers show that more than -7:)::: hectares have !een withdrawn from the forest estate." It is within this context that this cha%ter analyses the im%lications of land ten#re for s#staina!le environmental management. *ection - looks at the different land ten#re ty%es and their interface with s#staina!le environmental management) %ro!lematiDing the incongr#ence !etween land ten#re and environmental reso#rces and environmental im%eratives in land ad?#dication and registration. *ection 4 looks at land ten#re and s#staina!le reso#rce management. It also analyses the %rovisions of the +nvironmental /anagement and (o6ordination Act B+/(AC that are relevant for land ten#re. *ection 5 com%rises the concl#sion and %ro%osals on the way in which land ten#re can !e harnessed to %romote s#staina!le develo%ment im%eratives. Land *enure and Environmental Sustaina"ilit& in -en&a
' *ee
.e%#!lic of 0enya) Develo%ment Plan &7756&7R M&774N.
*ee) for exam%le) <riffiths &%pra note 5.

" .e%ort
of the *trategic +nvironmental Assessment of the 0enya Forests Act) -::3) Pre%ared for the 0enya <overnment and the
1orld $ank !y F..@ID,@ /atrix Develo%ment (ons#ltants) 2ovem!er -::' BOn file with the a#thorC.
The term land ten#re has a wide connotation !oth in African c#stomary laws as well as #nder modern systems of law.7 It defines the methods !y which individ#als or gro#%s ac>#ire) hold) transfer or transmit %ro%erty rights in land.&: Its s#!?ect matter incl#des the s#rface of the soil) the things on the soil en?oyed as %art of the land s#ch as the air) water and growing trees or artificially fixed attachments s#ch as ho#ses) !#ildings and other str#ct#res. It also encom%asses interests or rights in the land) s#ch as the right to collect things or h#nt on the land. &&
,and ten#re systems vary from comm#nity to comm#nity and are infl#enced !y the #ni>#e historical develo%ment of each %olitical gro#%ing and conse>#ent variation of legal and instit#tional str#ct#res.&- A search for the ten#re system o%erative in a %artic#lar society is an attem%t to answer the tri%artite >#estion as to who holds what intere&t in what land.G0. ,and ten#re) th#s) refers to %ossession or holding of the rights associated with each %arcel of land. It ordinarily has at least three dimensions) namely; %eo%le) time and s%ace. In so far as %eo%le are8concerned) it is the interaction !etween different %ersons that determines the exact limits of the rights any one %erson has to a given %arcel of land. These rights are not a!sol#te) since there are r#les that govern the manner in which the %erson with ten#re is to Utilise their rights. 1hile the time as%ect of ten#re determines the d#ration of one8s rights to land) s%atial dimensions limit the %hysical area over which the rights are to !e exercised. The s%atial dimension of ten#re may !e diffic#lt to delineate in excl#sive terms since different %ersons may exercise different rights over the same s%ace at different times. &5 Ten#re systems re%resent relations of %eo%le in society with res%ect to the essential and often scarce land. They are c#lt#re6s%ecific and dynamic) changing as the social) economic and %olitical sit#ations of gro#%s change.&3 Under !oth African and western systems of land holding) for instance) ownershi% can !e s#!6divided and lesser interests can and are fre>#ently held !y different %ersons) sim#ltaneo#sly. 9owever) >#estions have arisen as to whether the notion of legal rights as cl#sters of claims) %owers and imm#nities &' have a %lace in %rimitive or %reca%italist societies. Indeed) while most African c#stomary laws recognised a meas#re of
individ#al control over the !road interests that were hosted !y land) %aramo#nt or allodial title
7 *ee)
for exam%le) $ennett M&7"3N K /ac(ormack M&7"4;&N. for exam%le) Ogolla K /#ga!e M&77'; "3N.
&: ;Z*ee) && *ee) &- -ee, &4 *ee
for exam%le) Ollenn# M&7'-N. for exam%le) (rocom!e M&7'"NE O?wang M&77-N. Okoth6Ogendo M&77&N. K .iddell M&7"3N.
&5 Fortmann &3 *ee
,awry M&77:NE *ee also Ogolla K /#ga!e) &%pra note &:. M&7--N.
&' 9ohfeld
Internal Teaching Use Only 4::
was %erceived as vested a!ove society and whatever rights any one %erson had to the land were s#!ordinate to the entire comm#nity8s rights. & The saying !y the <hanaian (hief) 2ana Ofori; =I conceive that land !elongs to a vast ma?ority of whom many are dead) a few are living and co#ntless host are still #n!orn=) s#ccinctly ca%t#res the conce%tion of land ownershi% !y a ma?ority of African comm#nities.&" (olonialism had %rofo#nd effects on African ten#re systems !y introd#cing the notions of individ#al and *tate ownershi% of land in a !id to %romote economic develo%ment. &7 In 0enya) the Torrens title system !ased on stat#tory registration and ownershi% of individ#ally demarcated %lots was introd#ced to re%lace %re6existing c#stomary notions of land ownershi%. -: $entsi6 +nchill notes that the de,ect& of African systems of land ten#re have arisen from the fact that these systems have !een left to informally ada%t to changed circ#mstances. -& Trans%osed to the realm o, environmental re&o%rce&, land ten%re de,ine& the range o, %ersons controlling and managing reso#rces fo#nd on that land and the form of land management to a%%ly to the land in >#estion. It also determines who may %artici%ate in reso#rce extraction and to what
degree.-- *ince land as an ecosystem and ha!itat %lays host to n#mero#s s%ecies) the holder of any >#ant#m of rights in land has a role to %lay in the management of environmental reso#rces therein. The >#estions; =who holdsL= =what interestL= =in what landL= then !ecome essentially ecological >#estions and can !e %osed as =what effects has the holder of rights O over %ro%erty J on s%ecies H that ordinarily inha!its and ecosystem JL= <iven that environmental reso#rces s#ch as wildlife) forests) minerals and water are linked to land) land ten#re im%acts significantly on the management of the reso#rces. /ediating the rights of different %ro%erty owners and different forms of ownershi% of land is a critical com%onent of s#staina!le environmental management.-4 ;istorical !erspective In terms of environmental conservation and management) the colonisation %rocesses translated themselves into two kinds of %ress#res on reso#rces) namely) %o%#lation and %rod#ction. -5 The former consisted of large n#m!ers of %eo%le concentrated in small areas while the latter entailed
&
*ee /aini M&7' NE Ollenn#) &%pra note &&. Ollenn#) &%pra note &&. Fortmann K .iddell) &%pra note &5. M&7"7; 'N. The system gained its name from its originator *ir .o!ert Torrens. M&7'';&&56&47N
&" *ee &7 *ee
-: Okoth6Ogendo -& $entsi6+nchilI -- *ee
d# *a#ssay K U2FAO M&7" N. M-::-N.
-4 0ameri6/!ote -5 *ee
generally) /artineD6Alier M&77&; -4N.
Internal Teaching Use Only 4:&
the extraction of reso#rces from the colony !y the colonisers.
In most traditional societies) reso#rces were #sed according to collective comm#nal r#les) which em%hasised elements of s#staina!ility and %reservation for f#t#re generations. -3 (ollective arrangements) #s#ally made at the comm#nity level) reg#lated access to and #se of s#ch reso#rces.-' The organisation of the comm#nity revolved aro#nd %arties linked to each other !y kinshi% or reci%rocation. Ty%ically) these wo#ld !e the n#clear or extended family reg#lating %rod#ction of reso#rces on c#ltivated land and the clan or village controlling the territory from which reso#rces are foraged Bforests) fishing areas) water holes and graDing landsC !y all families.- In other cases) diverse forms of kinshi% gro#%s and lineage existed as forms of organisation. In either case) the rights of control over the reso#rces were vested in the %olitical a#thority of the #nit of the comm#nity and derived directly from sovereignty over a given area in which the reso#rces are located.-" The rights of the mem!ers were %redicated on mem!ershi% to the comm#nity and their content de%ended on the stat#s of a %artic#lar mem!er. The %rimary res%onsi!ilities of the heads of these gro#%s were to ens#re access to reso#rces for all mem!ers of the comm#nity and the %reservation of the land and its reso#rces for %osterity. It was also their res%onsi!ility to manage the excl#sion of o#tsiders as agreed to !y the comm#nity mem!ers) to %rom#lgate new r#les in the face of changes) and to solve conflicts. -7 For most of the comm#nities in %re6colonial 0enya) ownershi% of land was comm#nal) to some extent) and governed !y c#stomary notions of ownershi%. 4: +ven where families had rights
to #se a %artic#lar %iece of land) their rights were not %erceived as a!sol#te. The a#tonomy of the individ#al in land matters was limited and families and gro#%s shared com%onents of %ro%erty.4& F#rther) most 0enyan comm#nities recognised the need to %ass on land and other nat#ral reso#rces to f#t#re generations in as wholesome a state as %ossi!le. (#rrent generations considered themselves as tr#stees for these f#t#re generations rather than as a!sol#te owners.4-3 +riksen
et al M&77';&77N noting that land encom%asses a range of reso#rces whose sco%e and infl#ence transcend
%rivate %ro%erty and also that while stat#tory law regards land as a single reso#rce to which there are a variety of rights s#ch as #se and alienation) c#stomary law recognises a !#ndle of aggregated rights to the many nat#ral reso#rces associated with land) which rights may a%%ly to s%ecific fodder) trees) gro#nd water) %artic#lar forage area of s%ecies and may vary according to season and conditions.
-' *ee<owdyM&775;"5N. -
*ee) for exam%le) <adgil M&7"7; -5:6-33N doc#menting the ex%eriences of Indians with res%ect to forests. for exam%le) Ogolla K /#ga!e) &%pra note &:. .ichardson M&774;&&5N. for exam%le) +lias M&73'N for a disc#ssion on the general notions of ten#re in different African societies. It
-" *ee) -7 *ee 4:*ee)
is instr#ctive to note that c#stomary ten#re systems are as diverse as the ethnic comm#nities in 0enya and that even within the same ethnic comm#nity differences are discerni!le at local levels. This is an incidence of the flexi!ility of those ten#re systems) which makes them ca%a!le of res%onding to changes occ#rring aro#nd them. *ee also A%%endix 3.
4& *ee) 4- *ee)
for exam%le) 0enyatta M&753NE Osolo62as#! M&7 N. for exam%le) 0enyatta M&7'5NE 2yerere M&7'"; ':N
Internal Teaching Use Only 4:-
The native 0enyans had) thro#gh ex%erience) learnt to ada%t to the ecological changes to fend for their %o%#lations in dry weather and store #% food for s#ch lean times. The agric#lt#ralists had learnt the !enefits of %ractising shifting c#ltivation !y leaving land fallow in %re%aration for the next %lanting season while the %astoral comm#nities also left their drier graDing lands for greener
%ast#res to allow for re6growth) witho#t necessarily a!andoning f#t#re claims to s#ch lands. Pragmatic controls %romoting the conservative #se of reso#rces ens#red a steady s#%%ly of those reso#rces. For instance) dead wood as o%%osed to live trees wo#ld !e #sed for f#el wood) the latter !eing c#t only for central %oles for the constr#ction of ho#ses and when land was cleared for agric#lt#ral %#r%oses.44 ,and ten#re for %re6colonial societies closely a%%roximated to their modes of %rod#ction. *imilarly) the %olitical a#thority controlling access to the reso#rces for the comm#nity de%ended largely on land #se ty%e and social organisation. For instance) %astoralists s#ch as the /aasai generally held their land comm#nally) with no one %erson having a!sol#te rights to the %ro%erty. <raDing was o%en to all and ad?#sted according to the needs of herd owners who arranged %atterns of rotational or s#ccessive #se. Agric#lt#ral comm#nities like the 0ik#y# and the 0am!a) on the other hand) %redicated their claims to land on first clearing and c#ltivation. The smaller #nits of the comm#nity th#s controlled c#ltivated land !#t their graDing lands were almost always comm#nal.45 It has) for instance) !een contended that among agric#lt#ral comm#nities) c#stomary ten#re recogniDed rights analogo#s to %rivate %ro%erty even !efore colonialism. 43 These rights accr#ed to individ#als and families !y dint of their investment of la!o#r in harnessing) #tilising and maintaining the reso#rces thro#gh c#ltivation.4' Tho#gh !ased on land) these rights did not incl#de the ownershi% of land) which remained #nder the a#thority of the larger comm#nity.
The a!sence of legal title as #nderstood !y the $ritish facilitated the introd#ction of the conce%t of sovereign ownershi% of land and reso#rces thro#gh the act of *tate doctrine initially to land not in act#al occ#%ation of the natives) !#t event#ally to all land in the Protectorate. 4 As /ari /ats#da arg#es with res%ect to colonialism in 9awaii) the introd#ction of so%histicated %rivate %ro%erty rights conflicted with the =#nso%histicated) #nitary and %hysicalist conce%tion of ownershi%=.4" The colonisers th#s %layed on the %eo%le8s ignorance !y asking them to claim
44 *ee 45 *ee 43 *ee)
*he%herd M&77&N. $ennett M&7"5C. for exam%le) /igot6Adholla et al M&77&; &33NE /igot6Adholla M&775N arg#ing that African systems of land
ten#re have !een flexi!le and res%onsive to changing economic conditions and that they evolve on their own from comm#nal to %rivate in the face of increased %o%#lation and commercialisation.
4' -ee 4
for exam%le) <l#ckman M&7'3NE +lias M&73'NE Tiffen et al M&775N.
-ee for exam%le .awcliffe M&735;&76-:N o!serving that the differences !etween the conce%tions of %ro%erty for the +#ro%eans
and the Africans facilitated the #nscr#%#lo#s ac>#isition of land from the latter !y the former.
4" -ee
/ats#da M&7""N Bdisc#ssing 9awaii %eo%le8s conce%tion of %ro%ertyCE Dandekar MI7':N.
Internal Teaching Use Only 4:4
rights that were alien to them witho#t ed#cating them on the im%lications of those rights. /any comm#nities resisted these changes and claims to land #nder the introd#ced %ro%erty rights d#ring the colonial %eriod and the %eriod immediately after inde%endence remained the excl#sive %reserve of $ritish colonialists and a few elites. 47 1ith the introd#ction of %rivate rights to land) the individ#al rather than the comm#nity !ecame the focal %oint of environmental reso#rce h#s!andry. Increased %o%#lation mo!ility from r#ral areas to #r!an centres co#%led with the desta!ilising effects of colonialism led to the
!reakdown of kinshi% and familial ties. It also #ndermined the traditional str#ct#res of a#thority that %oliced the #se of reso#rces !y c#rrent generations to ens#re that the rights of f#t#re generations were safeg#arded.5: /oreover) increased %overty affected the %rominence %revio#sly given to !e>#est val#e of !iological diversity conservation as c#rrent generations faced greater challenges trying to eke o#t !asic needs for s#rvival from the nat#ral reso#rces. The history of land rights in 0enya exem%lifies a %rocess of alienation and dis%lacement of native 0enyans from their lands into reserves and the systematic ac>#isition of %rime land for settler occ#%ation and its designation as the 1hite 9ighlands. Discriminatory %olicies were then set in motion to facilitate the ex%loitation of land reso#rces and the instit#tionalisation of colonial agric#lt#re and the maintenance of a d#al land ten#re system. Ac>#isition of land rights for settlers was mainly done thro#gh %olitical %rocesses that were followed !y legal instr#ments) giving the %olitical acts the re>#isite !inding force. (olonial land %olicy was th#s not systematic. Decisions were made in the face of day6to6day %ro!lems) whose resol#tion demanded swift actions. This seems to have !een the origin of the instr#mentalist tradition in %ro%erty law in 0enya.5& 3wnership of Land The land ten#re systems o%erative in 0enya have !een characterised as %rivate@ ndivid#al@modern) comm#nal@c#stomary and %#!lic@state@government. 5- These systems overla% in some cases) es%ecially where the ten#re reform %rocess is incom%lete) as is the case in the tr#st land awaiting registration where individ#als have rights over land legally vested in local co#nty co#ncils as
tr#stees. ,and in 0enya is owned !y fo#r entities; individ#als) the *tate) local a#thorities and comm#nities.
47 -ee 5: -ee
generally *hi%ton M&7""; 7&N. Okoth6Ogendo) &%pra note &4. dealing with land in 0enya have rarely !een systematic from colonial times to date. In most cases) g#idelines are
5& Policies
circ#lated to relevant de%artments as working doc#ments and later given legal a#thority after) they have !een in o%eration for a considera!le %eriod of time. The s#!se>#ent legal instr#ment validates all actions %revio#sly taken %#rs#ant to the g#idelines. This leaves room for administrative a!#se of %ower.
5- *ee)
for exam%le) Ondiege M&77';&77N.
Privately6owned land com%rised ' %er cent of the total land area in &77: while government land Bformerly (rown landsC was a!o#t -: %er cent and incl#ded national %arks) forest land) alienated and #nalienated land.54 The most extensive ten#re ty%e) however) is tr#st land Bformerly native areasC) awaiting small holder registration that will effectively !ring them #nder the %rivate@modern ten#re system. They com%rised '5 %ercent of total land area in &77: BTa!le &&.&C.
Table 77,7: Lan* ten+ e %n Ken'a9 7:C= an* 7::= 3sA /#4
T'(e of ten+ e Go)e n#ent Lan* 7:C= 77;9C;C 7::= 77>9=>C
7::= 3D4 7:,:
Forest .eserves 7)&-3 7)&&' &.'
Other <overnment .eserves &)-53 &)7 : :.4 Townshi%s &)7&& -)"&& :.3 Alienated ,and 4 ):&4 4")35' '.' Unalienated ,and 45)"3" -")37" 5.7 2ational Parks --)'34 -5):' 5.& O%en 1ater &&): 4 &:)7': &.7 F ee&ol* Lan* ;978B C9;87 7,B *mallholder *chemes 3):&' ')'&3 &.& Other -)&&7 -)&&' :.5 T +st Lan* B2ot for .egistrationC 45)7'3 37)'-3 &:.Forest ):7- ):"5 &.<overnment .eserves 554 57- :.& Townshi%s &)47" &)"&- :.4 Alienated ,and &4)7&3 44)47 3. <ame .eserves 7)-"3 &4)'7& -.5 2ational Parks -)"4- 4)&57 :.3 T +st Lan* BFor *mallholder .egistrationC <6B98<7 8:;98>> >C,6 Already .egistered - )-& - )- 7 5. 2ot yet .egistered 47")&-5 4 :):" '4.3 Total Wate 77968= 77968= 7,: Total a ea BC69><> BC69><> 7==7
54 Alienated
government land set aside for settlement schemes. $y &77:) there were 4:- settlement schemes in 0enya. I#id.
*o#rce; .e%#!lic of 0enya) *tatistical A!stracts) &7"4 and &77:55 3ndividual$Private O#nership Individ#al ownershi% of land ens#es after the %rocess of consolidation and ad?#dication. 53 The
/inister in charge of land affairs has %ower to declare any area a land ad?#dication area following which the entitlements of different %ersons to that land are determined and a doc#ment of title iss#ed. The .egistered ,and Act and the Transfer of Pro%erty Act govern individ#al ownershi% of land in 0enya. $oth stat#tes confer #%on an owner a fee6sim%le estate to the land in >#estion. The .egistered ,and Act a%%lies to the land formerly held #nder c#stomary law) namely native reserves and tr#st land) which has !een registered. It does not a%%ly to land held !y the government5' or land held !y local a#thorities.5 It delimits an individ#al8s or legal entity8s %ro%erty rights to s#ch land after the %rocess of consolidation) ad?#dication and registration. It is im%ortant to note that environmental im%eratives are not taken into acco#nt in these %rocesses. The content of %ro%erty rights one gets #nder it is a!sol#te and can only !e circ#mscri!ed) in theory) in exercise of the *tate8s right of com%#lsory ac>#isition of land for %#!lic %#r%oses after the d#e %rocess o#tlined in *ections 3 and &&" of the (onstit#tion have !een followed. 5" The .egistered ,and Act %rovides for a!sol#te %ro%rietorshi% #nder *ections - and -") which define the >#ant#m of rights that the registered %ro%rietor gets #%on registration as 8a!sol#te ownershi% of land together with all rights and %rivileges !elonging or a%%#rtenant thereto and not lia!le to !e defeated exce%t as %rovided for in *ection 4: of the Act8. *ection 4: lists rights ca%a!le of overriding the rights of an a!sol#te %ro%rietor. It is nota!le that c#stomary rights and
s#staina!le develo%ment of land are not on the list. (#stomary rights are) therefore) not ca%a!le of >#alifying the a!sol#te %ro%rietor8s rights #nless they are recorded in the register. 57 The holder of the a!sol#te %ro%rietorshi% to land has rights to #se and dis%ose of her rights as she %leases s#!?ect to minim#m restrictions. <iven the wide latit#de given to an owner of land #nder this stat#te) the ca%acity of the *tate to effectively %olice all environmental reso#rces in 0enya) es%ecially those on %rivate land) is do#!tf#l. The Transfer of Pro%erty Act was introd#ced into 0enya from India to %rovide for the exercise of fee sim%le rights to land for the incoming settlers. It still governs land in settler and formerly
55 .e%rod#ced 53 *ee
from Ondiege) &%pra note 5-.
(ha%ters -"4 K -"5) ,aws of 0enya. is governed !y the <overnment ,ands Act) (ha%ter -":) ,aws of 0enya.
5' This 5
This is governed !y the Tr#st ,ands Act) (ha%ter -"") ,aws of 0enya. Con&tit%tion o, Kenya B&7"-C. section &&B5C) .egistered ,and Act) (ha%ter 4::) ,aws of 0enya.
5" The 57 *ee
Internal Teaching Use Only 4:'
settler occ#%ied areas) designated d#ring the colonial %eriod as the 1hite 9ighlands. The !#ndle of rights one gets #nder it is the same as what one gets #nder the .egistered ,and Act. Community$4roup O#nership T +st Lan*s A!t The notion of tr#st land is a way of giving recognition to gro#% and native rights. Tr#st land
consists of areas that were occ#%ied !y the natives d#ring the colonial %eriod and which have not !een consolidated) ad?#dicated and registered in individ#als8 or gro#% names and native land that has not !een taken over !y the government. 3: It is governed !y the Tr#st ,ands Act and is vested in local a#thorities designated as co#ncils.3& ,ocal a#thorities or co#nty co#ncils manage all the environmental reso#rces within the tr#st land #nder their ?#risdiction and control the develo%ment of that land. They decide on the occ#%ation and #se of tr#st land for graDing and %ast#ring stock) flocks and herds and can order occ#%ants to red#ce the n#m!ers of their stock) flocks and herds. They also generally reg#late the #se and conservation of these areas.3- (onservation res%onsi!ilities of the (o#ncils incl#de the management of wildlife) water and forest reso#rces. They reg#late the felling or removal of s#ch trees and forest %rod#ce) ens#re that the land is reconditioned and can %rohi!it the occ#%ation of any tr#st land. It is also their d#ty to deal with any matters relating to ten#re to land. 34 1ith res%ect to the occ#%ation) #se) control) inheritance) s#ccession and dis%osal of any tr#st land) every tri!e) gro#%) family and individ#al has all the rights that they en?oy or may en?oy !y virt#e of existing African c#stomary law or any s#!se>#ent modifications thereof. 35 There is an ela!orate %roced#re to !e followed in the event that the government or the (o#nty (o#ncil wants
to set aside tr#st land for %#!lic %#r%oses) th#s %rotecting the rights of residents from ex%ro%riatio witho#t com%ensation.33 Ten#re to tr#st land is increasingly changing from the tr#st stat#s to ownershi% !y individ#als) legally constit#ted gro#%s and the *tate. The im%lications of this change for environmental management are significant since the controls that the (o#ncil can exercise over the #se of the land are eliminated. The a%%lication of c#stomary law is o#sted and the land is removed from the
3: *ee 3& *ee 3- *ee 34 *ee 35 *ee 33 *ee
section &&3) (onstit#tion of 0enya B&7"4C. section &&5) (onstit#tion of 0enya B&7"4C and (ha%ter -"") ,aws of 0enya. section '3) (ha%ter -"") ,aws of 0enya. section '3) (ha%ter -"") ,aws of 0enya. section '7) (ha%ter -"") ,aws of 0enya. generally Part 5) (ha%ter -"") ,aws of 0enya.
am!it of (o#ncil control for conservation and develo%ment %#r%oses. In instances where the *tate or individ#als takeBsC over the ownershi% of the land) access thereto for comm#nities %revio#sly occ#%ying the land is c#rtailed significantly. 3' In areas where comm#nal ownershi% is %erceived as ca%a!le of enco#raging good reso#rce h#s!andry thro#gh the tr#st land system) land has !een %arcelled o#t to gro#%s that do not necessarily have anything in common) to the detriment of the management of environmental reso#rces within those areas. Land 54roup6 *epresentative .ct The .e%ort of the +ast Africa .oyal (ommission of &7346&733) concl#ding the %olicy on land
ten#re in the +ast African Protectorate as 0enya then was) noted that individ#aliDation of land ownershi% sho#ld !e the main aim. It) however) noted that s#ch ownershi% sho#ld not !e confined to individ#als !#t sho#ld also !e extended to gro#%s s#ch as com%anies) co6o%eratives and c#stomary associations of Africans.3 <ro#% or comm#nity ownershi% in 0enya is thro#gh the instit#tion of the gro#% ranch) which is defined as =a demarcated area of rangeland to which a gro#% of %astoralists) who graDe their individ#ally owned herds on it) have official land rights=.3" The gro#% ranch stat#s in 0enya is granted to a gro#% of herders that is shown to have c#stomary rights over the range or %ast#reland in >#estion. The o%erative stat#te in this regard is the ,and B<ro#% .e%resentatives ActC.37 A gro#% for the %#r%oses of the Act is a =tri!e) clan) family or other gro#% of %ersons) whose land #nder recognised c#stomary law !elongs comm#nally to the %ersons who are for the time !eing the mem!ers of the gro#%) together with any %erson of whose land the gro#% is determined to !e the owner= where s#ch %erson has) #nder recogniDed c#stomary law) exercised rights in or over land) which sho#ld !e recognised as ownershi%.': The gro#% gets a certificate of incor%oration) !ecoming a !ody cor%orate with %er%et#al s#ccession s#!?ect to any conditions) limitations or exem%tions noted on the certificate. They) th#s) have ownershi% of the land in >#estion in %er%et#ity and can only cease to !e a gro#% !y the vote of all mem!ers. <ro#% re%resentatives have %owers to s#e and !e s#ed in the cor%orate name) ac>#ire) hold) charge and dis%ose of %ro%erty of any kind and !orrow money with or witho#t giving sec#rity. '& They have a d#ty to hold the %ro%erty and exercise their %owers on !ehalf and
3' *ee 3
(ha%ter -"") ,aws of 0enya) section '") which saves the rights of the government to re%ossess tr#st land.
*ee 9eport o, the Ea&t $,rica 9oyal Commi&&ion o, GD@0!GD@@, (md. 75 3 M&733; 43&N.
3" *eeOx!yM&7"-;-N. 37 (ha%ter
-" ) ,aws of 0enya) 2o. 4' of &7 " introd#ced as an Act of Parliament to %rovide for the incor%oration of
re%resentatives of gro#%s who have !een recorded as owners of land #nder the ,and Ad?#dication Act (ha%ter -"5) ,aws of 0enya.
': I!id) '& I#id,
*ection -4 B-C BaC. *ection *ection .
Internal Teaching Use Only 4:"
for the collective !enefit of all the gro#% mem!ers and f#lly and effectively cons#lt gro#% mem!ers in %erforming their roles.'/ost gro#% ranches are in the areas occ#%ied !y %astoral comm#nities in 0enya. The com%osition of gro#% ranches was an attem%t at formaliDing traditional comm#nity str#ct#res. The %rinci%le idea !ehind them was to create a land #nit smaller than the traditional section !#t larger than the individ#al. This smaller #nit is not necessarily ca%a!le of maintaining economically via!le livestock herds.'4 $esides) the gro#% re%resentatives entr#sted with the management of that land have in many cases dis%osed of gro#% land witho#t cons#lting the other mem!ers of their gro#%s. The gro#% ranch instit#tion has not worked as ex%ected for a variety of reasons. Firstly) the gro#% re%resentatives lack the a#thority of traditional leaders. <alaty)for instance) notes that the relationshi% of these gro#%s to the traditional social organisation is a com%lex one. '5 *econdly) government %olicy has tended to em%hasiDe individ#al rights and there is a %revalent view that the gro#% rights wo#ld event#ally mat#re into individ#al ones. (onse>#ently) a lot of gro#% ranches
have !een %arcelled into individ#al holdings. /oreover) des%ite the fact that 4 %er cent of 0enyan land is #sed for %astoralism as com%ared to the 7 %er cent #sed for agric#lt#re) the latter has received greater attention in %olicy making. ,ike in many other %arts of the world) %astoralism in 0enya has not !een f#lly recognised as an im%ortant land #se system. '3
4overnment$Public O#nership
The taking #% of land !y the colonial government and the ass#m%tion of title to all land in the (rown gave the government the %ower to ass#me rights over land and vest them in other holders as it deemed. The ,and .eg#lations of &"7 governed the earliest government titles iss#ed in 0enya.'' These were s#!se>#ently taken #% #nder the (rown ,ands Ordinance of &7:- and later the (rown ,ands Ordinance of &7&3.' The net effect of these %rovisions was the ass#m%tion of ownershi% of all land in the Protectorate !y the colonial government. '" The %rec#rsor to the <overnment ,ands Act) the (rown ,ands Ordinance (ha%ter -": of the ,aws of 0enya) was originally %assed to make %rovision for reg#lating the leasing and other dis%osal of (rown lands. *ection -) thereof) defined (rown land to mean all lands in 0enya s#!?ect
'- I#id, '4 *ee '5 *ee '3 *ee) '' 3ee '
*ection ".
Davis M&7 :N. <alaty M&7"&; '"NE *alDman M&7"&; 5N. for exam%le) $o#rgeot M&7"&;&&'NE ,ane M&77'N.
,and .eg#lations 2o. -' of &"7 .
*ee Colony and rotectorate o, Kenya, Land and Land Condition& in the Colony and rotectorate o, Kenya B&74&C. <hai K /cA#sIan M&7 :N.
'" *ee
to control of 9er /a?esty !y virt#e of any treaty) convention or agreement or !y virt#e of 9er
/a?esty8s %rotectorate and all lands which have !een ac>#ired !y 9er /a?esty for the %#!lic service or otherwise and incl#des all lands occ#%ied !y African tri!es of 0enya and all lands reserved for the #se of the mem!ers of any African tri!e) save only the land in the s%ecial areas. *ection 4 vested the <overnor with the %ower to alienate any (rown land on !ehalf of 9er /a?esty on any terms and conditions he may think fit. This has !een the main aven#e thro#gh which %#!lic land has !een converted to individ#al ownershi% in 0enya. The %roviso to this section saved leases granted #nder !oth the &"7 ,and .eg#lations and the &7:- (rown ,ands Ordinance from alteration or termination if the s#!se>#ent terms differed from the ones set !y the <overnor. This %rovision) th#s) limited the %owers of the inde%endence government to alter #nfair grants made d#ring the colonial days. U%on inde%endence) the (rown ,ands Ordinance !ecame the <overnment ,ands Act) (ha%ter -": of the ,aws of 0enya. *ection 4 thereof gave the President) like the <overnor !efore him) %ower to make grants or dis%ositions of any estates) interests or rights in or over #nalienated government lands.The categories of government land incl#de forest and wildlife reserves) other government reserves) townshi%s and other #r!an centres) alienated government land) #nalienated government land and o%en water !odies.'7 <overnment land %rovides a good context for environmental conservation !eca#se %#!lic control ens#res that %#!lic interest is safeg#arded and that long6term %lanning is effected.
:
In recent years) a lot of government land has !een converted to %rivate land thro#gh wanton and illegal allocation of s#ch land to %rivate individ#als and cor%orations in total disregard of the
%#!lic interest in the %ost6inde%endence %eriod) %o%#larly known as land6gra!!ing. The .e%ort of the (ommission of In>#iry into Illegal@Irreg#lar Allocation of P#!lic ,and a%%ointed to look s%ecifically at this iss#e made recommendations on how to deal with this %henomenon. & This has im%lications for s#staina!le environmental management !eca#se %rivatiDation of %#!lic land is #s#ally followed !y conversion of the land #se in s#ch land to #r!an develo%ment or agric#lt#ral %rod#ction. $esides) the controls that o!tain in the #se of government land) es%ecially where s#ch is gaDetted as forest or wildlife conservation areas are a!sent after %rivatisation. egulation of Land ights "& the State The *tate has two resid#al %owers that facilitate its reg#lation of %ro%erty rights) namely; %olice %ower Bdevelo%ment controlC and eminent domain Bcom%#lsory ac>#isitionC.
'7 Ogolla : I#id
K /#ga!e) &%pra note &: at &:5.
at &:3. of 0enya) B-::5C 9eport o, the Commi&&ion o, In:%iry into the Illegal>Irreg%lar $llocation o, %#lic Land
& <overnment
B2d#ng8# (ommission .e%ortC.
Internal Teaching Use Only 4&:
Police po#er This refers to the %ower of the *tate to reg#late land #se in the %#!lic interest whose earliest manifestations incl#ded the right of the *tate to tax its citiDens) 8taking8 of %ro%erty for necessities of war and the reg#lation of the #se of or destr#ction of land in the event of %estilence) th#s interfering with %rivate %ro%erty. - Police %ower may !e invoked to sec#re %ro%er environmental
management. 2ot s#r%risingly) it has !een arg#ed that the rights) %owers) %rivileges and imm#nities of the right holder are determined !y the sco%e of %olice %ower and that there is no s#ch thing as a!sol#te %ro%rietorshi%. 4 It is %rovided for in a n#m!er of stat#tes) s#ch as the P#!lic 9ealth Act) the Agric#lt#re Act) the ,ocal <overnment Act) the Physical Planning Act and the 1ater Act. 1hile %olice %ower has !een #sed in 0enya in different contexts) it has not !een very widely #sed to sec#re s#staina!le environmental management. Its exercise !y vario#s #ncoordinated agencies limits its reg#latory %otential.
Physical Planning .ct

This Act makes %rovision for the %re%aration and im%lementation of %hysical develo%ment %lans. 5 Develo%ment for the %#r%oses of the Act is defined to incl#de the making of any material change in the #se or density of any land. 3 It makes the %re%aration of a %hysical develo%ment %lan) and com%lying with the re>#irements of the %hysical %lanning liaison committee a %rere>#isite for any land develo%ment. Two kinds of %lans are %rovided for) namely; regional and local %hysical develo%ment %lans. ' Among the %#r%oses of regional and local %hysical develo%ment %lans is sec#ring s#ita!le %rovision for the #se of land. There is room in these reg#lations for re>#irements to !e made for s#staina!le reso#rce management as %art of the conditions for land develo%ment. It co#ld) for instance) !e made a condition that develo%ment of land res#lt in no more than the minimal and #navoida!le destr#ction of fa#na and flora and that attem%ts !e made to reconcile the im%eratives of environmental conservation with land #se. It is s#r%rising that this Act was %assed after the United 2ational
(onference on +nvironment and Develo%ment BU2(+DC and after 0enya ratified the (onvention on $iological Diversity) !#t it does not address the iss#e of s#staina!le !iological diversity conservation and management. F#rther) the Act #ses existing local a#thorities) which are !ased on
- Ogolla 4 l#id
K /#ga!e) &%pra note &: at &:"6&:7.
at &:7. Planning Act) 2o. ' of &77') Pream!le.
5 Physical 3 I#id ' *ee
section -. Physical Planning Act) 2o. ' of &77') Part IF.
Internal Teaching Use Only 4&&
%olitical as o%%osed to ecological considerations as #nits for management. (onse>#ently) the law does not define new %arameters for Doning the co#ntry !ased on s#staina!le reso#rce management im%eratives. /oreover) the Act goes short of %roviding for area %lans !ased on com%ati!ility of land #ses. It is rigidly concerned with maintaining existing #ses and does not %rovide for reha!ilitation meas#res where existing land #ses are inimical to s#staina!le management of land and other nat#ral reso#rces.
0he .griculture .ct

Under this Act) the /inister and@or Director of Agric#lt#re may make land %reservation orders for agric#lt#re in cons#ltation with the a%%ro%riate District Agric#lt#re (ommittee or the chairman of s#ch committee in emergency cases to ens#re that land is not de%leted. .eg#lations made #nder these ena!ling %rovisions %roceed !y way of %rohi!itions with res%ect to !ad land #sage to sec#re
the o!?ective of good land management. Th#s) a#thorised officers may) on the one hand) %rohi!it the clearing of vegetation and the de%ast#ring of livestock and) on the other) re>#ire #nder %ain of criminal %roceedings) the %lanting of trees to %rotect the soil from erosion.
"
In addition) the Director of Agric#lt#re can iss#e land %reservation orders to land owners re>#iring them to ado%t a system of management or farming %ractice or other system in relation to the land in >#estion. The orders involve the #ndertaking of conservation meas#res or %rohi!ition of activities incom%ati!le with good land management. 7 A whole range of soil conservation meas#res can !e #ndertaken #nder this %rovision. ": Th#s) the Director may %rohi!it the clearing of vegetation or the graDing of livestock in v#lnera!le ecosystems) re>#ire the afforestation of land to reclaim areas threatened with degradation) or demand the #se of farming techni>#es com%ati!le with conservation re>#irements. This legislation covers most of the activities that have contri!#ted to massive land degradation in certain %arts of the co#ntry. "& Bhe /ater $ct The 1ater Act is 8an Act of Parliament to %rovide for the management) conservation) #se and control of water reso#rces and for the ac>#isition and reg#lation of rights to #se water) and to %rovide for the reg#lation and management of water s#%%ly and sewerage services8. It has
*ee (ha%ter 4&") ,aws of 0enya) sections 3& K 3:) res%ectively.
" I#id, 7 I#id, ": I#id, "& *ee
Pream!le K *ection -. *ection '5B4C. *ections 3' K '3B&C.
0ameri6/!ote) &%pra note -4.
Internal Teaching Use Only 4&-
im%ortant im%lications for land holders) and vests every water reso#rce in the *tate. "- It re>#ires the 1ater .eso#rces /anagement A#thority to manage and %rotect water catchments. "4 The Act also em%owers the /inister for the time !eing res%onsi!le for water to ac>#ire land for %#!lic %#r%oses related to water management) s#!?ect to the %ayment of ?#st com%ensation. +minent 7omain The conce%t of eminent domain is derived from the .oman domini%m eminen&, which refers to sovereignty over territory. Also referred to as com%#lsory ac>#isition) it refers to the right of the *tate !y dint of sovereignty to take %rivate %ro%erty for %#!lic %#r%oses. It flows from the fact that the *tate has radical title over all land in the territory and can) therefore) com%#lsorily ac>#ire any %art of it. The #ses for which land has !een traditionally ac>#ired incl#de defence) highways) hos%itals and ed#cation."5 In 0enya) the %ower to com%#lsorily ac>#ire land is %rovide for #nder *ections A@,)@&& and &&""' of the (onstit#tion. It m#st !e shown that the land will %romote the %#!lic !enefit) s#ch !enefit !eing weighed against the hardshi% that the ac>#isition will ca#se for the owner and %rom%t com%ensation m#st !e %aid for the ac>#isition. As %ointed o#t a!ove) some traditional %#!lic #ses have !een esta!lished as is !asis for com%#lsory ac>#isition and setting a%art of land. These do not incl#de s#staina!le develo%ment. <iven the val#e that %eo%le %lace on %rivate %ro%erty) an attem%t to introd#ce s#staina!le develo%ment as !asis for com%#lsory ac>#isition or setting a%art of land is likely to !e resisted.
9owever) these two remain instr#ment that can !e #sed innovatively to %roc#re ha!itat for endangered fa#na or flora whose contin#ed existence cannot !e g#aranteed thro#gh e< &it% conservation meas#res. It has !een arg#ed that s#staina!le environmental management is so critical an iss#e that there sho#ld !e a resid#al %ower of the *tate to im!#e an environmental conservation ethic as a !asis for >#alifying %ro%erty rights where the rights holders threaten this critical facet. " This is critical for reso#rces s#ch as wildlife whose contin#ed existence is critical for ecological) economic and c#lt#ral im%eratives and whose contin#ed existence is %redicated on the availa!ility of land. For instance) the /aasai /ara game reserve) designated as the seventh wonder of the world in -::'.
"- 1ater
Act) *ection 4. K /#ga!e) &%pra note &: at &: .
"4 OgoIla "5 I#id. "3 This
section deals with com%#lsory ac>#isition generally and the legal framework) therefore) is laid o#t in the ,and
Ac>#isition Act.
"' These
deal with 8setting a%art8 of tr#st land !y co#nty co#ncils or the (ommissioner of ,ands and the legal framework for this
is laid o#t in the Tr#st ,and Act.

"
Ogolla K /#ga!e) &%pra note &: at &:".
Internal Teaching Use Only 4&4
is threatened !eca#se of the %arcellation of gro#% ranches into individ#al %arcels) which are %#t to land #ses that are inimical to wildlife management. The setting a%art of this reserve can sec#re ha!itat for wildlife and ens#re that the integrity of the /ara6*erengeti ecosystem is maintained.
9owever) the history of /aasai land rights is so %olitical that s#ch an action wo#ld !e viewed as contin#ed s#!?#gation of the comm#nity and is likely to !e resisted. Land *enure and Sustaina"le Environmental )anagement #nder the Law Sele!te* Se!to al La-s /ildli,e The *tate owns all wildlife in 0enya and it is managed on its !ehalf !y the 0enya 1ildlife *ervice B01*C. This has !een a !one of contention !eca#se a lot of wildlife resides in comm#nity and %rivate land. As a mo!ile@f#gitive reso#rce) wildlife cannot !e contained in one area exce%t thro#gh the erection of !o#ndaries and fences. *ince not all areas are fenced and it is not %ractical to fence off all wildlife in 0enya) it is im%ortant to work o#t arrangements where!y tho#gh the ownershi% of wildlife is vested in the *tate as the g#ardian of the %#!lic interest) land owners and comm#nities whose land hosts wildlife are granted #ser rights to ena!le them to !enefit from the wildlife reso#rces and to %redicate s#ch #ser rights on s#staina!ility of the wildlife reso#rces as well as the ecosystems hosting the reso#rces. It is also im%ortant to %rovide incentives) s#ch as sharing !enefits from the reso#rces) to landowners willing to %rovide land as ha!itat for wildlife. (#rrently) most land owners are #nha%%y with the arrangement where they have no rights to #se wildlife) and even where s#ch #se is allowed) it is limited to wildlife !ased to#rism) which is not
tena!le in all areas."" 1hile co#nty co#ncils have !enefited from wildlife reso#rces in land #nder their control) the fail#re to align these rights with res%onsi!ilities has res#lted in a skewed system where the co#ncils earn reven#e from wildlife witho#t !earing the res%onsi!ility of maintaining the wildlife ha!itat or maintaining the infrastr#ct#re in the areas #nder their control. 01* is ex%ected to %rovide sec#rity in these areas) control %ro!lem animals and where in?#ry or loss of life is ca#sed !y wildlife) the co#nty co#ncils are not res%onsi!le for com%ensation. There is indeed no link !etween the rights to !enefit from wildlife and the res%onsi!ility that s#ch !enefits sho#ld !e accom%anied !y. ,and ownershi% or occ#%ancy is a determinant of who !enefits from wildlife. 9owever) it sho#ld not !e the only one !eca#se the %rocess of land reform from colonisation to the %resent time has !een colo#red !y in?#stices) and %egging !enefits from wildlife reso#rces to land wo#ld !e a validation of these historicalin?#stices.
"" *ee
0ameri6/!ote) &%pra note -4.
There is an ongoing wildlife %olicy and legislative reform initiative which) while vesting the ownershi% of wildlife on the *tate on !ehalf of and for the !enefit of the %eo%le of 0enya) re>#ires !eneficiaries from wildlife to !e res%onsi!le for as%ects of management of wildlife) to %artici%ate in the sec#rity arrangements for wildlife and %eo%le) and to contri!#te to a f#nd for %ayment of com%ensation for loss of life and %ro%erty de%redations occasioned !y wildlife. Another area of concern is migration corridor and dis%ersal areas for wildlife. .a%id %o%#lation
increase and increased demand for land for agric#lt#re) r#ral and #r!an develo%ment and h#man settlements has led to encroachment into wildlife dis%ersal areas and migratory ro#tes and res#lted in h#man6wildlife conflicts. As a res#lt) the attit#de of %eo%le towards wildlife has !een generally negative in many areas. This is f#rther f#elled !y s%read of wildlife diseases) destr#ction of cro%s and livestock) death and in?#ries to h#man !eings) disr#%tion of social life !y im%osition of c#rfews and com%etition for %ast#re and water. The ongoing wildlife %olicy and law review m#st address these iss#es if land owners are to !e well dis%osed to wildlife management initiatives. Fore&t& Under the Forests Act) -::3) all forests in 0enya other than %rivate and local a#thority forests are vested in the *tate to !e managed !y the 0enya Forest *ervice B0F*C s#!?ect to any rights of #ser."7 The /inister for the time !eing res%onsi!le for forests may declare any #nalienated government land or land %#rchased or ac>#ired !y the government as a *tate forest. 7: The Act also recognises local a#thority) %rivate and comm#nity forests. 7& ,ocal a#thority and %rivate forests are %egged to ownershi% of land while comm#nity forest management is %redicated on the registration of a (omm#nity Forest Association #nder section 5' of the Act. (omm#nity Forest Associations enter into management agreements with the Director of the 0F* and are granted s#ch #ser rights
as collection of medicinal %lants) harvesting of honey) grass harvesting and graDing) among others. This is in recognition of the relationshi% !etween %eo%le and ecosystems that they live in. even where legal ownershi% of land vests in a different entity. Interestingly) the /inister may) #%on the recommendation of the 0F* $oard declare any local a#thority or %rivate forest that is mismanaged to !e a %rovisional forest. 7- This is in sit#ations where the land is an im%ortant catchment area) rich in !iodiversity or s#%%orts the livelihood of s#rro#nding forest comm#nities.74 U%on s#ch declaration) 0F* manages the forest in
"7 Forest 7: I#id, 7& I#id, 7- I#id, 74 I#id,
Act M-::3N) *ection -:.
*ection --. *ections -4) -5 K 5') res%ectively. *ection -3. *ection -3 B-C.
colla!oration with the owner and the arrangement ceases when the $oard is satisfied that the forest has !een ade>#ately reha!ilitated and the owner has #ndertaken to efficiently manage it. /ater Under *ection 4 of the 1ater Act) every water reso#rce is vested in the *tate) s#!?ect to any rights of #ser granted !y the *tate. The Act also em%owers the /inister for water to oversee instit#tions esta!lished #nder the Act to #se water or ac>#ire water rights. 75 The /inister has %ower to designate water catchment areas and form#late a catchment management strategy reg#lating the management) #se) develo%ment) conservation) %rotection and control of water reso#rces within
s#ch catchment area.73 *#ch designation has im%lications for the management of the land hosting it. /ore s%ecifically) the catchment management strategy is re>#ired to take into acco#nt the water reso#rce and >#ality) !e consistent with the national water reso#rces strategyE %rescri!e the %rinci%les) o!?ectives) %roced#res and instit#tional arrangements for managing) #sing) develo%ing) conserving and controlling water reso#rces within the catchment areaE set o#t %rinci%les for allocating waterE and %rovide mechanisms and facilities for ena!ling the %#!lic and comm#nities to %artici%ate in managing the water reso#rces within the catchment area. 7' Under section & ) a catchment area may !e designated as a %rotected area to ens#re that it is !etter %rotected. ,and re>#ired for the develo%ment of a *tate water scheme may) once designated) !e ac>#ired thro#gh %#rchase) lease or com%#lsory ac>#isition. *#ch ac>#isition is %redicated on com%ensation 8on ?#st term&C taking into consideration any !enefit accr#ing to the land !y the constr#ction of the works and any adverse effect on the land ca#sed !y the works. 7 "ineral& Under the /ining Act) (a%. 4:' of the ,aws of 0enya) all #nextracted minerals) other than common minerals) #nder or #%on any land) are vested in the government. 7" The Act makes %rovision for grant of mineral rights) and mining in tr#st land is %redicated on o!taining %ermission from the co#nty co#ncil. The (ommissioner of /ines may grant %ros%ecting rights) which are %redicated
on res%ect for integrity of other nat#ral reso#rces s#ch as water and forests 77 and %ayment of
75 1ater 73 I#id, 7' I#id, 7
Act) *ections 3 K '.
*ections &5 K &3. *ection &3.
I#id) section -& Act) *ection 5.
7" /ining 77 I#id,
*ection &5.
Internal Teaching Use Only 4&'
royalties.&:: *ome classes of land are excl#ded from mining) s#ch as any area within &:: metres of a dam) canal or reservoirE salt licksE tr#st land witho#t the consent of the co#nty co#ncil in whose ?#risdiction the land is locatedE %rivate land witho#t the consent of the owner and any m#nici%ality) townshi% or trading centre witho#t the consent of the owner or holder of the s#rface rights and of the m#nici%al or other a#thority exercising control over it. &:& Under the %ro%osed /ines and /inerals Act -::') the grant of mineral rights on %rivate land is also %redicated on consent from the land owner %roc#red thro#gh a legal arrangement and %ayment of ade>#ate com%ensation.&:- 1ith res%ect to tr#st land) the draft %ro%oses that land !e set a%art to facilitate the grant of mineral rights. &:4 The draft also excl#des the grant of mineral rights a#thoriDing %ros%ecting or mining o%erations on land s%ecified to !e a marine %ark) national %ark or animal sanct#ary #nder the 1ildlife B(onservation and /anagementC Act) witho#t the consent of the minister res%onsi!le for the administration of the 1ildlife Act. &:5 *imilarly) the (ommissioner sho#ld only grant a mineral right for %ros%ecting and mining in land declared to !e a %rotected area) a %rotected nat#ral environment or a %rotected coastal Done with the consent of
the minister res%onsi!le for the environment. &:3 Environmental )anagement and Co$ordination Act The +nvironmental /anagement and (o6ordination Act B+/(AC is an Act of Parliament to %rovide for the esta!lishment of an a%%ro%riate legal and instit#tional framework for the management of the environment and for matters connected therewith. To the extent that many environmental reso#rces are hosted on land) there is a link !etween this stat#te and land ten#re laws in 0enya. This has) however) to !e considered within a context where the val#e of land has largely excl#ded ecological f#nctions and where the carrying ca%acity of the terra is increasingly !eing %#shed !y demands for economic %rod#ction and livelihood. Des%ite the acce%tance of s#staina!le develo%ment as a g#iding %rinci%le and its incl#sion in *tate constit#tions and laws) Aldo ,eo%old8s statement that 8there is as yet no ethic dealing with man8s relation to land and to the animals and %lants which grow #%on it.... The land6relation is still strictly economic) entailing %rivileges not o!ligations8)&:' still rings tr#e.
&:: I#id) &:& l#id,
*ection &-. *ection . &7 of Draft on file with the a#thor. -: of Draft on file with the a#thor. &" of Draft on file with the a#thor. &" of Draft on file with the a#thor. in Field6G#ma M&77'; -3N.
&:- *ection &:4 *ection &:5 *ection &:3 *ection &:' I#oted
The entitlement of all 0enyans to a clean and healthy environment and the concomitant d#ty to
safeg#ard and enhance that environment has im%lications for land management. To maintain the integrity of the environment re>#ires enlistment of land ownershi% and management regimes. In eter /awer% v Bhe 9ep%#lic, it was held that 8In the case of land reso#rces) forests) wetlands and waterways ... the <overnment and its agencies are #nder a %#!lic tr#st to manage them in a way that maintains a %ro%er !alance !etween the economic !enefits of develo%ment with the needs of a clean environment8.&: *imilarly) the %rinci%les of %#!lic %artici%ation in environmental decision6 making and managementE inter6 and intra6generational e>#ityE %oll#ter %ays and %reca#tion) all have relevance for land ownershi% and management in the >#est for s#staina!le environmental management.&:" In seeking to %rotect the environment) +/(A %rovides for the %rotection and conservation of vario#s ecosystems. For instance) it !ars the introd#ction of animals) whether alien or indigeno#s) into lakes or wetlands&:7 or the de%osit of any s#!stance likely to have an adverse environmental effect on a river or lake.&&: To ens#re s#staina!le management of s#ch ecosystems) +/(A %rovides for the develo%ment of a management %lan that addresses) among other iss#es) %reventing and control of %oll#tion) g#idelines for access to and ex%loitation of reso#rces and the overall management of !iodiversity. &&& Under section 5-B-C) the /inister is mandated to declare a lakeshore) wetland) coastal Done or river !ank to !e a %rotected area and im%ose necessary
restrictions to %rotect s#ch ecosystem from environmental degradation. In ark Jiew -hopping $rcade Limited v Charle& ". KangCethe and Other&, the 9igh (o#rt was called #%on to determine the %lace of constit#tionally g#aranteed %rivate %ro%erty rights in the face of conservation environmental reso#rces) a wetland in this case. The ?#dge iss#ed an order to the /inister to 8ens#re the cond#ct of a %rofessional and %olicy assessment8 of the land in >#estion in accordance with *ection 5- of +/(A.&&*ection 3:) dealing with the conservation of !iological diversity) re>#ires the 2ational +nvironment /anagement A#thority B2+/AC) the !ody charged with co6ordinating all matters relating to the environment in 0enya) with identifying an inventory of all !iological diversity in 0enya) determining its threatened) rare and endangered com%onentsE %rotecting indigeno#s %ro%erty rights of local comm#nities in res%ect of the diversity) among other things.
&:
9igh (o#rt of 0enya at 2airo!i) /iscellaneo#s (ivil A%%lication 2o. &&" of -::5.
&:" *ection4. &:7 +/(A) &&: +/(A) &&& +/(A) &&- 9igh
*ection 5-c. *ection 5-e. *ection 5-B4C.
(o#rt (ivil *#it 2o. 54" of -::5.
Internal Teaching Use Only 4&"
The re>#irement for environment im%act assessment B+IAC for develo%ment %ro?ects #nder *ection 3" has im%lications for land ownershi% and develo%ment. +/(A im%oses on %ro?ect %ro%onents the o!ligation to cond#ct +IAs and grants all %ersons the right to %artici%ate in the +IA %rocess. The categories of %ro?ects that m#st #ndergo +IA are !roadly defined in the *econd
*ched#le to the Act to incl#de #r!an develo%ment) ma?or roads) storage dams) river diversions) aerial s%raying) mining) clearance of forest areas) irrigation) #se of %esticides) %rocessing and man#fact#ring ind#stries) electrical infrastr#ct#re) waste dis%osal) nat#re conservation areas) and ma?or develo%ments in !iotechnology) s#ch as the introd#ction and testing of genetically modified organisms. They are linked to the ownershi% of land in one way or another. The need for +IA is very critical in light of decline in !iodiversity and the loss of ha!itats and ecosystems that are critical for s%ecies of fa#na and flora. In the eter /awer% Ca&e cited a!ove) the (o#rt stated that 8no f#rther develo%ment...sho#ld !e #ndertaken witho#t satisfying all the environmental and health re>#irements.V&&4 In its %rovisions on com%liance and enforcement) +/(A %rovides for environmental restoration orders re>#iring restorative action) %reventing harm to the environment) %ayment of com%ensation for harm to the environment and levying charges commens#rate with costs of restoring degraded environments.&&5 These orders im%act on land owners8 en?oyment of their rights. Another mechanism %rovided for is environmental easements for facilitating the conservation and enhancement of the environment thro#gh im%osition of o!ligations in the form of environmental conservation orders in res%ect of the #se of land B%reservation of flora and fa#naE %reservation of water flow) o%en s%ace) scenic view among othersC. &&3 +asements !enefit the environment thro#gh the im%osition of o!ligationBsC in res%ect of the #se of land that is linked to
the environment so#ght to !e !enefited.&&' They can !e #sef#l for sec#ring migratory corridors and dis%ersal areas for wildlife. *owards a ;olistic Approach to Land *enure for Sustaina"le Environmental )anagement in -en&a There is increasing recognition of the need to link land ownershi% and s#staina!le environmental management. +/(A has gone a long way in integrating land rights and environmental wildlife management. *ectoral environmental stat#tes that have come after +/(A have also integrated land ownershi% into environmental management. A n#m!er of challenges still remain) however.
&&4 1awer# &&5 +/(A) &&3 +/(A) &&' *ection
(ase) &%pra note &: . *ections &:"6&&&. *ections &&-6&&3.
&&-.
Fir&t, the lack of firm anchorage for comm#nity rights militates against the involvement of comm#nities in environmental management initiatives. Incentives for s#staina!le environmental management can !e created !y granting rights to land and environmental reso#rces to entities !est %laced to carry o#t management activities in any given area. The %revalent ass#m%tion that s#staina!le environmental management can only !e attained with the *tate or individ#als as the main actors needs to !e reconsidered.
The draft (onstit#tion) -::5 and the draft 2ational ,and Policy) -:: %ro%ose three categories of land namely; %#!lic) %rivate and comm#nity. The draft 2ational ,and Policy f#rther %ro%oses the %rom#lgation of a reso#rce ten#re %olicy that takes the three categories of land into acco#nt and that ownershi% rights !e restricted to facilitate s#staina!le reso#rce #tilisation. These %ro%osals will go a long way in ens#ring that land ownershi% %romotes s#staina!le reso#rces management. It is also im%erative that a!sol#te %ro%rietorshi% !e reconsidered) es%ecially in areas that are critical ha!itat for flora and fa#na) in which leaseholds sho#ld !e granted to allow for greater control. -econd, there is need to em!ed %#!lic %artici%ation as %rovided for in +/(A in sectoral laws to enlist the co6o%eration of different categories of land owners in environmental management. The %rovisions on com%#lsory ac>#isition and %olice %ower sho#ld !e #sed to achieve s#staina!le environmental management. +nvironmental conservation sho#ld !e incl#ded among the resid#al %owers of the *tate to reg#late land rights. This wo#ld assist in internalisation of environmental val#es and costs in access to and ownershi% of land. Bhird, derivative rights s#ch as leases) licences) easements and %rofits can !e #sed to %romote s#staina!le environmental management. Profits) defined as rights to go onto the land of another and take a %artic#lar s#!stance from that land) whether the soil or %rod#cts of the soil) can either
!e attached to ownershi%@other interest in land or exist a%art from land. The owner of the %rofit need not !e the owner of any ad?oining %iece of land or any land at all) making them a #sef#l tool for reaching o#t to %eo%le who are affected !y wildlife management in an area !#t who do not own land in the area. Peo%le living aro#nd a %rotected area can !e allowed to take environmental reso#rces from the %rotected area #nder reg#lated conditions that ens#re s#staina!ility in the entire ecosystem. Fo%rth, tr#st deeds and restrictive covenants can also !e #sed to link land ownershi% to s#staina!le environmental management. .estrictive covenants have the effect of limiting the manner in which a landowner can #se his land) s#ch limitation !eing necessary for the !enefit of an ad?oining %iece of land. They constit#te an im%ortant way for landowners to control the #se of land. They do not la%se #%on the transfer of the land to which they a%%ly and !ind s#!se>#ent owners who were not %arty to the agreement. .estrictive covenants can !e #sed !y the *tate to control the #ses to which %rivate or gro#%s of land owners may %#t their land) where s#ch land hosts environmental reso#rces. Arrangements need to !e worked o#t) however) to ens#re that
Internal Teaching Use Only 4-:
landowners are s#fficiently com%ensated for adhering to the covenant. && An innovative way of sec#ring land for environmental management is exem%lified in the 0enya ,and (onservation Tr#st esta!lished !y the African 1ildlife Fo#ndation BA1FC) 01* and
the /inistry of ,ands. The o!?ectives of the Tr#st are to %romote and facilitate the conservation of land) !iological diversity and nat#ral reso#rces in 0enya or %#!lic !enefitE to ac>#ire and hold land and nat#ral reso#rces #sing innovative and existing legal instr#ments s#ch as %#rchase) easements) leases and management agreementsE and hold tr#st f#nds and contri!#te to develo%ment and %overty red#ction !y %romoting develo%ment activities of reso#rce de%endent comm#nities. Fi,th, transfera!le develo%ment rights can !e given to a land owner who %ro%oses a kind of develo%ment that is not com%ati!le with s#staina!le environmental management. In s#ch a case) the %rovisions of com%#lsory ac>#isition of the land sho#ld !e invoked and com%ensation %aid in the form of a grant of land in an area where the %ro%osed #se !y the %ro%erty owner can !e carried o#t. In instances where s#ch land is not availa!le) transfera!le develo%ment rights sho#ld !e given) which the landowner can #se elsewhere or sell to others. -i<th and ,inally, for land ten#re to %romote s#staina!le environmental management) it m#st !e s#%%orted !y a com%rehensive land #se %lan and Doning system that) while taking into acco#nt different land #ses and se%arating them as m#ch as %ossi!le) also tries to integrate com%ati!le land #ses where feasi!le.
&&
See Ka!eri"M#ote$ supra note %&'
Internal Teaching Use Only 4-&
Chapter 10
Aligning Sectoral 1ildlife Law to the Framework Environmental Law

Introduction
1ildlife reso#rces contri!#te directly and indirectly to the local and national economy thro#gh reven#e generation and wealth creation. For exam%le) for the financial year ending 4: G#ne -::') earnings from to#rism were estimated at a!o#t 0sh 3' !illion. Additionally) wildlife %lays critical ecological f#nctionsE 0enya8s ma?or water towers are fo#nd in wildlife6%rotected areas and wildlife has socio6c#lt#ral and aesthetic val#es. 0enya8s wildlife %olicy is fo#nd in sessional %a%ers) ministerial statements and develo%ment %lans. A%art from laws dealing s%ecifically with wildlife) there are laws dealing with the areas in which wildlife is fo#nd) s#ch as the land #se and land ten#re laws) local government laws and Doning laws. The laws on forests and agric#lt#re also im%act on wildlife management as do the develo%ment %lans that %rovide the tem%late #%on which the government im%lements national develo%ment %olicies. /oreover) the (onstit#tion as the s#%reme law %rovides the legal context within which wildlife reso#rces are managed. 1e will foc#s o#r analysis to wildlife6s%ecific laws and %olicies) namely the 1ildlife (onservation and /anagement Act and the +nvironment /anagement and (o6ordination Act B+/(AC with a view to assessing the convergences and
divergences in these laws and their s#ita!ility in engendering s#staina!le management of wildlife in 0enya. The challenges c#rrently facing the wildlife sector in 0enya incl#de loss of !iodiversity) loss of ha!itat) fragmentation d#e to land #se changes) com%eting land #ses) inade>#ate incentives and com%ensation) a!sence of mechanisms for e>#ita!le !enefit sharing) increased h#man6wildlife conflicts as a res#lt of wildlife inflicted loss of lives and de%redations of %ro%erty and livestock) and non6involvement of comm#nities and landowners. Another iss#e of contestation is translocation of wildlife. ,ive animal translocations have !een carried o#t to ease %ress#re from some areas and to introd#ce selected s%ecies to other ecosystems. Areas from which animals are translocated and to which the animals are moved have ex%ressed concerns a!o#t these translocations. Their concerns relate to the lack of clear g#idelines and %roced#res and the fail#re
Internal Teaching Use Only 4--
to involve them in making decisions regarding s#ch translocations. The translocation of the hirola antelo%e from the Arawale area in <arissa contin#es to elicit anger from the local comm#nity) who even went to co#rt to re>#ire the ret#rn of the translocated animals or) alternatively) com%ensation for the animals taken. *imilar concerns have !een raised with regard to gifts of wildlife from 0enya.
9a!itat re>#irements for wildlife animal s%ecies are critical for their s#rvival and re%rod#ction. /ost wildlife animal s%ecies have evolved and ada%ted to large home ranges) some of which straddle the !o#ndaries of two or more co#ntries that dictate their life cycle and migration. 0enya) for instance) shares the /ara *erengeti ecosystem with TanDania. 1hile the *erengeti 2ational Park on the TanDania side is a world heritage site) the /aasai /ara on the 0enyan side is a game reserve allowing for h#man interaction with wildlife and managed !y the 2arok (o#nty (o#ncil. The migratory ro#te of the wilde!eest in the /ara6*erengeti ecosystem is c#rrently #nder threat from the conversion of land to wheat %rod#ction. The challenge is how to %romote a harmonised a%%roach to the conservation and management of shared wildlife reso#rces. +ast African co#ntries are in the %rocess of harmoniDing diverse laws) incl#ding wildlife laws) and it is ho%ed that this will deal with incongr#ence in wildlife management laws in the co#ntries) es%ecially in trans!o#ndary ecosystems. 1ildlife legislation %redates +/(A) which domesticates the (onvention on $iological Diversity and whose o!?ectives incl#de conservation) s#staina!le #se and fair and e>#ita!le sharing of !enefits arising from the #se of !iological diversity. It is in light of this that this cha%ter seeks to analyse wildlife %olicies and laws with a view to identifying the %oints of convergence and
divergence with +/(A) and %ro%osing desira!le amendments to !ring the former in line with the latter. 0enya is also a %arty to a n#m!er of /#ltilateral +nvironmental Agreements B/+AsC) s#ch as the Convention on Iiological 8iver&ity B($DC) Convention on International Brade in Endangered -pecie& B(IT+*C) Convention on "igratory -pecie& B(/*C) the Convention on /etland& o, International Importance, e&pecially a& /ater,owl 6a#itat B.amsar (onventionC) the 1airo#i Convention, the /orld 6eritage Convention, together with regional instr#ments s#ch as ,#saka Agreement on (oo%erative +nforcement O%erations Directed at Illegal Trade in 1ild Flora and Fa#na and the treaty esta!lishing the +ast African (omm#nity. All these define im%ortant international and regional o!ligations for conserving wildlife reso#rces. Background $efore the advent of $ritish r#le in 0enya) Ara!s) Persians and Indians had already esta!lished trade and agric#lt#ral settlements along the coast and the demand for wildlife %rod#cts had !egan to affect the n#m!er of wild animals in areas near the coast. This %rocess was) however) exacer!ated !y the arrival of +#ro%ean h#nters and the emergence of game h#nting ex%editions
Internal Teaching Use Only 4-4
designated as =safaris=) as a ma?or s%ort. & The declaration of %rotectorate stat#s for 0enya in &"73
and the com%letion of the 0enya6Uganda .ailway in &7:& made wildlife in the interior of the +ast African Protectorate accessi!le to +#ro%eans settlers and h#nters. +#ro%ean h#nters introd#ced the #se of so%histicated arms for h#nting in 0enya. - The nota!le increase of visiting h#nters was accom%anied !y diminishing n#m!ers of game animals. 4 *%ort h#nting intensified with no regard to the n#m!ers of animals.5 The arms #sed !y the +#ro%eans were very destr#ctive and ena!led !ig game h#nting for tro%hies. As early as &"7 ) there was concern among colonial administrators a!o#t the ivory ex%orts from +ast Africa.3 The destr#ction of wild animals was also attri!#ted to the %#rs#it of settler agric#lt#ral activities where farmers ?#stified the killing of wild animals in defence of their cro%s. The only animals exem%ted from destr#ction were those that were designated as game. ' Farmers were at %ains to define what animals and !irds deserved the s%ecial name of =game=) and th#s %rotection and which ones were vermin) owing to the damage they ca#sed to cro%s. In the /atter category were hi%%os and golden crested cranes. The &7:: (onvention also disting#ished !etween harmf#l and #sef#l s%ecies in determining which s%ecies were to !e accorded %rotection." (onservationists decried the wanton destr#ction of wild game and the lack of knowledge on the %art of the colonisers of the wildlife in the colonies. <overnment action was called for to red#ce h#nting and to set aside f#nds for esta!lishing national %arks and reserves for the %rotection of
wildlife.7 The cons#ltations !etween the colonial %owers res#lted in the &7:: (onvention. In the s%irit of this (onvention8s %rovisions) the &7:: +ast African <ame .eg#lations were %rom#lgated. They were s#!se>#ently strengthened !y amendments in &7:5) &7:3 and &7:'. F#rther) the
& *ee
/ar?orie M&7''N) noting that +#ro%ean settler %o%#lation dates from &7:4 altho#gh there were a few +#ro%eans
scattered thro#gho#t the co#ntry !efore that time and that in &7:&) the %o%#lation in the Protectorate was 4):5:)75:) of which -)7'')774 were natives.
- ; *ee)
for exam%le) Taylor M&733N. M&7 &N) however) notes that it is diffic#lt to say with exactit#de how n#mero#s wildlife in 0enya was %rior
4 (a%one
to the arrival of the $ritish owing to the lack of systematic co#nts of wildlife %rior to &7:- when /einertDhagen carried o#t and recorded his co#nt of wild animals. *ee (ol. .. /einertDhagen8s 0enya Diary &7:-6&7:')- B&73 C) cited in (a%one M&7 &N.
5 -ee, 3 -ee
for exam%le) /ackenDie M&7" N. /c(ormick M&7"7N. *ee also 2oel M&7'-; 44N noting that s#ggestions for meas#res to control the killing of
wildlife had !een made as early as &"75. These s#ggestions res#lted in the $ritish +ast Africa (om%any8s -porting Licence& 9eg%lation& B3th *e%tem!er) &"75C) <reat $ritain Parliamentary Pa%ers) Fol. O,) &"7" (mnd. "'"4. M& N
' -ee
Fraser M&75';&-"N for a disc#ssion on the illogical distinction !etween game and non6game animals..
-ee Legi&lative Co%ncil 8e#ate& B/ay 7) &7-"C

" Article
II B&4C and B&3C of (onvention destinee ass#rer la conservation des diverses es%eces animales vivant l8etat
sa#vage en Afri>#e >#i sont #tiles l8homme o# inoffensives) ,ondon &7 /ay &7::) in Felix *toerk) 1o%vea% 9ec%eil de traite& et a%tre& acte& relati,& a%< rapport& de droit international ! Contin%ation d% grand rec%eil de G. Fr. de "arten& -nd series) Fol. OOO) &7:5C 54:. M-&5N.
7 -ee,
for exam%le) *chillings M&7: N.
*ociety for the Preservation of the Fa#na of the +m%ire was formed. &: It was charged with the task of overseeing the im%lementation of the (onvention. The *ociety #rged the colonial office to set aside large tracts of land for wildlife conservation as had !een done in America and to Utilise the money raised from h#nting licences for game %reservation. && The early conservationists were
concerned not to recreatethe sit#ation in $ritain where wildlife legislation denied the lower classes access thereto while ens#ring that the elite) the wealthy and %rivileged generally had access. &In the im%lementation of the conservation %olicies) however) the natives were not ass#red of contin#ed access to wildlife reso#rces) as we will show !elow. $y virt#e of the &7:: <ame reg#lations) the first game reserves in $ritish +ast Africa were demarcated and these incl#ded areas that were %art of native reserves) yet one of the %rovisions of the (onvention ex%ressly %rovided that no h#nting) ca%t#ring or killing of wild animals and !irds wo#ld !e %ermitted.&4 $y &7&7) there were two game reserves in $ritish +ast Africa; the 2orthern .eserve !etween ,ake T#rkana Bthen .#dolfC and /o#nt 0enya) and the *o#thern .eserve !etv 2airo!i and the Tanganyika !order) r#nning as far down as /o#nt 0iliman?aro. The former covered semi6desert !#t the latter had areas s#ita!le for settlement as walater discovered !y the +#ro%ean settlers. In rare cases) the colonial administrat; conceded to the rights of Africans to h#nt wildlife !#t only for food.&5 Th#s) African tri!es that had come to rely on ivory as a ma?or income earner now had that so#rce c#rtailed. For those indigeno#s comm#nities that %ractised c#ltivation) the wildlife was a menace to their cro%s. The res#lt was increased illegal taking or %oaching of wildlife) which went on #na!ated des%ite the stringent %enalties. Poaching was very attractive
since it was more l#crative than la!o#r on +#ro%ean farms. &3 The chiefs em%loyed !y the colonial government were #na!le to contain the %oaching activities since they co#ld not differentiate !etween illegally taken tro%hies are those taken !y licensed s%ortsmen and h#nters who had come in great n#m!ers l#red !y the very low h#nting licence fees. &' In any case) traders in tro%hies) having o!tained access to world markets as a res#lt of im%roved means of comm#nication were interested chiefly in the merchandise and not the so#rce. & The main means of controlling trade in ivory was thro#gh marks on legal ivory to disting#ish it from illegal ivory. This system
&: *ee && *ee &- *ee &4 *ee &5 *ee
+dward M&7:3N. 9ayes M&7:3N. 9#xley M&7:-N. Article II B3C) &7:: (onvention. section 4' of &7-& Ordinance !y virt#e of which natives co#ld only still kill game with the s%ecific a%%roval of the (hief
2ative (ommissioner and the game warden.

&3 *ee &' *ee &
(ar%enter M&7-4N) noting that <ame Ordinances had the effect of c#tting the Africans off the %rofita!le t#sk trade. ,egislative (o#ncil De!ates) -: A#g#st &7-'.
*ee (ar%enter M&7-4N.
had !een introd#ced in the &7:: (onvention) where!y the colonial %owers agreed to allow only trade in marked ivory within their territories. For the %#r%oses of the &7:: <ame .eg#lations) the inha!itants of the $ritish +ast Africa Protectorate were classified into fo#r) namely; %#!lic officers) settlers s%ortsmen and natives.&" This classification was #sef#l in sec#ring for different gro#%s8 rights to wildlife reso#rces for their
diverse needs. The natives were however) excl#ded from accessing these reso#rces since their traditional h#nting methods were o#tlawed !y the %rovisions of the (onvention. &7 They were also not %ermitted to own firearms. -: *%ecial %ermission to h#nt was sec#red for scientific %#r%oses along with a !lanket %rovision that the reg#lations against h#nting co#ld !e relaxed =for im%ortant administrative reasons) or...necessitated !y tem%orary diffic#lties in the administrative organisation of certain territories.= -& (olonial conservation %olicies were marked !y the am!ig#ity !etween conservation merits) the right to h#nt and the >#est for economic develo%ment defined %rimarily as an incident of agric#lt#ral activity. -- ,ike for most colonial %olicies) the o!?ectives of game conservation were ha%haDard and not very well tho#ght o#t. The %rimacy of economic ret#rns from the colony thro#gh commercial agric#lt#re o!sc#red the im%ortance of wildlife) which was in many cases %erceived as a menace for the farmers8 cro%s and livestock) th#s ?#stifying indiscriminate shooting.-4 It is indeed nota!le that Africans were not re%resented in the %rocess of making %olicies on game conservation and were) th#s) only relevant in the im%lementation. The colonial administrators ass#med %aternalistic attit#des towards Africans) whose interests were ex%ected to !e voiced !y officials s#ch as the (hief 2ative (ommissioner W a +#ro%ean. /oreover) in searching for ways to conserve wildlife) no attention was %aid to the African traditional %ractices) which formed %art of the text#re and meaning of comm#nity life) some of which had ens#red that
wild animals were not over6harvested.-5 /odels esta!lished in 2orth America and +#ro%e were im%orted into the colonies. Indeed) the idea of national %arks) for instance) originated from America where they were a c#lt#ral ex%ression of val#es of %ristine and nat#re6magnificent
&" *ee &7 *ee
Government Ga2ette o, the Iriti&h Ea&t $,rica rotectorate MOcto!er &3)&7::; 74N. Article II B"C) &7:: (onvention. see also (arr M&7 4;& 4N) arg#ing that the #se of snares and %its ca#sed #ntold s#ffering to the animals !efore they died)
-: I#id,
which %ains sho#ld have !een meas#red against the loss to the farmers of cro%s.
-& *ee -- *ee. -4 *ee -5 *ee
Article III) &7:: (onvention. for exam%le) /c(racken M&7" ; '4N. Jeager K /iller M&7"'; 'NE $ertram M&7&7; 47&NE $ertram M&747N. Anderson K <rove M&7" N.
Internal Teaching Use Only 4-'
landsca%es.-3 1ildlife Laws and !olicies P e17:;> W%l*l%fe Le$%slat%on %n Ken'a 1 9&s to 198&s The first wildlife reg#lations were introd#ced into 0enya in &"77. Dwindling animal %o%#lations had led to the creation of the first 0enyan reserve in &"7'. In &7:-) the *o#thern <ame .eserve was esta!lished and a com%lete !an on h#nting im%osed. -' The 0enya <ame De%artment was esta!lished in &7: . (olonial wildlife %olicy was geared %rimarily towards the ex%loitation of game thro#gh h#nting. The role of the colonial government in wildlife conservation was conceived in terms of limiting and controlling h#nting activities. - The rights of the native Africans to h#nt wildlife were only recognised where it was a%%arent that wildlife formed a %art of the so#rce of food for a %artic#lar comm#nity or that the wildlife was a so#rce of menace to the
%erson or gro#% of %ersons.-" In these cases) the natives had the right to kee% any tro%hies o!tained from the animals exce%t ivory) which remained the %ro%erty of the government. It is noteworthy that the iss#es of wild animals or game %rotection and the esta!lishment and management of national %arks were dealt with #nder se%arate legislative instr#ments thro#gho#t the colonial %eriod and for some time after inde%endence. Initial game laws in 0enya were s#%%orted !y ardent s%ortsmen@h#nters) $ritish settler farmers engaged in agric#lt#re) and the h#manitarians) tho#gh for different reasons. The h#nters wanted to ens#re that they had a good s#%%ly of game to h#nt and were therefore in favo#r of reg#lated h#nting) the farmers wanted wildlife conserved as long as they were %ermitted to kill those animals that were a menace to their cro%s while h#manitarians a!horred all kinds of game killing and wanted h#nting sto%%ed. There was a fo#rth gro#%) which was o%%osed to any form of conservationE these were the traders in wildlife %rod#cts who %erceived game laws as a restriction on their trade activities. The fifth and weakest gro#% com%rised of the natives who had lived with
-3 *ee -' *ee -
2ash M&7"-NE IEC1, Fir&t /orld Con,erence on 1ational ark&, A%%endix ( B&7'-C. Jeager K /iller M&7"'N.
*ee sections ) ") -4 K -5) <ame Ordinance) (ha%ter &'&) Title OIO ) ,aws of 0enya B&7-'C. section 45 of the <ame Ordinance 2o. 3" of &7-& %roviding that =2otwithstanding anything contained in this
-" *ee
Ordinance) when the mem!ers of any native tri!e or the native inha!itants of any village a%%ear to !e de%endent on the flesh of wild animals for their s#!sistence or when it is shown that any wild animals are ca#sing damage to the lands or %ro%erty of any natives) the District (ommissioner of the district may !y order addressed to the chief of the tri!e or the headman of the village a#thorise the tri!esman to kill animals s#!?ect to conditions on the mode of h#nting...= *imilarly) section 43 of the <ame Ordinance (ha%ter &'& in Title OIO of the ,aws of 0enya B&7-'C %rovided for the %ower of the <overnor to %ermit the killing of game animals to avert a serio#s menace or
d#ring famine or threat of famine.
the wildlife) and some of whom de%ended on it for food and clothing. This last gro#% was o%%osed to the game laws) firstly !eca#se they constit#ted an interference with their traditional way of life and) secondly) !eca#se they were not cons#lted as the %olicies were form#lated. (olonial a#thorities had to !alance the interests of the diverse gro#%s and game laws in the colony) which were at different times a reflection of the changing socio6%olitical sit#ation when the %ower exercised !y different gro#%s changed within the constantly evolving milie#. 1hile s%ortsmen) h#manitarians and government officials ?oined forces to end game destr#ction in 0enya) the conservation %olicies %#t in %lace !y dint of the &7:: (onvention had the effect of kee%ing Africans o#t of the l#crative tro%hy trade. -7 <ame laws in 0enya were very severe from the o#tset. The initial laws act#ally attem%ted to force landowners to %reserve game on their agric#lt#ral %ro%erties. These laws failed largely d#e to o%%osition from settler farmers) who increasingly ac>#ired immense %owers to kill game on their farms and aro#nd those farms. In ?#stifying game %rotection laws) it was fre>#ently noted that game was a !ig so#rce of reven#e for the colony4: 9owever) s#ch reven#e) the settler farmers arg#ed) had to !e meas#red against the losses inc#rred !y farmers from the de%redations of wild animals.4& The game laws %assed !etween &7:: and &75: gave settler farmers control over their %ro%erty)
%ermitting them to kill wild animals that were a menace to their cro%s while government control of wildlife in native areas was tightened.4- In dealing with wild animals) a distinction was drawn !etween native areas and highlands W settlers in the highlands co#ld kill wildlife to %rotect their cro%s while the natives co#ld not. /oreover) the &7-& <ame Ordinance o#tlawed lions and !#ffaloes) which were %erceived !y settler farmers as vermin) from +#ro%ean lands !#t not from native areas.44 9#nting licence fees for settler farmers were also red#ced. Until &74 ) landowners) defined to excl#de all natives) co#ld chase and kill animals o#tside their land. 45 The &7-" <ame Ordinance made it illegal for a landowner to conserve game if it was a n#isance to his neigh!o#rs. It also %rohi!ited the ca%t#re of game or h#nting on %rivate land witho#t the consent of the owner or occ#%ier of s#ch land. The colonial administration th#s released the control of game on settler lands !#t not on native lands. In this way) colonial wildlife %olicies #ndermined native exercise of their rights to the land they occ#%ied) since c#ltivated %ieces were %rone to de%redations !y wildlife and the natives co#ld not ward off these menaces
-7 *ee 4: *ee 4& *ee)
Frank M&7-4N. ,egislative de!ates for the &7- and &74 Ordinances. for exam%le) .e%ort of the game 1arden of the $ritish +ast Africa Protectorate B&7:"C noting that it was not %ossi!le to
maintain the !ig herds of wild animals on lands occ#%ied !y settler farmers.
4- *ee)
for exam%le)7:7 1ildlife Ordinnance) which %ermitted land owners to destroy animals com%eting with them !#t defiend
land owners to excl#de Africans. The only concession given to Africans in this Ordinance was for those that relied on wild animals for food to contin#e their traditional h#nting.
44 (olony
and Protectorate of 0enya) Ordinance 2o. 3" of &7-&.
45 (olony
and Protectorate of 0enya) &7-" <ame ordinance.
Internal Teaching Use Only 4-"
legally. F#rther) the government de%artments charged with the task of %rotecting African farms against wildlife !y containing s#ch wildlife in areas o#tside those occ#%ied !y the natives were not ade>#ately staffed and or e>#i%%ed to deal with the %ro!lem. 43 They concentrated mainly on arresting natives who killed wildlife Bwhether in defence of %ro%erty or otherwiseC. The lack of ade>#ate staff was attri!#ted to ins#fficient f#nding for the game de%artment. This was ironical !earing in mind the amo#nt of money that the de%artment collected from ivory sales) fines for flo#ting game laws and licence fees. The co#ntry was divided generally into occ#%ied areas) game reserves and game %reserves. Occ#%ied areas were defined as those areas in which settler farmers had rights to land and it was agreed in %rinci%al that game co#ld not !e %reserved in these areas. The landowner in this case owned the game and co#ld either exterminate it or %reserve it. <ame reserves) on their %art were a!sol#te sanct#aries) %erceived as %ermanent and not %ermitting h#man ha!itation. ,astly) game %reserves com%rised (rown ,ands and native reserves where shooting ex%editions were allowed. The Africans were %res#med to !e ca%a!le.of co6existing with the wildlife and not a threat to the existence of that wildlife. 1hat the colonial a#thorities failed to acce%t was the fact that the way of life of the Africans had !een altered considera!ly !y the reserve system and other %olicies
introd#ced !y the colonial a#thorities. There was no longer as m#ch land as there had !een for the co6existence of the natives and wildlife. The killing of wild game regarded as agric#lt#ral %ests or carriers of disease led to the &744 (onvention disc#ssed a!ove. This (onvention em%hasised !iological conservation as a %rime f#nction of national %arks and %layed a ma?or role in infl#encing the conce%t and develo%ment of %arks in Africa. It defined a national %ark as an area; B&C %laced #nder %#!lic control) the !o#ndaries of which shall not !e altered or any %ortion !e ca%a!le of alienation exce%t !y the com%etent a#thorityE B-C set aside for the %ro%agation) %rotection and %reservation of fa#na and flora and o!?ects of aesthetic) geological) %rehistoric) historical) archaeological) or other scientific interest for the !enefit) advantage or en?oyment of the general %#!licE B4C in which the h#nting) killing) or ca%t#ring of fa#na and the destr#ction or collection of flora is %rohi!ited exce%t !y or #nder the direction and control of %ark a#thorities. Provided that facilities !e given as far as %ossi!le to the general %#!lic for o!serving flora and fa#na in the national %arks.4'
43 *ee 4' *ee
Akeley K Akeley M&74:N. Article 4B&C of the (onvention .elative to the Preservation of Fa#na and Flora in their 2at#ral *tate) signed at
,ondon) " 2ovem!er &744)&74' U2T* -5-) which ado%ted the %rovisions of the &7:: (onvention. (f. Article & %aragra%h & of the 1ashington (onvention of &75:) which defined a national %ark as an area esta!lished for the %rotection of s#%erlative scenery) flora) and fa#na of national significance) which the general %#!lic may en?oy
Following the &744 (onvention) closed seasons were introd#ced in 0enya to ens#re that there was time for rearing of the yo#ng animals. D#ring those %eriods) h#nting was severely restricted even for %ersons holding licences. Des%ite the n#mero#s legislative %rovisions %ertaining to conservation of wildlife) the n#m!ers of animals in the Protectorate contin#ed to go down !eca#se
of the allowances made for the +#ro%ean s%ortsmen and settlers. It is noteworthy that in the com%#tation of the n#m!ers of animals allowed for a licensed %erson) animals killed on a settler8s farm were not incl#ded. The effect of this %rovision was to mask the n#m!er of animals act#ally taken. The increase in %oaching activities also contri!#ted significantly to the dwindling n#m!ers of animals. 1hile the %ermission granted to settlers to h#nt mara#ding animals was in itself an admission of the fail#re of the game %olicy %#t in %lace !y the government) no consideration was given to the interests of Africans for com%ensation or stemming of the game %ro!lem. The latter had to de%end on District (ommissioners and game wardens to %rotect their cro%s. They had to convince these officers that the danger to cro%s was real and not imagined or exaggerated !efore any action co#ld !e taken. The &744 <ame BAmendmentC Ordinance so#ght to deal with the growing %ro!lem of %oaching and sm#ggling of tro%hies !y increasing game officials. 9onorary game wardens who had !een a%%ointed as early as &7-3 to assist %rimary game wardens were increased and assistant game rangers also a%%ointed. In &74 ) amendments were made to the existing legislation on wildlife) aimed at tightening restrictions on h#nting) red#cing %oaching and to deal with the h#nting of animals thro#gh the #se of a#tomo!iles and aero%lanes. This legislation made the conditions for
h#nting !y settlers of animals destroying their cro%s more stringent and increased reg#lation on the ca%t#ring of animals.4 198&s to independence The .oyal 2ational Parks of 0enya Ordinance) &753 signalled a shift in colonial conservation %olicy from %rotection thro#gh h#nting legislation to %reservation thro#gh land %rotection as a res%onse to increased h#man and livestock %o%#lations. It was %rom#lgated on the !asis of recommendations made !y the <ame Policy (ommittee) which had !een a%%ointed !y the colonial government in &74". The %ream!le to this Ordinance descri!ed the o!?ective of the Ordinance as !eing;
to provide ,or the e&ta#li&hment o, national park& and ,or the pre&ervation o, wild animal li,e, wild vegetation and o#3ect& o, ae&thetic, geological, prehi&toric, archaeological,
and from which it may !enefit when %laced #nder %#!lic control.
4
*ee &74 <ame Ordinance.
Internal Teaching Use Only 44: hi&torical or other &cienti,ic intere&t therein and ,or incidental matter& relating thereto. 0)
The Ordinance vested the <overnor with %ower) s#!?ect to the consent of the legislative co#ncil) to declare any area of land a national %ark thro#gh %roclamations in the gaDette. The <overnor had to seek the consent of the 9ighlands $oard or the 2ative Tr#st $oard if he intended to declare land in the highlands or the native areas) res%ectively) as national %arks. 47 The res%onsi!ility for national %ark control and management was vested in a $oard of Tr#stees) whose mem!ershi% was drawn largely from colonial settlers and re%resented their interests. 5: They were to
control entry into %arks and residence therein) h#nting and the dis%osal of wildlife %rod#cts. 5& The Ordinance also %rovided for the esta!lishment of national reserves) which constit#ted any areas where the Tr#stees had !een granted com%lete or %artial control or certain s%ecific rights whether s#ch area was contig#o#s to a national %ark or not. 5F#rther ste%s were taken vide the &73& 1ild Animals Protection Ordinance) which %roscri!ed h#nting witho#t licences or %ermits.54 It ex%licitly %rovided that in order to enter African land #nits to h#nt or shoot) a %ermit was re>#ired from the local District (ommissioner who had %ower to levy fees for the #se of African land #nits for s#ch activities. 55 These fees were to !e #sed to develo% land within which h#nting was carried o#t. F#rther) the Act confirmed the rights of %rivate landowners to %recl#de o#tsiders from h#nting on s#ch %rivate land witho#t o!taining the owner8s consent.53 The &73& Ordinance was amended in &73 .5' The new law made %rovision for increased %enalties for %oaching) the em%owerment of local co#ncils to %ass !y6laws to control game and the creation of controlled areas in African land #nits. 5 A nota!le characteristic of colonial wildlife laws is the #se of criminal sanctions to ens#re adherence to the r#les set.5" The %ossession of game animals) meat and tro%hies was made an offence) as were certain methods of h#nting. 57 <ame conservation %olicies also inordinately
4" *ee
Pream!le to &753 2ational Parks Ordinance 2o. 7 of &753) <overnment of 0enya) (ha%ter -&3) Title OIO FO,.
II) ,aws of 0enya B&75"C.

47 I#id, 5: I#id, 5& I#id,
at section -. at section &-. at section &".
5- l#id,
at section 4. $y dint of this Ordinance) the 2airo!i 2ational Park was esta!lished in &75') the Tsavo 2ational Park in
&75") /o#nt 0enya 2ational Park in &757 and A!erdares 2ational Park in &73:.
54 *ee
The 1ild Animals Protection Ordinance) 2o. &" of &73&. at section &".
55 I#id, 53 *ee 5' *ee 5
section &7 of the &73& Ordinance. the 1ild Animals Protection BAmendmentC Ordinance) 2o. &- of &73 .
*ee sections 4) 5 K of the &73 BAmendmentC Ordinance) 2o. &- of &73 . for exam%le) sections 3& and 3- of the <ame Ordinance (ha%ter -&' in Title OIO of the ,aws of 0enya B&75"C and Part
5" *ee)
F of the &73& Ordinance..

57 *ee
section 4- of the &753 <ame Ordinance) and section 43 of the <ame Ordinance 2o. 3" of &7-&.
em%hasised the %ayment of rewards for fo#nd ivory) which the government %#rchased) and the #se of the re%orter system to catch %oachers. This did not) however) stem the %oaching %ro!lem as new markets were >#ickly fo#nd for ivory. $esides) %ayments made !y the government to informers had to !e large eno#gh to make it worth re%orting rather than co6o%erating with the %oachers. It has also !een arg#ed that this system enco#raged Africans to h#nt and kill wildlife and then re%ort the ivory harvested as fo#nd and rea% rewards therefore. The %revalence of !reach of game r#les #ndermined the %olicing ca%acity of the *tate. The game de%artments were #nderstaffed and not well e>#i%%ed to %#rs#e the so%histicated %oachers) es%ecially those #sing a#tomo!iles and aero%lanes) since they did their work on foot. 3: This made it diffic#lt to a%%rehend h#nters witho#t licences too. The %rinci%al offenders #nder game laws
were) th#s) invaria!ly the natives who were easy targets for the wardens !#t not the really !ig %oachers.3& Institutions for Conservation The main instit#tions esta!lished for conservation were the 0enya 2ational Park6 Organisation B02POC and the <ame De%artment. 1hile the former administered national %arks) the latter administered and controlled all wild animals o#tside the national %arks) incl#ding those on %rivate land. 02PO had a $oard of Tr#steeL whose res%onsi!ility was to manage and control national %arks. F#rther) the $oard was vested with the %ower to s#e) !e s#ed and to ac>#ire %ro%erty for %#r%oses connected with conservation.3- In addition to the $oard of Tr#stees) honorary wardens and honorary tr#stees were a%%ointed to hel% the $oard in reaching decisions on day to day management of conservation areas.34 The mem!ers of the $oard) honorary wardens and tr#stees were all +#ro%eans.35 The game de%artment assisted and advised local co#ncils to esta!lish game reserves in which the h#nting of wildlife was for!idden. In areas o#tside the game reserves) co#nty co#ncils allowed licensed h#nting to take %lace #nder the control of the <ame De%artment. This De%artment em%loyed game wardens and game sco#ts) who were charged with the task of controlling game on African land and a%%rehending %eo%le who h#nted witho#t licences. The instit#tion of game wardens and game sco#ts was strengthened !y the &753 Ordinance) which gave them %owers to
3: *ee)
for exam%le) /om!asa District Ann#al .e%ort) 5"657 B&743C.
3& *ee
also Digo District Ann#al .e%ort) 5" B&743C and Provincial (ommissioner) (oast Province Ann#al .e%ort &
B&74"C
referring to =!ig wheels= !ehind the %oaching %ro!lem.

3- *ee
section G@ of the &753 2ational Parks Ordinance. at section 3B4C. at section 3 where no mention is made of the re%resentation of African interests. *ee also Colony S rotectorate o,
34 I#id, 35 I#id,
Kenya, Game olicy Committee, (olony and Protectorate of 0enya) *essional Pa%er 2o. of the (ommittee. of &73 @3") 53 B&73"C for a list of mem!ers
arrest and search h#nters witho#t licences. 33 The (hief 2ative (ommissioner and the District (ommissioners in the native areas also %layed the role of managing game in these areas. It was their res%onsi!ility to a#thorise the killing of game if) in their view) s#ch game was a menace to African farmers. It was also they that determined whether the natives co#ld h#nt game for food.3' In some cases) chiefs were given %owers to manage game in the African areas. It is noteworthy that game wardens and sco#ts were not traditional leaders and the chieftaincy had !een so modified to s#it the colonial administration8s interests that the chiefs #sed co#ld not !e termed traditional leaders. Informers were also #sed to hel% in the a%%rehension of illegal h#nters. 3 1ildlife Conservation and )anagement Act Cap= 2,8,1+,8 <Amended in 1+/+> The first attem%t at a com%rehensive %olicy on wildlife management in 0enya is contained in *essional Pa%er 2o. 4 of &7 3. This %olicy was a radical de%art#re from the %reservationist %olicies %receding it. It recognised the val#e of wildlife !oth within and o#tside %rotected areas. This doc#ment identified the %rimary goal of wildlife conservation as the o%timiDation of ret#rns
from wildlife) defined !roadly to incl#de aesthetic) c#lt#ral) scientific and economic gains) taking into acco#nt the income from other land #ses. +conomic gains were s%ecified to derive from !oth to#rism and cons#m%tive #ses of wildlife. The need to identify com%ati!le land #ses was also cited as an integral %art of the %olicy along with the im%lementation of s#ch #ses and fair distri!#tion of !enefits derived therefrom. The need to minimiDe de%redations !y wildlife on agric#lt#ral land and the need to s#%%ort to#rism were also #nderscored. Under the %olicy) the h#man6wildlife conflict was %erceived to !e a clash of interests of conservationists and nonconservationists and its sol#tion considered to !e an integrated a%%roach to land that wo#ld maximise ret#rns from all reso#rces) incl#ding wildlife. The %olicy also recognised that wildlife needed s%ace o#tside the %rotected areas if it was to flo#rish witho#t intensive management and ecological im%overishment. It envisioned that additional s%ace for wildlife management wo#ld !e sec#red from landowners willing to accommodate wildlife. *#ch accommodation wo#ld arise !y dint of %olicies enco#raging landowners to incor%orate wildlife with other forms of land #se and rea%ing the !enefits thro#gh to#rism) cro%%ing for meat and tro%hies) game ranching) live animal ca%t#re for restocking or ex%ort and the #se of val#e added %rocessing of animal %rod#cts. These #ses were to !e %romoted and reg#lated !y the wildlife a#thorities in the interests of making a net contri!#tion to 0enya8s economic and social develo%ment. Under the %olicy) wildlife a#thorities were to !e facilitators) advisors and assessors working with landowners and residents in wildlife range areas in the
33 *ee
section &4 of the &753 <ame Ordinance.
3' I#id.
-ee generally the &753 2ational Parks Ordinance) and the &753 <ame Ordinance.
co#ntry) and not %olicemen. The government also #ndertook the general res%onsi!ility of assisting with the %ro!lem of animal control in instances of wildlife im%inging adversely on h#man life and %ro%erty) within the limits of availa!le reso#rces. /oreover) the %olicy indicated a %reference for flexi!le reg#lations a!le to ca%t#re local needs and antici%ate f#t#re changes in generating o%tim#m ret#rns from wildlife rather than rigid legislative %rovisions. The c#rrent o%erative 1ildlife B(onservation and /anagementC Act esta!lished the legal %rovisions for the &7 3 %olicy. 3" It consolidated the wildlife %rotection and national %arks laws in 0enya and merged the 2ational Parks Organisation with the <ame De%artment. The Act esta!lished the 1ildlife (onservation and /anagement De%artment B1(/DC #nder the /inistry of To#rism and 1ildlife to re%lace the 2ational Parks $oard of Tr#stees. This De%artment !ecame the overall wildlife management a#thority for wild animals on *tate land) tr#stland and %rivate land. In %artic#lar) it was the res%onsi!ility of the De%artment to ens#re that wildlife reso#rces gave the !est %ossi!le ret#rns to individ#als and the nation in terms of c#lt#ral) aesthetic and economic gains. In &77:) the 01* was forme to re%lace the 1(/D. It has !een noted that the word =*ervice= was deli!erately #sed in designating this new !ody to convey the ex%ectation that this !ody was to contri!#te to the welfare of local comm#nities. The new !ody was charged with
the task of ens#ring that wildlife reso#rces were s#staina!ly #sed for national economic develo%ment and for the !enefit of %eo%le living in wildlife areas. 37 It was charged with the task of managing 0enya8s 3' conservation #nits B-' national %arks and 4: national reservesC and also wildlife o#tside %rotected areas. The Act) however) retained most of the %rovisions on conservation rather than ingraining s#staina!le management des%ite !eing cast within the framework of a far6reaching %olicy. It vests the %owers of management and control of %rotectee areas in a consolidated service of the government) 01*. The o!?ective of the stat#h is to ens#re that wildlife is managed and conserved for the !enefit of the nation generally and certain areas in %artic#lar. The antici%ated !enefits to !e rea%ed incl#de c#lt#ral) aesthetic) scientific and economic ones) s#!?ect to the %ro%er wildlife management and conservation. The system of wildlife conservation esta!lished #nder the Act contains nat#re in %rotected areas in which other forms of land6#se are excl#ded. The /inister res%onsi!le for wildlife is em%owered !y the Act to declare any area of land a national reserve or game %ark after cons#lting with the relevant !odies. These areas are %#t #nder %#!lic control for the %ro%agation) %rotection and %reservation of wild animal life and wild vegetation and sho#ld ideally !e s#!?ect to minimal alteration or alienation for other forms of land6#se activity. The law %rovides for fo#r ty%es of wildlife %rotected areas) namely; national %arks) national
3" *ee 37 *ee
.e%#!lic of 0enya M&7 3N.
section 4Aof the &7"7 1ildlife (onservation and /anagement Act BAmendmentC.
reserves) local sanct#aries and game reserves. The first three are vested in the central government) with h#man activities com%letely excl#ded from national %arks. Fario#s degrees of h#man activities are allowed within the national reserves as long as they are com%ati!le with conservation efforts or re>#irements. <ame reserves are conservation areas vested in local a#thorities B(o#nty (o#ncilsC) who administer them #nder the overall g#idance and control of the relevant government ministry B/inistry of ,ocal <overnmentC. The (o#nty (o#ncil holds game reserves in tr#st for the residents of the area and !oth restricts the infl#x of new immigrants and controls the n#m!er of livestock ke%t on the land. The (o#ncil owns the land in the reserves. <ame reserves are created !y the 1ild Animals Protection Ordinance of &73&. *ection &"B!C %rovides for the contin#ed existence of already demarcated game reserves !#t changes their name to national reserves. 9owever) game reserves managed !y local a#thorities have !een created with the s#%%ort of the government. This a%%roach is meant to facilitate local %artici%ation) !oth in wildlife conservation meas#res and in the !enefits that accr#e from wildlife %rotection. F#rther) the law acknowledges the need to take into acco#nt varied forms of land #se and the inter6relationshi%s !etween these and wildlife conservation !#t does not lay o#t the necessary framework for doing so. *ection -7B-C made %rovision for owners of %rivate land o%ening their land #% for h#nting of game. *ection 5 a#thorised game ranching and cro%%ing s#!?ect to conditions set o#t !y the /inister res%onsi!le for wildlife. This latter %rovision %ermitted landowners to kill meat %rod#cing animals #nder so#ndly managed %roced#res and was in line with the o!?ective of ens#ring that landowners sec#red ret#rns from h#nting done on their land. 9owever) with increased illegal taking of wildlife and the attendant threat with extinction of s%ecies s#ch as
rhinos and ele%hants) the 0enya government) in res%onse to worldwide %ress#re) !anned all game animal h#nting in &7 .': It also revoked all licences to trade in wildlife %rod#cts. '& This led to the clos#re of %rofessional h#nting com%anies and sho%s dealing with game tro%hies. 1ildlife6!ased to#rism was left as the only legal form of #tilisation. This red#ced the val#e of land for comm#nities that had earned reven#e thro#gh granting h#nting concessions. Anti%oaching meas#res were %#t in %lace and %atrols increased to enforce these meas#res. The government) th#s) a%%ro%riated to itself the res%onsi!ility for all wildlife in the co#ntry) incl#ding that on %rivately6owned land) de%arting from meas#res taken from the late &75:s to the &7 :s to enlist the %artici%ation of individ#al and comm#nity land owners in wildlife management. (onse>#ently) the %#!lic ex%ects the government to %ay for wildlife conservation
': *ee
the 1ildlife B(onservation and /anagementC BProhi!ition on 9#nting of <ame AnimalsC .eg#latios) 4: 0enya <aDette C.
*#%%lement B/ay -:)&7

'& *ee
the 1ildlife B(onservation and /anagementC B.evocation of Dealer8s ,icencesC Act 2o. 3 of &7 ") 43 I <aDette
*#%%lement B-4 G#ne &7 "C.
and management6related costs. The Act) res%onding to increasing h#man6wildlife conflicts) %rovides for com%ensation to landowners who s#%%ort wildlife on their land and for %ro%erties destroyed !y wildlife. F#rther) 01* im%lements a scheme for reven#e sharing of %ark entrance fees with r#ral comm#nities as a way of enco#raging those comm#nities to take %art in wildlife conservation. It also makes %rovision for District (om%ensation (ommittees to assess com%ensation claims. 9owever) these committees do not f#nction effectively. (a%. 4 ' has !een widely %erceived as inade>#ate in dealing with wildlife management
%ro!lems in the light of changed circ#mstances and a new law is c#rrently #nder %re%aration. *ome of the factors necessitating revisions to the law are the ascendance of !iodiversity to a %osition of %rime im%ortance internationally) as evidenced !y the coming into force of a %lethora of international instr#ments for its conservation and s#staina!le #se) s#ch as the Convention on Iiological 8iver&ityH' and the contin#ed ina!ility of government agencies to integrate) harmonise and enforce land #se %olicies and legislation intended to conserve wildlife and other nat#ral reso#rces. The three o!?ectives of the (onvention are conservation Bnot %reservationC) s#staina!le #se and fair and e>#ita!le sharing of !enefits emanating from !iological reso#rces. These %rinci%les are relevant to wildlife management and are de%osited in the framework environmental law) +/(A. The initiatives taken to create %ositive incentives for s#staina!le management of wildlife o#tside %rotected areas s#ch as comm#nity %artici%ation and the now ended %ilot cro%%ing %rogramme are o#tside its %#rview and need to !e ingrained in a revised wildlife %olicy and legislation. Atte#(ts at Re)%s%on of W%l*l%fe LaCommunity participation in #ildlife management In &77-) 01* esta!lished the (omm#nity 1ildlife *ervice De%artment) which was charged with ens#ring good management of wildlife o#tside %rotected areas for the !enefit of comm#nities who interact with wildlife) to create tr#st and dialog#e !etween 01* and those comm#nities) hel% comm#nities !enefit from wildlife and %rotect them against losses ca#sed !y wildlife) and also
initiate colla!oration with other sectors concerned with land #se. Thro#gh it) some of the financial !enefits accr#ing from wildlife conservation are channelled to local comm#nities thro#gh the constr#ction of amenities like schools and hos%itals) water s#%%ly and cattle di%s. This is in a !id to red#ce the conflict !etween wildlife and h#mans and to mo!iliDe comm#nities to %artici%ate in s#staina!le wildlife conservation and #tilisation %rogrammes for their own economic gains. The main o!?ectives of the De%artment are to; &C To minimise conflicts !etween wildlife and man o#tside %rotected areas W %rotect h#man life and %ro%erty from wildlife de%redationE -C To
'- United
2ations (onference on +nvironment and Develo%ment) Convention on Iiological 8iver&ity, .io de Ganeiro) 3 G#ne
&77-) re%rinted in 4&&.,./. "&" B&77-C.
disco#rage h#man encroachment into wildlife %rotected areas W strengthen the relationshi% !etween 01* and %eo%le living o#tside %rotected areas thro#gh dialog#eE 4C To enco#rage comm#nities o#tside %rotected areas to assist in the conservation and management of wildlife reso#rces where it is a via!le land #se systemWth#s comm#nities to !e enco#raged to a%%ly for wildlife #se rights in areas o#tside the %rotected areas and there to !e a memorand#m of #nderstanding !etween comm#nities living o#tside %rotected areas on a clear land #se %olicyE reven#e sharing schemes and %ro!lem animal control to !e initiated !y 01*E and 5C To enco#rage comm#nities to #ndertake economically healthy wildlife6related %ro?ects W create income generating %ro?ects) !oth cons#m%tive and non6cons#m%tive) related to wildlife to l#re comm#nity
s#%%ort for wildlife conservationE ed#cate %eo%le on the im%ortance of wildlife conservation for %resent and f#t#re generationsE and also ingrain a sense of s#staina!le management to ens#re contin#ed flow of !enefits.'4 Another mechanism for enlisting comm#nity s#%%ort thro#gh the (omm#nity 1ildlife *ervice #ntil -::- was thro#gh granting of wildlife #se rights to comm#nities in %ilot wildlife #tilisation schemes started in some areas. To o!tain wildlife #se rights) one has to !e a %rivate landowner or a comm#nity having rights to a %iece of land) %rovide 01* with a wildlife management %lan) a ma% of the ranch and res#lts of a recent game co#nt and indicate the >#ota a%%lied for. 01* assists individ#als and gro#%s in drawing management %lans. Possi!le %ro%osed #ses for wildlife in the ranch incl#de cro%%ing) h#nting for home cons#m%tion) live animal ca%t#re for translocation) !ird shooting) game farming B!#t no s%ort@safari h#nting) which has a higher val#e and is a lesser damaging #seC. One can a%%ly for all forms of #se. Use rights are granted to individ#al ranches or associations of ranches that have formed a wildlife management #nit. They were for an initial five years and can !e renewed. Once an a%%lication was a%%roved) the land is registered with the 01*Wno fee is c#rrently charged. D#ring the d#ration of the licence) the landowner is o!liged to %rovide 01*
with >#arterly re%orts s%ecifying the off6take !y s%ecies) n#m!ers and sex. The #ser sho#ld also ex%lain the #se to which the animals taken were %#t and the manner in which %rod#cts s#ch as meat) skins and horns were dis%osed off. The %ilot %rogramme also incl#ded a %lan to share -3 %er cent of %ark reven#es with comm#nities neigh!o#ring %rotected areas) which was never im%lemented. The %ilot %rogramme contin#ed for ten years and was discontin#ed with no alternative incentives !eing %rovided to comm#nities and land owners to manage wildlife on their %ro%erties. $esides) the o%eration of the %ilot %rogramme was within the context of !ans on h#nting and trade in wildlife %rod#cts instit#ted in &7 cro%%ers who co#ld not sell their tro%hies and other animal %rod#cts) !esides meat.
'4 *ee
. This %resented %ro!lems for
0enya 1ildlife *ervice M&77-N.
199 7raft 9ill In %ractical terms) coming #% with a worka!le %lan for wildlife management that !oth ens#res s#staina!le management of wildlife reso#rces and takes into acco#nt the needs of comm#nities living in or near %rotected areas wo#ld dictate that the *tate divest itself) to some extent) of the rights to wildlife reso#rces. It also calls for the devol#tion of !oth wildlife ownershi% and management rights to local comm#nities. 1hile the %ream!le to the Draft $ill vests 01*) on !ehalf of the *tate) with overall wildlife management a#thority) it acknowledges the need for ens#ring the highest and !eneficial %artici%ation of local comm#nities in wildlife management and conservation. It also %oints to the need to strike a !alance !etween %rotectionism and #nreg#lated wildlife #tilisation. Th#s) it
advocates the %romotion of wildlife #tilisation consistent with scientifically and internationally acce%ted conservation %ractices) maximiDing !iodiversity %rotection in !oth %rotected and #n%rotected areas and minimiDing h#man6wildlife conflicts to ens#re long6term harmonio#s co6existence of %eo%le and wildlife. The $ill also seeks to catalyse the growth of national conservation constit#encies and %artnershi%s within the wildlife sector and to streamline comm#nity6!ased and reg#lated com%ensation %roced#res %#rs#ant to damage ca#sed !y wildlife in a !id to create incentives for wildlife management. The draft $ill does not go as far as to grant rights to wildlife reso#rces to landowners) individ#als and comm#nities. It %rovides that the ownershi% of all wildlife fo#nd in 0enya) whether on %rivate) tr#st or %#!lic land) is vested in the *tate) which may) thro#gh 01*) grant wildlife #ser rights to individ#als) gro#%s or !odies cor%orate. To this extent) this law maintains the stat#s >#o) where!y local comm#nities8 and individ#als8 ownershi% of land reso#rces is circ#mscri!ed !y the limitations that having wildlife on their land im%oses. The landowner !ears the lia!ility for wildlife witho#t !enefiting from it. (onse>#ently) the incentives and investment that having %ro%erty rights to wildlife reso#rces wo#ld engender on the %art of s#ch %ro%erty holders are %re6em%ted. This arrangement is #nworka!le. It is noteworthy that the *tate) as the g#ardian of the %#!lic interest) needs to maintain a s#%ervisory role over wildlife management. The ass#m%tion !y the *tate of the entire !#rden of s#staina!le wildlife management !y dint of ownershi%) however) is not %ractica!le given the extent of wildlife ha!itat on non6*tate lands
The %rovision in the Uganda 1ildlife *tat#te &77' that the ownershi% of wildlife in the wild is vested in the government on !ehalf of and for the !enefit of the %eo%le of Uganda and that any wild animal lawf#lly taken !elongs to the taker is a more a%%ro%riate %rovision. The draft $ill %oints to the necessity to take varied forms of land #se into acco#n; and the interrelationshi% !etween !iodiversity conservation and management and other forms of land #se to ens#re !oth the com%ati!ility of m#lti%le land #ses and the fair distri!#tion of !enefits. At the im%lementation level) the $ill does not address the need for instit#tional changes in o%erationaliDing its %rovisions. It is indeed im%erative that the de%artments and ministries charged
with the task of managing wildlife reso#rces are re6organised and their sectoral mandates harmonised to ena!le them to facilitate the im%lementation of comm#nity and individ#al rights to land and wildlife reso#rces and land #se %lans. 44 9ill, %&&8 /ore recently) a %rivate mem!er8s !ill seeking to amend the 1ildlife (onservation and /anagement Act was ta!led !efore Parliament. '5 It addressed fo#r iss#es) namely; esta!lishment of a new $oard of Tr#stees for 01*E %rovision of ade>#ate and s%eedy com%ensation for in?#ry) loss of life and de%redations of cro%s and %ro%ertyE %rotection of wildlife migratory corridorsE and the right of cons#m%tive #se !y landowners) incl#ding sale of tro%hies) cro%%ing and h#nting. /ore s%ecifically) it so#ght to fix the levels of com%ensation for damage ca#sed !y wildlife) raising
it from the c#rrent fig#re of 0sh 4:)::: to 0sh & millionE to ex%and the 01* $oard of Tr#stees to incl#de landowners and comm#nitiesE and to %rovide for licences for cons#m%tive #se of wildlife. It is instr#ctive to note that this $ill was %assed !y Parliament !#t the President declined to assent to it. *ho#ld Parliament %ass it again witho%t amendments) it wo#ld !ecome law notwithstanding the a!sence of Presidential Assent. 3ngoing 1ildlife Law and !olic& eview In G#ly -::') the /inister for To#rism and 1ildlife a%%ointed a (ommittee and charged it with the mandate of reviewing the wildlife %olicy and law. The (ommittee has already generated a draft wildlife %olicy and is in the %rocess of drafting a revised wildlife law. Among the key iss#es that the committee has addressed are; Q Definition of wildlife Q 1ildlife ownershi% and res%onsi!ilities Q ,and #se changes@ha!itat fragmentation Q Incentives for land owners) comm#nities and %rivate sector Q 9#man wildlife conflicts and com%ensation Q +>#ita!le !enefit sharing Q 9#nting Q *trengthening the instit#tional framework for wildlife management Q Decentralisation and devol#tion of a#thority and res%onsi!ilities Q .oles of vario#s actors in the wildlife management and other related sectors 2either the &7 3 %olicy nor its im%lementing stat#te) the 1ildlife Act of &7 ') defines
'5 1ildlife
B(onservation And /anagementC BAmendmentC $ill -::5.
wildlife. The 1ildlife Act of &7 ' only defines an animal and a game in a very narrow sense. This has res#lted in the excl#sion of im%ortant fa#na and flora from the am!it of the reg#latory and management a#thority. This omission has res#lted in the loss of val#a!le !iodiversity and led to a skewed view of wildlife as encom%assing only large mammals excl#ding im%ortant ecosystems and ha!itats of which these are a %art of. In the draft 1ildlife Policy) wildlife is defined to mean;
any wild and indigeno%& animal, plant or micro!organi&m within, it& con&tit%ent ha#itat or eco&y&tem on land or in water, a& well a& &pecie& that have #een introd%ced into or e&ta#li&hed in Kenya.
It is) however) clear that most of the %olicy deals with wild animals and that a !alance has to !e str#ck with the coverage of wild %lants !y the Forestry Act) disc#ssed !elow. Among the main %ro%osals of the draft wildlife %olicy are to retain stewardshi% over the co#ntry8s wildlife reso#rces in the *tate on !ehalf of and for the !enefit of the %eo%le of 0enya.'3 The draft %olicy also %ro%oses the restr#ct#ring of 01* to ena!le it to effectively dis%ense its mandate) the devol#tion of wildlife management res%onsi!ilities to local comm#nities and land owners) maintenance of the integrity of %rotected areas and introd#ction of new and varied economic incentives for comm#nities) land owners) non6governmental organisations and the %rivate sector. The draft %olicy #nderscores the need for a national land #se %olicy to s#%%ort s#staina!le wildlife conservation and management and the need for creative #se of land management tools s#ch as tr#sts) easements and leases to maintain and ex%and the land area devoted to wildlife management.'' The wildlife %olicy and law review %rocess has !een %lag#ed !y controversies %artic#larly
regarding the iss#e of cons#m%tive #se of wildlife. It is also not clear what nat#re the restr#ct#ring of 01* will take. It is) however) not in do#!t that there is need to deal with h#manwildlife conflicts and %#t in %lace a %ractical and all6encom%assing com%ensation scheme. There is also a recognised need to change the instit#tional landsca%e for wildlife management !y giving more res%onsi!ilities and rights to local comm#nities and land owners) se%arating the reg#latory and o%erational wildlife management roles that 01* has %layed since ince%tion) ens#ring that local a#thorities that have wildlife not only earn reven#es from the wildlife !#t that they contri!#te to wildlife conservation and management roles) and most im%ortantly that land owners) comm#nities and other stakeholders have the necessary incentives to %artici%ate in wildlife conservation and management. Forestry .ct 1o( : of %&&! The Forestry Act has im%lications for wildlife reso#rce management and its relation with
'3 2ational
*teering (ommittee) Draft 1ildlife Policy) &' /arch -:: .
s#rro#nding comm#nities. It is a de%art#re from the old Forestry Act) and is more com%rehensive) covering as%ects of comm#nity %artici%ation and m#lti%le stakeholders8 involvement in forest develo%ment. The Act esta!lishes a Forestry *ervice) which is a !ody cor%orate res%onsi!le for; Q Form#lating forest sector %oliciesE Q /anaging all categories of forestsE Q Promoting forest ed#cationE Q Providing forest extension servicesE
Q Identifying research needs and a%%lying research findings) in colla!oration with research instit#tionsE and Q +nforcing conditions and reg#lations relating to all forest #tilisation activities. In addition to the a!ove) the Forestry Act has clear %rovisions for %artici%atory forests management and #ser rights for local comm#nitiesE +nvironmental Im%act Assessment) %#!lic cons#ltations and %arliamentary a%%roval) !efore de6gaDettement of forestsE esta!lishment of a Forest /anagement and (onservation F#nd) which receives f#nds from so#rces other than the treas#ry allocationsE and has %rovided for higher %enalties that will seek to deter those who engage in #nlicensed and illegal activities) s#ch as logging and charcoal %rod#ction. This Act) which has taken on !oard +/(A %rovisions) will infl#ence the management of wildlife in forest areas. For instance) the Act sti%#lates for form#lation of management %lans that re>#ire an inventory of the forest to !e taken with a view to determining the tr#e nat#re of the forest. *#ch an inventory will incl#de the wildlife reso#rces in the forest and will determine the conditions #%on which a management agreement is entered into !etween the Forests *ervice or local a#thorities and other %arties. The Act also allows for the formation of comm#nity forest associations to %artici%ate in the conservation and management of a *tate forest or local a#thority forest. The %resence of s#ch associations will im%act on the management of wildlife in the forest and there is need to synchronise the wildlife and forest management f#nctions to avoid conflicting mandates. En)% on#ent Mana$e#ent an* Co1o *%nat%on A!t: W%l*l%fe Relate* P o)%s%ons Rele)ant No #at%)e P o)%s%ons
The +nvironment /anagement and (o6ordination Act B+/(AC 2o. " of &777 %rovides for the esta!lishment of an a%%ro%riate legal and instit#tional framework for the management of the environment and for matters connected and incidental thereto. The %rom#lgation of this Act was aimed at ens#ring that there was an verarching legal framework to g#ide environment management in the co#ntries and to %rovide co6ordination within and among the vario#s sectoral
'' I#id.
laws and agencies dealing with environmental matters. ' rinciple& ,or &%&taina#le development *ection 3 lays o#t the %rinci%les of s#staina!le develo%ment) which are s#%%osed to form a !asis #%on which the co#rt) in exercise of its ?#risdiction) is to !e g#ided. These are; BaC the %rinci%le of %#!lic %artici%ation in the develo%ment of %olicies) %lans and %rocesses for the management of the environmentE B!C the c#lt#ral and social %rinci%les traditionally a%%lied !y any comm#nity in 0enya for the management of the environment or nat#ral reso#rces in so far as the same are relevant and are not re%#gnant to ?#stice and morality or inconsistent with any written lawE BcC the %rinci%le of international co6o%eration in the management of environmental reso#rces shared !y two or more statesE BdC the %rinci%les of inter6generational and intra6generational e>#ityE BeC the %oll#ter6%ays %rinci%leE and BfC the %re6ca#tionary %rinci%le. rotection o, the environment These %rinci%les #ndergird +/(A8s %rovisions for the %rotection and conservation of vario#s
ecosystems. For instance) they !ar the introd#ction of animals) whether alien or indigeno#s) into lakes or wetlands'" or the de%osit of any s#!stance likely to have an adverse environmental effect on a river or lake.'7 To ens#re s#staina!le management of s#ch ecosystems) +/(A %rovides for the develo%ment of a management %lan that addresses) among other iss#es) %reventing and control of %oll#tion) g#idelines for access to and ex%loitation of reso#rces) and the overall management of !iodiversity. : It is instr#ctive to note that in the develo%ment of s#ch a %lan) the traditional interests of local comm#nities are re>#ired to !e %rotected. & *imilar %rovisions are made with res%ect to mo#ntain areas and forests) - coastal Dones 4 and the oDone layer.
'
Okidi K 0ameri6/!ote M-::&N. *ection 5-c. *ection 5-e. *ection 5-B4C. *ection 54. *ections 5'657. *ection 33.
'" +/(A) '7 +/(A) : +/(A) & +/(A) - +/(A) 4 +/(A)
*ection 3:) dealing with the conservation of !iological diversity deserves s%ecial mention. It re>#ires the 2ational +nvironment /anagement A#thority B2+/AC) the !ody charged with coordinating all matters relating to the environment in 0enya) with identifying an inventory of all !iological diversity in 0enya) determining its threatened) rare and endangered com%onentsE %rotecting indigeno#s %ro%erty rights of local comm#nities in res%ect of the diversity) among others. *ection 3&BeC and BfC re>#ire the a#thority to %rohi!it and control the introd#ction of alien
s%ecies into nat#ral ha!itats and to integrate traditional knowledge for !iodiversity conservation with mainstream scientific knowledge. The a#thority is also mandated to iss#e g#idelines for the s#staina!le management and #tilisation of genetic reso#rces for the !enefit of the %eo%le of 0enya. These incl#de g#idelines on access to genetic reso#rces) the sharing of !enefits derived from the genetic reso#rces) !iosafety meas#res necessary to reg#late !iotechnology and meas#res necessary to reg#late the develo%ment) and access to and transfer of !iotechnology. 3 Under this %rovision) 2+/A has drafted reg#lations on access to genetic reso#rces) tho#gh these are yet to !e %rom#lgated. *ections 3& and 3- dealing with in &it% and e< &it% conservation of !iological diversity also have direct relevance for wildlife management. Under *ection 3) 2+/A is re>#ired to cons#lt with lead agencies in iss#ing g#idelines for land #se methods com%ati!le with !iodiversity conservationE selection and management of %rotected areas for terrestrial and marine ecosystemsE !#ffer Dones near %rotected areasE %rotection of s%ecies) ecosystems and ha!itats threatened with extinctionE %rohi!iting and controlling the introd#ction of alien s%ecies into nat#ral ha!itats and integrating traditional knowledge for the conservation of !iological diversity with mainstream scientific knowledge.
'
*imilarly) *ection 3 lays o#t %rovisions for e< &it% conservation in gene!anksE !otanical gardensE Doos) a>#ariaE animal or%hanages and other facilities for the %#r%ose of removing the
s%ecies from threats in their native ha!itats and ecosystems and to ens#re that a via!le %o%#lation of the threatened s%ecies is achieved. Environmental Impact $&&e&&ment +nvironmental Im%act Assessment B+IAC is a %rocess that ena!les the examination) analysis) and assessment of %ro%osed %ro?ects) %olicies or %rogrammes and the integration of environmental iss#es into develo%ment %lanning. It maximiDes the %otential for environmentally so#nd and
5 +/(A) 3 +/(A) ' +/(A)
*ection 3'. *ection 34. *ection 3&BaC6BfC.
+/(A) *ection 3-BaC6BcC.
s#staina!le develo%ment. The +IA %rocess) as arg#ed !y 9#nter and others) =sho#ld ens#re that !efore granting a%%roval; B&C the a%%ro%riate government a#thorities have f#lly identified and considered the environmental effects of the %ro%osed activities #nder their ?#risdiction and controlE and B-C affected citiDens have an o%%ort#nity to #nderstand the %ro%osed %ro?ect or %olicy and to ex%ress their views to decision makers.= " +IA is also a means for the democratisation of decision6making environmental iss#es and the allocation of nat#ral reso#rces. This is very relevant to the wildlife sector in 0enya in light of the historical !ackgro#nd to excl#sion o#tlined a!ove. The Act states;
1otwith&tanding any approval, permit or licence granted %nder thi& $ct or any other law in ,orce in Kenya, any per&on, #eing a proponent o, a pro3ect &hall, #e,ore ,inancing, commencing, proceeding with, carrying o%t, e<ec%ting or cond%cting
or ca%&ing to #e ,inanced, ommenced, proceeded with, carried o%t, e<ec%ted or cond%cted #y another per&on any %ndertaking &peci,ied in the -econd -ched%le to thi& $ct, &%#mit a pro3ect report to the $%thority, in the pre&cri#ed ,orm, giving the pre&cri#ed in,ormation and which &hall #e accompanied #y the pre&cri#ed ,ee.AD
The essence of +&A is to gather information and the #se of that information in the decisionmaking %rocess. If) after st#dying the re%ort) it !ecomes clear to the A#thority that the %ro%osal will res#lt in or is likely to have significant im%acts on the environment) then an +IA m#st !e #ndertaken.": +/(A identifies the areas in which +IA m#st !e carried o#t. "& These incl#de nat#re conservation) which is of direct relevance to wildlife management. The Act also re>#ires that the %#!lic%artici%ate in the %rocess."Environmental a%dit and monitoring 2+/A is charged with the res%onsi!ility of ens#ring that environmental a#dits are carried o#t for all activities likely to have significant effects on the environment. "4 It is also mandated to monitor all environmental %henomena with a view to making an assessment of any %ossi!le changes in the
" 9#nter
et al M-::4N. *ection 3"B&C. *ection 3"B-C.
7 +/(A) ": +/(A) "& The
categories of %ro?ects that m#st #ndergo +IA are !roadly defined in the *econd *ched#le to the Act. They
incl#de creation of national %arks) game reserves and !#ffer Dones) esta!lishment of wilderness areas) commercial ex%loitation of nat#ral fa#na and flora and introd#ction of alien s%ecies of fa#na and flora into ecosystems.
"- +/(A) "4 +/(A)
*ection 3- %rovides a !asis for %#!lic %artici%ation. *ection '".
environment and their %ossi!le im%acts) and the o%eration of any ind#stry) %ro?ect or activity with a view to determining its immediate and long6term effects on the environment. "5 Again) this has direct im%lications on wildlife management. Re$+lato ' Inst%t+t%ons The +nvironment /anagement and (o6ordination Act %rovides for the esta!lishment of an a%%ro%riate legal and instit#tional framework for the management of the environment. It) among other things) esta!lishes g#idelines on cross6sectoral iss#es s#ch as wildlife conservation. It is ex%ected that all sectoral environmental laws will !e revised and harmonised with the %rovisions of this framework law. This incl#des the wildlife law. The re>#irement for environmental im%act assessment will im%act on wildlife management in 0enya. Under the Act) the 0enya 1ildlife *ervice is mandated to !e the lead agency in the co#ntry for matters relating to wildlife. The Act also creates 2+/A) which is the oversight !ody for all environmental management matters in the co#ntryE the 2ational +nvironment (o#ncilE Provincial and District +nvironment (ommitteesE the P#!lic (om%laints (ommitteeE and the 2ational +nvironment Tri!#nal. These instit#tions are of direct relevance to wildlife management. /ore s%ecifically) at *ection ') the Act makes %rovision for the creation of environmental easements) which are not linked to land ownershi% for the grantor. These can serve as effective mechanisms for enlisting the s#%%ort of land ownerL for wildlife management !y 01*. Compliance and Enforcement )echanisms +/(A contains %rovisions for com%liance and enforcement. These incl#de;
BiC +nvironmental restoration orders re>#iring restorative action) %reventing harm to the environment) %ayment of com%ensation for harm to the environment and levying charges commens#rate with costs of restoring degraded environments. "3 BiiC +nvironmental easements for facilitating the conservation and enhancement of the environment thro#gh the im%osition of o!ligations in the form of environmental conservation orders in res%ect of the #se of land B%reservation of flora and fa#na) %reservation of water flow) o%en s%ace) scenic view) among othersC. "' BiiiC A%%ointment of environmental ins%ectors to monitor com%liance with environmental standards."
"5 +/(A) "3 +/(A) "' +/(A) "
*ection '7. *ections &:"6&&&. *ections &&-6&&3.
+/(A) *ections && 6&&".
BivC (riminal sanctions."" BvC Fiscal incentives and disincentives to ind#ce or %romote %ro%er management of the environment. These incl#de c#stoms and excise waiver) tax re!ates) tax disincentives to deter !ad environmental !ehavio#r and #ser fees. Convergences and (ivergences "etween E)CA and the 1ildlife Act Con)e $en!es 1ormative ,ramework and principle& +/(A %rovides for a very com%rehensive normative framework for environmental management. To the extent that the 1ildlife Act %rovides for the management of wildlife reso#rces) there is a convergence of interest. Indeed) *ection - of +/(A antici%ates the engagement of 01* in the im%lementation of its %rovisions as a lead agency Ban entity vested !y law with f#nctions or
control of an element of the environmentC. $oth +/(A and the 1ildlife Act %rovide for in &it% and e< &it% conservation meas#res and incl#des criminal sanctions for infractions. In&tit%tional anchorage $oth +/(A and the 1ildlife Act identify the instit#tion charged with managing the environment and wildlife reso#rces) res%ectively. 2+/A is the main instit#tion !#t there are other mechanisms charged with setting %olicies) hearing %#!lic com%laints and ar!itrating !etween 2+/A and others) as o#tlined a!ove. D%)e $en!es 1ormative ,ramework and principle& 1hile +/(A %rovides for the #se of incentives for s#staina!le environmental management) the 1ildlife Act only contains criminal sanctions to elicit com%liance. F#rther) the 1ildlife Act %redates s#ch concerns as %artici%ation) s#staina!le #se and fair and e>#ita!le sharing of !enefits. Indeed) the main com%laints that a!o#nd in the wildlife sector relate to the skewed rights and o!ligations of diverse actors in the sector. 01* is %erceived as having too many rights and the !enefits are not shared with all stakeholders. +ven in instances where local a#thorities are the loc#s for wildlife management) the sharing of !enefits with all stakeholders is still a !ig challenge.
"" +/(A)
*ections -) "-) " )7&) 74) 7")&4 6&5'.
In&tit%tional anchorage +/(A %rovides for inter6sectoral co6ordination while the 1ildlife Act only antici%ates colla!oration with the forest sector and has a memorand#m of #nderstanding with the Forest
De%artment. The %rivate sector) land owners and comm#nities are not incl#ded in the framework for wildlife management) even tho#gh it is #ndis%#ted that they have a role to %lay in wildlife management. 1hile 01* has wardens at the district levels) it is clear that the mandate for wildlife is concentrated in 01*. This is in contradistinction to the District and Provincial +nvironment (ommittees esta!lished #nder *ections -7 and 4: of +/(A) and which draw their re%resentation from a wide array of stakeholders. To-a *s a 0ol%st%! A(( oa!& to S+sta%nable W%l*l%fe Mana$e#ent There are many laws and %olicies dealing with or affecting wildlife management in 0enya) which are not synchronised. There is need for an overall law and %olicy review for the wildlife sector in light of changed circ#mstances) incl#ding %ossi!le new %olicies) new international o!ligations) and to avoid overla%s in mandates. /ore %artic#larly) there is need to act#aliDe s#staina!le #se and e>#ita!le sharing of !enefits in the wildlife sector. To this end) there is need to harmonise the %rovisions of the 1ildlife Act with +/(A. This o%%ort#nity is availa!le in the ongoing wildlife %olicy and law review. A new law and %olicy on wildlife is re>#ired. The &7 3 %olicy and the 1ildlife (onservation and /anagement Act are o#tdated and need to !e !ro#ght to line with the realities of the day. In&tit%tional anchorage $oth +/(A and the 1ildlife Act identify the instit#tion charged with managing the environment
and wildlife reso#rces) res%ectively. 2+/A is the main instit#tion !#t there are other mechanisms charged with setting %olicies) hearing %#!lic com%laints and ar!itrating !etween 2+/A and others) as o#tlined a!ove. D%)e $en!es 1ormative ,ramework and principle& 1hile +/(A %rovides for the #se of incentives for s#staina!le environmental management) the 1ildlife Act only contains criminal sanctions to elicit com%liance. F#rther) the 1ildlife Act %redates s#ch concerns as %artici%ation) s#staina!le #se and fair and e>#ita!le sharing of !enefits. Indeed) the main com%laints that a!o#nd in the wildlife sector relate to the skewed rights and o!ligations of diverse actors in the sector. 01* is %erceived as having too many rights and the
!enefits are not shared with all stakeholders. +ven in instances where local a#thorities are the loc#s for wildlife management) the sharing of !enefits with all stakeholders is still a !ig challenge. In&tit%tional anchorage +/(A %rovides for inter6sectoral co6ordination while the 1ildlife Act only antici%ates colla!oration with the forest sector and has a memorand#m of #nderstanding with the Forest De%artment. The %rivate sector) land owners and comm#nities are not incl#ded in the framework for wildlife management) even tho#gh it is #ndis%#ted that they have a role to %lay in wildlife management. 1hile 01* has wardens at the district levels) it is clear that the mandate for wildlife is concentrated in 01*. This is in contradistinction to the District and Provincial +nvironment
(ommittees esta!lished #nder *ections -7 and 4: of +/(A) and which draw their re%resentation from a wide array of stakeholders. To-a *s a 0ol%st%! A(( oa!& to S+sta%nable W%l*l%fe Mana$e#ent There are many laws and %olicies dealing with or affecting wildlife management in 0enya) which are not synchronised. There is need for an overall law and %olicy review for the wildlife sector in light of changed circ#mstances) incl#ding %ossi!le new %olicies) new international o!ligations) and to avoid overla%s in mandates. /ore %artic#larly) there is need to act#aliDe s#staina!le #se and e>#ita!le sharing of !enefits in the wildlife sector. To this end) there is need to harmonise the %rovisions of the 1ildlife Act with +/(A. This o%%ort#nity is availa!le in the ongoing wildlife %olicy and law review. A new law and %olicy on wildlife is re>#ired. The &7 3 %olicy and the 1ildlife (onservation and /anagement Act are o#tdated and need to !e !ro#ght to line with the realities of the day. As o#tlined a!ove) there are n#mero#s %ieces of legislation im%acting on wildlife management and these need to !e synchronised to create synergy among diverse stakeholders. Of %artic#lar im%ortance is +/(A) which domesticates key %rinci%les of the Convention on Iiological 8iver&ity with res%ect to conservation) s#staina!le #se and e>#ita!le sharing of !enefits emanating from wildlife. A new wildlife law m#st !e informed !y these !asic tenets. This new law sho#ld !e
%receded !y a new %olicy that will %rovide the roadma% for legislative interventions. *ome of the key %rinci%les o#tlined in +/(A) s#ch as the %rinci%le of s#!sidiarity and %#!lic %artici%ation in environmental decision6making) sho#ld !e incor%orated in the Act. The law sho#ld also synergiDe instit#tional mandates !etween the 2ational +nvironment /anagement A#thority) the Forest De%artment@*ervice) %ro%osed devolved government str#ct#res) local a#thorities) 2ational 1ildlife A#thority) Fisheries De%artment) water !oards and other actors in the wildlife sector.
The new %olicy and law sho#ld also ingrain s#staina!le wildlife management into 0enya8s wildlife law and %olicy and give local comm#nities and landowners more latit#de in the management of wildlife reso#rces. In this res%ect) the law in 0enya lags !ehind ma?or ste%s that have !een taken to enlist the involvement of comm#nities in s#staina!le wildlife management. For instance) the !an on cons#m%tive #se of wildlife remains intact des%ite the initiatives taken !y 01* to grant wildlife #se rights to comm#nities who live with wildlife. Th#s) %olicies that have the %otential to raise comm#nities8 tolerance threshold of wildlife fail to create stakes in wildlife for comm#nities neigh!o#ring wildlife or living with wildlife. The new law and %olicy sho#ld also innovatively #se existing legal mechanisms and also diversify the range of availa!le mechanisms for s#staina!le wildlife management. Taking the c#e from +/(A) the 1ildlife Act sho#ld #se a mix of command and control meas#res and incentives to motivate s#staina!le wildlife management. The %enal sanctions for %oaching sho#ld !e revised and made more stringent to reflect the increased val#e of wildlife. F#rther) legal %rovisions
Bdeclaration of %ristine areasE %rotection of endangered s%eciesE #se of easements) %rofits) restrictive covenants for wildlife !enefitE exercise of %olice %ower) eminent domain and com%#lsory ac>#isition in interest of s#staina!le wildlife management for %osterityC sho#ld !e #sed innovatively to achieve s#staina!le wildlife management. There is also need to address com%ensation for in?#ry ca#sed !y wildlife and loss of life) livestock and %ro%erty. The limitation of com%ensation to loss of life sho#ld !e reconsidered and a wildlife tr#st f#nd esta!lished to raise f#nds for com%ensation /oreover) the %roced#res for %rocessing com%ensation sho#ld !e decentralised and the feasi!ility of an ins#rance scheme for wildlife related losses investigated. This will go a long way towards diff#sing h#man6wildlife conflicts. Finally) there is need to decide what #ses will !e made of 0enya8s wildlife Bwhether cons#m%tive or non6cons#m%tiveC and mechanisms %#t in %lace to ens#re that the wildlife is conserved for %osterity and managed s#staina!ly *#ch a determination is %redicated on the availa!ility of relia!le data on the stat#s of wildlife reso#rces and the trends over a n#m!er of years.
Chapter 12
9overning 1ater and Sanitation in -en&a

/I<AI A0+(9
Introduction
Over the last decade) s#ccessive governments in 0enya have !een #ndertaking reforms in the water sector) with the assistance of a n#m!er of develo%ment %artners) incl#ding the 1orld $ank.& The %rinci%al o!?ectives of these reforms have !een to enhance the s#staina!le #tilisation of water
reso#rces and %rivate sector %artici%ation in water %rovision. These reforms have so#ght to res%ond to the chronic water s#%%ly shortages ex%erienced in many %arts of the co#ntry) which have !een attri!#ted to ineffective management of water reso#rces. - (o#%led with a ra%idly growing %o%#lation) %oor water reso#rces management is seen to %ose a serio#s threat to the co#ntry8s social and economic develo%ment. 4 F#rther) weak water a%%ortionment and enforcement have res#lted in over allocation of water in several !asins) there!y ca#sing intense conflicts !etween #ser gro#%s.5 .eforms in the water sector in 0enya have !een infl#enced considera!ly !y the ideology of neoli!eralism) 3 which has dominated international develo%ment %olicy de!ates since the late &7 :s. In the context of water) the ineffective management of water reso#rces has !een attri!#ted to %oor stewardshi% on the %art of government. This is !eca#se the infrastr#ct#re and management mechanisms for the delivery of water and sanitation services have ty%ically !een owned and o%erated !y %#!lic #tilities) incl#ding state6owned enter%rises and local a#thorities. 2eoli!eral reforms have) therefore) foc#sed on demand management and have so#ght to res%ond to the weaknesses of %#!lic water #tilities) incl#ding high leakage levels) aging and %oorly maintained infrastr#ct#re) weak !illing and reven#e collection mechanisms) low %rod#ctivity of staff) #neconomic tariff str#ct#res and heavy financial losses. '
& *ee
1orld $ank M-::5N. *r M-:::; 4N.
- 9ir?i 4 I#id. 5 I#id.
3 2eoli!eralism
cham%ions the market as the most effective mechanism for resolving reso#rce allocation %ro!lems.
It) therefore) a!hors government intervention in the economy. *ee) for exam%le) .ichard Peet M&777N.
' $ayliss
M-::4; 3:7N.
The new thinking is that =managing water as an economic good is an im%ortant way of achieving efficient and e>#ita!le #se) and of enco#raging conservation and %rotection of water reso#rces.= The term =market environmentalism= has !een #sed to ca%t#re this new thinking) which advocates the de%loyment of markets as =the sol#tion rather than !eing the ca#se of environmental %ro!lems.=" If) indeed) they are to !e the sol#tion to environmental %ro!lems) markets m#st em!race the conservation ethic. 1ater is not only essential to life !#t also has no s#!stit#tes. 7 1ater is re>#ired for h#man health and welfare) food sec#rity and ind#strial develo%ment. In addition) and %erha%s more im%ortantly) it is vita8. for the health of a>#atic ecosystems. Indeed) the via!ility of a>#atic ecosystems is a %rere>#isite for the availa!ility of water in s#fficient >#ality and >#antity to meet these other demands.&: It is) therefore) #nfort#nate that in many %arts of the world) h#man activities have severely #ndermined the s#staina!ility of fresh water reso#rces. 9owever) #nless water reso#rces are managed s#staina!ly) h#man develo%ment and environmental health will !oth !e com%romised. For these reasons) the #tility of markets 6 which %rimarily constit#te a mechanism for the management of the demand for water 6 o#ght to !e assessed in the context of the search for instit#tional mechanisms that facilitate the s#staina!le #tiliDation of water reso#rces) which are !y nat#re finite. Th#s) while the market mechanism may have something to contri!#te to the s#staina!le governance of water and sanitation) its de%loyment sho#ld !e g#ided !y the
conservation ethic. That is) instit#tional frameworks for the governance of water and sanitation sho#ld give %rimacy to the o!?ective of conserving water reso#rces. $efore worrying a!o#t who has the right to a!stract water from a river) for instance) it is im%ortant to determine the availa!ility of s#ch water across time and s%ace) if only to facilitate demand management. The need for a conservation a%%roach is es%ecially im%ortant given the limitations of the market mechanism. For exam%le) markets ty%ically fail to internaliDe environmental externalities #nless they are reg#lated. Again) markets only serve those who are a!le to %ay and will) therefore) fail to ens#re #niversal access to water #nless they are reg#lated. As far as managing the demand for water and sanitation services is concerned) markets may eliminate or at least ameliorate the deficiencies of %#!lic water systems. 9owever) this %otential cannot !e realised in the a!sence of s#ita!le A that is) effective and acco#nta!le instit#tional
1orld /eteorological Organisation M&77-N.
" $akker
M-::3; 354N o!serving that =Thro#gh esta!lishing %rivate %ro%erty rights) em%loying markets as allocation mechanisms)
and incor%orating environmental externalities thro#gh %ricing) %ro%onents of market environmentalism assert that environmental goods will !e more efficiently allocated if treated as economic go there!y sim#ltaneo#sly addressing concerns over environmental degradation and inefficient #se of reso#rces.YC
7 9#nter
etal M-::-; M-::3;&"-N.
:N.
&: <odden
frameworks that reconcile marketisation with the conservation ethic. F#rther) the market mechanism is #nlikely to enhance the efficiency of water systems in the a!sence of reg#latory mechanisms aimed at fostering com%etition where this is %ossi!le) and esta!lishing and managing
other market incentives for efficiency. A!ove all) instit#tional frameworks for water governance sho#ld !e democratic6 that is) %artici%atory and acco#nta!le 6 as this wo#ld ens#re that the design and im%lementation of governance mechanisms are trans%arent and take the %#!lic interest into acco#nt. 1ater serves many val#es) whose harmonisation re>#ires a democratic governance framework. F#rther) s#ch instit#tional frameworks sho#ld clearly assign and coordinate instit#tional res%onsi!ilities. Und#e fragmentation of instit#tional res%onsi!ilities sho#ld also !e avoided since it may lead to lack of acco#nta!ility and inefficiency. && The water sector reforms in 0enya sho#ld !e assessed against this !ackgro#nd. 0enya enacted a new 1ater Act in -::-) which transformed the instit#tional framework for water governance.&This cha%ter criti>#es the new 1ater Act against the !ackgro#nd of the +nvironmental /anagement and (o6ordination Act B+/(AC &4 and makes two %rinci%al claims. First) the drafters of the new 1ater Act failed to harmonise its %rovisions with those of +/(A) which %rovides a framework for water conservation. (onse>#ently) the new 1ater Act8s instit#tional framework is not s#fficiently g#ided !y the conservation ethic and is) th#s) #nlikely to ens#re the s#staina!le #tilisation of water reso#rces. *econd) this instit#tional framework is #ns#ita!le for the marketisation of the %rovision of water and sanitation services. The Act8s reg#latory mechanisms
will facilitate neither conservation nor market efficiency. This cha%ter concl#des that the >#est for a s#ita!le instit#tional framework el#ded the drafters of the new Act which) therefore) re>#ires an overha#l if it is to facilitate the s#staina!le #tilisation of water reso#rces and efficient de%loyment of the market mechanism) and its reconciliation with the conservation ethic. F#rther) the cha%ter advocates the amendment of +/(A to sti%#late how the 2ational +nvironment /anagement A#thority B2+/AC will carry o#t its d#ty of co6ordinating and monitoring the work of lead agencies) s#ch as those esta!lished !y the new 1ater Act. *ection - of this cha%ter %rovides the conce%t#al framework and examines the >#estion of the design of a s#ita!le instit#tional framework in the context of water8s #ni>#e characteristics. <iven water8s %ec#liar attri!#tes 6 as a scarce reso#rce) a %#!lic good) a nat#ral mono%oly) a merit or social good) and a !asic right 6 this *ection examines how %#!lic law can contri!#te to the design of the instit#tional frameworks for its s#staina!le) efficient and democratic governance. *ection 4
&& TricheM&77:;7N. &- 1ater &4 Act
Act) 2o. " of -::-) ,aws of 0enya.
reviews water %olicy and legislative reforms in 0enya in the context of emerging international norms on water governance. It decries the fail#re of the new 1ater Act to take +/(A into acco#nt and criti>#es the s#ita!ility of the Act8s instit#tional framework to facilitate the integrated management of water reso#rces and the efficient de%loyment of the market mechanism in
environmental conservation and the %rovision of water and sanitation services. *ection 5 %rovides a !rief concl#sion. !eculiarit& of 1ater, !u"lic Law and the Significance of Institutions 0he peculiarity of #ater 1ater %ossesses a n#m!er of #ni>#e characteristics that make it diffic#lt to govern. First and foremost) water is a finite environmental reso#rce) and it is %artic#larly %rone to over#se. &5 Altho#gh =there is no act#al %hysical glo!al shortage of water)= it is #nevenly distri!#ted over the s#rface of the earth.&3 Freshwater constit#tes only a!o#t 3 %er cent of the total vol#me of water on earth.&' The relative scarcity of freshwater necessitates its %r#dent management and efficient #tilisation if it is to meet the many demands %laced #%on it. & In addition) water has an intrinsic environmental val#e. 1ater is a com%onent of val#a!le ecosystems and %erforms im%ortant environmental f#nctions s#ch as ha!itat maintenance. &" This ex%lains why the a!straction of water from nat#ral water so#rces often im%oses environmental costs over and a!ove those !orne !y those res%onsi!le for s#ch a!straction.&7 There is) th#s) a need for governmental reg#lation of the #tilisation of water reso#rces to ens#re the contin#ed s#%%ly of environmental !enefits that markets are #nlikely to s#%%ly at socially o%timal levels. *everal co#ntries have) for instance) so#ght to ens#re the s#%%ly of environmental !enefits from water flows !y formally allocating water to the environment) thro#gh what are termed =environmental flows.=-: The idea is to ens#re the availa!ility of water in nat#ral ha!itats so as to maintain the via!ility of ecosystems) es%ecially in times of dro#ght. 1ater extraction for other %#r%oses is %rohi!ited !y law from interfering with s#ch environmental
&5 $#dds
K /c<ranahan M-::4;&5N.
&3 TeclaffKUttonM&7"lN. &' I#id. &
I#id at 5. M-::4;-4"N) o!serving) for instance) that =the storing of water and its late release to irrigate cro%s may mean
&" $ennett
that !ird6!reeding events in downstream wetlands are either not triggered to !egin or %remat#rely terminated !eca#se water levels dro% !elow a threshold level necessary to kee% !reeding %airs at the nesting site.=C
&7 I#id. -: I#id.
flows. *econd) water can !e descri!ed as a %#!lic good) that is) a good whose cons#m%tion does not red#ce the amo#nt availa!le for others to cons#me. P#!lic goods %ossess two essential attri!#tes. First) they are =non6rivalro#s)= meaning that one %erson8s #se does not de%rive others from #sing themE they are availa!le to everyone. *econd) they are =non6excl#da!le= s#ch that =1hen one individ#al !enefits from a %#!lic good) its availa!ility to others is not diminished) and it is %ractically im%ossi!le to charge individ#als for its #se or to excl#de non6%ayers.= -& Th#s) while water and sanitation services confer im%ortant %#!lic !enefits) s#ch as %#!lic %rotection from infectio#s diseases and environmental !enefits) these !enefits are availa!le to everyone) !#t some will not necessarily %ay for their #se. Indeed) the rel#ctance to %ay is %erha%s more %rono#nced in the case of sanitation.-It is these %#!lic good characteristics of water and sanitation that have formed the im%et#s for %#!lic %rovision. The %rivate sector tends to %rod#ce less than the socially desira!le levels of these %#!lic goods =M!?eca#se of the diffic#lty of identifying the extent to which each individ#al
!enefits from s#ch goods) and of charging each individ#al accordingly.= -4 For this reason) ens#ring that these %#!lic goods are %rovided at a%%ro%riate levels is considered the res%onsi!ility of government.-5 Third) water s#%%ly has characteristics of a nat#ral mono%oly. Anat#ral mono%oly exists =if total costs are lower when a single enter%rise %rod#ces the entire o#t%#t for a given market than when any collection of two or more enter%rises divide the %rod#ction amongst themselves.= -3 2at#ral mono%olies can !e ex%lained !y two factors; the fixed costs of the %rod#ction are m#ch higher than their varia!le costs) and their %rod#ction is s#!?ect to im%ortant economies of scale.-' The s#%%ly of water and sanitation services tends to !e nat#ral mono%olies !eca#se the infrastr#ct#re re>#ired for their s#%%ly demands very high investment costs and is s#!?ect to im%ortant economies of scale.- These considerations invaria!ly make the constr#ction of com%eting systems im%ractical.-" <overnments ty%ically reg#late nat#ral mono%olies to %revent over6%ricing) there!y ens#ring that they do not ex%loit the %#!lic. Again) the nat#ral mono%oly characteristics of water s#%%ly have constit#ted an im%ortant rationale for %#!lic %rovision.
-& Triche) -- $#dds
&%pra note && at -.
K /c<ranahan) &%pra note &5 at && BO!serving that \Users are less willing to %ay for safe sanitation) yet its %rovision
is highly desira!le from a %#!lic health %ers%ective.YC

-4 Triche) -5 I#id
&%pra note && at -.
at 4. K /c<ranahan) &%pra note &5 at && &%pra note && at 4.
-3 $#dds
-' Triche) -
l#id at 563. at 3.
-" l#id
,ast !#t not least) water is considered to !e a merit good and@ or a !asic Bh#man rightC or social good. /erit goods are goods that everyone o#ght to have in the interests of e>#ity or social ?#sticeE they are goods that the society wants its mem!ers to have o#t of concern for their welfare) irres%ective of a!ility to %ay. $eca#se water is essential to s#staining life) many societies consider it a merit or social good) to which everyone sho#ld have a right. -7 Th#s) the United 2ations (ommittee on +conomic) (#lt#ral and *ocial .ights has declared that water is a =social and c#lt#ral good= and that access to water is a h#man right) which =entitles everyone to s#fficient) afforda!le) %hysically accessi!le) safe and acce%ta!le water for %ersonal and domestic #ses.= 4: (o#ntries that have ratified the United 2ations (ovenant on +conomic) *ocial and (#lt#ral .ights 6 incl#ding 0enya 6 are therefore re>#ired to =take the necessary ste%s towards the %rogressive achievement of the right of everyone to an ade>#ate standard of living) incl#ding access to water and sanitation.= Accordingly) the need to ens#re access to water for all has constit#ted a f#rther rationale for %#!lic %rovision of water and sanitation services. Public La# and the 7esign of 3nstitutional Frame#or/s for ;ater 4overnance Ideally) a s#ita!le instit#tional framework for water governance sho#ld reconcile the environmental) economic and social attri!#tes of water disc#ssed in the %receding section. 1ater governance) th#s) !ecomes an exercise in !alancing the com%eting demands %laced #%on it. <iven the limitations of the market mechanism in delivering o%timal levels of water and sanitation services) the
government sho#ld take the lead role in environmental governance. F#rther) s#ch an instit#tional framework sho#ld accord %rimacy to the conservation of water reso#rces) since the other val#es of water are #nlikely to !e realised #nless water is #tilised s#staina!ly. As #sed here) the term =instit#tional framework= denotes =esta!lished r#les) norms) %ractices and organisations that %rovide a str#ct#re to h#man actors related to water management.= 4& It) therefore) em!races %olicies) laws and administrative arrangements concerned with the management of water reso#rces. The rationale for this holistic a%%roach is that effective governance re>#ires a sym!iosis !etween organi&ation& ! defined as =networks of !ehavioral roles arranged into hierarchies to elicit desired individ#al !ehavior and coordinated actions o!eying a certain system of r#les and %roced#res=4- 6 and in&tit%tion&, which Do#glas 2orth defines as =the r#les of the game in a society) or... the h#manly devised constraints that sha%e h#man action.=44 1hile instit#tions are necessary for effective organisational %erformance) effective organisations
-7 $#dds 4: United
K /c<ranahan) &%pra note &5 at &-. 2ations +conomic and *ocial (o#ncil M-::-N. M-:::;&:N)
4& $angaragoda 4- I#id
at @. M&77:; 4N.
44 2orth
are re>#ired for the enforcement of instit#tions. 45 +ffective management) therefore) re>#ires !oth instit#tions and organisations.43 In the context of water governance) the search for a s#ita!le instit#tional framework sho#ld !e
g#ided !y a n#m!er of im%ortant considerations. In the first %lace) %#!lic law) as the %rinci%al mechanism for the constr#ction and im%lementation of instit#tional frameworks) sho#ld facilitate the !alancing of water8s com%eting val#es. *econd) water governance entails the exercise of immense %ower) whose exercise will im%act #%on the rights and li!erties of the citiDenry. Th#s) for instance) the exercise of s#ch %ower will res#lt in some %eo%le or #ses !eing allocated water at the ex%ense of others. It) therefore) !ecomes im%ortant for %#!lic law to ens#re that s#ch %ower is exercised in a democratic 6 that is) acco#nta!le and %artici%atory 6 manner. Indeed) democracy is likely to enhance the legitimacy) and in t#rn the effectiveness) of instit#tional frameworks for water governance. Democratic governance is %artic#larly necessary in the constr#ction and reg#lation of water marketisation endeavors) which may not otherwise serve the %#!lic interest. This need for democratic governance in water marketisation sho#ld !e seen in the !roader context of the lack of democracy in the constr#ction and im%lementation of marketisation %rocesses. P#!lic lawyers are concerned that these %rocesses are neither %artici%atory nor acco#nta!le) and that the delegation of %#!lic f#nctions to %rivate entities is %rod#cing a =democracy deficit=) since they invaria!ly !y%ass traditional acco#nta!ility mechanisms that are in any case no longer s#fficient. 4' /arketisation re%resents an instance where !#rea#crats are likely to make the im%ortant decisions) witho#t the scr#tiny of the elected re%resentatives of the citiDenry. In the a!sence of effective %#!lic controls) therefore) it can !e ex%ected that there will !e corr#%tion and the o#tcomes of
marketisation %rocesses will not !e %#!lic regarding. Accordingly) %#!lic law instr#ments to ens#re democracy in the design) award) im%lementation and reg#lation of water marketisation initiatives are re>#ired. Third) %#!lic law sho#ld %lay a f acilitative or ena!ling role in water marketisation. That is) it sho#ld ens#re that the instit#tional framework for water governance enco#rages %rivate actors to invest in water markets. For this reason) it is im%ortant that the instit#tional framework clearly assigns and co6ordinates instit#tional res%onsi!ilities. The reg#latory mechanisms and the manner of their de%loyment sho#ld also !e clear. In the a!sence of s#ch clarity in the instit#tional framework) %rivate actors are likely to consider the reg#latory framework #n%redicta!le and #ncertain to an extent that they cannot %redict the costs and !enefits of reg#lation. Accordingly)
45 $angaragoda)
&%pra 4& note at " B<iving the analogy that =while Min foot!allN the r#les define the way the game has to !e
%layed) the o!?ective of the team of %layers is !asically to act according to the r#les and win the game. *imilarly) the mem!ers of an organisation have some defined o!?ectives) and they endeavo#r to achieve them !y !eing within the instit#tional framework.=C
43 I#id
B2oting that =The instit#tional framework serves as a necessary condition) !#t not a s#fficient condition for management
%erformance.=C
4' Aman)
Gr. M-::&;4"5N.
they wo#ld in s#ch circ#mstances !e disco#raged from investing in water markets. Fo#rth) instit#tional frameworks for water governance o#ght to avoid #nd#e fragmentation of instit#tional res%onsi!ilities. This may not only lead to lack of acco#nta!ility !#t may also occasion inefficiency !y adding layers of !#rea#cracy and fomenting t#rf wars among reg#latory agencies. +>#ally) it wo#ld !e #ndesira!le to concentrate instit#tional a#thority. As Andrew /acintyre has o!served) =%olitical frameworks that either severely concentrate or severely fragment decision6making %ower are %rone to characteristic... governance %ro!lems.= 4
A final consideration in the design of a s#ita!le instit#tional framework relates to the need for instit#tional res%onsivenessE that is) =the achievement of 8congr#ence !etween comm#nity %references and %#!lic %olicies8 s#ch that activities of the instit#tion are val#ed !y the %#!lic.=4" In the context of water) instit#tional res%onsiveness can only !e achieved where governance is %artici%atory. It may) th#s) !e necessary to decentralise the instit#tional framework for water governance) since decentralisation may enhance citiDenry access to) and %artici%ation in) water governance frameworks.47 *#ch decentralisation sho#ld !e informed !y a rationalised allocation of instit#tional res%onsi!ilities to ens#re that they are not #nd#ly fragmented. 1ater eforms in -en&a
Emerging international norm& on water governance 1ater reforms in 0enya sho#ld !e examined in the context of the recent international attention given to water reso#rces) which has s%awned vario#s %olicy and legislative res%onses. 5: This attention has !een necessitated !y an acknowledgment that c#rrent %atterns of water #se thro#gho#t the world are #ns#staina!le.5& Th#s) a &77 assessment of freshwater reso#rces commissioned !y the United 2ations (ommission on *#staina!le Develo%ment o!serves that =the world faces a worsening series of local and regional water >#antity and >#ality %ro!lems) largely as a res#lt of %oor water allocation) wastef#l #se of the reso#rce) and a lack of ade>#ate management action.=5- The U2 Assessment !lames water shortages and %oll#tion for =ca#sing
4
/acintyre M-::4; ixN. M-::4; 7N.
4" (rook 47 Th#s
=Decentralisation advocates arg#e that) !eca#se decentralisation !rings government closer to the governed) !oth s%atially
and instit#tionally) government will !e more knowledgea!le a!o#t and res%onsive to the needs of the %eo%le.= I!id at AA.
5: -ee
for exam%le) /c(affrey M&77 ; 3:N) 2oting that =efforts to address water %ro!lems are #nderway in a !ewildering array of
agencies Mincl#dingN FAO) U2DP) U2+*(O) U2+P) U2I(+F) U2IDO) 19O) 1/O) and the vario#s regional economic commissions.=
5& 9#nter) 5- United
et al, &%pra note 7 at '7.
2ations (ommission on *#staina!le Develo%ment) (om%rehensive Assessment of Freshwater .eso#rcesof the 1orld)
+@(2.& @&77 @7 at 56' BFe!. 5)&77 C.
wides%read %#!lic health %ro!lems) limiting agric#lt#ral develo%ment and harming a wide range of ecosystems.=54 +ven more im%ortantly %erha%s) the Assessment calls for an integrated a%%roach to the management of water reso#rces) arg#ing that the %oll#tion of the world8s rivers) lakes and gro#ndwater a>#ifers not only affects the >#ality of freshwater !#t also threatens marine life) since m#ch of it flows into the world8s oceans.55 Policy res%onses have incl#ded the 2ew Delhi *tatement of &77:) ado%ted !y the <lo!al (ons#ltation on *afe 1ater and *anitation for the &77:s) which was held in 2ew Delhi) India) and the D#!lin *tatement on 1ater and *#staina!le Develo%ment of &77-) which was ado%ted !y the International (onference on 1ater and the +nvironment) which was held in D#!lin) Ireland. 53 The 2ew Delhi *tatement em%hasised =the need to %rovide all %eo%le with access to s#fficient >#antities of safe water and %ro%er sanitation.=5' (onversely) the D#!lin *tatement came #% with fo#r %rinci%les to g#ide the management of freshwater reso#rces. These %rinci%les are ecosystem!ased integrated management of water reso#rces) %#!lic %artici%ation and s#!sidiarity in water
develo%ment and management) recognition of the role of women in instit#tional arrangements for the develo%ment and management of water reso#rces) and the recognition of water8s economic val#e. These %olicy initiatives have contri!#ted to the emergence of what may loosely !e characterised as water governance norms or %rinci%les. Ty%ically) international law has %rimarily !een concerned with the =develo%ment and o%timal #se= of waterco#rses) and it is only in recent times that =the ecological services %rovided !y water and the res#lting im%ortance of conserving and %rotecting water >#ality have !ecome im%ortant concerns= of the international law of waterco#rses.5 The incor%oration of the conservation ethic in international instr#ments dealing with water sho#ld) therefore) !e seen as a work in %rogress. 2evertheless) two critical instr#ments demonstrate that the need to manage water reso#rces s#staina!ly is gaining m#ch s#%%ort in many of the world8s nation states and regions. The first significant instr#ment is Agenda -&) which is the %rogramme of action in the field of environment and develo%ment ado%ted at the United 2ations (onference on +nvironment and Develo%ment BU2(+DC in &77-. 1hile Agenda -& is not a !inding legal instr#ment) it was =#nanimo#sly ado%ted !y more than &": *tates %artici%ating in U2(+D) indicating a !road
54 I#id. 55 I#id. 53 *ee
also) United 2ations +conomic and *ocial (o#ncil M&77 N. s#%ra note 5:. 3) 75.
5' /c(affrey) 5
9#nter) &%pra note 7 at
meas#re of s#%%ort for its %rogrammes.= 5" As *te%hen /c(affrey notes) =Agenda -& is already !eing a%%lied and im%lemented widely) !oth !y *tates and !y international organisations.= 57 1ith res%ect to water) Agenda -& seeks =to make certain that ade>#ate s#%%lies of water of good >#ality are maintained for the entire %o%#lation of this %lanet) while %reserving the hydrological) !iological and chemical f#nctions of ecosystems) ada%ting h#man activities within the ca%acity limits of nat#re and com!ating vectors of water6related diseases.= 3: In order to facilitate the realisation of this am!itio#s o!?ective) it advocates the ado%tion of =integrated water reso#rces %lanning and management=) which =m#st cover all ty%es of interrelated freshwater !odies) incl#ding !oth s#rface water and gro#ndwater) and d#ly consider water >#antity and >#ality as%ects.=3& F#rther) Agenda -& calls #%on all co#ntries to accord %riority to the satisfaction of !asic needs and the safeg#arding of ecosystems. 3- 1hile it recognises that water has an economic val#e) it sees marketisation as !eing secondary to environmental conservation and the satisfaction of !asic needs. As far as management is concerned) it mandates the =integration of land6 and water6 related as%ects= at the level of the catchment !asin or s#!6!asin. 34 In %artic#lar) it identifies the fragmentation of res%onsi!ilities for water reso#rces develo%ment as a great im%ediment to %romoting integrated water management and calls for the esta!lishment of effective im%lementation and co6ordination mechanisms. 35 ,astly) Agenda -& calls for =f#ll %#!lic %artici%ation) incl#ding that of women) yo#th) indigeno#s %eo%le and local comm#nities in water
management %olicy6making and decision6making.= 33 The second significant international instr#ment is the United 2ations Framework (onvention on the ,aw of the 2on6navigational Uses of International 1aterco#rses of &77 Bthe International 1aterco#rses (onventionC. 1hile the (onvention is not yet in force) it echoes the key %rinci%les esta!lished in Agenda -&. It ado%ts an integrated a%%roach to the management of waterco#rses. It defines a waterco#rse as =a system of s#rface waters and gro#ndwaters constit#ting !y virt#e of their %hysical relationshi% a #nitary whole and normally flowing into a common termin#s.= 3' In
5" /c(affrcy) 57 I#id. 3: Agenda 3& l#id, 3- I#id, 34 I#id, 35 l#id, 33 I#id,
s#%ra note 5:.
-&) %ara &".-.
%ara &".4. %ara &".")&".'". %ara &".7. %ara &".'. %ara &".7BcC. 1aterco#rses (onvention) Article -BaC.
3' International
doing so) the International 1aterco#rses (onvention recogniDes that so#nd water governance sho#ld encom%ass =connected gro#ndwater systems) tri!#taries) headwaters) ri%arian Dones) and other %arts of a water !asin.=3 The res#lt is to =s#!?ect m#ch larger areas of national territory to international oversight.=3" The (onvention envisages that waterco#rse *tates will) in their agreements governing shared waterco#rse) a%%ly and ada%t its %rovisions to s#it their #ni>#e needs. 37 It then esta!lishes a
n#m!er of key %rinci%les to which s#ch agreements o#ght to adhere. The first %rinci%le is that waterco#rse *tates shall =Utilise an international waterco#rse in an e>#ita!le and reasona!le manner.=': *econd) waterco#rse *tates are o!liged to =take all a%%ro%riate meas#res to %revent the ca#sing of significant harm to other waterco#rse states= and where significant harm nevertheless is ca#sed to another waterco#rse *tate) =to take all a%%ro%riate meas#res... to eliminate or mitigate s#ch harm and) where a%%ro%riate) to disc#ss the >#estion of com%ensation.= '& Third) it mandates waterco#rse *tates to coo%erate !y) among other things) esta!lishing =?oint mechanisms or commissions)= =in order to attain o%timal #tilisation and ade>#ate %rotection of an international waterco#rse.='- Fo#rth) waterco#rse *tates are re>#ired to exchange information on the condition on the waterco#rse on a reg#lar !asis.'4 The fifth %rinci%le is that a waterco#rse *tate seeking to im%lement or %ermit the im%lementation of =%lanned meas#res) which may have a significant adverse effect #%on other waterco#rse states=) is o!liged to %rovide the latter with =timely notification.='5 Another im%ortant feat#re of the (onvention is that it re>#ires waterco#rse *tates to =individ#ally and) where a%%ro%riate) ?ointly) %rotect and %reserve the ecosystems of international waterco#rses.='3 As in the case of Agenda -&) the (onvention %laces %artic#lar em%hasis on the %rotection and %reservation of ecosystems. At the international level) there is therefore a clear recognition of the %rinci%le of ecosystem
management of water reso#rces.'' In the !roader context of international environmental law) this
3
9#nter) et al, s#%ra note 7 at 73. at 7'. 1aterco#rses (onvention) Article 4.4.
3" I#id,
37 International ': I#id,
Article 3.&) In determining what amo#nts to =e>#ita!le and reasona!le #tilisation=) waterco#rse *tates are re>#ired to take
into acco#nt a n#m!er of factors en#merated in Article ') and which are to !e considered together.
'& I#id,Article '- I#id, '4 l#id, '5 I#id, '3 I#id,
Article ". Article 7. Article &-. Article -:. et al, &%pra note 7 at ":'.
'' 9#nter)
Internal Teaching Use Only 4':
%rinci%le evidences an a%%reciation !y *tates of the need =to %rotect ecological %rocesses) rather than ?#st individ#al s%ecies or discrete attri!#tes of the environment.= ' /ore %artic#larly in the context of water governance) it demonstrates a significant shift from =the em%hasis on flood control) a%%ortionment) or hydro%ower generation that has dominated %revio#s international agreements concerning international waterco#rses.= '" These foregoing international instr#ments are reinforced !y vario#s regional agreements and initiatives) incl#ding the United 2ations +conomic (ommission for +#ro%e8s (onvention on the Protection and Use of Trans!o#ndary 1aterco#rses Bthe U2+(+ (onventionC and International ,akes.'7 /#ch closer home) there have !een concerted efforts to ado%t an integrated ecosystem!ased a%%roach to the management of the 2ile .iver $asin. The Draft Agreement on the 2ile .iver $asin (oo%erative Framework largely seeks to ado%t the %rovisions of the International
1aterco#rses (onvention. In %artic#lar) it seeks to esta!lish a =2ile .iver $asin (ommission= as the =instit#tional framework for co6o%eration among 2ile $asin *tates in the #se) develo%ment) %rotection) conservation and management of the 2ile .iver $asin and its waters.=
:
1hile the international law of waterco#rses is not settled) a n#m!er of #sef#l conservation %rinci%les are emerging) foremost among which is the %rinci%le of ecosystem6!ased integrated management of water reso#rces. This %rinci%le re>#ires that water reso#rces sho#ld) as far as %ossi!le) !e managed in an integrated manner on the !asis of catchment areas. The realisation of this %rinci%le) in t#rn re>#ires the esta!lishment of s#ita!le instit#tional mechanisms) and which may need to c#t across national territories. ;ater 4overnance in <enya Prior to *eforms Prior to the advent of reforms in the late &77:s) government %olicy laid em%hasis on the %rovision of water) which was considered =to !e a factor in %romoting develo%ment in all sectors of the economy.= & The concern was) therefore) with ens#ring the s#%%ly of water to all sectors of the economy) often at the ex%ense of water conservation concerns. In addition) very little attention was %aid to iss#es of o%eration and maintenance. - It was th#s ass#med that water wo#ld always
'
2anda M&775; - 56- 3N.
'" I#id. '7 For
exam%le) Article 3: of the Protocol on 1ater and 9ealth of the U2+(+ (onvention states that =1ater
reso#rces sho#ld) as far as %ossi!le) !e managed in an integrated manner on the !asis of catchment areas) with the aims of linking social and economic develo%ment to the %rotection of nat#ral ecosystems and of relating water6reso#rce management to reg#latory meas#res concerning other environmental medi#ms.=
: The
Draft Agreement on the 2ile .iver $asin (oo%erative Framework) Articles &3 and &'B!C. of 0enya) 2ational Policy on 1ater .eso#rces /anagement and Develo%ment) *essional Pa%er 2o. & of &777 at -
& .e%#!lic
M9ereinafter 1ater PolicyN.

- I#id
at 4.
Internal Teaching Use Only 4'&
!e availa!le and little effort was made to #se it in an efficient and s#staina!le manner. In this demand6driven environment) the %rinci%al stat#tes governing water and sanitation were the 1ater Act 4 Bin this cha%ter referred to as the old 1ater ActC and the ,ocal <overnment. The old 1ater Act esta!lished the following instit#tions for the management of water and sanitation; the /inister) the 1ater .eso#rces A#thority) (atchment $oards) .egional 1ater (ommittees) the 1ater A%%ortionment $oard) ,ocal 1ater A#thorities) and 1ater Undertakers. The old Act vested the =water of every !ody of water #nder or #%on any land= in the <overnment) and entr#sted their control to the /inister. 3 It im%osed on the /inister the d#ty =to %romote the investigation) conservation and %ro%er #se= of water reso#rces) and gave him@her wide %owers to facilitate the %erformance of this d#ty) incl#ding %owers to ac>#ire land) constr#ct water works) and to esta!lish %rotected catchment areas.
' 5
The main res%onsi!ility of the 1ater .eso#rces A#thority was to advise the /inister on vario#s as%ects of water reso#rce management) s#ch as demand management and conservation. It was also the res%onsi!ility of the 1ater .eso#rces A#thority to esta!lish catchment areas and to a%%oint (atchment $oards for s#ch areas in cons#ltation with the /inister. " Their task was to advise
the 1ater A%%ortionment $oard on the #tilisation of water s#%%lies and the reg#lation of water %ermits. 7 The 1ater A%%ortionment $oard was res%onsi!le for iss#ing water %ermits. ": The /inister also a%%ointed a .egional 1ater (ommittee for each %rovince) whose main res%onsi!ilities were; to advise the /inister on water conservation) develo%ment and %olicyE to s#!mit recommendations on water develo%ment to the 1ater .eso#rces A#thorityE and to receive and consider %ro%osals for water develo%ment %ro?ects from local a#thorities and advise the 1ater .eso#rces A#thority thereon."& The ,ocal 1ater A#thorities were also a%%ointed !y the /inister) and they were mainly res%onsi!le for =the management and #se of water or the drainage or reclamation of lands in any area= #nder %ermits granted to them in res%ect of comm#nity %ro?ects. "4 1ater 5 ,ocal 3 :&d
Act) (ha%ter 4 -) ,aws of 0enya B.e%ealedC. <overnment Act) (ha%ter -'3) ,aws of 0enya.
1ater Act) *ections 3)4 and 5. *ections ) "6&".
' I#id,
l#id, *ection -:.

" I#id, 7 I#id, ": I#id, "& I#id, "- I#id,
*ections --6-4. *ection -4B-C. Parts FIII and IO. *ection -5. *ection - .
Internal Teaching Use Only 4'-
,ast !#t not least were the 1ater Undertakers) who were also a%%ointed !y the /inister and had the res%onsi!ility of distri!#ting water s#%%lies in their areas of o%eration) which were to !e esta!lished !y the /inister after cons#lting the 1ater .eso#rces A#thority. "4 Invaria!ly) the
1ater Undertakers were local a#thorities. In this regard) the local a#thorities were answera!le to the Ur!an Develo%ment De%artment of the /inistry of ,ocal <overnment. "5 The %rovisions of the old 1ater Act were a#gmented !y the ,ocal <overnment Act) which em%owers local a#thorities to =#ndertake the s#%%ly of) and esta!lish) ac>#ire and maintain works for the s#%%ly of water= within their areas of o%eration. "3 In addition) the ,ocal <overnment Act em%owers local a#thorities to =esta!lish and maintain sewerage and drainage works within or witho#t its area.="' The local a#thorities also enforce %hysical %lanning laws) and any %erson who desires to carry o#t a =develo%ment= within a local a#thority8s ?#risdiction m#st a%%ly for develo%ment %ermission." Among other things) an a%%licant m#st state the develo%ment8s method of water s#%%ly and sewerage dis%osal."" At the same time) the <overnment esta!lished a 2ational 1ater (onservation and Pi%eline (or%oration B21(P(C in &7"" as a state cor%oration and tasked it with managing government o%erated water s#%%ly systems. "7 The 21(P( was to !e controlled !y the /inistry of 1ater) which was res%onsi!le for the develo%ment and management of water systems. 7: This /inistry was esta!lished %#rs#ant to the 2ational 1ater /aster Plan of &7 5) which so#ght =to ens#re availa!ility of %ota!le water) at a reasona!le distance) to all ho#seholds !y the year -:::.= 7& It was then felt that this o!?ective co#ld only !e realised !y =actively develo%ing water s#%%ly systems)= a task that was then entr#sted to the /inistry. 7- The esta!lishment of the 21(P( sho#ld also !e
seen in this context. The <overnment also esta!lished five .iver $asin Develo%ment A#thorities) 74 whose task was
"4 I#id,
*ection &-5. M-::-; 3N.
"5 On?ala "3 ,ocaI "' l#id, "
<overnment Act) *ection & ".
*ection &'".
Physical Planning Act) (ha%ter -"') ,aws of 0enya) *ections -7)4:)4& K 4'. For a definition of =develo%ment)= see *ection
-) i#id.
"" Fo#rth "7 *tate 7: I#id. 7& I#id. 7- I#id. 74 These
*ched#le) i#id.
(or%orations Act) (ha%ter 55') ,aws of 0enyaE /#mma M-::3;&N.
are the 0erio Falley Develo%ment A#thority) the ,ake $asin Develo%ment A#thority) the Tana and Athi .ivers
Develo%ment A#thority) the +waso 2g8iro *o#th .iver $asin A#thority) and the +waso 2g8iro 2orth .iver $asin A#thority. *ee (ha%ters 55&6
Internal Teaching Use Only 4'4
to %lan and co6ordinate the im%lementation of develo%ment %ro?ects in their res%ective catchment areas. Their f#nctions incl#de advising the government on the a%%ortionment of water reso#rces)75 co6ordinating and monitoring the a!straction of water) 73 and ens#ring that landowners #ndertake meas#res to %rotect the water and soils of their catchment areas. 7' 1ater has also !een governed !y the Agric#lt#re Act) 7 the Irrigation Act7" and the /om!asa Pi%eline $oard Act.77 The Agric#lt#re Act em%owers the /inister res%onsi!le for agric#lt#re to make r#les for the %revention of soil erosion) the drainage of land) and the %rotection of dams and water catchment areas.&:: *#ch r#les are to !e enforced !y the Director of Agric#lt#re who)
therefore) !ecomes an im%ortant entity in water governance. &:& The %#r%ose of the Irrigation Act is to =%rovide for the develo%ment) control and im%rovement of irrigation schemes.= It esta!lishes a 2ational Irrigation $oard) which was to work with the 1ater .eso#rces A#thority to form#late and im%lement %olicy on national irrigation schemes.&:- It also em%owers the /inister to make reg#lations governing =the reg#lation of) and the rates %aya!le for the #se of water on national irrigation schemes.= &:4 These reg#lations have a !earing on water reso#rces management since they reg#late matters s#ch as soil erosion and maintenance of drainage channels.&:5 For its %art) the /om!asa Pi%eline $oard Act esta!lishes a /om!asa Pi%eline $oard to develo%) s#%%ly and distri!#te water within /om!asa District #nder the direction of the /inister.&:3
554)55 655") ,aws of 0enya.
75 *ee) 73 *ee) 7' I#id, 7
for exam%le) the Tana and Athi .ivers Develo%ment A#thority8 Act) (ha%ter 554) ,aws of 0enya) *ection "BaC. for exam%le) the ,ake $asin Develo%ment A#thority Act) (ha%ter 55-) ,aws of 0enya) *ection "BfC *ection "BhC.
Agric#lt#re Act) (ha%ter 4&") ,aws of 0enya. Act) (ha%ter 45 ) ,aws of 0enya. Pi%eline $oard Act) (ha%ter 4 4) ,aws of 0enya. Act) *ection 5"B&C.
7" Irrigation 77 /om!asa
&:: Agric#lt#re &:& I#id,
*ection 5"B-C. Act) *ections 4)&3B!C. The Act only a%%lies to areas of land designated as irrigation schemes. The areas so far
&:- Irrigation
designated as irrigation schemes are the Perkerra Irrigation Area in $aringo District) the /wea@Te!ere Irrigation Area in 0irinyaga District) the <alole *%ecial *ettlement Area in Tana .iver District) and the Aherc 2ational Irrigation Pilot *cheme in 0is#m# District. ,egal 2otice 2o. ' of &7
&:4 I#id,
*ection - BlCBcC. B2ational Irrigation *chemesC .eg#lations) ,egal 2otice 2o. '" of &7 Pi%eline $oard Act) *ection '. .
&:5 Irrigation &:3 /om!asa
The a!ove instit#tional framework was deficient in a n#m!er of res%ects. First) there was an #nd#e concentration of %ower in the /inister in charge of water. It was) for instance) felt that =the heavy control that the central government exercised over local a#thorities...interfered with the efficient r#nning of Mthe latter8sN water and sewerage de%artments.= &:' The concentration of a#thority in the central government =made it diffic#lt for water service %roviders to make inde%endent) timely and a%%ro%riate decisions in res%onse to local service needs.= &: F#rther) the /inister a%%ointed virt#ally all the mem!ers of the water management !odies esta!lished !y the old 1ater Act) and on the !asis of criteria that were not always clear. The /inister even esta!lished local water a#thorities) a f#nction that sho#ld %erha%s have !een delegated to the 1ater .eso#rces A#thority as the !ody with ex%ertise on water matters. *econd) there was an #nd#e fragmentation of instit#tional res%onsi!ilities) which im%eded so#nd water reso#rces management. For instance) the 1ater .eso#rces A#thority and the .egional 1ater (ommittees were !oth tasked with advising the /inister on water concervation) and it was not clear which of the two !odies had final a#thority. Third) there was no clear assignment of instit#tional res%onsi!ilities) which led to #ncertainty in decision making. This was es%ecially the case with the reg#lation of local a#thorities in their role as water #ndertakers) which were controlled !y !oth the De%artment of Ur!an Develo%ment in the /inistry of ,ocal <overnment and the De%artment of 1ater Develo%ment in the /inistry of 1ater. As one commentator has noted) =These two centres of control at times were not in concert hence ca#sing insta!ility in decision making.= &:"
Fo#rth) the instit#tional framework was not democratic and there was) for instance) very little %artici%ation !y water #sers in decision making. Indeed) the !oards of the !odies esta!lished !y the old 1ater Act were dominated !y %#!lic officials. Finally) the instit#tional framework was *tate centric and %rovided no room for %rivate sector %artici%ation. These instit#tional deficiencies contri!#ted a great deal to the %oor %erformance of the water and sanitation sector.&:7 The. sector was) therefore) characterised !y n#mero#s %ro!lems) incl#ding weak water a%%ortionment and enforcement) over6 allocation of water in several !asins) which ca#sed intense conflicts !etween #ser gro#%s) lack of reg#lation of the develo%ment of gro#ndwater) %oor watershed management) deteriorating water >#ality) %oor demand management) %oor sanitation) lack of reg#lation of irrigation) and %oor monitoring and
&:' 08Ak#m# &:
K A%%ida M-::'; 4& N.
G-rc8dat4&3. M-::';33-N.
&:" 08Ak#m# &:7 On?ala)
&%pra note "5 at ), o!serving that =,ocal A#thorities are ineffective in %roviding water services not so m#ch d#e to
their fa#lt !#t to the way they have !een treated !y the higher echelons of government.=C
enforcement of water laws.&&: In addition) water reso#rces management was constrained !y %oor hydrological) climatic and water #se information) catchment degradation res#lting from %oor land #se) and water %oll#tion.&&& Policy *esponses In efforts to enhance the s#staina!ility) efficiency and accessi!ility of water and sanitation services) the /oi <overnment %rom#lgated a new %olicy 6 the 2ational Policy on 1ater
.eso#rces /anagement and Develo%ment &&- Breferred to as 1ater Policy in this cha%terC 6 which so#ght to deal com%rehensively with the %ro!lems confronting water and sanitation. The 1ater Policy identifies the %ro!lems that have constrained the develo%ment of the water sector as incl#ding; the shortage of f#nds for develo%ment) o%eration and maintenance of water s#%%lies and management of water reso#rcesE over6centraliDation of decision makingE fragmentation of water reso#rce management res%onsi!ilitiesE #neven distri!#tion of water reso#rcesE lack of %ro%er co6ordination of the vario#s actors in the sectorE and) lack of %ro%er inter6linkages with other water6related sectors.&&4 The 1ater Policy esta!lishes fo#r s%ecific %rinci%les that will g#ide the government8s efforts to address these %ro!lems) namely; BaC the %reservation) conservation and %rotection of water reso#rces and their s#staina!le) rational and economical allocationE B!C the s#%%ly of s#fficient >#antities of water of good >#ality while ens#ring safe dis%osal of wastewater and environmental %rotectionE BcC the esta!lishment of an efficient and effective instit#tional frameworkE and BdC the develo%ment of a so#nd and s#staina!le financing system for effective water reso#rces management) water s#%%ly and sanitation develo%ment.&&5 The 1ater Policy ado%ts an integrated a%%roach to water reso#rces management) and states that =the linkage !etween the District 1ater $oards) (atchment $oards) .iver $asin A#thorities) 1ater A%%ortionment $oard and the vario#s land #se6!ased !oards Be.g. ,and (ontrol $oard) Agric#lt#ral $oards) etcC will !e strengthened and %ractical o%erating %roced#res drawn for solving inter6sectoral iss#es on water reso#rces at the three water reso#rces management levels) with a view to satisfying the freshwater needs of all the sectors in an integrated water reso#rces management a%%roach.=&&3 It calls for the esta!lishment of a 2ational *tanding (ommittee to
&&: 9ir?i) &&& I#id.
*r) -%pra note -.
&&- 1ater &&4 I#id &&5 I#id &&3 I#id
Policy) s#%ra note &.
at 6") &4)&3
at 7. at &'.
Internal Teaching Use Only 4''
deal with cross6sectoral iss#es.&&' F#rther) the 1ater Policy seeks to integrate and decentralise water reso#rce smanagement =!y ado%ting three... management levels incl#ding national) !asin) s#!6!asin@catchment levels) and setting #% and or strengthening a%%ro%riate instit#tions) clearly defining the role of each and how they relate to each other.=&& There is) th#s) a desire to manage water on a =drainage or catchment !asis to conform to its nat#ral dictates.=&&" *econd) the 1ater Policy also calls for the review of the old 1ater Act so that it co#ld =!e in harmony with other Acts on water reso#rces management iss#es.= &&7 In addition) the 1ater Policy indicates that the role of <overnment wo#ld !e =redefined with em%hasis on reg#latory and ena!ling f#nctions as o%%osed to direct service %rovision.= &-: On the s#!?ect of sanitation) the 1ater Policy acknowledges the inextrica!le link !etween water s#%%ly %rovision and wastewater dis%osal and ex%resses the <overnment8s intention to develo% effl#ent discharge standards and desire =to make water a!straction and dis%osal %ermits dynamic and economic instr#ments for water %oll#tion control.= &-& F#rther) the 1ater Policy calls for the introd#ction of effl#ent discharge levies. &-Finally) on the >#estion of %rivate sector %artici%ation) the 1ater Policy states that the
<overnment will enco#rage =the f#ll %artici%ation of the comm#nities arid the %rivate sector= !y =creating an ena!ling environment for all actors to o%erate effectively and efficiently= &-4 Another key %olicy doc#ment is the 2ational 1ater *ervices *trategy Bthe *trategyC) which has !een form#lated !y the /inister for 1ater and Irrigation %#rs#ant to the re>#irements of the 1ater Act of -::-. Its mission is to ens#re =*#staina!le access of ade>#ate and afforda!le water and sewage services to all 0enyans thro#gh reha!ilitated and ex%anded water s#%%ly and sewage systems and thro#gh efficient) res%onsive instit#tions.= &-5 The *trategy esta!lishes a n#m!er of g#iding %rinci%les) incl#ding; the se%aration of %olicy and reg#latory f#nctions from service %rovisionE decentralisation of res%onsi!ilities and decision making a%%lying the %rinci%le of s#!sidiarityE the treatment of water as a social and economic good and the esta!lishment of the
&&' I#id. &&
I#id at &5)&'. at &5. at &7. at ?'. at --)5:. at 3-. at 4&)5-. 2ational 1ater *ervices *trategy B-::36-:: C) -::3 at .
&&" I#id &&7 I#id &-: l#id &-& I#id &-- I#id &-4 I#id
&-5 Draft
cost6recovery %rinci%leE %rivate sector %artici%ationE linkage !etween water s#%%ly and sewerage management and develo%mentE and environmentally friendly o%erations of water services. &-3 The *trategy also seeks to enhance %rivate sector %artici%ation !y; esta!lishing an effective)
trans%arent and a#tonomo#s reg#latory mechanismE enhancing com%etition thro#gh trans%arent and effective criteriaE %romoting local %rivate sector %artici%ationE and %romoting the integration of small scale inde%endent water services %roviders. &-' Unlike the 1ater Policy) the *trategy is demand6driven and only %ays li% service to water conservation concerns. Its g#iding %rinci%les clearly give %riority to the marketisation of water. &+nvironmental ,anagement and Co-ordination .ct and ;ater 4overnance The +nvironmental /anagement and (o6ordination Act B+/(AC) which is 0enya8s framework legislation on the environment) makes a n#m!er of critical %rovisions relating to water governance. +/(A was enacted with the %rinci%al o!?ectives of %roviding a com%rehensive framework for environmental governance and facilitating co6ordination in the management of environmental reso#rces. Accordingly) +/(A esta!lishes a 2ational +nvironmental /anagement A#thority B2+/AC as the %rinci%al agency res%onsi!le for environmental reg#lation. In %artic#lar) +/(A %rovides that 2+/A shall =exercise general s#%ervision and co6ordination over all matters relating to the environment and MshallN !e the principal in&tr%ment of <overnment in the im%lementation of all %olicies relating to the environment.= &-" F#rther) it is the res%onsi!ility of 2+/A to co6ordinate the environmental management activities of lead agencies. &-7 In addition) the drafters of +/(A made an attem%t to %reserve its %ride of %lace as the %reeminent legislation on the environment. Th#s) +/(A %rovides that =Any written law) in force
immediately !efore the coming into force of this Act) relating to the management of the environment shall have effect s#!?ect to modifications as may !e necessary to give effect to this Act) and where the %rovisions of any s#ch law conflict with any %rovisions of this Act) the %rovisions of this Act shall %revail.=&4: +/(A has a n#m!er of %rovisions that seek to govern water and sanitation. First) +/(A confers #%on =every %erson in 0enya= an entitlement =to a clean and healthy environment)= which
&-3 I#id. &-' I#id &-
at &3.
I#id at A. *ection 7B&C B+m%hasis s#%%liedC.
&-" +/(A &-7 I#id,
*ection 7B-CBaC. +/(A defines =lead agency= as =any <overnment ministry) de%artment %arastatal) state
cor%oration or local a#thority) in which any law vests f#nctions of control or management of any element of the environment or nat#ral reso#rce.= I#id, *ection -.
&4: I#id,
*ection &5".
Internal Teaching Use Only 4'"
incl#des access =to the vario#s %#!lic elements or segments of the environment for recreational) ed#cational) health) s%irit#al and c#lt#ral %#r%oses.= &4& Arg#a!ly) access to water constit#tes one s#ch %#!lic element of the environment. Th#s) a %erson who has !een denied access to water may a%%ly to the 9igh (o#rt for redress.&4*econd) +/(A contains ela!orate %rovisions on the %rotection and conservation of water reso#rces. It %rohi!its the carrying o#t of a n#m!er of activities that are likely to degrade water
reso#rces 6 s#ch as erecting str#ct#res in water !odies) draining water !odies or introd#cing %lants in water !odies 6 witho#t the a%%roval of 2+/A8s Director <eneral. &44 It also em%owers the /inister res%onsi!le for matters relating to the environment to declare water !odies) river !anks and wetlands to !e %rotected areas.&45 The /inister may also =iss#e general and s%ecific orders) reg#lations or standards= for the management of water !odies and wetlands. &43 F#rther) +/(A em%owers 2+/A to =iss#e g#idelines for the management of the environment of lakes and rivers= in cons#ltation with the relevant lead agencies. &4' 2+/A also has %ower to iss#e and im%lement reg#lations for %#r%oses of %rotecting water catchment areas. &4 +/(A also seeks to govern water >#ality. It esta!lishes a *tandards and +nforcement .eview (ommittee) whose main res%onsi!ilities are to advise 2+/A =on how to esta!lish criteria and %roced#res for the meas#rement of water >#ality= and =to recommend to M2+/AN minim#m water >#ality standards for all the waters of 0enya and for different #ses.= &4" The (ommittee is re>#ired to %erform these tasks in cons#ltation with the relevant lead agencies. &47 .elated to this) +/(A also em%owers 2+/A to reg#late the discharge of effl#ent in water !odies thro#gh a licensing regime.&5: A final %rovision of +/(A that has im%lications for water governance concerns the 2ational +nvironment Tri!#nal B2+TC) which is esta!lished to ad?#dicate =an a%%eal made to it in writing
!y any %arty or a referral made to it= !y 2+/A on matters relating to +/(A. &5& For exam%le) a
&4& l#id, &4- I#id, &44 I#id, &45 I#id, &43 I#id, &4' I#id, &4
*ection 4B&C and B-C. *ection 4B4C. *ection 5-B&C. *ection 5-B-C. *ection 5-B4C. *ection 5-B5C.
I#id, *ection 55. *ections & BaC and B!C. *ection &. *ections 3) ') and AA. *ection &-'B-C.
&4" I#id, &47 l#id, &5: I#id, &5& I#id,
%erson aggrieved !y a ref#sal to grant a licence may a%%eal to 2+T. &5- Administrative decisions of the Director <eneral) 2+/A) or its committees are also s#!?ect to a%%eals to 2+T. &54 A%%eals against 2+T8s decisions may !e made to the 9igh (o#rt. &55 +/(A) therefore) %rovides a s#fficient framework for water governance. 1hat it lacks) however) are mechanisms to facilitate the co6ordination of 2+/A8s res%onsi!ilities with those of lead agencies) and oversight of the activities of s#ch agencies. Wate A!t of 6==6 Ideally) the drafters of the new 1ater Act -::- sho#ld have harmonised its %rovisions with those of +/(A. Unfort#nately) they failed to do so and 0enya is now saddled with an #nwieldy and conflict6%rone instit#tional framework for water governance. This section decries this oversight and reviews the key %rovisions of the new 1ater Act -::-. Overall) there is little de%art#re from
the %revio#s regime) and the Act8s instit#tional framework is #nlikely to either facilitate integrated management of water reso#rces or efficient de%loyment of market6!ased reg#latory mechanisms. Bhe in&tit%tional ,ramework e&ta#li&hed #y the /ater $ct '((' The Act esta!lishes the following instit#tions for the management of water and sanitation; the /inister) the Director of 1ater) the 1ater .eso#rces /anagement A#thority B1./AC) the 1ater *ervices .eg#latory $oard B1*.$C) 1ater *ervice $oards B1*$sC) 1ater *ervice Providers B1*PsC) (atchment Area Advisory (ommittees B(AA(sC) 1ater .eso#rces Users Associations B1.UAsC) the 2ational 1ater (onservation and Pi%eline (or%oration B21(P(C) the 1ater *ervices Tr#st F#nd B1*TFC) and the 1ater A%%eal $oard B1A$C. As #nder the old 1ater Act) the control of =every water reso#rce= is entr#sted to the /inister.&53 Again) the /inister retains the d#ty =to %romote the investigation) conservation and %ro%er #se of water reso#rces= and is now also re>#ired =to ens#re the effective exercise and %erformance !y any a#thorities or %ersons...of their %owers and d#ties in relation to water.= &5' In the %erformance of these d#ties) the /inister =shall !e assisted= !y the Director of 1ater. &5 The 1./A and the 1*.$ are the %rinci%al reg#latory agencies. The f#nctions of the 1./A
&5- I#id, &54 I#id, &55 I#id,
*ection &-7BlCBaC. *ection &-7B-C. *ection &4:B&C. *ection 5B&C.
&53 21A) &5' I#id, &5
*ection 5B-C.
I#id, *ection 5B4C.
Internal Teaching Use Only 4 :
are to; BaC develo% %rinci%les) g#idelines and %roced#res for the allocation of water reso#rcesE B!C monitor and reassess the national water reso#rces management strategyE &5" BcC receive and determine a%%lications for %ermits for water #seE BdC to monitor and enforce conditions attached to %ermits for water #seE BeC reg#late and %rotect water reso#rces >#ality from adverse im%actsE BfC manage and %rotect water catchmentsE and BgC determine charges to !e im%osed for the #se of water from any water reso#rce.&57 (onversely) the key f#nctions of the 1*.$ are to; BaC iss#e licences for the %rovision of water servicesE B!C determine water %rovision standardsE BcC develo% g#idelines for the fixing of tariffs for the %rovision of water servicesE BdC develo% g#idelines for and %rovide advice on the costeffective and efficient management and o%eration of water servicesE develo% model %erformance agreements for #se !etween licensees and 1*PsE BeC monitor the o%eration of agreements !etween 1*$s and 1*PsE BfC %romote water conservation and demand managementE BgC determine fees) levies) %remi#ms and other charges to !e im%osed for water servicesE to liaise with other !odies for the !etter reg#lation and management of waterE and BhC to advise the /inister on matters concerning water services.&3: As far as the %rovision of water and sanitation services is concerned) the new 1ater Act envisages that the /inister will esta!lish 1*$s) &3& which will then !e licensed !y the 1*.$ to %rovide water services.&3- F#rther) the Act envisages that the 1*$s will) instead of %roviding
these services directly) contract them o#t to 1*Ps. &34 In an attem%t to im%lement the 1ater Policy8s desire for the management of water on a catchment !asis) the new 1ater Act em%owers the /inister to esta!lish a (AA( for each catchment area. The f#nction of the (AA(s is to advise the 1./A on matters s#ch as water reso#rces management and conservation) and the reg#lation of %ermits. &35 The 1.UAs are for#ms for the resol#tion of conflicts and co6o%erative management of water reso#rces in catchment areas.&33 The new 1ater Act also retains the 21(P() which was esta!lished #nder the old water
&5" The
national water reso#rces management strategy is to !e form#lated !y the /inister after cons#lting the %#!lic. I#id,
*ection &&B&C.
&57 I#id, &3: I#id, &3& I#id, &3- I#id, &34 I#id, &35 I#id, &33 I#id,
*ection ". *ection 5 . *ection 3&. *ection 34B&C. *ections 34B-C) 33. *ection &'B-C. *ection &3B3C.
Internal Teaching Use Only 4 &
regime. The 21(P( is now re>#ired to develo% works =for the %#r%oses of a state scheme for the %rovision of !#lk water s#%%lies for #se !y licensees and water service %roviders= on !ehalf of the /inister.&3' At the same time) the Act esta!lishes the 1*TF =to assist in financing the %rovision of water services to areas of 0enya that are witho#t ade>#ate water services.= &3 The 1*TF is to !e managed !y tr#stees a%%ointed !y the /inister. &3" Finally) the new 1ater Act esta!lishes the 1A$ and entr#sts it with the res%onsi!ility of
hearing and determining a%%eals filed !y =any %erson having a right or %ro%rietary interest which is directly affected !y a decision or order of the A#thority) the /inister or the .eg#latory $oard concerning a %ermit or licence.=&37 *he .ew 1ater Act and integrated management of water resources The %olicy o!?ective of integrated management of water reso#rces is #nlikely to !e realised given the many deficiencies of the new 1ater Act. As the following disc#ssion demonstrates) the Act fails to clearly assign and co6ordinate the res%onsi!ilities of the agencies it has created) and ignores im%ortant existing water agencies. In addition) it #nd#ly fragments the res%onsi!ilities of its agencies and also fails to esta!lish clear legal %rinci%les for the reg#lation of marketisation mechanisms) s#ch as cor%oratisation. Its fail#re to reg#late marketisation is th#s likely to exacer!ate the #ns#staina!le ex%loitation of water reso#rces. One of the striking feat#res of the new 1ater Act is the %er%et#ation of exec#tive control of water instit#tions) which hinders the democratic governance of water. As we have seen) the /inister is now res%onsi!le for ens#ring =the effective exercise and %erformance !y any a#thorities or %ersons...of their %owers and d#ties in relation to water.= &': The Act th#s confers #%on the /inister considera!le %ower to meddle in the work of the two main reg#latory !odies) namely the 1./A and the 1*.$.&'& Indeed) %revio#s ex%erience in 0enya has shown that s#ch ministerial %owers are %rone to a!#se.&'- 1hat is %artic#larly worrisome is that no attem%t
&3' I#id, &3
*ection --B5C.
I!id) *ection "4B-C. *ection "4B5C. *ections "5) "3.
&3" I#id, &37 I#id,
&': I#id, &'& *ee)
*ection 5B-C. for exam%le) 08Ak#m# K A%%ida) s#%ra note &:' at 4--) o!serving that =The Act also gives the /inister
#nd#e %owers... to meddle in the o%erations of the water sector. The /inister has a hand in everything. The case of the 2airo!i (ity !est ill#strates this sit#ation. In 2airo!i) a %olitical activist witho#t any cor%orate ex%erience or any stake in the city was a%%ointed to head the city water com%any a%%arently !eca#se the /inister and the a%%ointee came from the same %olitical %arty.=C
&'- *ee)
for exam%le) Akech M-::3N) disc#ssing the a!#se of ministerial %owers in the context of %#!lic
%roc#rement.
Internal Teaching Use Only 4 -
has !een made to ens#re the inde%endence of the 1./A and the 1*.$ from the exec#tive. A key idea !ehind esta!lishing these reg#latory !odies was to ens#re that water governance wo#ld !e g#ided !y ex%ertiseE this will not !e %ossi!le where the /inister retains the %ower 6 which is itself not reg#lated 6 to interfere with the work of reg#latory agencies. There is therefore little de%art#re from the %ast) since %ower is still concentrated in the /inister. This concentration of %ower is not cond#cive for the democratic governance of water. Indeed) the Act only makes token efforts to democratiDe decision making. It em%owers the /inister to a%%oint the (AA(s) whose f#nction is to advise the 1./A on the %ro%er management of water reso#rces.&'4 It also %rovides for the esta!lishment of 1.UAs. 1hile these attem%ts to involve water #sers in the management of water reso#rces are enco#raging) they are ins#fficient for two reasons. First) the role of the (AA(s is merely to advise the 1./AE the 1./A is not o!liged to take s#ch advice into acco#nt. In addition) it is not clear how the Advisory (ommittees are to !e f#nded) and their s#staina!ility is therefore do#!tf#l. *econdly) it is not clear how the 1.UAs are s#%%osed to %erform their f#nctions alongside the 1./A)
which has overall res%onsi!ility for water reso#rces management. In the a!sence of effective reg#lation of the relationshi% !etween the 1./A and the 1.UAs) it is likely that the former will ignore the resol#tions and decisions of the latter. As we saw in *ection -) an instit#tional framework sho#ld esta!lish clear lines of res%onsi!ility if it is to !e effective. In addition) it sho#ld !e harmonised with existing instit#tions in order to facilitate an organised and co6ordinated a%%roach to the management of its s#!?ect matter) which in this case is water. Unfort#nately) the instit#tional framework esta!lished !y the new 1ater Act does not adhere to these %rinci%les in a n#m!er of res%ects. First) the Act esta!lishes reg#latory agencies witho#t any reference to +/(A) which esta!lishes 2+/A as the %rinci%al agency res%onsi!le for environmental reg#lation. &'5 In the a!sence of a clear %rovision s%elling o#t how the 1./A and 1*.$ are linked or acco#nta!le to 2+/A) the Act is likely to %er%et#ate the #ndesira!le sit#ation that +/(A so#ght to remedy) namely the lack of co6ordination in the management of environmental reso#rces s#ch as water. In addition) in the a!sence of a clear hierarchy) the Act is likely to f#el t#rf wars) with the 1./A and 1*.$ resisting acco#nta!ility to 2+/A on the strength of their inde%endent esta!lishment #nder the new 1ater Act. Already) a grand !attle is looming !etween 2+/A and 1./A concerning which agency sho#ld reg#late water >#ality and effl#ent discharges. &'3 Indeed) while the drafters of +/(A
&'4 21A) &'5 I#id, &'3 $oth
*ection &'.
*ection . agencies have %#!lished reg#lations on water >#ality and effl#ent discharges. *ee 2+/A) +nvironmental /anagement
and (o6ordination B1ater I#alityC .eg#lations -::3) and 1./A) 1ater .eso#rces /anagement Draft .#les -::'.
Internal Teaching Use Only 4 4
so#ght to s#!ordinate all existing sectoral environmental laws to +/(A) they did not envisage that s#!se>#ent sectoral laws might conflict with +/(A. &'' 9owever) that is %recisely what has ha%%ened in the case of the new 1ater Act. $oth 2+/A and 1./A have %owers to reg#late water >#ality and effl#ent discharges. From the %ers%ective of stat#tory inter%retation) +/(A sho#ld %revail. At common law) there is a %res#m%tion against re%eal !y im%lication. &' 1hile enacting new laws) Parliament is ass#med to have com%lete knowledge of existing laws) which it wo#ld re%eal ex%ressly sho#ld it intend to do so.&'" 9owever) where an Act of Parliament) s#ch as the new 1ater Act) does not re%eal the %rovisions of existing laws s#ch as +/(A) it cannot !e ass#med that the later stat#te %revails over the earlier one. That is) in the a!sence of an ex%ress %rovision of re%eal) the contin#ance of existing legislation will !e %res#med. &'7 In addition) the idea !ehind the enactment of +/(A was to facilitate the co6ordination and oversight of the activities of lead agencies s#ch as 1./A. That can only ha%%en where agencies s#ch as 1./A are s#!ordinate to 2+/A. 9owever) for the avoidance of do#!t) +/(A sho#ld !e amended to clearly sti%#late how 2+/A will %erform its co6ordination and oversight roles. F#rther) no attem%t has !een made to rationaliDe the f#nctions of the agencies with those of existing water instit#tions) es%ecially the five .iver $asin Develo%ment A#thorities) the 2ational
Irrigation $oard and the /om!asa Pi%eline $oard. In the case of the .iver $asin Develo%ment A#thorities) the Act merely %rovides that these a#thorities constit#te one of the agencies from whom mem!ers of the (AA(s are to !e a%%ointed.& : 9ow then are the (AA(s to relate to the .iver $asin A#thoritiesL And how are their f#nctions to !e rationalised in the >#est for integrated management of water reso#rcesL F#rther) how are the .iver $asin A#thorities to relate to the agencies created !y the new 1ater Act) es%ecially the 1*.$ with which they share the res%onsi!ility of %romoting water conservation and demand managementL Does the new Act %revail over the stat#tes esta!lishing the .iver $asin Develo%ment A#thoritiesL To make matters worse) the new Forests Act esta!lishes a 0enya Forest *ervice B0F*C) whose mandate extends to managing forests in water catchment areas. &
&
The new 1ater Act also gives short shrift to irrigation) des%ite the fact that irrigation is the most voracio#s of all cons#m%tive #ses of water. Irrigation is also im%ortant considering that 0enya8s land mass is largely arid or semi6arid and its agric#lt#ral %otential can only !e ex%loited
&'' +/(A) &'
*ection &5".
*ee) for exam%le) Garnett v. Iradley 5G)A)7 4 $C D??. 6eadland v. Co&ter B&7:3C & 0$ -&7E .e (hance B&74'C (h -''. M&7""; 455N.
&'" Prasanna &'7 I#id
at 453. *ection &'B4C B!C. Act '((@, -ection& 0, 5BhC.
& : /1A) & & Forests
effectively thro#gh irrigation. Indeed) a significant %ortion of 0enya8s hortic#lt#re and floric#lt#re ex%ort %rod#cts rely on irrigation.& - If integrated water reso#rces management is to !ecome a
reality in 0enya) the instit#tional framework m#st em!race the agencies dealing with irrigation. The new 1ater Act has) however) not done so and it is not clear how the 2ational Irrigation $oard fits within its reg#latory scheme. *econd) the %ower conferred !y the 21A on the /inister of water to =exercise control over every water reso#rce= is likely to #ndermine 2+/A8s a#thority. F#rther) the 21A confers on the 1./A %owers s#ch as reg#lating and %rotecting water reso#rces >#ality from adverse im%acts and managing and %rotecting water catchments witho#t any reference to 2+/A) which is declared !y +/(A to !e the lead agency as far as environmental management is concerned. There is therefore an #rgent need to rethink the relationshi% !etween 2+/A and the 1./A@1*.$) with a view to making them clearly s#!ordinate to 2+/A. Third) there is no clear se%aration of res%onsi!ilities !etween the 1./A and the 1*.$. For exam%le) there is no clear distinction !etween the =%ermits to #se water= #nder section -3 of the 21A) which are to !e iss#ed !y 1./A) and the =licences for the %rovision of water services=) which are to !e iss#ed !y the 1*.$ #nder section 3 of the 21A. The Act th#s seeks to se%arate %rocesses that sho#ld !est reg#lated as %art of a contin##m. Ideally) a water licensing regime sho#ld %#rs#e two o!?ectives. The first is to ens#re that the a!straction of water takes into acco#nt reso#rce conservation and s#staina!ility concerns. The second is to ens#re that a%%licants have the technical and commercial ca%a!ility to %rovide water services. F#rthermore) a single licensing regime sho#ld s#ffice to ens#re that these twin o!?ectives
are realised. Indeed) a single licensing regime is arg#a!ly more s#ita!le for the realisation of an integrated a%%roach to water reso#rces management. From this %ers%ective) the 21A8s licensing regime is s#%erfl#o#s) !#rea#cratic and c#m!ersome. It is not entirely clear at what %oints in time one is ex%ected to a%%ly for the %ermit and the license res%ectively. And while the 21A sti%#lates that only 1*$s can a%%ly for licenses) it does not state who exactly is s#%%osed to a%%ly for a %ermit. The a!sence of clarity in the 21A8s licensing regime raises the interesting >#estion as to what wo#ld ha%%en were a license to !e granted and a %ermit denied) and vice versa. Accordingly) the distinction that the 21A seeks to draw !etween =%ermits= and =licences= is !oth #nnecessary and conf#sing. The Act sho#ld therefore !e amended with a view to ado%ting a single terminology and a #niform licensing regime. And in the interests of instit#tional efficiency) the f#nctions of the 1./A and the 1*.$ o#ght to !e %erformed !y a single entity) given the overla%s in their f#nctions. & 4 For exam%le)
& - 1ater & 4 The
.eso#rces *ector /emorand#m at &-.
Indian state of /aharashtra %rovides an interesting exam%le in this regard. Its 1ater .eso#rces .eg#latory
Act of -::3 esta!lishes a single a#thority 6 the /aharashtra 1ater .eso#rces .eg#latory A#thority 6 which manages water reso#rces and also iss#es water a!straction licences.
section 5 BmC of the 21A %rovides that it shall !e the f#nction of the 1*.$ =to %romote water con&ervation and demand management meas#res.= 1hile it is a%%arent from the scheme of the
21A that the ?#risdiction of the 1*.$ only extends to matters relating to 4 water provi&ion,4 section 5 BmC clearly covers matters !eyond water %rovision) which o#ght to !e the %reserve of the 1./A) which is entr#sted with the management of water reso#rces. & 5 +vidently) water conservation and %rovision are inextrica!ly linked and rationality demands that they sho#ld !e managed !y a single entity. Fo#rth) the introd#ction of the 1*$s adds an #nnecessary layer of !#rea#cracy that in all likelihood will hinder efficiency in the %rovision of water and sanitation services. To !egin with) the 1ater BPlan of Transfer of 1ater *ervicesC .#les of -::3 Bhereinafter) Transfer of 1ater *ervices6 .#lesC do not %rovide any rationale for the esta!lishment of the seven 1*$s. & 3 It is also #nclear how the 1*$s will relate to the .iver $asin A#thorities. In effect) the 21A entr#sts the water and sanitation needs of as many as seventeen districts to a single 1*$. *ho#ld %rivate actors seek to %rovide water and sanitation services) for instance) they m#st deal with this monolith) which in many cases is likely to !e located far away from the %oint of service. Th#s a %rivate entity that desires to %rovide water services in *#!a district m#st travel all the way to 0is#m# to a%%ly for a license from the ,ake Fictoria *o#th 1ater *ervices $oard) ass#ming that this $oard will !e located in 0is#m#. In any case) the transition from8 the old to the new regime has not !een made easy !y the new legislative framework. For instance) the 21A has not re%ealed section & " of the ,ocal <overnment Act) which a#thorises local a#thorities to =to #ndertake the s#%%ly of) and esta!lish)
ac>#ire and maintain works for the s#%%ly of water= within their areas of o%eration. & ' This is likely to create conflicts !etween 1*$s and the local a#thorities who can !oth legitimately claim to have a legal mandate to %rovide water services. F#rther) the Transfer of 1ater *ervices .#les em%ower 1*$s to =%#rchase) lease or otherwise ac>#ire facilities owned !y local a#thorities for %rovision of water services.= & It is likely that the
& 5 Th#s
section " of the 21A gives the 1./A the res%onsi!ilities of reg#lating and %rotecting water reso#rces
>#ality from adverse im%acts) and managing and %rotecting water catchments.
& 3 The
1ater BPlan of Transfer of 1ater *ervicesC .#les) -::3) ,egal 2otice 2o. &:& of -::3) were made !y the
/inister for 1ater and Irrigations in exercise of the %owers conferred !y sections &&: and &&4B4C of the 21A. These .#les esta!lish the following 1*$s; the (oast 1*$ Bto serve the districts of 0ilifi) 0wale) ,am#) /om!asa) Taita@Taveta) Tana .iver and $#raCE the Athi 1*$ Bto serve the districts of 0a?iado) /achakos) 0iam!#) Thika) /ak#eni and 2airo!iCE the Tana 1*$ Bto serve the districts of 0irinyaga) /#ranga) 2yeri) +m!#) /!eere) 0it#i) /er# (entral) Tharaka) /er# *o#th) /er# 2orth) /wingi and /arag#aCE the .ift Falley 1*$ Bto serve the districts of 2ak#r#) 2arok) $aringo) 0eiyo) 1est Pokot) T#rkana) 0oi!atek and 2yandar#aCE the 2orthern 1*$ Bto serve the districts of <arissa) I?ara) /andera) 1a?ir) Isiolo) /arsa!it) /oyale) ,aiki%ia and *am!#r#CE the ,ake Fictoria 2orth 1*$ Bto serve the districts of $#ngoma) $#sia) 0akamega) Fihiga) /t. +lgon) ,#gari@/alava) Teso) $#tere@/#mias) Uasin <ish#) 2andi 2orth) Trans 2Doia and /arakwetCE and the ,ake Fictoria *o#th 1*$ Bto serve the districts of 0isii (entral) <#cha) 0is#m#) 2yando) *iaya) $ondo) 9oma!ay) 2yamira) /igori) O#ria) *#!a) .acho#nyo) 0ericho) $#ret) Trans/ara) $ormet and 2andi *o#thC.
& ' *ection &
&&&B-C of the 21A only re%eals sections &'"6& ' of the O1A.
Transfer of 1ater *ervices .#les) .#le 3BlCBdC.
Internal Teaching Use Only 4 '
transition %rocess will stall in cases where local a#thorities ref#se to sell or lease their facilities to the 1*$s) or where there is a fail#re to reach an agreement on the terms of s#ch sales or leases. For the foreseea!le f#t#re) it therefore seems that the old regime and the new regime will o%erate
side !y side. Indeed) it is likely that the local a#thorities will transition given that the stat#s >#o s#its them. In my estimation) it wo#ld have !een %refera!le to have retained the instit#tional framework esta!lished!y the O1A) #nder which wafer %rovision was maimy the res%onsi!ility of local a#thorities) while enhancing their ca%acities to enter into %artnershi%s with %rivate sector entities and comm#nity gro#%s. Th#s the local a#thorities sho#ld contin#e to own the water and sanitation infrastr#ct#re !#t contract o#t matters s#ch as !illing and reven#e collection where this is deemed feasi!le. Again) given that dis%#tes related to water ty%ically im%licate other as%ects of the environment s#ch as land) it wo#ld !e %refera!le if they were handled !y +/(A8s 2+T as o%%osed to the sector6s%ecific 1A$. Indeed) 1A$8s esta!lishment %er%et#ates an #nd#e %roliferation of governance instit#tions. A final criti>#e of the 21A8s instit#tional framework relates to its fail#re to accommodate the need for coo%eration with other co#ntries in the management of shared water reso#rces. 0enya shares vario#s water !odies s#ch as ,ake Fictoria with Uganda and TanDania) ,akes (hala and Gi%e with TanDania) and ,ake T#rkana with +thio%ia. An integrated a%%roach to water reso#rces management demands the esta!lishment of instit#tional mechanisms for the %rotection of the ecosystems of international waterco#rses. Th#s the Draft Agreement on the 2ile .iver $asin
(oo%erative Framework calls for the esta!lishment of a 2ile .iver $asin (ommission to facilitate coo%erative management !y the ri%arian states. In addition) the Treaty for the +sta!lishment of the +ast African (omm#nity also calls for the esta!lishment of a ,ake Fictoria $asin (ommission.& " It therefore !ecomes im%ortant for national water legislation to esta!lish a focal %oint or other s#ita!le administrative mechanisms to facilitate the coo%erative management of water reso#rces with other ri%arian states. 0he 1;. and ,ar/etisation 1hile the 21A8s !#rea#cratic and convol#ted instit#tional framework in and of itself constit#tes a significant !arrier to the democratic and effective governance of water) its %rovisions reg#lating marketisation make matters even worse. In addition to effective organisations or agencies) good water governance re>#ires clear reg#latory mechanisms. I take the view that command and control and market a%%roaches to reg#lation can !e de%loyed sim#ltaneo#slyE !#t they
& " *ee
Bhe Breaty ,or the E&ta#li&hment o, the Ea&t $,rican Comm%nity, Protocol for *#staina!le Develo%ment of ,ake Fictoria
$asin) Article 44.
will only contri!#te to effective water governance if the reg#latory framework esta!lishes clear and %redicta!le r#les for their de%loyment. Unfort#nately) the 21A8s reg#latory mechanisms are conf#sed and are neither cond#cive for market environmentalism nor economic efficiency. In the first %lace) the %rovisions of the 21A dealing the %rovision of water and sanitation
services are conf#sing and will not !e easy to a%%ly in %ractice. In this regard) the 21A is ca#ght !etween two worlds. It seeks to a%%ly a market model and a command6and6control model sim#ltaneo#sly) witho#t sti%#lating where either model !egins or ends. Ty%ically) #nder a command6and6control model) a governmental !ody !asically tells reg#lated entities what they sho#ld do) and there is no room for the latter to negotiate the contents of reg#lation. (onversely) a market model #ses market incentives Bs#ch as the %ossi!ility of making %rofitsC to o!tain the coo%eration of reg#lated entities. In the case of water) there is ty%ically a need to Utilise !oth a%%roaches to reg#lation) given that water is in many ways a nat#ral mono%oly. This means that the extent to which the market will ens#re efficient and) es%ecially) e>#ita!le delivery of water services will !e limited) there!y necessitating some command6and6control reg#lation. $#t even where !oth reg#latory a%%roaches are de%loyed sim#ltaneo#sly) there is a need for a clear delineation of res%onsi!ilities. For exam%le) it is not desira!le for a reg#lator to com%ete with market actors for the %rovision of water services. The 21A does not adhere to these %rinci%les of efficient and effective reg#lation) as evidenced !y the %rovisions of sections 34) 33 and 4. As the licensee) the 1*$ shall !e =res%onsi!le for the efficient and economical %rovision of water services a#thorised !y the licence.= & 7 $#t water services a#thorised !y a license shall) in the first instance) =!e %rovided !y an agent of the !oard.=&": 1hat the 21A th#s envisages is that the 1*$ will contract o#t the %rovision of water
to the 1*Ps.&"& F#rther) s#ch contracting o#t arrangements may %rovide for =the conc#rrent %erformance) !y the M1*$N and the M1*PN) of the same f#nctions in different %arts of the area defined !y the !oard8s limits of s#%%ly.= &"At the same time) the 21A %rovides that 4$ licensee shall make reg#lations for or with res%ect to conditions for the %rovision of water services and the tariffs a%%lica!le.= &"4 Th#s the 1*$ also %erforms reg#latory f#nctions alongside the 1*.$. And the 1*$ is) or can !e) a market actor) that is) a %rovider of water services. These %rovisions of the 21A raise the interesting >#estion as to whether a 1*$ Bas a licenseeC
& 7 21A) &": 21A) &"& 21A) &"- 21A) &"4 21A)
*ection 34B&C. *ection 34B-C. *ection 33B&C. *ection 33B5CBaC. *ection 4B&C.
Internal Teaching Use Only 4 "
can vary the terms of an agreement with a 1*P thro#gh the making of s#ch reg#lations. There is nothing in the Act to sto% a 1*$ from doing so) exce%t that were it to do so it wo#ld defeat the whole %oint of esta!lishing a market model in the first %lace. In addition) the 21A em%owers the /inister to a%%oint the 1*$s) which may contract o#t its f#nctions to a 1*P.&"5 $#t this contract m#st !e a%%roved !y the 1*.$. &"3 <iven that the contract is !etween the 1*$ and 1*P) it is not clear why the 1*.$8s a%%roval is necessary. From a reg#latory view%oint) once the decision has !een made that contract sho#ld !e the main
instr#ment for water %rovision it sho#ld not !e the f#nction of the 1*.$ to a%%rove water %rovision ontracts after they have !een entered into. A%art from the #nnecessary !#rea#cracy and inefficiencies this is likely to generate) it amo#nts to excessive reg#lation. In my estimation) the most that the 1*.$ sho#ld do is to esta!lish g#idelines or !aselines that s#ch contracts sho#ld adhere to while giving 1*$s and 1*Ps s#fficient room to negotiate m#t#ally !eneficial contracts. I#ite evidently) the 21A fails to esta!lish an =ena!ling environment= for %rivate sector %artici%ation. It also fails to em!race informal water %roviders) s#ch as comm#nity gro#%s and self6hel% gro#%s. The 21A mandates any %erson wishing =to %rovide water services to more than twenty ho#seholds) or s#%%ly more than twenty five tho#sand litres of water a day for domestic %#r%oses) or s#%%ly more than one h#ndred tho#sand litres of water a day for any %#r%ose= to o!tain a licence.&"' And in order to o!tain s#ch a licence) an a%%licant m#st meet certain criteria which seek to esta!lish its technical and financial com%etence to %rovide water services. /any informal water %roviders are #nlikely to meet these criteria. Their only alternative is to enter into a water %rovision contract with the 1*$s) a task which is not any less com%lex and demanding reso#rce6wise. In %ractice) therefore) it is likely that the comm#nities served !y these informal %roviders will !e denied access to water. &" These %rovisions of the 21A are reinforced !y the Transfer of 1ater *ervices .#les) which com%el =%rivate entities) comm#nity6!ased organisations) or non6governmental organisations %roviding water services #nder %revio#s water #ndertakershi%s= to enter into management
contracts with 1*$s.&"" *econd) the 21A fails to reg#late the cor%oratisation of the water and sanitation de%artments of local a#thorities. 1hereas the %olicy ex%ectation was that marketisation wo#ld in the first
&"5 21A) &"3 21A) &"' 21A) &"
*ection 3&. *ection 34B-C. *ection 3'B&C.
*ee /#mma) s#%ra note "7 BArg#ing that =self6hel% gro#%s)= hel% gro#%s)= for instance) are not legal %ersons and wo#ld not
therefore >#alify to !e water service %roviders.C

&"" 1ater
BPlan of Transfer of 1ater *ervicesC .#les) .#le 3B&C.
instance entail the cor%oratisation of these de%artments) no legislative framework has !een esta!lished for this critical activity. All the 21A %rovides is that 1*$s =may= contract 1*Ps to %erform their f#nctions.&"7 In %ractice) therefore) a good n#m!er of the said de%artments were transformed into water com%anies wholly owned !y the local a#thorities well !efore the enactment of the 21A.&7: They were esta!lished as %rivate com%anies #nder the (om%anies Act. &7& These com%anies are #nlikely to enhance efficiency in the %rovision of water and sanitation for the following reasons. There is) in the first %lace) no clear se%aration of ownershi% and control in these water com%anies) contrary to the %rinci%les of good cor%orate governance. The idea !ehind esta!lishing the water com%anies %artly owned !y the local a#thorities sho#ld !e to ens#re managerial a#tonomy while e>#ally facilitating managerial acco#nta!ility. 2either of these o!?ectives is likely to !e met considering the manner in which these com%anies have !een constit#ted. These com%anies are wholly owned !y the local a#thorities) even tho#gh in order to satisfy the re>#irements of the (om%anies Act) the /ayor and the Town (lerk each hold one
share on !ehalf of the local a#thority) as in the case of the 2airo!i (ity 1ater and *ewerage (om%any ,imited. Th#s these water com%anies are %rivate in name only. Again) while a good n#m!er of the mem!ers of the !oards of directors of these com%anies are drawn from o#tside the local a#thorities) they are nevertheless likely to !e dominated !y the officers of the local a#thorities) given that the mayor) the town clerk and the treas#rer are also mem!ers thereof. In my view) the water com%anies are #nlikely to exercise managerial a#tonomy in these circ#mstances. Indeed) research already indicates that some of these com%anies have inherited the !ad governance %ractices of the local a#thorities. &7- F#rther) it is at the moment %ossi!le for corr#%t or incom%etent officers of local a#thorities to !ecome the chief exec#tive officers of the water com%anies.&74 In order to facilitate the realisation of the !enefits of cor%oratisation) there is a need to reg#late the formation of these com%anies to ens#re that the %rocess of esta!lishing them is acco#nta!le and facilitates their efficiency. F#rther) to facilitate a clear se%aration of ownershi% and control) s#ch a reg#latory framework sho#ld do the following; BaC !ar all %ersons affiliated with a local a#thority Bmayor) town clerk) treas#rer and other officers of the local a#thorityC from !eing a%%ointed as directors or officers of any water com%anyE B!C esta!lish o!?ective criteria for the a%%ointment of mem!ers of the !oards of the water com%aniesE and BcC %rovide for %artial
&"7 21A)
*ection 33B&C. K A%%ida) s#%ra note &:' at 4&7. Act) (ha%ter 5"') ,aws of 0enya.
&7: 08Ak#m#
&7& (om%anies &7- On?ala)
&%pra note "5 at &7 BO!serving that =As it t#rned o#t) chief exec#tives who were often acc#sed of corr#%tion and
mismanagement were allowed to take over the o%erations of the new water com%anies.=C
&74 3bid(
Internal Teaching Use Only 4":
ownershi% of the water com%anies !y the central government) which wo#ld then act as a check on the activities of the water com%anies. The 21A8s %rovisions on tariffs are also vag#e and do not %rovide a s#fficient incentive for %rivate sector %artici%ation. It is not clear who has #ltimate res%onsi!ility for esta!lishing and reg#lating tariffs. On the one hand) the Act %rovides that it is the res%onsi!ility of the 1*.$ to =develo% g#idelines for the fixing of tariffs= and to =determine fees) levies) %remi#ms and other charges to !e im%osed for water services.= &75 On the other hand) it %rovides that while a%%lying for a license) a 1*$ sho#ld among other things f#rnish its =%ro%osed tariff str#ct#re.= &73 Again) it em%owers the 1*$* 6 in their ca%acity as licensees 6 to =make reg#lations for or with res%ect to conditions for the %rovision of water services and the tariffs a%%lica!le.= &7' At the same time) the 1*$s are ex%ected to enter into contracts with 1*Ps for the %rovision of water services. As we have seen) the 1./A is also res%onsi!le for determining =charges to !e im%osed for the #se of water from any water so#rce.=&7 These %rovisions of the 21A raise a n#m!er of concerns. First) what is the link !etween the charges to !e im%osed !y the 1./A and the tariffs to !e esta!lished@ %ro%osed !y 1*.$ and@ or 1*$sL *econd) does the Act contem%late that the 1*.$ will only esta!lish tariff g#idelines) which is then to g#ide the 1*$s when the latter make tariff reg#lations and@or contracts with
1*PsL Third) in the context of the contracts !etween 1*$s and 1*Ps) are the tariff str#ct#res %ro%osed or esta!lished !y 1*$s non6negotia!leL And if they are non6negotia!le) what then is the %oint of the contractL If it is to enco#rage %rivate sector %artici%ation) the 21A sho#ld esta!lish clear %rovisions regarding the %rocesses of esta!lishing and reviewing@modifying tariffs) and %lace #ltimate res%onsi!ility for the reg#lation of tariffs in a single instit#tion. This is !eca#se the tariff regime is a %rinci%al mechanism for realising the %rofit motive of %rivate actors. Private actors sho#ld !e a!le to %redict how they are going to make pro,it& ,rom inve&ting in the provi&ion o, water and sanitation services. They are #nlikely to !e a!le to do so where the tariff regime is as #ncertain as that of the 21A. The 21A8s %rovisions on dis%#te resol#tion are also wanting and serve to disco#rage %rivate sector %artici%ation. In %artic#lar) the Act fails to %rovide for the administrative review of the actions of the 1./A) 1*.$ and the 1*$s. All the 21A %rovides is that =An a%%eal shall lie to the 1ater A%%eal $oard.=&7" The nat#re of the =a%%eal= contem%lated !y the Act is not clear.
&75 21A) &73 21A) &7' 21A) &7
*ection 5 BgC and BoC. *ection 3 B-C BeC. *ection 4B&C.
21A) *ection "BgC. *ection "3B&C.
&7" 21A)
Internal Teaching Use Only 4"&
F#rther) it is not clear where) in the first instance) an aggrieved %arty sho#ld seek ?#stice. Ideally) the 1A$ sho#ld !e an administrative review !ody) whose determinations may then
!e challenged !efore the ordinary co#rts of law) as o%%osed to an a%%ellate !ody as it is c#rrently esta!lished #nder the 21A. In this regard) the new P#!lic Proc#rement and Dis%osal Act is instr#ctive insofar as it re>#ires that =any %erson who claims to have s#ffered or to risk s#ffering loss or damage d#e to the !reach of a d#ty im%osed on a %roc#ring entity... may seek administrative review.=&77 The im%lications of the 1*TF for %rivate sector %artici%ation sho#ld also !e noted. The 21A seeks to %#rs#e the no!le goal of #niversal service !y esta!lishing the 1*TF) whose o!?ective is to ens#re that even those who cannot afford water services have access thereto. 2evertheless) the %rovisions of the Act relating to the 1*TF are inade>#ate in one significant res%ect. The 21A %rovides that the tr#stees of the 1*TF =shall develo% and a%%ly %rinci%les governing the grant of moneys from the F#nd and for achieving the o!?ect of the F#nd.= -:: 1hat %rinci%les are theseL For instance) is access to %oor areas to !e achieved !y giving the F#nd8s reso#rces as s#!sidies to 1*PsL In the a!sence of %rinci%les or g#idelines for the a%%lication of this #niversal service f#nd) it is likely that it may !e a!#sed. In addition) the #tilisation of the F#nd8s reso#rces as s#!sidies to the 1*Ps may not !e efficient) given the ex%erience that s#!sidies often %romote inefficiency. There is th#s an #rgent need to esta!lish the necessary g#idelines. In addition) it will !e im%ortant to esta!lish an ela!orate administrative machinery and oversight mechanisms to ens#re its acco#nta!ility. <iven the im%ortance of ens#ring that those who cannot afford water and sanitation services have access to a !asic minim#m thereof) the %rinci%les for facilitating the o!?ective of #niversal access sho#ld clearly !e esta!lished in the 21A and not left to delegated legislation. Finally) the %rovisions of the 21A concerning sewerage services re>#ire clarification. It
a%%ears from the %rovisions of the Act that licensees shall !e res%onsi!le for reg#lating the discharge of =any trade effl#ent.=-:& The Act re>#ires any %erson seeking to discharge s#ch effl#ent to a%%ly to the licensee for =consent.= -:- In addition) licensees are em%owered to =fix and im%ose a sewerage service levy on all water services within the limits of s#%%ly of the licensee) to cover a reasona!le %art of the cost of dis%osing of the water s#%%lied within those limits.=-:4 These %rovisions raise a n#m!er of concerns. First) does the 21A centraliDe the dis%osal of
&77 P#!lic -:: 21A) -:& 21A) -:- 21A) -:4 21A)
Proc#rement and Dis%osal Act) Act 2o. 4 of -::3) *ection 74 *ection "4B3C. *ection 'B&C. *ection 'B-C. *ection .
Internal Teaching Use Only 4"-
sewerage 6 which has %revio#sly !een the res%onsi!ility of local a#thorities 6 in the monolithic 1*$sL *econd) does the Act re>#ire each local a#thority to a%%ly to a 1*$ for the said consent) sho#ld this service not !e contracted o#t to a 1*PL Third) if the task of dis%osing of sewerage is to !e contracted o#t to 1*Ps) how is the 1*$8s role as a reg#lator 6 in managing dis%osal of sewerage A to !e reconciled with its role as a market actorL Finally) is it envisaged that where a 1*P takes on the task of sewerage dis%osal then the 1*$ will grant it an a#tomatic consent to dis%ose of trade effl#entsL The %rovisions of the Act relating to the dis%osal of sewerage need to !e reviewed with a view
to; BaC reg#lating the %rocess of granting consentsE B!C harmoniDing the %rovisions relating to the %rovision of water services and the dis%osal of sewerage Bfor exam%le harmoniDing the licensing regime with the granting of consentsCE and BcC esta!lishing clear lines of res%onsi!ility for the dis%osal of sewerage.
Con!l+s%on
Thro#gho#t the 1orld) there is now recognition of the need for integrated management of water reso#rces. And while the market is increasingly seen as a via!le alternative to %#!lic %rovision of water and sanitation) there is an #nderstanda!le a%%rehension that the market mechanism may com%romise the conservation of the world8s limited freshwater reso#rces and deny access to those who are not a!le to %ay. For these reasons) there is a need for governments to reg#late the de%loyment of the market mechanism. F#rthermore) if the many demands that are %laced #%on water reso#rces are to !e accommodated e>#ita!ly) there is a need for instit#tional frameworks that ens#re the democratic governance of water. At all times) s#ch instit#tional frameworks sho#ld accord %rimacy to the conservation of water reso#rces. AnalyDed from these %ers%ectives) the 21A is wanting in significant res%ects. As we have seen) the 21A8s instit#tional framework constit#tes a significant !arrier to the democratic governance of water) given the concentration of %ower in the /inister and the res#lting lack of meaningf#l decentralisation of the instit#tional framework) the #nd#e fragmentation of) and
overla%s in) instit#tional res%onsi!ilities) the fail#re to harmonise the water governance framework with existing environmental management instit#tions es%ecially 2+/A) and the addition of an #nnecessary layer of !#rea#cracy in the form of the monolithic 1ater *ervice $oards. In addition) the 21A8s %rovisions governing the transition to the new regime are wanting in material res%ects th#s ens#ring the %arallel o%eration of the old and the new regimes. F#rther) the framework for marketisation is neither cond#cive for market environmentalism nor economic efficiency. The 21A8s %rovisions dealing with the %rovision of water and sanitation services are #nclear and #n%redicta!le. Th#s the licensing regime is !#rea#cratic) c#m!ersome and conf#sing. For instance) the 1ater *ervice $oards are !oth reg#lators Balongside the 1*.$C and
Internal Teaching Use Only 4"4
market actors. This conflation of roles can only work to the detriment of efficient de%loyment of the market mechanism in water and sanitation. Again) the 21A fails to em!race informal water %roviders who have !een the main %roviders of water services in r#ral areas. The 21A also fails to esta!lish clear %rinci%les for the reg#lation of sanitation) and access to water and sanitation services !y the %oor. A!ove all) the 21A fails to reg#late the cor%oratisation of the water de%artments of local a#thorities. The %olicy ex%ectation was that the cor%oratisation exercise wo#ld event#ally facilitate %rivate sector investment in these com%anies. This o!?ective is
#nlikely to !e realised #nless the reg#latory %rocess facilitates their acco#nta!ility and efficiency. The 21A8s instit#tional framework therefore re>#ires an extensive review if it is to facilitate ecosystem6!ased integrated management of water reso#rces and efficient de%loyment of the market mechanism in environmental conservation) and the %rovision of water and sanitation services. First) the 21A m#st !e harmoniDed with +/(A. Indeed) +/(A itself sho#ld !e amended to esta!lish administrative mechanisms that will ena!le 2+/A to coordinate and reg#late the activities of lead agencies. *econd) the 21A8s agencies m#st !e streamlinedE in %artic#lar) the 1./A and the 1*.$ sho#ld !e amalgamated and the 1*$s sho#ld !e a!olished. ,ast !#t not least) the 21A8s %rovisions reg#lating marketisation sho#ld !e streamlined to facilitate a %redicta!le de%loyment of command and control and market instr#ments) which are !oth re>#ired for effective water governance.
Chapter 1@
1ise #se and Sustaina"le )anagement of 1etlands in -en&a

(O,,I2* ODOT+ Introduction
1etland is one of the two most im%ortant yet threatened ecosystems in the world c#rrently. & This sit#ation has) however) not always !een the case. For a long time) wetlands were viewed as areas that were not of m#ch #se #nless and #ntil they were converted to more %rod#ctive #ses like agric#lt#re. This led to them !eing referred to in certain >#arters as =wastelands=.
9owever) over time) the #tility and im%ortance of wetlands started !eing realiDed and so did international res%onse and efforts for their conservation. 1etlands started !eing viewed as a %#!lic good re>#iring %#!lic %rotection. These efforts are tracea!le and linked to the evol#tion of the %#!lic tr#st doctrine %o%#lariDed !y Gose%h ,. *ax in an infl#ential article %#!lished in &7 :. 9owever) the most well known international res%onse to the challenges regarding the conservation of wetlands is the (onvention on 1etlands of International Im%ortance es%ecially as 1aterfowl 9a!itat Bhereinafter the .amsar (onventionC.4 Des%ite the ado%tion of the .amsar (onvention in &7 &) wetlands have contin#ed to !e #nder threat. In efforts to res%ond to the contin#ed threat) co#ntries %arty to the .amsar (onvention are re>#ired to #ndertake several meas#res to ens#re the conservation and wise #se of wetlands within their territories. These incl#de the ado%tion of national laws and %olicies. This cha%ter disc#ses 0enya8s national laws and %olicies on wetlands management to determine the extent to which they %romote conservation and wise #se of wetlands. The cha%ter also seeks to assess whether the existing legal and %olicy framework on wetlands management is in t#ne with the +nvironmental /anagement and (o6ordination Act.5 *ection - gives the analytical framework from which the rest of this cha%ter %roceeds) incl#ding defining key conce%ts in the management of wetlands. The section also highlights the val#es of wetlands and their #tility in society) th#s ?#stifying why
they need legal %rotection. *ection 4 gives a !rief overview of the international legal framework
& Forests - *ax 4 77' 5 Act
constit#te the other threatened ecosystem.
M&7 :N. U2T* -53B&7 'C re%rinted in &&I,/ 7 Bentered in force on -& Decem!er &7 3C. 2o. " of &777) ,aws of 0enya.
for the management of wetlands) %aying %artic#lar attention to the .amsar (onvention. This is followed in *ection 5 !y a concise disc#ssion on the legal and %olicy framework for the management of wetlands in 0enya. *ection 3 disc#sses the im%lications of %ro%erty rights and regimes on the management of wetlands in 0enya while *ection ' analyses the extent to which the existing legal and %olicy framework contri!#tes to wise #se of the reso#rce and also to environmental s#staina!ility. This section will) as a res#lt) seek to res%ond to the core concern of the !ook) which is the extent to which 0enya8s law on wetlands management is either in t#ne with +/(A or in need of reform as re>#ired !y section &5" of +/(A. *ection concl#des the cha%ter. (efining 1etlands, elated Concepts and Its #ses in Societ&
Altho#gh wetlands %rovide ecological and economic !enefits) defining wetlands) !oth in terms of legal ?#risdiction and !y ecological classification) has %roven %ro!lematic. As a res#lt of %eriodic in#ndation !y water) wetlands fall along a transitional Done !etween %ermanently wet and dry ha!itats. (onse>#ently) !o#ndaries of wetlands may ex%and or contract over time. They range from %ermanently or intermittently wet land to shallow water and land6water margins. 3 Therefore)
wetlands are diffic#lt to identify) which makes finding a definition that em!races !oth legal %recision and acc#rate reflection of ecological %arameters challenging. In s%ite of the diffic#lty in defining wetlands) there are several agreed criteria for identifying and defining wetlands. The key one is that of the %resence of water at or near the land s#rface. From this stand%oint) the definition ado%ted !y the .amsar (onvention is the most #niversally acce%ted. The (onvention defined wetlands as area& o, mar&h, ,en, peatland or water, whether nat%ral or arti,icial, permanent or temporary, with water that i& &tatic or ,lowing, ,re&h, #racki&h or &alt, incl%ding area& o, marine water the depth o, which at low tide doe& not e<ceed &i< metre&. H 1etlands vary in siDe and ty%e. In terms of classification) there are two !road categories of wetlands. These are nat%ral wetlands and man6made or artificial wetlands. /an6made wetlands incl#de a>#ac#lt#re %onds) farm %onds) irrigated agric#lt#ral land) salt %ans) reservoirs) gravel %its) sewage farms and canals. The common characteristic of artificial wetland is that they are #s#ally designed for a s%ecific %#r%ose and seldom have the f#ll range of wetland f#nctions and val#es %rovided !y a nat#ral wetland.
3 *hine ' -%pra
K de 0lemm LGDDDM. note 4) Article &.&.
-%pra note 3 at '.
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2at#ral wetland& are f#rther classified into five. These incl#de; Q /arine; i.e. coastal wetlands incl#ding coastal lagoons) rocky shores and coral reefs Q +st#arine; incl#ding deltas) tidal marshes and mangrove swam%s Q ,ac#strine; wetlands associated with lakes
Q .iverine; wetland& along river& and &tream&

Q Pal#strine; or marshy) incl#des mar&he&, &wamp& and !ogs
One can also classify nat#ral wetlands into only two !road categories) !eing marine or coastal wetlands and inland wetlands. The laws and %olicies governing wetlands concentrate on nat#ral wetlands. 1etlands %erform many varied roles in society. (ontrary to the early %erce%tion of !eing only good when converted to more %rod#ctive #ses) they have several goods and services that are of val#e to the world. 1etlands ha!itats are rich in !iodiversity) %erform varied f#nctions and have n#mero#s attri!#tes making them im%ortant ecosystems. One of the f#nctions of wetlands is their role in maintaining !iodiversity.1etlands s#%%ort high levels of !iodiversity. They are) after tro%ical rainforests) among the richest ecosystems in this %lanet) %roviding essential life s#%%ort for m#ch of h#manity) as well as for other s%ecies." 1etlands are not only sites of exce%tional !iodiversity) they are also of enormo#s social and economic val#e in !oth traditional and contem%orary societies. *ince ancient times) %eo%le have lived along water co#rses) !enefiting from the wide range of goods and services availa!le from wetlands.7 1etlands %lay an im%ortant role in the hydrological cycle as far as %rovision and maintenance of water >#antity and >#ality is concerned. They %rovide the mechanisms for hydrological !alance. Among other f#nctions) wetlands contri!#te to climate sta!ility) %#rify water) control erosion) store water and reg#late the water ta!le thro#gh maintenance and recharge of s#rface and
#ndergro#nd water s#%%ly) and also discharge #ndergro#nd water so as to %revent water logging of land. Des%ite their #tility as an ecosystem) wetlands contin#e to !e im%acted and degraded) and lost d#e to conversion. Over the last 3: years) the rate of wetlands loss has increased dramatically) and is still contin#ing.&: +vidence a!o#nds of wetlands that contin#e to !e treated as #n%rod#ctive and
" .amsar
(onvention $#rea#) /etland& and #iological diver&ity: Cooperation #et2%een the Convention on /etland& o,
International Importance, e&pecially a& water,owl ha#itat and the Cotivention on Iiological 8iver&ity. Pa%er distri!#ted to the delegates at the third meeting of the (onference of the Parties to the (onvention on $iological Diversity) $#enos Aires) Argentina 56&3 2ovem!er &77'. U2+P@($D@(OP 4@Inf.-& at - Bavaila!le at http:>>www.ram&ar. org>a#o%t+#iodiver&ity.htm last accessed on 5th /ay -:: C.
7 I#id
at -. at 4.
&: I#id
#nhealthy lands. (onse>#ently) they are fre>#ently converted) normally with government s#%%ort) to economically via!le systems for agric#lt#re or fisheries %rod#ction while others have !een drained to create additional land for develo%ment. The exam%le of Jala *wam% and its conversion to rice farming !y a U* (om%any) Dominion Farms ,td) is a clear ill#stration of these trends in 0enya. In efforts to stem the loss of wetlands) a legal regime to ens#re conservation and wise #se of wetlands has !een develo%ed) !oth at national and international levels. The terms conservation and wise #se are critical for the disc#ssion on the management of wetlands. The .amsar (onvention aims at ens#ring that wetlands are conserved and wisely #sed.
The term conservation is #sed widely in many environmental conventions. (onservation generally im%lies the #se of nat#ral reso#rces s#staina!ly and to avoid waste. This re>#ires maintaining the threshold of s#staina!ility. The organising %rinci%le that ties these conce%ts is that of s#staina!le develo%ment. This %rinci%le seeks to !alance and link develo%ment and environmental im%eratives. The conce%t of s#staina!le develo%ment) altho#gh m#ch older in terms of its origin) && received %rominence thro#gh the work of the 1orld (ommission on +nvironment and Develo%ment a%%ointed !y the United 2ations in &7"4.&- This (ommission) chaired !y the Prime /inister of 1orway, Gro 6arlem Ir%ndtland, was an inde%endent !ody to address glo!al environmental %ro!lems. The (ommission com%leted its work in &7"' and %re%ared a gro#nd!reaking re%ort O%r Common F%t%re %#!lished in &7" . The re%ort sets o#t a %rogramme for integrating environmental concerns with economic goals !y governments and the %rivate sector at international) national and local levels. The re%ort highlighted that the conce%t of s#staina!le develo%ment wo#ld !e a #sef#l tool in the %rocess of !alancing environmental and develo%mental im%eratives. It defined s#staina!le develo%ment as =develo%ment that meets the needs of the %resent witho#t com%romising the a!ility of f#t#re generations to meet their own needs.= &4 The conce%t of s#staina!le develo%ment has !een stated to com%rise of fo#r elements. &5 These incl#de; BiC the need to %reserve national reso#rces for the !enefit of f#t#re generations Bthe %rinci%le of intergenerational e>#ityCE BiiC the aim of ex%loiting nat#ral reso#rces in a manner that is 8s#staina!le8 or 8%r#dent8 or 8rational8) or 8wise8 or 8a%%ro%riate8 Bthe %rinci%le of s#staina!le #seCE
&& For
a disc#ssion of the origins of s#staina!le develo%ment) see the G#dgment of G#stice 1erramantry in the Ca&e Concerning
the Ga#cikovo!1agymaro& 8am BI(G .e%) &77 ) C.

&- United &4 1orld &5 *ands
2ations M&7"4N. (ommission on +nvironment and Develo%ment B1(+DC M&7" N.
M-::4N.
Internal Teaching Use Only 4""
BiiiC the 8e>#ita!le8 #se of nat#ral reso#rces) which im%lies that #se !y one state m#st take acco#nt of the needs of other states Bthe %rinci%le of e>#ita!le #se) or intragenerational e>#ityCE and BivC The need to ens#re that environmental considerations are integrated into economic and other develo%ment %lans) %rogrammes and %ro?ects) and that develo%ment needs are taken into acco#nt in a%%lying environmental o!?ectives Bthe %rinci%le of integrationC.&3 +fforts at conservation and wise #se of wetlands have to ens#re and %romote s#staina!le develo%ment. Indeed) the conce%ts of wise #se and conservation) which are central to disc#ssions on and management of wetlands internationally) are %art and %arcel of s#staina!le develo%ment and of efforts to ens#re s#staina!ility of wetlands and the reso#rces contained therein.. *econdly) wetlands are seen as a %#!lic reso#rce re>#iring %#!lic %rotection. This !rings into fore the nex#s !etween %ro%erty rights and environmental stewardshi%. 0ey conce%ts that hel% !alance these incl#de those of eminent domain) %olice %ower and the %#!lic tr#st doctrine. These will !e !riefly disc#ssed in this cha%ter in the context of 0enya. International Legal and !olic& Framework for 1etlands )anagement Altho#gh traditionally wetlands were regarded as wastelands) contin#ed %ress#re on them and
their degradation led to a realisation internationally of their im%ortance. This realisation initially !eg#n amongst conservationists who wanted wetlands %rotected as ha!itat for migratory !irds. At the start of the -:th cent#ry) co#ntries entered into !ilateral agreements to %rotect migratory !irds and their ha!itat. In &7&') the United *tates and <reat $ritain entered into a treaty regarding the %rotection of !irds and their migratory ro#tes and ha!itat. The Treaty aimed at %rotecting s%ecies of !irds that traversed United *tates and (anada and were of great val#e as a so#rce of food and in destroying insects in?#rio#s to vegetation. The Treaty %rovided for s%ecified closed seasons and %rotection in other forms) incl#ding #rging each of the two %arties to the Treaty to %ro%ose domestic legislation and other meas#res to im%lement the (onvention. The United *tates did this thro#gh the /igratory $ill Treaty Act of 4 G#ly &7&") !y which it %rohi!ited the killing) ca%t#ring or selling of migratory !irds incl#ded in the terms of the Treaty exce%t in accordance with the Act and reg#lations made there#nder. The *tate of /isso#ri !ro#ght an action in co#rt challenging the constit#tionality of this stat#te and.the Treaty. The U* *#%reme (o#rt in the case of "i&&o%ri v 6olland #%held !oth the stat#te and the Treaty. &' The im%et#s for international action on wetlands !egan with the la#nch of %ro?ect /A. in the
&3 I#id.
&' -3-
U* 5&'
late &73:s.& The aim of the %ro?ect) a ?oint initiative of the International Union for the (onservation of 2at#re and 2at#ral .eso#rces Bnow IU(26the 1orld (onservation UnionC) the International 1aterfowl .esearch $#rea# Bnow 1etlands InternationalC and the International (o#ncil for $ird Preservation BI($PC) was to create awareness on the im%ortance of wetlands and th#s contri!#te to their conservation. Pro?ect /A. was esta!lished =following concern at the ra%idity with which large stretches of marshland and wetlands in +#ro%e were !eing =reclaimed= or otherwise destroyed) with a res#lting decline in n#m!ers of waterfowl.= &" In 2ovem!er &7'-) a conference was held in France #nder the a#s%ices of %ro?ect /A. where a call was made for an international convention on wetlands. Following a series of meetings and negotiations) the text of the (onvention was event#ally ado%ted in .amsar) in Iran on - Fe!r#ary &7 &.&7 This (onvention) known as the (onvention on 1etlands of International Im%ortance) es%ecially as 1aterfowl 9a!itat Bhereinafter .amsar (onventionC)-: is the %rinci%al treaty at the international level governing the management of wetlands. It followed efforts !y conservationists and +#ro%ean scientists calling for s#ch a convention following their linking of the decline of waterfowl %o%#lations with wetland ha!itat loss) drainage) %oll#tion and excessive h#nting. They called for s#ch a treaty to ens#re %rotection of wetlands ecosystems. The original foc#s of the .amsar (onvention was on wetlands as a ha!itat for waterfowl.
9owever) over the years) it has develo%ed into an internaticr instr#ment dealing with wetlands from a !roader %oint of view.-& Altho#gh the (onvention8s title em%hasiDes one as%ect of wetlands) its %ream!le shows clearly that the negotiators were concerned with the f#ll range of wetlands !enefits.-The o!?ectives of the (onvention are to =stem the %rogressive encroachment on and loss of wetlands now and in the f#t#re= and to s#%%ort wetland conservation =!y com!ining far6 sighted national %olicies with co6ordinated international action.= -4 To meet these o!?ectives) the (onvention %laces fo#r %rimary o!ligations on its mem!er co#ntries. -5 Firstly) every mem!er
&
-%pra note 3 at - . .amsar (onvention $#rea#; $ Irie, 6i&tory o, the 9am&ar Convention on /etland&, availa!le at http:>>www.
&" The
ram&ar.org>a#o%t>a#o%t+ram&ar+hi&toni.htm Baccessed on 4&@ @: C.

&7 For
an exha#stive disc#ssion on the 9istory of the .amsar (onvention see /athews M&774N) availa!le at htt%;@@
ramsar.org@li!@li!ShistSinedx.htm Baccessed on &5@'@-:: C and de 0lemm K (reatea#x M&773N) availa!le at http:>>ram&ar.org>li#>li#+legal+e.htm Baccessed on &5@ @-:: C.
-: -%pra, -& -%pra -- I#id.. -4 -%pra
note 4. note 3 at -".
note 4) %ream!le. M-::4N.
-5 0r#chek
co#ntry Bcontracting %artyC is #nder an o!ligation to designate =s#ita!le wetlands within its territory for incl#sion in a ,ist of 1etlands of International Im%ortance Bhereinafter referred to as the =,ist=C.-3 +very co#ntry m#st) on !ecoming signatory) designate at least one site as a wetland of international im%ortance. 0enya acceded to the (onvention on 3 G#ne &77: and !ecame a %arty on 3 Octo!er &77: in accordance with the re>#irement that co#ntries which accede to the
(onvention shall !ecome %arties fo#r months after the date of signat#re. -' In f#lfillment of this o!ligation) 0enya has designated five wetlands to !e on the list of wetlands of international im%ortance) with the first one !eing ,ake 2ak#r# on 3 G#ne &77:. The other sites on the list are ,ake 2aivasha) ,ake $ogoria) ,ake $aringo and ,ake +lmentaita. In con?#nction with the d#ty of listing) %arties are #nder an o!ligation to %romote the conservation of each wetland listed on the ,ist.The second o!ligation for contracting %arties is the re>#irement to incl#de wetland conservation considerations in each co#ntry8s nat#ral reso#rce %lanning %rocesses and to %romote the wise #se of wetlands within their territory. -" Third) contracting %arties are re>#ired to esta!lish nat#re reserves on wetlands within their !orders. -7 (ontracting %arties are also ex%ected to exchange information with one another a!o#t wetlands) to %romote training in the field of wetland research) and to manage wetlands for the !enefit of waterfowl. 4: The fo#rth o!ligation is that of international co6o%eration) es%ecially with regard to trans!o#ndary wetlands) shared water systems) shared s%ecies) and develo%ment %ro?ects affecting wetlands.4& +very %arty to the .amsar (onvention is d#ty !o#nd to meet the a!ove o!ligations. The intention is to ens#re the conservation and wise #se of wetlands. Part of meeting their o!ligations re>#ires contracting %arties to %#t in %lace %olicies) laws and instit#tional str#ct#res for the conservation and wise #se of wetlands at the national level and also for !etter im%lementation of
the o!ligations #nder the .amsar (onvention. 0enya) as a %arty to the convention) is ex%ected to do so. Altho#gh the .amsar (onvention is the %rinci%al convention governing the management of wetlands at the international level) it is not the only relevant convention. 1etlands are %art of the environment. (onse>#ently) the !#lk of the environmental6related conventions %rovide a #sef#l
-3 *#%ra -
note 4) %ream!le. -' I#id, art. &: B-C.
I#id, art.4.BlC. art. 4B-:C. art. 5B&C art. 5B4C6B3C; art. 3.
-" I#id, -7 I#id 4: I#id, 4& I#id,
framework for their management. 4The %rinci%les #nder%inning the .amsar (onvention received !road %olitical consens#s and s#%%ort at the U2 (onference on the 9#man +nvironment when)6thro#gh the *tockholm declaration) an incl#sive a%%roach to the management of ecosystems and !iological reso#rces was recognised as f#ndamentally im%ortant for mankind. 44 This conce%t#al !asis incl#ded in the *tockholm declaration and a key cornerstone of the .amsar (onvention has also !een reflected in s#!se>#ent non6!inding instr#ments and conventions. Of the (onventions that have !een ado%ted after the .amsar (onvention) the other that deserves s%ecial attention for its im%lications on wetlands management are the (onvention on $iological $iodiversity B($DC and the United 2ations Framework (onvention on (limate (hange
and its s#!se>#ent %rotocol) the 0yoto Protocol. Others incl#de the &77- (onvention on Poll#tion and Use of Trans!o#ndary 1aterco#rses and International ,akes) the &77 (onvention on the ,aw of 2on62avigational Uses of International 1aterco#rses) the &775 (onvention on Desertification and the &7 - (onvention (oncerning the Protection of the 1orld (#lt#ral and 2at#ral 9eritage. !olic& and Legal framework for 1etlands )anagement in -en&a In 0enya) wetlands occ#%y a!o#t 4R to 5R) or a%%roximately &5)::: km- of the land s#rface of the co#ntry45 This sometimes extends to a!o#t 'R of the land s#rface. 43 They are distri!#ted thro#gho#t the co#ntry. 9owever) the exact area covered !y each ty%e of wetland in 0enya is largely #nknown d#e to the lack of a national inventory on wetlands. Of the most known wetlands in 0enya) five are on the .amsar list B,ake 2ak#r#) ,ake 2aivasha) ,ake $ogoria) ,ake $aringo and ,ake +lmentaitaC. 9owever) there are several other wetlands which) altho#gh im%ortant) are not on the .amsar ,ist. *ome of these incl#de Jala *wam%) ,ake 0anya!oli) Tana Delta and ,ake Gi%e. This section disc#ses the %olicy and legal framework that exists in 0enya for the management of wetlands. Policy Frame#or/ As regards %olicy) 0enya has never had a %olicy framework governing wetlands management. /any attem%ts have !een made in the %ast to develo% one. These have c#lminated in a draft
4- For 44 ;*ee
an ill#strative list of some of the #sef#l environmental conventions) *ee (ha%ter & of this !ook. *tockholm Declaration) Princi%le -65. ,and Alliance M-::'N.
45 0enya 43 I#id.
%olicy)4' which as at the time of writing was yet to !e ado%ted as a framework to govern the
management of wetlands and wetlands reso#rces in 0enya. The rationale for a %olicy framework to govern wetlands is not diffic#lt to fathom A %olicy as the government8s overall strategic commitment and action %lan wo#ld clearly co6ordinate efforts to manage wetlands and elevate their stat#s in %lanning %rocesses. The draft %olicy ca%t#res the im%ortance th#s;
8e&pite certain &peci,ic action& 5pro3ect& and programme&7 which have #een %ndertaken#yvario%& &takeholder&, itha&#ecome concl%&ively evident that individ%al action& or approache& are in&%,,icient to rever&e the c%rrent trend&. ... hence the ,elt need to develop a national policy on wetland& con&ervation and management. $ national policy will lay the ,ramework ,or planning, co!ordination and management o, wetland&. It will al&o advance the %nder&tanding and appreciation o, wetland& a& val%a#le eco&y&tem& ,or &%&taina#le development. Blie policy will al&o en&%re that &peci,ic g%ideline&, &%ch a& Environmental Impact $&&e&&ment 5EI$7 g%ideline&, are developed and implemented to en&%re minimal negative impact&.0A
The draft %olicy defines wetlands in the 0enyan context) identifies the #ses to which wetlands have !een %#t) and s#mmariDes the main threats to their conservation and management. The key %olicy iss#es that the draft addressee incl#de ten#re and accessi!ilityE im%roved instit#tional and legal framework im%roved %#!lic awarenessE %romotion of wise #seE recognition of the need for integrated %lanning and m#lti%le #se of wetlandsE conservation of wetlandL and their !iodiversityE restoration and recovery of wetlandsE +nvironmental Im%act Assessment re>#irements for develo%ment and monitoring of wetlands im%lementation of international res%onsi!ilitiesE and
research and esta!lishment of a wetlands data!ase. The disc#ssions on and for a wetlands %olicy have taken %lace for long. It is critical that these disc#ssions !e concl#ded in a cons#ltative manner so that the co#ntry can have an ado%ted %olicy framework to govern the management of wetlands. Legal Framework The 0enyan legal framework for the management of wetlands is discerni!le from the laws governing land and those governing environmental management. There is no stat#te that deals excl#sively with wetlands conservation and wise #se. Instead) the +nvironmental /anagement and (o6ordination Act) the 1ildlife B(onservation and /anagementC Act) the Physical Planning Act and the 1ater Act mention and have %rovisions that address certain as%ects of wetlands management.
4' .e%#!lic 4
of 0enya M-:: N.
I#id.
Environmental )anagement and Co$ordination Act As the framework law) +/(A gives the !road framework for the management of the environment and the nat#ral reso#rces in 0enya. To this extent) therefore. +/(A and its %rovisions are relevant for the conservation and wise #se of wetlands. In addition to its !road role) +/(A also contains s%ecific %rovisions governing wetlands. *ection 5- of +/(A deals with the %rotection of rivers) lakes and wetlands. The section starts
!y %rohi!iting the carrying o#t of certain activities on a wetland exce%t with %rior written a%%roval of the Director <eneral of 2+/A) which a%%roval can only !e given following an +nvironmental Im%act Assessment.4" The activities in >#estion incl#de; BiC erecting) reconstr#cting) altering) extending) removing or demolishing any str#ct#re or %art of any str#ct#re in or #nder a wetlandE BiiC excavating) drilling) t#nneling or dist#r!ing a wetlandE BiiiC introd#cing any animal whether alien or indigeno#s in a wetlandE BivC introd#cing any %lant or %art of a %lant s%ecimen) whether alien or indigeno#s) dead or alive) in any wetlandE BvC De%ositing any s#!stance in a wetland if that s#!stance wo#ld or is likely to have adverse environmental effects on the wetlandE BviC Directing or !locking any wetland from its nat#ral and normal co#rseE and BviiC Draining of a wetland. The Act then gives the /inister the %ower to) !y a notice in the <aDette) declare a wetland to !e a %rotected area and im%ose s#ch restrictions as he considers necessary to %rotect the wetland from environmental degradation.47 In the %rocess mof making the declaration) he sho#ld consider the geogra%hical siDe of the wetland and the interests of the comm#nities resident aro#nd the lakeshore.5: ,astly) the Act gives the /inister the %ower to iss#e) thro#gh a <aDette notice) general and s%ecificorders)reg#lationsorstandardsforthemanagementofwetlands. 5& These may incl#de iss#es to do with management) %rotection or conservation meas#res in res%ect of wetland areas in risk of
environmental degradation. To date) no s#ch orders) reg#lations or standards have !een iss#ed. There) however) exists in draft form reg#lations for the management of wetlands. 54" +nvironmental 47 I#id, 5: I#id. 5& I#id, 5- The
/anagement and (o6ordination Act) Act 2o. " of &777) at *ection 5-B&C.
*ection 5-B-C.
-ection 5-B4C.
+nvironmental /anagement and (o6ordination B1etlands) .iver!ank) ,akeshore and *eashore /anagementC Draft
.eg#lations) -::- BOn file with a#thorC.
Part II of those draft reg#lations contains detailed %rovisions for the management of wetlands and wetlands reso#rces. The o!?ectives of the reg#lations are listed as !eing; BaC Providing for the conservation and wise #se of wetlands and their reso#rces in 0enyaE B!C +ns#ring the conservation of water catchment and the control of floodsE BcC +ns#ring the s#staina!le #se of wetlands for ecological and aesthetic %#r%oses for the common good of all citiDens. BdC +ns#ring the %rotection of wetlands as ha!itats for s%ecies of fa#na and floraE BeC .eg#lating %#!lic #se and en?oyment of wetlandsE BfC Providing a framework for %#!lic %artici%ation in the management of wetlandsE BgC +nhancing ed#cation research and research related activitiesE and BhC Preventing and controlling %oll#tion and siltation of wetlands. 54 .eg#lation 4 starts !y addressing the iss#e of ten#re or ownershi% of wetland !y sti%#lating that wetlands shall !e a %#!lic reso#rce. It re>#ires the <overnmerment or local a#thority to hold in tr#st for the %eo%le of 0enya and %rotect wetlands for the common good of the citiDens of 0enya.55 .eg#lation ' then re>#ires the 2ational +nvironmental Action Plan (ommittee) esta!lished #nder +/(A)53 to advise the 2+/A on the wise #se) management and conservation of
wetland reso#rces while the District +nvironment (ommittee shall !e res%onsi!le for conserving and managing wetland reso#rces in its area of ?#risdiction. 5' The reg#lations are very detailed and address many iss#es regarding wetlands management) incl#ding the %roced#re for declaring wetlands as a %rotected wetland) and maintaining an inventory of wetlands in 0enya. The reg#lations were at the time of writing still in draft form. Altho#gh they %rovide a #sef#l and detailed framework to govern wetlands) a >#estion that they leave #nanswered is whether their reach is not too wide as to re>#ire a com%rehensive legislation thro#gh an Act of Parliament and not s#!sidiary legislation thro#gh reg#lations. 3ther Laws Impacting on 1etlands in -en&a P&'s%!al Plann%n$ A!t<; The Physical Planning Act is an Act of Parliament whose %rinci%al %#r%ose is to %rovide for the
54
I#id .eg#lation 5. 05'7.
55 I#id9eg%lation 53 +/(A) 5' -%pra 5
*ection 4
note 4 at .eg#lation .
(ha%ter -"') ,aws of 0enya.
%re%aration and im%lementation of %hysical develo%ment %lans. The Act reg#lates %hysical %lanning and develo%ment in all %arts of the co#ntry. It re>#ires that !efore a develo%ment is #ndertaken) the %ro%onent sho#ld a%%ly to the relevant a#thority so as to o!tain a%%rovals. The %rocess involves local a#thorities whose d#ty incl#de considering and approving all development
application& and grant development %ermissions.5" One of the im%ortant f#nctions of every local a#thority is the %ower to =%reserve and maintain all land %lanned for o%en s%aces) %arks) #r!an forest and green !elts in accordance with the a%%roved %hysical develo%ment %lans.= 57 Altho#gh the section does not mention wetlands) it can !e #sed !y local a#thorities as a !asis of %reserving and maintaining wetlands as fragile ecosystems in cases where it is considered necessary. The Act also disc#sses the %owers of the Director of Physical Planning 3:) the (ommissioner of ,ands and the /inister in the %rocess of a%%roval and im%lementation of develo%ment %lans. The Act re>#ires the !alancing of vario#s interests in the %rocess of designing and a%%roving %hysical %lans. It s%ecifically calls for +I A to !e carried o#t in cases where the local a#thority is of the view that %ro%osals for ind#strial develo%ment activities will have in?#rio#s im%act on the environment.3& In reliance on this %rovision) and d#e to the #ni>#e nat#re of wetlands ecosystems) +nvironmental Im%act Assessment B+IAC sho#ld !e #ndertaken in all cases of %ro%osed develo%ments in a wetland. This way) the develo%ment needs will !e weighed against the environmental im%eratives of the ecosystem. Wate A!t 6==6B6 The 1ater Act -::- re%ealed the earlier water Act 34 and is stated to !e an Act to =%rovide for the management) conservation) #se and control of water reso#rces and for ac>#isition and reg#lation
of rights to #se waterE and to %rovide for the reg#lation and management of water s#%%ly and sewerage services.=35 This Act has relevance for the management of wetlands in 0enya. As defined) a wetland is an area whose characteristics incl#de the %resence of water and hence the relevance of the 1ater Act. The definition section of the Act clearly identifies the relevance of the Act to wetlands !y incl#ding in its definition the term =swam%=) 33 which is the e>#ivalent term
5" I#id, 57 I#id, 3: I#id, 3& I#id, 3- Act
-ection 'D. *ection -7BfC. *ection 3. *ection 4'.
2o. " of -::-) ,aws of 0enya. 4 -) ,aws of 0enya.
34 (ha%ter 35 I#id 33 I#id
note 3-) Pream!le. *ection -B&C.
for wetlands. It defines a swam% as =... any shallow de%ression on which water collects either intermittently or %ermanently and where there is a small de%th of s#rface water or a shallow de%th of gro#nd water and a slight range of fl#ct#ation either in the s#rface level of the water or of the gro#nd water level so as to %ermit the growth of a>#atic vegetation.= 3' This definition corres%onds in large meas#re to the definition of the term wetlands. The Act deals with the ownershi%) control) and #se of water reso#rces and also has %rovisions for the %rotection of water catchments areas. The instit#tional str#ct#re that it creates is also relevant for %#r%oses of wetlands management. Two %oints of ca#tion) however) as regards the
1ater Act. Firstly) the Act em%owers the /inister to make r#les for the !etter im%lementation of the Act.3 In reliance of these %owers) there have !een draft reg#lations that) among other things) seek to reg#late the management of wetlands. One sho#ld look at this in relation to the %rovisions of *ection 5- of +/(A) which also em%owers the /inister in charge of environment to make reg#lations for the management of +/(A. This %ossi!ility of conflict is f#rther am%lified d#e to the instit#tional conflict !etween the 2ational +nvironmental /anagement A#thority B2+/AC thro#gh +/(A and the instit#tions and legal sti%#lations #nder the 1ater Act) with arg#ments !eing made that the 1ater Act !eing later in time sho#ld %revail over +/(A) notwithstanding the %rovisions of section &5" of +/(A. 3" As !oth Acts give the /inister #nder them %owers to make reg#lations and a#thority over wetlands) #nless there is %ro%er instit#tional coordination) there is tendency of overla%s in mandate or contradictory reg#lations over the same ecosystem. The 1ater Act) having defined swam%s in lang#age similar to the definition of wetlands) sti%#lates that one cannot drain a swam% or any other land witho#t o!taining a %ermit 37 from the 1ater .eso#rce /anagement A#thority': *#ch %ermits are generally to !e granted only after %#!lic cons#ltations following an +nvironmental Im%act Assessment. '& It sho#ld) however) !e %ointed o#t that the a#thority has %owers to iss#e a %ermit witho#t #ndertaking %#!lic cons#ltations if it is of the view that circ#mstances so dictate. '- This %rovision can !e #sed to
sideste% the re>#irement of an environmental im%act assessment) and this wo#ld !ring diffic#lty in making a decision concerning wetlands) es%ecially if taken together with the re>#irement of mandatory +IA #nder +/(A.
3' I#id. 3
I#id *ection &&:. a detailed disc#ssion of this %otential conflict) see (ha%ter &4 of this !ook. note 3-) *ection -3B&C B!C. note 3- at *ection -7B&C. note 3-) *ection -7B5C. note 3-) *ection 44B&C.
3" For
37 -%pra ': -%pra '& -%pra '- -%pra
W%l*l%fe 3Conse )at%on an* Mana$e#ent4 A!t>8 This law governs the %rotection) conservation and management of wildlife in 0enya. It creates the 0enya 1ildlife *ervice'5 as the %rinci%al !ody for %#r%oses of im%lementing the Act. The f#nctions of 01* incl#de to; BaC Form#late %olicies regarding the conservation) management and #tilisation of all ty%es of fa#na not !eing domestic animalsC and floraE B!C Advise the <overnment on esta!lishment of national %arks) national reserves and other %rotected wildlife sanct#ariesE BcC /anage national %arks and national reservesE BdC Pre%are and im%lement management %lans for national %arks and national reserves and the dis%lay of fa#na and flora in their nat#ral state for the %rotection of to#rism and for the !enefit and ed#cation of the inha!itants of 0enyaE BeC Provide wildlife conservation ed#cation and extension services to create %#!lic awareness and s#%%ort for wildlife %oliciesE BfC *#stain wildlife to meet conservation and management goalsE BgC (ond#ct and co6ordinate research activities in the field of wildlife conservation and managementE
BhC Identify man%ower re>#irements and recr#it man%ower at all levels for the service for wildlife conservation and managementE BiC Provide advise to the <overnment and local a#thorities and landowners on the !est methods of wildlife conservation and management and !e the %rinci%le instr#ment of the <overnment in %#rs#it of s#ch ecological a%%raisals or controls o#tside #r!an areas as are necessary for h#man s#rvivalE B?C Administer and co6ordinate international %rotocols) conventions and treaties regarding wildlife in all its as%ects in cons#ltation with the /inisterE BkC *olicit !y %#!lic a%%eal or otherwise) and acce%t and receive s#!scri%tions) donations) devises and !e>#ests Bwhether mova!le or immova!le %ro%erty and whether a!sol#te or #nconditionalC for the general or s%ecial %#r%oses of the *ervice or s#!?ect to any tr#stE and B&C .ender services to the farming and ranching comm#nities in 0enya necessary for the
'4 (ha%ter '5 I#id,
4 ') ,aws of 0enya..
*ection 4B&C.
%rotection of agric#lt#re and animal h#s!andry against destr#ction !y wildlife. '3 Following the ratification of the .amsar (onvention) the government designated the 01* as the instit#tional focal %oint for the im%lementation of the (onvention. *ince the Act reg#lates the esta!lishment and o%erations of 01*) it is relevant for %#r%oses of the management of wetlands. In terms of f#nctions) 01* is charged with the d#ty of inter alia advising the government on the esta!lishment of national %arks) game reserves and %rotected wildlife sanct#aries. The Act f#rther em%owers the /inister to declare an area to !e a %rotected area '' and) according to the .amsar
(onvention) wetlands sites of international im%ortance can and sho#ld !e declared %rotected areas' to enhance their stat#s and th#s im%rove their conservation. There are efforts to revise !oth the 1ildlife Policy and 1ildlife Act and the draft 1ildlife Act gives excl#sive rights to 01* to !e overall in charge of the management of all wetlands in 0enya. This does not resolve !#t exacer!ates the instit#tional and str#ct#ral overla%s !etween 2+/A) 01* and the instit#tions #nder the 1ater Act as far as management of wetlands goes. It needs to !e clear) in law) which instit#tion has the overall mandate for conserving wetlands) and if more than one instit#tion) how their mandates are harmonised and coordinated. La-s an* Pol%!%es on Lan* Ten+ e an* Use The laws that govern ownershi%) control and #se of land have !een disc#ssed extensively in other %arts of this !ook. All that needs to !e restated is their relevance to the management of wetlands in 0enya. *econdly) 0enya has had no land %olicy. Over the last several years) the co#ntry has engaged in an extensive and intensive cons#ltations %rocess to develo% a national land %olicy. This c#lminated in the %rod#ction of a national land %olicy in /arch -::'. The draft %olicy identifies the %ro!lems that wetlands have faced) incl#ding conversion for ind#strialisation and develo%ment %#r%oses. It #nderscores the main %ro!lem facing wetlands ecosystems as !eing their #ns#staina!le ex%loitation d#e to conflicting land #ses and inade>#ate enforcement of nat#ral reso#rce management g#idelines. It then offers %ro%osals for the !etter management of wetlands
reso#rces. 1hen ado%ted) they will offer a good %olicy fo#ndation for the management of wetland ecosystems. P o(e t' R%$&ts an* Wetlan*s Mana$e#ent %n Ken'a There is a close nex#s !etween %ro%erty rights) land #se and wetlands conservation and
'3 I#id. '' -%pra '
note '4 at *ection &3.
Article 5 of the .amsar (onvention.
management. $eing a fragile ecosystem) how it is #sed has im%lications for its conservation. 1etlands can occ#r either in %#!lic) comm#nity or %rivate land) and as disc#ssed in the cha%ter on land law) each of these %ro%erty regimes have their own incidences to conservation and environmental management. 9owever) des%ite the different %ro%erty ty%ologies) the manner in which wetlands are managed is a %#!lic concern re>#iring direct and consistent %#!lic intervention. D#e to the foregoing) the *tate has to rely on the %owers availa!le in law to reg#late land #se. The two tools availa!le for reg#lating #se of land are the %owers of eminent domain and that of %olice %ower. +minent 7omain +minent domain refers to the %ower of the *tate to ac>#ire %rivate %ro%erty for %#!lic %#r%oses) s#!?ect to %rom%t %ayment of com%ensation. This %ower derives from the notion that the *tate holds radical title to all land within its territory. This %ower is em!odied in *ection 3 of the 0enyan (onstit#tion. The %ower to com%#lsorily ac>#ire land is also reg#lated !y the ,and
Ac>#isition Act.'" The Act details the conditions #nder which land may !e com%#lsorily ac>#ired and this incl#de the =interests of defence) %#!lic safety) %#!lic order) %#!lic morality) %#!lic health) town and co#ntry %lanning or the develo%ment or #tilisation of any %ro%erty in s#ch manner as to %romote the %#!lic !enefit.='7 This %ower is also incl#ded in other legislation like the Tr#st ,ands Act and the 1ater Act. The 1ater Act) for exam%le) incl#des the %ower of ac>#isition of land in the interests of environmental conservation.
:
*ection A@ of the (onstit#tion is) however) the anchor for the %ower of eminent domain. It %rovides that; B&C =2o %ro%erty of any descri%tion shall !e com%#lsorily taken %ossession of) and no interest in or right over %ro%erty of any descri%tion shall !e com%#lsorily ac>#ired) exce%t where the following conditions are satisfied6 BaC The taking of %ossession or ac>#isition is necessary in the interests of defense) %#!lic safety) %#!lic order) %#!lic morality) %#!lic health) town and co#ntry %lanning or the develo%ment or #tilisation of %ro%erty so as to %romote the %#!lic !enefitE and B!C The necessary therefor is s#ch as to afford reasona!le ?#stification for the ca#sing
'" (ha%ter '7 I#id, : -ee
-73) ,aws of 0enya.
*ection ' B&C BaC.
1ater Act) *ection ".
of hardshi% that may res#lt to any %erson having an interest in or right over the %ro%ertyE and BcC Provision is made !y law a%%lica!le to that taking of %ossession or ac>#isition for the %rom%t %ayment of f#ll com%ensation.=
&
From the %rovisions of *ection A@ of the (onstit#tion) it is clear that for the %ower of eminent
domain to !e exercised) the %ro%erty m#st !e re>#ired for a %#!lic %#r%ose. The %#r%ose m#st !e s#ch as to ?#stify hardshi% to !e ca#sed on the owner of the %rivate %ro%erty and thirdly that that owner m#st !e %aid %rom%t and ade>#ate com%ensation. This %ower of com%#lsory ac>#isition =%rovides the *tate with a #sef#l instr#ment for the conservation of environmental reso#rces) this !eing a %#!lic interest.=
-
The *tate) in reliance of this %ower) can ac>#ire land in a wetland and have the same %rotected and conserved. For the *tate to do this) the three constit#tional re>#irements m#st !e met. This has !een the s#!?ect of litigation in at least two 0enyan cases. The first case is that of Commi&&ioner o, Land& S $nother v Coa&tal $:%ac%lt%re Ltd.A0 This case arose o#t of the decision of the (ommissioner of lands to give notice on 3 2ovem!er &774 of an intention to ac>#ire a %arcel of land in Tana .iver !elonging to (oastal A>#ac#lt#re ,td. The land ac>#isition was done in reliance of the %owers #nder section 3 of the (onstit#tion and the ,and Ac>#isition Act. 5 The %#r%ose for which the ac>#isition was done was stated as !eing =for Tana .iver Delta wetlands=. The res%ondents were dissatisfied with the decision of the (ommissioner of ,ands to com%#lsory ac>#ire their land and !ro#ght a case in the 9igh (o#rt challenging that decision. The 9igh (o#rt) thro#gh .ingera G.) r#led in their favo#r !y holding that
the %#!lic %#r%ose and !ody for whom the land was !eing ac>#ired was not stated. 9e stated as follows;
$& regard& the ade:%acy and validity o, the notice p%#li&hed %nder &ection H5'7, I have come to the 3%dgment that that notice &ho%ld re,lect the "ini&terC& certi,ication to the Commi&&ioner %nder &ection H5G7, and m%&t accordingly incl%de the identity o, the p%#lic ,or whom the land i& ac:%ired and the p%#lic intere&t in re&pect o, which it i& re:%ired. It i& only when a notice contain& &%ch in,ormation that a per&on a,,ected there#y can ,airly #e e<pected to &ei2e hi& right to challenge the legality o, the ac:%i&ition. Bliat i& #eca%&e the te&t o, legality o, the ac:%i&ition i& whether the land i& re:%ired ,or a p%#lic #ody ,or a p%#lic #ene,it and &%ch p%rpo&e i& &o nece&&ary that it 3%&ti,ie& the hard&hip to the owner. Bho&e detail& m%&t #e contained in the notice it&el, ,or the prima ,acie validity o, the ac:%i&ition m%&t #e 3%dged on
& (onstit#tion - 0enya 4 (ivil
of 0enya) *ection A@.
,aw .e%orts) Environment and Land, -::') %age xxi.
A%%eal 2o. -3- of &77' re%orted in 0,. B+ K ,C Fol. & -'56-73. -73) ,aws of 0enya.
5 (ha%ter
Internal Teaching Use Only 5:& the content o, the notice. Bhe te&t m%&t #e &ati&,ied at the o%t&et and not with the aid o, &%#&e:%ent evidence.. .In the re&%lt, I ,ind and hold Ga2ette 1otice 1%m#er @H)D o, ?th 1ovem#er, GDD0 i& de,ective and invalid ,or the rea&on that it did not identi,y the p%#lic #ody ,or whom the land wa& #eing ac:%ired and the p%#lic p%rpo&e to !e &erved #y &%ch ac:%i&ition. Jie word& 4Bana 9iver 8elta /etland&4 cannot #%t #e a geographical!c%m!ecological de&cription. Bhey are not the name o, any p%#lic #ody or de&criptive o, the p%#lic p%rpo&e o, the ac:%i&ition. Bhey are accordingly incompetent to &ati&,y the re:%irement& o, the law. Bhat #eing the po&ition, it ,ollow& that Ga2ette 1otice 1%m#er @HD( o, ?th 1ovem#er GDD0 noti,ying intere&ted partie& o, the holding o, an in:%iry into claim& ,or compen&ation wa& invalid. $& the 3%ri&diction o, the Commi&&ioner o, Land& to hold the in:%iry wa& conditional on p%#lication o, valid notice& o, the ac:%i&ition and o, the in:%iry. I m%&t and do concl%de, that the Commi&&ioner lacked 3%ri&diction to commence or contin%e the in:%iry %nder -ection D507 o, the Land $c:%i&ition $ct. I am accordingly inclined to order that the prohi#ition do i&&%e a& prayed.
On a%%eal to the (o#rt of A%%eal this %osition was #%held. Altho#gh arg#ment was made !oth in the 9igh (o#rt and in the (o#rt of A%%eal that =Tana .iver Delta 1etlands= was not a geogra%hical c#m ecological descri%tion) !#t a %#!lic !ody for %#r%oses of com%#lsory ac>#isition) and f#rther that the term wetlands was an international term of art indicative of a water catchment area) the co#rt still held that the %#r%orted ac>#isition did not com%ly with the strict re>#irement of the law on com%#lsory ac>#isition. The decision was not made !eca#se wetlands management was not a %#!lic %#r%ose !#t !eca#se this was not ex%ressly stated in the notice. G#stice T#noi) in his conc#rring ?#dgment at the (o#rt of A%%eal) %ointed o#t that;
... "oreover, he ha& not &hown that the taking o, po&&e&&ion or ac:%i&ition o, the&e plot& wa& nece&&ary in the intere&t o, p%#lic p%rpo&e& a& en%merated in -ection A@5G7 5a7 o, the Con&tit%tion. G &ay &o #eca%&e nothing wo%ld have #een &impler ,or him than to &tate in the 1otice& that the comp%l&ory ac:%i&ition wa& ,or the Bana and $thi 9iver& 8evelopment $%thority ,or the development o, wetland& or any other p%#lic p%rpo&e.4 A@
In effect the ?#dge was saying that conservation of a wetland is a %#!lic %#r%ose and in a%%ro%riate cases one in which the %ower of com%#lsory ac>#isition can !e exercised. The next iss#e that the co#rt disc#ssed is who had the %ower to conserve and manage wetlands. On this iss#e G#stice T#noi held as follows;
Certainly Bana and $thi 9iver& 8evelopment $%thority i& not the only p%#lic #ody or a%thority charged with the management o, wetland& in Kenya. In GDAG, in the Iranian City o,9am&ar, a hand,%l o, co%ntrie& &igned an international treaty, the Convention on /etland&, with the p%rpo&e o, promoting the con&ervation and &%&taina#le %&e o, the ha#itat. Kenya #ecame a &ignatory o, the Convention in GDD(. Iy a pre&& relea&e i&&%ed on '
3 -%pra
note 4 at - '.
Internal Teaching Use Only 5:Fe#r%ary, GDDA d%ring /orld /etland& 8ay, Kenya /ildli,e -ervice claimed that it wa&
appointed the implementing agency. 1othing wa& heard o, the Bana and $thi 9iver& $%thority.AH
The second case in which the management of wetlands was an iss#e is the case of ark Jiew -hopping $rcade v KangCethe S ' other&.AA The %laintiffs filed an a%%lication seeking to restrain the defendants from tres%assing #%on their land) the s#!?ect of the s#it and an order for their eviction from the said land. The %laintiffs were the registered owners of the s#it land while the defendants had !een o%erating the !#siness of %lanting trees and flowers on the land. Their case was that the land had a marshland and wetlands along one of their tri!#taries of the 2airo!i .iver and that they had a %ermit from the 2airo!i (ity (o#ncil to o%erate the !#siness. The case revolved aro#nd !alancing the %rivate rights of a land owner to his %ro%erty and %#!lic interest and concerns incl#ding environmental conservation. The (o#rt held that while the +nvironmental /anagement and (o6ordination Act g#aranteed every citiDen the right to a clean and healthy environment and gave every citiDen the d#ty to safeg#ard the environment) this m#st !e done s#!?ect to the *tate8s %olicy and management directions. The (o#rt then had to determine who had the right to declare a wetland to !e a %rotected area. In reliance on section 5-B&:C of +/(A) the (o#rt held that the act of declaring the land to !e a %rotected area co#ld only !e done !y the /inister. " In this instance) the (o#rt held) the correct ca#se of action wo#ld have !een for the defendants to write to the /inister to com%#lsorily ac>#ire the land in accordance with the %rovisions of *ection A@ of the (onstit#tion.
7
The two cases demonstrate the a%%lication of the conce%t of eminent domain to the conservation of wetlands in 0enya.
*owards 1ise use of 1etlands for Environmental Sustaina"ilit& The .amsar (onvention re>#ires contracting %arties to ==form#late and im%lement their %lanning so as to %romote the conservation of wetlands incl#ded in the ,ist) and as far as %ossi!le the wise #se of wetlands in their territory.= ": 1ise #se of wetlands is enco#raged for all wetlands whether on the .amsar ,ist or not. The term wise #se was) however) not defined !y the .amsar convention. The first attem%t to define =wise #se= was made at the 4 rd /eeting of the (onference of Parties of the (onvention) held in .egina) (anada in &7" . At this meeting) g#idelines on the
' I#id.
9igh (o#rt (ivil *#it 2o. 54" of -::5 re%orted in 0,. B+ K ,C 37&6 '&:.
" I#id 7 I#id. ": -%pra
at ':7.
note 4) Article 4B&C.
1ise Use of 1etlands were ado%ted."& The iss#e was f#rther addressed at the 5th (onference of the Parties in /ontre#x) *witDerland in &77:. At this meeting) g#idelines for the im%lementation of the wise #se conce%t were ado%ted."- Additional g#idelines for the im%lementation of the wise #se conce%t were ado%ted at the next (onference of the %arties in 0#shiro in &774. "4 The 1ise Use <#idelines"5 defined the term wise #se to mean =s#staina!le #se of wetlands for the !enefit of mankind in a way that is com%ati!le with maintaining the nat#ral %ro%erties of the ecosystem.= The g#idelines o#tlined the need of national action to im%rove instit#tional and
organisational arrangementsE address legislative and %olicy needsE increase knowledge and awareness of wetlands val#esE %re%are inventory and monitor the stat#s of wetlandsE and identify %rogramme %riorities and develo% action %lans for s%ecific sites as com%onents of a 2ational 1etlands Policy. These are iss#es that 0enya needs to %ay %artic#lar attention to so as to ens#re conservation and wise #se of its wetlands. To ens#re wise #se of wetlands) it is im%erative that its diverse #ses !e realiDed and ca%t#red in %lanning %rocesses. The diverse goods and services availa!le and s#%%lied !y wetlands ecosystems need to !e ca%t#red in determining the val#e of wetlands. The legal framework can and sho#ld hel% this %rocess. In the c#rrent framework) wetlands are seen as wastelands. As a res#lt) the val#e of wetlands is consistently #nderestimated and their im%ortance overlooked and) #ltimately) it is the r#ral %oor who lose o#t."3 To ens#re a movement away from the sim%listic val#ation methods of wetlands) the val#ation %rocess and system sho#ld a%%reciate the diverse #ses of wetlands and ca%t#re these. This way) decisions on wetlands will !e !ased on all the goods and services that wetlands %rovide to the society. "' There are n#mero#s %ress#res to convert wetlands ecosystems into develo%ment #ses. These %ress#res need to !e legally reg#lated. This !rings into foc#s the im%ortance and role of the %rinci%le of s#staina!le develo%ment. The %rinci%le re>#ires !alancing develo%ment needs of 0enya with the im%eratives of environmental management. This is what is at the core of +/(A. 1ith the enactment of +/(A) all nat#ral reso#rces and ecosystems sho#ld !e managed
s#staina!ly. The legal and instit#tional framework exists to %rotect the threshold of s#staina!ility. Jet) %resent develo%ment trends are %lacing the health of wetland ecosystems and their a!ility to
"& Annex "- Annex "4 Annex "5 The
to .ecommendation 4.4) .egina &7" C. to .ecommendation 5.&:) /ontre#x) &77:. to .esol#tion 3.') 0#shiro &774.
1ise Use <#idelines are availa!le at http:>>wivw.ram&ar.org>key+wi&e%&e.htin Baccessed on -:th A%ril -:: C. el al M-::5;&N.
"3 .atner "' For
a disc#ssion on the conce%t of val#ation of wetlands goods and services) see generally +merton M-::3NE $ar!ier M&77 NE
+merton M&77"N.
s#stain the livelihoods of a growing %o%#lation at risk. " (ritical iss#es that re>#ire to !e addressed in the 0enyan context for %#r%oses of wise #se of wetlands incl#de instit#tional co6ordination) develo%ment of a %olicy framework) and strengthening of the legal str#ct#res and aligning them to the im%eratives of +/(A. 1hen 0enya ratified the .amsar (onvention) they designated 01* as the focal %oint for wetlands management in the context of .amsar. *#!se>#ently) +/(A has given certain tasks to 2+/A while the 1ater Act also ascri!es other f#nctions to instit#tions it creates. In the face of all these) there lacks clearly defined %rovisions on which the overall !ody for wetlands management in 0enya is. 1e have vario#s instit#tions charged with handling diverse com%onents and iss#es in the %rocess of conservation and wise #se of wetlands. /oreover) even in the a!sence of a single instit#tion) it wo#ld hel% to %rovide for instit#tional coordination and colla!oration. In the context
of wetlands) this does not exist. There is need to clearly sti%#late in a legal and %olicy framework for the conservation and wise #se of wetlands) a sim%le and well6coordinated instit#tional mechanism. Im%roving inter6agency co6ordination de%ends on the extent to which the mandates of vario#s agencies) as defined !y law and government %olicy) are com%lementary) as well as the %ractical efforts of agency staff 6 from %olicy to field levels 6 to work together. "" The conservation and wise #se of wetlands re>#ires %#!lic %artici%ation and s%ecifically the involvement of local comm#nities. +/(A identifies %#!lic %artici%ation as one of the core %rinci%les for environmental management. The ex%erience with wetlands management in 0enya is s#ch that comm#nity %artici%ation is the exce%tion rather than the norm. It is cr#cial that comm#nity involvement in the conservation and wise #se of wetlands !e made %art and %arcel of efforts at wetlands management. The draft %olicy goes a long way in %roviding a framework for the conservation and wise #se of wetlands. A draft) #ntil and #nless finalised and formally ado%ted) is only #sef#l in showing the thinking of the government !#t not for governing act#al o%erations. It is) therefore) im%ortant that the Draft 1etlands Policy !e finalised and ado%ted. The level of awareness on the im%ortance of wetlands is very low. 1etlands are still viewed !oth in official %olicy and !y the %#!lic as areas only s#ita!le for conversion into =more %rod#ctive #ses=. This attit#de makes it extremely diffic#lt to conserve and wisely #se them. To reverse this %erce%tion re>#ires massive %#!lic awareness and ed#cation on the im%ortance of wetlands and on the goods and services it %rovides. P#!lic awareness %lays a key role in conservation efforts. This is a task that sho#ld !e carried o#t thro#gh %artnershi% !etween government and civil society organisations.
The framework for the ownershi% and #se of land) as already demonstrated) has significant
"
Ag#ilar M&77"N. at &3.
"" I#id
effect on the conservation and wise #se of wetlands. The lack of a national land Policy is) th#s) a hindrance to s#staina!le management of wetlands in 0enya. The Draft ,and Policy %ro%oses to address this shortcoming. It is im%ortant that the %olicy !e ado%ted and #sed as a !asis of governing the manner in which land is #sed and th#s for ens#ring that wetlands are #sed wisely and s#staina!ly. Conclusion The c#rrent legal framework for management of wetlands in 0enya does not ade>#ately s#%%ort wise #se and s#staina!ility of the ecosystem and its com%onent reso#rces. The %osition is akin to what was written a!o#t the law governing conservation of wetlands and wise #se of wetlands in (osta .ican wetlands. There) it was said that;
Bhe tr%th i& that we ,ind o%r&elve& con,ronted with &%ch a #road &pectr%m o, legi&lation that, while not alway& directly dealing with the &%#3ect o, wetland&, i& intimately related to the &ame a&, ,or e<ample, in the law& that deal with wildli,e, ,ore&t re&o%rce&, the maritime land 2one, and the water&, ,i&h, and environmental legi&lation in general. Bhi& :%antity o, legi&lation i& di&per&ed among di,,erent legal doc%ment&, which re&%lt in an %nclear pict%re, which at time& re&%lt& in overlap o, a%thority, legal loophole& and legal incon&i&tencie&. )D
There is need) therefore) to im%rove the framework governing the conservation and wise #se of wetlands in 0enya thro#gh ado%tion of a %olicy framework) im%rovement of legal r#les for its
management and harmonisation of the instit#tional str#ct#res for their reg#lation. It is also im%ortant that we im%rove knowledge on and awareness of wetlands) their im%ortance and #tility. Increasing awareness a!o#t wetlands is essential to im%roving their management) !#t it is not eno#gh. Also needed are f#ndamental shifts in the way wetland reso#rces are val#ed) and in the ways that decisions are made a!o#t who has access to those reso#rces) how they are #sed and how they are managed. 7: In the final analysis) the %rovisions of +/(A on the management of wetlands are not in conflict with any sectoral legislation on wetlands) and th#s strictly wo#ld not invite the a%%lication of *ection &5") which calls for harmonisation. 9owever) this cha%ter shows that the %rovisions antici%ate the ado%tion of detailed r#les and a clear framework for the management of wetlands. This is a task that re>#ires to !e #ndertaken and done in s#ch a manner that the legal) instit#tional and %olicy framework is s#%%ortive of and not in conflict with the overall framework for the management of the environment enca%s#lated in +/(A. In addition to attending to the legal framework) the other o!stacles to conservation and wise
"7 Davis 7: I#id.
M&774;5N.
#se of wetlands need to !e addressed !eca#se the management of wetlands is not ?#st a legal iss#e. It re>#ires a m#lti6disci%linary a%%roach. *ome of the challenges to wetlands management re>#iring attention can !e s#mmariDed as follows;
$ lack o, political will at the o%t&et, lack o, co!ordination, in&%,,icient %&e o, e<i&ting nowledge, ,ragmentary management, lack o, training and a#&ence o, ,ollow!%p ! are the main rea&on& ,or the contin%ing degradation and di&appearance o, wetland& to the detriment o, ,%t%re generation&.DG
7& Davis M&774; 5N.
Chapter 15
)ineral esources and the )ining Industr& in -en&a

.O$+.T 0I$U<I Introduction The develo%ment of h#mankind generally revolves aro#nd the environment and the attendant nat#ral reso#rces.& Among these are minerals) which are im%ortant as their s#staina!le ex%loitation can res#lt in national economic and social %rogression. /ineral develo%ment and #tilisation sho#ld !e #ndertaken within a legal framework em!odying environmental standards s#ch as mitigation of negative environmental conse>#ences. The thr#st of this cha%ter is to examine the im%act of c#rrent mining sector legal framework on s#staina!le #tilisation. This is in addition to examining how this framework has com%lied with *ection &5" of the +nvironmental /anagement and (o6ordination Act B+/(AC) - which re>#ires that any law relating to environmental management enacted !efore +/(A sho#ld !e amended to give effect to the %rovisions of +/(A) fail#re to which +/(A wo#ld override s#ch a law. At the time of writing) there is a %rocess #nderway to review the mining law and %olicy 6 #nder the De%artment of /ines and <eology. The (ha%ter is str#ct#red into six sections. *ection & is the introd#ction) and ex%lains the
cha%ter o#tline. *ection - %rovides a !ackgro#nd) examining the conce%ts of minerals and mining and later ex%laining the fact#al and economic context of mineral reso#rces in 0enya. *ection 4 examines the legal framework governing mineral reso#rces) looking into) inter alia, %ro%rietary) licensing) %rivate %ro%erty ex%ro%riation and environmental management. *ection 5 examines how the c#rrent law addresses some contem%orary challenges facing the mining sector. *ection 3 critically analyses the Draft /ining $ill and Policy) !ringing o#t some innovative
& 8The
%rinci%les linking h#man action to the environment are ex%ressed !y the *tockholm Declaration; Princi%le
& K - Availa!le at; ;http:>>wwiv.%nep.org>8oc%ment&:m%ltiling%al>8e,a%lt.a&pU8oc%mentI8VDAS$rticleI8VG@(0=. the .io Declaration; Princi%le &)4 K 5) a)a%lable at ;http:>>www"n.org>doc%ment&>ga>conp.@G>aconp.@G'H!lanne<l.htm= 3A!!esse* on 6< Ma !& 6==;4E 1orld (ommission for +nvironment and Develo%ment B1(+DC M&7" N) (ha%ter two.
- Act
%rovisions intended to enhance s#staina!ility in the sector. *ection ' is the concl#sion. Background Con!e(t of #%ne als an* #%n%n$ In this section) we !riefly offer clarity on the key terms. The International /ineralogical Association defines mineral as an element or chemical com%o#nd that is normally crystalline and that has !een formed as a res#lt of geological %rocesses. 4 The /ining Act defines 8minerals8 as 8all minerals and mineral s#!stance other than mineral oil and may !e %recio#s metals) %recio#s stones or non6%recio#s minerals. This excl#des clay) m#rram) limestone) sandstone or other stone exce%t for %#r%oses of the /ining B*afetyC .eg#lations. 2ota!ly) the 0enyan stat#te does not address itself to the origin of a mineral. The Draft /ining $ill seeks to c#re this referring to
mineral as a s#!stance formed !y a geological %rocess. $#ilding materials are incl#ded) !#t %etrole#m and gro#nd water are left o#t.5 Utilisation of mineral reso#rces is informed !y the %rocess of mining. According to the United 2ations +nvironment Programme BU2+PC) mining is an economic activity that consists of the extraction of %otentially #sa!le and non6renewa!le mineral reso#rces Bexcl#ding %etrole#m) nat#ral gas and waterC from land or sea witho#t involving agric#lt#re) forestry or fisheries. 3 Different ?#risdictions define the %rocess of mining !y connoting the word 8mine8 as a ver!) ' or in the case of 0enya as 8the intentional winning of minerals.8 The Draft /ining $ill refers to 8mining o%erations8 6 extending to winning minerals from their nat#ral state and dis%osal of minerals or res#ltant waste." The sco%e of the term 8mineral8 also incl#des other s#!stances like geothermal energy and economic minerals fo#nd in the continental shelf like manganese nod#les) hydrothermal !rines) s#!marine %hos%horite) and !ari#m s#l%hate concentrations. 7 The sco%e of this cha%ter) however)
4 2ickel
M&773N. 5. All .eferences to =Draft /ining $ill hereinafter mean the Draft of /arch -:: .
5 *ection 3 *ee
E1E ! rod%ction and Con&%mption Iranch: "ining. $vaila#le at ;http:>>iv2ow.iineptie.org>pc>inining>inde<.htm=
-' /arch -:: .

' *ee
for instance the /ines and /inerals Act of $otswana defining mining as 6 intentionally to win minerals and
incl#des any o%erations directly or indirectly necessary. Under *o#th African law) mining means any o%eration or activity for the %#r%oses of winning any mineral. The /ining Act of TanDania constr#es mining as intentionally to mine minerals) while the Ugandan law constr#es mining as intentionally digging or excavating for minerals. *ection -.
" *ection 7 *ee
5. The stat#te #ses 8winning8 to mean removal of minerals.
9oves M&7 ";&5&N. At the time of writing) the De%artment of /ines and <eology at the /inistry of +nvironment
and 2at#ral .eso#rces was form#lating a %ro?ect to carry o#t a s#rvey of the 0enyan continental shelf. The foc#s of this s#rvey wo#ld investigate the levels of calcification of the shelf) the %resence of manganese nod#les. The %rocess is) however) still in the formative stages.
extends only to hard minerals as defined a!ove in context of the /ining Act and the Draft /ining $ill.&: Conte2t of #%ne al eso+ !es %n Ken'a The .e%#!lic of 0enya has a total area of a!o#t 3" )::: s>#are kilometers && geologically classified into fo#r ma?or geological s#ccessions; the ArcheanE &- the /oDam!i>#e $eltE&4 the PalaeoDoic and /esoDoic formationsE&5 and the Tertiary and I#aternary Folcanics and sediments.&3 The local mining ind#stry is dominated !y non6metallic minerals incl#ding trona) fl#ors%ar) diatomite) titani#m) nat#ral car!on dioxide) a variety of gemstones) limestone and incl#ding vario#s constr#ction materials.&' 9owever) some >#antities of gold are !eing %rod#ced while iron ore is %rod#ced from localiDed de%osits for #se in local man#fact#re of cement. & There is evidence of #nex%loited gy%s#m Bover - !illion tonnesC in the +l 1ak area) radioactive minerals at /rima 9ills of (oast Province) .#ri 9ills of 0ericho and 9oma 9ills of 2yanDa Province and gra%hite in Ol Donyo 2yiro. &" (oal ex%loration in the /#i $asin of 0it#i@/wingi districts has already yielded %rod#ctive res#lts. There is >#arrying and sand harvesting) with the former !eing #sed to make !allast) aggregate and !#ilding stone. &7
&: (ha%ter
-: on +nergy ,aw analyses legal framework of geothermal energy. of 0enya M-::'; 'N. of 0enya M-:: ; 67N. *ee also .e%#!lic of 0enya M&77 ; "767:N. The Archean s#ccession is mainly
&& .e%#!lic &- .e%#!lic
com%osed of grits) sandstones) greywackes and conglomerates as well as lavas and %roclastics with minor sediments and !anded ironstones. This lies in 1estern 0enya where metallic mineraliDation of !ase and %recio#s metals are known to occ#r) with gold and co%%er !eing %resent.
&4 The
$elt is most extensive in (entral 0enya where minerals s#ch as kyanite) cor#nd#m) gra%hite) wollastonite)
mar!le) as!estos) fl#ors%ar) magnesite) kaolin and a variety of gemstones are fo#nd together with minerals associated with !asic and granite rocks.
&5 The
local formations are Tar#) /a?i ya (h#mvi) /ariakani and /aDeras west of /om!asa. These rocks are
so#rces and hosts of limestones) gy%s#m) clays) manganese and constr#ction materials. In essence) th#s) these
formations are fo#nd near the coast and in north6eastern 0enya. 9eavy minerals occ#r along the coastal !eaches and recent discovery of de%osits of a!o#t 4.- !illion tons of titani#m !earing is evidence.
&3 The
tertiary entail mainly of volcanic rocks covering central %arts of the co#ntry from so#th to north) occ#rring in
the floor of the .ift Falley and on the %ene%lains west and east of the valley. The >#aternary entails #nfossilifero#s de%osits containing de%osits that !ear artifacts and interesting fossils that have !een st#died extensively. These incl#de the Olorgesaillie lake!eds) a lac#strine series with m#ch diatomite) mammalian fossils and artifactsE the 0ariand#si sediments near <ilgilE and the 0an?era $eds in the 0avirondo <#lf off ,ake Fictoria. These volcanosedimentary acc#m#lations have de%osits of clays) eva%orates) trona) diatomite) nat#ral car!on dioxide) k#nkar and gy%s#m. <eothermal fields are fo#nd in the area and have !een ex%loited) c#rrently %rod#cing 3 /1 of %ower to the national grid.
&' -%pra &
note &4 at &:.
I#id.
of 0enya M-::5;&&"6&&7N.
&" .e%#!lic &7 I#id.
The mining ind#stry is) therefore) not significantly develo%ed in 0enya -: des%ite the fact the a!o#t 7: %er cent of the co#ntry is geologically ma%%ed and mineral occ#rrence doc#mented.-& +conomic analysis of the %erformance of the sector shows moderate im%rovement in -::3) registering growth of -. %er cent #% from -.- %er cent in -::5. This is attri!#ted to a !#oyant constr#ction ind#stry) increased %rod#ction of soda ash and cr#shed refined soda. -- Over the same %eriod) over -:: ex%loration and %ros%ecting licences were o%erational incl#ding the titani#m in 0wale. In -::56-::3) however) mining and >#arrying acco#nted for :.3 %er cent of the national <ross Domestic Prod#ct B<DPC.-4 The c#rrent legal framework o%erates %rinci%ally #nder the /ining Act) -5 a stat#te enacted in &75:-3 to s#cceed the /ining Ordinance of &744. The /ining Act has !een amended severally and at the time of writing) there was a %rocess #nderway to enact a new legal and %olicy
framework. Administratively) the sector is within the De%artment of /ines and <eology at the /inistry of +nvironment and 2at#ral .eso#rces. The De%artment is headed !y a (ommissioner for /ines and <eology) whose office is esta!lished !y the /ining Act. -' Their mandate incl#des develo%ment of a legal and %olicy framework) cond#cting of geological s#rveys) and mineral ex%loration and mining.Legal Framework for (evelopment and E'ploitation of )ineral esources O-ne s&%( an* a!!ess %$&ts Under the /ining Act) all #nextracted minerals on any land are vested in the government s#!?ect to any rights the government may have granted any %erson) -" making it an offence for any %erson to deal with minerals witho#t a#thorisation.-7 The Draft /ining $ill marks a ma?or de%art#re from this %remise. It vests the entire %ro%erty in and control of minerals in) on or #nder any land in
-: I#id. -& .e%#!lic -- .e%#!lic
of 0enya M-::-; 55N. of 0enya M-::'; -:6-&N. This s#rvey was %re%ared !y the former (entral $#rea# of *tatistics) now incor%orated as
the 0enya 2ational $#rea# of *tatistics !y the *tatistics Act) -::' o%erating #nder the /inistry of Planning and 2ational Develo%ment.
-4 (entral
$#rea# of *tatistics) 1ational $cco%nt -tati&tic& ! -ectoral &hare& o, G8 . Availa!le at ;www.c#&.go.ke>&ectoral>
acco%nt&>national+acco%nt&+&ectoral+&hare&.html= -5 /arch -:: .

-5 (a% -3 The
4:') ,aws of 0enya. %rovisions of the /ining Act will !e disc#ssed in greater detail in the next %art. 7.
-' *ection -
/inistry of +nvironment and 2at#ral .eso#rces M-:: ;&N. Act) *ection 5.
-" /ining -7 I#id,
*ection 3.
0enya in the government in tr#st for the %eo%le) regardless of any s#!sisting rights over any land containing minerals. The government is then !o#nd to deal with these minerals only in accordance with this law.4: 2ota!ly) the $ill introd#ces the %#!lic tr#st) effectively im%osing a fid#ciary res%onsi!ility on the %art of the *tate. Con*%t%ons fo #%ne al ( os(e!t%n$ an* e2t a!t%on Pros%ecting is the search for minerals) incl#ding testing the mineral6!earing >#alities of land.4& The (ommissioner as the c#stodian of the law is em%owered to grant %ros%ecting rights. 4Pros%ecting any lands in 0enya is a#thorised for holders of a %ros%ecting licence. Pros%ecting for diamonds) however) re>#ires a s%ecial endorsement from the (ommissioner. A licence holder m#st restrict their work to s%ecified lands. Pros%ecting in a forest area or %rotected wildlife area is s#!?ect to any lawf#lly im%osed conditions.44 9olders of %ros%ecting rights are eligi!le ;or +xcl#sive Pros%ecting .ights. It is #s#ally valid for one year) renewa!le at the discretion of the (ommissioner for one year to a maxim#m of five years. 45 (ertain lands are excl#ded !y law from %ros%ecting and mining. These lands incl#de cemeteriesE #r!an areas sit#ated within m#nici%alities) townshi%s or irading centresE land s#!?ect to a lease) which gives the holder rights to work minerals fo#nd thereonE lands s#!?ect to s#!sisting %ros%ecting or mining rightsE railway reservesE lands within a h#ndred metres of any dam or canal !elonging to central or local governmentE %#!lic street or road reserveE salt lickE tr#st
landsE land within five h#ndred meters of a %#!lic airfieldE and %rivate land exce%t with owners consent. There is %rovision) however) for the %erson holding ownershi% rights to grant consent.43 In the case of %rivate lands for instance) the (o#rt of A%%eal settled the law in Ka&iga% 9anching 58$7 Ltd v Kihara S ? Other&. 9ere) the a%%licants !eing the registered owners of the %arcel of land in >#estion contested the contin#ed %ros%ecting on their land !y the res%ondents. The res%ondents arg#ed that they had a licence to %ros%ect from (ommissioner) th#s entitled to carry o#t mining o%erations regardless of no consent from the a%%licants. The (o#rt held that 8%rivate lands are exem%ted from %ros%ecting and mining exce%t with the consent of the landowner and the /inister is not a#thorised to send %ersons to %rivate lands for the %#r%ose of %ros%ecting
4: Draft 4& I#id, 4- I#id, 44 I#id, 45 I#id, 43 I#id,
/ining $ill) *ection 3. *ection -. *ection &4. *ection &5. *ection &". *ection .
and mining witho#t the consent of the owners.84' (ertain c#stomary rights of the %eo%le of 0enya are reserved #nder *ection ") which affirms that nothing in the law shall !e constr#ed to %revent any citiDen of 0enya from taking) s#!?ect to %rescri!ed conditions) salt or soda from lands from which it has !een c#stomary for mem!ers of
that %erson8s comm#nity to take the salt or soda. This) however) excl#des land within the area of a mining lease or location. A %ros%ecting right holder) who has %egged a location) is re>#ired to seek registration within 4: days. The rights #nder a %egged location are valid for one year) s#!?ect to extension. 4 *mall6 scale miners are normally granted mining locations with less onero#s conditions. A mining location consists an area on -:):::m- for %recio#s metals and %recio#s stones) and 3:):::m- for all other minerals.4" A /ining ,ease or a *%ecial /ining ,ease is granted for the ex%loitation minerals discovered d#ring %ros%ecting.47 The Draft $ill %ro%oses to overha#l the licensing system setting #% a dichotomy !etween large scale and small scale o%erations.5: For the former) new licences %ro%osed incl#de reconnaissance licence) %ros%ecting licence) retention licence) and mining licence. 5& <ranted for a maxim#m of two years) %re6conditions for these licences incl#de) inter alia, %ro%osals for em%loyment and training of 0enyans) an +nvironmental Im%act Assessment licence) and a %ro%osal for %roc#rement of local goods and services. The $ill %ro%oses a fetter in the (ommissioner8s c#rrent discretion in a%%roval of licences. Th#s) a%%lications are to the (ommissioner) !#t the /inerals Advisory $oard 5#ndertakes the eval#ation and determines which ones to a%%rove or re?ect. The $ill reserves mineral rights for small scale o%erations to 0enyan citiDens) nat#ral or cor%orate. An a%%licant for a %ros%ecting %ermit m#st identify the s#!?ect minerals and give
%artic#lars of %ro%osed o%erations. The holder of the %ermit is o!ligated to o%erate in line with a
4' B-::'C0,.B+K,Clat4-4. 4
Draft /ining $ill) *ection -". note -" at 36'.
4" -%pra 47 I#id. 5: The
second sched#le of the Draft /ining $ill sets o#t criteria to dichotomiDe !etween small scale and large scale mining
o%erations. This criteria is; Q In case of %ros%ecting o%erations) the %ro%osed %ros%ecting area does not exceed 3km -. Q In case of mining o%erations) the %ro%osed mining area does not exceed :.:3km -. Q In case of mining) the act#al or estimated ann#al extraction of minerals or ore does not exceed -3)::: m 4. Q The %ros%ecting or mining o%erations do not or will not em%loy s%ecialiDed %ros%ecting or mining technologies. Q The %ro%osed %ros%ecting or mining o%erations do not or will not involve s#!stantial ca%ital investment or ex%endit#re. Any %ros%ecting or mining o%erations not meeting this criteria are to !e classified as large scale o%erations.
5& Draft 5- The
/ining $ill) *ection 4 .
/inerals Advisory $oard esta!lished #nder sections &&6&7 of the Draft /ining $ill is charged with the res%onsi!ility to
advise the /inister on %olicy form#lationE negotiation and concl#sion of mineral agreementsE %romote inter6agency linkage and coo%eration) among other f#nctions.
%lan a%%roved !y the (ommissioner) and take all meas#res necessary to %rotect the environment.54 Conditions for ac%uisition of land and issues of involuntar& displacement Condition& ,or ac:%i&ition o, land As disc#ssed in the last section) the law excl#des %rivate land from %ros%ecting and mining) witho#t consent from the owner. 9owever) #nextracted mineral reso#rces are vested in the government #nder 0enyan law.55 Th#s) in theory) where the *tate finds significant >#antities of minerals
ex%loita!le for general %#!lic !enefit) a !alance sho#ld !e so#ght !etween the individ#al %ro%erty ownershi% rights and the %#!lic interest to g#ide #tilisation. P#!lic !enefit wo#ld ?#stify com%#lsory ac>#isition of s#ch %rivate land #nder *ection 3 of the (onstit#tion with %ayment of f#ll com%ensation. The %roced#re for com%#lsory ac>#isition is set o#t in the ,and Ac>#isition Act.53 There are sit#ations where consent may!e withheld over %rivate %ro%erty. 1here consent is #nreasona!ly held and@ or is contrary to national interest) section B4C of /ining Act em%owers the /inister to commence com%#lsory ac>#isition. *#!se>#ently) the *tate can iss#e a#thority to commence mining o%erations.5' Invol%ntary di&placement and relocation Invaria!ly) as a res#lt of ac>#isition of %rivate land for mining activities) and es%ecially those on a large scale) there is invol#ntary dis%lacement of %eo%le from their homes and farms. /ost of the %rogrammes ca#sing invol#ntary dis%lacement of %eo%le) however) are essential develo%ment com%onents and are likely !e more fre>#ent.5 Invol#ntary resettlement involves %eo%le evicted against their desires. It sho#ld !e well %lanned and exec#ted so that economic growth is enhanced and %overty red#ced) es%ecially for s#ch v#lnera!le %eo%le. 5" At the very least) the relocates
54 *ection 55 /ining 53 (ha%ter 5' Under
7&6&:5. Act) section 5. -73) ,aws of 0enya. Part II) section 46-4.
section 47 of the /ining Act) a mining lease is iss#ed on land vested in the government while a *%ecial /ining ,ease is
iss#ed on the same terms !#t esta!lished !y section 33.
OkidiM&774;4N.
5" I#id.
sho#ld not end #% worse off than they were !efore the dis%lacement. 57 1hereas invol#ntary dis%lacement res#lts in a myriad of %ro!lems) com%ensation for land and %ro%erty is the most com%lex. According to Okidi) com%ensation may !e defined as the %ayment made to a landowner) land occ#%ier or those with other forms of interest in land thro#gh #se) or occ#%ation) to !e rendered in the form of cash) in the %rovision of alternative land or in any other form in kind) when the original rights have !een com%#lsorily exting#ished !y the *tate or local a#thority in the %#!lic interest) to facilitate the constr#ction of a develo%ment infrastr#ct#re. 3: 1hether or not com%ensation is ade>#ate is an im%ortant matter since ac>#isition) in whatever form) is considered an intr#sion #%on %rivate %ro%erty. The %ractice in most African co#ntries is to offer com%ensation in o#tright %ayment of cash for the land taken. <enerally) the relevant %#!lic agency offers the amo#nt assessed !y the government8s val#ation de%artment. The s#!missions of the landowner are to !e considered !#t the amo#nt is often rationalised as the c#rrent market rate.3& In addition to the land and com%ensation >#estion) invol#ntary dis%lacement #s#ally has significant adverse socio6economic and environmental im%acts. 0ey among them is a!andonment of homes) dismantling of mainly s#!sistence agric#lt#ral %rod#ction systems and loss of assets and income. F#rther) %eo%le may !e relocated to environments where their skills may !e less
a%%lica!le) the com%etition for reso#rces may !e greater) and host %o%#lations may !e hostile or c#lt#rally incom%ati!le.3Under the c#rrent legal framework) +/(A %resents a %ractical mechanism to stem these adverse effects thro#gh the +nvironmental Im%act Assessment B+IAC %rocess. .eg#lation &" 34 re>#ires an +IA re%ort to identify environmental im%acts of a %ro?ect) and to %ro%ose mitigation meas#res. Inter%reted li!erally) this %rovision em%owers 2+/A to re>#ire a mandatory resettlement %lan) where invol#ntary dis%lacement is identified as an environmental and socioeconomic im%act. The titani#m mining %ro?ect in 0wale District %rovides an exam%le of the lack of a %ro%er legal and %olicy framework to address invol#ntary dis%lacement in 0enya. It also demonstrates the adverse socio6economic and environment im%acts where the %rocess is not handled %ro%erly. 9owever) an analysis of this is !eyond the sco%e of this cha%ter. 35
57 (ernea 3: I#id. 3& -%pra
M&77&;5N.
note 5" at 7. .esettlement; Policies and *trategies BAD$) &773C Availa!le at http:>>iow2o.ad#.org>8oc%ment&> olicie&>
3- Invol#ntary
Invol%ntary+9e&ettlement>re&etl'(.a&pUp:Vr&ttlmnt.
34 +nvironmental 35 For
Im%act Assessment and A#dit .eg#lations -::4 B,egal 2otice 2o. &:&C.
f#rther information on the titani#m %ro?ect) see generally; B&C The decision of the 9igh (o#rt of 0enya over
ropo&al& ,or e,,ective invol%ntary re&ettlement Invol#ntary resettlement is not a novel develo%ment) and a lot of research has !een #ndertaken. Professor (harles Okidi and /ichael (ernea se%arately disc#ss the iss#e of invol#ntary
resettlement of %ersons to %ave way for %ro?ects33 and %ro%ose legal and %olicy meas#res) as !est %ractices) to make it work effectively. 1e glean o#t some of the %ro%osals for incor%oration into the %rocess of invol#ntary resettlement to ens#re that %eo%le are %#t first. The government sho#ld esta!lish a legal framework to s%ecify the rights and o!ligations of all %arties involved in invol#ntary resettlement. (om%ensation sho#ld !e land for land) %egged at the %rod#ctive val#e of the vacated land in addition to the costs of relocation. A com%rehensive resettlement %lan sho#ld !e %resented to Parliament and ado%ted %rior to commencement of the %rocess. Pro?ect %ro%onents sho#ld !e re>#ired !y law to s#!mit a resettlement %lan to the relevant government de%artment %rior to iss#ance of a mining lease. (om%liance with the a%%roved %lan sho#ld !e a term of the contract of mining. Pro?ect financing agencies s#ch as !anks and donor agencies sho#ld !e re>#ired !y national law to ens#re there is an a%%roved resettlement %lan and financial allocations !efore a%%roving financial s#%%ort. In order to enhance trans%arency) and ens#re scenarios like ha%%ened in the Tiomin %ro?ect Bwhere the (ommissioner of ,ands commenced com%#lsory ac>#isition d#ring the %endency of a co#rt matterC do nor rec#r)3' a clear framework of a%%roving and administering resettlement %lans sho#ld !e set #%. Possi!ly) the %arent ministry of the %ro?ect sho#ld !e re>#ired to %resent the %lan
!efore Parliament. In the case of mining) the relevant agency wo#ld !e the De%artment of /ines and <eology o!taining the %lan from an investor) and forwarding to the ministry for %resentation to Parliament. *ince at one %oint resettlement involves diverse government de%artments) there is need for a %ermanent inter6ministerial stat#tory committee on resettlement and com%ensation to co6ordinate the government de%artments in the task. .eference sho#ld) however) !e made to the %rovisions of +/(A and 2+/A to give a !inding o%inion on the environmental s#ita!ility of a resettlement %lan !efore its im%lementation. En)% on#ental Cons%*e at%ons %n M%ne al Ut%l%sat%on It is instr#ctive to note the a!sence of any overt %rovisions for environmental considerations !y the /ining Act %rior to commencement and d#ring %ros%ecting and@or mining activities. This is des%ite the re>#irements of section &5" of +/(A for all sectoral legislation) incl#ding the /ining
com%#lsory ac>#isition of %rivate land for the %ro?ect in 9odger& "%ema 12ioka v Blie $ttorney General, Biotnin Kenya Limited and A Other& Petition '&4 of -::' re%orted in B-:: C e0,.E B-C 9#ggins M-::3NE O?iam!o M-::-N.
33 For 3' -ee
a more com%rehensive disc#ssion and analysis of invol#ntary resettlement of %ersons) see Okidi M&774NE (ernea M&77&N. generally the facts as set o#t in 9odger& "%ema 12ioka v $ttorney General S ) other&, &%pra note 3-BcC.
Act) to !e harmonised with the %rovisions of +/(A. 9owever) the %rovisions of the /ining Act %redate +/(A. A concerted attem%t to remedy this %osition has !e en made !y the Draft /ining
$ill) as the disc#ssion !elow demonstrates.

In this section) we analyse some of the critical environmental considerations that have a
!earing on the s#staina!ility of the sector. Prior to that) we review some %rovisions of the /ining Act that a%%ear to factor in environmental considerations. Environmental con&ideration& %nder the "ining $ct At the concl#sion of %ros%ecting or mining activities) right holders m#st take meas#res to %revent %ersons or stock other than dogs inadvertently entering mining areas !y filling them #%) or sec#ring all shafts) %its) holes and excavations. 2on6com%liance is a %#nisha!le offence in addition to meeting the cost of reha!ilitation as certified !y the (ommissioner. rima ,acie, this emerges as re%resenting a re>#irement for the reha!ilitation of a!andoned areas. .ight holders may make waterco#rses) dams or %onds to divert from a nat#ral waterco#rse any water on or flowing entirely thro#gh the land. They are a#thoriDed to ret#rn any diverted water to its nat#ral channel %rovided it does not contain any noxio#s or %oisono#s matter. 3 This law does not %rescri!e minim#m standards of water >#ality re6introd#ced to the nat#ral waterco#rses. 9owever) that is not the %osition #nder +/(A) which %rohi!its water %oll#tion with %enal sanctions and re>#ires %rom#lgation of water >#ality standards. 3" Th#s) the recently %rom#lgated +nvironmental /anagement and (o6ordination B1ater I#alityC .eg#lations -::' set o#t a com%rehensive framework governing water >#ality) water discharge and minim#m chemical com%ositions of any s#ch water discharges into the environment after ind#strial) agric#lt#ral) mining and related #ses.37 At the ex%iry of a lease) the holder m#st remove any tailings or ore Bgravel) sand) slimes or other resid#eC that is left on the land.': Prior to removal) a holder sho#ld seek leave from the
(ommissioner to enter the land in >#estion. Fail#re to do so) any tailings or ore remaining on the land !ecomes the a!sol#te %ro%erty of the government. In the a!sence of ex%ress legal re>#irement for reha!ilitation of dis#sed mines) this %rovision act#ally worsens the sit#ation. There is an ass#m%tion that any tailings or ore left at the mines are !eneficial) economically or otherwise) hence vesting them in government in defa#lt of removal. 1hat then wo#ld ha%%en if
3
*ection 5 . -.
3" *ection 37 ,egal
2otice 2o. &-: B,egislative *#%%lement 2o. 4') 0enya <aDette 2otice 2o. '") -7 *e%tem!er -::'C. 3 .
': *ection
these tailings were act#ally toxic and degrading to the environmentL <overnment) at %#!lic ex%ense) wo#ld have to meet the cost. .#le ' of the /ining B*afetyC .eg#lations adds to the conf#sionE its makes %rovisions o%%osite to the s#!stantive law re>#iring right holder to render dis#sed mines safe) fail#re to which the (ommissioner will do so and %ass on the cost. These) however) are !oth safety meas#res even tho#gh they co#ld attain incidental environmental restoration res#lts. The %ro%osal for mandatory mine reha!ilitation in the Draft /ining $ill will remedy this a!s#rd legal sit#ation. Environmental Impact $&&e&&ment +/(A %rovides for a mandatory #ndertaking of an environmental im%act assessment %rior to the commencement of any %ro?ect s%ecified in the *econd *ched#le. A %ro?ect %ro%onent m#st s#!mit a %ro?ect re%ort to 2+/A %rior to commencement. If after st#dying the %ro?ect re%ort) the
a#thority is convinced that the %ro%osed %ro?ect is likely to have a significant im%act on the environment) the %ro%onent m#st #ndertake a com%lete +IA. '& The *econd *ched#le sets o#t %ro?ects that re>#ire an +I A %rior to commencement. These incl#de any ma?or changes in land #se as well as mining) incl#ding >#arrying. .eg#lation &" of the +nvironmental Im%act Assessment and A#dit .eg#lations'- sets o#t the iss#es that an +IA st#dy sho#ld %rimarily address itself to in order to ens#re s#staina!le develo%ment. They incl#de an in>#iry into the availa!le technology and alternativesE %otentially affected environmentE and the environmental effects incl#ding socio6c#lt#ral im%acts. It sho#ld also frame an environmental management %lan to eliminate or mitigate adverse environmental im%acts. They m#st also address the iss#e of timeframe) cost and identify who !ears the overall res%onsi!ility to im%lement this %lan.'4 +IA is) th#s) a mandatory re>#irement #nder +/(A) yet the c#rrent mining law contains no ex%ress re>#irement of the same. A reading of the Draft /ining $ill shows that +IA licence is a %re6condition to the granting of any licence. 9owever) there is conf#sion regarding %ermits iss#ed for small scale o%erations as right holders are only re>#ired to take all meas#res to %rotect the environment. This may create an im%ression that small scale mining is exem%t from cond#ct of an
'& *ection
3" of +/(A is instr#ctive a!o#t this) and we >#ote in extenso;
B&C 2otwithstanding any a%%roval) %ermit or licence granted #nder this Act or any other law in force in 0enya) any %erson) !eing a %ro%onent of a %ro?ect) shall) !efore financing) commencing) %roceeding with) carrying o#t) exec#ting or cond#cting or ca#sing to !e financed) commenced) %roceeded with) carried o#t) exec#ted or cond#cted !y another %erson any #ndertaking s%ecified in the *econd *ched#le) s#!mit a %ro?ect re%ort to the
M2ational +nvironment /anagementN A#thority giving the %rescri!ed information... B-C The %ro%onent of a %ro?ect shall #ndertake or ca#se to !e #ndertaken at his own ex%ense an environmental im%act assessment st#dy and %re%are a re%ort thereof where the M2ational +nvironment /anagementN A#thority) !eing satisfied) after st#dying the %ro?ect re%ort...that the intended %ro?ect may or is likely to have a significant im%act on the environment) so directs.
'- 0enya
<aDette *#%%lement 2o. 3' B,egislative *#%%lement 2o. 4&C; ,egal 2otice 2o. &:& B2airo!i; <overnment PrinterC B&4
G#ne -::4C.
'4 .cg#lationl"BlCBkC.
+IA. 1hereas small scale o%erations %rovide livelihood to many 0enyans) it also ca#ses serio#s environmental damage. It is a%%reciated that the %rovisions of section 3" of +/(A) and the *econd *ched#les on %ro?ects re>#iring an +IA are mandatory) and that mining o%erations are incl#ded. Th#s) des%ite the omission) small scale o%erations sho#ld !asically #ndertake an +IA. It wo#ld) however) hel% if the %rovision is amended to clarify this iss#e. Environmental management and re&toration plan& The c#rrent mining law makes no reference to environmental management d#ring mining o%erations. The +IA reg#lations) however) re>#ire an +IA st#dy to incor%orate an +nvironmental /anagement Plan defining 8all details of %ro?ect activities) im%acts) mitigation meas#res) time sched#le) costs) res%onsi!ilities and commitments %ro%osed to minimise environmental im%acts of activities) incl#ding monitoring and environmental a#dits d#ring im%lementation and decommissioning %hases of a %ro?ect8.'5 +nvironmental restoration %lans are another im%erative for mining o%erations) es%ecially action after the mining o%erations have ceased. /ostly) dis#sed mines are left !are) with o%en %its an
o!vio#s environmental and %#!lic health haDard.'3 To remedy this) %ro?ect %ro%onents sho#ld) %ossi!ly #nder +/(A with the s#%ervision of !oth the (ommissioner for /ines and 2+/A) !e re>#ired to identify the kinds of environmental damage their o%erations are likely to ca#se) '' and set o#t a com%rehensive %lan of action on how to reha!ilitate the destroyed ecosystem and leave the area environmentally !etter off than it was %rior to the mining o%erations. It is the view here also that !y incl#ding the %hrase 8incl#ding monitoring and environmental a#dits d#ring im%lementation and decommissioning %hases of a %ro?ect8 in the definition of an environmental management %lan seen a!ove) the +IA reg#lations make %rovision for mandatory environmental restoration %lans %rior to iss#ance of an +IA licence. The Draft /ining $ill %rovides that none of its %rovisions exem%ts any %erson from com%lying with the laws %ertaining to environmental %rotection in 0enya. ' As a %re6re>#isite to the grant of any licence) an a%%licant m#st s#!mit site reha!ilitation and mine clos#re %lans for a%%roval !y the (ommissioner.'"
'5 .eg#lation '3 The
-.
case of the h#ge dam at 0ik#y#) along the 2airo!i62ak#r# highway stands o#t. It arose o#t of an excavation
made !y the road contractors to o!tain gravel and other !#ilding materials in the mid &77:s. It has now !ecome a stagnant water dam) har!o#ring mos>#itoes. Peo%le drown there) %eo%le are m#rdered and then d#m%ed there) etc. +ssentially) it has not added any val#e to the residents) !#t increased their misery.
'' Okidi
M-::-NE A#dit and .eview of the Draft $ill to the (onstit#tion of 0enya .eview (ommission B(ha%ter
+leven 6 ,and and Pro%ertyE and (ha%ter Twelve 6 +nvironment and 2at#ral .eso#rces B2airo!i; Instit#te for ,aw and +nvironmental <overnance BI,+<C and 0enya ,and AllianceC BOcto!er -::4C 4:64&.
'
*ection &5'. &57.
'" *ection
There) however) is no s#!stantive stat#tory re>#irement for environmental management %lans) exce%t #nder the +IA g#idelines. The /ining $ill sho#ld %rovide for a mandatory re>#irement for environmental management %lans) witho#t which a mining lease cannot !e granted. Provisions of +/(A sho#ld address this iss#e) instead of leaving it to the s#!sidiary legislation) whose %rovisions co#ld !e s#!?ect to the r#le on %ltra vire&. Environmental protection #ond& *ection -" of +/(A em%owers 2+/A to register all activities and #ndertakings with a %otential for significant adverse effects on the environment if o%erated contrary to good environmental %ractice. This sho#ld ena!le theFinance/inister) with advice from the 2ational +nvironment (o#ncil) to re>#ire de%osit !onds from these #ndertakings as s#fficient sec#rity for good environmental %ractice. If there is com%liance to the satisfaction of 2+/A) the de%osit !ond will !e ref#nded witho#t interest.
The Draft /ining $ill re>#ires a licence a%%licant to avail an environmental %rotection !ond s#fficient to cover their %otential environmental restoration costs. '7 The !ond can !e released %artially #%on satisfactory f#lfillment of the o!ligations. It m#st !e released #%on s#ccessf#l com%letion of all the re>#ired o!ligations.
:
9aving similar %rovisions in two different stat#tes 6 +/(A and /ining ,aw 6 will res#lt in instit#tional con,lict and %ossi!le ino%era!ility of this %rovision. Jet) mining o%erations are) environmentally s%eaking) high risk vent#res which) if #nchecked) co#ld lead to high levels of
degradation. This sit#ation needs to !e resolved !efore the new mining law is enacted. Possi!ly) the law sho#ld grant the (ommissioner) as the lead agency) first %riority to im%ose the !ond !efore 2+/A as the overall environmental agency takes similar action. F%s!al %nst +#ents to ( o!+ e en)% on#ental !o#(l%an!e +/(A %rovides for #tilisation of governmental tax) fiscal instr#ments) disincentives or fees to %roc#re so#nd environmental %ractices. The mining sector is a so#nd candidate. The meas#res incl#de c#stoms and excise waiver on im%orted ca%ital items that %revent or red#ce nvironmental degradation) machinery and other e>#i%ment.
&
Other meas#res incl#de tax re!ates for investment in e>#i%ment for %oll#tion control) waste recycling) waste harvesting) etc. In addition) there are tax disincentives as %enalties to deter !ad environmental !ehavio#r that ca#ses environmental damage. En)% on#ental Resto at%on O *e s *ection &:" of +/(A %rovides for iss#ance of environmental restoration orders on any %erson !y 2+/A or !y a co#rt of law. In the latter case) iss#ance is only where %roceedings have !een instit#ted !y an aggrieved %erson. 1hen iss#ed) s#ch an order wo#ld) inter alia, re>#ire restoration of the environment to the condition it was in %rior to the degrading action and award com%ensation to any %erson harmed !y the degrading action. In this case) the %er%etrator of the degrading action is lia!le to meet the f#ll cost. In mineral reso#rce #tilisation) this %rovision when enforced effectively has the %otential to mitigate the nightmare of non6reha!ilitation of dis#sed mining sites.
Possi!ly) the fiscal instr#ments disc#ssed a!ove can !e #sed in the first instance) to enco#rage investors to find ways to restore the environment and make money in the %rocess. A case in %oint
'7 *ection : l#id,
&3:.
s#!section B5C. 3 .
& *ection
is the restoration work #ndertaken !y ,a Farge +cosystems) the $am!#ri (ement man#fact#rer in /om!asa. The com%any restored their former limestone mine) converting it into the income generating nat#re trail and wildlife 9aller Park.
-
The restoration order can !e a%%lied as a last line enforcement tool) where %ro%onents fail to com%ly with their own restoration %lans) or are sim%ly negligent. Contemporar& Challenges in the )ining Sector The mining and minerals sector) ?#st like every other as%ect of a co#ntries economy is fra#ght with challenges) ?#st as it is a!o#nd with o%%ort#nities. In this section of the cha%ter) we shall select and analyse some of these c#rrent challenges; -tone :%arrying and &and harve&ting I#arrying and sand harvesting activities are reg#lated !y the relevant local a#thorities #nder the ,ocal <overnment Act. 4 It is !eyond the sco%e of the (ommissioner) exce%t #nder the /ining B*afetyC .eg#lations. 9ere) the (ommissioner invokes the +x%losives Act 5 to reg#late trans%ort and storage of ex%losives) and !lasting d#ring >#arrying o%erations. 3 Under +/(A) however) these activities are re>#ired to #ndergo an +IA %rior to commencement. ' In this sense) therefore)
2+/A has the effective reg#lation to ens#re standards set d#ring the +IA %rocess are com%lied with. Jet) media re%orts have even >#oted senior O+/A officials) s#ch as the (entral Provincial Director of +nvironment) serving warnings to a lot of non6com%liant >#arry miners. $oth sand harvesting and >#arrying are for all intents and %#r%oses mining activities. They are excl#ded from the sco%e of the (ommissioner !eca#se definition of mineral #nder law excl#des them. " To ens#re %ro%er and harmonised reg#lation) these two sho#ld !e !ro#ght #nder mining law. The Draft /ining $ill has addressed this concern) incl#ding !#ilding materials in its definition of a mineral) 7 hence !ringing them to the am!it of the (ommissioner) and the mining
- For
more information) visit the ,a Farge we!site at; http:>>ioiow.la,argeeco&y&tem&.com>main>inde<.php. of 0enya M-::5;& 5N.
4 .e%#!lic 5 (ha%ter 3 *ee ' *ee
&&3) ,aws of 0enya.
.#le -6&--. section 3") and the *econd *ched#le.
The *tandard 2ews%a%er) & Decem!er -::3 at 3. The official named three districts BThika) /#rang8a and /arag#aC within the %rovince as notorio#s for flo#ting environmental directives for reha!ilitating >#arries.
" /ining 7 *ection
Act) section -. -.
legislation. $rti&anal and &mall!&cale mining There are no #niversal definitions of artisanal or small6scale mining) since it varies from co#ntry to co#ntry. Different definitions are g#ided !y feat#res s#ch as investment costs) la!o#r
re>#irements) ore %rod#ction rates) siDe of concessions) amo#nt of reserves) ann#al sales or any com!ination of these activities.": 1hatever the criteria) artisanal mining is an im%ortant so#rce of alternative livelihood)"& with increasingly large n#m!ers of %eo%le o%ting for it. "- For instance) the International ,a!o#r Organisation BI,OC estimates that 4 64. million %eo%le are em%loyed directly in small6scale mining in Africa."4 0enya is no exce%tion) and artisanal mining extends to gold) sand) >#arrying) etc. Jet) the c#rrent mining legal framework makes no %rovision for reg#lating and@ or develo%ing this sector. Artisanal miners are licensed to o%erate a mining location com%rising several claims. "5 The De%artment of /ines and <eology contends that artisanal mining is very diffic#lt to reg#late !eca#se of its high %roliferation aro#nd the co#ntry. In addition) the law is >#iet on so many as%ects a!o#t it. F#rther) most miners mostly lack the ca%acity to meet the o!ligations that may !e im%osed on them) s#ch as safety) environmental management) etc. "3 A sociological st#dy cond#cted at the /#ki!ira gold mines in Fihiga District) 1estern Province fo#nd evidence of #nlicensed o%erations) o!solete technology) dangero#s working environment) rec#rrence of serio#s accidents) #se of %oisono#s chemicals Bmerc#ryC) high levels of water %oll#tion) etc. "' These findings %rovide a g#ide on what meas#res are necessary to ens#re s#staina!le reg#lation of artisanal mining) among them;
": +conomic
(ommission for Africa M-::-; 5N. The U2 #ses the vol#me of material mined to esta!lish the !o#ndary
!etween small6 and large scale mining. This !o#ndary was set at 3:)::: tons of ore %er ann#m for #ndergro#nd mines and &::)::: tons %er ann#m for o%en %its. The U2 +conomic (ommission for Africa #ses the term artisanal and small6scale mining in reference to la!o#r intensive mining activities that have low %er ca%ita %rod#ctivity) em%loy #nso%histicated technology and re>#ire low ca%ital investment.
"& <yan "- Pedro "4 I#id.
M-:: N. M#ndatedN.
"5 A
location is made #% of claims) with a claim !eing over an area of less than -::m !y -3:m. A location can have
a maxim#m of ten claims and one is allowed a maxim#m of eight locations in any one given administrative district. *ee .e%#!lic of 0enya) /ining Investment .oad /a% in 0enya B2airo!i; De%artment of /ines and <eology) 2airo!iC) &6-. This information was also given !y /r. +. *. Os#mo) (hief /ining +ngineer) De%artment of /ines and <eology) /inistry of +nvironment and 2at#ral .eso#rces d#ring an interview with the a#thor on -" /arch -:: at his /adini 9o#se office in 2airo!i) 0enya.
"3 /r.
,o?omon $iwott) (ommissioner for /ines and <eology) /inistry of +nvironment and 2at#ral .eso#rces
d#ring an interview with the a#thor at his /adini 9o#se office on Friday) -4 /arch -:: .
"' *ee
generally Am#ta!i K ,#tta6/#khe!i M-::-N.
Q ,icensing of small6scale miners to eliminate illegal o%erations. For this to !e effective) there sho#ld !e a licensing regime dedicated to small6scale o%erators only) se%arate from large scale o%erations. The Draft /ining $ill attem%ts to remedy this with s#ch a distinctive licensing regime." Q To ens#re licensing and attendant conditions are com%lied with) there is need for str#ct#red ins%ection of o%erations !y the reg#lator. Among the standards to !e ins%ected sho#ld !e %#!lic health) environmental) working environment) la!o#r and general licence re>#irements. There is) however) need for instit#tional linkage among the reg#lators to harmonise standards and %rocess. Im%rovements in the reg#lation of the small scale mining sector may !e one aven#e to realise one of the o!?ectives of the draft mining %olicy) which is the enco#ragement of orderly and s#staina!le develo%ment of small scale mining. "" Innovations in the (raft )ining Bill 0AA, As the %receding disc#ssions have evidenced) the c#rrent legal framework for the mining sector has %roved inade>#ate and@or very silent on critical as%ects of s#staina!le mineral #tilisation) as disc#ssed in the %revio#s sector. The Draft /ining $ill has attem%ted to remedy this sit#ation. 9ere) we assess some innovative %rovisions of the %ro%osed law; Concept o, mineral agreement&>contract&
(#rrently) the (ommissioner for /ines a%%roves or re?ects all mineral rights a%%lications. 9owever) the %rovisions of +/(A re>#ire the (ommissioner to await iss#ance of an +IA licence !y 2+/A %rior to granting these rights."7 Pro%osals have !een made to shift this %aradigm in a !id to raise the !ar in s#staina!ility) transfer of !enefits) reg#lation and even environmental standards. This incl#des the %ro%osed new (onstit#tion -::3) 7: em%owering Parliament to ratify any nat#ral reso#rce ex%loitation rights granted in 0enya. 7& 9owever) the %roviso here allows Parliament to %ass legislation exem%ting any class of transactions from this %rovision) 7- hence
"
Part &&&) Division - K 4. of 0enya M -:: N.
"" .e%#!lic "7 *ection 7: This
3".
draft (onstit#tion was re?ected !y 0enyan voters d#ring the (onstit#tional referend#m in 2ovem!er -::3. 7&.
7& Article
7- Article7&B-C.
#ndermining the s%irit intended. It may) however) !e intended to %reem%t a scenario where all %otential contracts end #% tying #% Parliament. 1itho#t criteria on how and which transactions will !e exem%ted) however) effective im%lementation remains haDy. The Draft /ining $ill takes a different ro#te re>#iring %rior a%%roval of mineral agreements !y a /inerals Advisory $oard !efore their exec#tion !y the /inister. 74 1hereas this %#ts in %lace a vetting str#ct#re !efore minerals agreements are exec#ted) an a%%ointive advisory !oard cannot re%lace an elected 2ational Assem!ly. Capacity #%ilding o#ligation ,or mining vent%re& The c#rrent conditions %recedent to grant of a %ros%ecting or mining licence 75 do not incl#de a
mandatory ca%acity !#ilding %lan. (a%acity !#ilding is essential to ens#re develo%ment of local s%ecialiDed and other skills to f#rther s#staina!le #tilisation of nat#ral reso#rces. The Draft /ining Policy has recognised the need to sec#re the maxim#m !enefits of mining for the co#ntry !y fostering develo%ment of a thriving ind#stry that will contri!#te to s#staina!le economic develo%ment. In %#rs#it of this) !oth the Draft Policy and $ill re>#ire right holders to give em%loyment %reference in em%loyment to 0enyan citiDens to the maxim#m %ossi!le level and make %eriodic re%orts on em%loyment trends. ,arge6scale o%erations m#st cond#ct training %rogrammes for the !enefit of em%loyees and finance ed#cation in mining related disci%lines to a level agreed with the (ommissioner.73 *#!mission of an acce%ta!le em%loyment and training for 0enyan citiDens is a condition %recedent for all licence categories of the /ineral Advisory $oard. 7' *#staina!ility in the mining sector is significantly de%endant on s%ecific standards develo%ed for that %#r%ose. /ost of these standards re>#ire de%loyment of h#man skill) ranging from engineering) management) environmental standards) etc. For this reason) !efore a training and em%loyment %lan is considered acce%ta!le) the $oard sho#ld eval#ate the sco%e of the mining o%eration and ens#re that the skill levels identified for ca%acity !#ilding are not merely token. The training targets sho#ld clearly address those areas in which the %artic#lar vent#re and its locality re>#ire skilled ex%ertise. Amendments in this regard sho#ld !e made to the $ill !efore it is ta!led in Parliament. To effect these %ro%osals) if the $ill !ecomes law) there will !e need for s#!sidiarylegislation giving min#te o%erational details. In addition) a training fee sho#ld !e levied from
74 *ection
"'.
75 *ee
section 4 of cha%ter. -7. 47B4CBeC) 5 B4CBeC) '&B-CBfC K '7BeC.
73 *ection
7' *ections
mining o%erations for training %rofessionals in mineral6related disci%lines nationally. 7 Ind%&triali&ation, proce&&ing and val%e addition o, mineral prod%ct& .adical meas#res are #rgently needed to %revent ex%ortation of raw materials from develo%ing co#ntries s#ch as 0enya. $y so doing) no local s%ecialiDed skills can !e develo%ed and no horiDontal !enefits can s%read d#ring the val#e6addition %rocess. Jet) com%anies are still allowed to ex%ort raw mineral %rod#cts for %rocessing and val#e6addition a!road. A case in %oint is the Titani#m %ro?ect in 0wale District) 0enya. /edia re%orts in -::' re%orted that the %ro?ect intended to esta!lish a dedicated ex%ort terminal on the so#th shore of the 0ilindini (hannel of /om!asa har!o#r) incl#ding a ?etty with shi% loaders ca%a!le of handling 3::)::: tonnes of %rod#ct a year. The %ort facility wo#ld also incl#de five silos for storage. 7" This demonstrates a clear intention to ex%ort the mineral sands in !#lk form for %rocessing elsewhere. The Draft /ining $ill im%oses) as a condition %recedent to the grant of any licence) the s#!mission of an acce%ta!le %lan !y the right holder with res%ect to the %roc#rement of local goods and services.77 1hile a novel %rovision) this is ins#fficient. Prohi!itions sho#ld !e im%osed on the ex%ort of %artic#lar minerals in raw form) if their local %rocessing is %ossi!le. The intention) however) sho#ld !e two6%ronged. On the one hand) the law sho#ld set standards to %roc#re develo%ment of local infrastr#ct#re) h#man skills) and ca%ital to ens#re develo%ment of
ind#strial ca%acity locally. This has the advantage of ex%anding the local economy and h#man skill. It also minimises or eliminates nat#ral reso#rce waste 6 since !#lk raw material ex%orts are wastef#l and #ndermine conservation. 1ith local %rocessing) !iodiversity is ret#rned to nat#ral ha!itat) for instance when soils are ret#rned. The other hand of the intention is to find a !alance in s#staina!le growth of ind#strial sector and meaningf#l levels of domestic economic develo%ment) and to ens#re conservation and environmental s#staina!ility in the mineral #tiliDation %rocess. 9owever) this is a com%lex iss#e that re>#ires more research lest it !ecomes a !arrier to trade and investment. Conclusion In the c#rrent cent#ry) it is a f#ndamental %rinci%le that any develo%ment %rocess m#st factor in
7
An analogy can !e fo#nd in (atering Training ,evy esta!lished #nder section &' of the 9otels and .esta#rants Act) (ha%ter
575) ,aws An analogy can !e fo#nd in (atering Training ,evy esta!lished #nder section &' of the 9otels and .esta#rants Act) (ha%ter 575) ,aws of 0enya.
7" Kenyan
"ineral -and& ro3ect 6ead& ,or 8evelopment M-::'N) /ining .eview Africa) Iss#e - at 45. 47B4CBfC) 5 B4CBdC) '&B-CBgC K '7BdC.
77 *ections
environmental s#staina!ility. The h#man !eing is central to the develo%ment %rocess) mainly as the !eneficiary and to ens#re rationality and s#staina!ility. This is more so with regard to nat#ral reso#rces and the environment. /ineral reso#rces are no exce%tion. /ineral reso#rce #tilisation generally is an environmentally high risk vent#re. There is therefore need to str#ct#re high environmental and related standards. The law and %olicy remain
the critical !aseline to set these standards) from which im%lementation and enforcement flows. 9owever) the mining sector in 0enya has generally o%erated within the same !asic legal framework since &75: witho#t a g#iding %olicy in %lace. From the disc#ssion in this cha%ter) the im%act of the c#rrent legal regime on environmental s#staina!ility and related iss#es sho#ld !e evident. It is no wonder then) that there is a %rocess #nder way) at the time of writing) to review the c#rrent legal framework. 1hether the new law and %olicy will s#fficiently address the environmental and other needs of the mining sector) incl#ding and !eyond those disc#ssed in this cha%ter will !ecome evident with time. There is need to align the new framework with the re>#irements of section &5" of +/(A) in order to com%ly with c#rrent law) remove contradictions and ease im%lementation. 9owever) altho#gh this is a good !enchmark) it is not s#fficientE any new legal framework sho#ld address c#rrent and emerging iss#es facing the sector) al!eit within the law. F#rther) the %rocess of develo%ing the framework sho#ld !e all6incl#sive and %artici%atory.
C&a(te 7>
S'n!& on%s%n$ Ken'aEs Ene $' La- -%t& t&e F a#e-o / En)% on#ental La0IT9U.+ 0I2DI0I
Int o*+!t%on: T&e Global an* Ken'an Ene $' O(t%ons This cha%ter looks at 0enya8s energy reg#latory framework and its relationshi% with the
framework environmental law. Thro#gho#t the world) energy remains an indis%ensa!le ingredient for economic develo%ment. The c#rrent energy reso#rces can !e categoriDed into two; renewa!le and non6renewa!le so#rces.& The main so#rces of energy at the moment are non6renewa!le) incl#ding oil)- coal)4 and nat#ral gas.5 In the non6renewa!le category is n#clear energy and hydrogen) the latter one !eing a derived energy reso#rce o!tained !y the se%aration of hydrogen from water or nat#ral gas. The renewa!le so#rces incl#de !iomass) 3 %hotovoltaics' and geothermal energy. +nergy reso#rces) es%ecially of the non6renewa!le ty%e) remain #nder serio#s threat of de%letion. 0enya is an energy %oor co#ntry with no oil) gas) or coal. Its hydro reso#rces are ex%ensive and the forest cover is small and diminishing) standing c#rrently at - %er cent) way !elow the internationally recommended &:R. +xcl#ding solar energy) which is largely #sed for drying %#r%oses) the 0enyan economy de%ends on three main so#rces of energy; !iomass) %etrole#m and electricity. $iomass) incl#ding f#el wood and charcoal) remains the dominant so#rce of %rimary energy in 0enya) acco#nting for a!o#t : %er cent of the total %rimary national energy demand. " A significant %ro%ortion of this energy is o!tained from non6market so#rces) since most of the r#ral %o%#lation and a significant %ro%ortion of the #r!an %oor rely on non6commercial energy so#rces. (ommercial energy in the form of fossil f#els and electricity acco#nt for a%%roximately 4: %er cent of the co#ntry8s energy needs. Access to electricity is only &3 %er cent nationally) 5
%er cent in #r!an areas and 5 %er cent in the r#ral areas. 7 Petrole#m is the second largest %rimary energy so#rce) contri!#ting -: %er cent of total energy demand) while electricity acco#nts for &: %er cent. All the %etrole#m f#els cons#med in
& For - Oil
a disc#ssion on energy reso#rces) see) for exam%le) U2+P M-:: N. is #sed today %rimarily as a vehicle f#el) tho#gh in some %laces it is also #sed for %rod#ction of electricity and as an
ind#strial f#el.
4 (oaI
is availa!le and widely #sed for energy in many develo%ing and develo%ed co#ntries. Its widest #se is for %rod#ction of
electricity and to %ower ind#strial %rod#ction.

5 2at#ral
gas) often fo#nd in con?#nction with the ex%loration for oil) is a fossil f#el that has the %oll#tion emissions of coal and
oil) exce%t to a lesser degree.

3 Agric#lt#ral
and wood wastes. $iomass is %artic#larly advantageo#s for develo%ing co#ntries !eca#se local %rod#cts and la!o#r
can !e em%loyed.
' +nergy
from the light of the s#n.
O!tained from the heat of the earth) where availa!le) can !e #sed economically to %rod#ce hot water and steam for electricity.
" $hagavan 7 *ee
M&777;-4N.
/inistry of +nergy M-:O5G.
the co#ntry are im%orted from the Persia <#lf) largely in cr#de oil form and small !#t growing >#antities of refined %rod#cts. Over6reliance on im%orted %etrole#m %rod#cts have ex%osed the co#ntry to the volatility of the glo!al markets) infl#encing oil %ricing in a significant way. 1ith res%ect to electricity s#%%ly) a small >#antity is im%orted from Uganda. Primary electricity generation comes from !oth hydro%ower and geothermal %lants) with hydro%ower acco#nting for the !#lk of domestic %rod#ction of electricity. 0enya has a %otential of -)::: /egawatts of geothermal reso#rces) of which only a!o#t &4: /egawatts has !een harnessed.
For a long time) 0enya8s legal and reg#latory framework foc#sed on commercial non!iomass forms of energy. 9owever) the ado%tion of *essional Pa%er 2o. 5 of -::5 on +nergy in -::3 %aved way for the incl#sion of !iomass and other forms of renewa!le energy in the -::' +nergy Act. This cha%ter examines 0enya8s energy law with a view to identifying the areas of normative inconsistency for reform %#r%oses. The examination is driven !y two reasons; First) availa!le research literat#re on energy indicates a less than s#!stantial energyenvironment nex#s. 1hile the glo!al consens#s on the link !etween energy and the environment is growing) the sit#ation in s#!6*aharan Africa is not clear. &: The region8s cons#m%tion of modern energy is the lowest in the world) and the #se of coal) the f#el associated with n#mero#s environmental %ro!lems is still em!ryonic in most of the region. && (onse>#ently) African energy %lanners and ex%erts have accorded low %riority to environmental iss#es in energy develo%ment #% to the %resent. /any wo#ld acce%t reforms in the reg#lation of energy generation) distri!#tion and cons#m%tion as a given and concentrate on identifying meas#res that wo#ld achieve afforda!le) high >#ality energy at the ex%ense of %aying attention to a clean and healthy environment. .ecent develo%ments) however) have demonstrated the inade>#acy of this a%%roach as environmental %ro!lems !egin to emerge. *econd) section &5" of the +nvironmental /anagement and (o6ordination Act Bhereafter =+/(A= or =framework law=C re>#ires all sectoral laws relative to the environment to harmonise themselves with its %rovisions. The normative s#%eriority of +/(A is em!oldened !y the instit#tional s#%remacy of 2+/A in environmental matters across sectors. 2+/A) itself a creat#re of +/(A)&- has the overall mandate of s#%ervising and co6ordinating all matters
relating to the environment. In doing so) 2+/A sho#ld %rotect s#staina!le develo%ment !y integrating environmental considerations in develo%mental %olicies) %lans and activities. On the !asis of the a!ove rationale) this cha%ter looks at the relationshi% !etween the reg#lation of energy #ndertakings and environmental %rotection and conservation !efore giving
&: 0arekeDi && I#id. &- *ee
K .an?a M&77 ; -:'N.
+nvironmental /anagement and (oordination Act) 2airo!i; <overnment Printer) *ection .
an overview of existing energy sectoral law. The cha%ter then examines the sectoral law in relation to the framework law B+/(AC) with a view to identifying the areas of consistency and incongr#ence. The cha%ter ends !y making concl#ding remarks and recommends the as%ects of law reform that wo#ld !ring the sectoral law into harmony with the framework law as demanded !y section &5" of +/(A. *he Environment $ Energ& .e'us According to Dasmann) the term environment means =... the s#rface area of the earth made #% of the atmos%here) the oceans) the #%%er s#rfaces of the land areas of the continents and islands associated with them and the living things that inha!it this area.= &4 This definition reflects the environment as nat#re and nat#ral reso#rces) and is in synch with another !y Okidi) to whom environment incl#des;&5 ,and@soil) water) forests and vegetation cover) livestock) fish and other wildlifeE the minerals #nder the land and the air which envelo%es the earth8s s#rfaceE and h#man !eings... In this cha%ter) the term environment is taken to mean =the totality o, nat%re and
nat%ral re&o%rce&, incl#ding the c#lt#ral heritage and h#man infrastr#ct#re essential for socioeconomic activities.&3 1ithin this definition) infrastr#ct#re constr#cted to facilitate socioeconomic environment Bincl#ding energy6related infrastr#ct#reC are %art of the environment. The term energy is #sed in this contri!#tion to mean; &'
...L$Mny &o%rce o, electrical, mechanical, hydra%lic, pne%matic, chemical, n%clear, or thermal power ,or any %&e. and incl%de& electricity, petrole%m and other ,o&&il ,%el&, geothermal &team, #ioma&& and all it& derivative&, m%nicipal wa&te, &olar, wind and tidal wave power.
Afforda!le) high6>#ality energy and a healthy environment are m#t#ally incl#sive o#tcomes. +nergy and the environment have %lo#gh6!ack effects on each other in the sense that whereas environmental s#staina!ility ens#res energy s#staina!ility) a well6crafted energy regime is also !eneficial to the environment.& This) however) is a general and c#rsory environment6energy nex#s. The s%ecific energy6environment sym!iosis is demonstra!le in several ways. First) all life %rocesses re>#ire energy) and the modern h#man society and its socio6economic activities Bs#ch as cooking) lighting) heating) comm#nication) entertainment) commercial or
&4 Dasmann &5 Okidi &3 *ee &' *ee &
M&7 -;&4N.
M&7"";&-"6&4:N.
Draft International (ovenant on +nvironment and Develo%ment) re%rinted in Adede M&774N. +m%hasis mine. section - of the +nergy Act) -::'.
Ochich M-::'N.
ind#strial activitiesC de%end on energy. 2one of these activities co#ld !e %ossi!le witho#t energy. *econd) the %rogress or economic develo%ment of modern day h#man society is a f#nction of the >#ality and >#antity of the energy it cons#mes. It follows that economic growth or develo%ment
that res#lts from availa!ility and accessi!ility of efficient energy im%roves the %o%#lation8s economic %ower) there!y red#cing %eo%le8s inclinations towards environmental mal%ractices.&" Third) the environment is the %rimary so#rce of all energy) renewa!le and non6renewa!le. $earing this in mind) a co#ntry8s energy reg#lation and energy choices !ecome critical. Pro%er reg#lation of the alternative so#rces of energy has the %otential of !enefiting s#ch environmental reso#rces as forests and water) as it red#ces the %o%#lation8s energy de%endence #%on s#ch reso#rces and enco#rages re6afforestation. (onse>#ently) an efficient energy system hallmarks a shift from reliance on high to low car!on f#els and an enhanced develo%ment and #se of environmentally s#staina!le renewa!le energy technologies. Fo#rth) the environment is the sink for waste from energy extraction) conversion and cons#m%tion %rocesses. All energy systems) whether energy is !eing %rod#ced) converted or #sed) have adverse im%acts on the environment. They vary in >#ality and >#antity) in time and in s%ace. +nergy extraction) conversion and cons#m%tion %rocesses are associated with negative externalities with long lasting and sometimes irreversi!le negative environmental im%acts that im%air the >#ality of the environment and its a!ility to s#%%ort life. These im%acts incl#de atmos%heric %oll#tion) indoor air %oll#tion) deforestation) climate change and loss of !iodiversity. <eneration) distri!#tion) and s#%%ly of energy may often !e deleterio#s to the environment !eca#se of the %rocesses involved) the effect of the !y6%rod#cts thereof) and the im%lications of s#ch activities on the climate) h#man settlement and wildlife. Also) an inefficient energy system may lead to environmental destr#ction thro#gh deforestation and high reliance on high car!on
f#els) th#s aggravating climate change thro#gh generation of greenho#se gases in the wake of a red#cing forest !ase.&7 In 0enya) for instance) some st#dies have arg#ed that the energy sector is one of the main so#rces of greenho#se gases) which are res%onsi!le for climate change or glo!al warming. -: The trans%ort sector is the leading cons#mer of %etrole#m %rod#cts in the co#ntry. The #se of fossil f#els in trans%ortation and %ower generation is an im%ortant contri!#tor to #r!an %oll#tion. Therefore) the need for caref#l environmental considerations in the energy sector cannot !e overstated.
&" +conomic
growth wo#ld) for instance) red#ce informal settlements) which %ose environmental haDards s#ch as %oor waste
dis%osal systems.
&7 A
high forest !ase mitigates the risks arising o#t of high car!on f#els) as forests wo#ld a!sor! the excess green ho#se6gases in
the environment.
-: *ee)
for exam%le) Okoth6Ogendo K O?wang M&773N.
In recognition of the inextrica!ility of the energy6environment link) +/(Aen?oins 2+/A to %romote !oth the #se of renewa!le energy so#rces and the meas#res for conservation of nonrenewa!le so#rces of energy. -& In this connection) #se of water reso#rces s#ch as rivers) lakes or wetlands re>#ire the %rior a%%roval of 2+/A in order to enhance their conservation and s#staina!le management. This %ower may !e #sed to enforce a s#staina!le #se of water !odies so as to %romote s#staina!le develo%ment of hydroelectric energy. *imilarly) %rotection of forests) trees) wood lots and !iological reso#rces 6 reso#rces that %rovide energy for the !#lk of 0enya8s
r#ral %o%#lation 6 is also %laced within the am!it of 2+/A. -- These %rovisions necessarily call for instit#tional synergies !etween the framework environmental instit#tion) 2+/A) and the sectoral reg#latory agencies in the energy sector. An 3verview of -en&a6s Energ& Law 0enya8s energy law consists of the +nergy Act) the Petrole#m Act) -4 the Petrole#m B+x%loration and Prod#ctionC Act-5 and the +lectric Power Act.-3 Altho#gh the 1ater Act)-' the Trade ,icensing Act)- the *tandards Act)-" the Physical Planning Act)-7 the /ining Act)4: and the ,ocal <overnment Act4& are of incidental relevance to the energy s%ecific stat#tes) the sco%e of the %resent cha%ter does not involve examining these other stat#tes) !#t will only disc#ss the relationshi% !etween the energy6s%ecific law and +/(A with a view to %ro%osing a synchronised a%%roach. The +nergy Act is aimed at the consolidation of 0enya8s energy law and reg#latory
-& +/(A) -- +/(A) -4 (ha%ter -5 (ha%ter -3 Act -' Act -
*ection 57. *ections 5"63:. &&') ,aws of 0enya. 4:") ,aws of 0enya.
2o. && of &77 . 2o. " of -::-. The Act %ermits the #tilisation of moving water to generate electrical energy.
(ha%ter 57 ) ,aws of 0enya. The Act) for instance) has %rovisions relating to the licensing of charcoalrelated
#ndertakings. The need to control deforestation necessitates a %ro%er reg#latory regime of charcoal #ndertakings.
-" (ha%ter
57') ,aws of 0enya. The Act esta!lishes a regime for %romoting the standardiDation of the s%ecifications
of commodities) codes of %ractice and generally the r#les and national standards. For exam%le) the generation) s#%%ly and #se of !oth electric and %etrole#m energy re>#ires certain >#ality standards.
-7 (ha%ter
-"') ,aws of 0enya. It is noteworthy that most energy generation and distri!#tion concerns may
disarrange ha!itat. *#ch #ndertakings) therefore) re>#ire caref#l %lanning of the %hysical environment.
4: (ha%ter 4& (ha%ter
4:') ,aws of 0enya. -'3) ,aws of 0enya.
instit#tional framework. It was assented to !y the President on -" Decem!er -::' and is in the %rocess of !eing o%erationalised. This cha%ter will disc#ss its %rovisions vers#s +/(A) since o%erationliDation of the former will in effect re%eal the Petrole#m Act and the +lectric Power Act. The %rinci%al innovations of the +nergy Act are the s#!stantial consolidation of energy lawE esta!lishment of an #m!rella instit#tion to reg#late all energy #ndertakings 6 the +nergy .eg#latory (ommission4-E incor%orating nat#ral gas into the normative framework on %etrole#mE44 %roviding for !iomass and renewa!le energy) energy efficiency and conservationE45 esta!lishment of the %osition of Director <eneral of the (ommission) 43 and %erha%s most im%ortant) esta!lishment of the +nergy Tri!#nal to deal with a%%eals from the administrative decisions of the +nergy .eg#latory (ommission) 4' and the .#ral +lectrification A#thority to manage the r#ral electrification %rogramme and f#nds and to %romote the #se of renewa!le energy in r#ral areas.4 Another normative innovation of *essional Pa%er 2o. 5 and the +nergy Act is the re>#irement of the +nergy /inister to develo% and manage a %r#dent national efficiency and conservation %rogramme.4" To achieve these ends) the /inister may47 re>#ire %artic#lars to !e dis%layed on la!els on e>#i%ment or on a%%liancesE take meas#res to create awareness and disseminate information for efficient #se of energy and its conservationE strengthen cons#ltancy services in energy conservationE %romote research and develo%ment in energy conservationE %rovide financial s#%%ort to instit#tions %romoting efficient energy #se and its conservationE s#%%ort %re%aration of ed#cation c#rric#l#m on efficient energy #se and its conservation for ed#cational
instit#tionsE and making it mandatory to im%ort energy6efficient !#t cost effective technologies. *imilarly) the +nergy .eg#latory (ommission is en?oined to designate factories or !#ildings and electrical a%%liances !y ty%es) >#antities of energy #se or methods of energy #tilisation for the %#r%oses of energy efficiency and conservation. 5: The owner of a factory or !#ilding designated as s#ch shall conserve energy) a#dit and analyDe energy cons#m%tion therein as %er
4- *ections 44 Part
56-') +nergy Act.
IF of the +nergy Act) sections ":677. &:46&:') +nergy Act.
45 *ections 43 *ection 4' On 4
&-) +nergy Act.
com%osition %owers and roles of the +nergy Tri!#nal) see sections &: 6&:7 of the +nergy Act.
*ee sections ''6 7 of the +nergy Act. &:5) +nergv Act.
4" *ection 47 I#id. 5: +nergy
Act) *ection &:3.
the %rescri!ed standards) otherwise s#ch %erson will !e g#ilty of an offence #nder the Act. 5& Re$+lat%on of (et ole+# +n*e ta/%n$s U%stream %etrole#m activities in 0enya fall within the sco%e of the Petrole#m B+x%loration and Prod#ctionC Act) which vests the %owers to allow engagement in those activities on the /inister res%onsi!le for energy. 5- The <overnment may engage in oil ex%loration or %rod#ction directly thro#gh a %#!lic oil com%any) or it may enter into %etrole#m sharing contracts with %rivate com%anies.54 To ens#re com%ati!ility of %etrole#m ex%loration and %rod#ction activities with environmental %rotection) the Act em%owers the /inister to make reg#lations with res%ect to) inter alia, the cond#ct of %etrole#m o%erations) conservation of %etrole#m reso#rces and
meas#res relating to safety) environmental %rotection and the avoidance of wastes) %oll#tion and accidents.55 The +nergy Act of -::' does not re%eal this Act) meaning that the latter will contin#e to govern #%stream %etrole#m #ndertakings. Downstream %etrole#m activities fall within the %#rview of the Petrole#m Act) which vests its im%lementation on the /inister for +nergy thro#gh s#!sidiary legislation. *@he may make r#les %ertaining to) inter alia: restricting and reg#lating the im%ortation) landing) loading) shi%%ing) trans%ortation and storage of %etrole#mE s%ecifications and standards of vehicles to !e #sed for trans%orting %etrole#m !y road and storage of %etrole#m) ins%ection of %etrole#m storage %remises) and the taking of sam%les and the testing of %etrole#m fo#nd thereonE %rescri!ing the %reca#tions to !e o!served in the conveyance of %etrole#m !y road) in the manner of %acking and the mode and time of transit and in the loading and #nloading of vehicles #sed for s#ch conveyanceE and testing of sam%les of %etrole#m that has !een landed or is intended to !e landed) and classification of %etrole#m. 53 The Petrole#m .#les made #nder the Petrole#m Act vest %owers of licensing %etrole#m #ndertakings on the Administrative Officer of a district. 5' It is this ,icensing A#thority that is !estowed with the %owers of enforcing the Petrole#m .#les within its local ?#risdiction. Th#s) the %ractical im%lementation of the Act lies s>#arely with the %rovincial administration. This is a ma?or flaw in the Act) since there is no esta!lishment of a central reg#latory framework for the %etrole#m
5& I#id.
5- I#id, 54 I#id. 55 I#id, 53 I#id, 5' .#le
*ection 5.
*ection '. *ection 5. 3BaC of the Petrole#m .#les. This is not defined #nder the Act) !#t it may !e inter%reted to !e referring to a District
commissioner or District Officer) see *ection 4) Inter%retations and <eneral Provisions Act) (ha%ter -) ,aws of 0enya.
ind#stry) yet the ind#stry acco#nts for over -- %ercent of the overall energy cons#m%tion in the co#ntry.5 The Act confers #%on the licensing a#thority the %ower to act with #n!ridled discretion) with the a#thority8s decisions !eing a%%eala!le only to the /inister. A %erson aggrieved !y the decision of the a#thority in any %art of the co#ntry may %resent his a%%eal only to the /inister in 2airo!i.5" The Petrole#m .#les57 do not s%ecify the criteria to !e followed in iss#ing licenses for %etrole#m #ndertakings. There are no standard %rinci%les #%on which the ,icensing A#thority8s decision is to !e !ased. This means that each ,icensing A#thority may form#late its own criteria for iss#ance of s#ch licenses #nfettered !y any restrictions. Th#s) there may exist as many different criteria for licensing as there are districts. Under the +nergy Act of -::') 3: the %owers to %rescri!e the form and manner in which any a%%lication for a license or %ermit is to !e made vests with the sector reg#lator 6 the +nergy .eg#latory (ommission) to !e esta!lished there#nder. 3& The (ommission may a%%oint 8a com%etent and im%artial %ersons to !e licensing agents8. 3P#rs#ant to these %owers) the (ommission may remove the licensing %owers from the %rovincial administration to a more a%%ro%riate a#thority) %erha%s 2+/A District +nvironmental
(ommittees. The Petrole#m .#les %rovide for the trans%ortation of %etrole#m !y road. *#ch trans%ortation can only !e done #nder license. There are %rovisions for the constr#ction of vehicles conveying %etrole#m) the >#antities to !e trans%orted) attendance to s#ch vehicles and general safety meas#res in handling %etrole#m. 34 .ece%tacles and vehicles #sed in trans%ort of %etrole#m are to !e constr#cted #% to s%ecified standards and !e maintained in good condition. 35 The licensing a#thority has the %ower to ins%ect vehicles trans%orting %etrole#m to ens#re their com%liance with the law. The a#thority or his agents or a %olice officer can sto% and ins%ect any vehicle conveying %etrole#m to ascertain its com%liance. 33 There are) however) no designated sites or %roced#res for s#ch ins%ection. 1ith s#ch a regime)
5
*ee *essional Pa%er 2o. 5 of -::5 on +nergy at . 3B!C. note &7. Act) section '.
5" .#le
57 -%pra
3: +nergy 3& I#id 3- I#id
section 5. section "&. A, " K &:.
34 .#les 35 .#le
7.
33 .#lel-.
there is every %ossi!ility of %etrole#m !eing trans%orted that does not meet the re>#ired standards. There is no do#!t that the %olice officers who are em%owered to sto% and ins%ect %etrole#m trans%orting vehicles hardly know what to look for as they lack the re>#isite training) gadgets or ex%ertise to verify the com%osition of %etrole#m or the s#ita!ility of %etrole#mconveying vehicles. In fact) the %olice officers are) in most cases) attracted !y the sheer anatomy
rather than the contents of the vehicle. The r#les also reg#late the storage of %etrole#m and re>#ire storage facilities to !e licensed after the a%%roval of %lans and s%ecifications of the storage facilities@ %remises. Petrole#m storage tanks are identified !y a referencing system as %er their %hysical location) s%acing and de%th.3' There are %rovisions for trans%ortation of %etrole#m !y sea) loading and #nloading) and notification of arrival of shi%) declaration of the >#ality of %etrole#m carried and the nat#re of the %etrole#m. On the whole) these r#les are aimed at reinforcing safety and environmental %reca#tions. It is worth em%hasising that the Petrole#m Act Band logically the Petrole#m .#les made there#nderC is set for re%lacement once the +nergy Act -::' enters into o%eration. This calls for enactment of similar and even more environmentally sensitive r#les to give effect to the +nergy Act regime. Re$+lat%on of ele!t %! (o-e +n*e ta/%n$s +lectric %ower contri!#tes 7R of the co#ntry8s energy cons#m%tion. 3 The +lectric Power Act of &77 governs the generation) transmission) transformation) distri!#tion) s#%%ly and #se of electric energy in 0enya. The Act im%acts on the availa!ility) access) >#ality and >#antity of electric %ower in the co#ntry. The enactment of this legislation came at a time when 0enya was faced with a massive shortage in s#%%ly of electric %ower and the Act was ex%ected to facilitate easy access to electric %ower) !esides enco#raging investments in that s#!6sector. Pre6&77 electric s#!6sector law vested generation) transmission) transformation) and distri!#tion of electricity in the 0enya Power and ,ighting (om%any B0P,(C. The &77 law
se%arated generation of electricity from its transmission and distri!#tion f#nctions and fairly li!eralised the electric %ower market !y %ermitting %rivate investors to %artici%ate in electricity generation and selling electricity to the national grid. The +lectric Power Act creates the following three instit#tions; the 0enya +lectricity <enerating (om%any B0en<enC) the 0enya Power and ,ighting (om%any B0P,(C) and the +lectricity .eg#latory $oard B+.$C. It also %rovides for the f#nctions of two other role6%layers 6 the Inde%endent Power Prod#cers BIPPsC
3' *ee 3
.#les &464:.
*ee *essional Pa%er 2o. 5 at .
and the /inistry of +nergy 6 the latter !eing res%onsi!le for %olicy form#lation. It is worth noting that the li!eralisation of the electric %ower s#!6sector has not attracted as m#ch local or %rivate investment as was ex%ected) %artly d#e to a %rohi!itive income tax regime. Instit#tional domination B!y 0en<enC in electric energy generation still exists) while 0P,( mono%olises the transmission) distri!#tion) s#%%ly and retail of electric %ower. Altho#gh it is not the sole %ower generator) 0en<en still dominates the market as it generates a!o#t ": %er cent of the co#ntry8s total %ower o#t%#t) which it then sells to 0P,( 3" 0en<en #tilises vario#s so#rces to generate electricity) ranging from hydro6%ower) 37 thermal)': geothermal'& and wind so#rces)'with hydro6%ower constit#ting a!o#t ': %er cent of the total electricity generated in 0enya. The !#lk of this electricity is ta%%ed from five generating %lants along the .iver Tana. '4 The reg#lator in the s#!6sector) the +.$ has a host of f#nctions) incl#ding; '5 investigating) setting) reviewing and ad?#sting tariffs and charges for electric %ower salesE enforcement of
environmental and safety reg#lationsE ens#ring gen#ine com%etitionE a%%roving %ower %#rchase agreements !etween 0P,( and IPPsE certification of meters for electricity cons#m%tionE consideration and a%%roval of licenses for the s#%%ly of electricity metersE and reg#lation of the #se of meters) their safety) re%air and ad?#stments. The role of the +.$ has !een criticiDed for not covering the s%ecifics of monitoring key %erformance indicators and reviewing the least6cost %ower %lans. It is with this in mind that the sector6wide +nergy .eg#latory (ommission B+.$C is esta!lished #nder the +nergy Act. ,icensing of electric %ower #ndertakings is of significant relevance to environmental s#staina!ility. The +lectric Power Act esta!lishes an ela!orate licensing %roced#re for #ndertakings in the electric energy s#!6sector. All #ndertakings) #nless s%ecifically exem%ted) m#st !e licensed !y the +.$)'3 even tho#gh the /inister reserves the %ower to revoke) alter)
3" W;http:>>www.kengen.co.ke>energy+&ector.a&p=
Baccessed 4& Decem!er -:: C. The %rivate sector generates a!o#t
&3.- %er cent while electric %ower im%orts stand at a!o#t -.5 %er cent) with the <overnment #nder the .#ral +lectrification Programme generating a!o#t & %er centE *ee *essional Pa%er 2o. 5 of -::5 at ".
37 As
the main so#rce %rod#cing a!o#t -.4 %er cent of electric energy; htt%@@;www.kengen.co.ke. is f#el6generated energy) e.g. from diesel@gas. There are c#rrently thermal energy generating in %ower stations at
': That
/om!asa and 2airo!i B0i%ev# thermal station 6 diesel) 0i%ev# gas t#r!ines) ,am# thermal station 6 dieselC.
'& That
is) energy generated #sing nat#ral steam ta%%ed from volcanic6active Dones in the .ift Falley. *ome &- /1 is fed into
the national grid from three %lants located at Olkaria) so#th of ,ake 2aivasha.
'- htt%@@;www.k%lc.co.ke. '4 0indar#ma)
0am!#r#) <itar#) /asinga and 0iam!ere) which make #% the *even Forks hydro6electric stations with a
com!ined installed ca%acity of more than 5:: /1. Others are the T#rkwel <orge Power *tation B&:' /1C and minor hydro stations s#ch as U%%er Tana) /arag#a) Thika) /igori and *osiani) with a com!ined generation o#t%#t of 5: /1.
'5 *ection
&&7) +lectric Power Act.
'3 *ection
5.
transfer) renew and amend licenses. The licensing %roced#re contem%lates the receiving of re%resentations from the %#!lic on the %ro%osed electricity %ro?ect) as the intending licensee is re>#ired to give notice !y a %#!lic advertisement in the 0enya <aDette and in at least one local news%a%er of his intention to a%%ly for s#ch a license. '' The notice invites re%resentations or o!?ections to the /inister concerning the intended #ndertaking.' The involvement of the %#!lic in electricity #ndertakings ens#res %#!lic %artici%ation and local involvement. P#!lic %artici%ation is also enforcea!le thro#gh the +nvironmental Im%act Assessment %roced#re) which is a mandatory re>#irement of all %ro?ects involving electric infrastr#ct#re.'" The gro#nds for o!?ection may !e informed !y) inter alia, the need to %rotect the environment and nat#ral reso#rcesE %#!lic health considerations and the %otential im%act on the c#lt#ral and recreational life of the comm#nity. '7 ,icensing will in f#t#re fall #nder the +nergy .eg#latory (ommission) !#t the factors to !e considered in licensing as well as the gro#nds for re?ecting an a%%lication remain identical.
:
+nvironmental and %#!lic safety considerations also inform the +lectric Power Act %rovisions on the a%%ointment of electrical ins%ectors to %eriodically and in s%ecial cases ins%ect and test a licensee8s works to ens#re com%liance with the law. & They are to ascertain the >#ality of %ower s#%%lied) examine and certify the meters) and #ndertake any s#ch other d#ties as the Act may re>#ire of them. - The Act also en?oins the licensees to re%ort any accidents in their works and to allow access to the ins%ectors for the %#r%oses of ins%ection and testing. 4 In this regard)
licensees are o!liged to esta!lish testing stations.

5
,ike in the case of the Petrole#m Act) the coming into effect of the +nergy Act -::' will re%eal the +lectric Power Act &77 . It is noteworthy that the +nergy Act addresses key weaknesses in the +lectric Power Act !y %roviding for light6handed reg#lation in res%ect to generators with less than & /egawatt ca%acity and those with #% to 4 /egawatt generation
'' *ection '
3.
*ections 5 K 3. the *econd *ched#le to the +nvironmental /anagement and (o6ordination Act) &777. 7 K &:) +lectric Power Act.
'" *ee
'7 *ections : *ee
*ections -764:) +nergy Act. '3. ''. ' . '"6 :.
& *ection - *ection 4 *ection
5 *ections
ca%acity. Also) licensing in electric %ower #ndertakings is to !e made easier or in some cases dis%ensed with #nder the +nergy Act. The licensing %rocess itself is) #nder the +nergy Act) vested with the sector reg#lator) th#s s#!stantially red#cing the reg#latory risk involved. In s%ite of the a!ove re>#irements) !oth the +lectrical Power Act and its designated s#ccessor) the +nergy Act fall short of commens#ratery addressing environmental and safety im%lications of electric energy. Altho#gh this may !e somehow com%ensated thro#gh the overarching re>#irements of +/(A) the clear a!sence of s%ecific environmental safeg#ards in the o!vio#sly %recario#s electric energy #ndertakings is a ma?or normative ga%. (ases of dangero#sly ex%osed or hanging live electric wires) electric %ower s#rges) and #na#thorised tam%ering with electric s#%%ly systems have !een common) th#s %a#sing great risks to cons#mers and mem!ers of the %#!lic in general. Incidences of electricity6related %ersonal accidents and %rivate %ro%erty
damage attri!#ta!le to the foregoing have contin#ed #na!ated. This is an area where the law needs to !e strictly enforced and fa#lt !e met with commens#rate disa%%ro!ation) considering the great %otential risk that overhead electric %ower ca!les %ose. .%o#ass an* ot&e fo #s of ene $' 0enya has for a long time lacked a %olicy and legal framework on !iomass and other forms of renewa!le energy s#ch as solar) wind) hydro) !iof#el and !iogas from m#nici%al waste. According to 0arekeDi and .an?a) 3 !iomass is often referred to as a 8conditionally renewa!le so#rce of energy8. This is !eca#se it is not renewa!le if ex%loitation exceeds regeneration. In 0enya) demand for !iomass in #r!an areas is increasing while s#%%ly is diminishing in many r#ral areas.
'
*essional Pa%er 2o. 5 of -::5 on +nergy was the first %olicy doc#ment to encom%ass !iomass and other forms of renewa!le energy into the energy %olicy framework. This incl#sion %aved way for em!edding these energy so#rces into the legal framework. Under *ection &:4 of the +nergy Act) the /inister res%onsi!le for energy is en?oined to %romote the develo%ment and #se of renewa!le energy technologies) incl#ding !iomass !io6f#els s#ch as !io6diesel and !ioethanol) charcoal) f#elwood) solar) wind) tidal waves) hydro%ower) !iogas and m#nici%al wastes. In doing so) the /inister may; form#late a national strategy for co6ordinating research in renewa!le energyE %rovide an ena!ling framework for the efficient and s#staina!le %rod#ction) distri!#tion and marketing of these energy so#rcesE %romote the #se of fast man#fact#ring trees for energy %rod#ction) incl#ding !io6f#elsE and esta!lishment of commercial woodlots) incl#ding
3 -%pra,
note 4) -:' et &ea.
' *ee2yangM&777N.
*ection &:4B-C) +nergy Act.
%eri6#r!an %lantationsE %romote the #se of m#nici%al waste for energy %rod#ctionE and %romote the develo%mentof a%%ro%riate local ca%acity for the man#fact#re) installation) maintenance and o%eration of !asic renewa!le technologies s#ch as !io6digesters) solar systems and hydrot#r!ines. Im%lementation of *essional Pa%er 2o. 5 and the +nergy Act %rovisions calling for evelo%ment and %romotion of renewa!le so#rces of energy has to !e !alanced !y the recognition that renewa!les have their own negative environmental im%acts. For greater clarity of this %oint) the environmental im%lications for !iomass and some of the other renewa!le energies are a%%osite. Altho#gh the felling of trees for constr#ction and the clearing of land for agric#lt#ral activities) rather than the increasing demand for energy) have %roved to !e the ma?or ca#ses of deforestation) the role %layed !y the %rod#ction of charcoal and the s#%%ly of firewood cannot !e #nderestimated. There is also strong evidence that the increased %rices of %etrole#m f#els and their fre>#ent #navaila!ility are ca#sing instit#tions to switch to wood and charcoal. The tea and to!acco ind#stries are making intensive #se of !iomass energy. As the #se of !iomass energy increases in ind#stry and ho#seholds) related environmental %ro!lems will !ecome serio#s.
"
The ex%os#re to car!on monoxide is higher for charcoal #sers than any other f#el. 7 /ost of the time) the !iomass is !#rnt in o%en fires inside dwellings) res#lting in a ma?or health risk to the
ho#sehold 6 mainly women and girl6children who are associated with cooking. In many cases) the smoke %rod#ced as a res#lt of com!#stion is not vented o#t of the cooking s%ace. These emissions contain %oll#tants that can affect h#man health adversely. $io6f#el has !een seen as a %ossi!le s#!stit#te for fossil f#els) es%ecially in the trans%ort sector. (om!#stion of ethanol %rod#ces less car!on dioxide than fossil f#els and also ena!les the #se of lower octane gasoline) avoiding the #se of lead additives. ": Initiatives towards the #se of ethanol are already o%erational in 0enya. There are st#dies) however) are ske%tical of the %otential role of ethanol as a greenho#se gas a!atement o%tion. +riksen) "& for exam%le) contends that energy is cons#med and greenho#se gases are emitted d#ring the growing) harvesting and %rocessing of !io6f#els) in their trans%ortation and in dis%osing of their resid#es. 9e shows estimates that gasohol red#ces car!on monoxide concentration !y -3 %er cent) !#t increases nitrogen dioxide emissions !y "6&3 %er cent) volatile organic com%o#nds !y 3: %er cent and
" 0arekeDi 7 +llegard ": 0arekeDi "& +riksen
K .an?a) &%pra note && at -: . M&77:;&'56'N. K .an?a) &%pra note && at -:7.
M&773;&45N.
oDone !y ' %er cent. In res%ect of hydro%ower) large6scale %ro?ects can res#lt in ma?or ecological and hydrological disr#%tion) damaging local ecosystems and affecting local comm#nities adversely. ,arge6 scale hydro6%ower %ro?ects often lead to flooding of large tracts of land) some of which may !e ara!le. It increases incidences of water6!orne diseases) decreases fish stocks and sometimes in#ndates
forests and nat#ral woodlands) f#rther red#cing the world8s !iodiversity. Poorly %lanned hydro%ower %lants can trigger mass dis%lacement of indigeno#s comm#nities) setting the stage for long6term social %ro!lems."- Altho#gh small hydro6%ower %ro?ects are more environmental friendly they nevertheless %ose %otential harm. *mall hydro installations on rivers %o%#lated !y migratory fish co#ld interfere with the fish8s migratory ro#tes. The river !anks or any canals that are to !e d#g may !e v#lnera!le to erosion as a res#lt of the small hydro6%ower %ro?ect) and this may lead to sedimentation of the river."4 Other environmental %ro!lems incl#de noise %oll#tion and siting constraints. The n#isance ca#sed !y wind t#r!ine noise is one of the im%ortant limitations of siting wind t#r!ines close to inha!ited areas. The acce%ta!le noise level de%ends on national reg#lations. The vis#al im%act of the t#r!ines) altho#gh of a rather s#!?ective nat#re) is a realistic %lanning restriction) %artic#larly for areas of o#tstanding nat#ral !ea#ty s#ch as wildlife %arks. "5 $irds can also !e victims of collisions against wind t#r!ine towers or !lades) and !reeding or resting !irds can !e dist#r!ed in the t#r!ine vicinity. "3 Sectoral Law and E)CA? *he ;armon& and the Inconsistenc& 0enyan energy law) es%ecially the +nergy Act of -::') has significant congr#encies with the framework law. For instance) *ection 57 of +/(A en?oins 2+/A in cons#ltation with the relevant agencies to %romote the #ses of renewa!le energy. Promotion may incl#de vario#s initiatives) incl#ding; %romoting research in a%%ro%riate renewa!le so#rces of energy) creating incentives for the %romotion of the #se of renewa!le energy) %romotion of meas#res for its
conservation) and enco#raging the %lanting of trees and woodlots !y individ#al land owners) instit#tions and comm#nity gro#%s. The %rovisions on renewa!le energy have !een reiterated) with greater clarity) in the +nergy Act. Also) !oth +/(A and the +nergy Act envisage environmental considerations in licensing of
"- 0arekeDi "4 I#id. "5 $e#rskens "3 0arekeDi
K .an?a) &%pra, note && at -&:E see also 0arekeDi K 0arottki M&7"7N.
K Gensen M&775N.
K .an?a) &%pra, note &: at -&&.
energy #ndertakings. It is for this reason that the factors to !e considered !y the +nergy .eg#latory (ommission in granting or re?ecting a license or %ermit incl#de =the need to %rotect the environment and to conserve the nat#ral reso#rces in accordance with M+/(ANY "' 2evertheless) the sectoral law still needs to !e harmonised with +/(A8s general %rinci%les " !y enacting s%ecific %rovisions in the s%ecific %rinci%al energy laws Bthe +nergy Act) and the Petrole#m B+x%loration and Prod#ctionC Act since it will s#rvive the o%erationalisation of the +nergy Act. The sectoral law also needs alignment in order to !ring it #% to date and in conformity with +/(A. Fo#r areas of reform are identified and disc#ssed !elow. U(st ea# (et ole+# +n*e ta/%n$s Petrole#m reso#rces are not easy to find) nor are they often located in convenient %laces for oil or gas to !e extracted) %rocessed and sent to !e #sed !y the comm#nity. In -::'6-:: ) offshore ex%loration wells were drilled !y an A#stralian com%any) /ood&ide Energy, off the ,am# Island. It may t#rn o#t that 0enya8s oil %ros%ects remain on the Indian Ocean waters. +x%loring for oil and gas #nder the sea!ed) and the %rod#ction activities that may follow a s#ccessf#l ex%loration %rogramme) all involve some risks and %otential im%acts on the marine environment.
According to Da!!s) the effects of oil on marine life are ca#sed !y either the %hysical nat#re of the oil B%hysical contamination and smotheringC or !y its chemical com%onents Btoxic effects and acc#m#lation leading to taintingC."" /arine life may also !e affected !y clean6#% o%erations or indirectly thro#gh %hysical damage to the ha!itats in which %lants and animals live. The animals and %lants most at risk are those that co#ld come into contact with a contaminated sea s#rface; marine animals and re%tiles) !irds that feed !y diving or form flocks on the sea) marine life on shorelines) and animals and %lants in maric#lt#re facilities. "7 .#noffs from %etrole#m %rocessing and %etrochemical %lants have d#m%ed tonnes of toxic wastes into near!y waters. <as and oil %i%elines have stanched many creeks and rivers) swam%ing %rime %ast#res and cro%land.7: F#rthermore) entire !ays and lagoons along coasts have !een fo#led !y oil s%ills and r#noff of toxic chemicals. The environmental damage that is a res#lt of oil extraction and %rod#ction can also directly affect h#man life in the region. 7&
"' *ection "
4:B&C B!C) +nergy Act.
*ee *ections 4B3C BaC6BfC) +/(A. M&77'N.
"" Da!!s "7 I#id. 7: I#id. 7& I#id.
Damage can incl#de %oll#tion of water reso#rces and contamination of the soil. 9#mans are affected !y environmental devastation !eca#se it is damaging to vegetation) livestock) and to the health of the h#man !ody itself.7- Oil s%ills can interfere with the normal working of %ower stations and desalination of %lants that re>#ire a contin#o#s s#%%ly of clean seawater. 74
Des%ite the clear mandate of the /inister res%onsi!le for energy in *ection ' of the Petrole#m B+x%loration and Prod#ctionC Act to develo% s#!sidiary legislation to c#shion the environment from deleterio#s effects of #%stream %etrole#m #ndertakings) 0enya8s %etrole#m law is silent on the s#!?ect. Instead) the Petrole#m B+x%loration and Prod#ctionC .#les made there#nder address social) economic and c#lt#ral considerations.75 (learly) identifying these risks and im%acts and develo%ing detailed management %lans to avoid) %revent or minimise them is a vital and integral %art of %lanning these ex%loration and %rod#ction activities. Okidi73 has s#ggested law reform at the level of the constit#tion rather than stat#te law to ens#re environmental acco#nta!ility and s#staina!ility in #%stream %etrole#m activities. These reforms sho#ld vest all %etrole#m and gas reso#rces in the %eo%le Brather than the *tateC of 0enyaE make the award of %etrole#m sharing contract s#!?ect to Parliamentary ratificationE re>#ire %etrole#m ex%loration and ex%loitation to com%ly with the %rinci%les of environmental s#staina!ility and !oth intra and inter6generational e>#ityE and re>#ire %etrole#m ex%lorers and ex%loiters to show an environmental management %lan) environmental restoration %lan and +nvironmental Im%act Assessment. (onstit#tionaliDation of environmental %roced#ral and s#!stantive sensitivities in #%stream %etrole#m activities wo#ld !e a significant normative achievement for 0enya8s energy reg#lation. (onstit#tional entrenchment alone wo#ld not s#ffice) as there is also need to review the content of the 0enyan Petrole#m *haring (ontract BP*(C) which a%%ears as s#!sidiary legislation
annexed to the Petrole#m B+x%loration and Prod#ctionC Act. The s%ecific incl#sions into the P*( not only re>#ire Parliamentary a%%roval of all P*(s !#t also incl#sion of eight conditions to !e satisfied !efore Parliament can give s#ch a%%roval. These are; 7' an ind#strial develo%ment %lanE socio6economic develo%ment %lanE reven#e management %lanE resettlement %lanE environmental im%act assessmentE environmental management %lanE environmental restoration %lanE and)
7- I#id. 74 I#id. 75 For 73 *ee 7' *ee
instance) the .#les %rohi!it ex%loration activities of %etrole#m on !#rial gro#nds) %laces of worshi%) roads etc. Okidi M-::-; 4564"N. Okidi M-:: ;&' et se>?.
ca%acity develo%ment %lan. According to Okidi) incl#sion of s#ch %rovisions in the P*( leads not only to environmental conservation d#ring %etrole#m ex%loration and %rod#ction !#t co#ld also mitigate conflicts and %overty in the co#ntry. 7 Do-nst ea# (et ole+# +n*e ta/%n$s A significant shortcoming of the Petrole#m Act is its fail#re to %rovide for environmental concerns) notwithstanding the %otential deleterio#s effects that %etrole#m #ndertakings %ose to the environment. The Act does not make any reference to environmental %rotection or safety. The a%%roval of %lans and s%ecifications for installations does not de%end on any set environmental ethics. The licensing of %etrole#m #ndertakings also does not t#rn #%on any environmental
considerations) and it wo#ld a%%ear that the Act is insensitive to the environmental im%acts that %etrole#m #ndertakings may have. The omissions of the Act can !e ex%lained as an historical iss#e) environmental iss#es having !een !ro#ght into international and national legal frameworks only in the recent %ast. +/(A itself was only ado%ted in &777. It is also enco#raging that the coming into o%eration of the -::' +nergy Act will soon %hase o#t the Petrole#m Act) and this will c#re the normative ga% in >#estion.7" The road carriage of %etrole#m %rod#cts carries the environmental risks of oil s%illage and fires. It is not #ncommon to see a m#ltit#de of %etrole#m tankers %arked !y the roadside in trading centres where the %ossi!ilities of fires are real. Jet) neither the Petrole#m Act nor the Petrole#m .#les %rohi!it this. F#rther) these normative instr#ments do not im%ose the %oll#ter%ays %rinci%le in cases of oil s%ills. As stated a!ove) the +nergy Act)77 once o%erational) will re%lace the Petrole#m Act and fill the a!ove normative ga%s !y re>#iring com%liance with environmental health and safety standards. A %erson engaged in %etrole#m !#siness shall com%ly with the =relevant 0enya *tandard= on environment) safety and health) in the a!sence of which he shall com%ly with any other standard a%%roved !y the +nergy .eg#latory (ommission. The Act also endorses the %oll#ter %ays %rinci%le in +/(A) !y en?oining an o%erator or %etrole#m trans%orter to clean #% the %oll#ted or damaged environment at his own ex%ense) in the event of a 8fire) ex%losion) oil s%ill) in?#ry or fatality occ#rring in the co#rse of o%erating a
7
I#id. section 7" of the +nergy Act) regarding %rovisions for com%liance with environmental) health and safety
7" -ee
standards.
77 I#id.
%etrole#m facility or trans%ortation of %etrole#m. &:: Finally) the Act addresses the iss#e of %arking of %etrole#m6ferrying vehicles on the roadside) a common feat#re in many towns and trading centres es%ecially along the /om!asa6Uganda 9ighway. .ecognising the inherent danger %osed !y roadside %arking es%ecially in case of fires) the Act o!liges all local a#thorities to designate %arking %laces. .oad trans%ortation of oil %rod#cts co6exists with %etrole#m trans%ortation thro#gh the %i%eline system) the latter %osing f#rther %ec#liar environmental risks. The 0enya Pi%eline (om%any B0P(C o%erates a %i%eline system for trans%ortation of refined %etrole#m %rod#cts from the refinery at /om!asa to 2airo!i and western 0enya towns of 2ak#r#) 0is#m# and +ldoret.&:& The %i%eline has an external coating to %rotect it from external corrosion and cathodic %rotection system to minimiDe line corrosion.&:Altho#gh 0P( has a health) safety and environment section that oversees com%liance with the health) safety and environmental re>#irements) and =ens#res all staff working in the %lant and e>#i%ment area strictly adhere to the %etrole#m standards)= &:4 the system has not !een efficient. Incidences of %etrole#m leakage and %ilferage are not #ncommon. $esides) the *essional Pa%er 2o. 5 on energy notes that the %i%eline is already !eyond its lifes%an and needs a new lease of life) having com%leted the recommended %i%eline lifes%an of -3 years since its commissioning in &7 ".&:5 Altho#gh the Act em%owers the /inister to make r#les on the testing of %etrole#m) no
com%rehensive r#les have !een made in that regard. It may have !een intended that the licensing a#thorities wo#ld also serve the res%onsi!ility of >#ality enforcement. This is far from ade>#ate) as the licensing a#thorities are not trained in that field. The %resence in the scene of the 0P() a government6owned com%any) does not make matters any !etter for the testing of %etrole#m %rod#cts. Altho#gh 0P(8s mandate is to trans%ort %etrole#m %rod#cts thro#gh its %i%eline network) its reach has !een extended to the realm of %etrole#m %rod#cts testing. The com%any tests sam%les of any im%orted %etrole#m %rod#cts !efore the %rod#cts may !e allowed into the %i%eline installation) and %rod#cts already inside the %i%eline are monitored at
&:: *ection &:& The
7" B-C) +nergy Act.
%i%eline system is c#rrently a!o#t "::km long) consisting of a &5= 53:km long %i%eline with a flow rate of
55:/4 %er ho#r) r#nning from /om!asa62airo!i) and commissioned in &7 "E and a 55'km western %i%eline extension with a com!ination of "= and '= %i%elines and a flow rate of &':/4 %er ho#r) r#nning from 2airo!i6 *inendet6+ldoret and *inendet60is#m# commissioned in &775. htt%@@;www.k%c.co.ke.
&:- htt%@@;www.k%c.co.ke &:4 l#id. &:5 *essional
Pa%er 2o. 5 of -::5 at 4-.
vario#s stations along the %i%eline.&:3 Altho#gh this may have !een designed largely for the %rotection of the %i%eline system rather than for the safety of the end cons#mers) it incidentally %oses fairly general !enefits to %etrole#m >#ality standards. Th#s) it wo#ld not only %revent the vario#s %rod#cts from getting contaminated while in the %i%eline) !#t also offers an o%%ort#nity for enforcing the >#ality standards of the vario#s %etrole#m %rod#cts trans%orted via the %i%eline.
The a!sence of %etrole#m testing r#les leaves !oth the licensing a#thorities and the com%any with no reference %oint for ascertaining the nat#re and >#ality of the %etrole#m %rod#cts that are either im%orted into) distri!#ted or cons#med in the co#ntry. The s%ecification and enforcement of %etrole#m >#ality standards may also fall #nder the res%onsi!ility of the 0enya $#rea# of *tandards) esta!lished #nder the *tandards Act) &:' altho#gh the Petrole#m .#les make no reference to that Act. That omission is #nfort#nate) considering the %otential risks &: that cons#mers r#n thro#gh the #se of and ex%os#re to %etrole#m %rod#cts of #nascertained >#ality. As stated a!ove) the Petrole#m Act will not s#rvive the o%erationalisation of the +nergy Act. It follows that there is need to enact s#!sidiary legislation on the areas c#rrently covered !y the Petrole#m .#les to o%erate #nder the +nergy Act. The %ro%osed r#les sho#ld endeavor to fill the normative ga%s identified in the existing Petrole#m .#les. P o!e*+ al en)% on#ental eA+% e#ents: EIA9 a+*%t an* #on%to %n$ +/( A envisages three %roced#res that are relevant to energy #ndertakings; +nvironmental Im%act Assessment B+IAC)&:" environmental a#dit)&:7 and environmental monitoring.&&: 2+/A is en?oined to %romote +IA) an internationally recognised conce%t that roots for a systematic eval#ation of %ro?ects or activities that %ose significant adverse im%acts on the environment.&&& +nergy #ndertakings) s#ch as %ro?ects relating to electrical infrastr#ct#re) incl#ding electricity generating stations) electrical transmission s#!stations) constr#ction of gas %i%elines) the storage of nat#ral gas or ex%losive f#els and %ro%osed %etrole#m storage schemes re>#ire +IA and a%%roval of 2+/A.&&There is) therefore) need to #%grade the entire s%ectr#m of energy law to ex%ressly link it to
&:3 htt%@@;www.k%c.co.ke. &:' (ha%ter &:
57') ,aws of 0enya.
The dangers of ad#lterated f#el are m#ltifaceted) ranging from %ersonal safety risks to cons#mers) incl#ding %ersonal in?#ries
arising from ex%losions or damage to motor vehicle engines and other engines.
&:" *ection &:7 *ection &&: *ection
3") +/(A. '") +/(A. '7) +/(A. & of the .io Declaration on +nvironment and Develo%ment) U2 Doc. A.(O2F.&3&@-') 4&&.,./. " 5 B&77-C.
&&& Princi%le &&- *econd
*ched#le) sections ')&: K &&.
2+/A6s#%ervised +IA. In this connection) energy %ro?ect %romoters sho#ld !e en?oined to mitigate #ndesira!le environmental im%acts of a %ro?ect) which may !e identified d#ring the assessment. +IA encom%asses) inter alia, %#!lic %artici%ation) a val#a!le environmental %roced#re on its own right.&&4 P#!lic views) fears and concerns sho#ld !e a necessary consideration in energy6related %ro?ects. Pr#dent environmental %ractice re>#ires incor%oration of %#!lic views and concerns in %ro?ect %lanning) design and im%lementation. *#ch re%resentations are then taken into acco#nt in the %ro?ect design and im%lementation) and the %ro?ect %romoter may have to install necessary means of mitigating gen#ine %#!lic concerns. +/(A %rovides for environmental a#dits) where!y environmental ins%ectors a%%ointed #nder the framework law may enter land or %remises to determine =how far the activities carried o#t on that land or %remises conform= with the +IA re%ort. In this connection) the %remises8 owner or %ro?ect o%erator is o!liged to kee% acc#rate records and to s#!mit ann#al re%orts to 2+/A) descri!ing how far the %ro?ect conforms to the statements made in the +IA re%ort. For clarity in the energy ind#stry and in f#lfillment of the modification re>#irements of section &5" of +/(A)
energy laws need to !e reviewed to link them to the environmental a#dit re>#irements of +/(A. The third %roced#ral re>#irement of +/(A that is relevant to energy %ro?ects or #ndertakings is environmental monitoring. At a general level) 2+/A) in cons#ltation with lead agencies) &&5 has the mandate to monitor all environmental %henomena with a view to making an assessment of any changes in the environment and their likely im%acts. To discharge this task) 2+/A ins%ectors are em%owered to enter any land or %remises with a view to monitoring environmental effects of activities carried o#t in that land or %remises. .eview of energy6related legislation to %rovide for environmental monitoring !y 2+/A ins%ectors sho#ld lead to greater environmental conscio#sness in the energy sector. D%saste ( e(a e*ness The energy sector is very v#lnera!le to nat#ral and man6made disasters) %osing material) health and environmental damage. Two exam%les s#ffice; storms fell trees that fall on and destroy overhead electric ca!les) ca#ses %ower s#rges and so onE while oil s%illages and fires from %etrole#m in transit or leakage in the oil %i%eline can have devastating environmental and %#!lic health disasters. It is inconceiva!le that disaster %re%aredness and mitigation strategies have not !een %rominently incor%orated into energy sectoral law) incl#ding the latest legislation 6 the +nergy Act. The law sho#ld esta!lish a framework for %redicting and) where %ossi!le) %reventing
&&4 *ee
*ection 4B3C BaC.
&&5 *ection
- of +/(A; =lead agency= means any <overnment ministry) de%artment) %arastatal) state cor%oration or local
a#thority) in which any law vests f#nctions of control or management of any element of the environment or nat#ral reso#rceC.
disasters !efore they occ#r) as well as mitigating disasters when they do occ#r. Occasional oil well fires in the 2igerian delta region sho#ld serve as a lesson on the need for disaster %re%aredness and res%onse. Conclusion +nergy %rod#ction yields !enefits in the form of delivera!le heat) light and %ower. 9owever) energy #ndertakings also im%ose costs on society) not only in the form of costs associated with %rod#cing and delivering the energy !#t most critically the #nwelcome side effects on the h#man environment. The effects may !e the acidic %oll#tants and %artic#late emissions associated with coal6fired electricity) the risks of health damage from ro#tine radiation) the risk of a n#clear accident) the damage ca#sed !y a tanker oil s%ill) the im%acts ca#sed on !iological diversity !y hydro6%ower %ro?ects or wind energy installations) the risk of ex%losion from gas ex%loitation) and so on. The im%ortant thing a!o#t these additional costs is that in the a!sence of reg#lation) the %rod#cer or distri!#tor of energy will ignore them. On this %remise) the +nergy Act is a ma?or ste% in %roviding the m#ch needed reg#lation in energy #ndertakings to ens#re) inter alia, that %rod#ction) distri!#tion and cons#m%tion of energy does not endanger the environment irredeema!ly. The Act will also consolidate the law !y re%ealing the +lectric Power Act and the Petrole#m Act. Unfort#nately) it leaves law on #%stream
%etrole#m activities Bthe Petrole#m +x%loration and Prod#ction ActC intact) notwithstanding that the latter is archaic and insensitive to environmental %rotection and conservation in #%stream %etrole#m activities. $esides demonstrating the environment6energy link) this cha%ter has also highlighted significant inconsistencies !etween +/(A and energy sectoral law. *ome of the normative ga%s) s#ch as incor%oration of the %oll#ter %ays %rinci%le) the %rohi!ition of careless %arking of %etrole#m carrying vehicles and reg#lation of !iomass and renewa!le so#rces of energy have !een addressed !y the consolidated +nergy Act. 9owever) critical normative ga%s still exist. Fo#r %riorities have !een identified. These incl#de; Q .eviewing the law on #%stream %etrole#m activities 6the Petrole#m B+x%loration and Prod#ctionC Act 6 to incl#de environmental norms incl#ding revision of the %etrole#m %rod#ction contracts to inf#se environmental acco#nta!ilityE Q The need for s#!sidiary legislation #nder the +nergy Act to deal with downstream %etrole#m activities since the Petrole#m Act and the +lectric Power Act and the s#!sidiary legislation there#nder will stand re%ealed once the +nergy act !ecomes o%erationalE
Q .eviewing the +nergy Act to incl#de %rovisions on the %roced#ral environmental re>#irements of im%act assessment) environmental a#dit and environmental monitoringE and) Q +nacting s#!sidiary legislation on disaster %re%aredness and res%onse. At the instit#tional level) the sectoral law lacks %rovisions that ex%licitly recogniDe the role of 2+/A in s#%ervising o!servance of !oth s#!stantive and %roced#ral environmental norms with res%ect to energy #ndertakings. *#ch ex%ress recognition within the +nergy Act and the
Petrole#m B+x%loration and Prod#ctionC Act wo#ld lead to greater normative clarity and instit#tional synergies and coo%eration. If the reforms reca%it#lated a!ove were affected) the sectoral energy law wo#ld !e modified to give effect to section &5" of +/(A.
Chapter 1,
Access to 9enetic esources and Benefit$Sharing in -en&a

Introduction
$iodiversity com%rises of the variety of genetically distinct %o%#lations and s%ecies of %lants) animals) and micro6organisms with which h#man !eings share the earth) and the variety of ecosystems of which they are f#nctioning %arts.& $iodiversity also com%rises the varia!ility among living organisms from all so#rces) incl#ding) inter alia, terrestrial) marine and other a>#atic ecosystems and the ecological com%lexes of which they are a %artE this incl#des diversity within s%ecies) !etween s%ecies and of ecosystems. - 0enya has a host of stat#tes dealing with !iodiversity) ranging from wildlife and forest laws to laws on fisheries and a>#atic reso#rces. In this cha%ter) we look at laws that deal with access to genetic reso#rces and !enefit6sharing. The framework environmental law) the +nvironmental /anagement and (o6ordination Act B+/(AC esta!lishes the legal and instit#tional framework for the management of !iodiversity. Under it) reg#lations have !een %rom#lgated to reg#late access to genetic reso#rces and to %rovide for mechanisms to ens#re that !enefits are shared e>#ita!ly with the n#rt#rers of the
reso#rces. These reg#lations are yet to !e finaliDed. There is) th#s) c#rrently no legislative mechanism in %lace to control the search for commercially val#a!le genetic and !iochemical reso#rces from the %lant genetic reso#rces in 0enya. <enerally) access is !ased on m#t#al agreement !etween the collector and mem!ers of the local comm#nities or individ#al owners of land. These !ilateral agreements are #s#ally restricted to mere access for the %#r%ose of collection in exchange of one6off %ayments) which are oftentimes nominal %ayment or given free of charge. They do not #s#ally antici%ate other !enefits s#ch as royalties and ca%acity !#ilding. In this cha%ter) we look at the law relating to access and !enefit6sharing in 0enya) with a view to assessing its efficacy and congr#ence with +/(A. *ection & %rovides the introd#ction and !ackgro#nd to iss#es of access and !enefit sharing. *ection - deals with the legal norms in international and regional regimes that co#ntries have #sed in develo%ing national regimes for access to genetic reso#rces and !enefit6sharing. *ection 4 analyses 0enya8s legal and instit#tional framework governing access to genetic reso#rces and !enefit6sharing. *ection 5 analyses the %rovisions of +/(A with a view to highlighting the extent to which they have addressed the ga%s in the existing legal framework. *ection 3 com%rises the concl#sion and way forward. Background 9istorically) genetic reso#rces were exchanged freely #nder the doctrine of common heritage of h#mankind. This arrangement facilitated the sharing of genetic reso#rces for research as well as for food in the context of interde%endence !etween co#ntries. Technology has made it %ossi!le to
transfer genes across s%ecies and kingdoms) th#s im%acting on agric#lt#re) ind#strial and health
& +hrlich - Article
K +hrlich M&77-; -&7N. - of the (onvention on $iological Diversity) .io de Ganeiro) 3 G#ne &77-) reprinted in 4&&.,./. "&"
B&77-C.
sectors. This has increased the %otential or act#al val#e of genetic reso#rces and also %rom%ted a s#rge of interest in genetic material and a thriving 8!iotrade8. 4 The emergence of genetic engineering technologies #tilising genetic reso#rces o!tained in the context of common heritage of h#mankind B(99 Cand the grant of intellect#al %ro%erty rights for the new %rod#cts and %rocesses with no relationshi% to the so#rce of the genetic materials created the im%et#s for reg#lating access to genetic reso#rces. The %henomenon of 8mining8 nat#ral reso#rces is not new and is %artic#larly evident in colonisation scenarios. The iss#e of access to genetic reso#rces) however) !ecomes a contested iss#e as co#ntries avail their materials free of charge and then witness that material form the !asis for enrichment of others) with no trickling down of any !enefits to them as n#rt#rers of the reso#rces. A good exam%le in 0enya relates to extremo%hiles that nat#rally occ#r in the hot water s%rings of .ift Falley lakes) which have !een #sed to develo% a detergent that creates the stonewash look in ?eans. The %roceeds from this endeavo#r have not !een shared with 0enyans even tho#gh it has !een esta!lished that they were drawn from 0enya B*ee $ox &C. Indeed) des%ite the clear economic significance of these reso#rces) co#ntries) comm#nities and
individ#als %roviding these reso#rces and knowledge related to their #se have not shared in the !enefits accr#ing for their #se. .o2 7: E2t e#o(&%les !ase
4 /#ga!e
et al M&77 ;'N.
A recent exam%le of directly cond#cted cor%orate activity in kenya is that of <enencor Unternational Inc) a U* cor%oration with interests in +#ro%e. In -::-) the com%any anno#nced the develo%ment of a new %rod#ct) an enDyme) which ca#ses a faded look in denim. The denim ind#stry has %revio#sly #sed a %rocess of washing new denim with %#mice stones to %rod#ce the faded look. The enDyme s%eeds #% this %rocess while also creating fewer %ro!lems with incidental wearing in the fa!ric. The commercial val#e of this enDyme is not yet clear !#t the scale of the denim ind#stry s#ggests that it co#ld r#n into the tens) if not h#ndreds) of millions of U* dollars. <enencor acknowledges that the enDyme was discovered !y one of its scientists in a 0enyan saline lake !#t little detail is availa!le on the legal !asis of <enencorVs activities in o!taining the enDyme. <iven that all of 0enyaVs saline lakes fall within the !o#ndaries of %rotected areas) the %ermission re>#ired for the cond#cting of any scientific research is given !y the 0enya 1ildlife *ervice B01*C. The 01* research a%%lication %rocess is a generic one a%%lying to any research activity in !iodiversity conservation areas incl#ding %rotected areas and %rivate or %#!lic sanct#aries
-o%rce: Kent 1nado2ie) .o!ert ,ettington) (arl $r#ch) *#san $ass and *arah 0ing L'((0M, p.G?G Of %artic#lar significance in this de!ate is the %rotection of indigeno#s knowledge related to genetic reso#rces. It has !een esta!lished that many develo%ing co#ntries s#ch as 0enya #se traditional knowledge for medicinal %#r%oses) conservation as well as to ens#re their food sec#rity and sovereignty. 5 This knowledge) therefore) com%rises an integral %art of the innovation
systems in develo%ing co#ntries. 9owever) commercial ex%loitation of and #se of traditional knowledge is not %ossi!le within the =conventional= intellect#al %ro%erty regimes) since this ty%e of knowledge) which in most cases is tacit) is held !y comm#nities or gro#%s of %eo%le and is #tilised on the !asis of an exchange system. (onventional intellect#al %ro%erty rights BIP.sC) on the other hand) are mono%oly rights granted to individ#als and legal entities that satisfy set criteria that traditional knowledge does not fit into. This has res#lted in the ex%ro%riation of traditional knowledge !y %rivate actors to the detriment of comm#nities. It is gratifying to note that #nder the 1orld Trade Organisation8s Agreement on Trade .elated As%ects of Intellect#al Pro%erty .ights BT.IP*C 6 the most over6searching system for the %rotection of IP.sC 6 there is flexi!ility to ena!le develo%ing co#ntries develo% and im%lement &%i generic systems of IPP for traditional knowledge.3 Fail#re to ade>#ately %rotect traditional knowledge in African co#ntries has in the %ast led to loss of %rofits accr#ing from the develo%ment of %rod#cts directly related to the knowledge B*ee $ox -C. .o2 6: S&%#ba 0%lls of Ken'a
5 ,#ndvall 3 As
et al M-::-N.
%rovided #nder Article - of the T.IP* Agreement.
In the &7 :s) the U* 2ational (ancer Instit#te B2(IC collected the /ayten#s !#chananii %lant from the *him!a 9ills of 0enya. The 2(I collected tons of the shr#! !ased on the knowledge of the Digo comm#nity who %redominantly live aro#nd this area and have #sed this knowledge for years to treat cancero#s conditions. The shr#! contains maytansine) which is considered as %otential treatment for %ancreatic cancer. All the
material collected was traded witho#t the consent of the Digo) neither was there any recognition of their knowledge of the %lant and its medicinal %ro%erties.
-o%rce: Cale&to%& K%ma LGD)DM. It is within this context that co#ntries) drawing on the international legal framework %rovided !y the (onvention on $iological Diversity) have endeavo#red to assert sovereignty over genetic reso#rces and develo% laws on access to these reso#rces. The national laws m#st !e accom%anied !y national ca%acity to im%lement and follow thro#gh the mechanisms) es%ecially with regard to sharing of !enefits. .%o1( os(e!t%n$ $io6%ros%ecting is the ex%loration of !iodiversity for commercially val#a!le genetic and !iochemical reso#rces. It is %erceived as ca%a!le of %romoting conservation. The %ro!lem) however) is the link !etween traditional knowledge and intellect#al %ro%erty %rotection regimes within a context where there is a large market for %rod#cts of genetic reso#rces and where the conservation of the reso#rces at the local levels is anchored on social forms of organisation and exchange. 1hile access to genetic reso#rces incl#des knowledge of the !eneficial >#alities of the reso#rces) s#ch knowledge does not fit within the categories that are %rotected thro#gh intellect#al %ro%erty %rotection BIPPC. The %rod#cts and %rocesses of genetic engineering) which may have taken the c#e from s#ch knowledge) however) are the s#!?ect of IPP. This makes the definition of an access regime com%lex as one has to accommodate non6economic and social
interests that may not !e %romoted thro#gh mere economic incentives. This has led to the %ro!lem of !io%iracy) or the ex%ro%riation of !iological reso#rces from some co#ntries or comm#nities and their #se in the develo%ment of commercial %rod#cts !y %rivate entities witho#t sharing the !enefits derived with the n#rt#rers of the reso#rces. (oncern with !io%iracy relates to !oth food and medicinal %lants. Legal egime for Access to 9enetic esources and Benefit$Sharing
The iss#e of access to genetic reso#rces contin#es to !e the s#!?ect of ongoing disc#ssions at the international) regional and national %olicy making agendas. At the heart of the concerns of co#ntries is control and e>#ita!le !enefit6sharing from the flow of commercial and ind#strial ex%loitation of genetic reso#rces. The categories of actors in the diverse de!ates com%rise develo%ed co#ntries and entities in those co#ntries that have the ca%acity to work on the genetic
reso#rces and come #% with new %rod#cts and %rocesses for the marketE develo%ing co#ntries that host genetic reso#rcesE research instit#tionsE and local comm#nities. Access) control and ownershi% of genetic reso#rces are) !y and large) a f#nction of %ro%erty rights regime. From an international law %oint of view) *tates have the rights to reso#rces fo#nd within their territorial !o#ndaries and) conse>#ently) the right to reg#late access to those reso#rces. Under !oth the (onvention on $iological Diversity and the International Treaty on Plant <enetic .eso#rces for Food and Agric#lt#re) *tates have sovereign rights over their !iological reso#rces as well as their %lant genetic reso#rces for food and agric#lt#re. These rights are linked to commitments to facilitate access to reso#rces. ' The #nderstanding is that the right to
reg#late access is not a license for co#ntries to ado%t %olicies and laws that generally deny other actors access to reso#rces. The interde%endence of co#ntries with regard to access to genetic reso#rces for food and agric#lt#re) and the asymmetries in !oth !iological reso#rces and technology endowment !etween co#ntries and regions of the world) makes facilitation of access to genetic reso#rces im%erative. Indeed) in the existing circ#mstances) exchange m#st !e the !asis of any system seeking to reg#late access to genetic reso#rces. Access regimes are different for reso#rces held in &it% and e< &it%. In the latter case) the main iss#e is formaliDation of the terms of access for the reso#rces8 #ser with the International Agric#lt#ral .esearch (entre BIA.(C #nder the (ons#ltative <ro#% on International Agric#lt#ral .esearch B(<IA.C or with the de%ository instit#tion within a co#ntry. 1here reso#rces are held in &it%, the sit#ation is more com%lex !eca#se of the diversity of the reso#rces and the holders of the reso#rces. Access to the reso#rces) in this case) is %redicated on negotiations with diverse actors whose negotiation and !argaining ca%a!ilities may !e limited. $esides) the val#e of the reso#rces may not !e clear at the %oint at which the reso#rces are accessed. ,aws and %olicies on %ro%erty rights to land and other nat#ral reso#rces !ecome very critical at the national levels as they %rovide the anchorage for reg#lation of access to genetic reso#rces. Indeed) the owner of land has rights to the reso#rces on land and
can im%ose conditions for access to any reso#rces that are fo#nd on the land. In many African co#ntries) land ownershi% may !e categoriDed as %#!lic) %rivate and comm#nity. The state holds %#!lic land in tr#st for the citiDenry and is ex%ected to deal with the land in s#ch a manner as to %rotect the rights of the citiDenry. Private land com%rises the estate held !y individ#als or legal %ersons while comm#nity land is land held !y mem!ers of a distinct comm#nity and governed according to their c#stomary norms. All these ten#rial arrangements have im%lications for access to genetic reso#rces as they designate the a#thority res%onsi!le for granting consent. It is) however) im%ortant to note that the ca%acities and interests of the diverse ten#re holders differ
' (#llet
M-::3;&3'N.
I#id at &3 .
and) th#s) the *tate in many co#ntries is still charged with the res%onsi!ility of ens#ring that the overall %#!lic interest is sec#re in dealings with genetic reso#rces. International Law Con)ent%on on .%olo$%!al D%)e s%t' a7 $cce&& The (onvention on $iological Diversity %redicates access to genetic reso#rces on %rior informed consent of the *tate availing the reso#rces and m#t#ally agreed terms !etween the %arties. " 1hile recognising the sovereign rights of *tates over their nat#ral reso#rces and vesting the a#thority to
determine access to genetic reso#rces on national governments and national legislation) it calls #%on %arties to facilitate access to genetic reso#rces for environmentally so#nd #ses and not to im%ose restrictions that r#n co#nter to the o!?ectives of the (onvention) namely conservation) s#staina!le #se and e>#ita!le sharing of !enefits emanating from the #se of the reso#rces. It also re>#ires *tate %arties to take legislative) administrative or %olicy meas#res for the %#r%oses of sharing in a fair and e>#ita!le way the res#lts of research and develo%ment and the !enefits arising from the commercial and other #tilisation of genetic reso#rces. It is ex%licit that s#ch sharing shall !e #%on m#t#ally agreed terms. 7 It is within the %#rview of Article &3 that co#ntries have devised reg#lations for access and sharing of !enefits. It is) however) im%ortant to read the %rovisions of Article &3 together with those of Article &') which reg#lates access to technology and technology transfer) incl#ding !iotechnology. It %rovides for the transfer of technology at concessional and %referential terms to develo%ing co#ntries where m#t#ally agreed. The (onvention also makes %rovision for coo%eration !etween the develo%ed and develo%ing co#ntries in the area of access to !iodiversity and !iotechnology innovations) #nderscoring the co6o%erative and exchange %rinci%les. F#rther) while stressing the need for recognition of intellect#al %ro%erty rights) Article &' %rovides that s#ch rights sho#ld s#%%ort the o!?ectives of the (onvention and not r#n co#nter thereto. &: It em%hasises the need to have the intellect#al %ro%erty rights enhance the o!?ectives of the (onvention. /ore s%ecifically) it states that access to and transfer of technology 8shall !e
" Article 7 Article &: *ee
&3 B5C and B3C. &3 B C.
Article &'B5C of the $iodiversity (onvention) which %rovides that =(ontracting %arties) recognising that
%atents and other intellect#al %ro%erty rights may have an infl#ence on the im%lementation of this (onvention)
shall co6o%erate in this regard s#!?ect to national legislation and international law in order to ens#re that s#ch rights are s#%%ortive of and do not r#n co#nter to its o!?ectives.=
%rovided and@ or facilitated #nder fair and most favo#ra!le terms) incl#ding on concessional and %referential terms where m#t#ally agreed8. 1here technology is s#!?ect to IPP) it %rovides that access and transfer shall !e %rovided on terms that recognise and are consistent with the ade>#ate and effective %rotection of intellect#al %ro%erty rights. && It is) however) noteworthy that %rior informed consent m#st involve and !e o!tained from local comm#nities and individ#als where they are holders of rights to the reso#rces and knowledge. The (onvention on $iological Diversity infers this re>#irement !y calling on %arties;
-%#3ect to...national legi&lation, re&pect, pre&erve and maintain knowledge, innovation& andpractice& o, indigeno%& andlocal comm%nitie& em#odying traditional li,e&tyle& relevant ,or the con&ervation and &%&taina#le %&e o, #iological diver&ity and promote their tvider application with the approval and involvement o, the holder& o, &%ch knowledge, innovation& and practice& and enco%rage the e:%ita#le &haring o, the #ene,it& ari&ing ,rom the %tili&ation o, &%ch knowledge, innovation& and practice&P G' 5Empha&i& mine7
Along the same lines) Article &: BcC calls on *tates to 8%rotect and enco#rage c#stomary #se of !iological reso#rces in accordance with traditional c#lt#ral %ractices that are com%ati!le with conservation or s#staina!le #se re>#irements8. #7 Iene,it &haring The (onvention on $iological Diversity links access to genetic reso#rces to the fair and e>#ita!le sharing of !enefits arising from the #se of the reso#rces. *#ch !enefits incl#de scientific and technological knowledge) skills enhancement) #%front %ayment on collection of genetic reso#rces) and royalties on %rod#cts develo%ed from the material. &4 In the +thio%ian
Proclamation) they are laid o#t at Article &7.&5 There are no ex%licit g#idelines in the (onvention on the way in which the !enefits are to !e shared. The on#s is left with the national a#thorities to take;
legi&lative, admini&trative or policy mea&%re&., .with the aim o, &haring in a ,air and e:%ita#le way the re&%lt& o, re&earch and development and the #ene,it& ari&ing ,rom
&& Article &- Article
&' B-C. " ?. et al, &%pra note 4 at &&.
&4 /#ga!e &5 These
may incl#de license feesE #%front %aymentE milestone %aymentE royaltyE research f#ndingE ?oint ownershi%
of intellect#al %ro%ertyE em%loyment o%%ort#nityE %artici%ation of +thio%ian nationals from the Instit#te or the relevant instit#tions in the research !ased on the genetic reso#rces or comm#nity knowledge accessedE %riority to s#%%ly the raw material of genetic reso#rce re>#ired for %rod#cing %rod#cts therefromE access to %rod#cts and technologies develo%ed from the #se of genetic reso#rce or comm#nity knowledge accessedE training) !oth at instit#tional and local comm#nities levels) to enhance local skills in genetic reso#rces conservation) eval#ation) develo%ment) %ro%agation and #seE %rovision of e>#i%ment) infrastr#ct#re and technology s#%%ortE and any other !enefit as a%%ro%riate. *ee also *ection -4 of 0enya8s .eg#lations.
Internal Teaching Use Only 53' the commercial and other %tili&ation o, genetic re&o%rce&...
The aim of these meas#res is to %romote technological innovation) reward local comm#nities and individ#als for their knowledge) innovations and %ractices and %rovide incentives for conservation of !iological reso#rces. The flow of !enefits to local comm#nities and individ#als as o%%osed to the *tate alone is critical to creating incentives for conservation. It is im%erative that the !enefits are tailored to s#it the range of !eneficiaries. In the wildlife sector in 0enya) for instance) it has !ecome clear that the incentives for conservation) tho#gh linked to economic ret#rns) m#st take cogniDance of !oth cons#m%tive and non6cons#m%tive #ses of wildlife reso#rces.&3 0enya is a %arty to the (onvention on $iological Diversity Bsigned on && G#ne &77- and
ratified on -' G#ly &775. The %rom#lgation of +/(A constit#ted the domestication of the ($D. 9owever) !eca#se of the diversity and com%lexity of iss#es covered within +/(A) f#rther ste%s are needed to ens#re that access to genetic reso#rces and !enefit6sharing are ade>#ately addressed. c7 Bhe Ionn G%ideline& The $onn <#idelines on Access to <enetic .eso#rces and Fair and +>#ita!le *haring of the $enefits Arising o#t of their Utilisation arose o#t of a decision ado%ted !y the (onference of the Parties to the (onvention on !iological diversity at its sixth meeting held at The 9ag#e !etween and &7 A%ril -::-. They were develo%ed to assist co#ntries in develo%ing and drafting legislative) administrative or %olicy meas#res on access and !enefit6sharing #nder relevant %rovisions of the ($D and contracts and other arrangements #nder m#t#ally agreed terms for access and !enefit6sharing. They were intended to !e) among other things) vol#ntary) flexi!le and com%lementary to other international instr#ments. &' The <#idelines cover all genetic reso#rces and traditional knowledge associated with them) innovations and %ractices covered !y the (onvention on $iological Diversity and !enefits arising from the commercial and other #tilisation of s#ch reso#rces) !#t excl#de h#man genetic reso#rces. & Under the <#idelines) *tates are re>#ired to designate a national focal %oint for access and !enefit6sharing and to make s#ch information availa!le thro#gh the clearing6ho#se mechanism. It is the d#ty of the national focal %oint to inform a%%licants of access to genetic reso#rces of the %roced#res on %rior informed consent) m#t#ally agreed terms) !enefit6sharing) com%etent national
&3 *ee
(hild et al M-::5N. <#idelines) U2+P@($D@(OP@'@-: %ara .
&' $onn &
I#id. Paras 53657.
a#thorities) relevant indigeno#s and local comm#nities and other stakeholders. &" The <#idelines %ro%ose re>#irements for %rior informed consent) m#t#ally agreed terms and timelines for %roced#res. They also %rovide g#idelines on !enefit sharing Bty%es) timing) distri!#tion and mechanismsC &7 as well as #se of %ositive incentive meas#res and the removal of %erverse incentives.-: It is instr#ctive to note that these g#idelines are not !inding. 9owever) co#ntries incl#ding 0enya have #sed them extensively in devising their national Access and $enefit *haring BA$* .eg#lations. 3nternational 0reaty on Plant 4enetic *esources for Food and .griculture 2egotiations over the free exchange of information and materials among !reeders c#lminated in the ado%tion of the FAO Undertaking in &7"4.-& This instr#ment em!odies the conce%t of common heritage that had !een develo%ed in the %revio#s &3 years in the context of the negotiations over the ex%loitation of dee% sea!ed mineral reso#rces. -- These reso#rces are all sit#ated within the territory of *tates and are therefore s#!?ect to sovereign a%%ro%riation. There is) th#s) a conflict !etween the %rinci%le of common heritage as a%%lied to !iodiversity reso#rces and the %rinci%le of %ermanent sovereignty over nat#ral reso#rces. This contradiction has !een %artly addressed in different international instr#ments) which recogniDe that a *tate8s %ermanent
sovereignty is limited !y its d#ty not to ca#se damage to another *tate8s territory or to the glo!al commons.-4 It is noteworthy that common heritage in this context covers !oth the flow of raw materials from so#rce co#ntries and elite varieties im%roved thro#gh !iotechnology. *ince then) disc#ssions towards a !inding instr#ment have !een going on #nder the aegis of U2FAO. These disc#ssions !ore fr#it in -::& with the concl#sion of the International Treaty on Plant <enetic .eso#rces for Food and Agric#lt#re BITP<.FAC. The main o!?ective of the ITP<.FA is to ens#re that Plant <enetic .eso#rces BP<.sC are ex%lored) %reserved) eval#ated and made availa!le for %lant !reeding and scientific %#r%oses. It deals with P<.s of all s%ecies of economic and@or social interest) and refers %artic#larly to food
&" I#id. &7 I#id -: I#id
Para &4. %ara 7. %ara3&. Undertaking) &7"4.
-& FAO -- *ee -4 *ee
Part && of the ,aw of the *ea (onvention. Article 4 of the $iodiversity (onvention and Princi%le -& of the Declaration of the United 2ations (onference on the
9#man +nvironment) &' G#ne &7 -.
cro%s. The em%hasis on the free availa!ility of P<.s s%elt o#t in International Undertaking &7"4 version %roved to !e #nacce%ta!le to some develo%ed co#ntries. The reason for this was that the Undertaking incl#ded) within the am!it of free availa!ility) not only traditional c#ltivars and wild s%ecies) !#t also varieties develo%ed !y scientists in the 2orth. $roader acce%tance of the
Undertaking was only achieved after new resol#tions were %assed !y the (onference of the FAO in &7"7 and &77&. These resol#tions affirmed the sovereign rights of co#ntries over their P<.s and >#alified the %rinci%le of free availa!ility !y recognising %lant !reeders8 rights and farmers8 rights. The recognition of %ro%erty rights also im%lied the right to com%ensation for access to P<.s and associated %rod#cts. F#rther revision of the Undertaking was %rom%ted !y the growing im%ortance of P<.s at the international level. The coming into force of the ($D raised the need to harmonise the relevant %rovisions of the two regimes. The treaty recogniDes the need to com%ensate farmers for their contri!#tion to the develo%ment and maintenance of agric#lt#ral !iodiversity and %rovides for Farmers8 .ights at Article 7 as follows;
D.G Blie artie& recogni&e the enormo%& contri#%tion that the local and indigeno%& comm%nitie& and ,armer& o, all region& o, the world, partic%larly tho&e in thecentre& o, origin and crop diver&ity, have made and will contin%e to make ,or the con&ervation and development o, plant genetic re&o%rce&, which con&tit%te the #a&i& o, ,ood and agric%lt%re prod%ction thro%gho%t the world.
The Treaty also esta!lishes a m#ltilateral system of access and !enefit sharing. The system sho#ld !e =efficient) effective) and trans%arent...= and facilitate the sharing of !enefits =on a com%lementary and m#t#ally reinforcing !asis.. )=-5
Farmer&C 9ight& mean right& ari&ing ,rom the pa&t, pre&ent and ,%t%re contri#%tion& o, ,armer& in con&erving, improving, and making availa#le plant genetic re&o%rce&, partic%larly tho&e in the centre& o, origin>diver&ity. Bhe&e right& are ve&ted in the International Comm%nity, a& tr%&tee ,or pre&ent and ,%t%re generation& o, ,armer&, ,or the p%rpo&e o, en&%ring ,%ll #ene,it& to ,armer&, and &%pporting the contin%ation
o, their contri#%tion&, a& well a& the attainment o, the overall p%rpo&e& o, the International Endertaking.
1ith regard to the develo%ment of farmers8 rights at the national level) the Treaty %rovides a n#m!er of g#idelines for their introd#ction into domestic legal regimes. The Treaty highlights some of the areas that sho#ld !e addressed in %riority.
D.' Jie artie& agree that the re&pon&i#ility ,or reali2ing Farmer&C 9ight&, a& they relate to lant Genetic 9e&o%rce& ,or Food and $gric%lt%re, re&t& with national
-5 Article
&: of the Treaty.
Internal Teaching Use Only 537 government&. In accordance with their need& and prioritie&, each arty &ho%ld, a& appropriate, and &%#3ect to it& national legi&lation, take mea&%re& to protect and promote Farmer&C 9ight&, incl%ding:
BaC Protection of traditional knowledge relevant to %lant genetic reso#rces for food and agric#lt#reE B!C The right to e>#ita!ly %artici%ate in sharing !enefits arising from the #tilisation of %lant genetic reso#rces for food and agric#lt#reE and BcC The right to %artici%ate in making decisions) at the national level) on matters related to the conservation and s#staina!le #se of %lant genetic reso#rces for food and agric#lt#re. 7.4 2othing in this Article shall !e inter%reted to limit any rights that farmers have to save) #se) exchange and sell farm6saved seed@ %ro%agating material) s#!?ect to national law and as a%%ro%riate. 0enya is a %arty to the ITP<.FA !#t it is yet to domesticate its %rovisions. Re$%onal A(( oa!&es At the regional level) the African (onvention on 2at#re and 2at#ral .eso#rces %rovides for fair and e>#ita!le access to genetic reso#rces on terms m#t#ally agreed !etween the %roviders and #sers of s#ch reso#rces.-3 It also %rovides for fair and e>#ita!le sharing of !enefits arising o#t of
!iotechnologies !ased #%on genetic reso#rces and related traditional knowledge with the %roviders of s#ch reso#rces. On traditional knowledge) the (onvention re>#ires *tate %arties to take legislative and other meas#res to ens#re that traditional rights and intellect#al %ro%erty rights of local comm#nities) incl#ding farmers8 rights are res%ected. Additionally) %rior informed consent of the concerned comm#nities) !enefit sharing and %artici%ation !y the local comm#nities in the %rocess of %lanning and management of nat#ral reso#rces are re>#ired as %art and %arcel of the %rocess of access to genetic reso#rces. The aim here is to %rotect the rights of local comm#nities as well as %rovide incentives to the comm#nities to engage in the conservation and s#staina!le #se of s#ch reso#rces.-' Another relevant regional instr#ment is the OAU /odel ,aw for the .ecognition and Protection of the .ights of ,ocal (omm#nities) Farmers and $reeders and for the .eg#lation of Access to $iological .eso#rces which) among other things;
-3 Article -' Article
IO. *%ecies and genetic diversity) -B?C K BkC. OFII; Traditional .ights of ,ocal (omm#nities and Indigeno#s 0nowledge B&C K B-C.
Q .e>#ires that any access to any !iological reso#rces and knowledge or technologies of local comm#nities !e s#!?ect to an a%%lication for the necessary %rior informed consent from the 2ational (om%etent A#thority and the concerned local comm#nities incl#ding womenE- and Q .e?ects %atents on life or the excl#sive a%%ro%riation of any life form) incl#ding derivatives.-" 1ith regard to comm#nity rights) it defines them to incl#de rights to !iological reso#rcesE
collective !enefit from #seE and rights to innovations) %ractices) knowledge and technology. -7 It %rohi!its access to genetic reso#rces and knowledge related thereto where access is detrimental to the nat#ral or c#lt#ral heritage of the comm#nities. 4: Farmers8 .ights) on the other hand) incl#de the %rotection of traditional knowledge relevant to %lant and animal genetic reso#rcesE e>#ita!le sharing of !enefitsE %artici%ation in decision making on conservation and s#staina!le #se of reso#rcesE rights to save) #se) exchange and sell farm6saved seed or %ro%agating material and the right to #se commercial !reeder8s variety to develo% other varieties.4& 1hile ado%ting the International (onvention for the Protection of 2ew Farieties of Plants BUPOFC definition of !reeders8 rights) the /odel ,aw %rovides nota!le exem%tions to those rights) namely right to #se a %rotected variety for non6commercial %#r%oseE right to sell %lant@%ro%agating material as foodE and right to sell where the variety is grown and to #se the variety as initial so#rce of variation to develo% another variety. 4/ost African co#ntries) incl#ding 0enya) have #sed the /odel ,aw as a reference %oint in develo%ing national regimes for access to genetic reso#rces and !enefit6sharing. Two a%%roaches are generally discerni!le in co#ntries8 a%%roaches. On the one hand) co#ntries %lace the res%onsi!ility to manage access on national governmental a#thorities) ass#ming that this will !e done for the !enefit of all the %eo%le in the co#ntry. 44 There are those co#ntries) on the other hand) that) while conceding to the *tate8s sovereign rights to reso#rces within the co#ntries) also %rovide for the rights of local comm#nities. In +thio%ia) for instance) the ownershi% of genetic
-
Part III) generally. 7.
-" Article -7 Part
IF. -:.
4: Article 4& Part
F.
4- *ee 44 *ee)
Articles 4& K 44. for exam%le) Uganda8s %rovision that 8the right to determine) control and reg#late access to genetic reso#rces
...is vested in the <overnment for the !enefit of the %eo%le of Uganda8 BArticle 7C and 0enya8s reliance on the 2ational +nvironment /anagement A#thority as the loc#s for reg#lation of access to genetic reso#rces.
reso#rces is vested in the *tate and the +thio%ian %eo%le while the ownershi% of comm#nity knowledge is vested in the concerned local comm#nity. 45 The rights of local comm#nities are clearly s%elt o#t in the +thio%ian law to incl#de rights over their genetic reso#rces and comm#nity knowledge and the right to reg#late access to their comm#nity knowledgeE an inaliena!le right to #se their genetic reso#rces and comm#nity knowledgeE and the right to share from the !enefits arising o#t of the #tilisation of their genetic reso#rces and comm#nity knowledge. 43 /oreover) the comm#nities8 rights to reg#late access to their comm#nity knowledge is clearly s%elt o#t to incl#de; the right to give %rior informed consent for access to their comm#nity knowledgeE and the right to ref#se to give or to withdraw %rior informed consent when they !elieve that s#ch access will !e detrimental to the integrity of their c#lt#ral or nat#ral heritage. 4' -en&a6s Legal and Institutional Framework for Access to 9enetic esources and Benefit Sharing O-ne s&%( of Genet%! Reso+ !es Access) control and ownershi% of genetic reso#rces are !y and large a f#nction of %ro%erty rights regimes. As %ointed o#t a!ove) 0enya8s .eg#lations on access to genetic reso#rces have not yet
!een o%erationalised. (onse>#ently) access to these reso#rces is reg#lated thro#gh general %ro%erty law. The (onstit#tion4 g#arantees the right to %ro%erty and this is #sed as the !asis for g#aranteeing ten#re to land. ,and is im%ortant !eca#se it hosts genetic reso#rces and their ha!itats. In this regard) land ten#re Bthe methods !y which individ#als or gro#%s ac>#ire) hold) transfer or transmit %ro%erty rights in landC4" is cr#cial for access to genetic reso#rces and !enefit sharing. In 0enya) there are at least fo#r different kinds of entities that are recognised as loci for land rights holding) namely; co#nty co#ncils) the government) individ#als and gro#%s. +ach of these is governed !y s%ecific laws that delineate the >#ant#m of rights. ,and held !y co#nty co#ncils is designated as tr#st land and consists of areas that were occ#%ied !y the natives d#ring the colonial %eriod) and which have not !een consolidated) ad?#dicated and registered in individ#als8 or gro#% names and native land that have not !een taken over !y the <overnment. 47 It is governed
45 Proclamation 43 I#id 4' I#id 4
2o. 5"-@-::' at Article 3.
Article '. Article .
*ection A@, (onstit#tion of 0enya B&7"-C. for exam%le) Ogolla K /#ga!e M&77'; 7&N. section &&3) (onstit#tion of 0enya B&7"4C.
4" *ee) 47 *ee
!y the Tr#st ,ands Act and is vested in local a#thorities. 5: <overnment ownershi% of land is governed !y the <overnment ,ands Act) (ha%ter -": of the ,aws of 0enya) while individ#al ownershi% is reg#lated #nder the .egistered ,and Act) (ha%ter 4:: of the ,aws of 0enya and the
Transfer of Pro%erty Act. 2ot s#r%risingly) *tate and individ#al ownershi% have !een given most %rominence. (omm#nity ownershi% is reg#lated thro#gh the ,and B<ro#% .e%resentativesC Act (ha%ter -" of the ,aws of 0enya. This law was introd#ced to %rovide for the incor%oration of re%resentatives of gro#%s who have !een recorded as owners of land #nder the land. It a%%lies mainly to %astoralist areas. +ach of these ten#re ty%es has im%lications for access to genetic reso#rces. 1ith regard to government ownershi%) the *tate in 0enya owns land that was %assed to it as %art of the (rown lands annexed !y the colonial %ower and which had not !een allotted to individ#als. The *tate also owns land hosting gaDetted national %arks and forest reserves. The %ractice in the management of nat#ral reso#rces has !een to excl#de h#man !eings and c#rtail the access of comm#nities neigh!o#ring wildlife and forest reserves to genetic reso#rces within *tate6owned land. This has res#lted in comm#nities8 hostility to conservation %olicies and #nlawf#l infringement on the reso#rces !y the mem!ers8 comm#nities. The Forests Act -::3 seeks to remedy the sit#ation !y %roviding for comm#nity
management of forests thro#gh comm#nity forest associations. The modalities of im%lementing this legislation are c#rrently !eing worked o#t and are ex%ected to g#arantee access !y
comm#nities to forest %rod#cts and engage them in s#staina!le management of the reso#rces. A %rocess of reviewing the wildlife laws is also in %lace and it is ex%ected to address access to
wildlife reso#rces and the sharing of !enefits emanating there from. Private land ownershi% is governed !y the .egistered ,and Act and the Transfer of Pro%erty Act. The former Act a%%lies to land formerly held #nder c#stomary law) namely native reserves and tr#st land) which has !een registered. It delimits an individ#al8s %ro%erty rights to s#ch land. The latter Act governs land in settler and formerly settler occ#%ied areas) designated d#ring the colonial %eriod as the 1hite 9ighlands. The nat#re of the interests one gets #nder these laws is a!sol#te ownershi% of land) together with all rights and %rivileges !elonging or a%%#rtenant thereto s#!?ect to en#merated overriding interests. It is clear that the holder of land #nder individ#al ten#re has access to reso#rces within their land #nless they are %rotected s%ecies. 1ith regard to tr#st land) co#nty co#ncils hold the land in tr#st for comm#nities living in the area and make decisions on its develo%ment. They decide on s#ch iss#es as occ#%ation) #se for graDing and %ast#ring stock) flocks and herds and also generally reg#late the #se and
5: *ee
section &&5) (onstit#tion of 0enya B&7"4CE (ha%ter -"" of the ,aws of 0enya.
conservation of these areas. (onservation res%onsi!ilities of the co#ncils incl#de the %rotection of trees and forest %rod#ce on land) which does not fall within gaDetted forests. They reg#late the felling or removal of s#ch trees and forest %rod#ce. The %rogressive alienation of tr#st land to individ#als has negatively im%acted on comm#nities8 access to reso#rces in the land. There are also concerns a!o#t the e>#ita!le sharing of !enefits emanating form reso#rces in tr#st land !etween co#nty co#ncils and local comm#nities. There is an ongoing national land %olicy form#lation %rocess which) among other things)
makes %ro%osals for a reso#rce ten#re %olicy aligning to the greatest extent %ossi!le) ten#re to land6!ased nat#ral reso#rces to the different %ro%osed land ten#re systems) namely %#!lic) comm#nity and %rivate. 1here ownershi% of land6!ased nat#ral reso#rces are vested in a %rivate entity or comm#nity) the %olicy %ro%oses that they !e managed s#staina!ly and that the rights of forest de%endent or other nat#ral reso#rces de%endent comm#nities !e recognised and %rotected. The daft %olicy also makes %ro%osals for sharing of !enefits emanating from land6!ased nat#ral reso#rces B*ee $ox 4C. .o2 8: .enef%t1s&a %n$ f o# lan* 1base* nat+ al eso+ !es To %rotect comm#nity and individ#al interests over land6!ased reso#rces nd facilitate !enefit sharing) the <overnment shall; BaC +sta!lish legal framework to recogniDe comm#nity and %rivate rights over renewa!le and non6renewa!le land6!ased nat#ral reso#rces and incor%orating %roced#res for access to an s#staina!le #se of these reso#rces !y comm#nities and %rivate entitiesE B!C Devise and im%lement %artici%atory mechanisms for com%ensation for; ,oss of land and related non6renewa!le nat#ral reso#rcesE ,oss of land where this is deemed im%erative in the %#!lic interest for the s#staina!le management of renewa!le nat#ral reso#rcesE and Damage occasioned !y wild animalsE BcC P#t in %lace mechanisms for sharing of !enefits emanating from land6!ased nat#ral reso#rces !y comm#nities and individ#als.
-o%rce: <overnment of 0enya) Draft 2ational ,and Policy M-:: N.
A!!ess to Genet%! Reso+ !es Access to 0enya8s genetic reso#rces can !e categoriDed into three !road categories) namely; activities involving in6co#ntry %artners and cond#cted according to s%ecific agreementsE activities cond#cted !y cor%orations directlyE and activities cond#cted !y local researchers on !ehalf of m#ltinational cor%orations.5& The instit#tions involved in arrangements for access to genetic reso#rces incl#de international organisations) government instit#tions) #niversities and research instit#tions) m#ltinational organisations and %rivate individ#als. <overnmental instit#tions incl#de the 2ational /#se#ms of 0enya) 0enya Agric#lt#ral .esearch Instit#te B0A.&CE 0enya Forestry .esearch Instit#te B0+F.ICE 0enya /edical .esearch Instit#te B0+/.IE 0enya Try%anosomiasis .esearch Instit#te B0+T.IC) 0enya /arine and Fisheries .esearch Instit#te B0+/F.ICE Pyrethr#m $oard of 0enya) (offee $oard of 0enyaE Tea .esearch Fo#ndation and the 0enya 1ildlife *ervice B01*C. .eg#latory agencies involved in the arrangements incl#de; the 2ational (o#ncil for *cience and Technology) 0enya Plant 9ealth Ins%ectorate *ervice B0+P9I*C and the 2ational +nvironment /anagement A#thority B2+/AC. International organisations involved incl#de the International (entre of Insect Physiology and +cology BI(IP+C) and the International ,ivestock .esearch Instit#te BI,.IC. 0enyan %#!lic #niversities are also engaged in genetic reso#rces8 research iss#es and access these reso#rces alone or in con?#nction with other actors. 0A.I hosts the national gene!ank and allows instit#tions and researchers Blocal and foreignC access to its collections. 2ational instit#tions are also a!le to access collections from diverse so#rces) incl#ding the international research centres of the (ons#ltative <ro#% on International
5& ,ettington
M-::4;&4 N.
Agric#lt#re .esearch B(<IA.C. Access to genetic reso#rces in these centres 5- was on the !asis of the common heritage of h#mankind) !efore the concl#sion of the (onvention on $iological Diversity) which esta!lished sovereign rights over genetic reso#rces. Access to genetic reso#rces after &775 is) therefore) s#!?ect to res%ect for these rights. Pre6&775 collections are held !y the (<IA. centres on the !asis of agreements !etween the individ#al centres and the United 2ations Food and Agric#lt#re Organisation designating the centres as holders of certain e< &it% germ%lasm collections in tr#st for the !enefit of the international comm#nity. 54 At the national level) access to genetic reso#rces is on the !asis of material transfer agreements B/TAC !etween the %roviders of the reso#rces and those seeking access. These tend to !e mainly !etween research instit#tions or !etween #niversities) where a st#dent !ased in a foreign instit#tion re>#ires material from a local instit#tion. The /TA may !e re>#ired !y the 2ational (o#ncil for *cience and Technology B2(*TC as a %recondition for the grant of a research %ermit where that is re>#ired. There is no legal re>#irement that instit#tions concl#de an /TA as a %rere>#isite to the transfer of genetic reso#rces. Instit#tions have drafted /TAs on the !asis of instit#tional re>#irements. Indeed) %#!lic #niversities) thro#gh st#dent work or research with foreign instit#tions) are %erceived as the ma?or facilitators of #na#thorised access to genetic reso#rces in 0enya owing to the a!sence of instit#tional re>#irements for /TAs. 55 $ad
ex%eriences in colla!orative research53 and growing awareness of researchers of the com%lexities related to access to genetic reso#rces has led to instit#tionalisation of /TAs in #niversity colla!orative vent#res.5' The challenge remains for 0enya and instit#tions to ens#re that reg#lation of access to genetic reso#rces does not constit#te #nd#e denial of access. The 2ational /#se#ms of 0enya B2/0C has had an interesting %ro?ect on access to genetic reso#rces thro#gh involvement in the /illenni#m *eed $ank %ro?ect of the $ritish .oyal $otanic <ardens at 0ew B.$<]0ewC. Thro#gh the %ro?ect) named *eeds for ,ife Pro?ect) medicinal %lants are collected from arid and semi6arid %arts of 0enya. The accessions are de%osited in !oth the national gene!ank and .$<60ew. The national instit#tions involved in the %ro?ect are 2/0) 2(*T) University of 2airo!i) 01* and 0+F.I. The %ro?ect is monitored !y a Pro?ect +xternal +val#ation (ommittee BP++(C com%rising of a %rofessor from the University of 2airo!i8s Fac#lty of ,aw) the Attorney <eneral8s (ham!ers) the 0enya Ind#strial Pro%erty Instit#te B0IPIC) 2+/A
5- According 54 *ee 55 *ee 53 For
to Falcon K Fowler M-::-N) a!o#t 5:R of the genetic diversity for ma?or food cro%s.
(#llet) &%pra note '. ,ettington) &%pra note 5-. instance) in a colla!orative research !etween the University of 2airo!i and researchers from Oxford University in the
search for an AID* vaccine #sing !lood sam%les from commercial sex workers in 0enya. A %atent o!tained in the co#rse of this work was registered only in the names of the Oxford scientists.
5' To the
%oint of the University of 2airo!i !eing %erceived !y researchers to !e o!str#ctive.
and 0+P9I*. The material collected #nder the %ro?ect is to !e ke%t excl#sively for conservation
%#r%oses) with all rights thereto remaining with the <overnment of 0enya. The !enefits %rovided to 0enya consist of s#%%ort for 2/0) incl#ding financial reso#rces) training) and infrastr#ct#re assistance. D#ring Phase I of the %ro?ect) 2(*T raised concerns that the activities cond#cted #nder the %ro?ect com%rised !io%iracy. Indeed) the negotiation of the second %hase of the %ro?ect in -::- was very %rotracted) with .$<60ew lawyers having to come to 2airo!i to meet with mem!ers of the P++(. /em!ers of the P++( have insisted that they wo#ld like to visit .$<0ew to see the way in which the accessions are stored and com%are tha with the storage in 0enya. They have accom%anied the research teams on collection missions and raised concerns that the information re>#ested !y the research teams from comm#nities that accom%any the material may facilitate the a%%ro%riation of traditional knowledge. This is a matter of concern to them) given that mem!ers of local comm#nities only get %aid for la!o#r %rovided to the research teams.5 The meetings of the P++() which are convened !y the Pro?ect office at 2/0) have not !een fre>#ent d#ring the second %hase of the %ro?ect and this has raised concerns among the mem!ers of the P++(. Table 7;,7: Le$al an* %nst%t+t%onal #an*ate fo a!!ess to $enet%! eso+ !es an* benef%t s&a %n$ Inst%t+t%on Nat+ e F+n!t%ons elate* to a!!ess to $enet%! eso+ !es &. 0enya Plant 9ealth Ins%ectorate *ervice
B0+P9I*C <overnmental reg#latory agency res%onsi!le for %lant health Plant variety %rotection Plant health reg#lation Ins%ection Bfarm) market) ex%ort@im%ort licensing and health certificatesC -. 0enya Agric#lt#ral .esearch Instit#te B0A.IC 2ational agric#lt#ral research instit#te .esearch and develo%ment B%lant@seed varieitiesE
5
*ome investment has also !een made in comm#nity amenities s#ch as schools) !#t the P++( wo#ld want to see some
recognition of and %rotection of traditional knowledge.
!iotechnology incl#ding genetic modificationE animal and %lant disease controlC 4. 2ational /#se#ms of 0enya .esearch *eeds for life %ro?ect 9er!ari#m Training
5. P#!lic #niversities .esearch K training .esearch Training 3. 0+F.I 2ational research instit#tion #nder 2(*T *eeds for life %ro?ect .esearch into and maintenance of #sef#l tree s%ecies (atalog#ing and concerving medicinal %lants '. 01* Parastaatal orgnisation #nder the /inistry of To#rism *eeds for life %ro?ect .esearch into 1ildlife /anagement of %rotected areas 2ational focl %oint for %rorection of endangered s%ecies of fa#na and flora . 0+/.I 2ational research instit#tion #nder 2(*T .esearch into traditional medicines for their %otential as %hytomedical %rod#cts and as the !ase
for modern %harmace#tical %rod#cts I#ality control of traditional medicine ". 0+T.I 2ational research instit#tion #nder 2(*T .esearch into try%anosomiasis 7. 0+/F.I 2ational research instit#tion .esearch in marine and
#nder 2(*T fisheries reso#rces &:. 2ational (o#ncil for *cience and Technology B2(*TC +d#cation science and technology Policy develo%ment 2ational $iosafety (ommitteee A%%roval of research and develo%ment for </Os A%%roval of research and develo%ment and licensing &&. 2ational +nvironment /anagement A#thority +nvironment .eg#lations Balien and invasive s%ecies)
!iodiversity management) %oll#tion controlC Iss#ring %ermits +nvironmental monitoring and a#dits Intelle!t+al P o(e t' P ote!t%on fo .%ote!&nolo$' Intellect#al %ro%erty %rotection for !iotechnology Btechnological a%%lications that #se !iological systems) living organisms) or derivatives thereof) to make or mofify %rod#cts or %rocesses for s%ecific #sesC5" has f#rther com%licated the iss#e of access to genetic reso#rces. 1hile access to genertic reso#rces incl#des traditional knowledge of the !eneficial >#alities of the reso#rces) s#ch knowledge does not fit within the categories that are %rotected thro#gh IPP. The %rod#cts and %rocesses of modern !iotechnology Bgenetic engineeringC) which may have taken the c#e from s#ch knowledge) however) are the s#!?ect of IPP. Two kinds of intellect#al %ro%erty rights are relevant to the genetic reso#rces) namely %atents ad %lant !reeders8 rights. Patents The 0enya8s Ind#strial Pro%erty Act -::& %rovides for %atents for technological %rod#cts and %rocesses.57 The definition of an invention at section 'B4CBaC incl#des %rod#cts or %rocesses involving animals) %lants and micro6organisms so long as mankind has %artici%ated in their creation. Invention here is defined to mean a sol#tion to a s%ecific %ro!lem in the field of
5" *ee 57 Act
Article - of the $iodiversity (onvention) &%pra note -. 2o. 4 of -::&) which came into force on 4 A#g#st -::&.
technology) which co#ld !e or may relate to a %rod#ct or a %rocess. It excl#des discoveries or findings that are %rod#cts or %rocesses of nat#re where mankind has not %artici%ated in their creation Bincl#ding animals) %lants and micro6organismsC and scientific and mathematical
methods and theoriesE schemes) r#les or methods for doing !#siness) %erforming %#rely mental acts or %laying games) and com%#ter %rogrammesE methods for treatment of the h#man or animal !ody !y s#rgery or thera%y) as well as diagnostic methodsE exce%t %rod#cts) in %artic#lar s#!stances or com%ositions) for #se in any of those methodsE or mere %resentation of information. In excl#ding seeds and %lant varieties from %atenta!ility) the law sti%#lates that %lant varieties =as %rovided for in the *eeds and Plant Farieties Act) !#t not %arts thereof or %rod#cts of !iotechnological %rocesses are not %atenta!le.= 3: For a !iotechnological invention to !e %atenta!le) it m#st !e =new) involve an inventive ste% and is ind#strially a%%lica!le=.3& Patenting of !iotechnology inventions) however) also has to !e seen against the !ackgro#nd of the asymmetries in endowment with nat#ral reso#rces and technology ca%acity. /ost !iotechnology %atents are held !y m#ltinational cor%orations in develo%ed co#ntries while the material #sed may have !een o!tained free of charge from a develo%ing co#ntry. The exam%le of the colla!oration !etween the University of 2airo!i and researchers from Oxford University in the search for an AID* vaccine is ill#strative of f#rther asymmetries in knowledge and awareness of IP.s) which im%acts on access to genetic reso#rces.3*imilarly) the ongoing row !etween the 0enya 1ildlife *ervice and <enencor over the #se and commercialisation of research on extremo%hiles o!tained from a 0enyan lake B*ee $ox & a!oveC ill#strates the relationshi% !etween %atents and access to genetic reso#rces. The 0enya 1ildlife *ervice) which manages the %rotected area in which the extremo%hiles were collected) has moved to claim a share of the !enefits that have accr#ed from the #se of the extremo%hiles.
Plant Variety Protection The Ind#strial Pro%erty Act excl#des seeds and %lants from %atenta!ility. These are dealt with in the *eeds and Plant Farieties Act) (a% 4-' of the ,aws of 0enya) which %rovides for the grant of %lant !reeders8 rights BP$.sC for clearly disting#isha!le) homogeno#s) #niform and sta!le varieties of %lants. The 0enya Plant 9ealth Ins%ectorate *ervice B0+P9I*C deals with P$.s) which it grants for a limited %eriod of #% to -3 years. <enerally) the sco%e of the !reeder8s rights is >#ite extensive. The !reeder) has rights to control the %rod#ction) commercialisation) offering
3: I#id. 3& I#id,
*ection . note 5'.
3- -%pra
for sale and the marketing of %ro%agating material of the %rotected variety. The Plant Fariety Protection Office BPFPOC was esta!lished within 0+P9I* in &77 with the o!?ective of im%lementing the dormant Part IF of the *eeds and Plant Farieties Act. The criteria for granting P$.s are very similar to that %ost#lated !y the &77& version of the International (onvention for the Protection of 2ew Farieties of Plants BUPOFC) altho#gh 0enya is only a signatory to UPOF &7 ". Once 0+P9I* receives an a%%lication for P$.s) it has to cond#ct tests and satisfy itself that the variety >#alifies as %er the criteria of novelty) distinctness) sta!ility and #niformity. A P$. holder en?oys the right to %rod#ce) sell) and ex%ort or im%ort %ro%agating material of the
%rotected variety as well as the right to sto% anyone from infringing these rights. The holder of these rights also en?oys similar rights with res%ect to other varieties de%endant on the %rotected variety. $efore the grant of P$.s) the following conditions m#st !e met; aC The variety to which the a%%lication relates m#st !e a >#alifying variety. According to the !ill) a >#alifying variety is one that is new) distinct) #niform and sta!le. !C The %erson making the a%%lication is the one entitled to the grant of P$.s in res%ect of the variety to which it relates. It is instr#ctive to note that most P$.s to date have !een granted to %#!lic research !odies s#ch as 0A.I and foreigners. 0A.I has !een %rinci%ally involved in the develo%ment of new varieties of food cro%s) while foreign entities have a%%lied for P$.* for hortic#lt#ral and ornamental %lant varieties.34 The grant of P$.s) while g#aranteeing the %ro%erty holders rights to creations of their intellect and ret#rns on investment) may im%act negatively on access to seeds and other new varieties for local comm#nities and farmers. This is es%ecially the case where the %rice of the seeds or new varieties is too high. $esides) P$.s are not granted to farmers and may negatively im%act on the age6old %ractice of seed exchange) which is very %revalent among 0enyan comm#nities of farmers. +nvironmental ,anagement and Co-ordination .ct 1hile +/( A as a framework environmental law stat#te deals with all environmental iss#es incl#ding !iodiversity) *ections 3:)3& and 34 are %artic#larly %ertinent to the >#estion of access to genetic reso#rces. *ection 3: re>#ires the 2ational +nvironment /anagement A#thority
B2+/AC) the !ody charged with co6ordinating all matters relating to the environment in 0enya) to identify and inventory all !iological diversity in 0enya) determining its threatened) rare and endangered com%onentsE %rotecting indigeno#s %ro%erty rights of local comm#nities in res%ect of
34 0ameri6/!ote
M-::5N.
the diversity) among others. *ection 3&BeC and BfC re>#ire the A#thority to %rohi!it and control the introd#ction of alien s%ecies into nat#ral ha!itats and to integrate traditional knowledge for !iodiversity conservation with mainstream scientific knowledge. The A#thority is also mandated to iss#e g#idelines for the s#staina!le management and #tilisation of genetic reso#rces for the !enefit of the %eo%le of 0enya. These incl#de g#idelines on access to genetic reso#rces) the sharing of !enefits derived from the genetic reso#rces) !iosafety meas#res necessary to reg#late !iotechnology) and meas#res necessary to reg#late the develo%ment) access to and transfer of !iotechnology.35 Under this %rovision 2+/A has %#t in %lace reg#lations on access to genetic reso#rces and !enefit sharing. Access and Benefit Sharing egulations 2+/A has %rom#lgated reg#lations in this regard. 33 In these reg#lations) 8access8 is defined as o!taining) %ossessing and #sing !iological reso#rces) genetic reso#rces) their derivative %rod#cts) and where a%%lica!le) intangi!le com%onents) for %#r%oses of research) !io6%ros%ecting) conservation) ind#strial a%%lication or commercial #se. 3' 2+/A is designated as the focal %oint for receiving all a%%lications for access to genetic reso#rces 3 and any %erson intending to access
genetic reso#rces in 0enya is re>#ired to a%%ly to the A#thority for an access %ermit. 3" The conditions for the grant of an access %ermit incl#de the re>#irement that d#%licates are de%osited with 2+/A and that reasona!le access to the genetic reso#rces and their intangi!le com%onents shall !e g#aranteed to all 0enyan citiDens) whether s#ch genetic reso#rces are held a!road and locally.37 The reg#lations re>#ire that any access or ex%ort of genetic reso#rces !e %redicated on a material transfer agreement after %rior informed consent has !een granted. ': This agreement may s%ecify; Q The >#antities and >#ality of genetic reso#rcesE Q .e>#irement to inform com%etent national a#thority of all findings of research #sing the
35 +/(A) 33 The
*ection 34.
+nvironmental /anagement and (o6ordination B(onservation of $iological Diversity and .eso#rces) Access to <enetic
.eso#rces and $enefit *haringC .eg#lations) -::'.

3' +/(A) 3
*ection -.
l#id, *ection &:. *ection &&. *ection &'. *ection -&.
3" I#id, 37 I#id, ': I#id,
reso#rcesE Q <#arantee de%osit of d#%licates within a designated national de%ositoryE Q Prohi!ition of #na#thorised transfer of genetic reso#rces to third %artiesE .e>#irements on a%%lications for intellect#al %ro%erty rights with res%ect to research #sing the genetic reso#rcesE Q Fee to !e %aidE Q /ode of sharing of !enefitsE and
Q 2eed for %artici%ation !y nationals of co#ntries grating access in research and develo%ment activities relating to the reso#rces. The reg#lations also re>#ire !enefit6sharing as %art of the access %rocess. The !enefits antici%ated incl#de !oth monetary and non6monetary !enefits. These are detailed in *ection -4 and incl#de; Q Active involvement of 0enyan citiDens and instit#tions in the exec#tion of the activities #nder the %ermitE Q Access fees@fee %er sam%le collected or otherwise ac>#iredE Q U%6front %aymentsE Q /ilestone %aymentsE Q Payments of royaltiesE Q ,icense fees in case of commercialisationE Q *%ecial fees to !e %aid to tr#st f#nds s#%%orting conservation and s#staina!le #se of !iodiversityE Q *alaries and %referential terms where m#t#ally agreedE Q .esearch f#ndingE Q Goint vent#resE Q Goint ownershi% of relevant intellect#al %ro%ertyE Q *haring of research and develo%ment res#ltsE Q (olla!oration) co6o%eration and contri!#tion in scientific research and develo%ment %rogrammes) %artic#larly !iotechnological research activities where %ossi!le in 0enyaE Q Admittance to ex sit# facilities of genetic reso#rces and to data!ases !y %artici%ating instit#tionsE and Q Transfer to 0enya of genetic reso#rces of knowledge and technology #nder fair and most favo#ra!le terms) incl#ding concessional and %referential terms where agreed) in
%artic#lar) knowledge and technology that make #se of genetic reso#rces) incl#ding
!iotechnology) or that are relevant to the conservation and s#staina!le #tilisation of !iological diversity. Conclusion and 1a& Forward There has !een growing concern and awareness among research instit#tions and the government of the need for a national legal framework on access to genetic reso#rces to g#ide !io%ros%ecting and %re6em%t !io%iracy. Indeed) research activities have !een %erceived as a vehicle for ex%ro%riation of genetic reso#rces and their %rivatisation witho#t regard for the %#!lic interest of the rights of local comm#nities. 2+/A) thro#gh +/(A) has taken #% the challenge and %rovided an anchorage for this framework and gone even f#rther to %#t in %lace reg#lations to g#ide the %rocess. The effective im%lementation of these reg#lations is critical to systematic and co6ordinated access of 0enya8s genetic reso#rces. In this %rocess) it is im%ortant to !ring on !oard the instit#tions that have !een involved in access activities and to ens#re that there are internal instit#tional r#les that facilitate adherence to the reg#lations. For instance) instit#tions sho#ld !e re>#ired to instit#tionalise /TAs in their colla!orative research #ndertakings. In act#aliDing an access regime) it is also im%ortant to ens#re that re>#irements facilitate rather than hinder access to reso#rces for research. Instit#tional colla!oration is critical to an effective access regime. It facilitates exchange of information as well as ca%acity enhancement. 2+/A sho#ld) in co6ordinating access to genetic
reso#rces) also facilitate colla!oration !etween the instit#tions engaged in access activities and iss#es. Of essence to an effective A$* regime is the ca%acity to %olice !orders) where genetic reso#rces are trans%orted. This necessitates the !ringing on !oard of actors s#ch as c#stoms officials and %olice officers to ens#re that all access is %redicated on %rior informed consent) m#t#ally agreed terms and fair and e>#ita!le sharing of !enefits. There is also need to !#ild ca%acity to a#thenticate reso#rces originating from 0enya. This can !e done !y instit#ting !iodiversity registers and designating centres of excellence for research in genetic reso#rces) which can in t#rn contri!#te to !#ilding research ca%acity on genetic reso#rces in 0enya and contri!#te to ens#ring that as far as %ossi!le) val#e is added to these reso#rces witho#t trans%orting them to other co#ntries. In designing !enefit6sharing schemes) it is im%erative that the knowledge related to the reso#rces is recognised and %rotected. In this regard) the g#iding %rinci%le sho#ld !e the recognition that all forms of knowledge are e>#ally im%ortant for 0enya8s develo%ment and there is need for the co6existence of traditional knowledge and other forms of IP %rotection. /ore
s%ecifically) 2+/A needs to %#t in %lace a framework for %rotection of traditional knowledge related to genetic reso#rces as a &%i generi& system rather than !ringing it #nder existing intellect#al %ro%erty rights regimes. *#ch a regime o#ght to !e !ased on facilitation of exchange rather than on mono%oly rights. To ens#re that traditional knowledge is not a%%ro%riated !y %rivate entities and %rotected as IP.s) 2+/A sho#ld seek to have traditional knowledge excl#ded from %atenta!ility and a re>#irement that a certificate of origin and a certified statement !e s#!mitted that any knowledge and@or materials have !een o!tained with the %rior informed consent of their holders for any a%%lication of a %atent !ased on or making #se of traditional knowledge.
Chapter 1/
-en&a6s .ational Biosafet& Framework

(((((((((((((((((((((((((( Introduction
The #se of !iological reso#rces in technological endeavo#rs has res#lted in a vast array of !iotechnology %rod#cts. $iotechnology involves h#man mani%#lation of !iodiversity %rod#cts. It is defined as =any technological a%%lication that #ses !iological systems) living organisms) or
derivatives thereof) to make or modify %rod#cts or %rocesses for s%ecific #ses. & This has in t#rn raised the iss#e of safety of the environment and h#man health from the %rod#cts of !iotechnology. It is instr#ctive to note that the develo%ment of !iotechnology was a ma?or factor in the disc#ssions leading to the concl#sion of the Convention on Iiological 8iver&ity. The realisation that the !enefits of the technology need to !e weighed against the %otential risks to the environment and h#man health has led to the develo%ment of legal %rinci%les to g#ide the a%%lication of the technology. The technologies that have raised concern are those involving the a%%lication of genetic engineering techni>#es) d#!!ed modern !iotechnology. The c#rrent de!ate a!o#t the %otential risks and !enefits of !iotechnology has foc#sed on a cl#ster of concerns s#ch as food safety) threats to !iodiversity conservation and animal welfare.
The %otential effects of !iotechnology on food %rod#ction and environment are %erha%s the most controversial of all. Develo%ments in %lant and animal !iotechnology are already offering a range of choices for food %rod#ction and %rotection of the environment. For instance) !iotechnology has %rod#ced %lants with resistance to %ests and diseases. (oncerns a!o#t modern !iotechnology can only !e ela!orated and #nderstood in the wider context of %otential risks and !enefits.
isks and Benefits of )odern Biotechnolog&

It has !een arg#ed that modern !iotechnology has enormo#s %otential to enhance agric#lt#ral %rod#ctivity in develo%ing co#ntries with %ros%ects of red#cing food insec#rity and enhancing s#staina!le #se of nat#ral reso#rces. On the other hand) it may have %otential risks to %#!lic health and the environment) and there are societal and ethical as%ects that need to !e addressed. Potential !enefits that !iotechnology can offer incl#de the ca%acity to %rod#ce more foodE cro%s resistant to %ests and diseasesE cro%s with lowered in%#ts8 re>#irementE and food with high n#tritional content and resistance to adverse soil and weather conditions. $y raising %rod#ctivity in food %rod#ction) agric#lt#ral !iotechnology co#ld hel% f#rther red#ce the need to c#ltivate new lands and hel% conserve !iodiversity and %rotect fragile ecosystems. It is) however) feared that the #se of genetically modified B</C her!icide tolerant cro%s may lead to the emergence of weeds that can !e diffic#lt to control in agric#lt#re and grassland ecosystems. These may re>#ire a mix of her!icides to control) ca#sing more damage to !iodiversity. For the case of non6target %lants that have ac>#ired insect resistance from </ cro%s)
they co#ld damage food chains de%endent on insects feeding on %revio#sly non6toxic wild %lants. 1hen insect resistance and her!icide tolerance are com!ined in the same cro% variety) there may !e few insects ca%a!le of feeding on the cro%s and few inverte!rates and !irds wo#ld !e a!le to
& *ee
Article -) $iodiversity (onvention) .io de Ganeiro) 3 G#ne &77-) re%rinted in 4&&.,./. "&" B&77-C.
ex%loit the weed6free fields.In +#ro%e) massive decline in farmland !irds has !een ex%erienced) with several %revio#sly common s%ecies now close to extinction.4 Introd#ction of <enetically /odified Organisms B</OsC will also have adverse effects of eroding the genetic !ase. .e%lacement of local varieties !y genetically modified varieties and s%ecies will !e the main ca#se of erosion. As old varieties in farmers8 fields are re%laced !y newer ones) genetic erosion fre>#ently occ#rs !eca#se the genes and gene com%lexes fo#nd in the diverse farmers8 varieties are not contained in the modern variety.5 1hile genetically modified foods cannot excl#sively !e said to !e good or !ad for h#man health) there are concerns a!o#t allergenicity and toxicity that may !e occasioned !y the transfer of genes from one s%ecies to another. (haracteristics that ca#se allergic or toxic reactions may !e de%osited in the new %rod#ct with res#ltant health effects. </ foods) therefore) need to !e tested for allergy transfers and toxicity !efore they are commercialised. On another level) there are socio6economic risks attached to </Os) where!y more wealthy
farmers are !etter a!le to ca%t#re the !enefits of the new technologies !eca#se of their access to markets and factors of %rod#ction. Poor farmers are disadvantaged d#e to their lack of access to delivery systems) extension services) markets and infrastr#ct#re. There is) therefore) need to %#t in %lace mechanisms to ens#re that access to </ technologies is e>#ita!le. *rends in Biotechnolog& esearch (evelopment The coming into force of the $iosafety Protocol in -::4 charted o#t a new direction in the growth and develo%ment of modern !iotechnology. It came into force at a time when cro%lands with genetically modified cro%s were on the increase. *ignificantly) since the emergence of modern !iotechnology in the &7 :s) the n#m!er of actors involved in !iotechnology research and develo%ment B.KDC at !oth international and regional level has increased drastically. 3 The %ast two decades have witnessed increased investment in !iotechnology research and develo%ment. The n#m!er of %rivate com%anies involved in !iotechnology and other emerging technologies) s#ch as genomics) is high and increasing. The level of financial reso#rces channelled to
- <o%o
K 0ameri6/!ote M-::3N. M-:::N.
4 Gohnson 5 FAO
M&77"N. !iotechnology is defined as those advanced techni>#es and a%%lications that make #se of genetic engineering and
3 /odern
molec#lar !iology.
!iotechnology .KD initiatives has increased shar%ly and steadily in the recent years. U%s#rge
and %roliferation in the n#m!er of agencies involved in !iotechnology has taken %lace on two fronts. 2ew instit#tions and agencies have !een created s%ecifically to handle !iotechnology .KD. According to +rnst K Jo#ng) in &77 ) U* com%anies invested X7.5 !illion in .KD) em%loyed &5:)::: %eo%le and %osted total reven#es of X&" !illion. At the same time) there were &):4' +#ro%ean com%anies working in the life sciences) em%loying more than 47)::: %eo%le directly) with reven#es of X4.& !illion and X-.- !illion invested in .KD. ' The main co#ntries growing </ cro%s are the United *tates B5-." million hectaresC) Argentina B&4.7 million hectaresC) (anada B5.5 million hectaresC) $raDil B4.: hectaresC) and (hina B-." million hectaresC. These five co#ntries acco#nted for HA.@ million hectares of </ varieties of maiDe) soy!eans) cotton and canola in -::4@:5 BTa!le &C. Among the five co#ntries) '4 %er cent are %lanted in the United *tates) -& %er cent in Argentina) ' %er cent in (anada) and 5 %er cent each in $raDil and (hina. U*A remains the !iggest %rod#cer of </ cro%s) with an acreage of 5 .' million hectares." The rest of the world acco#nts for only - %er cent of the total area </ cro%land. Develo%ing co#ntries are also entering the fray of </ cro%s and in -::5) 43 %er cent of the total acreage of </ was grown o#tside ind#strialised co#ntries and && develo%ing co#ntries grew commercial or %recommercial </ cro%s. These co#ntries incl#de (hina) India) (olom!ia) *o#th Africa) Parag#ay) Indonesia) Ur#g#ay) and Phili%%ines.7 Table 7C,7: Global b%ote!& ! o( a ea: Lea*%n$ !o+nt %es
Area in !iotech cro% %rod#ction Bmillion hectaresC *hare of world !iotech
area BRC
Five leading co#ntries Total ' .3 7" $iotech cro% varieties United *tates Argentina (anada $raDil (hina 5-." &4.7 5.5 4.: -." '4 -& ' 5 5 /aiDe) cotton) soy) canola *oy) maiDe) cotton (anola) maiDe) soy *oy (otton -o%rce: Kame& L'((0M
' +rnest
K Jo#ng M&77"N.
.#nge M-::5N.
" Games 7 I#id.
M-::4N.
Table 7C,6: S%2t'1t& ee !o+nt %es -%t& b%ote!& ( o*+!t%on o

Af %!a@M%*1East As%a@Pa!%f%! Lat%n A#e %!a Weste n E+ o(e Easte n E+ o(e +gy%t A#stralia Argentina A#stria Armenia 0enya $angladesh $eliDe $elgi#m $osnia 9erDegovina /orocco (hina $olivia Denmark $#lgaria *o#th Africa India $raDil Finland (roatia T#nisia Indonesia (hile France (Dech .e%#!lic Him!a!we Ga%an (olom!ia <ermany <eorgia B'C /alaysia (osta .ica <reece 9#ngary 2ew Healand (#!a Ireland /oldova Pakistan <#atemala Italy .omania Phili%%ines 9ond#ras 2etherlands .#ssia *o#th 0orea /exico Port#gal *er!ia@ /ontenegro Thailand Parag#ay *%ain *lovenia 2orth America B&-C Per# *weden Ukraine (anada Ur#g#ay *witDerland B&4C United *tates FeneD#ela United 0ingdom B-C B&3C B&3C
esea !& a!t%)%t'
-o%rce: 9%nge L'((?M Fo#r main cro%s have dominated </ activity aro#nd the world) acco#nting for 7" %er cent of the total &5: million hectares of </ cro%land worldwide. &: These are maiDe) cotton) soy!ean and oilseed ra%e. In the United *tates) ado%tion of </ varieties is led in area !y corn and soy!eans) followed !y cotton and canola. In Argentina) corn) soy!eans and cotton lead) while canola is the lead </ cro% in (anada. $raDil8s main </ cro% is soy!eans Bthe area %lanted with </ varieties in $raDil is widely !elieved to !e #nderestimatedC. In (hina) the only re%orted acreage is </ cotton.&&
&: .#nge && I#id.
M-::5&N.
In this cha%ter) we look at the 0enyan laws and %olicies dealing with !iosafety) or the reg#latory mechanisms %#t in %lace for genetic modification seeking to !alance technological !enefits with a%%ro%riate environmental and h#man health safeg#ards. International Legal T&e .%osafet' P oto!ol $iosafety is essentially a com%lex of the reg#latory mechanisms %#t in %lace for genetic modification seeking to !alance technological !enefits with a%%ro%riate environmental and h#man health safeg#ards. It seeks to ens#re the safe handling) transfer and #se of genetically modified organisms and to g#arantee these thro#gh the sanction of law. &- The need for an international regime to %rovide these safeg#ards was #nderscored d#ring the negotiations of the Convention on Iiological 8iver&ity, carried o#t within the aegis of the United 2ations +nvironment Programme BU2+PC) which was mandated !y the United 2ations <eneral egime for Biosafet&
Assem!ly to work o#t a via!le sol#tion to the contin#ed erosion of !iodiversity in the world. The ($D was %#t in %lace in &77- with three main o!?ectives; conservation of !iodiversity) s#staina!le #se of genetic reso#rces) and fair and e>#ita!le sharing of the !enefits arising from the #se of the reso#rces. Under Articles " and &7 of the ($D) Parties are re>#ired to maintain) among other things) the means to reg#late) control and manage risks associated with the #se and release of ,iving /odified Organisms B,/OsC res#lting from !iotechnology. &4 $ased on these %rovisions) the management of environmental im%acts on the conservation and s#staina!le #se of !iological diversity) incl#ding risk to h#man health is a ma?or concern of !iosafety and the reason for !eing of the Protocol. Article &7 of the ($D is the !asis #%on which negotiations for the $iosafety Protocol were initiated. (ontrary to s#ggestions that the negotiation %rocess of the Protocol started in &77') Feit 0oester) the %erson hailed as 8the father of the Protocol8 contends that the %rocess !egan way !ack in &77& at the %rom#lgation of the ($D.&5 The advance informed agreement BAIAC %roced#re Bwhich is central to !iosafetyC is envisaged !y the ($D at Article &7.4) which %rovides;
Bhe artie& &hall con&ider the need ,or and modalitie& o, a protocol &etting o%t appropriate proced%re&, incl%ding, in partic%lar, advance in,ormed agreement, in the ,ield o, the &a,e
&- -ee
/ackenDie et al M-::4;&&N. Articles "BgC K &7. M-::'; 'N.
&4 ($D)
&5 0oester
Internal Teaching Use Only 5": tran&,er, handling and %&e o, any living modi,ied organi&m re&%lting ,rom #iotechnology that may have e,,ect on the con&ervation and &%&taina#le %&e o, #iological diver&ityP G@
The AIA %roced#re ena!les co#ntries im%orting ,/Os to #ndertake risk assessments for all initial shi%ments of ,/Os into their co#ntries.&' This %rinci%le) co#%led with the %reca#tionary a%%roach) allows co#ntries to ref#se im%ortation of ,/Os whose safety is #ncertain d#e to ins#fficient scientific evidence. The !ack!one of the decision6making %rocess is the #ndertaking of risk assessments. To facilitate this %roced#re) a clearing ho#se mechanism is esta!lished #nder Article -: of the Protocol and ca%acity !#ilding %rovisions in Article -4 of the Protocol are incor%orated) re%resenting im%ortant re>#irements for the Protocol8s im%lementation. The #n%redicta!ility of the im%acts of !iotechnology and the inade>#acy of science to %redict adverse im%acts significantly infl#enced develo%ing co#ntry views in the develo%ment of the $iosafety Protocol.& /any of them were a%%rehensive that !iotechnology and s%ecifically ,/Os) will adversely affect their !iodiversity. It is) therefore) not s#r%rising that the %reca#tionary %rinci%le is the cornerstone of the $iosafety Protocol and is ingrained in many national reg#latory systems. The #%shot of the %reca#tionary %rinci%le is that =#ncertainty regarding serio#s %otential environmental harm is not a valid gro#nd for refraining from %reventive meas#res= .&" In another en#nciation of the %rinci%le) it is stated that =where there are threats of serio#s or irreversi!le damage) lack of f#ll scientific certainty shall not !e #sed as a reason for %ost%oning cost6effective meas#res to %revent environmental degradation=. &7 This is enshrined in Princi%le &3 of the .io Declaration) which is referred to in the Pream!le and Article & of the Protocol. In !road %arlance) the %rinci%le ena!les an action whose negative im%acts are not yet known in science with the re>#irement that %reventive meas#res !e %#t in %lace to mitigate s#ch negative im%acts. (o#rts have also made an attem%t at defining this %rinci%le. In the case of
Leatch v 1ational ark& and /ildli,e -ervice and -hoalhaven City Co%ncil '( *tein) G. defined the %reca#tionary %rinci%le in the dicta th#s; . ..in my opinion the preca%tionary principle i& a &tatement o, common &en&e.. .It i&
&3 +m%hasis &' As
added to #nderscore the relevance of the AIA %rinci%le on which the !iosafety regime sho#ld !e fo#nded.
disc#ssed !elow) it is %ossi!le for a Party to re>#ire that !oth first and s#!se>#ent im%orts of s#!?ected to the AIA
%roced#re.
&
*eeAh#?aM-::-N. /ackenDie et al M-::4N. Princi%le &3) U2(+D) Final Declaration of the U2 (onference on +nvironment and Develo%ment) .io de Kaneiro
&" *ee &7 *ee
LGDD'M.
-: )GLGE9$'A(.
directed to2%ard& the prevention o, &erio%& or irrever&i#le harm to the nvironment in &it%ation& o, &cienti,ic %ncertainty. It& premi&e i& that where %ncertainty or ignorance e<i&t& concerning the nat%re or &cope o, environmental harm whether thi& ,ollow& ,rom policie& or deci&ion& or activitie&, deci&ion maker& &ho%ld #e ca%tio%&. From the a!ove definitions) it is clear that the %rinci%le is to !e a%%lied when there is a threat of harm and scientific #ncertainty. It has) however) !een criticiDed on gro#nds of scientific am!ig#ity and %erceived of as a %essimistic res%onse to #ncertainty and ga%s in reg#latory risk assessment knowledge.-& There is as yet no statement on the exact %arameters of 8serio#s8) 8irreversi!le8 and 8f#ll scientific certainty8. -- The %rinci%le) however) gives *tates %arties to the %rotocol latit#de in designing their !iotechnology and !iosafety laws and %olicies to !e restrictive or %ermissive in allowing those activities to !e carried o#t. -4 In instances where a restrictive a%%roach is taken and a co#ntry re?ects an a%%lication for introd#ction or #se of an ,/O) the *tate %arty may !e in violation of the free trade r#les and co#ld !e taken to the 1orld Trade Organisation Dis%#te *ettlement !ody for a determination as to whether the r#les constit#te trade !arriers. 0enya) like many other African co#ntries) is a %arty to !oth the ($D and the $iosafety Protocol B*ee Ta!le 5C.
Table 7C,8: So+t&e n an* Easte n Af %!an !o+nt %esE #e#be s&%( to t&e C.D an* CP.
Convention on 9iological 7iversity Cartagena Protocol on 9iosafety Co+nt ' S%$ne* Pa t'7 S%$ne* Rat%f%!at%on Pa t' An$ola &-@:'@7- :&@:5@7" .ots-ana :"@:'@7- &-@&:@73 :&@:'@:& &&@:'@:- &&@:7@:4 .+ +n*% &&@:'@7- &3@:5@7 E %t ea -&@:4@7' &:@:4@:3 :"@:'@:3 Et&%o(%a &:@:'@7- :3@:5@75 -5@:3@:: :7@&:@:4 : @:&@:5 Ken'a &&@:'@7- -'@: @75 &3@:3@:: -5@:&@:- &&@:7@:4 Lesot&o &&@:'@7- &:@:&@73 -:@:7@:& &&@:7@:4 Ma*a$as!a :"@:'@7- :5@:4@7' &5@:7@:: -5@&&@:4 --@:-@:5
-& *ee
/orris M-::-N.
-- I#id. -4 *ee
Paarl!erg M-::&N.
Internal Teaching Use Only 5"Mala-% &:@:'@7- :-@:-@75 -5@:3@:: Ma+ %t%+s &:@:'@7- :5@:7@7- &&@:5@:- &&@:7@:4 Mo5a#b%A+e &-@:'@7- -3@:"@73 -5@:3@:: -&@&:@:- &&@:7@:4 Na#%b%a &-@:'@7- &'@:3@7 -5@:3@:: &:@:-@:3 &&@:3@:3 R-an*a &:@:'@7- -7@:3@7' -5@:3@:: --@: @:5 -:@&:@:5 Se'!&elles &:@:'@7- --@:7@7- -4@:&@:& &4@:3@:5 &&@:"@:5 So+t& Af %!a :5@:'@74 :-@&&@73 &5@:"@:4 &-@&&@:4 S-a5%lan* &-@:'@7- :7@&&@75 &4@:&@:' &4@:5@:' U$an*a &-@:'@7- :"@:7@74 -5@:3@:: 4:@&&@:& &&@:7@:4 Re(+bl%! of Tan5an%a &-@:'@7- :"@:4@7' -5@:5@:4 &&@:7@:4 Fa#b%a &&@:'@7- -"@:3@74 - @:5@:5 -3@: @:5 F%#bab-e &-@:'@7- &&@&&@75 :5@:'@:& -3@:-@:3 -'@:3@:3
-o%rce: Convention on Iiological 8iver&ity http:>>wwiv.#iodiv.org>world>partie&.a&p 5acce&&ed on 0G&t $%g%&t '((H7. Ma%n eA+% e#ents of t&e ( oto!ol *is/ assessment The main re>#irements of the Protocol foc#s on risk assessment) risk management and risk comm#nication. .isk assessment can !e defined as the identification of %otential
environmental adverse effects or haDards) and determining when a haDard is identified the %ro!a!ility of it occ#rring. Article &' of the Protocol mentions the need to esta!lish a%%ro%riate mechanisms to reg#late) manage and control risks associated with </Os. The ecological risks %olicy makers and reg#lators need to assess incl#de the %otential for s%read of traits s#ch as her!icide resistance from genetically im%roved %lants to #nmodified %lants Bincl#ding weedsC) the !#ild #% of resistance in insect %o%#lations) and the %otential threat to !iodiversity %osed !y wides%read monoc#lt#re of genetically im%roved cro%s. -5 .isk management) on the other hand) refers to the methods a%%lied to minimise %otential haDards or adverse effects) which have !een identified d#ring a scientifically !ased risk assessment. There are different ways of managing haDards or adverse effects identified in a risk assessment. These incl#de; confinement) restricted #se) %rovision of g#idance) technical s#%%ort and advice and record kee%ing. -3 Tho#gh risk
-5 O+(D -3 O+(D
M&774N. M&7"'N.
assessment and management are re>#ired #nder the Protocol) there are exem%tions to these r#les. The Protocol %rovides for the exem%tion of certain %harmace#ticals -' from its sco%e) ex%licitly stating that this %rovision is 8witho#t %re?#dice to the right of a Party to s#!?ect all living modified organisms to risk assessment %rior to the making of decisions on im%ort...8 - Along similar lines) Article ' ex%licitly exem%ts ,/Os in transit and those destined for contained #se from AIA %roced#re. Parties are also given leeway to reg#late the trans%ort of ,/Os thro#gh their territory and to #ndertake risk assessments %rior to making decisions on im%orting ,/Os destined for contained #se. This incl#des the right of the im%orting %arty to set standards for contained #se within its ?#risdiction. For instance) 0enya and Him!a!we are each ex%erimenting with ,/Os and have %#t in %lace standards for contained #se. Obligation of e=porters Article only to initial trans!o#ndary movements and not to s#!se>#ent movements of ,/Os. This %rovision is also s#!?ect to the right of a %arty to re>#ire all ,/O movements to #ndergo the AIA Proced#re.-" 9owever) Article %rovides exem%tions for im%ortation of ,/Os intended for #se as food or feed) or for %rocessing witho#t AIA %roced#res !eing followed. -7 Under Article ") the ex%orting %arty m#st notify or re>#ire the ex%orter to notify the im%orting %arty of the initial of the Protocol foc#ses on the a%%lication of the AIA %roced#re. Article .& refers
shi%ment of ,/Os to !e im%orted. The ex%orter is res%onsi!le for acc#racy of information in notification. To realise this goal) the ex%orting %arty is re>#ired to take necessary and a%%ro%riate legal meas#res to im%lement this o!ligation.4: Obligation of importers Article &4 of the Protocol %rovides for a sim%lified %roced#re of notification of im%orts of ,/Os. This sim%lified %roced#re allows *tates to ex%ort ,/Os witho#t a written %ermit) if the im%orting %arty consents. In effect) this system corrodes the AIA %roced#re as it alienates f#rther
-' The
exem%tion covers the trans!o#ndary movement of ,/Os) which are %harmace#ticals for h#mans and are reg#lated !y
other international regimes.

-
Article 3 of the (artagena Protocol. read together with Articles 3 and ' of the (artagena Protocol. %roced#res of ,/Os intended for #se as food or feed) or for %rocessing are made #nder Article && of the (artagena
-" Article -7 *%ecial
Protocol. These sim%ly re>#ire notification to %arties thro#gh the $iosafety (learing 9o#se. The end res#lt is essentially to lay res%onsi!ility on im%orters to reg#late and comm#nicate that reg#lation to the %arty of ex%ort. For f#rther details on this %oint) see (ros!y and $#rial M-:::N.
4: Protocol)
Article ".-. (f. Art. &&.-.
o%%ort#nities to check acc#racy of decisions. Article &:B4C BaC of the Protocol en?oins %arties to inform ex%orters on how they intend to deal with s#!se>#ent im%orts. The time extension for decision6making #nder the AIA %roced#re shall !e fixed !y the im%orting %arty. 4& The reasons for disa%%roval of im%ort are re>#ired to !e given !y the wo#ld6have6!een im%orting %arty. 4Article &- of the Protocol allows ex%orters to re>#est a review of decisions not to im%ort ,/Os. Im%orting %arties m#st !e a!le to res%ond to this re>#est within 7: days. (onsidering
Africa8s im%lementation in light of limitations in ca%acity) it wo#ld re>#ire great efficiency in the flow of information es%ecially from a $iosafety (learing 9o#se B$(9C to make informed decisions. The $(9 is the mechanism set o#t !y the Protocol to facilitate the exchange of scientific) technical) environmental and legal information on and ex%erience with ,/Os) and th#s assist %arties in im%lementing the Protocol. Article &7 of the Protocol on ca%acity !#ilding is designed to address some of these needs. 2ational ca%acity !#ilding is one of the critical tools in im%lementing AIA %roced#res. Technical assistance and training) however) are not always forthcoming des%ite the fact that s#ch commitments are increasingly !eing incl#ded in international legal instr#ments. Articles &7 and -: make %rovisions for technical assistance in the Protocol8s im%lementation to develo%ing co#ntries. The <lo!al +nvironment Facility has also %#t in %lace mechanisms to assist co#ntries in meeting their o!ligations #nder the Protocol. 44 The Protocol %rovides that a %arty can re>#ire the ex%orter to carry o#t and !ear the costs of a risk assessment BArticle &3.4C. <iven that most African co#ntries lack the ca%acity to #ndertake risk assessments) one can foresee sit#ations where!y these co#ntries are likely to rely on ex%orters8 assessments. Three ma?or iss#es arise from s#ch scenarios. Fir&t, co#ntries that rely on ex%orters to do the assessments will almost never develo% their own ca%acity in that area. -econd, the assessment may not !e so#nd if the ex%orter Bwho has an interest in the assessmentC not only selects !#t also %ays the assessor. Bhird, handling lia!ility and redress !ecomes %ro!lematic
where the ex%orter8s assessment is formed on the !asis of the im%orting co#ntry. 45 Any litigation wo#ld take %lace in the ex%orting co#ntry inviting %ro!lems related to inter%retation and #nd#e %ress#re on weaker %arties. Altho#gh the sco%e of the AIA %roced#re is limited !y the Protocol8s list of exem%tions) co#ntries may still reg#late the ,/Os contained in the exem%tions. 43
4& I#id 4- I#id
at Article &:B4C BdC. at Article &:B5C. -" of the Protocol makes %rovision for financial mechanisms. M-:::N.
44 Article
45 /#ga!e 43 Five
ty%es of ,/Os are exem%ted from AIA. They incl#de most %harmace#ticals) ,/Os in transit) ,/Os for contained #se)
,/Os for direct #se as feed) food or %rocessing) and ,/Os declared !y the Parties.
.rticle %:> Liability and redress ,ia!ility and redress was a rec#rrent theme in the negotiation of the (artagena Protocol on $iosafety to the ($D. 2egotiators were #na!le to reach consens#s on details of a lia!ility regime #nder the Protocol. An ena!ling cla#se incl#ded in the Protocol at Article - states; the con,erence o, partie& &erving a& the meeting o, the partie& to thi& rotocol &hall, at it& ,ir&t meeting, adopt a proce&& with re&pect to the appropriate ela#oration o, international r%le& and proced%re& in the ,ield o, lia#ility and redre&& ,or damage re&%lting ,rom tran&#o%ndary movement& o, living modi,ied organi&m&, analy2ing and taking d%e acco%nt o, ongoing proce&&e& in international law on the&e matter&, and &hall endeavo%r to complete thi& proce&& within ,o%r year&. ,ia!ility and redress was one of the iss#es addressed !y the Inter6governmental (ommittee for the (artagena Protocol on $iosafety BI((PC in accordance with the work %lan of Intergovernmental
(ommittee for the (artagena Protocol BI((PC ado%ted !y the (onference of the Parties B(OPC to the ($D at its fifth meeting BDecision F@l) annex) section $) item &C. I((P was re>#ested to ela!orate =a draft recommendation on the %rocess for ela!oration of international r#les and %roced#res in the field of lia!ility and redress for damage res#lting from trans!o#ndary movements of ,/Os) incl#ding inter alia BaC review of existing and relevant instr#mentsE and B!C identification of elements for lia!ility and redress.= At its second meeting) I((P considered a review of existing relevant instr#ments and identification of elements %rovided !y the secretariat and re>#ested governments and organisations to s#!mit f#rther information on national) regional and international meas#res and agreements in the field of lia!ility and redress for damage res#lting from trans!o#ndary movements of ,/Os. The %rocess of devising a lia!ility and redress regime is still ongoing and will inform 0enya8s legal framework. 4' Re$%onal A(( oa!& to .%osafet' <enerally) most co#ntries in Africa are at vario#s stages of form#lating %olicies and legislative frameworks for governing </Os. There are several regional !iotechnology@!iosafety initiatives with the o!?ectives of %romoting the safe a%%lication of science and technology) which have
4' 0ameri6/!ote
M-::5N.
significantly !een infl#enced !y the develo%ment of 0enya8s national !iosafety framework and !iotechnology. It is) therefore) im%ortant to highlight some of these initiatives. At the +ast African (omm#nity level) for instance) the +ast African (omm#nity (o#ncil of /inisters
a%%roved +nvironmental Assessme.Fc <#idelines for Trans!o#ndary %ro?ects in -::5. These will have im%lications for !iosafety in the region once they are o%erationalised.
Table 7C,<: T&e stat+s of b%osafet' e$+lat%on %n Easte n Af %!an !o+nt %es
Co+nt ' F a#e-o /G G+%*el%nes GM le$%slat%on $#r#ndi Jes No 2o D... (ongo Jes No Draft +ritrea Jes No 2o +thio%ia Jes No Draft %olicy 0enya Jes Jes Draft law /adagascar Jes No Draft %olicy .wanda Jes Jes Draft $ill *#dan Jes No Draft TanDania Jes Jes T+/AAct Uganda Jes Jes Draft law
-o%rce: "%goya L'((HM, Iiotechnology policie& and approache& in Ea&tern $,rica. re&entation made d%ring the Ea&tern $,rican 8ialog%e on olicy!making on Iiotechnology, Brade and -%&taina#le 8evelopment. G?!GA Fe#r%ary '((H, Kin3a, Eganda Af %!an Mo*el La- on Safet' %n .%ote!&nolo$' The African Union ado%ted a /odel ,aw on *afety in $iotechnology in -::&. 4 The /odel law %oints o#t that while modern !iotechnology might have m#ch %romise for the im%rovement of h#man well6!eing) its %otential adverse effects on the environment) !iological diversity and h#man health are a ca#se for concern and that governments have the res%onsi!ility to ens#re the safety of the %eo%le and the environment with res%ect to the risks arising from </Os and
%rod#cts of </Os res#lting from modern !iotechnology. The /odel law a%%lies to the im%ort) ex%ort) transit) contained #se) release or %lacing on the
4
;http:>>2oww",rica#io<om>polide&"O8ILX'(L$/X'(O1X'(IIO-$FEBQK,.htm= accessed on -& /ay -:: .
market of any </O) whether intended for release into the environment) for #se as a %harmace#tical) for food) feed or %rocessing or a %rod#ct of a </O. It %ro%oses the esta!lishment of national instit#tions for the im%lementation of the law) namely the 2ational Focal Point Bto !e res%onsi!le for liaison with the *ecretariat of the (artagena Protocol on $iosafety B(P$C and clearing6ho#se and facilitate the exchange of information among the relevant !odies and a#thoritiesCE the (om%etent A#thority Bto follow #%) s#%ervise and control the im%lementation of the /odel lawCE the 2ational $iosafety (ommittees B2$(C com%rising re%resentatives of governmental and non6governmental organisations) and the %rivate sector relevant to the iss#es of !iotechnology and !iosafety Bto %rovide %olicy recommendations and g#idelines to the (om%etent A#thorityCE and Instit#tional $iosafety (ommittees within instit#tions involved in the im%ort) ex%ort) handling) contained #se) release or %lacing on the market of </Os or %rod#cts of </Os to instit#te and control safety mechanisms and a%%roval %roced#res at the instit#tion level. The /odel law also contains %rovisions on decision6making %roced#res on ,/Os re>#iring risk assessment and managementE %#!lic %artici%ation in decision6makingE clear la!elling and identification of </Os and their characteristicsE strict lia!ility for harm occasioned !y im%ortation) contained #se of) release or %lacement on the market of a </O or a %rod#ct of a </OE and %enalties for violations of the %rovisions of the law. It is im%ortant to %oint o#t that the %rovisions of the /odel law have informed the a%%roach of many African co#ntries towards !iosafety. For instance) a %ro%osed 0enya ,egal Framework for *afety in $iotechnology in &777 ado%ted the /odel law8s %rovisions on lia!ility and redress) incl#ding strict lia!ility) %rovisions for costs of reinstatement) reha!ilitation or clean6#% and
%reventive meas#res inc#rred. This a%%roach was infl#enced !y the environmental lawyers in the gro#%. The more recent initiative) the draft </O !ill) which was generated !y a gro#% com%rising more scientists than lawyers) %rovides that =lia!ility and redress for any damage that occ#rs) as a res#lt of activities s#!?ect to this Act shall !e addressed !y a%%lica!le laws=.4" *imilarly) many African co#ntries8 %ositions on identification and la!eling are infl#enced !y Article && of the /odel law) which %rovides that; &. Any genetically modified organism or %rod#ct of a genetically modified organism shall !e clearly identified and la!elled as s#ch) and the identification shall s%ecify the relevant traits and characteristics given in s#fficient detail for %#r%oses of tracea!ility. -. Any genetically modified organism or any %rod#ct of a genetically modified organism shall !e clearly la!elled and %ackaged #sing the words given in annex II %art () and shall com%ly with s#ch f#rther re>#irements) if any) im%osed !y the (om%etent A#thority) to
4" *ee
Draft $iosafety $ill *e%tem!er -::3) section 5-.
indicate that it is) or has !een derived from) a genetically modified organism) and where a%%lica!le) whether it may ca#se allergies or %ose other risks. The /odel law is in the %rocess of !eing revised to tally with the %rovisions of the (artagena Protocol and to reflect the develo%ments in legal reg#lation of !iotechnology among Africa co#ntries. It is im%ortant to note) in this regard) that the African Union BAUC) at an +xtraordinary /eeting of the African /inisterial (o#ncil for *cience and Technology in (airo in 2ovem!er -::'47 noted that science and technology were critical elements in the >#est for national develo%ment. Im%licit in this recognition is the need to %#t in %lace mechanisms to ens#re safety in !iotechnology. This has !een taken #% in the African Union (ommission W<erman Federal
/inistry for +conomic (oo%eration and Develo%ment BAU(6$/HC Africa6wide $iosafety (a%acity6$#ilding Pro?ect. The o!?ectives of this initiative incl#de develo%ment of an AU *trategy to im%lement the %rovisions of the (artagena Protocol on $iosafety and the African /odel ,aw on *afety in $iotechnology) its a%%lication at national and regional levels) and the maintenance of a network of contin#o#s information exchange !etween the AU $iosafety Unit and the 2ational Focal Points of the (artagena Protocol on $iosafety. Un%te* Nat%ons En)% on#ent P o$ a##e Global En)% on#ent Fa!%l%t' The United 2ations +nvironment Programme <lo!al +nvironment Facility BU2+P6<+FC has im%acted significantly on the develo%ment of national !iosafety frameworks B2$FsC in African co#ntries thro#gh the %rovision of re>#isite f#nding. They also have follow #% mechanisms for %artici%ating co#ntries to ens#re that whatever a%%roach they take Bdevelo%ing new legislation) #sing existing legislation or %rom#lgating reg#lations to ado%t existing legislationC) mechanisms are %#t in %lace for the safe handling of </Os. 2$Fs are defined as a com!ination of %olicy) legal) administrative and technical instr#ments set in %lace to address safety for the environment and h#man health in the context of modern !iotechnology. These frameworks foc#s on living modified organisms and vary from co#ntry to co#ntry. Des%ite these variations) there are certain similar elements in the vario#s 2ational $iosafety Frameworks B2$FsC #nder the U2+P6<+F %ro?ect. These are; Q Policy on !iosafety Q ,egal@reg#latory system Q Administrative system to handle re>#ests for %ermits. This system incl#des risk assessment and management %roced#res to hel% in decision6making
47 +xtraordinary (onference
of the African /inisterial (o#ncil on *cience and Technology BA/(O*TC) -46-5 2ovem!er -::')
(airo) +gy%t. +OT@AU@+OP@*T@Decl@&4BIIC .ev. &
Q /echanism for monitoring and ins%ection Q *ystem to %rovide information to stakeholders a!o#t 2ational $iosafety Frameworks and for %#!lic %artici%ation Ten B&:C African co#ntries %artici%ated in the %ilot %hase of U2+P6<+F %ro?ect) which !egan in &77 . These are (ameroon) +gy%t) 0enya) /alawi) /a#ritania) /a#riti#s) 2ami!ia) T#nisia) Uganda) and Ham!ia. They generated draft frameworks for !iosafety. 0enya has #sed the draft reg#lations and g#idelines develo%ed d#ring the %ilot %hase to consider a%%lications for im%ortation) contained #se and field trials of ,/Os. As a follow6#% to the %ilot %hase) the U2+P6<+F glo!al %ro?ect on the develo%ment of 2$Fs !egan in G#ne -::&. This was a three6year %ro?ect aimed at assisting #% to &:: co#ntries in develo%ing 2$Fs so that they can com%ly with the (P$. Using a co#ntry6driven %rocess) the glo!al %ro?ect was to hel% each %artici%ating co#ntry to set #% a framework for management of ,/Os at the national level. The %ro?ect was also ex%ected to %romote regional and s#!6 regional co6o%eration on !iosafety and exchange of ex%erience on iss#es of relevance to the 2ational $iosafety Frameworks. This was ex%ected to facilitate efficient #se of financial and h#man reso#rces) esta!lish regional and s#!6regional networks) and %romote harmonisation of risk assessment %roced#res and reg#latory instr#ments. The U2+P6<+F office at U2+P was ex%ected to %rovide advice and s#%%ort to co#ntries thro#gho#t the develo%ment of their 2$Fs. At the national level) U2+P6<+F %ro?ects are im%lemented %rimarily thro#gh national focal %oints in the relevant ministries. These have !een ministries of +nvironment) *cience and
TechnologyE FinanceE and office of the President in different co#ntries. /any African co#ntries are c#rrently develo%ing their 2$Fs with the assistance of U2+P6<+F. These incl#de Algeria) Angola) $enin) $otswana) $#rkina Faso) $#r#ndi) (entral Africa .e%#!lic) (a%e Ferde) (ongo) (omoros) (ote DTvoire) D. (ongo) D?i!o#ti) +thio%ia) +ritrea) <a!on) <am!ia) <hana) <#inea) <#inea $issa#) ,esotho) ,i!ya) ,i!eria) /adagascar) /ali) /orocco) /oDam!i>#e) 2iger) 2igeria) .wanda) *enegal) *eychelles) *ierra ,eone) *o#th Africa) *#dan) *waDiland) TanDania) Togo) and Him!a!we. *ome co#ntries have moved to the stage of im%lementing their 2$Fs. These incl#de co#ntries that %artici%ated in the %ilot %hase B0enya) 2ami!ia) Uganda) and (ameroonC and co#ntries that have develo%ed </O work) develo%ed their 2$F inde%endently and need to align their existing laws to the (artagena Protocol on $iosafety. U2+P6<+F has significantly infl#enced the develo%ment of 2$Fs in the region. Indeed) for many co#ntries) 2$Fs wo#ld have develo%ed at a m#ch slower %ace witho#t U2+P6<+F f#nding. This has two im%lications. On the one hand) co#ntries may have engaged in 2$F form#lation in the a!sence of meaningf#l </O activities and in the a!sence of a felt national need for s#ch frameworks. On the other hand) U2+P6<+F assisted co#ntries to develo% a
framework that was needed !#t for which there were no reso#rces availa!le. USAID P o$ a##e fo .%osafet' S'ste#s In /ay -::4) the U* Agency for International Develo%ment decided to award a s#m of U*X &5."
million to International *ervice for 2ational Agric#lt#re .esearch BI*2A.C to im%lement the five6year Programme for $iosafety *ystems BP$*C. P$*8 work is !ased on the framework for !iosafety im%lementation that I*2A. and I*2A.@Intermediary $iotechnology *ervice BI$*C team develo%ed over the last years thro#gh its work in +gy%t) Argentina) 0enya and other co#ntries. The goal of P$* is to =more effectively address !iosafety within a s#staina!le develo%ment strategy) anchored !y agric#lt#re6led economic growth) trade and environment o!?ectives.= .es%onding to this goal) activities are gro#%ed into fo#r com%onents of %olicy develo%ment@ new modelsE risk assessmentE facilitating reg#latory a%%rovalE and skills@ strategies for comm#nication) %#!lic o#treach and ca%acity !#ilding. The systems a%%roach to !iosafety is ex%ected to evolve thro#gh (o#ntry and .egional Advisory <ro#%s) targeting %olicy develo%ment thro#gh 2ational $iosafety (ommittees and national@regional %olicy6making !odies. The s%ecific o!?ectives of P$* are to assist %artici%ating co#ntries to; Q +sta!lish 2ational $iosafety (ommittee secretariat) e>#i% its office) and enhance information flow among its mem!ers Q <ain advanced training for handling reg#latory a%%lication dossiers B%ackagesC for 2$( mem!ers) relevant 0enyan agencies and other stakeholders Q 9armonise !iosafety reg#latory roles) s#%%ort %olicy analysis) and identify actions or %olicies to gain efficiencies Develo% mechanisms for %#!lic information and %artici%ation in !iosafety %rocesses Q Develo% general ca%acity !#ilding for !iosafety A n#m!er of African co#ntries incl#ding Ham!ia) /alawi) 0enya) Uganda and 2ami!ia are %artici%ating or have a%%lied to %artici%ate in this initiative. It is im%ortant to %oint o#t that while this initiative is ex%ected to !#ild on what has !een achieved #nder U2+P6<+F) this o!?ective may !e diffic#lt to achieve in the a!sence of on6going activities that s%#r national legislative initiatives to f#rther develo% thro#gh learning and #se. Asso!%at%on fo St en$t&en%n$ A$ %!+lt+ al Resea !& %n Easte n an* Cent al Af %!a
3ASARECA4 A*A.+(A is a non6%rofit) non6%olitical s#!6regional organisation for the 2ational Agric#lt#ral
.esearch *ystems B2A.*C in ten +astern and (entral African co#ntries. A (ommittee of Directors oversees its activities and %rovides %olicy g#idance) governs A*A.+(A and maintains a secretariat that services the (ommittee of Directors) the regional networks) %rogrammes and %ro?ects. The (ommittee of Directors esta!lished a working gro#% to review) analyDe and develo% a %otential %rogramme for !iotechnology and !iosafety) addressing the needs of the s#!6region. The working gro#% is com%osed of ten mem!ers Bone from each A*A.+(A mem!er co#ntryC) and is s#%%orted !y a (o6ordinator and the A*A.+(A secretariat. The working gro#% was asked to cond#ct a !roader dialog#e among stakeholdersE identify the ma?or thr#sts and o!?ectives of the %rogramme and develo% a f#nda!le %ro?ect %ro%osal. In cons#ltation with stakeholders) the working gro#% develo%ed a f#nding %ro%osal for a !iotechnology and !iosafety %rogramme for the +ast and (entral Africa co#ntries. The %rogramme will s#%%ort the existing A*A.+(A cro% and livestock networks) !#t will enco#rage strong linkages and %artnershi%s with other international) regional) s#!6regional and national !iotechnology@!iosafety initiatives. The %ro%osed %rogramme will address the develo%ment o!?ectives of the +(A co#ntries !y initiating a series of !iotechnology .KD %ro?ects that clearly address the %riorities of the region and an
integrated regional a%%roach to !iosafety. Under this r#!ric) A*A.+(A has an initiative seeking to harmonise !iosafety and !iotechnology %olicies among its mem!er co#ntries) es%ecially aro#nd administrative %roced#res Bsetting #% of common window for the recei%t and %rocessing of a%%licationsE esta!lishment of a single so#rce for the %rovision of information and the dis%ensing of adviceC and aro#nd technical standards Benvironmental risk assessment %roced#res) information re>#irements and criteria for determining #nacce%ta!le levels of risk and %roviding a%%licants with the o%%ort#nity to %re%are common a%%licationsC. This is informed !y the !elief that harmonisation of administrative reg#lations and g#idelines will !e an easier way of develo%ing !iosafety frameworks than convincing co#ntries to co%y reg#lations and g#idelines from other co#ntries) which is %erceived as an assa#lt on the sovereignty of a co#ntry. 5: Re$%onal A(( oa!& to .%ote!&nolo$' an* .%osafet' Pol%!' %n Easte n an* So+t&e n Af %!a 3RA.ESA4 In%t%at%)e The origin of the .A$+*A Initiative is tracea!le to concerns related to </Os and trade in the (ommon /arket for +astern and *o#thern Africa B(O/+*AC dating way !ack to &77 . /em!er *tates were concerned that the %roliferation of </Os co#ld im%act on trade and food sec#rity in
5: 0ameri6/!ote
M-::4N)
#nknown ways and (O/+*A was not %re%ared at the time to g#ide the region thro#gh the
antici%ated event#alities.5& In 2ovem!er -::&) the (O/+*A /inisters of Agric#lt#re meeting in 0am%ala) Uganda agreed on the need for a regional %olicy on !iotechnology) es%ecially </ cro%s and %rod#cts. The need for a regional a%%roach to !iotechnology and !iosafety was reinforced f#rther !y the realisation in -::- among *o#th African Develo%ment (omm#nity B*AD(C co#ntries that they had divergent national %olicies on </ food aid in the region. This divergence ins%ired efforts in !oth *AD( and (O/+*A to consider closer regional %olicy coordination on </Os in the region.5In -::4) (O/+*A a%%roached A*A.+(A) seeking technical g#idance and %olicy advice on how to address !iotechnology@!iosafety iss#es at a regional level. The res#lt was the .A$+*A Initiative@%ro?ect designed to investigate the %otential im%acts of </Os on trade) food sec#rity and access to emergency food aid. The overall o!?ective of .A$+*A) therefore) was to generate and analyse technical information on the %otential im%acts of </Os on trade) food sec#rity and access to emergency food aid) to inform (O/+*A and A*A.+(A co#ntries in coming #% with a regional a%%roach to </Os. The s%ecific o!?ectives of the Initiative were; BiC To #ndertake a stakeholder analysis in the (O/+*A region with the aim of ca%t#ring views and o%inions of individ#als and instit#tions with regard to the im%act of </Os on trade) food sec#rity and food aidE BiiC To estimate the im%acts of </O cro%s on farm income in A*A.+(A@ (O/+*A co#ntriesE
BiiiC To estimate the %ossi!le commercial ex%ort risks associated with %lanting of </O cro%s in the A*A.+(A and (O/+*A regionE BivC To determine the im%act of %reca#tionary </O a%%roaches on access to emergence food aid in the A*A.+(A and (O/+*A regionE and BvC To review a range of regional %olicy o%tions and ado%t a common %osition towards </O cro%s for the (O/+*A co#ntries. The im%lementation of the Initiative was endorsed at the (O/+*A@+conomic (ommission for Africa B+(AC /aiDe Trade Policy (onference) held in 2airo!i in *e%tem!er -::4) and which commenced in G#ne -::5. The Initiative covered six sam%le co#ntries in the O/+*A@A*A.+(A region) namely; +gy%t) +thio%ia) 0enya) TanDania) Uganda and Ham!ia. It has !een im%lemented in a %artnershi% involving (O/+*A) A*A.+(A) +(APAPA) the African (entre for Technology *t#dies BA(T*C and P$*. It is s#%%orted !y the United *tates Agency for International Develo%ment BU*AIDC.
5& 1af#la
K 1aithaka M-::'N. M-::'N.
5- Paarl!erg
At a regional meeting of ex%erts and stakeholders in 2airo!i B4:64& /ay -::'C that met to disc#ss the findings of the .A$+*A Initiative and seek ways of evolving a regional %osition on the iss#e of </Os in +astern and *o#thern African co#ntries) the meeting recommended to the (O/+*A (o#ncil of /inisters the following %ositions; Q 1ith regard to commercial %lanting of </ cro%s) that the region ado%ts a centraliDed
regional assessment system and final a%%roval to !e left at national levelE Q 1ith res%ect to commercial trade %olicy) that advice@ information !e given from a central regional clearing ho#se) with final decision6making vested in national a#thoritiesE and Q 1ith regard to food aid %olicy) that g#idelines are develo%ed at a regional level) !#t the decision of whether or not to acce%t the aid sho#ld !e left at co#ntry level to !e made on case !y case !asis. 1hile the Initiative has generated a lot of #sef#l information and is g#iding the region in evolving a regional a%%roach to </Os) a n#m!er of iss#es remain to !e addressed. First) %eo%le are concerned that the initiative %laces a lot of em%hasis on </O trade iss#es and ignores risks to h#man health and the environment. It is im%ortant that the findings and recommendations are !ased on a holistic a%%roach to !iotechnology and !iosafety iss#es. It is not eno#gh to omit considering s#ch iss#es on the !asis that they are !eing addressed in other initiatives. *econdly) the initiative does not address the >#estion of </Os and the farmers8 right to save) re#se and exchange seed) which is one of the ma?or concerns of African co#ntries in the de!ate on </Os. Any disc#ssion on food sec#rity in the African context min#s a de!ate on the farmers8 right to seed and the seed distri!#tion system remains incom%lete. Thirdly) the initiative seems to !e shifting the (O/+*A co#ntries8 foc#s from the need to finaliDe and strengthen their 2$Fs to develo%ing the regional a%%roach. 1hile the regional a%%roach co#ld !e good) it sho#ld !e !ased on national !iosafety systems that address local circ#mstances) needs and as%irations. The regional a%%roach sho#ld !#ild on national !iosafety systems. It is) however) instr#ctive to note that (O/+*A /inisters of agric#lt#re meeting in 0harto#m in /arch -:: endorsed the recommendations of the .A$+*A Initiative o#tlined a!ove.
.%os!%en!es Easte n an* Cent al Af %!a $iosciences +astern and (entral Africa B$ecAC is an initiative endorsed !y the *teering (ommittee of the 2ew Partnershi% for Africa8s Develo%ment B2+PADC to s#%%ort eastern and central African co#ntries in develo%ing and a%%lying !ioscience research and ex%ertise to %rod#ce technologies that hel% %oor farmers sec#re their assets) im%rove their %rod#ctivity and
income) and increase their market o%%ort#nities. 54 It %rovides a focal %oint for the African scientific comm#nity to s#%%ort the activities of national) regional) and international agencies as they address agric#lt#re6related %ro!lems of the highest %riority for alleviating %overty and %romoting develo%ment. $ecA will consist of a h#! !ased at the cam%#s of the International ,ivestock .esearch Instit#te BI,.IC in 2airo!i) 0enya and a network of la!oratories distri!#ted thro#gho#t eastern and central Africa for the cond#ct of research on %riority iss#es affecting Africa8s develo%ment. It is envisaged that the facility will %rovide a world class !iosciences research centre o%en to all African agric#lt#re@livestock research comm#nities at individ#al and instit#tional levels) and will hel% !#ild ca%acity in African !ioscience ex%ertise. F#nding to start #% $ecA has !een o!tained from the (anadian International Develo%ment Agency B(IDAC. It is clear from its mandate that it will work on </Os. +nvironmental im%act assessment and strategic environmental assessments were carried o#t in -::3 as re>#ired !y the +nvironmental /anagement and (o6ordination Act of -:::. The assessments recommended that) in the a!sence
of com%liance standards in 0enya for the work %ro%osed to !e carried o#t !y $ecA) the relevant United *tates and (anadian .eg#lations sho#ld form the !asis for form#lating $ecA8s instit#tional !iosafety %olicies.55 Ken'aEs Le$al an* Inst%t+t%onal F a#e-o / fo .%osafet' Current practice (#rrently) the 8ra,t 9eg%lation& and G%ideline& ,or Iio&a,ety in Iiotechnology ,or Kenya, 53 iss#ed in &77" !y the 2ational (o#ncil for *cience and Technology B2(*TC) com%rise the main instr#ment for reg#lating </Os in 0enya. They re>#ire that the release of </Os !e %receded !y the a%%roval of the 2ational $iosafety (ommittee B2$(C. /em!ershi% to the 2$( incl#des re%resentatives of relevant instit#tions and line ministries s#ch as 0+P9I*) 2+/A and the Attorney6<eneral8s (ham!ers. The 2$( advises on all relevant emerging legal iss#es. The chairman is from the /inistry of Agric#lt#re. The relevant reg#latory a#thorities m#st #ndertake risk assessments !efore making the decision to a%%rove or deny a%%roval of the im%ort. In order to do so) they sho#ld !e %rovided with ena!ling information s#ch as descri%tion of the </Os and its intended #ses in 0enya. For cro%s) 0+P9I* is the relevant a#thority and it advises the 2$( on whether or not to allow im%orts and what to do after the assessment. The g#idelines %rovide that it is an
54 For
more information) see; htt%;@@www.!iosciencesafrica.org@. +ng.) I,.I) $ecA M-::3N. M&77"N.
55 Pharm 53 2(*T
offence to im%ort </Os witho#t %rior a%%roval of the 2$(. Penalties for offences #nder the
!iosafety reg#lations were left to !e made !y the /inister. To do this) the /inister re>#ires the %owers to !e conferred #%on him !y an Act of Parliament. To date) this has not !een done) altho#gh there are some %rescri!ed %enalties in draft form #nder the %ro%osed 2ational $iosafety $ill.5' The main aim of the reg#lations is to enhance the effectiveness in the #se of new %rod#cts and ens#re safety to h#man health and the environment. 5 The f#nction of the 2$( is to review and ascertain the s#ita!ility of !oth %hysical and !iological containment and control %roced#res a%%ro%riate to the level of assessed risk involved in relevant research) develo%ment and a%%lication activities. The reg#lations re>#ire instit#tions carrying o#t work on genetic modification to esta!lish instit#tional !iosafety committees. These instit#tional committees are re>#ired to advise their res%ective instit#tions in drawing #% %ro%osals that take cogniDance of a%%lica!le !iosafety meas#res and advise their instit#tions on activities that sho#ld !e !ro#ght to the attention of the 2$(. The a%%licant is ex%ected to make an a%%lication in the %rescri!ed form) detailing all information on the %ro%osed work) and send the form to the 2(*T as the secretariat of the 2$(. The 2$( sho#ld acknowledge recei%t within 4: days and verify the information for com%leteness #sing a checklist where#%on it may re>#est for additional information from the a%%licant within ': days. Deli!eration m#st !e within 7: days and comm#nication of the decision to a%%rove or deny a%%roval comm#nicated within -&: days. In &777) the 2(*T %ro%osed a 2ational $iosafety Act in order to give stat#tory %ower to the
&77" .eg#lations and <#idelines. The Act) which was never ado%ted) was designed to im%lement the %ro%osed 0enya ,egal Framework on $iosafety. 5" This was an attem%t to anchor the .eg#lations and <#idelines to the +nvironment /anagement and (o6ordination Act &777. *ection 34 of the Act %rovides a legal !asis for %rom#lgating !iosafety reg#lations. 57 It is
5' It
seems that the %ro%osed %enalties may not achieve the desired goals as they are relatively lenient. For exam%le)
a %erson who im%orts </Os witho#t the AIA of the co#ntry of im%ort may only !e lia!le to a fine not exceeding 0sh 3:)::: B*ee; (la#se &3 of the 2(*T) &777) U2+P@<+F) Pilot $iosafety +na!ling Activity Pro?ect; 0enya $iosafety Framework. In s#ch circ#mstances) one may find it convenient to commit the offence and %ay the fine.
5
2(*T M-::4N. legislation is yet to !e %assed !y Parliament into law. at section 34; B&C The A#thority shall) in cons#ltation with the relevant lead agencies) iss#e g#idelines and
5" The
57 I#id,
%rescri!e meas#res for the s#staina!le management and #tilisation of genetic reso#rces of 0enya for the !enefit of the %eo%le of 0enyaE B-C1itho#t %re?#dice to the general effect of s#!section B&C) the g#idelines iss#ed or meas#res %rescri!ed #nder that s#!6section shall s%ecify; BaC a%%ro%riate arrangements for access to genetic reso#rces of 0enya !y non6citiDens of 0enya) incl#ding the iss#e of licences and fees to !e %aid for that accessE B!C meas#res for reg#lating the im%ort or ex%ort of germ%lasmE BcC the sharing of !enefits derived from genetic reso#rces of 0enyaE BdC !iosafety meas#res necessary to reg#late !iotechnologyE BeC meas#res necessary to reg#late the develo%ment) access to and transfer of !iotechnologyE and BfC any other matter that the A#thority considers necessary for the !etter management of the genetic reso#rces of 0enya.
#nlikely that the event#al reg#lations will !e #nder this Act) as ministries s#ch as agric#lt#re and health do not see the Act as a%%ro%riately re%resenting their interests. $e that as it may) it is critical that the +IA %roced#res are synchronised with the 2$( %ermit %rocesses) es%ecially with regard to %#!lic %artici%ation. The fail#re of this legislative initiative to mat#re into a !inding law has left the draft
reg#lations and g#idelines as the !l#e%rint for decision6making on </O work !y the 2$(. This has made the need for a 2ational $iosafety ,aw more #rgent in light of ongoing work on </Os. At another level) the instit#tional anchorage of !iosafety in 0enya remains %ro!lematic. 1hile the national focal %oint for the $iosafety Protocol is the 2ational (o#ncil for *cience and Technology) the focal %oint for the ($D is the Permanent /ission of 0enya to U2+P. There are a host of other national instit#tions that have !iosafety mandates s#ch as the 2ational +nvironment /anagement A#thority B2+/ACE the 0enya $#rea# of *tandards B0+$*C) which is res%onsi!le for food standards incl#ding </ foodsE the P#!lic 9ealth De%artment) which is res%onsi!le for food safetyE the 0enya Plant 9ealth Ins%ectorate *ervice B0+P9I*C) res%onsi!le for %lant health and is ex%ected to im%lement the international standards for %hytosanitary meas#res dealing with %est risk analysis for >#arantine %ests) incl#ding analysis of environmental risks and </OsE3: the De%artment of Feterinary *ervices BDF*C) res%onsi!le for animal healthE and the 0enya 1ildlife *ervice B01*C) among others. The lack of clear artic#lation !etween these instit#tions creates room for conflict) which adversely affects the efficacio#s im%lementation of a national !iosafety mandate. <iven the overarching nat#re of !iosafety) there is need to ins#late it from sectoral control. The mandates of 2+/A) 2(*T and the 0enya /ission to U2+P sho#ld !e synchronised and one of them em%owered to synergise all the diverse actors in !iosafety. T&e D aft Nat%onal .%osafet' .%ll 6==;
The Draft 2ational $iosafety $ill is an attem%t at giving firm legal !asis for !iosafety reg#lations in 0enya. It seeks to align the draft reg#lations with the $iosafety Protocol) which 0enya signed in -::: and ratified in -::4. The main o!?ective of the draft !ill is to ens#re an ade>#ate level of %rotection in the field of safe transfer) handling and #se of genetically modified organisms B</OsC res#lting from modern !iotechnology that may have an adverse effect on the environmentE and to esta!lish a trans%arent and %redicta!le %rocess to review and make decisions
3: I*P/
2o. &&)-::5.
on s#ch genetically modified organisms and related activities. 3& *ection 3 esta!lishes the 2ational $iosafety A#thority. The management of the A#thority is to !e carried o#t !y a !oard. The f#nctions of the A#thority as en#merated #nder section incl#de to; BaC .eceive) res%ond to and make decisions on a%%lications #nder and in conformity with this ActE B!C +sta!lish administrative mechanisms to ens#re the a%%ro%riate handling and storage of doc#ments and data in connection with the %rocessing of a%%lications and other matters covered !y this ActE BcC +sta!lish contact and maintain liaison with other co#ntries and organiDations dealing with !iosafetyE BdC +sta!lish a data!ase for the %#r%ose of facilitating collection and dissemination of information relevant to !iosafetyE BeC Identify national re>#irements for man%ower develo%ment and ca%acity !#ilding in
!iosafetyE BfC /aintain a directory of ex%erts in !iotechnology and !iosafetyE BgC 0ee% a record of !iotechnology and !iosafety activities in 0enyaE BhC Advice instit#tions and %ersons on mitigation meas#res to !e #ndertaken in case of an accidentE and BiC Promote awareness and ed#cation among the general %#!lic in matters relating to !iosafety. The A#thority is f#rther granted %owers to a%%rove or re?ect a%%lications made #nder sections &56& and to determine whether or not to carry o#t risk assessments. The following are activities s#!?ected to the written a%%roval of the A#thority in accordance with the aforesaid sections; BiC (ontained #se involving </OsE BiiC Introd#ction of </Os into the environmentE BiiiC Im%ortation and %lacing of </Os into marketE and BivC Trans%ortation of </Os thro#gh 0enya. Any decision made !y the A#thority is s#!?ect to review in accordance with section -3 #%on the re>#est of a reg#latory !ody or any a%%licant in sit#ations where new scientific information relating to !iosafety of the </Os is discovered or there has !een a change of circ#mstances. Any a%%licant who) having knowledge of s#ch information) withholds it from the A#thority commits an offence #nder section -3 of the Act. F#rther) fail#re to adhere to any of the re>#irements on a%%rovals constit#tes an offence #nder section 54 of the draft !ill.
3& *ection
5) Draft $iosafety $ill) *e%tem!er -::3.
Any %erson aggrieved !y any decision made !y the A#thority has the right of a%%eal to an
A%%eals $oard esta!lished #nder section -' of the !ill. It is also noteworthy that the !ill identifies) #nder section 4&) reg#latory agencies res%onsi!le for different iss#es. These are contained in the First *ched#le and incl#de the /inistry of 9ealth) De%artment of Feterinary *ervices BDF*C) 0enya $#rea# of *tandards B0+$*C) 0+P9I*) 0enya Ind#strial Pro%erty Instit#te B0IPIC) 0enya 1ildlife *ervice B01*C) Pest (ontrol Prod#cts $oard BP(P$C and 2+/A. They are charged with the following; BiC /onitoring of a%%licants activities to ens#re that they conform to the !illE BiiC Informing the A#thority of any new information aimed at enhancing the contin#ed safe #se of </OsE and BiiiC Ins%ecting and eval#ating activities involving </Os. $iosafety ins%ectors are a%%ointed !y the /inister in accordance with *ection 44 with %ower to; BaC +nter any %remises) facility) vessel or %ro%erty) which the ins%ector has reason to !elieve it is necessary for him to enter in order to ascertain whether the law is !eing com%lied with and may take with him any %erson d#ly a#thorised !y the A#thorityE B!C Take any e>#i%ment or material re>#ired for any %#r%ose for which the %ower of entry is !eing exercisedE BcC (arry o#t s#ch tests and ins%ections and make s#ch recordings as may in the circ#mstances !e necessaryE BdC Direct that any %art of %remises or anything in s#ch %remises shall !e left #ndist#r!ed for so long as is reasona!ly necessary for the %#r%ose of any test or ins%ectionE BeC Take a%%ro%riate sam%les of any organisms) articles or s#!stances fo#nd in any %remises for analysis or any other relevant %#r%oseE BfC In the case of anything fo#nd in the %remises) which a%%ears to contain </Os that %ose !iosafety risk) ca#se it to !e dismantled or s#!?ected to any %rocess or test !#t not so as to damage or destroy it) #nless it is necessaryE and
BgC .e>#ire the %rod#ction of any records that are re>#ired to !e ke%t. In addition to criminal sanctions) the draft !ill antici%ates the #se of other means o redress or damage res#lting from </Os. It %rovides at *ection 5- that =lia!ility and redress for any damage that occ#rs) as a res#lt of activities s#!?ect to this Act) shall !e addressed !y a%%lica!le laws.=3There is concern) however) that this %rovision is not ade>#ate !eca#se the a%%lica!le laws %redate !iotechnology activities and may not cover all kinds of damage likely to arise from !iotechnology
3- *ee
Draft $iosafety $ill.
activities.34 It is noteworthy that the $iosafety $ill was not %assed !y the seventh Parliament in -:: . The %ros%ects of the $ill !eing %assed this year are dim owing to the s#s%icions raised !y the discovery that some seeds sold to farmers contained </Os even as the farmers were #naware of this fact. This discovery has f#elled the anti6</O lo!!y in 0enya and this co#ld lead to re?ection of the draft !ill in Parliament. On the other hand) however) the incident has !een #sed to ill#strate the dangers of not having a !iosafety reg#latory framework. 9ow it all %lays o#t in the tenth %arliament is) however) still a matter of s%ec#lation. Status of 9)3 Crop esearch and (evelopment in -en&a 1hile the 0enyan government has a %olicy of increasing agric#lt#ral %rod#ction) and key government f#nctionaries35 have made %rono#ncements on the #sef#lness of new technologies in
this >#est) there is no clear agenda for strategic investment in </ for agric#lt#ral %rod#ction enhancement. This is des%ite the fact that 0enya8s %#!lic research instit#tes have !een involved in agric#lt#ral research for a long time) foc#sing mainly on im%rovement of yields thro#gh conventional !reeding techni>#es.33 It is noteworthy) for instance) that s#!stantial %rogress was made in the achievement of high large grain yields in the &7':s when hy!rid maiDe was develo%ed in 0enya and it is now diffic#lt to %rod#ce hy!rids that o#t6yield the c#rrent ones !y a !ig margin.3' The acc#m#lated research ex%erience %rovides a good gro#nd for the introd#ction of </ technologies to deal with %ests and dro#ghts and enhance the shelf life of %rod#cts. The national research agenda) while foc#sing on increasing and sta!iliDing yields of hy!rids and red#cing in%#t %rices) is yet to internalise </ technologies as a key com%onent. The research is mainly carried o#t !y %#!lic instit#tions) the national agric#lt#ral research instit#tions. Ta $et ! o(s /ost of the agric#lt#ral !iotechnology .KD activities foc#s on im%roving the yield %otential of cereals and some of the ex%ort cro%s s#ch as coffee and %yrethr#m. As %ointed o#t a!ove) 0enya is not yet #sing </ technologies on a wide6scale. 1hile 0enyan %#!lic agric#lt#ral research
34 0ameri6/!ote 35 *ee
M-::5N.
Bhe eople 8aily, Th#rsday -5 G#ne -::5. 9on. /wai 0i!aki) 0enya8s President) said that increased incidents of dro#ght
and diseases demanded the em%loyment of modern methods of farming to increase yields. 9e was s%eaking d#ring the commissioning of the 0enya Agric#lt#ral .esearch Instit#te8s <reenho#se (om%lex. 9e categorically said that 0enya had resolved to a%%ly modern !iotechnology in line with existing !iosafety framework national stat#tes and international o!ligations.
33 0ameri6/!ote
M-::3N.
3' Od&ane
et alL'(O0M.
instit#tions have done considera!le tiss#e c#lt#re work) not m#ch genetic modification of cro%s has !een done. There are a few cro%s !eing worked on in the la!oratory and field !#t none have !een commercialised. The cro%s !eing worked on are maiDe Bfield trialsC) sweet %otato Bfield trials concl#ded in fail#re and work has to start afreshC) cotton Bfield trialsC and cassava Bfield trialsC. 1ork on maiDe is so far the most advanced) even tho#gh work on the transgenic sweet %otato had started m#ch earlier. "ai2e The main thr#st of agric#lt#ral research on maiDe in 0enya has traditionally foc#sed on !reeding for higher yields. 2ot m#ch attention has !een given to !reeding for %est and disease tolerance and) conse>#ently) small6scale farmers have !een affected s#!stantially as they %lant im%roved maiDe varieties #nder very %oor %est and disease management conditions. They end #% not !enefiting from the yield %otential of s#ch varieties.3 *tem !orers %ose one of the most serio#s threats to the %rod#ction of maiDe in 0enya) with losses estimated to !e a!o#t &3 %er cent of the harvest.3" (limatic factors s#ch as dro#ght com!ine with the vir#s to aggravate %rod#ction loss. On the other
hand) in years of s#r%l#s %rod#ction) %ost6harvest losses are high mainly d#e to %oor and limited storage facilities. The a!ove %ro!lems have contin#ed to intensify as most s#!sistence farmers are %oor and cannot afford to !#y %esticides to c#r! the menace %osed !y the !orers. 37 It is within this context that the Insect .esistant /aiDe for Africa BI./AC %ro?ect started in &777. It is ?ointly im%lemented !y the 0enya Agric#lt#ral .esearch Instit#te B0A.IC and the International /aiDe and 1heat Im%rovement (entre B(I//JTC with f#nding from the *yngenta Fo#ndation for *#staina!le Agric#lt#re. The overall o!?ective of the %ro?ect is to increase maiDe %rod#ction and enhance food sec#rity thro#gh the develo%ment and de%loyment of insect6resistant maiDe that is ada%ted to vario#s agro6ecological Dones in 0enya. It is ex%ected that a new maiDe variety will !e develo%ed with $t genes that are harmf#l to local %o%#lations of stem !orers. Other o!?ectives of the %ro?ect incl#de develo%ing %roced#res for diff#sing the technology to farmers and the assessment of the socio6economic im%acts of the new maiDe variety in 0enyan agric#lt#ral systems.': $t maiDe is viewed as having high %otential for closing the wide and increasing food deficit ga% in 0enya. The im%lementation of the %ro?ect started with the identification of $t genes active against
3
I#id. <roote M-:::N.
3" De
37 Odameef^HM-::4N. ': I./A
U%dates M-:::N.
Internal Teaching Use Only 3:&
0enyan stem !orers) followed !y the develo%ment of transgenic maiDe with s#ita!le gene constr#ctE identification of target germ%lasm for transformation and for !ackcrossing to so#rce germ%lasm and the eval#ation of !iosafety conditions in greenho#ses and field trials. In f#rtherance of the o!?ectives of the %ro?ect) maiDe leaves with $t toxins were im%orted into 0enya from /exico and these #nderwent trials at vario#s 0A.I research stations. The next %hase of the %ro?ect com%rised the constr#ction of a level6- !iosafety greenho#se and an o%en >#arantine facility at the 0A.I $iotechnology (entre in 2airo!i. /ock trials were cond#cted and ins%ected !y the 0enya Plant 9ealth Ins%ectorate *ervice B0+P9I*C) %aving the way for im%ortation from /exico in /ay -::5 of $t cotton seeds with a gene that is resistant against the stem !orer. The next ste% was greenho#se trials and o%en >#arantine field trials of $t maiDe. Field trials for the $t maiDe #nder this %ro?ect !egan in /ay -::3. '& These trials were at one %oint sto%%ed !y the Agric#lt#re *ecretary who ordered the cro% to !e destroyed !eca#se an environment im%act assessment of the ex%erimentation had not !een cond#cted f#lly. In iss#ing the Directive) he stated;
Bhe ,act that we do not have an ena#ling legal ,ramework to ,all #ack on &ho%ld anything na&ty happen &ho%ld #e rea&on eno%gh ,or %& to #e e<tra vigilant on #io&a,ety. En,ort%nately, there i& an emerging tendency #y o%r &cienti&t& o, yielding to pre&&%re ,rom international colla#orator& p%&hing to &ec%re approval& ,or their re&earch pro3ect& ,a&ter, &ide!&tepping proced%re&.H'
The %ro?ect has) however) since !een allowed to %roceed. It is instr#ctive to note that at each stage of the %ro?ect) the %ro?ect %ro%onents have !een re>#ired to o!tain a %ermit from the
2ational $iosafety (ommittee) which we will disc#ss !elow. -weet potato *weet %otato is mainly grown !y %oor reso#rce farmers and is c#ltivated on a!o#t 3)::: hectares s%read over vario#s agro6ecological Dones in 0enya. '4 The a!ility of sweet %otato to
'& *ee
The African +xec#tive) :"6&3 G#ne) -::3 noting that 0enya %lanted genetically modified B</C maiDe in o%en
fields. The feat#re contin#ed to ex%lain that the seeds that are modified to resist insect %ests called stem !orers were %lanted first in a series of confined field trials at the 0enya Agric#lt#ral .esearch Instit#te B0A.IC station in 0i!oko on - /ay -::3. The Director of 0A.I was >#oted as hailing the move as an exam%le of #sing science to address the needs of the %eo%le. 9e %ointed o#t that the amo#nt of maiDe 0enya loses to stem !orers each year W a!o#t 5::)::: tonnes W is nearly the same amo#nt that the co#ntry im%orts ann#ally. The article contin#ed to %oint o#t that if s#ccessf#l) the </ %lants will !e inter!red with 0enyan maiDe lines to %rod#ce varieties ada%ted to local growing conditions.
'- *#nday '4 Iaim
2ation .e%orter) Government 6alt& 9e&earch on "ai2e, *#nday 2ation B0enyaC -" A#g#st -::3.
Mnot datedN.
Internal Teaching Use Only 3:-
ada%t to a wide range of growing conditions) in !oth fertile and marginal areas) makes it a versatile cro% for 0enya8s farming systems. '5 The %rod#ction of the cro% has declined over the years owing to diseases and inade>#ate >#antities of clean %lanting materials) %ests and the *weet Potato Feathery /ottle Fir#s B*PFF/C. (onventional a%%roaches to !reeding varieties resistant to *PFF/ have not !een effective in com!ating the disease and hence reco#rse to !iotechnology. The %rocess of develo%ing </ varieties of sweet %otato started almost nine years ago when /onsanto develo%ed a coat %rotein res%onsi!le for vir#s resistance) and donated it to 0A.I) royalty6free) to #se in its sweet %otato im%rovement %rogramme. The o!?ective of the %ro?ect was to develo% transformed 0enyan sweet %otato varieties with resistance to *PF/F at /onsanto and to transfer these to 0enya. '3 9owever) all efforts so far made to develo% a vir#s6resistant sweet %otato variety have failed and scientists have had to go !ack to the drawing !oard.
Cotton (otton %rod#ction in 0enya has declined over the years d#e to yields !eing affected !y !ollworm) necessitating the search for varieties that will !e resistant to !ollworm. 1ork on $t (otton is at a very early stage and $t cotton seeds with a gene of resistance against the !ollworm were im%orted for trials from *o#th Africa in late /ay -::5. This was after the %lant reg#latory a#thority) the 0enya Plant 9ealth Ins%ectorate *ervice B0+P9I*C) granted 0A.I a %ermit to introd#ce the seeds. The trials will !e done at 0A.I Fi!re .esearch *tation in /wea Te!ere) whose !iosafety facilities have !een ins%ected and a%%roved !y 0+P9I* on !ehalf of the 2ational $iosafety (ommittee. Ca&&ava <enetically modified cassava has also !een a%%roved !y the 2ational $iosafety (ommittee and 0+P9I* for la!oratory trials in 0enya. The variety !eing worked on has a gene that is resistant to the cassava mosaic vir#s. Trials will !e done in 0A.I 0akamega within the aegis of Agric#lt#ral $iotechnology *#%%ort Programme BA$*P IIC s#%%orted !y U*AID. The %rogramme is !ased at (ornell University and technical s#%%ort for the %ro?ect will !e %rovided !y scientists working for Danforth (enter in *t. ,o#is. $elow is a s#mmary of stat#s of transgenic agric#lt#ral research in 0enya
'5 <i!!ons
M-:::N)
'3 I#id.
Table 7C,B: T ans$en%! a$ %!+lt+ al esea !& %n Ken'a

T ans$en%! ! o( Des% e* t a%t t a%t ?ea of a(( o)al Inst%t+t%ons %n)ol)e* Stat+s $f /aiDe Insect resistance -::& leaves -::4 seeds 0A.I@(I//JT financed !y *yngenta Field trials It (otton Insect resistance -::4 0A.I@/onsato (ontained trials Transgenic *weet Potato Firal resistance &77" 0A.I@/onsato
Danforth (entre BU*AC (ontained trials </ (assava (assava mosaic vir#s -::4 0A.I@ Danforth Danforth (entre BU*AC (ontained trials .inder%est Faccine Disease control &773 0A.I (ontained trials
-o%rce: $dopted ,rom Iolo L'((?M S I9"$ L'((?M with %pdate& ,rom Kameri!"#ote L'((HM It is within this context that 0enya has endeavo#red to %#t in %lace a national !iosafety system to g#ide f#rther work on genetic modification. 0enya is a %arty to the $iosafety Protocol) '' an internationally6!inding legal instr#ment concl#ded !y Parties to the Convention on Iiological 8iver&ity 5CI87. The Protocol aims at com%rehensively addressing concerns raised a!o#t !iotechnology. These concerns incl#de safe handling) #se) and transfer of living modified organisms B,/OsC.' All %arties to the Protocol are o!ligated to com%ly with its terms. The Protocol contains not only elements of com%romise !#t also %rovisions forced #%on some %arties)
%artic#larly African *tates.'" 9owever) most African *tates intend to im%lement the Protocol.'7 To %rovide a s#ita!le framework for the im%lementation of the !iosafety meas#res) %arties are
'' 9aving
signed it on &3 /ay -:::) ratified on -5 Gan#ary -::- and !ecoming a %arty on && *e%tem!er -::4 when it came into
force.
'
These concerns are ca%t#red in the %ream!le %aragra%hs and Article & of the Protocol. is worth noting that the negotiation %rocess was characterised !y arm6twisting and threats and lacked effective %artici%ation
'" It
and trans%arency as reflected in the doc#ments %rod#ced after the *ixth 2egotiation *ession of the $iosafety 1orking <ro#% in (artagena.
'7 This
is evident from the reso#nding res%onse seen when the Protocol was o%ened for signat#re in 2airo!i on -5 /ay -:::. At
least '3 signat#res were recorded in that day) according to the U2. *ee IU(2 Environmental Law rogramme 1ew&letter BGan#ary6 A%ril -:::C at 3.
re>#ired to %#t in %lace relevant national legislation. : The challenge for African *tates is to %#t in %lace effective legal and administrative str#ct#res to im%lement the Protocol. Conclusion and 1a& Forward 0enya has an emerging </O research %ortfolio es%ecially in the area of agric#lt#re. This research has occ#rred against the !ackdro% of draft reg#lations. The %rom#lgation of +/(A has informed the develo%ment of legislative attem%ts in this regard) !#t legally !inding reg#lations are yet to !e %rom#lgated. <iven the develo%ments in </O research activities) it is im%erative that a legally !inding legal regime is %#t in %lace. As highlighted in this cha%ter) 0enya does not at %resent have any legally !inding !iosafety reg#lations. The ones in #se are in draft form. The $ecA exam%le a!ove highlights the diffic#lty %resented !y this %redicament. 1hile
recognising that </Os relate to fields other than the environment) it is desira!le that 0enya8s !iosafety regime is anchored to +/(A for a n#m!er of reasons. First) the $iosafety Protocol is an environmental instr#ment !#t it is concerned with !oth the environment and h#man health. The h#man health as%ects can !e dealt with thro#gh engagement of actors in the %#!lic health sector. *econd) there is a clear linkage !etween risk assessment and management and environment im%act assessment. The ex%erience that has !een gained in the realm of environment im%act assessment in 0enya can inform the develo%ment of risk assessment and management for </O activities. Third and finally) 0enya as a mega diverse co#ntry has its environmental reso#rces as the %rimary concern in %rom#lgating a !iosafety law. It is) however) im%erative to ens#re that the !enefits of !iotechnology in the fields of agric#lt#re) health) environment and ind#stry are harnessed within a national regime that recognises the inexora!le linkage !etween !iotechnology develo%ment and !iosafety.
C&a(te 7:
Le$al As(e!ts of Mana$e#ent of Coastal an* Ma %ne En)% on#ent %n Ken'a

: Protocol
Article -B&C.
(9A.,+* O. O0IDI Int o*+!t%on This cha%ter is concerned with legal as%ects of management of 0enya8s coastal and marine environment. The cha%ter may !e viewed from at least three %rinci%al considerations. First)
0enya is interested in the s#!?ect as a matter of national interest. This entails ca%acity to %rescri!e and enforce laws that ens#re that the reso#rces within its national ?#risdiction are rationally managed to meet the c#rrent develo%ment needs as well as the needs of f#t#re generations. *econdly) the laws ado%ted and enforced !y 0enya sho#ld !e of s#fficient sco%e to %rotect interests of the international comm#nity in the marine environment from deleterio#s effects arising from either land6!ased so#rces of marine areas falling #nder national ?#risdiction. Thirdly) the laws so ado%ted and enforced sho#ld !e consistent with the re>#irements #nder the national framework law) the +nvironment /anagement and (o6ordination Act) &777) & ordinarily referred to as +/( A. The framework law seeks to harmonise enforcement of the legal regime of environment in 0enya and) as will !e evident from other cha%ters of this vol#me) it also %rovides for an instit#tional machinery with %owers to intervene where other sectoral agencies fail in enforcement of environmental standards. In addition) the stat#te seeks to harmonise enforcement of environmental laws in the co#ntry. *ection &5" of the Act %rovides that where %rovisions of any law relating to management of the environment in 0enya conflicts with %rovisions of +/(A) then the re>#irements #nder the latter shall %revail. Th#s) the %rimary %#r%ose of this cha%ter is to cond#ct a ra%id review of existing laws in 0enya) whose enforcement or lack thereof may im%act on the three o!?ectives delineated a!ove and s%ecifically in relation to coastal and marine
environments. Attem%ts will also !e made to identify ga%s or anomalies in law for which fresh legal re>#irements sho#ld !e develo%ed. The %resentation is in three !road sections. *ection -) which follows this introd#ction) will examine the sco%e of national ?#ridical interests !y examining what constit#tes =coastal areas= of 0enya. *imilarly) the section will identify the sco%e of marine environment within which 0enya may %rescri!e and enforce laws. In other words) we shall ex%lore the ?#ridical arrangements relating to these areas with the %res#m%tion that legislation and enforcement re>#ire clear #nderstanding of the %recise area to which the law a%%lies.
& Act
2o. " of &777 was ado%ted !y Parliament in Decem!er &777. It received Presidential Assent on ' Gan#ary -:::
and the date of commencement was &5 Gan#ary -:::. The stat#te) often referred to as +/(A) is f#lly reviewed in a different cha%ter of this vol#me.
A selection of stat#tes) corres%onding to s#ch activities) will !e disc#ssed in *ection 4 with a view to ascertaining the extent to which they !oth make %rovisions for %rotection of the environment) and are consistent with the re>#irements of +/(A. These disc#ssions will) of necessity) !e confined to im%act on marine environment. *ection 5 will disc#ss inter6?#risdictional iss#es. /arine fisheries will !e addressed !riefly and only to the extent that the iss#es are international and not having !een covered in the cha%ter &7 on fisheries in this vol#me. /erchant shi%%ing matters) s%ecifically marine %oll#tion from seagoing vessels) are essentially international matters and will !e disc#ssed taking into acco#nt
the existing and %ro%osed laws. Altho#gh offshore installations and %latforms commonly associated with intense %etrole#m) oil and gas o%erations are scarce off 0enya8s coast) they will !e introd#ced in the disc#ssion with a view to setting o#t long term initiatives. *he Scope of Coastal and )arine Interest Ken'aEs Coastal En)% on#ent The coastline of 0enya has a length of a%%roximately 3 5 kilometres from the TanDania !order to the !o#ndary with *omali. 9owever) the >#estion of how far the coast lies is neither conce%t#ally nor %ractically challenging. A whole administrative %rovince is known to !e coastal. 9owever) legislating for management of coastal environment raises interesting >#estions relating to control over the land and %rotection of flora and fa#na) which inha!it the land. Professor Okoth6 Ogendo has analyDed the evol#tion of land ownershi% and access to the waterfront at the coast with the concl#sion that nearly all of the land is #nder %rivate ownershi% dominated !y the to#rism ind#stry and investors) !oth national and international.- 9e %oints o#t that the to#rism ind#stry) !eing concerned only with %rovision of leis#re) has t#rned the coastal waterfront into a series of excl#sive resorts) which raise im%ortant >#estions of %#!lic %olicy since the %rivate ownershi% extends to high water mark.4 9owever) the coastal Done is a #ni>#e ecosystem often with inextrica!le relation !etween marine area !elow low water markE the area !etween the low water mark and the high water markE and the Done immediately a!ove the high water mark. As will !e clear in disc#ssion of
marine %rotected areas) this is already a ma?or feat#re of %reservation of fragile ecosystem !#t which may) of necessity) have close nex#s with ad?oining terrestrial area. The iss#es raised concerns of the 0enya 1ildlife *ervice B01*C in A%ril &77 when they
- Okoth6Ogendo 4 I#id
M&7 ";& 55":N.
at & ".
so#ght to restrain a /alindi landowner from constr#cting a hotel !eca#se the intention of the %arastatal to extend a marine %ark to the dis%#ted area. In his letter) the Director of 01* re>#ired the land owner not to effectany constr#ction within &:: feet from the high water mark. The landowner) *ea *tir ,imited) o!?ected and so#ght %rotection of the 9igh (o#rt in the case -ea -tar "alindi Ltd v. Kenya /ildli,e -ervice?. The (o#rt conc#rred in the s#!mission of the %laintiff that according to availa!le records) the s#it land was %rivate land and that his title extended to the high water mark and that the 01* had not %resented any legal a#thority ?#stifying the claim of &:: feet s#!?ect to its control and enforcement of conservation meas#res. In his r#ling delivered on " 2ovem!er &77 ) G#stice Onyango Otieno o!served !y an or#iter dict%m as follows;
I, the re&pondent wa& o, the opinion that the &%it land #eing contig%o%& to marine park, activitie& on it &%ch a& con&tr%cting &eptic tank on it might &erio%&ly inter,ere with the eco&y&tem in the area, all it needed to do wa& to convince the "ini&ter concerned to have the land ac:%ired with the con&ent o, the owner who wa& the competent a%thority or #y way o, the Land $c:%i&ition $ct. 6aving &o ac:%ired the land the "ini&ter wo%ld declare it a marine park or a national park and then proceed to en&%re the con&ervation o, the area.@
(learly then) there is no standing legal %rovision for !#ffer Done as a#tomatic %#!lic land !etween high water mark and ad?oining %rivately owned land) either for ordinary %#!lic access to water front' or for environmental conservation %#r%oses. The latter o%tion can !e availed only via
*tate %ower of eminent domain or more directly thro#gh land ac>#isition. The %ro!lem for %#!lic %olicy) which Okoth6Ogendo refers to a!ove) is evident also in the action taken !y Director of 0enya 1ildlife *ervice in that their letter did not s%ell o#t the legal a#thority on which they wo#ld !ase the &:: feet direction. It took the %laintiff) *ea *tar /alindi ,td) to %oint o#t that the s#it land not having !een a (o#ncil land at any time was not entitled to the %rovision of *#rvey Act) (ha%ter -77) ,aws of 0enya) which %rovides for leaving &:: feet from high water mark as government land. It is o!served in that context that the %rivate title over the s#it land was conferred many years !efore the *#rvey Act came into effect. Therefore) the &:: feet !eyond high water mark wo#ld not have a%%lied. 9owever) if we were to arg#e for the %#r%ose of seeking a recommendation that
5 9igh 3 I#id
(o#rt of 0enya) /iscellaneo#s (ivil *#it 2o. 7"- of &77 0,. B+K,C & at 3&-.
at 3&4. notes that mem!ers of the %#!lic have no general access right to recreational facilities and marine reso#rces
' Okoth6Ogendo
within the area. On the other hand =...access !y way of an easement can always !e ac>#ired for a variety of %#r%oses. This can !e done !y grant) ind#lgence or long and contin#o#s #se for a stat#tory %eriod of twenty years. *ee Okoth6Ogendo) s#%ra note - at & 7. 0,. B+K,C & at 3& . The ?#dge o!serves that the *#rvey Act came into effect long after the title to %rivate ownershi% to the s#it land.
the criteria %rovided in the *#rvey Act sho#ld !e made to a%%ly at selected locations) it is do#!tf#l that &:: feet wo#ld !e the act#al %rovision. .#le &&: B&C of the *#rvey .eg#lations %rom#lgated in &7 7 states as follows;
B&C 1here #nalienated <overnment land fronting on the sea coast is !eing s#rveyed for alienation) a stri% of land not less than ': metres in width shall normally !e reserved a!ove high water mark for <overnment %#r%oses;
rovided that, i, the intere&t o, development re:%ire, the "ini&ter may direct that the width o, thi& re&eroation &hall #e le&& than H( metre& in &pecial ca&e&.
B-C 9igh6water mark in all case in these .eg#lations means /ean 9igh 1ater /ark of *%ring Tides=" .#le &&5 of the *#rvey .eg#lations makes a s%ecial %rovision for swam% !o#ndaries or !o#ndary in areas of wetlands) which is %artic#larly im%ortant today from the %ers%ective of environmental management. 1e >#ote that here in f#ll for reasons which will !e o!vio#s shortly. =B&C 1here an area fronts on a swam%) a give6and6take straight line !o#ndary shall !e ado%ted wherever %ossi!le. B-C Indefinite median lines) which cannot !e re6esta!lished !y s#rvey) shall !e avoided. B4C *wam%s of an average width of &3: metres or more shall !e excl#ded from the farms) and a straight line !o#ndary along the edge of the swam% shall !e s#rveyed and !eaconedY. It seems definite that there has !een concern in 0enya legislation to find how to %rotect the coastal environment. There has also !een a deli!erate effort to esta!lish the width of land from the high water mark) which can afford that %rotection. The decision of the Director of 01* seemed rather des%erate since &:: feet does not seem to corres%ond to any of the width seen #% to this stage. It seems) f#rther) that %rotection of a coastal !elt !eyond high water mark will remain a concern as 0enya 1ildlife *ervice) in its Draft 1ildlife Policy) -::
7 stresses
management
of coastal ecosystems) in general) and marine %rotected areas) in %artic#lar. The foregoing
reviews also s#ggest that 0enyan legislators are alert to the necessity to %rotect coastal swam%s
" ln
some ?#risdictions) the /ean 9igh 1ater /ark is called Ordinary 9igh 1ater /ark BO91/C characterised
as the =%oint on the !ank or shore #% to which the %resence and action of the water is so contin#o#s as to leave distinct mark either !y erosion) destr#ction of terrestrial vegetation or other easily recognised characteristic= 6 1isconsin $#rea# of Fisheries /anagementC) !ased on the case Dian *hooting (l#! v 9#sting B&7&5C &3' 1is. -&') - - o!tained from we!site; htt;@@-:7."3.&-76&:5@searchL>_cache;x<5.0oIO6SkG;www.co.oconto.wi.#s@iS oconto@d@.... On & th G#ly -::&.
7 Draft
1ildlife Policy -:: ) Page &7) Para 3.4.
and wetlands) a reasoning corro!orated !y the cha%ter on wetlands in this vol#me. The only clear %ro!lem is the #ncertainty in the delimitation of what constit#tes coastal Done) incl#ding the coastal wetlands or swam%s. It seems rather %recario#s to rely only on the e%isodic %ower of eminent domain and ,and Ac>#isition Act to deal with s%ecific circ#mstances as they arise) or as land #se conflicts !ecome live. *ection 33 of the +nvironmental /anagement and (o6ordination Act) &777 B+/(AC makes antici%atory %rovisions relating to %rotection of coastal Dones. &: For instance) in the first %lace) it re>#ires the /inister) !y notice in the <aDette to declare an area to !e a %rotected coastal Done !#t does not s%ecify either the conditions that sho#ld ?#stify s#ch %rotection or the n#merical delimitation of s#ch an area. 9ow sho#ld it !e meas#redL *econdly) in %aragra%h B-C the article makes a mandatory %rovision on the 2ational +nvironment /anagement A#thority) in cons#ltation with lead agencies) to cond#ct a s#rvey of 0enya8s coast with a view to %re%aring =an integrated coastal Done management %lan !ased on the re%ort of s#ch s#rvey=. (onditions to
!e incl#ded in the s#rvey) and therefore the %lan) are also s%elt o#t while %aragra%h 4 re>#ires the A#thority to review the %lan !iennially. Paragra%hs 3 to deal with re>#irement for %revention of %oll#tion of the coastal Done and creates offences in event of violation. Unfort#nately) the section does not say what is to !e done with the integrated coastal Done management %lan. <iven that the sco%e or width of the coastal Done is not s%ecified) %re%aration of this im%ortant %lan seems to add little val#e to the defective sit#ation) which %re6existed +/(A. For the sake of long term rational management of the coastal ecosystem as disc#ssed a!ove) it seems that certain rather radical legislative Bor even constit#tionalC meas#res !e taken. First) a definite and standard width from high water mark sho#ld !e agreed #%on. The Director of 01* o%ted for &:: feet) which is a%%roximately 4: metres. A width of ': metres has !een %ro%osed and &3: metres is %rovided for certain swam%s or wetlands #nder the *#rvey Act. A line !y that width and %arallel to the coastline and the high water mark sho#ld !e drawn along the entire coastline to %rovide the sco%e of the legal coastal Done. It is a massive task to effect #nder ,and Ac>#isition Act) !#t not im%ossi!le. That o!?ective may also !e achieved thro#gh constit#tional dis%ensation. +ither way) the demands for com%ensation !y the %rivate land owners may !e h#ge. It ?#st de%ends on whether %#!lic %olicy is resol#te a!o#t rational management of the coastal Done. *econdly) there wo#ld have to !e a clear ?#ridical regime s%ecifying the modalities for
integrated coastal Done management. && Prevention of %oll#tion is a %olice %ower) which takes into
&: 2ote
that there are corres%onding and similar %rovisions #nder *ection 5-. (oastal Hone management has !een a %o%#lar to%ic worldwide since &7 :. *ee for instance) 0etch#m K $ostwick
&& Integrated
M&7 -NE /ichell M&7"'N.
acco#nt im%eratives of management. The normative re>#irements and enforcement %roced#res may initially !e iss#ed !y the /inister as reg#lations #nder %aragra%h B'C of *ection @@. 9owever) the %recise action is a matter of %olicy decisions. 1e note that the !elt a!ove the high water mark and its %ossi!le reg#latory regime as a!ove is only a %ro%osal. 1hat is definite #nder the existing law is the !elt !etween the low water mark and high water mark) which is government land within which 0enya may %rescri!e and enforce the law of territorial interest. It may !e #sef#l for these %rovisions to !e s%ecified in +/(A) to s#%%ort the re>#irements of its *ection 33. It sho#ld !e ke%t in mind) tho#gh) that in the long r#n the %osition of low and high water marks may change de%ending on the trend and im%act of glo!al climate change res#lting from emission of greenho#se gases. *cientists forecast that there will !e a rise of !etween 4& and &&: cm of sea level antici%ated !y the year -&::.&- Altho#gh that is the glo!al magnit#de of sea level rise) it is well known that water will find its own level the world over. (onse>#ently) the evident effects s#ch as in#ndation of coastal lowlands) erosion of coastlines and aggravation of coastal
flooding) among other im%acts will !e e>#ally glo!al. F#lnera!ility de%ends on whether the coastline is) on the average) low6lying. *cientists o!serve that for 0enya coastline) sea6level rise wo#ld inevita!ly lead to s#!mergence of large tracts of land and disr#%t esta!lished ecosystems. &4 They add that for to#rism) s#ch sea level rise will in#ndate to#rism esta!lishment in the low6lying areas and may conceiva!ly damage infrastr#ct#re along the coast.&5 Th#s) even tho#gh it was s#ggested ealier that a !elt of land !eyond the high water mark sho#ld !e reserved as government land for environmental conservation %#r%oses) %re%arations to co%e with im%act of climate change may call for an even more radical a%%roach. These facts sho#ld !e %resected to the to#rism esta!lishments along the coast !eca#se it does not a%%ear tha glo!al mitigation meas#res are evolving ra%idly eno#gh to %revent the disastro#s sea level rise) which is antici%ated in existing literat#re. Del%#%tat%on of Ken'aHs Ma %ne En)% on#ent 3a4 Int o*+!t%on Disc#ssion of the area within which a *tate may %rescri!e and enforce environmental laws re>#ires first and foremost tha the delimitation of the area according to existing national laws !e
&- *ee &4 I#id &5 I#id.
Aw#or M&77 ;&55N) Ogola) A!ira K Aw#or M&77 ;&43)&55N. *ee also U2+P M-::-; -764&N) at &53.
ascertained. In 0enya) there are two %rinci%al instr#ments that may %rovide direction as to the sco%e of the aea #nder national ?#risdisction. They are the /aritime Hones Act ado%ted in &7"7&3 and the Proclamation !y the President of the .e%#!lic of 0enya in res%ect of the +xcl#sive
+conomic Hone and the Territorial 1aters iss#ed on 7 G#ne -::3. &' According to its long title) The /aritime Hones Act is \An Act of Parliament to consolidate the law relating to the territorial waters and the (ontinental *helf of 0enyaE to %rovide for the ex%loration and ex%loitation and conservation and management of the reso#rces of the maritime DonesE and for connected %#r%osesY. (#rio#sly) even tho#gh that stt#tes states the intention to consolidate the vario#s laws) nowhere in the text or in the margin does it indicate the re%eal of either the Territorial 1aters Act of &7 - or the (ontinental *helf of &7 3. & The %resentation in this section will !e in the following sections; B!C Determination of the !aseline or the low6water markE BcC Delimitation of the territorial watersE BdC Delimitation of the +xcl#sive +conomic HoneE BeC Delimitation of the (ontinental *helE and BfC the character of (ontigo#s Hone. 3b4 Dete #%nat%on of basel%ne *ections 4B&C of the /aritime Hones Act s%ecifies that the !readth of the territorial waters of 0enya shall !e twelve na#tical miles. It adds in the ens#ing %aragra%h that the !readth of the water shall !e meas#red in accordance with the &7"- United 2ations (onvention of the ,aw of the *ea. *ignificantly) that (onvention s%ecified in Article 4 that the !readth of the territorial sea is meas#red from the !aseline. A normal !aseline) according to Article 3) is the low water line along the coast as marked on large6scale charts officially recognised !y the coastal state. (learly) it wo#ld have !een #sef#l if the coordinates for 0enya8s !aseline had !een descri!ed in a sched#le to the Act) the way they have done territorial waters and the excl#sive economic Done in section 5. In a small way) 0enya8s coast) es%ecially to the north neigh!o#ring *omalia and in the so#th neigh!o#ring TanDania) has indentations and tr#ncations which) to a small extent) is
analogo#s to the 2orwegian coast. The dis%#te over the criteria for delimitation of the 2orwegian coast had im%lication for delimitation of its offshore fisheries ?#risdiction) which was resolved !y the International (o#rt of G#stice in &73&.&" *#ch a descri%tion wo#ld also remove any do#!t as to
&3 (ha%ter &' Iss#ed &
4 &) .evised +dition) &77&.
in 0enya <aDette *#%%lement 2o. 33 of -- G#ne -::3E ,egal 2otice 2o. "-.
*ee Okidi M&7 "; 5'6'-N. Ca&e 5Enited Kingdom v 1orway7 ICK 9eport, &73& at &&'.
&" Fi&herie&
the %recise direction of the !aseline since two other im%ortant Dones de%end on it) as is also determination of the area which is national and territorial. Professor Alexander &7 em%hasiDes that there sho#ld !e no do#!t a!o#t the %recise demarcation of the !aseline !eca#se it s%ells o#t the waters landward s#ch as !ays and est#aries) which are internal and domestic to the coastal state and th#s determines the seaward claim of the coastal state to the territorial sea and) if claimed the contig#o#s Done and the excl#sive economic Done.-: It is in that context that section 4B4C of the /aritime Hones Act s%ecifies that =for the %#r%oses of Article of the ,aw of the *ea
(onvention) Ungwana $ay Bformerly known as Formosa $ayC shall !e deemed to !e and always to have !een a historic !ayE and the /inister may !y notice %#!lished in the <aDette) declare any other !ays or waters to !e historic !ays or waters=. It seems %ertinent that other than !y cartogra%hic delineation) the !aseline sho#ld also !e descri!ed in a sched#le.8
3!4 Del%#%tat%on of te %to %al -ate s According to *ection 4B&C of the /aritime Hones Act) (a% 4 &) ,aws of 0enya) 0enya8s territorial waters extend to twelve B&-C na#tical miles. This) indeed) is a s#ccessor to the Territorial 1aters Act of &' /ay &7 - mentioned a!ove and which was revised in &7 is incor%orated in the /aritime Hones Act !y way of the consolidation ex%ressed in the long title. Paragra%h 5 of section 4 is somewhat #nclear as it states that in instances of 4coa&tline ad3acent to neigh!o#ring states) the !readth of the territorial waters shall extend to every %oint of what is e>#idistant from the nearest !aseline from which the !readth of the territorial waters of res%ective *tate is meas#red.= In fact) the factor of e>#idistance in the determination of territorial waters sho#ld a%%ly to oppo&ite rather the ad3acent coastlines.-& In other words) e>#idistance %rinci%le may have !een a%%lied on the so#thern !o#ndary on the Pem!a (hannel vi& a vi& Pem!a Island) which is o%%osite to 0enyan coast rather than mainland TanDania) which is ad?acent. It will !e recalled that after negotiations and =+xchange of 2otes !etween the United .e%#!lic of TanDania and 0enya concerning Delimitation of the Territorial 1aters $o#ndary $etween the two *tates from & Decem!er &7 3 and 7 G#ly &7 7= the two co#ntries concl#ded an agreement !y that title relative to Pem!a (hannel.-- It will !e recalled that after several instances of fishermen from
&7 *ee -: I#id -& For
and
s#ccinct analysis of the im%ortance of !aseline in Alexander. M&7"4; 3:4634'N. at 3:4. conce%t#al distinction and %ractical g#idelines develo%ed d#ring negotiations of the U2 (onvention on the ,aw of *ea)
see
Adede M&7 7; -:7 et se>NE Fa#lner M&7 ';

-- The
6&:3N.
instr#ments constit#ting the Agreement may !e accessed at the we!site) 2ational legislation 6 DOA,O*@O,A6U2IT+D
2ATIO2*.
0enya !eing arrested for illegally fishing in the TanDania waters of the Pem!a (hannel way !ack in &7 :) !ilateral negotiations !etween 0enya and TanDania commenced in /ay &7 & leading event#ally to the Agreement.-4 This is the an exam%le of determination of !o#ndaries with a%%lication of e>#idistance %rinci%le and for o%%osite rather than ad?acent coasts. It wo#ld a%%ear that this anomalo#s reference has in fact !een lifted from %aragra%h 5 of section - in the Territorial 1aters Act of &' /ay &7 - Brevised in GDAA7.'? In accordance with section 4 of the /aritime Hones Act) the First *ched#le %rovides a descri%tion of the !o#ndaries of the territorial waters of 0enya. Th#s) it is %ossi!le to com%are the descri%tion with the cartogra%hic %resentation on the ma%. 1hat is c#rio#s is that there is a difference in %resentation here from what may !e a clearer %resentation in the First *ched#le to the Proclamation !y the President of the .e%#!lic of 0enya) iss#ed on 7 G#ne -::3. The latter instr#ment was) prima ,acie, intended to foc#s on delimitation of the excl#sive economic Done and does) indeed) %resent a se%arate sched#le for that %#r%ose. 2evertheless) the Proclamation %rovides a sched#le on the territorial waters. The %#r%ose of this sched#le to the stat#te is #nclear !eca#se a descri%tion of the delimitation of the excl#sive economic Done does not de%end on the sco%e of the territorial waters. .ather) !oth de%end) as a r#le) on the common !aseline. A%art from the fact that attachment of a sched#le on territorial waters to a Proclamation) which is
%rimarily an excl#sive economic Done) is anomalo#s it is also somewhat misleading to have two different versions of the sched#le; in the /aritime Hones Act and on the Presidential Proclamation and the latter) coming as it does) later in time) not making any reference to the former. The two need to !e harmonised) %ossi!ly in a revised /aritime Hones Act. That technical conf#sion notwithstanding) it seems certain that the area of the territorial waters of 0enya is 7) :: s>#are kilometers. It is within this maritime Done where) with only s%ecific exce%tions) international law a#thorises the coastal state to %rescri!e and enforce laws to the same extent as it can on its own land territory. The framework environmental law) +/(A) in its section -) recognises the characterisation and delimitation in the /aritime Hones Act as disc#ssed already. In addition) *ection 5- B4C BhC recognises the %owers of the /inister to %rescri!e s%ecial g#idelines for access to and ex%loitation of living and non6living reso#rces in that Done of marine environment of 0enya. 3*4 Del%#%tat%on of t&e e2!l+s%)e e!ono#%! 5one
-4 The -5 This
%ress re%orts of the time are reco#nted in Okidi) &%pra note & at 5)&56&3. may !e accessed at the we!site; 2ational legislation 6 DOA,O*@O,A 6 United 2ations. In fact) the whole of section 4 is
ado%ted m%tati& m%tandi& from section - of the &7 - stat#te.
Delimitation of the excl#sive economic Done has a rich history and) at one %oint) among the most controversial matters in modern international law of the sea. -3 Delegates of African co#ntries)-'
and %artic#larly 0enya) introd#ced that conce%t in &7 & and %layed a leading role in sha%ing the conce%t d#ring the Third United 2ations (onference on the ,aw of the *ea. - $eca#se the 0enyan form#lation of excl#sive economic Done seemed %recise in its foc#s on economically via!le reso#rces and lacking am!ig#ities inherent in ,atin American form#lations) -" it ca%t#red and retained imagination o, the delegate&. Bhere,ore, the concept al&o fo#nd acce%tance at the international level.-7 On -" Fe!r#ary &7 7) 0enya iss#ed a Presidential Proclamation declaring esta!lishment of an excl#sive economic Done extending !eyond the territorial sea #% to a distance of -:: na#tical miles) meas#red from the a%%ro%riate !aseline from where the territorial sea is meas#red. 4: They had attached a sched#le showing the coordinates. The Proclamation %oints o#t that it had no effect or delegation on the rights of the .e%#!lic of 0enya over the continental shelf as defined in the (ontinental *helf Act of &7 4.4& As noted from its long title) the /aritime Hones Act) whose date of commencement was -3 A#g#st &7"7) was intended to consolidate existing laws relating to) inter alia,esta!lishment and delimitation of the excl#sive economic Done of 0enya. Therefore) it is %res#med to have s#%erceded the &7 7 Proclamation. Paragra%h B&C of *ection 5 esta!lishes the excl#sive economic Done of 0enya. On the other hand) the %aragra%h s%ecifies that s#!?ect to existence of land mass on the side of TanDania and on the side of *omalia) the excl#sive economic Done =shall com%rise those areas of the sea) sea!ed and s#!soil that are !eyond and ad?acent to the territorial waters) having as their limits a
line meas#red seaward from the !aselines) low water line or low tide elevations descri!ed in the First *ched#le) every %oint of which is -::: na#tical miles from the %oint on the !aseline) low water mark or low tide elevations=.
-3 That
fascinating history is !eyond the sco%e of this cha%ter) !#t has engaged scholarly commentary in several works. *ee) for
instance 9ollick M&7 5; 5756577N Okidi M&7 "; 7 6&:-NE Pierce M&7"4; 3"&6 ':&N.
-' Okidi -
M&7"-; 476 &N.
Okidi) &%pra note & at '-6"3. for instance) the doctrine of %atrimony %ro%osed from FeneD#ela delegation in Ag#ilar M&7 -NE <arcia6Amador M&7 &; 446
-" *ee)
3&N.
-7 *ee 4: The
Okidi) &%pra note - at '46"3. Presidential Proclamation of -" Fe!r#ary &7 7 is availa!le on we!site; 2ational ,egislation 6 DOA,O*@O,A6 United
2ations. There is a !rief descri%tion of coordinated !#t no sched#le or ma% in the we!site.
4& It
is %ointed o#t here) and consistently that this research has not traced any continental shelf Act of &7 4 for 0enya. Instead) it
has fo#nd evidence of (ontinental *helf Act BAct 2o. 4C of &7 3 re%orted to have come to effect on 5 A%ril) &7 3 and now (ha%ter 4&-) ,aws of 0enya) see s#%ra note & at 3:.
The so#thern !o#ndary is ex%licitly descri!ed in %aragra%h B4C and may have !enefited from the Pem!a (hannel Agreement reached thro#gh +xchange of 2otes d#ring &7 3 and &7 ' as descri!ed a!ove.4- 9owever) the northern !o#ndary of the excl#sive economic Done with *omalia shall !e delimited !y notice in the <aDette !y the /inister once a !ilateral agreement is reached !etween the two *tates in accordance with international law. 44 That was the %osition #% to &77&. It sho#ld !e %ointed o#t too) that the First *ched#le only %rovided for the demarcation of the area of the territorial waters and has !een disc#ssed in that context a!ove) and this s#ggests a drafting error at that time and sho#ld !e rectified.
1itho#t any reference to the /aritime Hones Act) and as if 0enya has never esta!lished any claim to the excl#sive economic Done) ,egal 2otice 2o. "- of -- G#ly -::3 45 %#!lished Proclamation !y the President of the .e%#!lic of 0enya dated 7 G#ne -::3) which stated that =...it is necessary that a declaration !e made esta!lishing the extent of the.. .+xcl#sive +conomic Hone of the .e%#!lic of 0enya=. The first o%erative %aragra%h of the Proclamation states as follows;
G. Bhat notwith&tanding any role o, law or any practice which may hitherto have #een o#&erved in relation to Kenya or the water& #eyond or ad3acent to the territorial &ea o, Kenya, the E<cl%&ive Economic Fone o, the 9ep%#lic o, Kenya &hall e<tend acro&& the &ea to a di&tance o, two h%ndred na%tical mile& mea&%red ,rom the appropriate #a&eline ,rom where the territorial &ea i& mea&%red a& indicated in the anne<%re to thi& proclamation...
Thereafter) the Proclamation %roceeds to %rovide coordinates for the !o#ndaries to the so#th and north) with TanDania and *omali) res%ectively. .ecall too that the /aritime Hone Acts did not %rovide either s#ch coordinates or a sched#le on +xcl#sive +conomic Hone. +ven tho#gh in the text a First *ched#le was intended to show coordinates for the excl#sive economic Done) in fact it t#rned o#t to !e that which was for territorial waters. 1ith only small variations) the significance of which can not !e determined in this cha%ter) the descri%tions of the coordinates in the Proclamation of -::3 are nearly identical with those %rovided in the Proclamation of &7 7. O%erative %aragra%h - of the Proclamation of -::3 declares that it 4... MrNe%laces earlier Proclamation !y 0enya !#t shall not affect or !e in derogation of the vested rights of the .e%#!lic of 0enya over the (ontinental *helf as defined in the (ontinental *helf Act) &7 4.=
Altho#gh it is o!served) once more) that this research is familiar only with the (ontinental *helf Act of &7 3) it is also of interest that the Proclamation of -::3 refers only to earlier Proclamation
4- *ee
reference in &%pra note --. B5C. ,egislative *#%%lement 2o. 33 of -- G#ly -::3. ,egislative *#%%lement 2o. 45.
44 Para.
45 0enya
!y 0enya) which made no reference at all to the /aritime Hones Act and its %rovisions on excl#sive economic Done. The -::3 Proclamation had two sched#les) First and *econd) s%ecifying coordinates for territorial waters and another for the excl#sive economic Done. It wo#ld !e interesting to ascertain if it was in the coordinates that the Proclamation added val#e to the /aritime Hones Act and why the Proclamation is silent on the Act. Altho#gh the doctrine of later in time sho#ld !e valid in law) the stat#s of a Presidential Proclamation vi& a vi& an Act of Parliament in this context sho#ld !e clarified. 1as the President) in making the %roclamation) aware of the stat#teL The delimitation of the excl#sive economic Done #nder 0enyan law as disc#ssed a!ove is consistent with the %rovision of the &7"- ,aw of the *ea (onvention where Article 3 %rovides that the Done shall not extend !eyond -:: na#tical miles from the !aseline from which the !readth of the territorial sea is meas#red. *imilarly) the rights) ?#risdiction and d#ties s#mmarised in section 3 as the exercise of sovereignty is consistent with the %rovisions #nder Article 3' of the
(onvention. The Proclamation of -::3 sim%ly s#mmariDes the rights #nder the (onvention in the first %ream!#lar %aragra%h. *ection 3B3C of the /aritime Hones Act states that 0enya is com%etent to exercise) within the +xcl#sive +conomic Hone) sovereign rights with res%ect to the ex%loration) ex%loitation) conservation and management of the nat#ral reso#rces of the Hone. +/(A) for its %art) makes scanty !#t not inade>#ate mention of excl#sive economic Done. *ection - entitled =inter%retation= or meaning of terms) states =excl#sive economic Done means the excl#sive economic Done esta!lished and delimited #nder section 5 of the /aritime Hones Act= and that has !een disc#ssed a!ove. Under section 5-B4C BhC) the /inister is em%owered to iss#e general or s%ecific orders) reg#lations or standards for management and g#idelines for access to and ex%loitation of living and non6living reso#rces of the continental shelf territorial sea and the excl#sive economic Done. This is consistent with the re>#irements in the area s%ecific laws. 3e4 Del%#%tat%on of t&e !ont%nental s&elf The s#!?ect of delimitation of the %hysical continental shelf and its %recise ?#ridical sco%e has engaged de!ates in international law from &753 when the United *tates %roclaimed excl#sive ?#risdiction to s#ch a shelf witho#t stating the %recise n#merical limit. 43 The factor) which motivated the Proclamation) as the text testifies) is the nat#ral reso#rces wealth) %artic#larly hydrocar!on) which the coastal state was determined to ex%loit for national interest. 1hen the
43 United
*tates Presidential Proclamation 2o. -'' on =Policy of the United *tates with res%ect to the 2at#ral
.eso#rces of the *#!soil and *ea!ed of the (ontinental *helf=) generally referred to as the Tr#man Proclamation of *e%tem!er -")&753 is re%rod#ced in ,ay et al M&7 4;&:'6&:7N.
first o%%ort#nity for codification of law relating to that offshore !#t s#!marine !elt occ#rred in &73") Article & of the United 2ations (onvention on the (ontinental *helf 4' !ased its definition largely on ex%loita!ility of the reso#rces and said it is;
5a7 to the &ea#ed and &%#&oil o, the &%#marine area& ad3acent to the coa&t #%t o%t&ide o, the territorial &ea, to a depth o, '(( metre& or, #eyond that limit to where the depth o, the &%per3acent water& admit& o, the e<ploitation o, the nat%ral re&o%rce& o, the &aid area&. 5#7 to the &ea#ed and &%#&oil o, &%#marine area& ad3acent to the coa&t o, i&land&0A
1ithin ten years it was realised that a definition that relied on technological determinants of ex%loita!ility was misleading. .a%id advances in technology had nearly rendered any %art of the sea!ed ex%loita!le and the interests had ex%anded !eyond hydrocar!ons of the geogra%hical continental shelf to ferro6managanese nod#les of the dee% sea6!ed. This is one of the iss#es that %rom%ted the convening of the Third United 2ations (onvention on the ,aw of the *ea whose s#!stantive sessions were cond#cted from &7 5 to &7"-. $eca#se delimitation of continental shelf de%ends on %hysical config#ration and national reso#rce interests of the coastal states) 4" delimitation of ?#risdiction is often fra#ght with dis%#tes and conflicts) sometimes ending !efore international tri!#nals. *#ch was the case in 2orth *ea where the dis%#te in 1orth -ea Continental -hel, Ca&e& 0D defied the existing %rinci%le of e>#idistance and reco#rse had to !e taken in doctrine of e>#ity. The dis%#tes are %artic#larly ac#te in ocean areas where reso#rces s#ch as hydrocar!on traverse frontiers of res%ective *tates.5:
*ome of the dis%#tes are fairly recent and were resolved thro#gh ad?#dication !y the International (o#rt of G#stice. +xam%les incl#de the dis%#te !etween ,i!ya and /alta) 5& and the case !etween (ameroon and 2igeria) with intervention !y +>#atorial <#inea decided in -::-.54' .eference
is made to the first o%%ort#nity !eca#se the iss#e does not seem to have engaged international conference
di%lomacy #ntil the codification and %rogressive develo%ment of international law !y the International ,aw (ommission) which c#lminated in the &73" ,aw of the *ea (onference. The (onference for the (odification of International ,aw held at the 9ag#e #nder aegis of the ,eag#e of 2ations in &74: dwelt at length on the legal regime of territorial waters and the high seas and not the continental shelf. $ct& o, the Con,erence ,or the Codi,ication o, International Law BThe 9ag#e &74:C Annexes I and F at & 7 6 -& .
4
The text of the &73" (onvention is re%rod#ced in ,ay et al s#%ra note 43 %%.&:&6&:3. For re%orts on the fo#r &73"
conventions) see Gess#% M&737; -54 et se>NE Dean M&7'7; 4:564-3N.

4" Fo#lner 47 2orth
M&7 ';
6&:3N.
*ea (ontinental *helf (ases; Federal 9ep%#lic o, Germany and 8enmark and Federal 9ep%#lic o, Germany ana Bhe
1etherland&. International (o#rt of G#stice I.(.G. .e%ort &7'7 at 4 for ?#dgment of Fe!r#ary -:)&7'7.
5: *ee
for instance ,agoni) .einer M&7 7; -&36-54N. *ee also an analogo#s %ro!lem as *a#di Ara!ia laid claim I hydrothermal
!rines at the !ed of the .ed *ea in an area where *#dan might have a legitimate claim) in .oss LGDBF.&'3N. *a#di Ara!ia Decree relating to Ownershi% of .ed *ea .eso#rces. .oyal Decree 2o. /6- of *e%tem!er = &7'" is re%rod#ced in ,ay et al &%pra note 43 at &&7.
5& (ase
concerning the land and maritime !o#ndary !etween (ameroon and 2igeria 5Cameroon v 1igeria: + G%inea
intervening7 I(G .e%ort -::- at 5.

5- (ase
concerning the land and maritime !o#ndary !etween (ameroon and 2igeria B Cameroon v 1igeria: E:%atorial G%inea
intervening5 I(G .e%ort -::- at 5.
The %oint is that dis%#tes hinging on delimitation of the continental shelf or maritime Dones have origins in the old legal regime of ocean s%ace) with the discredited &73" definition of continental shelf !ased on ex%loita!ility. They have %ersisted #nder the new regime of the &7"United 2ations (onvention on the ,aw of the *ea. The new regime has offered a n#m!er of
alternatives for determining %recise delimitation of the continental shelf) and from which 0enya) as a %arty to the (onvention) co#ld choose. The first definition and which favo#rs coastal states with narrow continental shelves and margin is in Article ' B&C of the &7"- ,aw of the *ea (onvention which states that; Bhe continental &hel, o, a coa&tal -tate compri&e& the &ea!#ed and &%#&oil o, the &%#marine area& that e<tend #eyond it& territorial &ea thro%gho%t the nat%ral prolongation o, it& land territory to the o%ter edge o, the continental margin, or a di&tance o, '(( na%tical mile& ,rom the #a&eline& ,rom which the #readth o, the territorial &ea i& mea&%red where the o%ter edge o, the continental margin doe& not e<tend to that di&tance. This definition %ermits a coastal state with a narrow geogra%hical continental shelf to claim a legal continental shelf) which is cotermin#s with the -:: miles excl#sive economic Done. It is sim%le and easy to determine and im%lement. The second definition) fo#nd in %aragra%h 5BaC) allows the coastal state to esta!lish the o#ter continental edge of the continental margin wherever it extends !eyond -:: na#tical miles !y either a straight line not exceeding ': na#tical miles in length connecting all %oints !eyond the -:: miles) defined !y latit#des and longit#des. The third o%tion) ideal for co#ntries with ex%ansive continental shelves s#ch as $raDil) Argentina) and Indonesia offers an o%tion of a maxim#m of 43: na#tical miles and a maxim#m of &:: na#tical miles from -)3:: metre iso!aths. Article 'BaC re>#ires each coastal state to determine her %referred o%tion for delimitation of continental shelf) %rod#ce =charts of relevant information) incl#ding geodetic data) %ermanently descri!ing the o#ter limit of its continental shelf= and to de%osit the same with the *ecretary6 <eneral of the United 2ations. The latter is re>#ired to give d#e %#!licity to s#ch information. It is confirmed in Article B&C that =MtNthe coastal state exercises over the continental shelf
sovereign rights for %#r%oses of ex%loring it and ex%loiting its nat#ral reso#rces. To em%hasiDe the nat#re of the sovereign rights that 0enya is entitled to en?oy over the continental shelf) let #s >#ote from the ?#ris%r#dence of the International (o#rt of G#stice in the 1orth -ea Continental -hel, Ca&e& as follows;
...LBMhe mo&t ,%ndamental o, all the r%le& o, law relating to the continental &hel, en&hrined in $rticle ' o, the GD@) Geneva Convention, tho%gh :%ite independent o, it ! namely that Internal Teaching Use Only 3&7 the right& o, the coa&tal &tate in re&pect to the area o, continental &hel, that con&tit%te& a nat%ral prolongation o, it& land territory into the %nder the &ea e<i&t ip&o ,acto and a# initio, #y virt%e o, it& &overeignty over the land, and a& an e<ten&ion o, it in and e<erci&e o, &overeign right& ,or the p%rpo&e o, e<ploring the &ea!#ed and e<ploiting it& nat%ral re&o%rce&. In &hort, there i& here an inherent right. In order to e<erci&e it, no &pecial legal proce&& ha& to #e gone thro%gh, nor have any &pecial legal act& to #e per,ormed. It& e<i&tence can #e declared.. .#%t doe& not need to #e con&tit%ted. F%rthermore, the right doe& not depend on it& #eing e<erci&ed. Bo echo the lang%age o, the Geneva Convention, it i& 4e<cl%&ive4 in the &en&e that i, the coa&tal &tate doe& not choo&e to e<plore or e<ploit the area& o, &hel, appertaining to it, that i& it& own a,,air, #%t no one el&e may do &o witho%t it& e<pre&& con&ent
It sho#ld !e ke%t in mind that this %osition is from %re6/ontego $ay54 legal regime when what was known to law of the sea) al!eit with reservations) was the definition of continental shelf from the &73" (onvention) as a geogra%hic and %hysical !elt. In seeking to introd#ce the legal continental shelf #nder the /ontego $ay regime) it is conceiva!le that %arts of the continental margin might remain o#tside the area as s#!mitted to the *ecretary6<eneral #nder Article '. As
s#ch) it is the area so declared that will constit#te the legal continental shelf to which the (o#rt8s made their o!servation. +ach coastal state m#st determine its %referred delimitation and s#!mit a final chart to the (ommission on ,imit of (ontinental *helf within ten years from the date of entry into force of the (onvention for it as%rescri!ed in Annex II to the (onvention. It is with the foregoing !ackgro#nd in mind that we t#rn to examination of delimitation of continental shelf #nder 0enyan stat#te law. The %rinci%al stat#te on delimitation of 0enya8s marine environment is the /aritime Hones Act) already disc#ssed a!ove. .eference to continental shelf is also made in the Presidential Proclamation of -" Fe!r#ary &7 7 on esta!lishment of excl#sive economic Done of 0enya) already disc#ssed a!ove. In %aragra%h &) the %roclamation said the =...Proclamation shall not affect or !e in derogation of the vested rights of the .e%#!lic of 0enya over the (ontinental *helf as defined in the (ontinental *helf Act &7 4=. A second instr#ment in form of Proclamation !y the President of the .e%#!lic of 0enya to esta!lish +xcl#sive +conomic Hone of the .e%#!lic of 0enya was) as disc#ssed earlier) iss#ed on 7 G#ne -::3. The im%ortant %oint for the %resent disc#ssion is that while) in %aragra%h -) the latter declares that the %resent Proclamation re%laces the earlier one) and witho#t s%ecific reference as to date) it adds that =... shall not affect or !e in derogation of the vested rights of the .e%#!lic of 0enya over the (ontinental *helf as defined in the (ontinental *helf Act &7 4=. 9owever) the %roclamation did not make any reference to the /aritime Hones Act) which
54 .eference
to the feet that the new United 2ations (onvention on the ,aw of the *ea was o%ened for signat#re at /ontego
$ay)
Gamaica on &: Decem!er &7"-. 0enya was one of the &&7 co#ntries that signed the Final Act.
had !een ado%ted in &7"7. This research has not traced the (ontinental *helf Act of &7 4 and it may never have existed des%ite the references to it as a!ove. The earliest stat#te on the s#!?ect in 0enya seems to !e the (ontinental *helf Act of &7 3) also known as Act 2o. 4 of &7 3. 55 The stat#te was later factored in law !ooks as (ha%ter 4&- of the ,aws of 0enya. $#t then there is a critical difference !etween the two texts) es%ecially on the >#estion of delimitation. The original Act 2o. 4 of &7 3 ado%ted ver!atim) *ection -B-C the definition of (ontinental *helf from the &73" <eneva (onvention on the (ontinental *helf) which !ecame discredited !eca#se of ex%loita!ility criterion. It may have !een a %ro!lematic definition !#t it offered the direction in o!?ectives and co#ld have !een disc#ssed here as a form of delimitation. Under the version of the Act in (ha%ter 4&-) the definition %aragra%h B-C is indicated as &pent !#t no reference is made to the legal notice n#m!er which ex%#nged the original text of definition. In other words) there are now %rovisions regarding continental shelf !#t witho#t seaward or o#ter delimitation of any kind. It is clear that the legal regime of continental shelf sho#ld !e reviewed with a view to esta!lishing an #% to date text with clear delimitation of the o#ter !o#ndary as re>#ired !y Article ' of the &7"- ,aw of the *ea (onvention. Under the c#rrent #ncertain circ#mstances) one may
have reco#rse to section 5B-C of the /aritime Hones Act) which wo#ld) for a moment) ass#me a national claim to continental shelf) which is coetermin#s with the +xcl#sive economic Done. As disc#ssed earlier) the (onvention on ,aw of the *ea em%owers coastal states to claim excl#sive rights and sovereign rights over the living and non6living reso#rces of the sea) the sea!ed and s#!soil the are !eyond the territorial waters ?#st as claimed in section 5B-C. It is o!served too) that *ection - of the +nvironmental /anagement and (o6ordination Act inter%rets (ontinental *helf to mean excl#sive economic Done esta!lished #nder section 5 of the /aritime Hone Act. The ad?acent delimitation of the (ontinental *helf with TanDania was done in detail and determined thro#gh exchange of notes from & Decem!er &7 3 to 7 G#ly &7 ' as disc#ssed a!ove. Paragra%h B4C of section 5 of /aritime Hones Act sim%ly s#mmariDes an existing and detailed agreement. On the other hand) %aragra%h 5 of that section defers the determination of the northern !o#ndary with *omalia to a later date and) s#!?ect to gaDettement) once !ilateral negotiation is com%leted. It m#st !e noted tho#gh that while the &7"7 stat#te with the &77& revision deferred the %recise demarcation) the Presidential Proclamation of -::3 gave the coordinates for the northern !o#ndary with *omalia on the continental shelf) which s#ggests some negotiation in the co#rse of time. 3f4 Del%#%tat%on of t&e !ont%$+o+s 5one
55 The
date of assent was -3 /arch &7 3 and date of commencement was 5 A%ril &7 3 for analysis of the same) see Okidi) &%pra
note & .
+vol#tion of international law of the sea has) over cent#ries) %rovided for a !elt of the sea !eyond and ad?acent to territorial waters reserved for exercise of ?#risdiction !y the coastal states over s%ecific f#nctions to c#shion territorial interests. 53 In the %rocess) the conce%t was codified as Part II of the <eneva (onvention on Territorial *ea and the (ontig#o#s Hone 5'. At that time) there was no agreement on the o#ter limit of the territorial sea) with the ma?ority of coastal states claiming !etween 4 and &- na#tical miles) as maxim#m. *ection -5B-C of the (onvention %rovided that =The contig#o#s Done may not extend !eyond twelve miles from the !aseline from which the !readth of the territorial sea is meas#red=. On the other hand) %aragra%h B&C of that section stated that in a Done of the high seas contig#o#s to its territorial sea) the coastal state may exercise control over certain s%ecified matters. In essence) a co#ntry which extended the limits of territorial sea to three or fo#r miles co#ld claim only a maxim#m contig#o#s Done of nine or eight) res%ectively. At the Third United 2ations (onference on the ,aw of the *ea) some changes were introd#ced. At the end #nder Article 4 of the (onvention) the !readth of the territorial sea was set at &- na#tical miles.5 Then Article 44 %rovided for coastal state right to a contig#o#s Done as follows; =&. In a Done contig#o#s to its territorial sea) descri!ed as the contig#o#s Done) the coastal state may exercise the necessary control to; BaC %revent infringement of its c#stoms) fiscal) immigration or sanitary laws and reg#lations within its territory or territorial seaE B!C P#nish infringement of the a!ove laws and reg#lations committed within its territory or territorial seaE
-. The contig#o#s Done may not extend !eyond -5 na#tical miles from the !aseline from which the !readth of the territorial sea is meas#red.= Iss#e s#ch as sanitary laws and reg#lations are) prima ,acie, environmental and 0enya might wish to claim the contig#o#s Done in order to %rescri!e and enforce laws as indicated a!ove. 5" 9owever) nowhere in 0enya stat#tes does the co#ntry %rovide for the contig#o#s Done. It is
53 For 5' A 5
disc#ssions well6!eyond the sco%e of this %a%er) see Okidi M&7 "; "36&:-N.
!rief Article -5 with three %aragra%hs.
For an Overview at a critical stage of the (onference) see Oxman M&7"&; -&&6-3'N. are iss#es s#ch as right of hot %#rs#it which) #nder c#stomary international law) %resented %ro!lems over
5" There
where it sho#ld start and now taken care of #nder Article &&& of the ,aw of the *ea (onvention. For %revio#s %ro!lems and arg#ments) see (anada 6 United *tates; *%ecial Goint (ommission B&744 and &743C =The I8m Alone= in United 2ations .e%orts of International Ar!itral Awards vol#me 4 at &':7 or 4..I.AA. &':7. Fital excer%ts are in <reen M&7 "; 5'-6- 5N.
arg#a!le that s#ch laws and reg#lations are enforcea!le within the legal regime of the excl#sive economic Done) which extends to -:: na#tical miles. The !ottom line) of co#rse) is that delimitation can !e done only !y coastal state even tho#gh its validity is s#!?ect to international law. Th#s) the International (o#rt of G#stice) in $nglo!1orwegian Fi&herie& Ca&e o%ined as follows;
Bhe delimitation o, the &ea area& ha& alway& an international a&pect. it cannot #e dependent merely %pon the will o, the coa&tal -tate a& e<pre&&ed in m%nicipal law. $ltho%gh it i& tr%e that the act o, delimitation i& nece&&arily a %nilateral act, #eca%&e only the coa&tal &tate i& competent to %ndertake it, the validity o, the delimitation with regard to other -tate& depend& on international law 5empha&i& added7?D
Invaria!ly) treaty articles %roviding for delimitation only %rovide for the o#ter limit. The coastal state is free to decide whether or not to claim only %art or the whole !readth. Sectoral Legislations and Land$Based Concerns Conte=t
The last section dealt with iss#es of delimitation of different coastal and marine environment of 0enya. That review also disc#ssed the ?#ridical com%etence of 0enya to %rescri!e and enforce laws in the res%ective segments witho#t dealing with the s%ecific laws that may have !een %rom#lgated !y 0enya. The %resent section foc#ses on selected stat#tes that are deemed to relate to the %rinci%al environmental %ro!lems) as well as the extent of consistency to +/(A. +ssentially) then) the concern in this section is the sco%e of laws that may %rotect the ocean environment from deleterio#s effects emanating from land6!ase so#rces. /atters which have deleterio#s effects or ca#sing degradation of marine environment are generally referred to as %oll#tion. The term %oll#tion has attracted diverse definitions) with similarly varied im%lications. For instance) according to section - of +/(A;
poll%tion mean& any direct or indirect alteration o, the phy&ical, thermal, chemical #iological or radio!active propertie& o, any part o, the environment #y di&charging emitting, or depo&iting 2oa&te& &o a& to a,,ect any #ene,icial %&e adver&ely, to ca%&e a condition which i& ha2ardo%& or potentially ha2ardo%& to p%#lic health, &a,ety or a:%atic li,e, or to plant& or ca%&e contravention o, any condition, limitation, or re&triction which i& &%#3ect to a licen&e %nder thi& $ct 5empha&i& added7
The main defect in s#ch a definition is that it re>#ires that there !e act#al alteration of the
57 Fi&herie&
Ca&e Enited Kingdom v 1orway, I(G .e%orts &73&) G#dgment of &" Decem!er &73& at 5) -:.
res%ective segment of environment. Th#s) it characteriDes %oll#tionas an action) which re>#ires that %oll#tion sho#ld !e dealt with e< po&t ,a&to and denies its !eing addressed at %reventive level
or as %art of %reca#tionary meas#res. That defective %hraseology is re%eated in the statement that the alleged discharge sho#ld also have had an effect on !eneficial #se and similar characteristics. *#ch a definition is reminiscent of the re%ort 3: of the Goint <ro#% of +x%erts on *cientific As%ects of /arine Poll#tion B<+*A/PC) which was ro#ndly criticiDed3& d#ring the Third United 2ations (onference on the ,aw of the *ea. *ince the concern is this cha%ter is with degradation of the marine environment) it is %ertinent to look at the definition of %oll#tion of the marine environment) which was event#ally ado%ted in Article &B5C of the &7"- United 2ations (onvention on the ,aw of the *ea) which states as follows;
5?7 poll%tion o, the marine environment4 mean& the introd%ction #y man directly or indirectly, o, &%#&tance& or energy into the marine environment, incl%ding e&t%arie&, which re&%lt& or likely to re&%lt in &%ch deleterio%& e,,ect& a& harm to living re&o%rce& and marine li,e, ha2ard& to h%man health, hindrance to marine activitie&, incl%ding ,i&hing and other legitimate %&e& o, the &ea, impairment o, :%ality ,or %&e o, &ea water and red%ction o, amenitie&, 5empha&i& added7.
The distinct significance in the a!ove conce%t of %oll#tion is that it em%hasiDes the very act of introd#ction of s#!stance of energy as constit#ting %oll#tion so long as what is introd#ced ca#ses or is likely to ca#se deleterio#s effects on BmarineC environment. In other words) agents of %oll#tion or environmental degradation are #ete noire, so o!?ectiona!le that ste%s sho#ld !e taken to %revent their introd#ction into environmental medi#m s#ch as marine environment. They are
o!?ectiona!le !eca#se of the instant harm that may !e created) s#ch as the n#mero#s tragic oil tanker disasters since the Borrey Canyon of /arch &7' case in /inamata incident in Ga%an in &73:s.34 Therefore) if %ossi!le) it is necessary to control agents of %oll#tion or degradation at their very so#rce. As Frank Folger of *#n Oil (om%any once said) =Prevention 6 The $est /ethod of (ontrolling Poll#tion.=35 It is for these reasons that the rest of this section will !riefly o#tline the laws that are related to the %rinci%al so#rces of %oll#tion or degradation of the marine environment of 0enya. All the stat#tes that will !e disc#ssed !elow will have !een examined in different cha%ters in so far as
3: *ee 3& For
3- or
!y !io6acc#m#lation as was the
United 2ations M&7 &; -:N. a detailed disc#ssion) *ee Okidi M&7 "; '6&-N. M&7 4;&36-:N. M&7 5; '6& N.
3- *mith
34 <old!erg 35 Folger
M-::3N.
the s#!?ects of the law is related to environment and to +/(A. The %#r%ose of this cha%ter is to foc#s narrowly on relation of the law %rotection of marine environment. La- Relat%n$ to Lan* Use Under the category of land #se laws) we review the following stat#tes that are related to leading so#rces of degradation of marine environment; B&C Agric#lt#re Act) (a% 4&") ,aws of 0enyaE B-C Physical Planning Act) (a%. -"' ,aws of 0enya) and BcC Forest Act) 2o. $gric%lt%re $ct The link !etween the Agric#lt#re Act and marine environment is the fact that one of the most of -::3.
significant so#rces of degradation of marine environment is the vast loads8of sediment carried to the ocean !y rain water) largely thro#gh rivers. The action leading to the release of the loads is soil erosion d#e to a!sence of vegetative cover and terraces to hold the soil. In other words) the release of the silt loads res#lt from %oor agric#lt#ral %ractices. Together with the silt are the loads of agric#lt#ral chemical in%#ts that accom%any the soil 33 to the marine environment either thro#gh rivers or as wash #%s. The Agric#lt#re Act is the %rinci%le instr#ment dealing with soil convervation and land h#s!andry. Part IF and OII deal extensively with =Preservation of *oil and its Fertility=) where in the former Part the /inister for Agric#lt#re) in cons#ltation with central Agric#lt#ral $oard) may make r#les necessary for %ro%er land management. In event of im%ro%er land #se %ractices) the Director of Agric#lt#re) with conc#rrence of the res%ective District Agric#lt#re $oard) may iss#e an order to a land owner or occ#%ier to constr#ct a%%ro%riate str#ct#res or works to ens#re %reservation of soil and its fertility. F#rther) the /inister may) in event of extraordinary land degradation s#ch as vast galley erosion) constit#ting danger to %#!lic interest) iss#e an order for constr#ction of works to arrest s#ch trends. Arg#a!ly) occ#rrence of ma?or galleys and massive de%osits in marine environment co#ld %rom%t s#ch a ministerial order. The %owers of the /inister) Director of Agric#lt#re) and Agric#lt#ral A%%eals $oard to control activities that lead to
land degradation co#ld have far6reaching %reventive im%act. If these are likely to res#lt in washing #% of the silt load to the ocean) s#ch control meas#res wo#ld %revent marine %oll#tion at so#rce. To f#rther %revent %ractices likely to ca#se soil erosion) the Agric#lt#re B$asic ,and UsageC .#les %rom#lgated in &7'3 %rohi!it c#tting down or destroying vegetation on any land of which the slo%e exceeds 43 %er cent) exce%t with ex%ress %ermission of an agric#lt#ral officer. On the
33 Okidi)
&%pra note 3& at &56&'E /#t#a60ih# M&7"5;&- )&-76&4&N)
other hand) an agric#lt#ral officer may) in writing) %rohi!it destr#ction of vegetation on any land where the slo%e exceeds -: %er cent. In these ways) im%lementation of agric#lt#ral stat#e) as land #se law) can %revent %oll#tion of marine environment at so#rce. A revised and #% to date stat#te on agric#lt#re sho#ld !e harmonised with section 33 of +/(A. Physical Planning .ct!' According to its long title) this is MaNn Act of Parliament to %rovide for the %re%aration and im%lementation of %hysical develo%ment %lans and for connected %#r%oses. As will !e evident from the cha%ter on %hysical %lanning in this vol#me) and s#%%orted !y section 5 and 3 of the Act) the Director of Physical Planning determines how any %hysical %lanning) whether in #r!an or r#ral area) is to ens#re harmony with environmental considerations. The Director has the res%onsi!ility of drawing #% regional develo%ment %lans. 3 In that connection) he has %owers to declare s%ecial %lanning areas that co#ld conceiva!ly a%%ly) inter alia, to the #ni>#e coastal
ecosystem es%ecially !ordering the high water mark. In addition) the Director has a#thority to %re%are local %hysical develo%ment %lans that can) according to section -5B&C) a%%ly to =...to government land) tr#st land or %rivate land within the area of a#thority of a city) m#nici%al) town or #r!an co#ncil or with reference to any trading or market centre....= *#ch a %lan may !e shortterm or long6term. There is no reference s%ecifically to land in coastal and marine areas. 9owever) given the a%%arent conf#sion that was evident on control of develo%ment of land along the coast) it seems im%erative that the exercise of %owers of the Director of Planning sho#ld extend to the coastal areas. It wo#ld a%%ear that there is no national a#thority res%onsi!le s%ecifically for %lanning and control of coastal and marine environment) if it is not covered #nder Physical Planning Act) and there are a n#m!er of com%elling and contem%orary iss#es. First) conservation of the coastal environment) %artic#larly wetlands) is already a serio#s %ro!lem ridden with controversy as is forcef#lly ill#strated in the -ea -tar "alindi Ltd v Kenya /ildli,e -ervice as disc#ssed a!ove. +ven if the government was to com%#lsorily ac>#ire land in the water front as s#ggested in the co#rt ?#dgment) e%isodic and %iecemeal a%%roach wo#ld not assist com%rehensive and long term conservation o!?ective. /oreover) ac>#iring land for %#r%oses of wildlife conservation is a rather narrow view. It wo#ld a%%ear that the Director of Physical Planning is the %#!lic a#thority with %owers to im%lement the necessary regional and local %hysical %lanning. *econdly) it now seems evident that climate change and the accom%anying glo!al warming
3' Act 3
2o. ')&77' now (ha%ter -"' ,aws of 0enya.
*ection &'6-4.
will ca#se sea6level rise.3" /aritime !o#ndaries will) as a conse>#ence) inevita!ly change. 37 In fact) may of the low lying territorial lands and islands may !e s#!merged. ': In the cele!rated -tem 9eview on the Economic Change,HG the %rognosis is that co#ntries of the so#th) %artic#larly so#thern Africa and the /editerranean will s#ffer heavily from) inter alia, sea level rise. The %ro!a!ility is that the sea level rise will affect coastal esta!lishments of 0enya. That 0enya) like other African co#ntries and co#ntries of the so#th) have had hardly any contri!#tion to that environmental degradation is well6recognised and ex%lains the %rinci%le of common !#t differentiated res%onsi!ility in Princi%le of some co#ntries s#ch as 0enya in Annex $ to the &77 0yoto Protocol to the &77- United 2ations Framework (onvention on (limate (hange.'+ven tho#gh 0enya is one of the co#ntries whose contri!#tion to climate change and glo!al warming is nearly non6existent) she will nevertheless s#ffer from the effects s#ch as the rise in sea6level. 9owever m#ch the %olicy makers may do#!t the sco%e of %ossi!le effects they are o!liged to adhere to the %reca#tionary %rinci%le within the meaning of Princi%le &3 of .io Princi%les)'4 which states;
in order to !protect the environment, the preca%tionary approach &hall #e widely applied #y -tate& according to their capa#ilitie&. /here there are threat& o, &erio%& or irrever&i#le damage, lack o, ,%ll &cienti,ic certainty &hall not #e %&ed a& a rea&on ,or po&tponing co&t!e,,ective mea&%re& to prevent environmental degradation
of the .io Declaration and ex%lains non6incl#sion
The imminent environmental danger to 0enya) given the trend in see6level rise) is in#ndation of land well6!eyond the high water mark and %ossi!ly the areas now occ#%ied !y to#rism
esta!lishments. It may !e inevita!le that meas#res of ada%tation !e taken to incl#de %rohi!iting develo%ment constr#ction of a wide !elt of coastline well !eyond the &:: feet) which was #rged !y 0enya 1ildlife *ervice in -ea -tar "alindi case. It is a radical %olicy and legal decisions sho#ld !e made. It seems that the Director of Physical Planning is the correct office to initiate it and seek the radical %olicy decision at (a!inet level for legislative action to !e taken. It is a matter of %roactive and antici%atory %hysical %lanning.
3" *ee 37 *ee ': *ee
analogies from Freestone et al M&77'; -"76445N. &%pra note &-. Freestone K Pethick M&775; 467:N. .eview on the +conomics of (limate (hange B,ondon; 9/ Treas#ry -:: C Accessed we!site; http:>,www.
'& *tern
lim!trea&%ry.go2A.%k>independent+revie2v&>&tern+review+economic&+climate+c. accessed on && G#ly -::'.

'- .e%rinted8in '4 I#id
U2+P ML; &:56&-7N.
at 6&&.
Thirdly) the &7"- United 2ations (onvention on the ,aw of the *ea a#thoriDes 0enya to claim the territorial sea) the continental shelf and the excl#sive economic Done. The >#estion of delimitation of each of these has !een disc#ssed a!ove. *ection 5B-C of the /aritime Hones Act s%ecifies the claim of 0enya to !e -::: miles of excl#sive economic Done. *ection B&C clarifies the sco%e of ?#risdiction to cover the sea6!ed and s#!6soil on matters of ex%loration and ex%loitation) conservation and management of living and non6living reso#rces within the area. <iven that the legal regime of the continental shelf of 0enya is #nclear) with the im%recise %roclamations disc#ssed a!ove) it was concl#ded that the continental shelf of 0enya may !e ass#med to !e coetermin#s with the excl#sive economic Done) which is -:: na#tical miles. Article 'B&C of the ,aw of the *ea (onvention is consistent with the notion in c#stomary
international law) inter alia, to the extent that it characteriDes continental shelf to !e nat%ral prolongation o, a co%ntryC& land territory. The r#les of delimitation !etween *tates with o%%osite or ad?acent coasts ex%ressed in article "4 of that (onvention conc#r with the o%inion of the International (o#rt of G#stice is that;
...the right o, the coa&tal -tate to it& continental &hel, area& i& #a&ed on it& &overeignty over the land domain, o, which the &el, area i& the nat%ral prolongation into and %nder the &ea. From thi& notion o, app%rtenance i& derived which...the Co%rt accept&, that the coa&tal -tateC& right& ip&o ,acto and a# initio witho%t there #eing any :%e&tion o, having to make good a claim to the area& concerned...H?
Altho#gh treaty %rovisions em%ower coastal state to determine the o#ter limit of its continental shelf) the %rinci%le of sovereignty over the continental shelf remains valid. In effect) then) the new legal order of ocean s%ace em%owers 0enya to exercise sovereign rights over continental shelf extending o#tward to -:: na#tical miles and e>#ivalent in area to 7) :: s>#are kilometers for territorial sea %l#s &5-)5:: s>#are kilometers for excl#sive economic Done. At least &3-)&:: s>#are kilometers of %hysical gro#nd s%ace Blet alone e%icontinental watersC #nder water is 0enya8s =real estate@8 so to s%eak) and which is s#!?ect to 0enya8s develo%mental and %hysical %lanning. At the national level) as already o!served) ?#risdiction ratione materiae incl#de) according to section 3 of the /aritime Hones Act) exercise of sovereign rights with res%ect to BaC ex%loration and ex%loitation of the Done for the %rod#ction of energy from tides) water c#rrents and windsE
B!C reg#lation) control and %reservation of the marine environmentE BcC esta!lishment and #se of artificial islands and offshore terminals) installations) str#ct#res and other devicesE and BdC a#thorisation and control of scientific research. A!ove all) the section states clearly that 0enya has sovereign rights with res%ect to the ex%loration and ex%loitation and conservation and
'5 -ee
&%pra note 47.
management of nat#ral reso#rces. If one was to arg#e that sovereign rights with res%ect to the f#nctions listed a!ove im%lies that the &overeign right& are tem%oral and only contingent on exercises of those activities) then it wo#ld mean that a se%arate organ is in control of the area when the %owers are not !eing exercised) otherwise the area wo#ld !e re& m%lli%&. 9owever) the ?#ris%r#dence from 1orth -ea Continental -hel, ca&e& is clear that sovereignty exists ip&o ,acto and a# initio and not s#!?ect to claim. This is f#rther confirmed !y the United 2ations <eneral Assem!ly BU2<AC .esol#tion 4:&' BOOFIIC'3 on Permanent *overeignty over 2at#ral .eso#rce of Develo%ing (o#ntries) which extended a%%lication of the original &5 Decem!er &7'- '' to areas of the sea to !e !ro#ght #nder national sovereignty !y the new legal order of ocean s%ace. One of the key im%lications of the foregoing disc#ssion is that 0enya sho#ld %re%are for the continental shelf #nderlying the 7) :: s>#are .kilometers of the territorial sea and &5-)5:: s>#are kilometers of the excl#sive economic Done some kind of =local and regional %hysical develo%ment %lans= analogo#s to the re>#irements #nder the Physical Planning Act. The range of
activities a#thoriDed !y international law and domesticated #nder section and 7 of the /aritime Hones Act re>#ires that s#ch a %hysical and environmental %lan !e %#t in %lace to %revent conflicts among contending #ses of the area. It is definite) for instance) that %ros%ecting and ex%loitation of marine oil and mineral reso#rces will !e incom%ati!le with coastal a>#ac#lt#re. *imilarly) ex%loitation of the mineral and oil reso#rces may conflict with the laying of s#!marine ca!les and installations. In other words) the %lans sho#ld clearly demarcate areas of com%ati!le) semi6com%ati!le and m#t#ally excl#sive activities. Already) ma%s showing =lease stat#s of ex%loration !locks= for oil in 0enya show that %art of ex%loration !locks in the ,am# !asin cover the entire Indian Ocean coastline) with a%%roximately '5) '4 s>#are kilometers.' The c#rrent trend) according to %#!lic information) is that oil ex%loration contracts will only increase. A%art from oil ex%loration) there are several other s%ecial demands recogniDed !y national and international law. 0enyans) we m#st admit) are highly enter%rising and co#ld vent#re to constr#ct artificial islands in the offshore areas'"and insist that there is nothing in national or international law to %revent what is already envisaged #nder section 3BcC of the /aritime Hones Act. It is
'3 Altho#gh
de!ates in the United 2ations over the >#estion of %ermanent sovereignty over nat#ral reso#rces can
!e traced !ack to &73-) ado%tion of U2<A .esol#tion &":4 BOFIIC on &5 Decem!er &7'- is considered as the consolidation of the %osition that sovereignty over nat#ral reso#rces im%lies com%lete freedom of action for a *tate in determining the #se of those reso#rces.
'' *ee '
the detailed st#dy in United 2ations M&7 :N.
*ee an extensive oil ex%loration ma% in Bhe Ea&t $,rican, Octo!er "6&5) -:: at 3.
'" *cholars
have %ondered the stat#s of artificial islands #nder international law. *ee Pa%adis M&7
N.
e>#ally %ro!lematic to %ermit and %rotect the s#!marine ca!le laid in accordance with domestic and international law in an area of so many activities witho#t %rior %hysical %lan on s%ecific) local or regional scale. Physical %lanning of the s#!marine area of the +xcl#sive +conomic Hone B++HC wo#ld) of necessity) take into acco#nt areas that deserve %rotection #nder the &7 - U2+*(O (onvention (oncerning Protection of The 1orld (#lt#ral and 2at#ral 9eritage '7 as well as the -::- U2+*(O (onvention on the Protection of the Underwater (#lt#ral 9eritage : where the instr#ments may a%%ly. In fact) it is clearly im%erative that 0enya sho#ld #rgently draw #% !road strategic %lans for the entire continental self extending to -:: na#tical miles. It may !e e>#ally necessary to draw #% environmental management %lans within the meaning of +/(A) strategically designed to %rovide g#idelines for the vario#s activities %ermitted !y law in the area. For instance) an ex%licit ?#ridical arrangement for foreigners wishing to lay s#!marine ca!les) %ossi!ly #nder a form of easement) sho#ld !e clearly #nderstood. To design s#ch %hysical) local and regional %lans it may also !e essential to cond#ct some !athymetric st#dies) however general) to advise allocation of s%ace for com%eting activities.
&
It seems evident that given the range of activities that are %ermitted and in some cases act#ally
going on in the continental shelf of 0enya) there sho#ld !e %hysical and environmental %lanning at the local and regional levels. It sho#ld !e easy to see the assignment as within the mandate of the Physical Planning Act. 9owever) to date) the Director of Physical Planning has not ass#med that role and these iss#es sho#ld !e considered in colla!oration with 2+/A. 9owever) there is need) !efore then) to en>#ire if there are other national agencies that co#ld %erform the f#nctions. (learly) s#ch s%ecific f#nctions do not !elong to the Director6<eneral of 2+/A) whose mandate is to %rovide over6arching g#idelines and r#les as well case to cond#ct s#%ervisory and coordination roles for line agencies. *#ch %rovisions are o#tlined in *ection @@, which %rovides for =Protection of (oastal Hone= and section 5-B4C where the =/inster= may iss#e orders and reg#lations relating to conservation of =the continental shelf) territorial sea and the +xcl#sive +conomic Hone.= Arg#a!ly) s#ch reg#lations may re>#ire im%lementation !y a lead agency of the government within the meaning of *ection - of +/(A. A relevant %rovision exists #nder the (oast Develo%ment A#thority Act - where) among the f#nctions of the A#thority set o#t in *ection " is the %ower;
'7 8The
convention is re%rinted in the %#!lication) Asian6African ,egal (ons#ltative (ommittee) $&ian!$,rican 6and#ook on
Environmental Law, %#!lished !y Asian6African ,egal (ons#ltative (ommittee and United 2ations +nvironment Programme M&777;&'46& "N.
: The & *ee
text is re%rinted in International ,egal /aterials Fol. O,I) Gan#ary -::- at 5:63'. some ill#strations in *allenger et al M&7 3N. BhC of section 5-B4C.
- *#!6%ara
...to plan and liai&e with the relevant a%thoritie& a& nece&&ary in the e<ploration and development o, the e<ten&ive ,i&hing and marine activitie& in Kenya, e&pecially in the E<cl%&ive Economic Fone
It is do#!tf#l that the A#thority) as c#rrently constit#ted) wo#ld have the ca%acity and ex%erience to do the local and regional %hysical and environmental %lans of the kind disc#ssed a!ove. Possi!le) and with vastly changed framework) the (oast Develo%ment A#thority co#ld do the %hysical %lans) working with other =relevant a#thorities=. Under its *ection 7B&C of the /aritime Hones Act) 4 the /inister has %owers =... to make reg#lations to reg#late the ex%loration and ex%loitation and conservation and management of the maritime Dones that may !e necessary or ex%edient for carrying o#t the o!?ects and %#r%oses of this Act...=. The notion of local and regional %hysical and environmental %lanning may !e im%lied !y virt#e of the range of activities allowed in the continental shelf and excl#sive economic Done) !#t it is certainly not o!vio#s. 2or is the identity of the =/inister= clear in this stat#te for %#r%oses of identifying the lead agency. <iven that to6date) marine reso#rces of the continental shelf have !een the domain of (ommissioner of /ines and <eology only for %#r%oses of ex%loration of minerals) and not for general %hysical %lanning) the /inister) #nder the /aritime Hone Act may !e constr#ed to !e the President of 0enya 5 which) again) is framework and not a line agency. It seems im%erative that local and regional %lanning as well as com%rehensive environmental %lanning sho#ld !e done on the entire continental shelf and the excl#sive economic Done of
0enya. <iven that oil ex%loration !locks and activities have commenced in the area) these %lanning initiatives sho#ld !e done as a matter of a!sol#te #rgency to avoid short6term and long term conflicts arising from activities %ermitted !y international and national laws. It seems also that the only national law and agency with %hysical %lanning and s%atial allocation is the Director of Physical Planning. On the other hand) it is not clear if that office has #nderstood its mandate to extend to marine environment or continental shelf. It may !e ex%editio#s to %rovide a ?#ridical %rono#ncement) which confirms that the Director of Physical Planning has s#ch a mandate. Finally) it may !e worth ex%loring if) for long6term and tidy legislative action) a new law !e enacted to create an agency res%onsi!le for 0enya8s marine area to incl#de living and non6 living reso#rces as well as s%atial allocation and s#%ervision. Fore&t $ct
4 2ote
that the (oast Develo%ment A#thority Act constr#es =excl#sive economic Done= according to section 5 of the /aritime
Dones Act) &7"7) !#t does not mention the continental shelf.
5 *ection
4B&C of Inter%retation and <eneral Provisions Act) (ha%ter -) ,aws of 0enya) wo#ld s#ggest that. 2ote that the
/aritime A#thority Act 2o. 3 of -::' a%%lies only to monitoring) reg#lation and co6ordination of activities in the maritime ind#stry or sea going vessels and) therefore) will !e disc#ssed later in relation to merchant shi%%ing.
The %rinci%al environmental stat#te) the Forests Act) -::3 3 has !een s#fficiently disc#ssed in a different cha%ter of this vol#me. The concern in this cha%ter is %rimarily in relation to the role of forests in %rovision of vegetative cover and %revention of silt loads !eing carried to the marine
environment. Again) this has !een covered significantly in disc#ssion of agric#lt#ral land #se in this cha%ter. The most im%ortant category of marine reso#rces are mangrove forests that are coastal) indeed thriving in !rackish water) or where salt water mixes with fresh or r#n6off or %artic#larly est#arine water. $eca#se they have extensive %ro% roots) they red#ce erosional effects of tidal c#rrents and also create considera!le de%osition of sand and silt from land6!ased so#rces. For these reasons) mangroves store vast n#trients for fish) which are th#s attracted and make mangrove ecosystems convenient s%awning gro#nds. ' A ma?or ind#stry is !#ilt at 0enya8s coast aro#nd mangrove forests as so#rce of !#ilding %oles and also for charcoal) largely for ex%ort to the /iddle6 +ast. 9arvesting of mangrove) therefore) is a critical matter of %#!lic %olicy. Ironically) mangroves have not feat#red in the Forest Act as a s%ecial category of forest deserving of a s%ecial management regime. In fact) the =mangrove= does not a%%ear in the stat#te. According to a senior officer at the 0enya Forest *ervice ") mangrove forests fall #nder the general r#!ric of nat#ral forests) which vest in the *tate #nder *ection -& of the Act. 7 It is only discriminate economic ex%loitation d#ring the last two decades that has %rom%ted a re>#est to the President) aro#nd &77 ) to order a !an on harvesting of mangrove forests. The !an was lifted again !y an order of the President witho#t any gaDettement) at the re>#est of the local %o%#lation)
which considered themselves de%rived economically. There are evident signs of stress on mangrove forests and scientists from the 0enya /arine and Fisheries .esearch Instit#te B0+/F.IC are #rging the government to develo% systematic r#les for wise #se of mangrove forests.": (onse>#ently) the 0enya Forest *ervice is %lanning to cond#ct a f#ll inventory of mangrove forest along 0enya8s coast and from that develo% a management %lan
3 Act ' For
2o.
of -::3.
details see /#t#a60ih# M&7"5;&- )&546&55N.
I#id.
"A
new stat#tory agency esta!lished #nder *ection 5 of the Act to im%lement the Forest Act) -::3. with a senior officer at the Forest *ervice on && Octo!er -:: .
7 Disc#ssion ": *ee
%o%#lar %ress coverage s#ch as 2d#rya M-:: ; 4N K /wakio M-:: ;&"N. D#ring %re%aration for negotiations
that led to the &7"3 2airo!i (onvention #nder U2+P8s .egional *eas Programme) two l#cid re%orts on the two res%ective %ro!lems were %#!lished; U2+P M&7"-N K U2+P M&7"-N. For the !ackgro#nd and analysis of the (onvention for the Protection) /anagement and Develo%ment of the /arine and (oastal +nvironment of the +astern African .egion ado%ted at 2airo!i on -& G#ne &7"3) see Okidi M&7"3; 5463&N. The nine %arties to the convention are 0enya) (omoros) *omalia) /a#riti#s) /adagascar) *eychelles) TanDania) France B.e#nionC and +#ro%ean Union.
that sho#ld lead to drafting of s%ecial reg#lation for mangroves as s%ecial category of forest. That effort will) ho%ef#lly) !e synchronised with the re>#irements of *ection 33 of +/(A. The net message is that a great deal of legislative develo%ment remains to !e done in the area of land #se to ens#re s#staina!le develo%ment of coastal and marine environment. La-s Relat%n$ to P+bl%! 0ealt& +nvironmental %ro!lems affecting coastal and marine environment) and which relate to %#!lic health) fall %rimarily #nder two !road categories. +ither they are from m#nici%al and domestic
so#rces and therefore characterised as =%#!lic health= %ro!lems or they originate from factories and other ind#strial so#rces and) therefore) identified with ind#stries. Under 0enya legislation) the first category are reg#lated #nder the P#!lic 9ealth Act of &7 -. "& The second category is dealt with #nder the Factories Act of &77:. To the extent that !oth laws are environmental) they affect %#!lic health and environment in general and are) therefore) dealt with f#lly in a different cha%ter in this vol#me. The %resent cha%ter is concerned with the %rotection of marine environment and foc#ses heavily on land6!ased so#rces of marine %oll#tion which constit#tes a%%roximately "3 %er cent of degradation of that environment. The so#rces of %oll#tion have !een a so#rce of glo!al environmental concern since the #%s#rge of heavy #r!anisation and ind#strialisation in the &7':s) %artic#larly !eca#se there were identifia!le modes of discharge thro#gh rivers and o#tfalls. The reasona!le a%%roach to determining the vol#mes and >#ality of discharge is monitoring of what was called .iver In%#t into the *ea) or .IO*."- Altho#gh s#ch discharges co#ld !e %enaliDed #nder the P#!lic 9ealth Act) no serio#s action has !een taken. The #nderlying %ro!lem may also !e #nderstood in the context of ina!ility of the glo!al comm#nity to develo% ex%licitly !inding international agreements. The f#rthest was the <lo!al Programme of Action for the Protection of the /arine +nvironment from ,and6!ased so#rces)
whose activities were ado%ted !y an Intergovernmental (onference in 1ashington D( from -4 Octo!er to 4 2ovem!er &773."4 This remained a hortatory initiative des%ite a declaration "5 that was ado%ted #rging all *tates to esta!lish legal and instit#tional arrangements to %rotect the marine environment from land6!ased so#rces. 1ithin eastern Africa) the 2airo!i (onvention"3
"& (ha%ter "- *ee "4 *ee "5 The "3 *ee
-5-) ,aws of 0enya) .evised &7"'.
detailed disc#ssion in Okidi M&7 ";&76-"N. U2+P BO(AC@,$A@I<.-@ of 3 Decem!er &77 . Declaration is %rinted in U2+P@AA,(() $&ian $,rican 6and#ook on Environmental Law MU2+P &777; -46-'N. &%pra note "-.
dis%ensed with the >#estion of %oll#tion from land6!ased so#rces in a laconical Article follows;
Blie Contracting artie& &hall endeavo%r to take all appropriate mea&%re& to prevent, red%ce and com#at the poll%tion o, the Convention area ca%&ed #y coa&tal di&po&al or di&charge& emanating ,rom river&, e&t%arie&, coa&tal e&ta#li&hment&, or o%t,all &tr%ct%re, or any other &o%rce within the territorie&4 5empha&i& added7.
as
Pres#ma!ly) *ection 33 of +/(Ahas im%licitly domesticated the foregoing treaty re>#irements and) in fact) makes it an offence for anyone to discharge or ca#se to !e released any %oll#ting haDardo#s s#!stances into the marine environment. In addition) the /inister may %rom#lgate reg#lations to %revent or control %oll#tion of the environment thro#gh rivers) o#tfalls or d#m%ing from vessels or aircraft."' Des%ite these clear %rovisions) enforcement has remained el#sive. It may well !e that the old %aradigm where oceans were instit#tional or%hans %erceived as noone8s domain still %ersists. This may well !e an added reason why a s%ecial stat#tory !ody sho#ld !e esta!lished for 0enya8s
marine environment and reso#rces as arg#ed #nder %hysical %lanning a!ove. *#ch and agency wo#ld %lay the fid#ciary role over the &3-)&:: s>#are kilometers of 0enya8s territorial sea) excl#sive economic Done and the continental shelf. Laws elating to Energ& esources A disc#ssion of energy law in relation to environmental management and +/(A has !een done in a different cha%ter in this vol#me. The %resent cha%ter is limited to those as%ects of law relating to energy reso#rces and as they affect coastal and marine environment. Ordinarily) of co#rse) the energy reso#rce that conventionally relate to coastal and marine environment is %etrole#m) which c#rrently is the s#!?ect of the Petrole#m B+x%loration and Prod#ctionC Act." On the other hand) the conventional energy sector is controlled #nder the +nergy Act) -::'. "" In this latter context) we shall mention other categories of renewa!le energy !#t which are so intensely associated with the ocean that some commentators s#!mit that a s%ecial international instr#ment sho#ld !e ado%ted to harmonise the mode of their management. "7 The Petrole#m B+x%loration and Prod#ctionC Act and its im%lementing reg#lations are %lainly commercial) making no %rovision at all for environmental considerations or conservation
"' *ee "
%aragra%hs 3) ' K
of *ection 33.
(ha%ter 4:") ,aws of 0enya. 2o. &- of -::'. K 9erriman M&77"; 46&7N.
"" Act
"7 Tsamenyi
meas#res to avoid waste of the non6renewa!le reso#rces. Under the s#!sidiary legislation) 7: %aragra%h && deals with offshore o%erations and s%ecifically refers to o%erations in 0enya8s territorial waters and excl#sive economic Done. 1itho#t s%ecifying any conditions) the /inister
may a#thorise constr#ction of different infrastr#ct#re) %i%elines) a%%liances and installations and the cond#ct of %rod#ction) shi%ment and trans%ortation. There are no re>#irements for environmental im%act assessment and) certainly) no environmental management %lan. Of co#rse) the stat#te) which %re6dates +/(A) co#ld not have related to conditions !y the latter. 9owever) the %ractice of environmental im%act assessment has origins in the &7 : United *tates +nvironmental Policy Act. It is6 a matter of intention and sensitivity. The Physical Planning Act of &77' %redated +/(A !#t has mandatory re>#irement for environmental im%act assessment where constr#ction works are likely to im%act on the environment.7& +>#ally a!sent are %rovisions on relocation or resettlement of %ersons or esta!lishment where new ex%loration and %rod#ction are to !e #ndertaken. 1e have !een warned !y I!i!ia 1orika) a scholar from 2igeria) that oil com%anies invaria!ly ignore environmental im%act assessment and environmental management in areas of their o%eration.7- As a conse>#ence) devastating environmental degradation has cons%ired with ini>#ito#s #tilisation of the oil wealth to create devastating conflict in the Delta and .ivers *tates of 2igeria. The %ossi!le environmental chaos in the %rocess of ex%loration) %rod#ction and trans%ort of oil in 0enya8s territorial waters and excl#sive economic Done disc#ssed a!ove) 74 once more) #nderscore the necessity of a stat#tory agency to oversee o%eration in the offshore area. One of the res%onsi!ilities wo#ld !e local) regional and environmental %lans. The +nergy Act -::') on the other hand) makes several %rovisions of environmental significance. Altho#gh environmental mandate is not evident in its o!?ective stated in the long
title)75 the Act makes it an offence for an owner or master of any shi% carrying cargo any %art of which is %etrole#m to com%ly with reg#lations at any %art relating to trans%ort of s#ch cargo.73 In addition) in its %aragra%h B4C of section &:&) the Act makes a %rovision corres%onding to section
7: ,egal 7& *ee
2otice 2o. &74 of &7"5 %rom#lgated in accordance with *ection ' of the %rinci%al Act.
section 4' of the Physical Planning Act) disc#ssed a!ove. M-::-; -5-N.
7- 1orika 74 Any
co#ntry) like 0enya) intent on vent#ring into oil ex%loration and %rod#ction sho#ld caref#lly st#dy the
re%ort of a st#dy f#nded !y *hell Petrole#m Develo%ment and exec#ted !y United 2ations Develo%ment Programme entitled 2iger Delta 9#man Develo%ment .e%ort -::' o!taina!le from United 2ations Develo%ment Programme. *ee also a !roader analysis with recommendations in Okidi M-:: ;&3"6&'7N.
75 *ee
disc#ssion %receding and after note '" a!ove. as =An A(T of Parliament to amend and consolidate the law relating to energy) to %rovide for the esta!lishment)
73 *tated
%owers and f#nctions of the +nergy .eg#latory commission and the .#ral +lectrification A#thority) and for the connected %owers.=
33 of +/(A to the effect that; =B4C Any %erson who) while within 0enya8s +xcl#sive +conomic Hone and O#ter (ontinental *helf) discharges or allows to esca%e into the water; BaC %etrole#m or water mixed with %etrole#mE or B!C water from !ilges or tanksE or BcC water #sed for fl#shing %i%ers and connectionsE or BdC sand #sed to a!sor! %etrole#m) commits an offence and shall) on conviction) !e lia!le to a fine not exceeding two million shillings) or to a maxim#m term of im%risonment of two years) or !oth= There are f#rther %rovisions on environmental health and safety in *ection &:-) %artic#larly with res%ect of cond#ct of shi%s and shi% owners loading) trans%orting or carrying %etrole#m when entering %orts or in coastal waters. To instit#tionaliDe the control mechanism) the section
re>#ires the /inister to make reg#lations %roviding for develo%ment and co6ordination of a national oil s%ill res%onse %lan) incl#ding %revention of oil s%ills and mechanisms for com%ensation in event of a s%ill. The Act esta!lished an +nergy .eg#latory (ommission) with the enormo#s %ower to ens#re that all actors com%ly with the re>#irements #nder the stat#te) incl#ding those en#merated a!ove. At *ection 4:) the Act s%ecifically re>#ires that any a%%licant wishing to cond#ct !#siness #nder the law m#st com%ly with +/(A. *#ch a%%licants m#st also com%ly with the Physical Planning Act and) once in o%eration) will !e s#!?ect to environmental a#dit. 7' In this case) the legislators endeavo#red) rather remarka!ly) to harmonise the law with +/(A in areas that affect the coastal and marine environment. It is also noteworthy that the law re>#ires a%%licants seeking %ermits to constr#ct different infrastr#ct#re to com%ly with the Physical Planning Act. *ince some of the infrastr#ct#re might !e for excl#sive economic Done or continental shelf) it might im%ly) as s#ggested earlier) that the Director of Physical Planning might !e ex%ected to %re%are local) regional and environmental %lans on the continental shelf. This is) of co#rse) a matter that sho#ld !e caref#lly considered !y the relevant agencies of the government. Part F of the Act foc#ses on inter alia, renewa!le energy o%tions. 2one of the o%tions listed) exce%t tidal waves) is necessary for marine o%erations. 9owever) since the list in section &:4 is exha#stive) we sho#ld recognise the f#ll range of o%tions identified !y Tsamenyi and 9erriman as tidal) tidal stream.) shoreline waves) offshore wave) ocean thermal conversion or BOT+(C) salinity
7' *ection
&:&.
gradient and offshore wind.7 *iting of these facilities) all of which are o%en o%tions for 0enya if to ens#re conflict avoidance) will re>#ire caref#l local and regional %lanning. This may) in the short6r#n) !e done #nder the Physical Planning Act) with an ex%anded mandate. In the long r#n) there may !e a need for a new agency to manage the marine !elow the low6water mark.
Inter$4urisdictonal Issues
The %receding sections of this cha%ter reviewed iss#es in the degradation of coastal and marine environment) which originate from land and those related to the continental shelf within the meaning of the /aritime Hones Act. The %resent section is limited to matters of e%icontinental waters off 0enya8s coast) again extending to -:: na#tical miles. Only two %rinci%al activities that are often associated with environmental degradation) namely shi%%ing and fisheries) are disc#ssed. They are characterised as inter6?#risdictional !eca#se even tho#gh they have a coastal as%ect) they are within the ?#risdiction of 0enya) and a great deal of the ?#ridical arrangements affecting the activities is in the high seas. The o!?ective in this cha%ter is limited to examination of 0enyan relevant stat#tes and in relation to +/(A. Re$+lat%on of (oll+t%on of !oastal -ate s f o# s&%(s Conte<t As glo!al awareness of the increasing gravity of environmental degradation took centre6stage in scholarshi% and di%lomacy in the &7 :s) scholars in international law %layed a %rominent role
thro#gh disting#ished %#!lication with s%ecial attention on marine %oll#tion. +ven in instances where the intention was to cover environmental law in a general context) oftentimes marine environmental law en?oyed dis%ro%ortionate attention) com%ared to the coverage of other iss#es.7" These commentators addressed) inter alia, the trends in treaty law with origins in &7-: when an International /aritime (onference in 1ashington D( %re%ared the first draft international convention relating to marine %oll#tion !y oil.77 Unfort#nately) the instr#ment was never ratified and) therefore) remained still6!orn. 9owever) effort was made in &74: !y the conference for the (odification of International ,aw convened #nder the aegis of the ,eag#e of 2ations. Their Article ' %rovided that =Foreign vessels exercising right of %assage shall com%ly with the laws and reg#lations enacted in conformity with international #sage !y the coastal *tate and) in
7
*ection 7:. for exam%le) *wan M&7 &; 3:5637"NE *am#els M&7 &; 4"3NE 9ardy M&7 5; &:46&'"NE Okidi M&7 "NE Gohnston
7" *ee)
M&7"&N.
77 <oldie
M&7 -; -4 6-3-N.
%artic#lar) as regards 4inter alia,4 the %rotection of the waters of the coastal *tate against %oll#tion of any kind ca#sed !y vessels=.&:: Again) no %rogress was made towards ratification and im%lementation of the draft instr#ment. 9owever) the initiative #nderscores the concern with %rotection of coastal waters from shi%6!orne %oll#tion. +fforts that were to !e s#stained started in &735 with the ,ondon (onference) which ado%ted the International (onvention for the Prevention of Poll#tion of the *ea !y Oil) which foc#sed largely on control of deli!erate discharges of oil from shi%s) thro#gh de!allasting and tank
fl#shing.&:& The direct concern of this (onvention was %rotection of coastal waters !y %rohi!iting discharge of oil or oily waters within 3: miles of any coastal land. It was >#ickly esta!lished that 3: miles was not far eno#gh from land and) therefore) the Done of this %rohi!ition was extended to &:: miles !y a &7'- amendment to the ,ondon (onvention. This amendment also re>#ired %ort *tates that receive tankers to %rovide rece%tion facilities for d#m%ing of oily !allast water and wastes from tank fl#shing. It was d#ring this %eriod the &73" <eneva (onvention on the Territorial *ea and (ontig#o#s Hone was ado%ted) with Article -5 %ermitting coastal *tates to %#nish the infringement within its territorial watersof its sanitary reg#lations) which sho#ld incl#de all forms of %oll#tion. The Borrey Canyon tragedy of /arch &7' and several other oil tanker accidents that followed forced a %aradigm shift in the manner of a%%roaching control of marine %oll#tion from shi%s.&:The tanker) registered in ,i!eria #nder flag of convenience arrangement)
&:4 colla%sed
in the
Atlantic off the coast of (ornwell in so#thern +ngland. $y force of wind and ocean c#rrents) some of the ':)::: tons of cr#de oil drifted eastwards to wash the cost of France along 2ormandy and $rittany) --3 miles away) and) th#s) made a mockery of the idea of &:: miles %rohi!ition Done ado%ted in &7'-. There was devastating im%act on ocean !ird and fish life. *imilarly) the denser %ro%ortions sank to the !ottom of the oceans. This was made worse !y the fact that the $ritish <overnment hesitated for far too long to !om! the demised tanker !eca#se the incident occ#rred o#tside their national ?#risdiction. The Torrey (anyon disaster and similar ones that followed &:5 ta#ght the world comm#nity at
&:: <old
M&7"3; -4N.
&:& (onfererice
for the (odification in International ,aw) The 9ag#e) Final Act of the (onference M&74:; & 7) -&5N.
Annex I.
&:- *ee &:4 *ee
*wan M&7 &;3:763&:NE Okidi M&7 "; 4:N. a concise descri%tion Okidi M&7 "; -"6-7N. This is an arrangement where!y a shi% is registered in a co#ntry
for convenience relating to relaxed re>#irements for standards) la!o#r reg#lations and standards) among other things) witho#t gen#ine national link. For details) see $ockDek M&7'-N.
&:5 +xam%les
reco#nted !y 1ardley *mith incl#de the following; In the United *tates there was a collision !etween
the 8AriDon *tandard8 and the Oregon *tandard8 of *an Francisco 9ar!o#r in Gan#ary &7 &E in (anada) the tanker 8Arrow8 ran agro#nd on <er!er#s .ock in (heda!#cto $ay) 2ova *cotia in Fe!r#ary &7 :E and the 8G#liana8
least the following six lessons) which informed s#!se>#ent treaty6making on %oll#tion from shi%s. They sho#ld) in addition advice coastal *tates to change their a%%roach to %rotecting their costal and marine environments from inter6?#risdictional im%acts. First) accidental discharges were and co#ld) in f#t#re) have more devastating im%act on marine environment. Therefore) there is need for emergency %re%aredness. *econdly) the idea of &:: miles %rohi!ition Done wo#ld !e ineffective in event of a ma?or tanker disaster in the same ocean. Thirdly) there sho#ld !e an international convention %ermitting *tates to intervene in the high seas to control or mitigate conse>#ences of s#ch disasters. Accordingly) the &7'7 (onvention on .elating to Intervention on the 9igh *eas in (ases of Oil Poll#tion (as#alties was ado%ted in $r#ssels #nder the aegis of the Intergovernmental /aritime (ons#ltative Organisation BThen I/(O) now I/OC on -7 2ovem!er &7'7. Fo#rth) it was realised that there sho#ld !e the International (onvention on (ivil ,ia!ility for Oil Poll#tion Damage) also ado%ted in $r#ssels #nder the aegis of I/(O on -7 2ovem!er &7'7. Fifth) it was realised that to %revent the accidental and even some deli!erate
discharges) tanker constr#ction standards sho#ld !e ado%ted to a%%ly worldwide. Therefore) s#ch f#rther amendments to the &735 (onvention were ado%ted in &7'7 and &7 & to a%%ly glo!ally and to harmonise shi%%ing standards. These standards were later consolidated in the International (onvention for the Prevention of Poll#tion from *hi%s Bthe so called /A.PO,C done at ,ondon in &7 4.&:3 In other words) there is already at the dis%osal of coastal states) incl#ding 0enya) international standards for constr#ction of shi%s) which can !e domesticated and enforced within national ?#risdiction if the co#ntry has national laws and instit#tions with mandates to do the ?o!. *ixth) coastal *tates saw the need to esta!lish contingency %lans for dealing with %oll#tion within or likely to affect their coastal waters. From the st#dy of the %ro!lems of shi%6!orne %oll#tion and the accom%anying evol#tion of the legal regime) it is im%erative that 0enya) like every other coastal *tate sho#ld %#t in %lace a contingency %lan for dealing with s#ch event#alities. /A.PO, and its %rotocols #% to &7 " s#ggest different categories of cargo) which may !e accidentally or deli!erately discharged into the Indian Ocean. There are two other %ro!lems of marine environmental degradation that m#st !e clarified in this context#al ex%osition. The first one is d#m%ing of wastes) which are trans%orted !y vessels or
o#tside the 9ar!o#r of 2iigita) Ga%an in 2ovem!er &7 & m#st !e added to the list of ma?or incidents that have made great im%act on !oth local and world %#!lic o%inion. The increasing demand for oil and the increasing constr#ction of even longer s#%er6tankers to trans%ort the oil has greatly increased the fears of these ty%es of e%isodes *mith M&7 4;&3N.
&:3 1itho#t
s#ch standards) (anada #nilaterally moved to legislate conditions for shi%s that may navigate its Arctic
1aters) a meas#re that generated %rotests from the United *tates. For commentaries) see 9enkin M&7 &;&4&6&5:NE
<reen M&7 &; 5'-63:4N. For disc#ssions on the &7'7 and &7 & amendments) see Okidi M&7 "; 4&657N. For these and related instr#ments) see I/O) "$9 OL& GDA0>A) Con&olidated Edition, -:) a %#!lication of the International /aritime Organisation) ,ondon) -::-. 2ote that the sco%e of the &7 4 (onvention was !roadened !y the &7 " Protocol) which was to incl#de a wide array of s#!stances and materials) sewage) gar!age. In addition) a s%ecial %rotocol relating to intervention on the high seas in case of marine %oll#tion !y s#!stances other than oil was ado%ted on - 2ovem!er &7 4. The latter com%lements the &7'7 Intervention (onvention. A handy reference for these instr#ments is 0iss M&7"4; 4-:65::N.
aircrafts and dis%osed off in the ocean. The %ro!lem emerged in 1estern +#ro%e in late &7':s and early &7 :s leading to concl#sion of the <lo!al (onvention on the Prevention of /arine Poll#tion !y D#m%ing of 1aters and Other /atter) ado%ted in ,ondon on -7 Decem!er &7 -. Its terms are now incor%orated in the /A.PO, (onvention.&:' It re>#ires strong monitoring ca%a!ility !y %ort and coastal *tates to monitor and %revent the d#m%ing. Again) this is a massive challenge to 0enya as a coastal *tate. The second one is the link !etween the legal regime for %reventing %oll#tion from shi%s and matters of ex%loitation of reso#rces of the continental shelf disc#ssed earlier. The concern was with the national agency that wo#ld do the detailed local and regional %lanning to ens#re that str#ct#res constr#cted for ex%loitation of nat#ral reso#rces) s#ch as oil) do not conflict with other #ses of ocean s%ace. The %res#m%tion was that rigs and associated installations are clearly #nderstood as domains of %etrole#m and energy agencies. In /A.PO,) the definition of shi%s incl#des =...A vessel of any ty%e whatsoever o%erating in marine environment and incl#des hydrofoil !oats) air6c#shion vehicles) s#!mersi!les) floating craft and fixed or floating %latforms.=&: In Annex I entitled =.eg#lations for the Prevention of Poll#tion !y Oil= sti%#lated in .eg#lation -& states as follows;
Fi<ed and ,loating drilling rig& when engaged in the e<ploration, e<ploitation and a&&ociated o,,&hore proce&&ing o, &ea!#ed mineral re&o%rce& and other plat,orm& &hall comply with the re:%irement& o, thi& $nne< applica#le to &hip& o, ?(( ton&...
(learly then) there is a need to synchronise whichever agency will !e res%onsi!le for s%ecial %hysical %lanning in the continental shelfE those res%onsi!le for #%stream matters of oil ind#stry in 0enyaE and the agency res%onsi!le for maritime matters im%lementing reg#lations on shi%%ing. Ultimately) it will !e im%erative that the res%onsi!ilities might !e re6aligned among existing relevant agencies. For the moment) instit#tional mandates are #nclear. (oastal *tates) and 0enya for that matter) are em%owered !y the &7"- United 2ations (onvention on the ,aw of the *ea to %rescri!e and enforce laws that reg#late cond#ct of shi%s in relation to marine environment) so long as the laws com%ly with the glo!al standards. &:" T&e Ken'a S%t+at%on
&:' I#id
at -"4. 2ote that the first convention on d#m%ing) the (onvention for the Prevention of /arine Poll#tion
!y D#m%ing from *hi%s and Aircraft was done for 1estern +#ro%e at Oslo on &3 Fe!r#ary &7 -. Text is at I#id at -''. For disc#ssion and diverse citations) see Okidi M&7 "; -46-'N.
&:
Article -B5C. 33 and ':B3C. The International /aritime Organisation BI/OC is the com%etent international organiDation on maritime
&:" Article
matters.
0enya is a minor actor in the maritime ind#stry) yet !eca#se of the location in glo!al trade and the role of /om!asa as a ma?or %ort of call) it is nevertheless ex%osed to dangers of %oll#tion from shi%s )&:7 That notwithstanding) 0enya8s coast is s#sce%ti!le to ma?or shi%6!orne %oll#tion since it is o%en to one of the world8s !#siest shi%%ing) %artic#larly tanker traffic ro#tes in the
world.&&: Indeed) these were among the factors that %rom%ted ado%tion of the (onvention for the (onservation) /anagement and Develo%ment of the /arine and (oastal +nvironment of the +astern Africa .egion with a s%ecific %rotocol concerning (o6o%eration in (om!ating /arine Poll#tion in (ases of +mergency in the +ast African .egion. &&& 1ith the a!ove glo!al context in mind) the rest of this s#!6section will review the instit#tional and normative arrangements for control of shi%6!orne %oll#tion of marine and coastal environment. The latest and %ossi!ly with the widest coverage is the 0enya /aritime A#thority Act -::'.&&- The second one will !e the /erchant shi%%ing Act) which is somewhat o#tdated.&&4 For that reason) this st#dy will look) !riefly) at the %ro%osed /erchant *hi%%ing $ill -:: ) which was intended for de!ate !efore dissol#tion of the 2inth Parliament !#t will now await de!ate in -::". There is significant !ackgro#nd to the /aritime A#thority Act. Drafting of the Act was %receded !y considera!le %#!lic concern with maritime matters) es%ecially shi%6!orne %oll#tion.&&5 Pro!a!ly !eca#se of the wides%read %#!lic interest and the o!vio#s need for a caref#lly considered %olicy and legal framework) on ' Fe!r#ary -::-) the Attorney6<eneral a%%ointed a Taskforce on /aritime ,aw with diverse terms of reference to %ro%ose a draft legal and %olicy framework on maritime affairs in 0enya. &&3 9owever) !efore the taskforce com%leted its re%ort) the President of the .e%#!lic iss#ed an Order) #nder the *tate (or%oration Act) esta!lishing the 0enya /aritime A#thority Order -::5. &&'
&:7 For
a descri%tion of the 0enya and TanDanian sit#ation) see /ahal# M&7
;&"&6-: N.
&&: *eeU2+PM&7"N.
&&& For &&- Act
,egal $ackgro#nd *t#dy) see U2+P M&7"4N. For an analysis of the (onvention) *ee Okidi M&7"3; 5463&N. 2o. 3 of -::') which received Presidential Assent on -4 A#g#st -::' and with date of commencement on & Gan#ary
-:: according to ,egal 2otice 2o. -- of -- Decem!er.

&&4 (a%
4"7 ,aws of 0enya. is from %ress coverage of which the following are exam%les %resented at random; /wakio M-::5; 3"NE $e?a
&&5 Indication
M-::3;3 NE .inga M-::5;3&N. (ommentary =2ew /achine for Oil 1aste at Port= 8aily 1ation A#g#st &5)-::4E $e?a M-::3N at *4E /ayoyo M-::3; 5NE A9 -::5N) at * E *enelewa M-::'; 5NE /#ir#ri el al M-::3; -'NE (ommentary =(leaning U% Oil *%ill= The *tandard A%ril &5) -::3 at *"E /ayoyo et al M-::3; 4-NE (ommentary) =International 1e!site from I/O now ready for Use !y *hi%%ing ,ines= Ea&t $,rican -tandard, 3 A#g#st -::5 at *4.
&&3 *ee
<aDette 2otice 2o. '53 of ' Fe!r#ary -::- in the 0enya <aDette of " Fe!r#ary -:: at 5456543. 4B&C of the *tate (or%orations Act) (a% 55' ,aws of 0enya) em%owers the President to esta!lish a !ody cor%orate
&&' &&'*ection
to %erform s%ecific %arastatal f#nctions for a %eriod of time as an interim meas#re !efore s#ch a !ody can !e esta!lished !y an Act of
The f#nctions of the A#thority #nder the Order are similar to those #nder the /aritime A#thority Act -::') which clearly s#%ercedes the order even tho#gh no s#ch reference is ex%ressly stated in the latter. Under section 4B&C) there is esta!lished a 0enya /aritime A#thority whose %rinci%al o!?ects are to reg#late) co6ordinate and oversee maritime affairs. && The %recise f#nctions constit#te a checklist) which is com%ara!le to the many mandates %rovided #nder treaty law disc#ssed a!ove. Therefore) section 3 deserves to !e re%rod#ced here in e<ten&o. =The f#nctions of the A#thority are to carry o#t s#ch f#nctions as may !e necessary to give effect to the o!?ects of this Act and witho#t %re?#dice to the generality of the foregoing) the A#thority shall have the d#ty to; BaC administer and enforce the %rovisions of the /erchant *hi%%ing Act and any other
legislation relating to the maritime sector for the time !eing in forceE B!C co6ordinate the im%lementation of %olicies relating to maritime affairs and %romote the integration of s#ch %olicies into the national develo%ment %lanE BcC advise government on legislative and other meas#res necessary for the im%lementation of relevant international conventions) treaties) and agreements to which 0enya is a %artyE BdC #ndertake and co6ordinate research) investigation) and s#rveys in the maritime fieldE BeC discharge flag *tate and Port *tate res%onsi!ilities in an efficient and effective manner) having regard to international maritime conventions) treaties) agreements and other instr#ments to which 0enya is a %artyE BfC develo%) co6ordinate and manage a national oil s%ill contingency %lan for !oth coastal and inland waters and shall in the discharge of this res%onsi!ilities !e designated as the =com%etent oil s%ill a#thority=E BgC maintain and administer a shi% registerE BhC deal with matters %ertaining to maritime search and resc#es and co6ordinate the activities of the 0enya Ports A#thority) the 0enya 2avy and any other !ody engaged d#ring search and resc#e o%erationsE BiC enforce safety of shi%%ing) incl#ding com%liance with constr#ction reg#lations) maintenance of safety standards and safety navigation r#lesE B?C cond#ct reg#lar ins%ection of shi%s to ens#re maritime safety and %revention of marine %oll#tionE
Parliament. For this %artic#lar Order) see ,egal 2otice 2o. 7 of -& G#ne -::5 in 0enya <aDette *#%%lement 2o. 53 of 7 G#ly -::5 at &346&3 .
&&
*ee section 5.
BkC oversee matters %ertaining to the training) recr#itment and welfare of seafarersE B&C %lan) monitor and eval#ate training %rogrammes to ens#re conformity with standards laid down in international maritime conventionsE BmC cond#ct investigations into maritime cas#alties) incl#ding wreckE
BnC #ndertake en>#iries with res%ect to charges of incom%etence and miscond#ct on the %art of seafarersE BoC ens#re) in colla!oration with s#ch other %#!lic agencies and instit#tions) the %revention of marine so#rce %oll#tion) %rotection of the marine environment and res%onse to marine environment incidentsE B%C reg#late activities with regard to shi%%ing in the inland waterways) incl#ding the safety of navigationE and B>C #ndertake any other !#siness that is incidental to the %erformance of any of the foregoing f#nctions. For the %#r%ose of the %erformance of its f#nctions #nder this Act) the A#thority may do anything and enter into any transaction which) in the o%inion of the A#thority) is necessary or incidental to its f#nctions) and witho#t %re?#dice to the generality of the foregoing) the A#thority may im%ose fess or charges for the #se ofany service %rovided !y the A#thority.= The single !roadest f#nction of all is administration of the /erchant *hi%%ing Act. 2early each of the other f#nctions re>#ires a f#rther im%lementing reg#lation. For instance) the terms enforcement of the %ort *tate and flag *tate res%onsi!ility co#ld !e >#ite !road. *imilarly) the conditions #nder which activities with 0enya Ports A#thority) esta!lished #nder (ha%ter 47& of ,aws of 0enya) co#ld !e done m#st !e s%elt o#t. An intrig#ing one concerns the 0enya 2avy !eca#se the Armed Forces Act &&" does not make any ex%licit %rovision of s#ch civil o%erations. It is in the 0enya 2avy O%erations g#idelines where they have %laced ex%licit and relevant %rovisions.&&7 That !rief o#tline s%ecifies the following) which are relevant to this st#dy;
Q Primary roles; Policing territorial watersE s#rveillance of ++HE and %rotection of vital areas. Q *econdary roles; *earch and resc#e o%erations) fisheries %rotection) environmental %atrols) %rotection of offshore reso#rces) and safeg#arding sea lanes of comm#nication.
&&" (ha%ter
&77) ,aws of 0enya. on we!site; htt%;@@www.mod.go.ke@navy@index.%h%L%age6link_o%erations on -3 G#ly) -:: .
&&7 Accessed
These are some of the iss#es of %ossi!le colla!oration !etween 0enya /aritime A#thority and 0enya 2avy. They are also iss#es that are of interest to 2+/A within the meaning of *ection 33 of +/(A. 9owever) they need detailed artic#lation in +/(A and in an im%lementing reg#lation) es%ecially since) for the 0enya 2avy) they are ex%ressed in o%erational g#idelines) which do not s%ell o#t an ena!ling %rovision #nder the Armed Forces Act or any written law. In this connection) it is noteworthy that the /inister for +nvironment and 2at#ral .eso#rces) acting #nder a#thority of section 33B'C and section &5 %rom#lgated the +nvironmental BPrevention of Poll#tion in (oastal Hone and Other *egments of the +nvironmentC .eg#lations in -::4.&-: +ven tho#gh the .eg#lations are consistent with the f#nctions of the 0enya /aritime A#thority) it is %rom#lgated #nder +/(A and) therefore) enforcea!le !y 2+/A. As it was %rom#lgated !efore enactment of the /aritime A#thority Act) it is essential that the two agencies now esta!lish a clear %rotocol for im%lementation of law in areas of their common interest. Administration and enforcement of the /erchant *hi%%ing Act is one of the %riority mandates of the 0enya /aritime A#thority. *ince the c#rrent /erchant *hi%%ing Act was enacted in &7'"
it was well ahead of the dramatic rise in the range of treaties on shi%6!orne %oll#tion. In fact) the only relevant %rovisions are in Part IO) which had two lean sections on %oll#tion of the air and %oll#tion of the sea !y oil. The latter had the ex%ression of the &7'- amendment to the &735 (onvention) which has long !een overtaken !y s#!se>#ent develo%ment. Poll#tion of the air from shi%s or vessels is made a criminal offence #nder *ection &:) which em%owers the /inister to %rescri!e what level of emission constit#tes an offence. 1ith increasing maritime trans%ort) this %ro!lem may !e of greater concern and the 0enya /aritime A#thority may wish to ado%t a s%ecial modern reg#lation. According to its long title) the /erchant *hi%%ing $ill) -:: is intended to !e =An Act of Parliament to make %rovision for the registration and licensing of 0enya shi%s to reg#late %ro%rietary interests in shi%s and the terms of engagement of masters and seafarers and matters ancillary theretoE to %rovide for the %revention of collisions) the safety of navigation) the safety of cargoes) the carriage of !#lk and dangero#s cargoes) the lia!ility of shi% owners and others and en>#iries and investigations into marine cas#altiesE to consolidate the law relating to shi%%ing) and for connected %#r%oses=.&-& According to %o%#lar %ress) the $ill is so im%ortant for maritime ind#stry in 0enya that fail#re to enact it into law is likely to ?eo%ardiDe the standing of 0enya at the International /aritime Organisation BI/OC. &-From the %oint of view of environmental concern) the $ill is rather deficient. As o#tlined in
&-: ,egislative
*#%%lement 2o. 5" of &7 *e%tem!er -::4) ,egal 2otice 2o. &37 signed !y the /inister on &" *e%tem!er) -::4.
&-& Text &-- *ee
of the draft accessed at the 0enya ,aw .e%orts we!site; www.kenyalaw.org
Ea&t $,rican -tandard, -3 Octo!er -:: BTrans%ort *#%%lementC at &6-.
evol#tion of environmental treaty law) I/O had strong reform6oriented activity in environmental field) s%ecifically on %oll#tion from merchant shi%s c#lminating in the &7 4 /A.PO, (onvention and its &7 " Protocol. One wo#ld have ex%ected a merchant shi%%ing law) develo%ed over three decades later to) at least) ado%t the definition of =shi%s= from I/O texts. That is not the case either in the general inter%retation in section -B&C or characterisation of shi% for %ro%rietary interest in section 75B7C. There is no recognition of the re>#irements #nder the &7"- United 2ations (onvention where I/O is recognised as the com%etent international organisation for %#r%oses of shi% constr#ction standards. In fact) no reference is made to shi% constr#ction standards #nder the &7 4 /A.PO, (onvention and its %rotocols. The only conventions recognised in the draft !ill are the ,oad ,ines (onventions of &7'' and &7"". &-4 Of co#rse) since the draft $ill makes no environmental %rovision) there is no reference to +/( A. *imilarly) there is no reference to the /aritime Hones Act !eca#se there is no %rovision for coastal *tate enforcement of iss#es mandated to that stat#te. <iven the strong environmental views ex%ressed !y the Director6<eneral of the 0enya /aritime A#thority on 1orld /aritime Day) one wo#ld s#ggest that there is a fort#nate coincidence that the $ill did not go thro#gh Parliament to allow for f#rther drafting work) taking into acco#nt I/Os environmental concerns. La- Relat%n$ to Ma %ne F%s&e %es
Introd%ction ,egal arrangements for control of marine %oll#tion from shi% reg#lation of fisheries in 0enya8s marine water is an inter6?#risdictional matter) !eca#se !oth traverse areas of national and international ?#risdictions. 1hile reg#lation of %oll#tion from shi%s m#st ado%t minim#m #niversal standards !eca#se shi%s) as the %#rveyors of the %ro!lem) are invaria!ly involved in #niversal commerce and navigation) the movement of fish is %rimarily regional in s%ecific oceans. As will !e evident !elow) reg#lation of fisheries are) in the first %lace national) to deal with needs laws that are !asically local. Otherwise most of the reg#lations !ased on rational %ro!lem6sheds are either coastal and !ilateral or regional within an ocean area. The %resent section will foc#s on international legal arrangements) %artly as they are ex%ressed in the Fisheries Act in 0enya and %artly as they o%erate within the Indian Ocean area where 0enya shares ?#risdiction. Th#s) after this introd#ction) the section will set o#t the glo!al context within which s#ch reg#lations are to !e considered) incl#ding emergence of regional and glo!al agreements. Thirdly) we shall !riefly disc#ss the emergence of 0enya8s fisheries %olicy and
&-4 *ee
Part OIF.
?#ridical arrangements) s%ecifically international as%ects. Fo#rth) a !rief section will disc#ss arrangements) if any) on entry of foreign fishing fleets in 0enya8s ++H. Fifth) the section will o#tline the range of regional fisheries arrangements covering western Indian Ocean) !#t witho#t analyDing them from the %oint of view of 0enya8s treaty %ractice) which is covered elsewhere in the !ook. Finally) a few s#ggestions will !e made on enforcement of fisheries reg#lation) with some recommendations.
Conte<t The traditional fishing %ractices done for family or local cons#m%tion never %osed threat to maxim#m s#staina!le yield of fishery reso#rces) whether coastal or %elagic. Therefore) s#ch %ractices were never s#!?ected to reg#lation or %enalty even #nder sit#ations of hostility. That view is s#%%orted !y the &7:: r#ling !y the United *tates *#%reme (o#rt r#ling in Bhe a:%ete 6a#ana.G'? Delivering o%inion of the (o#rt) /r G#stice <ray said) inter alia, that;
Iy ancient %&age among civili2ed nation&, #eginning cent%rie& ago, and grad%ally ripening into a r%le o, international law, coa&t ,i&hing ve&&el&, p%r&%ing their vacation o, catching and #ringing in ,re&h ,i&h, have #een recogni&ed a& e<empt, with their cargo ,rom capt%re a& pri2e o, 4war.
Analysts conc#r that it was increased a%%lication of so%histicated technology to fishing that %osed threats to fishery reso#rces with the %ossi!ility that stocks co#ld !e decimated within a year or less.&-3The range of technology has incl#ded long distance fishing fleets) mostly #sing refrigerated vessels) which is a ma?or de%art#re from the localiDed artisanal fishing descri!ed a!ove. This !ro#ght o#t the dangers of over6fishing as s#ch fleets move on to other areas. (oastal *tates !ecame %rotective of their coastal fishing gro#nds as was the case off the coast of 2orway&-' and later) icelandic waters.&- That trend com%elled coastal *tates with marine fishing traditions to commence !ilateral and regional agreements) !#t these were always slow in coming. .ecall that the 9ag#e (onference for the (odification of International ,aw considered several as%ects of law of the sea) incl#ding marine %oll#tion) !#t did not have a single %aragra%h on marine fisheries. This wo#ld #nderscore the hy%othesis that this was not a s#!?ect on glo!al
&-5 Bhe
a:%ete 6a#ana case was decided !y the *#%reme (o#rt of the United *tates) &7::)& 3 U*) '
) -: *.(t. -7:)
55 ,. +d. 4-:. The excer%ts are in Friedmann et al M&7'7; 4 65-N. In their findings the co#rt drew on state %ractice in +ngland in &5:4 and &5:'E France in &3-&E D#tch %ractice in &34' and again French %ractice in &'&" and &'7-.
&-3 .emarks=
!y Gaco! G. Dykstra of Point G#dith Fisherman8s (oo%erative Association) Inc. .hode Island) in
Alexander M&7 &; 57N.

&-' *ee
International (o#rt of G#stice) Fisheries (ase BUnited 0ingdom v 2orwayC) G#dgement of &" Decem!er
&73&.
&-
International (o#rt of G#stice) Fisheries G#risdiction case BUnited 0ingdom v IcelandC B&7 5C.
agenda) exce%t whaling for which the International (onvention for .eg#lating of 1haling was ado%ted at 1ashington on - Decem!er &75'.&-" The next glo!al reg#latory initiative on marine fisheries was the (onvention on Fishing and (onservation of ,iving .eso#rces of the 9igh *eas) held in <eneva on -7 A%ril &73". &-7 In its %ream!le) the (onvention lamented the im%act of ex%anding technology and %o%#lation) which %osed the danger of over6ex%loitation of marine fisheries and the #rgent necessity for international co6o%eration to ens#re effective conservation. Article - then ex%lained that =...conservation of the living reso#rces of the high seas means the aggregate meas#res rendering %ossi!le the o%tim#m s#staina!le yield from those reso#rces so as to ens#re maxim#m s#%%ly to food and other marine %rod#cts=. The a#thors of the (onvention were conscio#s that there was no!ody a#thoriDed to reg#late the living reso#rces in the high seas) exce%t for the advisory services that co#ld !e %rovided !y the Director6<eneral of the Food and Agric#lt#re Organisation BFAOC of the United 2ations. The (onvention) th#s) %rovided a !reather in Article 'B&C !y the %rovision that; 4$ coastal *tate has a
s%ecial interest in the maintenance of the %rod#ctivity of the living reso#rces in any area ad?acent to its territorial sea=. To disco#rage #nilateral meas#res in the high seas) %aragra%h 4 of Article ' #rged coastal *tates with s#ch interests =to enter into negotiations with a view to %rescri!ing !y agreement the meas#res necessary for the conservation of the living reso#rces of the high seas in that area=. 1hat followed was a s%ate of varied #nilateral claims led !y ,atin American co#ntries.&4: Their initiative c#lminated in develo%ment of the conce%t of %atrimonial sea) which was %ro%osed at the Third United 2ations (onference on the ,aw of the *ea) to extend to -:: na#tical miles.&4& The ens#ing di%lomatic avalanche was ?oined !y African co#ntries led !y 0enya &4- and Asian co#ntries.&44 The role of excl#sive economic Done extending to -:: na#tical miles and within which coastal *tates have sovereign rights and excl#sive ?#risdiction over hiring and non6 living
&-" A!o#t
&3 regional fisheries agreements were ado%ted since the 1haling (onvention; +leven regional and
!ilateral agreements in the Atlantic Ocean area and fo#r in the Pacific Ocean area. *ee texts in ,ay et al M&7 4; 43463:-N.
&-7 l#id
at 43464':. A total of fo#r conventions were ado%ted at that instance as %art of the well6known United
2ations (onventions on the ,aw of the *ea. Others are the (onvention on Territorial *ea and (ontig#o#s HoneE (onvention on (ontinental *helf and an O%tional Protocol on *ettlement of Dis%#tes. It sho#ld !e ke%t in mind that #% to that %oint and #ntil &7"- there was no glo!al instr#ment a#thoriDing *tates to claim ?#risdiction !eyond &- na#tical miles. The rest of the ocean s%ace was widely recognised as high seas.
&4: 9?ertoson &4& The
M&7 4NE <arcia M&7 &; 44NE 0r#eger K 9ord>#ist M&7 7NE *wan et al M&777; 4&"6454N.
conce%t of %atrimonial sea was ado%ted !y ,atin American and (ari!!ean co#ntries at *anto Domingo de
<#Dman in G#ne &7 -. *ee f#ll text in International Legal "aterial& Fol. OI 2o. 5 MG#ly &7 -; "7-64N.
&4- Okidi &44 *ee
M&7"-; 476 &N.
(o>#ia M&7 7; 55:655"NE *wan M&777N.
reso#rces was entrenched in Part F of the &7"- ,aw of the *ea (onvention. There are no com%lications in res%ect of coastal stock occ#rring within the excl#sive economic Done of one coastal state. 9owever) %rovisions are made in section '4 for stock occ#rring within the excl#sive economic Dones of two or more coastal *tates or !oth within excl#sive economic Dones and in areas !eyond national ?#risdiction. *imilarly) s%ecial %rovisions are made in *ection '5 for highly migratory s%ecies. $oth are straddling stocksE for realisation of their s#staina!le #se) res%ective coastal *tates are en?oined to seek regional and co6o%erative arrangements either acting #nilaterally or thro#gh com%etent regional or s#!6regional organisations. In fact) the com%lication inherent in management of s#ch stocks %rom%ted the United 2ations to develo% a s%ecial im%lementing agreement ado%ted in A#g#st &773. &45 1ith or witho#t the regional or s#!6regional arrangements) each coastal *tate is to cond#ct s#rveys and ascertain distri!#tion and a!#ndance of different stocks as well as the total allowa!le catch ens#ring maxim#m s#staina!le yield. *#ch a *tate wo#ld ascertain how m#ch) given its own ca%acity) to harvest and hence know the s#r%l#s that it is o!liged to allow access to other *tates. It is #%on s#ch a *tate to determine the conditions) incl#ding fees) #nder which s#ch access may !e granted.&43 It is with the foregoing context in mind we t#rn to 0enya8s %olicy and laws relating to the excl#sive economic Done B++HC. Ken'aEs Gene al Pol%!' an* La- on EEF For a long time) 0enya did not have a systematic %olicy on marine fisheries. The conse>#ence was that there was more knowledge and %ractice on inland waters than marine areas. &4' The ma?ority of 0enya8s fisherfolk were coastal) o%erating in inshore areas) rarely !eyond 3 kilometers from the shores and landing their fish) fresh for local cons#m%tion. For a !rief %eriod) 0enya o%erated a ?oint vent#re with a Ga%anese com%any #nder the name 0enya Fishing Ind#stries) with 0enya o%erating two vessels) the "v K%&i and "v -hakwe !#t
these !ecame old and faded away. It was also a%%arent that the Ga%anese com%any was not serio#s
&45 For
the text of =Agreement for the Im%lementation of the Provisions of the United 2ations (onvention on the
,aw of the *ea of &: Decem!er &7"- .elating to the (onservation and /anagement of *traddling Fish *tocks and 9ighly /igrator[8 Fish *tocks=) see Asian6African ,egal (ons#ltative (ommittee) Asian6African 9and!ook on +nvironmental ,aw) U2+P M&777; 54365 3N. For a historical analysis of the Agreement) see <rDy!owski M&773; 576 5NE Freestone K /ak#ch M&77'N. For the com%lex >#estion of what ha%%ens if a *tate is %arty to the &773 (onvention and not the &7"- (onvention and vice versa) see Franckx) +rik) Pacta Tertiis and the Agreement for the Im%lementation of the Provisions of the United 2ations (onvention on the ,aw of the *ea of &: Decem!er) &7"- .elating to the (onservation and /anagement of *traddling Fish *tocks and 9ighly /igratory Fish *tocks B.ome; FAO ,egal Pa%ers on ,ine 2o. ". G#ne M-:::N.
&43 *ee &4' The
Article '- for the foregoing conditions. o!servations and ens#ing data are from Okidi M&7 7N.
on develo%ing 0enyan ca%acity in marine fisheries. Therefore) the ?oint vent#re also colla%sed.&4 It was well6known to 0enyans that Ga%anese) .#ssian) 0orean and Taiwanese long distance fleets were landing some of the catches at /om!asa. 9owever) these landings declined steadily&4" from ')75- metric tons in &7 4 to &)333 metric tons in &7 3. The fig#re went down to '&4 metric tons in &7 '. $eca#se the large fishing vessels were still o%erating offshore) it was only %res#med that those were factory vessels where fish wo#ld !e refrigerated and %rocessed on !oard. For their %art) the Ga%anese told 0enyan a#thorities that the fish stocks had declined drastically and that they had to a!andon fishing gro#nds ad?acent to the 0enya coast. This disc#ssion m#st kee% in mind that the /aritime Hones Act which) !y %arliamentary enactment) esta!lished the excl#sive economic Done of -:: na#tical miles) did not commence #ntil -3 A#g#st &7"7) the same date with the c#rrent Fisheries Act. +ffectively) it is from then
that 0enya can legitimately develo% a fisheries %olicy extending to -:: miles and lay conditions for fishing offshore and conditions for landing locally. The 0enya Fisheries Policy dated - Fe!r#ary -::' recognises the inter6?#risdictional as%ects of the fisheries sector !y stating that its =...main fishery reso#rces are shared with neigh!o#ring co#ntries either !y virt#e of geogra%hical location or the migratory nat#re of key fish stock.=&47 They s#!mit) as a conse>#ence) that s#staina!le management of s#ch stocks re>#ires regional colla!oration and co6o%eration. To com%lete the logic) it is the national %olicy that the ministry res%onsi!le for fisheries shall colla!orate with their co#nter%art in the neigh!o#ring co#ntries to ens#re that shared fisheries are managed s#staina!ly and that access is determined fairly. &5: It is also stated) as a matter of %olicy) that the De%artment of Fisheriessho#ld colla!orate with 2+/A and other organisations in im%lementation of treaties related to !iological diversity and the U2 (onvention on the ,aw of the *ea (onvention. This may !e im%licit !#t worth stating that in im%lementing fisheries develo%ments) environmental im%act assessment #nder +/(A sho#ld !e a%%lied so as to ens#re maxim#m s#staina!le yield and to %revent %oll#tion. These conditions for inter6?#risdiction %olicy sho#ld !e reflected in the fisheries laws of 0enya. The Fisheries Act &7"7&5& makes no %rovision at all for regional or s#!6regional co6o%eration. In
addition) the national stat#te sho#ld %rovide an ena!ling %rovision for reg#lations on s#rvey and stock assessment to determine total allowa!le catch and the national ca%acity.
&4
I#id. at 43. of 0enya) Kenya Fi&herie& olicy BDraftC /inistry of ,ivestock and Fisheries Develo%ment) - Fe!r#ary -::' at
&4" I#id
&47 .e%#!lic
-&.
&5: I#id &5& (a%
at --. 4 " ,aws of 0enya. The Act makes %rovision for fishing entry into 0enya !y foreign vessels) which is a different iss#e
disc#ssed later.
Ent ' to Ken'an -ate s b' fo e%$n )essels *ection && %rohi!its foreign fishing vessels from entering and fishing in 0enyan waters witho#t a license. Of co#rse) 0enyan fishery waters is already defined #nder *ection - as the excl#sive economic Done #nder the /aritime Hones Act as com%rising territorial waters and the excl#sive economic Done. 9owever) the !asis for iss#ing licenses is to control large n#m!ers of vessels or to a few voracio#s fishing fleets) which endanger maxim#m s#staina!le yield. To iss#e the access %ermits) there sho#ld !e a n#m!er of ste%s for which im%lementing reg#lations m#st !e %rom#lgated. First) there sho#ld !e a s#rvey and charting of stocks as well as their distri!#tion and a!#ndance. The only com%rehensive effort ever attem%ted in the region was the Indian Ocean +x%edition of &73:s) which was done #nder the aegis of U2+*(O. &5- ,ater) #nder the aegis of FAOs Indian Ocean (ommission) a series of st#dies were %re%ared) incl#ding one on stock assessment of Indian Ocean fisheries.&54 *econdly) and on the !asis of the foregoing) there sho#ld !e
determination of total allowa!le catch within the re>#irements of Article '-) which also s%ecifies conditions #nder which access sho#ld !e granted to foreign fleets. In fact) negotiation of access agreements is now a very so%histicated affair as it tied to :%id !pro :%o like !#ilding of local ca%acity and s#%%ort to scientific research.&55 These re>#irements sho#ld !e tied to environmental im%act assessment #nder +/(A or at least in a modified form of strategic environmental assessment to ens#re that the maxim#m s#staina!le yield is not !reached. Re$%onal %n%t%at%)es $y now) it will !e evident that regional and s#!6regional arrangements are essential for inter?#risdictional management of fisheries. 0enya8s Fisheries Policy recogniDes that im%erative and %ro%oses that it !e a%art of f#t#re fisheries regimes. This s#!6section will sim%ly o#tline existing initiatives as a %ointer to c#rrent and f#t#re directions) and then make some !rief s#ggestions for legislation. It does not %#r%ort to disc#ss 0enya8s treaty %ractice) which is a s#!?ect for another st#dy. The Indian Ocean does not have m#ch history of regional and s#!6regional arrangements as do
&5- I
saw vol#mes of the +x%edition re%ort at 9arvard Hoological /#se#m) off 0irkland .oad) !etween 1illiam Games 9all and
the *chool of Divinity) (am!ridge) /assach#setts a!o#t three decades ago.

&54 9ayasi &55 For
M&7 &N.
an Overview and exam%les) see /artin et al M-::&N.
the Atlantic and Pacific Oceans.&53 As for the Indian Ocean) this research has ascertained that there was once an indo6Pacific Fisheries (o#ncil whose mem!ers were all non6African. &5' This was largely a for#m for exchange of information and had no reg#latory f#nctions. ,ater) it sim%ly %hased o#t and can now !e considered def#nct. The Indian Ocean Fisheries (ommission) which has !een referred to a!ove) was a %ro?ect of Food and Agric#lt#re Organisation BFAOC of the United 2ations. Its st#dies and %#!lication were done !y FAO and were #sed to generate information for disc#ssions to g#ide %olicy. As it t#rned o#t) no formal treaty came o#t of the initiative and may have faded away. According to the c#rrent national fisheries %olicy disc#ssed a!ove) the government is committed to regional fisheries management. The %olicy s%ecifically identifies for %artici%ation two regional marine fisheries organisations) namely; *o#th 1est Indian Ocean Fisheries B*1IOFC and Indian Ocean T#na (ommission BIOT(C. On G#ly -::') 0enya) together with Indian Ocean co#ntries which fall so#th of the e>#ator concl#ded the *o#thern Indian Ocean Fisheries Agreements B*IOFAC. The Indian Ocean T#na (ommission was esta!lished #nder Article OIF of FAO as an advisory !ody on the s%ecific s%ecies of fish. It s#ffers the serio#s limitation of s%ecies s%ecific management in an era of ecosystem a%%roach. $esides) it is essentially an initiative of FAO rather than one motivated !y local commitments. *1IOF is also a %rod#ct of FAO machinery and not
an o!vio#s commitment of coastal *tates. It is) nevertheless) an advisory !ody esta!lished #nder Article FI of the FAO (onvention and) therefore) not f#lly reg#latory to ass#me f#ll commitment of mem!ers. The FAO has) admittedly) done a great deal to #sher esta!lishment of fisheries initiative in Africa. In o#r view) however) there sho#ld now !e greater direct and local initiative and commitment. /#lti%licity of instit#tions concerned with fisheries reso#rces of the Indian Ocean may %resent se%arate) if also s#!tle) %ro!lems. (o#ntry delegations s%end d#%licated time and reso#rces attending conferences on iss#es that co#ld !e consolidated. F#rther) reso#rces are set aside for administrative work) which co#ld !e consolidated in some instit#tional framework and th#s dissi%ating efforts. Finally) the s%ecies s%ecific management fo#nd in IOT( is somewhat o#tdated as management of !iodiversity moves to ecosystem a%%roach. These %oints s#ggest that even tho#gh IOT( is the most incl#sive of the regional fisheries
&53 .efer
to note &4& &%pra. *ee also a recent agreement entitled (onvention on the (onservation and /anagement
of Fishery .eso#rces in the *o#th6+ast Atlantic Ocean) ado%ted at 1indhoek) 2ami!ia on -: A%ril -::& !y diverse co#ntries) namely Angola) +#ro%ean (ommission) Iceland) 0orea) 2ami!ia) 2orway) *o#th Africa) United 0ingdom and the United *tates 5International Legal "aterial&7 Fol. O,I /arch -::- at -3 6-"&.
&5' Text
is in Enited 1ation&, Breaty -erie& BU2T*C Fol. 5&" B&7'&C at 45". The mem!ers were France) Phili%%ines) U*A)
$#rma) (eylon Bnow *ri ,anka) A#stralia) (am!odia) Indonesia) Thailand) India) 2etherlands) (hina BTaiwanC) U0) Pakistan) 0orea) Ga%an) 2ew Healand) and Fietnam. The original agreement was signed in &75") see &-: U2T* B&73-C at 37 then revised in &7'&.
organisations) the latest a%%roach in *IOFA co#ld !e closer to an ideal arrangement. It is com%rehensive in that it takes into acco#nt the %rovisions of the &773 Agreement on straddling and highly migratory s%ecies. In fact) this agreement has a lot in common with the e>#ally
incl#sive (onvention on the (onservation and /anagement of Fishery .eso#rces in the *o#th6 +ast Atlantic Ocean. The *cientific (ommittee esta!lished #nder Article B&C of *IOFA wo#ld) th#s) form the link with +/(A8s re>#irement of im%act assessment. The f#nctions of the *cientific (ommittee incl#de) inter alia:
5i7 to cond%ct the &cienti,ic a&&e&&ment o, the ,i&hery re&o%rce& and the impact o, ,i&hing on the marine environment, taking 5into7 acco%nt the environmental and oceanographic characteri&tic& o, the area, and the re&%lt& o, relevant &cienti,ic re&earch
Once a decision is taken) s#ch a %rovision can !e harmonised with the +IA re>#irements of +/(A. En,orcement The %rimary %#r%ose in management of fishery reso#rces is to ens#re that individ#al comm#nities and the co#ntry receive reasona!le !enefits for the %resent and all f#t#re generations. The key to realiDing this inter6generational e>#ity is ens#ring that harvesting of these renewa!le reso#rces maintains maxim#m s#staina!le yield. +nforcement of the re>#irements to realise these o!?ectives entail ind#cing com%liance with set standards and@or im%osing sanctions on those who violate conditions for realiDing the !enefits) while %rotecting the threshold of s#staina!ility. The Fisheries Act in 0enya %rovides for two %rinci%al mechanisms to %romote these o!?ectives. The first mechanism is registration of fishing vessels) which is in *ection of the Act.&5 This may) in %art) !e for reven#e %#r%oses. 9owever) from a conservation %ers%ective) it is to kee% a record of the %o%#lation) with access to the fishing gro#nds. The second mechanism
is licensing of fishing vessels) which may have similar f#nctions as a!ove. In addition) tho#gh) a license sho#ld s%ecify the %recise conditions for fishing) incl#ding s%ecies and >#antities that may !e harvested. The conditions for fishing in 0enya waters defined in the /aritime Hones Act as excl#sive economic Done sho#ld now !e ex%anded to incl#de straddling and migratory s%ecies covered in the &773 (onvention. It will !e essential) too) that 0enya makes %rovision for a%%lication of their registration) and licenses harmoniDed with the regional agreements to which she is a %arty. These sho#ld) in t#rn) !e harmonised with the re>#irements #nveiled !y im%act assessment #nder
&5
Part III of the Act com%rises only one section. 2ote that registration for %#r%oses of a#thority to fly 0enyan flag for sea going
vessels sho#ld !e done #nder the /aritime A#thority Act) s%ecifically section 3BgC.
+/(A. The Fisheries Act makes %rovisions for licensing of foreign fishing vessels. These sho#ld also now !e harmonised with the regional fishing agreements. 1ithin the regional framework) the stat#te sho#ld also make %rovision for %ort *tate enforcement mechanisms) which co#ld arg#a!ly !e on reci%rocal !asis where other co#ntries may enforce against 0enyanregistered vessels the same conditions as im%osed on their vessels !y 0enya. +nforcement against vessels registered in non6ri%arian co#ntries can !e %rovided for. &5" In fact) at the %resent stage) with regional initiatives) it is time for 0enya Bwith its ri%arian neigh!o#rs at least) and regional mem!ersC to harmonise their fisheries laws) incl#ding
enforcement mechanisms. That sho#ld take off from harmoniDation of the fisheries laws with the re>#irements of the &7"- (onvention.&57 The harmonisation of the fisheries laws among the Indian Ocean *tates) mem!ers of an agreed regional organisation) wo#ld allow for an agreement on strategic im%act assessment as an offshoot of the c#rrent +IA #nder +/(A.&3: There will) of co#rse) !e need for creativity in develo%ing !oth im%act and strategic assessment !efitting fisheries management to ens#re maxim#m s#staina!le yields. The final %oint on enforcement has the two fold im%lication for armed forces. +nforcement of reg#lations and licenses re>#ire %artici%ation of the %olice) 0enya 2avy and other armed forces. As o!served a!ove) the Armed Forces Act does not have a %rovision on enforcement of laws relating to excl#sive economic Done. 9owever) the g#idelines of 0enya 2avy O%erations refer s%ecifically to s#rveillance of the ++H) fisheries %rotection and environmental %atrols. &3& It will !e necessary to develo% s%ecial reg#lations related to fisheries stat#te and agreed #%on in colla!oration with the %olice and navy to s%ecify detailed %rotocol for enforcement of the inter?#risdictional re>#irements. The role of the armed forces will) of necessity) incl#de %roviding sec#rity to the fishing vessels) given the %re%onderance of %iracy in the Indian Ocean c#rrently emanating from lawlessness in *omalia.&3F%nal Re#a /s
&5" The &57 A
conce%t and a%%lication of %ort *tate control a%%roach is disc#ssed in details !y ,o!ach M-::-N.
TanDanian scholar has taken an im%ortant initiative) see /lim#ka M&773; 3 6 4N. that Part FI) *ection 3"6'" of +/(A makes %rovisions for +IA !#t there is no %rovision for strategic environmental
&3: 2ote
assessment. On the other hand) in TanDania) the +nvironmental /anagement Act 2o. -: of -::5 makes %rovision for +IA in Part FI) *ections "&6&:4 and *trategic +nvironmental Assessment in %art FII) sections &:5 6&:3.
&3& Accessed
from the /inistry of *tate for Defence we!site; htt%;@@www.mod.go.ke@navy@index.%h% %ageS link_o%erations on
G#ly - ) -:: at & K -.

&3- +nforcement
of sec#rity in the area covered !y regional fisheries organisation will re>#ire com!ined efforts !y the navies of
from littoral co#ntries. *ome %ers%ectives of availa!le sec#rity is in $r#ce M&77:N.
The diversity of iss#es and stat#tes with im%lementing reg#lations disc#ssed in this cha%ter makes a #nitary s#mmary of concl#sion #nfeasi!le. A n#m!er of critical environmental iss#es have !een raised) and th#s %osing several challenges to 2+/A and the res%ective lead agencies to develo% stat#tes or reg#lations) even tho#gh in most cases it is a matter of harmonisation of existing laws. (ertainly) the most %ro!lematic area is 0enya8s coast where there is #rgent necessity to do a thoro#gh review) starting with recommendations on %lanning for government land !etween high water mark and %rivate settlements. The %#r%ose is %artly to %rovide for environmental conservation and %artly to take %reca#tion against %ossi!le rise in sea6level res#lting from climate change. An e>#ally #rgent attention m#st !e given to the necessity to s%ecify the agency res%onsi!le for local and regional %hysical and environmental %lanning in the marine area of 0enya) %artic#larly the continental shelf. G#st like the Director of Physical Planning has done for local and regional %lanning in the co#ntry) an agency m#st !e identified to %erform similar res%onsi!ility on the continental shelf) otherwise there will !e gave conflicts among legal
%ermissi!le activities s#ch as ex%loration and %rod#ction of oil) laying of s#!marine ca!les) and maric#lt#re) among others. The fisheries sector re>#ires harmonisation of laws at a regional level. Along with that is the necessity for a strategic im%act assessment to s#%%ort regional and national determination of maxim#m s#staina!le yield.
!art III I.*E .A*I3.AL AS!EC*S Chapter 0A
Environmental Law of East Africa

.O$+.TA. 1A$U2O9A SSSSSSSSSSSSSSSSSSSSSSSSSSSS
Introduction +nvironmental law of +ast Africa) tho#gh relatively new) has !een growing in %o%#larity and in tandem with the im%rovement of environmental management at regional) national and local levels. +nvironmental management is as high a to%ic as the other s#!?ects) s#ch as the move to a federation) (#stoms Union and other trade6related as%ects. *o#nd environment management) however) is !ecoming a s#!?ect for regional disc#ssion among academics) environmentalists) civil society) and intermittently among the %#!lic and mass media. The s#!?ect of environment is also
steadily growing in the legislat#re and co#rts of law) leading to the develo%ment of a new to%ic called the environmental law of +ast Africa. Des%ite the fact that environmental law is still a relatively new disci%line in +ast Africa) it has already !ecome com%lex as it !ecomes integrated into the existing social) %olitical and legal systems of the region. The com%lexity and sco%e of contem%orary environmental law of +ast Africa can now !e made in two categories. The first category consists of those environmental laws with a regional or international a%%lication and common to all the %artner states) that is; BiC laws of +ast African (omm#nityE BiiC conventions and %rotocolsE and BiiiC internationallyacce%ted environmental %rinci%les) among others. The second category consists of national environmental laws that have similar characteristics among the %artner *tates) that is; BiC national lawsE BiiC a%%lica!le common lawE and BiiiC ?#dicial decisions) among others. The com%lexity of the +ast African environmental law is also #nder%inned !y the fact that !efore -::') the +ast African region com%rised of 0enya) Uganda and TanDania covering a s#rface area of &." million s>#are kilometres with a %o%#lation of a!o#t "- million. & 1ith the admission of .wanda and $#r#ndi as f#ll mem!ers of the +ast African (omm#nity B+A(C) the total s#rface area of the (omm#nity ex%anded to &)"35)&'" s>#are kilometers) 4 with an a%%roximate %o%#lation of 7" million %eo%le.5 The additional com%lexity of .wanda and $#r#ndi incl#sion is d#e to the fact that !oth are civil law co#ntries while 0enya) TanDania and Uganda %ractice common law. <iven the a!ove sco%e and level of com%lexity) an examination of the content) definitions)
norms and %rinci%les of the contem%orary environmental law of +ast Africa !ecomes im%erative.
& +ast
African (omm#nity *ecretariat)= +A( in $rief= %osted at ;http:>>www.each:.org>eac!in!#rie,.htm= and accessed in
2ovem!er -::'.
- .wanda
and $#r#ndi were admitted as +ast African (omm#nity mem!ers on 4: 2ovem!er -::'. *ee ?oint (omm#ni>#e of the
"th *#mmit of the +ast African (omm#nity 9eads of *tate held on 4: 2ovem!er -::') AI(() Ar#sha TanDania. *ee ;http:>>www.each:= accessed in 2ovem!er -::'.
4 $#r#ndi
has a total s#rface area of - )"4: s> km and .wanda has a total s#rface area of -')44" s> km. ;http:>>www.
nation&encyclopedia.com>$,rica>= accessed in 2ovem!er -::'.

5 The
%o%#lation of $#r#ndi and .wanda in -::4 were estimated !y the United 2ations at ')"-3)::: and ")4" )::: %eo%le)
res%ectively. *ee; ;http:>>2vwiv.nation&encyclopedia.com>$,rica>= accessed in 2ovem!er -::'.
This cha%ter) therefore) examines the evol#tion) definition) content and sco%e of the environmental law of +ast Africa. The cha%ter is a !road in>#iry and will ho%ef#lly contri!#te to the develo%ment of a com%rehensive general framework of the environmental law of +ast Africa in the context of the %ro%osed +ast African Federation. This cha%ter will) however) rely more heavily on 0enya) TanDania and Uganda and less on .wanda and $#r#ndi) sim%ly !eca#se the later two co#ntries have) !y the time of writing) not f#lly integrated into the +ast African (omm#nity in terms of legal) %olicy and social norms. S&nopsis of the Environmental esources and Issues in East Africa
It is not %ossi!le to examine and a%%reciate the environmental law of +ast Africa witho#t first #nderstanding the regions8 environmental reso#rces and the associated %ro!lems of which the law attem%ts to %rovide sol#tions. Altho#gh the main foc#s of this cha%ter is not an ela!oration of the environmental iss#es facing +ast Africa) the following is a syno%sis of the reso#rces and
associated %ro!lems in the region. En)% on#ental eso+ !es +ast Africa is well endowed with a wide variety of environmental reso#rces that incl#de waters) minerals and land. The environmental reso#rces co#%led with the varia!le climate that characteriDes al%ine) tro%ical) arid and semi6arid conditions are critical determinants of the economies of these *tates. The ma?or environmental reso#rces of +ast Africa may !e categoriDed into two gro#%s; the trans!o#ndary and national ecosystems. 3 The ma?or trans!o#ndary systems com%rise of; 5a7 $:%atic eco&y&tem&: ,akes Fictoria) Gi%e) Tanganyika) 2yasa) +dward and Al!ert) the 2ile6(ongo watershed and 0agera in .wanda and $#r#ndi) the coastal marine systems of 0enya and TanDania) and the wetlands that are widely distri!#ted in the regionE 5#7 Berre&trial eco&y&tem&: /t +lgon) the .#wenDoris) /t 0iliman?aro6Am!oseli6,ongidoE +astern Arc /ts Taita TavetaE /inDiro6*ango $ay) ,oima6/orotoE *erengeti /ara and Tsavo 1est6/komaDi@Um!a. The ma?or national ecosystems com%rise; 5a7 $:%atic eco&y&tem&: .ift Falley lakes of 0enya) TanDania and UgandaE ,akes 0yoga and <eorgeE the 2ile .iver) .#fi?i) Pangani) the /ara) Athi and Tana .ivers) .#DiDi .iver in
3 I#oted
from Ok#r#t M-::3N.
$#r#ndi) ,ake Tanganyika and 0ageraW.#vyironDa .iver systems. ' In .wanda) they com%rise the 2ile drainage systems with ,ake 0iv# and .iver .#DiDi. 5#7 Berre&trial eco&y&tem&: /t 0enya) the A!erdares rangesE /t /er#) (heranganyi 9ills and /a# escar%ment) the wildlife %rotected areas) the /iom!o woodlands and wooded savannas and the high rainfall forest systems s#ch as the 0akamega and the *o#thern highlands of TanDaniaE and /a!ira and $#dogo in Uganda. In $#r#ndi) there is /t 0aron?e) and the lowlands of the Al!ertine .ift that forms the western extension of the <reat .ift Falley. In .wanda) there is also the Al!ertine .ift that forms the 1estern .ift
Falley and the rolling hills. If the region was #sing the a!ove mentioned environmental reso#rces s#staina!ly and rationally) the livelihoods of the %eo%le wo#ld have !een greatly enhanced. En)% on#ental ( oble#s A syno%tic review of the environmental %ro!lems in the region shows that nat#ral reso#rces are not !eing managed in a s#staina!le and rational manner. The extent of #tilisation of nat#ral reso#rces in the region) the economic and social gains is varia!le among the %artner *tates. 1hat is common) however) is the #ns#staina!le #se of these reso#rces and their degradation. There are) however) common characteristics across the !oard that drive the environmental stresses) that is; %overty) food insec#rity) levels of ca%acities in environment management) incl#ding awareness of %olicies and lawsE %oor access to informationE and instit#tional weaknesses. As regards the shared ecosystems) a!sence of coherent common %olicies and strategies for ?oint management has !een another contri!#ting factor to the environmental stress. The nat#re of environmental %ro!lems in +ast Africa can !e %resented in three categories) that is; the a>#atic) terrestrial and #r!an environments. .egarding the a>#atic environment) the following are manifest; BaC +nrichment of water !odies !y n#trients and siltation mainly coming from the catchments and #r!an settlements) ca#sing e#tro%hication that renders water !odies #ns#ita!le for #se) affects the fishery) and distorts the ecology and %rod#ctivity of the a>#atic system. " B!C Uns#staina!le #tilisation of wetlands ca#sed !y extensive reclamation of wetlands. The driving %ress#re for the reclamation is mainly d#e to agric#lt#ral ex%ansion) %oor and
' ;htrp:>>en.wikipedia.org>%=iki>9ioanda
and I%nindi= accessed in 2ovem!er -::'.
The .e%#!lic of .wanda; /inistry of ,ands) .esettlement and +nvironment) -::4.

" ,ake
Fictoria +nvironmental /anagement Pro?ect) -::4 %#!lications.
#nco6ordinated %lanning) es%ecially in #r!an areas. BcC Over6ex%loitation of the fishery in all the lakes of +ast Africa) !#t most %rono#nced in ,ake Fictoria W the !iggest fresh water fishery so#rce in the region. The main drivers of this stress incl#de introd#ction of alien s%ecies) over6fishing and #se of wrong fishing gear. BdC Invasion of a>#atic weeds es%ecially with water !odies with high n#trient concentrations) es%ecially Eichhornia cra&ippe& Bwater hyacinthsC. $etween &77 and -:::) water hyacinth dealt a devastating !low to the economies of +ast Africa co#ntries when it occ#%ied over -:)::: hectares of the ,ake. .egarding the territorial environments) the following do manifest; BaC +ncroachment on %rotected and gaDetted areas) and the associated ha!itat loss. This is one of the leading environmental %ro!lems in the region) affecting mainly forests) game reserves) marine %arks) and wetlands. The environmental stress is ca#sed !y h#man settlements) agric#lt#re and harvesting of the reso#rces. The %ress#re is #s#ally exerted directly !y governments thro#gh excision) corr#%tion) civil strife and ref#gee settlement. The areas most affected incl#de /t +lgon) <ishwati and /#k#ra forest reserves) 7 /#tara h#nting reserve) /a# escar%ment and /t /er# forest reserves. B!C Over6stocking and cattle r#stling es%ecially !y the %astoral comm#nities Bnormally fo#nd in arid and semi6arid regionsC who mostly de%end on the livestock for s#rvival. Fires) soil and wind erosion and the c#stomary cattle r#stling are also serio#s %ro!lems. The de%endence on livestock has contin#o#sly driven these comm#nities to rear livestock !eyond the carrying ca%acities of the land. BcC The land #se and land ownershi% system varies from co#ntry to co#ntry !#t ownershi% or
lack of it has a !earing on the conservation and economic gains that can accr#e to the governments or individ#als from the land reso#rces. (onservation areas are targeted for #se as they are viewed as !elonging to government with no one individ#ally res%onsi!le) yet s#ch areas are fragile and sensitive to intense h#man activities. .egarding the #r!an environments) the following %ro!lems are visi!le; 5a7 Un%lanned settlements from !ig to small towns. 1ater s#%%ly) waste collection) dis%osal
7 .wanda
+nvironmental Threats and O%%ort#nities Analysis) (hemonics International Inc.) Fe!r#ary -::4.
and general sanitary stat#s are invaria!ly a!sent or inade>#ate. ,iving conditions are %oor and this is f#rther driven !y high levels of %overty. For exam%le) most of the fishing villages aro#nd ,ake Fictoria are #n%lanned and all are located in areas of high water ta!le and interface directly with the lake. 5#7 The levels of collection and dis%osal of solid waste in all the towns in +ast Africa are different. The common factor) however) is that solid waste collection in only fair in %lanned areas and %oor in #n%lanned areas. In all cases) the dis%osal of the solid waste is more %ro!lematic than collection. ,andfills are the common facility #sed in ma?or towns !#t their management is) in most cases) inade>#ate. In smaller #r!an centres) wetlands and isolated forests are the targeted d#m%ing areas. *ewage collection is worse than solid waste) with only a fraction of the %o%#lation connected to %#!lic sewers. The rest of the %o%#lation #se ina%%ro%riate systems) direct discharge and rainfall canaliDed washo#ts. 5c7 /ost of the ind#stries in +ast Africa are agric#lt#ral6!ased and) conse>#ently) the threat coming from these so#rces is largely associated with organic %oll#tion loading rather the toxics.
Legac& of East Africa? From Colonial Era to e$esta"lishment of the East Africa Communit&
To a%%reciate the environmental law of +ast Africa) it is necessary to trace the origin and history
of the region. This is !eca#se the origin and history of environmental law of +ast Africa has its fo#ndation in the %olitical history and social set of the region. 1hen one examines the social set #% of +ast Africa) it is often stated that these %eo%le share a common history) lang#age) c#lt#re and infrastr#ct#re) &: and %erha%s one can add that they can even easily !e identified on the streets !y how they s%eak. *wahili is fast !ecoming the ling#a franca of the region. This has ena!led the %eo%le of +ast Africa to !#ild a firm fo#ndation for develo%ment of a common legacy in very many s%heres of societal and %#!lic management) incl#ding the environment sector. This fo#ndation) as will !e disc#ssed later on) %layed a key role in the develo%ment of the s#!?ect of environmental law of +ast Africa. The three co#ntries of 0enya) TanDania and Uganda have had instances of co6o%eration) which r#ns !ack to the colonial era. .ight from the start of the colonial era ?#st !efore &7::) the three +ast African co#ntries were involved in different as%ects and forms of regional integration. This integration effectively !egan with the constr#ction of the 0enya6Uganda .ailway B&"7 6 &7:&C) the esta!lishment of the (#stoms (ollection (entre B&7::C) the +ast African (#rrency $oard B&7:3C) the Postal Union B&7:3C) the (o#rt of A%%eal for +astern Africa B&7:7C) the (#stoms
&: +ast
African (omm#nity *ecretariat)= +A( in $rief= %osted at ;http:>>%nv2o.each:.org>eac!in!#rie,.htm= and accessed in
2ovem!er -::'.
Union !etween 0enya and Uganda in &7&7 6 later ?oined !y the then Tanganyika in &7- ) the +ast African <overnor8s (onference B&7-'C) the +ast African Income Tax $oard B&75:C and the Goint +conomic (o#ncil B&75:C. The idea of co6o%eration later on grew to em!race a wider
n#m!er of other iss#es. This ty%e of integration was entered into #nder different legal instr#ments s#ch as the +ast Africa B9igh (ommissionC Orders in (o#ncil &75 to &7'&) +ast African (ommon *ervices Organisation Agreements of &7'& to &7'') and the Treaty of the +ast African (omm#nity from &7' to &7 . It sho#ld !e noted that the colonial legacy was aimed at esta!lishing s#ccessive ?oint organisations to control and administer matters of common interest. These colonial arrangements also so#ght to reg#late the commercial and ind#strial relations and transactions of the said co#ntries) as well as) !y means of a central legislat#re) enact laws relevant for the %#r%oses of these organisations on !ehalf of the co#ntries. The %ost6inde%endence integration organisation) i.e. the +ast African (omm#nity was) however) %lag#ed with many %ro!lems leading to its colla%se in &7 . The %ro!lems that led to its colla%se were ca#sed !y !oth external and internal factors s#ch as ideological differences among the %olitical leaders) lack of strong %olitical will !y the 9eads of *tate) lack of ade>#ate instit#tional s#%%ort) and %ro!lems %revailing in the different %artner *tates. Other %ro!lems incl#ded lack of strong %artici%ation of the %rivate sector and civil society) the contin#ed dis%ro%ortionate sharing of the !enefits of the (omm#nity) lack of ade>#ate %olicies) !reakdown of the r#le of law) and lack of harmonisation of %olicies and law. && To revive their legacy) the three co#ntries !etween &774 and &777 entered into an interim tri%artite arrangement #nder the +ast African (o6o%eration) which later on led to the !irth of a new legal instr#ment; The Treaty +sta!lishing the +ast African (omm#nity of 4: 2ovem!er) &777.
Evolution of Contemporar& Environmental Law of East Africa $efore examining the sco%e and content of the environmental law of +ast Africa) it is im%ortant to review how this s#!?ect evolved. To #nderstand the evol#tion of contem%orary environmental law of +ast Africa) one needs to examine the events and circ#mstances that took %lace d#ring the %eriod !efore the ado%tion of the Treaty +sta!lishing the +ast African (omm#nity of &777. $y the &77:s 0enya) TanDania and Uganda were at varying degrees and stages of develo%ment !oth in terms of socio6economic and environment management. 0enya was rated as the most economically develo%ed co#ntry) followed !y TanDania) while Uganda was recovering
&& Pream!le
to The Treaty for the +sta!lishment of the +ast African (omm#nity signed in Ar#sha) TanDania on 4:
2ovem!er &777 at &.
from a long %eriod of %olitical and economic t#rmoil. This had different im%acts on the develo%ment of environmental law in the three co#ntries) as each co#ntry had different %erce%tions) interests and national %riorities. 0enya had a strong %rivate sector economy that needed %rotection and) seemingly) needed less interference !y way of environmental laws. Uganda) in an aftermath of %olitical and economic misr#le that had negatively affected the environment #rgently needed the environmental laws) while TanDania with a history of long sta!ility was in the middle of the other two co#ntries and re>#ired more time to assess its sit#ation !efore form#lating more laws.&All the three co#ntries) !y &775) had however !eg#n the task of creating framework environmental laws. An environmental !ill had !een drafted and was !eing de!ated in Uganda.
Attention was starting to t#rn to the drafting of related reg#lations. Preliminary legislative drafting in 0enya was #nderway in the wake of the com%leted 2ational +nvironmental Action Plan B2+APC. TanDania had com%leted its 2+AP and was also in the %reliminary stages of drafting sectoral laws !#t not a framework environment law. +ach of the three co#ntries had also #ndertaken some review of their sectoral laws) many of which were fo#nd to !e o#tdated and !adly in need of #%dating in light of changing environmental o!?ectives as a res#lt of the o#tcomes of the United 2ations (onference on +nvironment and Develo%ment BU2(+DC of &77-. F#rther) there were %re6existing ena!ling environmental and historical factors that ena!led the s%eedy develo%ment of the environmental law of +ast Africa. These factors incl#ded the following;&4 BaC The three co#ntries all share) in many res%ects) a common %olitical and legal heritage. All the three co#ntries were colonised !y $ritain) #se the common law system) and their legal frameworks are largely the same with similar legal drafting) ?#diciary and law enforcement mechanismsE B!C +ach of the three co#ntries) i.e. 0enya) TanDania and Uganda) has a common !order with the other %artner co#ntry and) therefore) has each infl#enced the other in the socioeconomic and %olitical environmentE&5 BcC +ast Africa was %erceived as an economic !lock. A s#!6regional a%%roach to internal environmental standards wo#ld ena!le the ela!oration of s#!6regional %olicies and cond#cive develo%ment of a common external %olicy on environmental managementE
&- 1a!#noha &4 I#id. &5 After
M-::'N.
the ex%ansion of the +ast African (omm#nity B+A(C) .wanda) $#r#ndi) TanDania and Uganda have common !orders.
0enya shares a !order with only Uganda and TanDania) while $#r#ndi shares with TanDania and .wanda
BdC All the three co#ntries faced many similar environmental %ro!lems) !oth with res%ect to
reso#rces within their own !orders Be.g. deforestation) degradation) loss of !iodiversityC) and the reso#rces they share Be.g. water >#ality of ,ake Fictoria and cross6!order ecosystems Be.g. degradation of /t +lgon) /aasai /araC. These common environmental %ro!lems made it cond#cive for the three co#ntries to find lasting and relatively common sol#tionsE&3 BeC All the three co#ntries faced similar challenges in terms of !#ilding their legal and instit#tional ca%acity to deal with the environmental %ro!lems. All the three co#ntries were) !y &775) #ndergoing legal and instit#tional reforms not only in the environment sector !#t also in the other economic sectors s#ch as str#ct#ral ad?#stments. Against the a!ove !ackgro#nd) and with the assistance of the United 2ations +nvironment Programme BU2+PC #nder its Partnershi% for the Develo%ment of +nvironmental ,aw and Instit#tions in Africa BPAD+,IAC %ro?ect) the three co#ntries !etween &77' and &77" develo%ed and harmonised their legislation in seven areas. These areas related to environmental im%act assessmentE management of haDardo#s and non6haDardo#s wastesE toxic and haDardo#s chemicalsE wildlife and forest reso#rcesE legal as%ects for the management of the ,ake Fictoria ecosystemE and form#lation of environmental standards. (onse>#ently) in &77") the governments of the three co#ntries) conscio#s of the need to coo%erate in the rational management and s#staina!le #se of the environment and nat#ral reso#rces) signed a /emorand#m of Understanding on (o6o%eration in +nvironmental /anagement Bhereinafter called the /OUC. This /OU was a sto%6ga% meas#re %ending develo%ment of a %rotocol #nder the then widely antici%ated +ast African (omm#nity Treaty. The +A( Treaty and Protocol on +nvironment and 2at#ral .eso#rces drew %rovisions and commonalities from the /OU and from ex%eriences d#ring harmonisation of vario#s areas of environmental law.
F#rther) many of the government officials and legal ex%erts involved in the develo%ment and harmonisation of environmental laws and in the %re%aration of the /OU also %artici%ated in the negotiation of the cha%ters relating to environment and nat#ral reso#rces in the +A( Treaty. The a!ove scenarios made it relatively easy for the three co#ntries to reach a common #nderstanding of what the +A( Treaty sho#ld %rovide in terms of environment and nat#ral reso#rces management) and greatly facilitated the develo%ment and sha%e of contem%orary environmental law of +ast Africa. Importance and Scope of Environmental Law of East Africa
&3 *ee
%art I of this article.
In the context of +ast Africa) the im%ortance of having a harmonised environmental sector can !e seen from three factors) that is; trans!o#ndary common market) common %olicy) and ?oint management. Therefore) the #tility of the environmental law of +ast Africa is in the following ways; At a regional level) an environmental law of +ast Africa minimises differences and creates standards for com%ati!ility and consistency in im%lementation of environmental6related %rogrammes and activities. .egionally set environmental laws and %roced#res allow harmonisation of the same systems at national level. For exam%le) where the environmental law of +ast Africa sets a regional standard) s#ch as environmental im%act assessment %roced#res) national standards wo#ld) thro#gh s#ch a regional law) create fairness and evenness in a%%lication !y all the co#ntries. This) in t#rn) wo#ld allow develo%ers in all the co#ntries a%%ly similar or the same standards. Other environmental standards that can !e a%%lied at a regional level incl#de technical content standards s#ch as for water >#ality or effl#ent discharge.
F#rther) a regional environmental legal framework lays a firm fo#ndation for resolving trans!o#ndary environmental6related conflicts) es%ecially in the #tilisation of shared reso#rces. The shared ecosystems of /ara6*erengeti) .iver 2ile) Al!ertine .ift Falley) /inDiro6*ango $ay) ,ake Fictoria) 0iliman?aro6Am!oseli6,ongido) ,ake Gi%e) 0agera river) +lgon) .iver /ala!a) .#vyironDa river systems fall #nder this category. In this context) the regional environmental law creates a system of !ilateral) m#ltilateral agreements or ?oint commissions to address s#ch transfrontier %ro!lems. At the national level) the environmental laws of +ast Africa %lay a ma?or role in ens#ring good governance. A law that has !een set regionally and is !eing %racticed or im%lemented at national level in one of the %artner *tates is more likely to !e acce%ted in another %artner *tate. A regional environmental law can) many times) check or control national decisions that are deleterio#s to the environment. *#ch decisions) where they contravene a regional level agreed environmental law can !e challenged at) say) the +ast African (o#rt of G#stice) there!y enhancing so#nd environmental governance. 1hen a%%lying the regional environmental law) instit#tions are more likely to !e less infl#enced !y local national %olitics and therefore arrive at a more rational decision. S!o(e of t&e en)% on#ental la-
1hereas the definition of environmental law is generally known and acce%ted) what constit#tes 8the environmental law of +ast Africa8) as stated earlier in this cha%ter) needs an in6de%th examination. A ma?or !reakthro#gh in attem%ting to define the environmental law of +ast Africa
was made !y the Protocol on +nvironment and 2at#ral .eso#rces. &' The Protocol %rovides that the environmental laws of the (omm#nity & shall consist of; BaC relevant %rovisions of the TreatyE B!C the Protocol for *#staina!le Develo%ment of ,ake Fictoria $asinE BcC this Protocol) 5&ic7 on environment and nat#ral reso#rces managementE BdC reg#lations and directives made !y the (o#ncilE &" BeC a%%lica!le decisions made !y the +ast Africa (o#rt of G#sticeE &7 BfC Acts of the (omm#nity enacted !y the ,egislative Assem!lyE -: and BgC relevant %rinci%les of international environmental law. The Protocol) therefore) !eing the main framework instr#ment that ela!orates environment management in +ast Africa attem%ts to set o#t the constit#ents of the environmental law in the (omm#nity. A dee%er examination) however) of what wo#ld constit#te the environmental law of +ast Africa shows that in addition to what the Protocol %rovides) there are other constraints that need to !e incl#ded. If the sco%e is limited to only the a!ove) what wo#ld ha%%en to environmental conventions) %rotocols and other agreements that the %artner *tates are a %artyL 9ow wo#ld one treat national laws) a%%lica!le (ommon ,aw) and ?#dicial decisions that are made at national level !#t are common to all %artner *tatesL 1hy wo#ld s#ch laws not >#alify to !ecome %art of the environmental law of +ast AfricaL In my o%inion) all these other com%onents
of the law sho#ld also form %art of the environmental law of +ast Africa. It is) therefore) the contention in this cha%ter that any law that >#alifies to !ecome %art of the environmental law of +ast Africa m#st f#lfill the following conditions; Bhe matter &ho%ld relate to environmental management Altho#gh the conce%t and definition of 4 environment= is not the foc#s of this cha%ter) it is relevant to %oint o#t that the conce%t) nat#re or definition of environmental law stems from the definition of the term 8environment8 itself. Therefore) any examination of what constit#tes the environmental law of +ast Africa sho#ld !e directly related to the definition of the term
&' *ee &
;http:>>2vw2v.eac.int>doc%ment&>E$C+protocol+on+enviro+and+nat%ral+re&+mgt.pd,= accessed in /arch -::
Article 5&B&C of the +2. Protocol. Treaty) Article &5 K &'. (ha%ter ". (ha%ter 7.
&" +A( &7 I#id, -: l#id,
environment) its com%onents or %arts thereof. The +ast African (omm#nity Treaty defines =environment= as;
the nat%ral re&o%rce& o, air, water, &oil, ,a%na and ,lora, eco&y&tem&, land, the manmade !phy&ical ,eat%re&, c%lt%ral heritage, the characteri&tic a&pect& o, the land&cape and the &ocio!economic interaction #etween the &aid ,actor& and any living and nonliving organi&m&.'G
The im%lication of this definition is that any matter that relates to any of the com%onents or %arts thereof of the nat#ral reso#rces) their socio6economic interaction or any living or non6 living organism wo#ld fall #nder the definition of the environmental law of +ast Africa. An attem%t to list those areas in the Treaty that fall #nder this definition wo#ld !e too detailed for this cha%ter.
Eni,orm application to all partner -tate& For an environmental law to !e recognised as forming %art of the environmental law of +ast Africa) it m#st a%%ly #niformly to all the %artner *tates or !e ca%a!le of !eing a%%lied among the %artner *tates. The Protocol on +nvironment and 2at#ral .eso#rces states that the environment laws of the (omm#nity shall a%%ly #niformly in the %artner *tates exce%t as otherwise %rovided for in this Protocol.-- F#rther) given the wide sco%e and content of environmental law) the contention in this cha%ter is that) in addition to having #niform a%%lication as stated in the Protocol) other laws or %rinci%les that are common among the %artner *tates wo#ld meet the re>#irements of !eing +ast African. I wo#ld therefore define the environmental law of +ast Africa as;
tho&e law& that ,acilitate environmental protection or management within the Comm%nity with either a regional &cope or where the law can #e commonly applied or practiced in all the partner -tate&.
eview of the Environment Law of East Africa 9aving attem%ted to examine the com%lexities and sco%e of the environmental law of +ast Africa) the next task is to !riefly review those categories that form %art of the law. The review will !e in two categories. The first category reviews those laws that have a regional or international
-& I#id,
Article I. 5&B-C of the Protocol.
-- Article
a%%lication and are common to all the %artner *tates) that is; BaC laws of +ast African (omm#nityE B!C relevant environmental conventions and %rotocolsE and BcC internationally6acce%ted
environmental %rinci%les. The second category deals with national environmental laws that have similar characteristics among all the %artner states) that is; BaC national lawsE and B!C a%%lica!le common law) among others. Re$%onal En)% on#ental Con)ent%ons an* P oto!ols +n*e t&e F a#e-o / of t&e East Af %!an Co##+n%t' Bhe Breaty E&ta#li&hing the Ea&t $,rican Comm%nity, GDDD The Treaty +sta!lishing the +ast African (omm#nity of &777-4 %rovides for the areas of regional co6o%eration and integration covering trade) investments and ind#strial develo%mentE monetary and fiscal affairsE infrastr#ct#re and servicesE h#man reso#rces) science and technologyE agric#lt#re and food sec#rityE environment and nat#ral reso#rces managementE to#rism and wildlife managementE and health) social and c#lt#ral activities. -5 The o!?ectives of the Treaty-3 incl#de) among others) to; BaC %romote a s#staina!le growth and e>#ita!le develo%ment) incl#ding rational #tilisation) of the region8s nat#ral reso#rces and %rotection of the environmentE B!C strengthen and consolidate the long standing %olitical) economic) social) c#lt#ral and traditional ties of the %artner *tates and associations !etween the %eo%le of the region in %romoting a %eo%le6centred m#t#al develo%mentE BcC %romote good governance) incl#ding adherence to the %rinci%les of democratic r#le of law) acco#nta!ility) trans%arency) social ?#stice) e>#al o%%ort#nities and gender e>#alityE and BdC %romote %eace and sta!ility within the region) and good neigh!o#rliness among the %artner *tates. It is #nderstanda!le that the +A( Treaty has strong %rovisions on the environment as the +ast
African %eo%le and economy heavily rely on nat#ral reso#rces for their livelihood. F#rther) the +A( Treaty) !eing a %ost6U2(+D instr#ment) draws heavily on those %rinci%les that were agreed #%on at the 1orld *#mmit in .io de Ganeiro) $raDil) in &7-- as f#ndamental for attaining
-4 +ast
African (omm#nity *ecretariat) =+A( in $rief= %osted at http:>>cJiv2o.each:.org>eac!in!#rie,.htm, accessed in
2ovem!er -::'.
-5 +ast
African (omm#nity *ecretariat) =+A( in $rief= %osted atP http:>>www.each:.org>eac!in!#rie,.h,i%= accessed in
2ovem!er -::'.
-3 +A(
Treaty) Article 3B4C.
s#staina!le develo%ment. The +A( Treaty8s main areas of foc#s on the s#!?ect of the environment are; BiC management of nat#ral reso#rcesE BiiC management of the environmentE BiiiC %revention of illegal trade in and movement of toxic chemicals) s#!stances and haDardo#s wastesE and BivC to#rism and wildlife management.-' The s#!stantive %rovisions on environment fo#nd in the +A( Treaty- can !e divided into the following ma?or themes; BaC recognition of environmental %ro!lems and iss#es as a draw!ack to s#staina!le develo%ment) calling for co6o%eration and taking concerted meas#res in solving the identified environmental %ro!lemE B!C develo%ment of common %olicy) legislation and other meas#res aimed at %rotecting the environment. (ommon %olicy) legislation and other meas#res is #sed in the context of; BiC harmonisation of lawsE BiiC ado%ting of common %ositionsE BiiiC taking of ?oint actionsE BivC ado%tion of comm#nity environment %rogrammes) reg#lationsE-" BvC develo%ment of collective and co6ordinated a%%roachesE -7 and BviC ?oint #se of facilitiesE4:
BcC ado%tion of trans!o#ndary ecosystem a%%roach and also in other areas s#ch as management of wastes and toxic s#!stancesE BdC need to integrate environmental considerations in develo%ment activitiesE BeC #se of =non6legal= means to s#staina!ly manage the environment) s#ch as ed#cation) awareness) information) training) cleaner %rod#ction methods) conservation meas#res) recycling and re#se) among othersE and BfC ado%tion of contem%orary environmental management %rinci%les and %ractices s#ch as +IA)4&environmental standards)4- %rior notification)44 and #se of conservation meas#res for
-' I#id, - I#id. -" I#id, -7 I#id, 4: I#id, 4& I#id, 4- I#id. 44 I#id,
(ha%ter &7 and -:.
Article &&5B-C BivC and BvC. Article &&3 K &&'. Article &&'BeC. Article &&-B-C.
Article &&& BlCBdC.
wildlife reso#rces.45 The +A( Treaty has other %rovisions that are relevant to so#nd environment management. Among them are those %rovisions ena!ling a %erson to challenge government decision. The Treaty gives legal ca%acity to any %erson who is resident in a %artner *tate to refer for determination !y the (o#rt of G#stice of +ast Africa on gro#nds of legality of any Act) reg#lation) directive) decision or action of a %artner *tate or an instit#tion of the (omm#nity on gro#nds of s#ch law) decision or action !eing #nlawf#l or infringing the Treaty. 43 This is one of the ma?or methods in which the %#!lic
can effectively %artici%ate in environment management and ens#re that governments take so#nd and good decisions that are not deleterio#s to the environment. The Treaty f#rther calls for co6o%eration in standardiDation and >#ality ass#rance) !earing in mind the need to %rotect life) %ro%erty and the environment. 4' As regards maritime trans%ort and %orts)4 the ma?or concern of the Treaty is having inter6connection of national comm#nication systems to identify %oll#ted %oints. *ince the ado%tion of the +A( Treaty in &777) a n#m!er of legal instr#ments relating to the environment have !een ado%ted. 2ota!le among these are the Protocols on ,ake Fictoria $asin) (#stoms Union and +nvironment and 2at#ral .eso#rces. The +A( Treaty %rovides that any %rotocol or annex#re forms %art of the Treaty. 4" Therefore) m#ch as these %rotocols are international instr#ments in their own right) they fall #nder the general framework of the +A( Treaty. rotocol on Environment and 1at%ral 9e&o%rce& "anagement This Protocol ado%ted in -::'47 %rovides for a common vision in addressing the challenges of achieving s#staina!le develo%ment at the local) national and regional levels thro#gh so#nd environment and nat#ral reso#rces management. It is a framework Protocol of general a%%lication as it covers all activities) matters and areas in the management of the environment and nat#ral reso#rces of the %artner *tates.5: The ma?or themes of the Protocol incl#de the following;
45 I#id, 43 I#id 4' I#id, 4
Article &&'. Article 4:. Article "&B-C.
I#id, Article 74. Article &3&B5C. accessed in /arch -:: .
4" I#id,
47 ;http:>>www.eac.int>doc%ment&>E$C+protocol+on+enviro+and+nat%ral+re&+mgt.pd,= 5: Article
4 of the Protocol.
BaC (overs nearly all areas of environment and nat#ral reso#rces management) 5& namely; trans!o#ndary reso#rces) !iological diversity) forest and tree reso#rces) wildlife reso#rces) water reso#rces) wetlands) coastal and marine reso#rces) fisheries reso#rces) and genetic reso#rces. Other areas are; mineral reso#rces) energy reso#rces) mo#ntain ecosystems) soil and land #se management) rangelands) com!ating desertification and mitigating effects of dro#ght) mitigating the effects of climate change) %rotection of the oDone layer) to#rism develo%ment) !iosafety and !iotechnology) chemical wastes and haDardo#s wastes) %oll#tion control and management) military and hostile activities) and environmental disaster %re%aredness and management. B!C Ado%ts the main %rinci%les of environmental management) s#ch as the right of the %eo%le to live in a clean and healthy environmentE %overty eradication and food sec#rityE %rior %lanningE +IA and its environmental standardE inter6generation and intra6generation e>#ityE and *tate res%onsi!ility. BcC (alls for develo%ment of common %olicies) laws and vario#s actions on so#nd management of the environment and nat#ral reso#rcesE BdC (ommits the %artner *tates to ens#ring so#nd environment and nat#ral reso#rces managementE and BeC +ns#res %#!lic %artici%ation) access to ?#stice and information. The %artner *tates are !o#nd not to carry o#t activities that may ca#se significant trans!o#ndary harm and also to grant access to national ?#dicial and administrative mechanisms to citiDens of the other %artner *tates to seek remedies for trans!o#ndary environmental damage. The Protocol f#rther sets #% a *ectoral (ommittee on +nvironment and 2at#ral .eso#rces com%osed of the Directors) or their e>#ivalent) res%onsi!le for water) environment) energy) wildlife) minerals) forestry) fisheries and the heads of the national environment agencies of the %artner *tates.5- The (ommittee is res%onsi!le for %re%aring %rogrammes and setting %riorities for the +ast African (omm#nity in as far as environment and nat#ral reso#rces management is
concerned. rotocol on E&ta#li&hment o, the Ea&t $,rican C%&tom& Enion, '((? This Protocol) ado%ted in /arch -::5) esta!lishes a (#stoms Union for the +ast African
5& (ha%ter 5- This
Three of the Protocol.
is in accordance with Article -: of the +A( Treaty.
(omm#nity. 54 (#stoms Unions are #s#ally trading !locs for goods and services. The (#stoms Union Protocol was conscio#s of the fact that in the %rocess of trading) movement) #se and dis%osal of goods and services) there is a likelihood of affecting the environment. *#ch im%acts on the environment wo#ld arise from d#m%ing) ex%ort %rocessing Dones and free %orts) im%ortation of goods) transit of goods and re6ex%orts. Other areas of the (#stoms Union that can !e affected incl#de esta!lishment of safeg#ard meas#res and dealing in %rohi!ited goods. Therefore) #nder the (#stoms Union Protocol) cognisance is taken on the need to %rotect the environment and nat#ral reso#rcesE55 standardiDation and >#ality ass#ranceE sanitary and %hytosanitary meas#res) and intellect#al %ro%erty. The (#stoms Union Protocol also recognises that other Protocols) incl#ding the one on environment and nat#ral reso#rces) wo#ld s%ell o#t the o!?ectives and mechanisms to handle iss#es that affect or are affected !y the (#stoms Union. $y im%lication) the Protocol forms %art of the environmental law of +ast Africa in as far as traderelated as%ects affect or have an im%act on the environment. rotocol ,or -%&taina#le 8evelopment o, Lake Jictoria Ia&in The Protocol for *#staina!le Develo%ment of ,ake Fictoria $asin B,F$ ProtocolC was ado%ted
on -7 2ovem!er -::4. It calls for the s#staina!le develo%ment of ,ake Fictoria !asin. 53 The ,F$ Protocol is !oth for s#staina!le management and also for economic develo%ment. The ,F$ Protocol contains most of the modern %rinci%les and %ractices of environment management. 2ota!le among those modern %rinci%les and %ractises are; e>#ita!le and reasona!le #se of water reso#rces)5' %rotection and conservation of the ecosystem) 5 s#staina!le develo%ment of nat#ral reso#rces)5" s#staina!le develo%ment of fisheries reso#rces) 57 s#staina!le agric#lt#re)3: +IA and +A)3& %rior notification3- %revention of significant harm) 34 %oll#ter and #ser %ays %rinci%le)35
54 +A(
Treaty) Article 3. Union Protocol) Article 4".
55 (#stoms 53 ,F$ 5' I#id, 5
Protocol) Article 4. Article 3.
I#id, Article '. Article . Article ". Article 7. Article &- K &5. Article &4. Article &3.
5" I#id, 57 I#id, 3: I#id, 3& I#id, 3- I#id, 34 I#id,
among others. The Protocol has the following ma?or themes; BaC *o#nd and s#staina!le management of the water) fisheries and land reso#rces. 33 B!C /a?or %reca#tionary meas#res.3' It is very evident that the heavy and detailed %rovisions on %reca#tionary meas#res are a clear manifestation of The v#lnera!ility and dangers the ,ake !asin faces in terms of degradation) %oll#tion) disasters) and water allocation. BcC An ela!orate instit#tional framework com%osed of a *ectoral (o#ncil of /inisters) ,ake
Fictoria $asic (ommission *ecretariat) and *ectoral (ommittees. BdC A very wide sco%e of co6o%eration extending to all iss#es from to#rism develo%ment) trade) commerce) ind#strial develo%ment) energy) maritime sec#rity) %#!lic health) research) ca%acity !#ilding) awareness and ed#cation) wildlife conservation and environment %rotection) agric#lt#re and gender integration) among others. Convention ,or the E&ta#li&hment o, the Lake Jictoria Fi&herie& Organi&ation The (onvention for the +sta!lishment of the ,ake Fictoria Fisheries Organisation B,FFO (onventionC was signed on 4: G#ne &775 and entered into force on -5 /ay &77' !y the =(ontracting Parties=) consisting of the then three %artner *tates of the +ast African (omm#nity) 3 i.e. 0enya) TanDania and Uganda. The o!?ectives of the ,FFO (onvention incl#de %romoting the %ro%er management and o%tim#m #tilisation of the fisheries and other reso#rces of the lakeE %roviding for the cond#ct of researchE enhancing ca%acity !#ildingE serving as a clearing6ho#se and data !ank for information on ,ake Fictoria fisheries) among others.3" The s#!stantive legal %rovisions of the ,FFO (onvention relate to national meas#res where the contracting %arties are en?oined to take all necessary meas#res) incl#ding legislative meas#res) and in accordance with their res%ective constit#tional %roced#res and national laws) and to im%lement the decisions8of the Organisation8s
35 I#id, 33 I#id, 3' I#id, 3
Article & K &". Articles 367)&-)-&6-3)- . Articles &-6-:)-') -")4&.
The (onvention for the +sta!lishment of the ,ake Fictoria Fisheries Organisation as amended !y the (o#ncil of
/inisters at its *econd *ession held in 2airo!i) 0enya on &- 2ovem!er &77". ,ake Fictoria Fisheries Organisation *ecretariat in con?#nction with the International Union for (onservation of 2at#re BIU(2C) ,FFO *ecretariat) -::&) ;www.lv,o.org = accessed in /arch -:: .
3" I#id,
Article II B4C.8
governing !odies.37 These national meas#res incl#de ado%tion) enforcement of effective laws and reg#lations %rohi!iting the introd#ction of non6indigeno#s s%ecies to the ,ake. The ,FFO (onvention largely %rovides for the different instit#tional arrangements or !odies that are geared for effective and s#staina!le management of the fisheries or living reso#rces of the law. These !odies incl#de; BiC the (o#ncil of /inisters as the s#%reme !odyE BiiC the +xec#tive (ommitteeE BiiiC the Fisheries /anagement (ommittee with advisory f#nctions on matters regarding conservation and management of living reso#rces of the ,akeE BivC the *cientific (ommittee for research) data collection) statistical methodsE BvC the Permanent *ecretariatE other committees) s#!6committees and working gro#%s. ': Under the + A( Treaty) the ,FFO (onvention and) conse>#ently) the ,ake Fictoria Fisheries Organisation were saved and contin#ed as %art of the instit#tions of the +ast African (omm#nity. '& This effectively made the ,FFO (onvention !ecome %art of the environmental laws of the +ast African (omm#nity. Other relevant regional instr#ments relating to the environment that were saved !y the +A( Treaty) that is the Tri%artite Agreement on Inland 1aters Trans%ort and the /OU on (oo%eration on +nvironment /anagement)'- form %art of the environmental law of +ast Africa. The +A( Treaty) however) f#rther %rovides that s#ch tri%artite agreements sho#ld !e constr#ed with s#ch modifications) ada%tations) >#alifications and exce%tions so as to !ring them into conformity with the Treaty. '4 The contention of this cha%ter is that !y virt#e of the ado%tion and conse>#ent coming into force of the Protocol on +nvironment and 2at#ral .eso#rces /anagement of -::')
the /OU on (o6o%eration on +nvironment /anagement of &77" was a#tomatically exem%ted) modified) >#alified or re%ealed. Ot&e Re$%onal Inst +#ents This category incl#des those regional or international laws that all %artner *tates are signatory to and) therefore) s#%%orting the environmental law in the region. I have only selected a few of these regional and international agreements as they are too many to !e disc#ssed here. They incl#de the %ro%osed Agreement on the 2ile .iver $asin (o6o%erative Framework. This
37 I#id, ': I#id, '& +A( '- I#id, '4 I#id,
Article OIII. Articles TF6IO. Treaty) (ha%ter III) Article 7B4C. Article &5-. Article &5-B-C.
%ro%osed Agreement)'5 when it is finally concl#ded and ratified) will form %art of the environmental law of +ast Africa. The ,#saka Agreement on (o6o%erative +nforcement O%erations Directed at Illegal Trade in 1ild Fa#na and Flora B,#saka AgreementC) which came into force on &: Decem!er &77') '3 calls for closer co6o%eration among designated national law enforcement agencies to save African wild fa#na and flora from illegal trade. The Agreement seeks to red#ce and #ltimately eliminate illegal trade in wild fa#na and flora) and to esta!lish a %ermanent taskforce for this %#r%ose. It seeks to do so witho#t com%romising national sovereignty. At the glo!al level) there are m#ltilateral environment agreements B/+AsC that the %artner
*tates have se%arately signed and ratified !#t are also common to all the *tates. These instr#ments incl#de the well6known m#ltilateral environment agreements B/+AsC s#ch as (onvention on $iological Diversity) (IT+*) $asel and $amako (onventions on haDardo#s wastes) %rotection of the oDone layer) climate change) .amsar) among others. It sho#ld) however) also !e realised that the Organic +nvironmental ,aw of .wanda '' has enshrined all the %ost6 .io (onference conventions) in addition to .amsar (onvention and (IT+* as %art of the ?#stifia!le laws of the co#ntry !y virt#e of .wanda !eing a civil law co#ntry. This cha%ter has deli!erately excl#ded those instr#ments that are not common to all the *tates or where some of the *tates have not signed or ratified. These instr#ments incl#de the (onvention for the Protection) /anagement and Develo%ment of the /arine and (oastal +nvironment of the +astern African .egion)' the Agreement +sta!lishing the Inter6<overnmental A#thority on Develo%ment BI<ADC)'" the /a%#to (onvention on +nvironment and 2at#ral .eso#rces) and the United 2ations (onvention on the ,aw of the *ea BU2(,O*C.*#ch instr#ments) tho#gh they may form %art of the environmental law of +ast Africa) do not meet the criteria of commonality among the %artner *tates. Inte nat%onall' A!!e(te* P %n!%(les of Inte nat%onal En)% on#ental La'5 $y
the time of writing this %a%er) the Agreement on the 2ile .iver $asin (o6o%erative Framework was still #nder negotiation
and) ho%ef#lly) wo#ld !e concl#ded !y the 2ile $asin %arties.

'3 ,#saka
Agreement on (o6o%erative +nforcement O%erations Directed at Illegal Trade in 1ild Fa#na and Flora &775
(onvention text; ;htrp:>>www.internationalwildli,elaio.org>l%&aka.vd,= accessed in /arch -:: .
'' Pream!le
to the Organic ,aw Determining the /odalities of Protection) (onservation and Protection of +nvironment in
.wanda) 2o :5@-::3 of :"@:5@-::'. Official <aDette of the .e%#!lic of .wanda) Jear 55 2o. 7) & /ay -::3.
'
*ee ;http:>>wwio.%nep.org>regional&ea&> rogratnnie&= accessed in /arch -:: . ;http:>>2owi%.igad.org>doc&>agreement+e&ta#li&liing+igad.pd,= accessed in /arch -:: .
'" *ee
.elevant %rinci%les of international environmental law are also incl#ded as forming %art of the environmental law of +ast Africa !y virt#e of the Protocol of +nvironment and 2at#ral .eso#rces) which %rovides that the environmental law of the (omm#nity shall consist of) among others) %rinci%les of international environmental law. These %rinci%les sho#ld also !e common to all the %artner *tates. For %#r%oses of this cha%ter) the %rinci%les of environmental law incl#de %#!lic %artici%ation) %reca#tionary meas#res) %oll#ter %ays) inter6generational and intragenerational e>#ity) +IA) right to clean environment) among others. A detailed ela!oration of the %rinci%les of international environmental law can !e fo#nd elsewhere in this vol#me and also in other references.'7 As regards .wanda) these international environmental %rinci%les are incl#ded in the organic environmental law.
:
A((l%!able Re$+lat%ons9 D% e!t%)es an* De!%s%ons #a*e b' t&e Co+n!%l One of the highest %olicy organs of the +ast African (omm#nity is the (o#ncil of /inisters. The (o#ncil has %ower to make reg#lations) iss#e directives) take decisions) make recommendations and give o%inions and s#ch reg#lations) directives and decisions that are !inding on %artner *tates. - Therefore) where the (o#ncil iss#es directives relating to the environment) s#ch directives !ecome %art of the environmental law of +ast Africa. *#ch
&
administrative %owers have !een affirmed !y the +ast African (o#rt of G#stice where the (o#rt stated 4 in o#iter dict%m that;
/hile the Breaty %phold& the principle o, &overeign e:%ality, it m%&t #e acknowledged that #y the very nat%re o, the o#3ective& they &et o%t to achieve, each partner -tate i& e<pected to cede &ome amo%nt o, &overeignty to the Comm%nity and it& organ& al#eit in limited area& to ena#le them play their role.
The im%ort of the a!ove dict%m is that instit#tions of the (omm#nity) s#ch as the (o#ncil) can make !inding laws and s#ch laws !ecome %art of the laws of the (omm#nity. A((l%!able De!%s%ons #a*e b' t&e East Af %!a Co+ t of "+st%!e an* t&e Co##on La- of East
'7 *#ch
as in 0iss K *helton M-::'N. ,aw of .wanda)Article .
: Organic & +A( - I#id,
Treaty) Article &5. Article &'. 2o. & of -::')4: /arch) -:: .
4 .eference
Af %!a /atters over which +ast African (o#rt of G#stice has ?#risdiction over inter%retation and a%%lication of the Treaty 5 challenging the legality #nder the Treaty of an activity of a %artner *tate or an instit#tion of the (omm#nity) 3 and which relate to the environment also fall #nder what constit#tes the environmental law of +ast Africa. ' This inevita!ly excl#des inter6%ersonal and %rivate s#its that are not directed at a %artner *tate or instit#tion of the (omm#nity. F#rther) where the decisions of the +ast African (o#rt of G#stice create ?#dicial %recedents on the environment) then
s#ch decisions form %art of the environmental law of +ast Africa as they are !inding to all %artner *tates. The +ast Africa (o#rt of G#stice) in -::') tho#gh not directly on the environment) made a ?#dgment in the case of ro,. eter $nyangC 1yongCo and D Other& ver&%& $ttorney General o, Kenya, Clerk o, the Ea&t $,rica Legi&lative $&&em#ly and -ecretary General o, the Ea&t $,rican Comm%nityAA where the co#rt #sed article 4-B-C to state that the decision of the +ast African (o#rt of G#stice has %recedence over the decisions of national co#rts on a similar matter. The essence of !ringing o#t this matter is that where the +ast Africa (o#rt of G#stice makes a decision relating to the environment) s#ch a decision wo#ld !ecome %art of the laws of +ast Africa. Nat%onal En)% on#ent La-s an* A((l%!able Co##on LaThis category of laws incl#des the national environmental laws) s#ch as the framework laws) sectoral laws) and (ommon ,aw Wthat is) generally acce%ted %rinci%les of law across the %artner *tates. This ty%e of law also forms %art of the environmental law of +ast Africa in that national laws are like +ast African (omm#nity laws in their relationshi% to international law. The +A( Treaty has !een signed) ratified and re%rod#ced as a national law in all the %artner *tates. TanDania) " 0enya 7 and Uganda": all enacted the Treaty for the +sta!lishment of the +ast African (omm#nity Acts) there!y making the %rovisions of the Treaty !ecome %art of the national laws of the res%ective co#ntries.
The same national Acts %rovide that any Act of the (omm#nity shall) after %#!lication of the
5 +A( 3 I#id, ' *ee
Treaty) Articles - K 4:. Article 4:. ro, . $nyangC 1yongCo and G( Other& v $ttorney General o, Kenya S @ Other&. .eference 2o. & of -::') +ast African
(o#rt of G#stice) Ar#sha) 4: /arch) -:: . I#id.

" United
.e%#!lic of TanDania. The Treaty for the +sta!lishment of the +ast African (omm#nity Act -::&) 2o. 5 of -::&. of 0enya. The Treaty for the +sta!lishment of the +ast African (omm#nity Act -:::) 2o. - of -:::. of Uganda; The Treaty for the +sta!lishment of the +ast African (omm#nity Act -:::) Act &4 of -::-.
7 .e%#!lic ": .e%#!lic
Act in the Official <aDette of the (omm#nity) have the force of law in the res%ective co#ntries."& The essence of the a!ove assertion is that those %rovisions of the Treaty relating to the environment are %art of the national laws of all the %artner *tates after enactment at national level. F#rther) all the five co#ntries in the +ast African (omm#nity have enacted national framework environmental laws)"- which have common elements that conse>#ently form %art of the environment of +ast Africa and also !y virt#e of the re>#irement to harmonise national laws #nder the +A( Treaty. The following are some of the areas in the framework environmental laws of the +A( that have common elements; Common law principle& Altho#gh some of the co#ntries) that is .wanda and $#r#ndi) c#rrently a%%ly civil law) generally acce%ted %rinci%les of law have !ecome trite law in the three co#ntries of 0enya) TanDania and Uganda. This cha%ter will) however) concentrate only on the (ommon ,aw %osition as the civil
law %osition may not !e a%%lica!le within the context of the disc#ssion. 1ithin the se%arate ?#risdictions of 0enya) TanDania and Uganda) there is commonality of ?#dicial %rinci%les) %rocesses or %recedents on the environment. An exam%le here is when co#rts have taken common ?#dicial notice over a matter on the environment or where it is trite law. In the case of . $nyangC 1yongo S G( Other& v $ttorney General o, Kenya S @ Other& )0 the G#stices of the +ast African (o#rt of G#stice held that; .. .It i& trite law within the 3%ri&diction o, three partner -tate& in Ea&t $,rican Comm%nity that an applicant who &eek& an interim in3%nction m%&t &how a prima ,acie ca&e with pro#a#ility o, &%cce&&... The a%%lication of the a!ove holding is that where there is commonality in the ?#ris%r#dence of all the %artner *tates on any matter) then s#ch commonality !ecomes a generally acce%ted %rinci%le of law in +ast Africa. To ela!orate f#rther on this commonality or =generally acce%ted %rinci%le= in +ast Africa) in as far the environment is concerned) loc%& &tandi is now a f#lly entrenched in the framework
"& I#id.
TanDania section ") 0enya section 7 and Uganda section 7 of the Treaty for the +sta!lishment of the +ast African
(omm#nity Acts.
"- $#r#ndi
6 ,oi 2` &@:&: D# 4:@:'@-::: Portant (ode De ,8environnement De ,a .e%#!li>#e D# $#r#ndi) B0enya6 +/(A)
.wanda) TanDania) Uganda 2ational +nvironment ActC) i#id.

"4
ro, . $nyangC 1yongo SG( Other& v $ttorney General o, Kenya S 3 Other&. 9e,erence 1o. G o,'((H, Ea&t $,rican Co%rt o,
3%&tice, $r%&ha.
environmental laws of the three %artner *tates. "5 For .wanda) article 57 of the (onstit#tion and the organic environmental law creates loc%& &tandi as the right to a clean and healthy environment can !e enforced !y the co#rts."3 Loc%& &tandi in environmental matters has also !ecome a generally acce%ted %rinci%le or trait law as can !e seen in the vario#s co#rt decisions in
the three *tates."' In Chri&topher "tikila v the $ttorney General)A case) the TanDanian (o#rt relied on a similar %rovision in the (onstit#tion) which ena!led citiDens to !ring actions in defence of the (onstit#tion. In Uganda) in the case of BE$1 v $.G. and 1E"$)), the 9igh (o#rt also held that any %erson had a right #nder Article 3: of the (onstit#tion to !ring an action as it does not re>#ire a %erson to %ersonally have an interest. In 0enya) the cases of -am&on Lereya and Irother& v $ttorney General and 1E"$)D have also affirmed the %osition of loc%& &tandi. 9ight to live in a healthy and #alanced environment The right to a clean or healthy environment is also fo#nd in the framework environment laws of %artner *tates.7: For exam%le) in TanDania) the framework environmental law %rovides that =every %erson living in TanDania shall have a right to a clean) safe and healthy environment.= The same %rovisions are re%eated in Uganda) 0enya and .wanda. $dmini&trative and in&tit%tional arrangement& As regards environmental instit#tions) 0enya) .wanda) TanDania and Uganda all have similar arrangements. In .wanda)7& it is %rovided that the .wanda +nvironment /anagement A#thority B.+/ AC is esta!lished as a %#!lic instit#tion on environment. In &773) Uganda esta!lished the 2ational +nvironment /anagement A#thority B2+/AC7- with similar instit#tions !eing
"5 -ee
*ection 4 of the 2ational +nvironment Act of Uganda) ,aws of Uganda) -:::. (a%. &34E *ection 3 of the +nvironment
/anagement Act of TanDania) -::5 Act) 2o. -: ,aws of TanDaniaE and section 4 of the 0enya +nvironmental /anagement and (oordination Act) 2o. " of &777.
"3 Article
' of the Organic ,aw Determining the /odalities of Protection) (onservation and Protection of +nvironment in
.wanda)
2o :5@-::3 of :"@:5@-::'. Official <aDette of the .e%#!lic of .wanda Jear 55 2o. 7) & /ay -::3.
"' *ee
Greenwatch v $.G. and 1E"$. 9igh (o#rt /isc. A%%lication 2o. &5: of -::- BUgandaC. 9ev Chri&topher "tikila
v $.G. 6igh Co%rt Civil -it 1o. @ o, GDD0 5Ban2ania7 and "aina Kamanda and another v 1airo#i City Co%ncil and another 9igh (o#rt (ivil (ase 2o. '&34 of &77- B0enyaC.
"
.ev. (hristo%her "tikila v Bhe $ttorney General, 6igh o, Co%rt o, Ban2ania Civil Ca&e 1o.@ o, GDD05%nreported7. Environmental $ction 1etwork Ltd v Blie $ttorney General and 1ational Environment "anagement $%thority, 6igh
"" Bhe
Co%rt "i&c. $pplication 1o. 0D o, '((G 5%nreported7.

"7 -am&on
Lereya and Irother& v $ttorney General and 1E"$ 6CC-GG@ o, '((H Article ! or me =,oi. TanDania section 5)&4 ganda section 5) and =0enya section 4) =$#r#ndi article 5.
7: .wanda; 7& Article
'3 B&C.
7- *ection5of2+A.
esta!lished in 0enya 74 and TanDania.75 These instit#tions are charged with a wide sco%e of same f#nctions and d#ties) incl#ding reg#lating) enforcing) advising and monitoring the environment. rinciple o, co!operation among the partner -tate& All the *tates have %rovisions calling for co6o%eration among their neigh!o#rs. For exam%le) the .wanda Organic law)73 in %rotecting the environment) aims at %romoting international coo%eration. In TanDania) the law %rovides that the /inister may initiate disc#ssion with relevant a#thorities of neigh!o#ring co#ntries on environmental management %rogrammes and meas#res to avoid and minimiDe s#ch trans!o#ndary environmental im%acts. 7' Uganda environmental law7 calls for 2+/A to liaise with inter6governmental organisations) government agencies of other *tates and also to %romote international co6o%eration !etween the co#ntry and other *tates in the field of the environment. reca%tion principle and p%#lic participation The other %rovisions of environmental law that are commonly fo#nd in all the framework laws are those relating to taking %reca#tions !efore any activity is carried o#t on the environment.
These incl#de environmental im%act assessment) 7" %oll#ter %ays %rinci%le)77 %#!lic %artici%ation)&:: %reca#tionary %rinci%le)&:& and access to environmental information. &:-%&taina#le management o, the land, air and water re&o%rce& incl%ding #iological diver&ity All the framework laws call for s#staina!le management of the vario#s nat#ral reso#rces s#ch as forests) wetlands) fisheries) wildlife) !iological reso#rces) genetic reso#rces) coastal and marine)
74 *ection 75 In
of the +/(A.
TanDania #nder section &') the 2ational +nvironment /anagement (o#ncil B2+/(C is esta!lished with slightly different
f#nctions as in .wanda) Uganda and 0enya.

73 .wanda
#nder article B3C %rovides The Princi%le of co6o%eration. *ection &":.
7' TanDania; 7
*ection 'B&C B(C of the 2+A. articles ' 6 :) $#r#ndi cha%ter II) TanDania Part FI and FII) Uganda Part F of 2+A and 0enya Part FI of +/(A. Article of the ,oi) TanDania section ) Uganda section -B-C BkC) 0enya Part II.
7" .wanda
77 .wanda; &:: .wanda
articles 54653 of the ,oi) TanDania section & ") Uganda section -B-C B!C) 0enya Part II. *ection ) Uganda *ection -) 0enya *ection 4.
&:& 8TanDania &:- 0enya
section &-4) Uganda section "3.
and water. They also call for %rotection of environmentally sensitive areas s#ch as the oDone layer) river !anks and lake shores) hilly and mo#ntaino#s areas) among others. &:4 oll%tion control All the framework laws have strong %rovisions for the %revention and control of %oll#tion) waste management and esta!lishment of environmental >#ality standards for the vario#s discharges into the environment.&:5 C&allen$es %n I#(le#entat%on of t&e En)% on#ental La- of East Af %!a At the !eginning of this cha%ter) it was stated that the sco%e and content of the environmental law of +ast Africa is a com%lex and intertwined system. This fact definitely creates challenges in
a%%lication of the law at the regional) national and s#!6national levels. The challenges mainly relate to the new law im%osing or s#%erim%osing itself on existing systems) laws and %ractices in an existing system that is fast6evolving into a regional economic market leading to the formation of a %olitical federation. In recent %ast) the +ast Africa region has witnessed a %roliferation of organiDations each with a legal framework %roced#re or %rocesses. To mention !#t a few) these organisations incl#de; ,ake Fictoria Fisheries Organisation) ,ake Fictoria Develo%ment A#thority) (O/+*A) *AD() I<AD and the +ast Africa (omm#nity itself. (O/+*A) +A() *AD( have co#rts of law or tri!#nals while +A( has a legislat#re. The effect of having all these inter6governmental organisations is that the likelihood of making contradictory laws) %assing conflicting ?#dgments and com%eting for the same reso#rces is very high.&:3 A &77- st#dy in 1est Africa !y U2+(A fo#nd that a ma?or o!stacle to integration into +(O1A* was the existence and the varying o!?ectives of a m#lti%licity of inter6governmental organisations in the region. The st#dy fo#nd that there were more than 4: s#ch organisations with some of the co#ntries !elonging to more than -:. O#t of the 4: organisations) &' were dealing with the s#!?ect of nat#ral reso#rces management alone. &:' There is no reason that a %roliferation of so many instit#tions in +ast Africa wo#ld not !e an o!stacle to regional integration and) conse>#ently) affect the develo%ment of the environmental
&:4 .wanda
articles &&6-' of the Organic law) $#r#ndi see Title III) TanDania Part F) Uganda Part FII) 0enya Part F.
&:5 .wanda &:3 *ee
articles "& K "-) $#r#ndi see Title F) TanDania Part FIII) Uganda Part FIII) 0enya Part FIII.
the case of the 9ep%#lic o, Kenya and Commi&&ioner o, Land& v Coa&tal $:%ac%lt%re. .eference 2o. 4 of -::&)
(O/+*A (o#rt of G#stice) ,#saka) Ham!ia where the %laintiff was seeking relief from the (O/+*A (o#rt witho#t first exha#sting local remedies in 0enya.
&:' Okidi
M&7""; ''4N.
Internal Teaching Use Only 3":
law of +ast Africa. In the same context) some %artner *tates s#ch as TanDania !elong to two ma?or regional economic integration organisationsE that is +A( and *AD(. $oth of these organisations have strong environmental regimes. This trend can in f#t#re ham%er develo%ment of harmonised environmental regimes as some of the o!?ectives of s#ch regimes may !e at cross %#r%oses. The (O/+*A) +A() *AD( interface in terms of harmonisation of environmental laws and %olicies) develo%ment of ?#ris%r#dence on environment and event#al integration is a ma?or and com%lex challenge. /ost national legal regimes relating to the environment have not yet !een !ro#ght into conformity or harmony with the Treaty and Protocol %rovisions) tho#gh it is re%orted that the ,ake Fictoria fisheries and water trans%ort areas will !e among the first areas where legislation will !e harmonised thro#gh an Act of the +ast Africa ,egislative Assem!ly B+A,AC. Other areas) s#ch as forestry and wildlife sectors) have not !een harmonised. Fail#re to harmonise s#ch national legislation can res#lt in conflicts) th#s making im%lementation of the well6 intentioned regional legal framework diffic#lt. For exam%le) while it is illegal to traffic forestry reso#rces s#ch as e!ony and sandal wood in 0enya) s#ch a trade is legal across the !order in TanDania. 1hereas the region has develo%ed +I A<#idelines for Trans!o#ndary +cosystems) ma?or
challenges still exist in the management of shared environmental reso#rces. For exam%le) land #se %ractises relating to transient wildlife reso#rces are still different !etween 0enya and TanDania) with the former having individ#al land ownershi% and the later having comm#nity or village ownershi%. The movement of wildlife !etween the two co#ntries wo#ld !e greatly ham%ered #nless the laws and %ractices on land ownershi% are harmonised. 1ith the entry into the (omm#nity of .wanda and $#r#ndi) !oth civil law co#ntries) into a %#rely common law system) challenges relating to which system to #se will arise. 1hereas in terms of environment management) the a%%lica!le legal %rinci%les may not have serio#s im%acts whether the region #ses civil or common law or !oth) the %ractice in terms of environmental ?#ris%r#dence) lang#age) co#rt %ractice) and ca%acity levels will !e a challenge in the short to medi#m term. Con!l+s%on It is my contention that environment management has) either !y design) accident or inadvertently) already !ecome a regional) comm#nity or federation matter. It is no longer a %#rely national iss#e even given that +ast Africa has not yet !ecome a federation matter. This is sim%ly d#e to the fact the +A( Treaty) regional %rotocols and agreements are directing towards having a common environment %olicy. F#rther) the cond#ct of all the %artner *tates is %ointing to having the same o!?ectives of
harmoniDing their %olicies and legislation. Also) the region is !ehaving synergistically in terms of im%lementation of the law and %rogrammes.
Therefore) contem%orary environmental law of +ast Africa has !een one of the leading !ranches of law that has %romoted integration of the region. As .wanda and $#r#ndi %osition themselves into the +ast African (omm#nity) whether the region follows common or civil law or !oth) the growth of environmental management will f#ndamentally contin#e taking the same %ath. There are certainly a n#m!er of challenges that will have to !e addressed as environmental law %rogresses. These challenges range from having com%eting ?#ridical systems in the region) limited ca%acity for harmonisation of laws) and making s#re that the s#!?ect of environmental management remains on the high %olitical agenda of the region. 1ith more environmental cases coming #% in co#rts of law) and more management actions !eing taken to %rotect the environment) it is ho%ed that f#t#re trends of the develo%ment of environmental law will cement the already fairly advanced conce%ts and %ractices in the region.
Internal Teaching Use Only 3"-
.%bl%o$ a(&'
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2ormative Frameworks in the +c#adorian 9ighlands= M-::&N) Y?76%man Organi&ation, vol. ':. $onine) Gohn +. and Thomas O. /c<arity BedsC) Bhe Law o, Environmental rotection: Ca&e&, Legi&lation and olicie& M&7"5N) 1est P#!lishing (om%any. $ostwick 9. 0etch#m BedC) Bhe /aterC& Edge: Critical ro#lem& o, the Coa&tal Fone M&7 -N) /IT Press. $othe) /ichael and +ckard .eh!inder BedsC) Climate Change olicy M-::3N) +leven International P#!lishers. $o#rgeot) Andre) 82omadic Pastoral *ociety and the /arket; The Penetration of the *ahel !y (ommercial .elations M&7"&N) in <alaty) Gohn K *alDman) Phili%) Change and 8evelopment in 1omadic and a&toral -ocietie&. 2etherlands; +.G. $rill. $randl) +rnst and 9artwin $#ngert)= (onstit#tional +ntrenchment of +nvironmental Protection; A (om%arative Analysis of +x%eriences A!road= M&7'-N) 6arvard Environmental Law 9eview, vol. &'. $rian (hild) Patricia 0ameri6/!ote) 0anyi 0imondo and 1achira 2derit#) 0enya 1ildlife
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$r#ce) .o!ert 9. BedC) Indian Ocean 1avie&: Bechnological $dvance& and 9egional -ec%rity M&77:N) Perth) A#stralia; (entre for Indian Ocean *t#dies) (#rtin University. *t#dies in Indian Ocean /aritime Affairs) 2o. 5. $#dds) G. and <ordon /c<ranahan) rivati&ation and the rovi&ion o, Er#an /ater and -anitation in $,rica, $&ia and Latin $merica, International Instit#te for +nvironment and Develo%ment BII+DC) 9#man *ettlement Disc#ssion Pa%er *eries; Theme 6 1ater & M-::4N. $#xton) +dward 2.) Great Iritain: arliamentary 8e#ate& M&7:'N) Cmd. 4&"7) Africa 2o. &"&. $#xton) +dward 2.) Bwo $,rican Brip& G?( M&7:-N. (a%one) Donald ,.) 1ildlife) /an and (om%etition for ,and; A <eogra%hical Analysis M&7 &N) Un%#!lished PhD Dissertation) University of (alifornia at ,os Angeles. (arr) Archie) Bhe Land and /ildli,e o, $,rica M&7 4N. (arsons) .achel) Jie -ilent -pring M&7'-N) 9o#ghton /ifflin $ooks. (ernea) /ichael) =*ettlement and Invol#ntary .esettlement Pro?ects B+ditors 2oteC= M&77&N) in (ernea) /ichael) %tting eople Fir&t: -ociological Jaria#le& in 9%ral 8evelopment, 2ew Jork; Oxford University Press K 1orld $ank. (hristian d# *a#ssay K U2 FAO) ,and Ten#re *ystems and Forest Policy M&7" N. (ohen) /.) /.T. $rown and 0.D. *he%herd) =+stimating the +nvironmental (osts of *oil +rosion at /#lti%le *cales in 0enya #sing +mergy *ynthesis)= $gric%lt%ral, Eco&y&tem& and Employment, vol. &&5. (o>#ia) G. .. =Develo%ment and *ignificance of the -:: /ile +xcl#sive +conomic Hone= M&7 7N) Bhe hilippine Law Ko%rnal, vol. ,IF.
(or!!ert) Da!!s) =Oil Prod#ction and +nvironmental Damage= M&77'N) Availa!le online at
www.american.ed%>BE8>pro3ect&>tedcro&&><oilprl@.htm BAccessed on &3 Fe!r#ary -:: C. (osta .icky) /ahal# =Develo%ment of the *hi%%ing Ind#stry; The +ast African (ase= M&7 "N) in Okidi) ( O. and *ydney 1estley BedsC) /anagement of (oastal and Offshore .eso#rces in +astern Africa) University of 2airo!i) ID* Occasional Pa%er 2o. -". (raftes) *. A.) Awim!o) G. K $roekhoven) A. G. Beds.C) 1on!Bim#er Fore&t rod%ct&: Jal%e, E&e and "anagement I&&%e& in $,rica, incl%ding e<ample& ,rom Latin $merica M&77 N) BIU(2) <land) &77 C. (rocom!e) .. <.) Improving Land Ben%re M&7'"N) 2ew (aledonia; *o#th Pacific (ommission. (rook) .ichard () 8ecentrali&ation and overty 9ed%ction in $,rica: Bhe olitic& o, Local! Central 9elation& M-::4N) %#lic $dmini&tration and 8evelopment. (ros!y and *. $#rial) The (artagena Protocol on $iosafety; An Analysis of .es#lts8 M-:::N) An U*D $riefing 2ote) 1inni%eg) (anada. (#d?oe Franklin K 0endra Okonski) =The .eality of 1ater Provision in Ur!an Africa M-::'N) /ater 9evol%tion, vol. & . (#llet) Philli%%e) Intellect%al roperty rotection S -%&taina#le 8evelopment M-::3N) 2ew Delhi; ,exis 2exis) $#tterworths. Dandekar) /) Economic and -ocial ro#lem& o, Bri#al -ocietie& in the eriod o, Individ%ali&ation o, Ben%re MI7':N. Dasmann) .. 0. 0) Environmental Con&ervation 4rd +dition) M&7 -N) 2ew Jork; Gohn 1iley K *ons. Davis) .. 0.) -ome I&&%e& in the Evol%tion, Organi&ation and Operation o, Gro%p 9anche& in Kenya M&7 :N. Davis) T. G. BedC) Boward& the /i&e E&e o, /etland& M&774N) 1ise Use Pro?ect) .amsar
(onvention $#rea#) <land; 5 BAvaila!le at http:>>www.ram&ar.org>li#>li#+wi&e.htm accessed on -"th A#g#st -::'C. De <roote) 9.) Using $iotechnology to Develo% 2ew Insect .esistant /aiDe Farieties for 0enyan Farmers M-:::N. An Overview of the 0A.I@(I//JT Insect .esistant /aiDe for Africa BI./AC Pro?ect. Dean) Arth#r) =The <eneva (onvention on the ,aw of the *ea)= in ,eo <ross BedC) International
Law in the Bwentieth Cent%ry M&7'7N) 2ew Jork; A%%leton6(ent#ry6(roft. D#rkeim) +.) =The +lementary Forms of .eligio#s ,ife M&7'5N=) Ea&t $,rican Iiodiver&ity ro3ect 1ew&letter, Iss#e 2o. 5. D#rren!eger) +. P. K <. Palsson) =Ownershi% at *ea; Fishing Territories and Access to *ea .eso#rces= M&7 "N) $merican Ethnologi&t, vol. &5. Dykstra) Gaco! G.) in Alexander) ,ewis /. BedC) The ,aw of the *ea; The United 2ations and Ocean /anagement M&7 &N. Proceedings of the Fifth Ann#al (onference of the ,aw of the *ea Instit#te) University of .hode Island. +ast African (omm#nity B+A(C) rotocol ,or -%&taina#le 8evelopment o, Lake Jictoria Ia&in M-::5N) Ar#sha; +A( *ecretariat. +conomic (ommission for Africa B+(AC) Compendi%m on Ie&t ractice& in -mall!-cale "ining in $,rica M-::-N) Addis A!a!a; United 2ations +conomic (ommission for Africa. +dgar) <old) 6and#ook o, "arine oll%tion M&7"3N) Arendal; Ass#ranceforeningen <ard. +dwards) D. (. =The +conomic .egions of 0enya; Their (lassification in .elation to Agric#lt#ral Develo%ment M&73'N=) Ko%rnal o, E<perimental $gric%lt%re. +9P $rans) +. G. de 9aan) A. 2ollkaem%er and G. .inDema BedsC) Bhe -carcity o, /ater: Emerging Legal and olicy 9e&pon&e& LGDDAM ,ondon; 0l#wer ,aw International.
+hrlich) Pa#l) .. K Anne 9. +hrlich) 8The Fal#e of $iodiversity8 M&77-N) $m#io, vol. -&) 2o. 4. +lias) T. O.) Bhe 1at%re o, $,rican C%&tomary Law M&73'N) /anchester; /anchester University Press. +liot (. 2. +.) =Introd#ction=) in Bhe "aa&ai: Bheir Lang%age and Folklore M&7:3N) 9ollis) $., BedC (onnectic#t; 2egro University Press. +llegard) A.) =$iogas= M&77:N) Iioenergy and the Environment, in G. PasDtor K ,. A. 0ristoferson BedsC) *an Francisco; 1estview. +merton) ,. =Fal#e and .ewards; (o#nting and (a%t#ring +cosystem 1ater *ervices for *#staina!le Develo%ment=) IU(2 2at#re and +conomics Technical Pa%er) 2o. &) IU(2The 1orld (onservation Union) +cosystems and ,ivelihood <ro#%) Asia) (olom!o. +merton) ,.) =The +conomic Fal#e of Africa8s 1etlands=) in +merton) ,.) Economic Bool& ,or Jal%ing /etland& in Ea&tern $,rica M&77"N) 2airo!i; IU(2 +astern Africa. +riksen) *iri) +vans O#ko K 2?eri /arekia) =,and Ten#re and 1ildlife /anagement= M&77'N) in
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Fortmann) ,o#is and Games .iddell) Bree& and Ben%re: $n $nnotated Ii#liography M&7"3N. Fo#lner) <ary ..) =Delimitation of (ontinental *helf G#risdiction $etween *tates; The +ffects of Physical Irreg#larities in 2at#ral (ontinental *helf= M&7 'N) Jirginia Ko%rnal o, International Law, vol. & ) 2o. &. Fowler) A.) =The .ole of 2<Os in (hanging *tate6*ociety .elations; Pers%ectives From +astern and *o#thern Africa M&77&N. 8evelopment olicy 9eview, vol. 7B&C. Frank <. (ar%enter) Cairo to Ki&%m% &-5 M&7-4N. Fraser Darling) 81ildlife of $ritain8 M&75'N) in 1. G. T#rner BedC) 1at%re in Iritain, ,ondon; (ollins. Freestone) David and Gohn Pethick) =*ea6,evel .ise and /aritime $o#ndaries; International Im%lications for Im%acts and .es%onses= M&775N) in $lake) <erald 9. BedC) "aritime Io%ndarie&: /orld Io%ndarie&, vol. 3) .o#tledge. Freestone) David K Hen /ak#ch) =The 2ew International +nvironmental ,aw of Fisheries; The &773 United 2ations *traddling *tocks Agreement= M&77'N) Qear#ook o, International Environmental Law, vol. A. Freestone) David) /. Faroo>#e and *. .. Gahan) =,egal Im%lications of <lo!al (limate (hange for $angladesh= M&77'N) in 1arrick) ..A. and I. 0. Ahmad BedsC) Bhe Implication& o, Climate and -ea!Level Change ,or Ianglade&h, ,ondon; 0l#wer Academic P#!lishers. Friedmann) 1olfgang) Oliver G. ,issitDyn and .ichard (. P#gh BedsC) International Law: Ca&e& and "aterial& M&7'7N) 1est P#!lishing. F#llerton) D. K T. ( 0innaman) =<ar!age) .ecycling) and Illicit $#rning or D#m%ing= M&773N) Ko%rnal o, Environmental "anagement, vol. -7 B&C.
<alaty) Gohn <.) 8Introd#ction; 2omadic Pastoralists and *ocial (hange; Processes and
Pers%ectives8 M&7"&N) in Gohn <. <alaty K Phili% ( *alDman BedsC) Change and 8evelopment in 1omadic and a&toral -ocietie&, 2etherlands; +.G. $rill. <alaty) Gohn <.) 8,and and ,ivestock among 0enyan /aasai; *ym!olic Pers%ectives on Pastoral +xchange) (hange and Ine>#ality8 M&7"&N) Change and 8evelopment in 1omadic and a&toral -ocietie&, 2etherlands; +.G. $rill. <arcia6Amador) =The ,atin American (ontri!#tion to Develo%ment of the ,aw of the *ea= M&7 &N) $merican Ko%rnal o, International Law, vol. '". <aston) <.) /. ,orenDini) 0. D. *ingh) =*tate and (hange in (ar!on Pools in the Forests of Tro%ical Africa= M&77"N) Glo#al Change Iiology, vol. 5B&C. <eoffrey /ac(ormack) <eofffrey) 8Pro!lems in the Descri%tion of African *ystems of ,andholding8 M&7"4N) Ko%rnal o, Legal l%rali&m, vol. -&. <hai J. P. K /cA#slan) %#lic Law and olitical Change in Kenya M&7 :N) 2airo!i; Oxford University Press. <i!!ons) *.) ,inkages M-:::N. 2ewsletter Fo#rth I#arter Feat#re Article. Transgenic *weet Potato .esearch (olla!oration; A (ase *t#dy of A$*P Involvement in 0enya. <l#ckman) /.) Idea& M&7'3N) in Iarot&e K%ri&pr%dence, 2ew 9aven; Jale University Press. <odden) ,ee) =1ater ,aw .eform in A#stralia and *o#th Africa; *#staina!ility) +fficiency and *ocial G#stice= M-::3N) Ko%rnal o, Environmental Law. <old!erg) +dward D.) =/arine Poll#tion; Action and .eaction Times= M&7 5N) Ocean%&, vol. &" 2o. &. <oldie) ,. F. +.) =Develo%ment of International +nvironmental ,aw W An A%%raisal= M&7 -N) in 9argove) Gohn ,awrence BedC Law, In&tit%tion& and the Glo#al Environment, A.1. *i?ghoff; -4 6-3-. <o%o) G. K 0ameri6/!ote) Patricia) =$iotechnology; AT#rning Point in Develo%ment or an
O%%ort#nity that 1ill $e /issedL M-::3N=) in International (ommission on Trade and *#staina!le Develo%ment) Brading in Gene&: 8evelopment er&pective& on Iiotechnology, Brade and -%&taina#ility, ,ondon; +arthscan. <overnment of 0enya) Draft 2ational ,and Policy M-::'N. <overnment of 0enya) 9eport o, the Ba&k,orce on 9e,orm o, enal Law& and roced%re&, Octo!er
M&77 N. <ovinden) .onny) G.)= (riminal ,aw As%ects of +nvironment ,aws and Technicalities of +nvironment (rimes= M-::'N. Pa%er Presented at the *eychelles G#dicial 1orksho% on +nvironmental ,aw) $ea#vallon) /ahe) *eychelles) - 6-" Fe!r#ary. <owdy) Gohn) Coevol%tionary Economic&: Bhe Economy M&775N) -ociety and theEnvironment. <reen) ,. ( =International ,aw and (anada8s Anti6Poll#tion ,egislation= M&7 &N) Oregon Law 9eview, vol. 3:. <reen) ,. (. International ,aw Thro#gh the (ases M&7 "N) ,ondon; Oceana P#!lications. <riffiths) G. F. =The (limate of +ast Africa= M&7'-N) in +. 1. .#ssell Bed.C) Bhe 1at%ral 9e&o%rce& o, Ea&t $,rica. <rDy!owski) Donald /.E Deitch) Gohn /.E Dwyer) *andra +. A.E +ichhorn) Daniel *. +ichhornE $rian +. ,#tenessE (la#dio 9. Ternieden) =A 9istorical Pers%ective ,eading #% to and Incl#ding the United 2ations (onference on *traddling Fish *tocks and 9ighly /igratory Fish *tocks= M&.773N) ace Environmental Law 9eview, vol. &4 2o. & 9ardy) /ichael) =International (ontrol of /arine Poll#tion= M&7 5N) in Fawcett) G.+.*. and .osalyn 9iggins BedsC) International Organi&ation: Law in "ovement E&&ay& in 9ono#r of Gohn /c/ahon) Oxford University Press.
9ayasi) *.) -tock $&&e&&ment M&7 &N) .ome; Food and Agric#lt#re Organisation of the United 2ations and United 2ations Develo%ment Programme. 9ayes *adler) Great Iritain: arliamentary 8e#ate&, Cmd. 4&"7 Africa 2o. --5) &7: M&7:3N. 9edman) *#san) =+x%ressive F#nctions of (riminal *anctions in +nvironmental ,aw=) George /a&hington Law 9eview, vol. 37. 9ei?ns!ergen) P. van) International Legal rotection o, /ild Fa%na and Flora LGDDAM, Amsterdam; IO* Press. 9enkin) ,o#is) =Arctic Anti6Poll#tion; Does (anada /ake or $reak International ,aw= M&7 &N) $merican Ko%rnal o, International Law, vol. '3. 9enson) *.) A./. $ro#der and 1. /it#llah) =Food *afety .e>#irements and Food +x%orts from develo%ing co#ntries. The case of Fish +x%orts from 0enya to the +#ro%ean Union)= $merican Ko%rnal o, $gric%lt%ral Economic&, vol. "-B3C. 9ir?i) .afiki *r.) Kenya: /ater "anagement I&&%e&, Challenge& and Option&: $ Framework ,or a -trategy
M-:::N) Draft Iss#es Pa%er) 1orld $ank. 9?ertonsson) 0.) Bhe 1ew Law o, the -ea: In,l%ence o, the Latin $merican -tate& on 9ecent 8evelopment& o, the Law o, the -ea M&7 4N) ,eiden; *i?thoff. 9odas) David) =The (limate (hange (onvention and +volving ,egal /odels of *#staina!le Develo%ment= M&773N) ace Environmental Law 9eview, vol. &4) 2o. &. 9ohfeld) 1.) F%ndamental Legal Conception& a& $pplied in K%dicial 9ea&oning and other E&&ay& M&7-4N)
2ew 9aven; Jale University Press. 9ollick) Ann ,. =The Origins of -::6mile Offshore Hones= M&7 5N) $merican Ko%rnal o, International Law, vol. &) 2o. 4. 9oves) A. .. T.) =*ome As%ects of (#rrent *edimentation) De%ositional +nvironments and *#!marine <eomor%hology of 0enya8s *#!merged (ontinental /argins= M&7 "N) in (. O. Okidi K *ydney 1estley BedsC) "anagement o, Coa&tal and O,,&hore 9e&o%rce& in Ea&tern $,rica, 2airo!i; Instit#te for Develo%ment *t#dies) Occasional Pa%er 2o. -") University of 2airo!i. 9#ggins) <reg Tiomin) Kwale 9e&ettlement $ction lan M-::3N. Pre%ared for Tiomin 0enya ,imited !y (oastal and +nvironmental *ervices) *o#th Africa. 9#kkinen G.) =+x%ert Thinking and +nvironmental Instit#tions M&777N=) Iiodiver&ity and Con&ervation vol. ". 9#nter) D. K D#rwood Haelke) International Environmental Law and olicy M-::4N) 2ew Jork; Fo#ndation Press. 9#xley) G#lian) Bhe $,rica Jiew M&7'"N) 2ew Jork; <reenwood Press. Ikiara) /) A. /. 0aran?a K T. (. Davies) =(ollection) Trans%ortation and Dis%osal of Ur!an *olid 1aste in 2airo!i= M-::5N) in $a#d) I.) G. Post K (. F#redy BedsC) -olid /a&te "anagement and 9ecycling: $ctor&, artner&hip& and olicie& in 6yera#ad, India and 1airo#i, Kenya. ,ondon; 0l#wer Academic P#!lishers. Intergovernmental Panel on (limate (hange) 1orking <ro#% - M-::'N) Fo#rth Assessment .e%ort; <eneva; Intergovernmental Panel on (limate (hange *ecretariat.
International Trans!o#ndary .eso#rces (enter M&775N) University of 2ew /exico) Bran&#o%ndary 9e&o%rce& 9eport, vol. ". Games) (. Preview; <lo!al *tat#s of (ommercial Transgenic (ro%s M-:: N. I*AAA; Ithaca) 2ew Jork.
Kerome 6all, General rinciple& o, Criminal Law B=-nd edC M&7':N) Le<i& Law %#lication&. Gess#%) Phili%) =The United 2ations (onference on the ,aw of the *ea= M&737N) Col%m#ia Law 9eview. Gian) /. P. K Gain *. 2. =Princi%les of Administrative ,aw=) 5th edition M&7"'N. Gohnson) $. =<enetically /odified (ro%s and Other Organisms; Im%lications for Agric#lt#ral *#staina!ility and $iodiversity= M-:::N) in <. G. Persley K /./. ,antin BedsC) $gric%lt%ral Iiotechnology and the oor, Proceedings of an International (onference) 1ashington D.(. -&6 -- Octo!er &777) (ons#ltative <ro#% on International Agric#lt#ral .esearch. G#ma () =*#staina!le Develo%ment and +conomic Policy in 0enya M&77&N=) in Gaining Gro%nd: In&tit%tional Innovation& in Land!E&e "anagement in Kenya, edited !y A. 0iriro K (. G#ma) 2airo!i; A(T* Press. G#ma) Alison Field) 8<overnance and *#staina!le Develo%ment8 M&77'N) in (alesto#s G#ma K G. $. O?wang BedsC) In Land we Br%&t ! Environment, rivate roperty and Con&tit%tional Change, 2airo!i; Acts Press. G#ma) (alesto#s) Bhe Gene 6%nter& M&7"7N) 2airo!i; A(T* Press. 08Ak#m#) O. A. K P. O. A%%ida) rivati&ation o, Er#an /ater rovi&ion: Jie Kenyan E<periment
M-::'N) /ater olicy. 08Ak#m#) O. A.) rivati&ation "odel ,or /ater Enterpri&e& in Kenya M-::'N) /ater olicy. 0ameri6/!ote) Patricia) =Final .e%ort of a 1orksho% on $iotechnology Policies= M-::4N) Association for Agric#lt#ral .esearch in +astern and (entral Africa BA*A.+(AC. 0ameri6/!ote) Patricia) =</O .eg#lation; 0enya (ase *t#dy= M-::3N) 2ew Jork University ,aw *chool <lo!al *t#dy on (onflict in </O .eg#lation. 0ameri6/!ote) Patricia) 8Towards a ,ia!ility and .edress *ystem #nder the (artagena Protocol on $iosafety; A .eview of the 0enya 2ational ,egal *ystem8 M-::5N) Ea&t $,rican Law Ko%rnal, vol. &. 0ameri6/!ote) Patricia) =Intellect#al Pro%erty Protection in Africa; An Assessment of the *tat#s of ,aws) .esearch and Policy Analysis on Intellect#al Pro%erty .ights in 0enya M-::5N=. Pa%er %re%ared for ID.( *t#dy on Intellect#al Pro%erty Protection in Africa BA#g#st) -::5C availa!le at www.ielrc.org. 0ameri6/!ote) Patricia) roperty 9ight& and Iiodiver&ity "anagement in Kenya M-::-N)
2airo!i; A(T* Press. 0aniar#) Donald) Dan $. Ogolla K /an?it I>!al) /ission .e%ort; 0enya 2ational *eminar on ,egislative Policy M&775N) -46- /ay. 0arekeDi *. K .. 0arottki) $ Contri#%tion to the 8ra,t aper on the 9ole o, 1ew S 9enewa#le -o%rce& o, Energy ,rom the er&pective o, the Environmental ro#lem& $&&ociated with the C%rrent attern& o, Energy E&e and Con&%mption M&7"7N) 2airo!i; U2+P. 0arekeDi) *. K T. .an?a) 9enewa#le Energy Bechnologie& in $,rica M&77 N) ,ondon@2ew Gersey; Hed $ooks.
0ate $ayliss) =Utility Privatisation in *#!6*aharan Africa; A (ase *t#dy of 1ater= M-::4N) Ko%rnal o, "odern $,rican -t%die&. 0enneth) *teven A.) "anaging Inter3%ri&dictional /ater& in Canada: $ Con&tit%tional $naly&i& M&77&N) (anadian Instit#te of .eso#rces ,aw. 0enya ,and Alliance) =1ise or Unwise Use; A *#rvey of *ome 1etlands in 0enya= M-::'N) #n%#!lished re%ort. 0enya 1ildlife *ervice) .e%ort of the Proceedings of *trategic Planning 1orksho% for the (omm#nity 1ildlife *ervice De%artment) held in 2airo!i) 0enya -7 G#ne 6& G#ly &77-. 0enyatta) Gomo) Facing "o%nt Kenya M,ondon) 0nof P#!lishing) &7'-N. 0enyatta) Gomo) 6aram#ee M&7'5N. 0iriro) Amos K (alesto#s G#ma Beds.C) Gaining Gro%nd: In&tit%tional Innovation& in Land! %&e "anagement in Kenya B.evised editionC M&77&N) 2airo!i; A(T* Press. 0iss) Alexandre K Dinah *hetton) International Environmental Law, 4rd +dition M-::'N) U2+P. 0iss) Alexandre (harles BedC) -elected "%ltilateral Breatie& in the Field o, the Environment M&7"4N) 2airo!i; U2+P. 0lernrn (. de K I. (reatea#x) =The ,egal Develo%ment of the .amsar (onvention= M&773N) .amsar (onvention $#rea#. 0oester) F) 8+xcellence in the Art of the Possi!le M-:::N8) IEC1 Environmental Law rogramme 1ew&letter, Gan#ary6A%ril. 0r#chek) $. ,.) =+xtending 1etlands Protection Under the .amsar Treaty8s 1ise Use O!ligation= M-::4N) $ri2ona Ko%rnal o, International and Comparative Law, vol. &-.
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Practice in the Pacific $asin= M&7 7N) Jirginia Ko%rnal o, International Law, vol.GD Y'7. 0wamena $entsi6+nchill) 8Do African *ystems of ,and Ten#re .e>#ire a *%ecial TerminologyL M&7''N) Ko%rnal o, $,rican Law. ,agoni) .einer) =Oil and @<as De%osits Across 2ational Frontiers= M&7 7N) $merican Ko%rnal o, International Law, vol. 4. ,ane) (harles) a&t%re& Lo&t: Iarahaig Economy, 9e&o%rce Ben%re, and the $lienation o, their Land in Ban2ania M&77'N) 2airo!i; A(T* Press. ,ane) /arc#s $.) =$#ying $ack and (aring for the (o#ntry; Instit#tional Arrangements and Possi!ilities for Indigeno#s ,ands /anagement in A#stralia M-::-N=) -ociety and 1at%ral 9e&o%rce&, vol. &3. ,ay) *. 9o#ston) .o!in (h#rchill K /yron 2ord>#ist BedsC) =2ew Directions in the ,aw of the *ea= M&7 4N) 8oc%ment&, vol. &) Oceana P#!lications. ,aDar#s) .ichard G.) =/eeting the Demands of Integration in the +vol#tion of +nvironmental ,aw=) B&773C) Georgetown Law Ko%rnal, vol. "4. ,eiss) 1illiam) Ecology v olitic& in Canada M&7 7N) Toronto; University of Toronto Press. ,ettington) .o!ert G.) =Access to <enetic .eso#rces in the .e%#!lic of 0enya= M-::4N) in 0ent 2nadoDie) .o!ert ,ettington K (arl $r#ch) $,rican er&pective& on Genetic 9e&o%rce&: $ 6and#ook on Law&, olicie& and In&tit%tion&, 1ashington D(; +nvironmental ,aw Instit#te. ,ewis A. Alexander) 4Bhe Law o, the -ea: 1eed& and Intere&t& o, 8eveloping Co%ntrie& M&7 -N) 0ingston) .. I. University of .hode Island ,aw of the *ea Instit#te. ,ewis /. Alexander) =$aseline Delimitations and /aritime $o#ndaries= M&7"4N) Jirginia
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/ackenDie) .#th) Francois $#rhenne6<#ilmin) Antonio <./ ,a Fina K Gaco! D.1erksman .) An +x%lanatory <#ide to the (artagena Protocol on $iosafety M-::4N) IU(2 +nvironmental Policy and ,aw Pa%er 2o. 5') ,ondon. /adhav <adgil) On the Diversification of (ommon Pro%erty M&7"7N) in Fikret $erkes BedC) Common roperty 9e&o%rce&: Ecology and Comm%nity!Ia&ed -%&taina#le 8evelopment. /aini) 0rishan /.) Land Law in Ea&t $,rica M&7' N) 2airo!i; Oxford University Press. /arie) <ene) $merica the 9aped M&7'7N) Avon $ooks. /ar?orie .. Dilley) $ritish Policy in 0enya (olony M&7''N. /artineD6Alier)P., 8+cology and the Poor; A 2eglected Dimension of ,atin American 9istory8 M&77&N) Ko%rnal o, Latin $merican -t%die&, vol. -4. /athews) <. F. T) =The .amsar (onvention on 1etlands; Its 9istory and Develo%ment= M&774N) .amsar. /atir#) Fiolet) Fore&t Cover and Fore&t 9e&o%rce& in Kenya: olicy and ractice M-:::N. .e%ort of the Taskforce on (onservation of the +nvironment) 2airo!i; IU(2 +astern Africa .egional Office) /inistry of +nvironment and 2at#ral .eso#rces. /ats#da) /ari) =,aw and (#lt#re in the District (o#rt= M&7""N) $merican Ko%rnal o, Legal 6i&tory, vol OOOII. /c(affrey) *te%hen) /ater -carcity: In&tit%tional and Legal 9e&pon&e& M&77 N) in +.9.P. $rans) +. G. de
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/c(racken) Gohn) =(olonialism) (a%italism and the +cological (risis in /alawi; A .eassessment= M&7" N) in David Anderson K .ichard <rove BedsC) Con&ervation in $,rica ! eople, olicie&, ractice. /ichele ,. Thieme et al) Fre&hwater Ecoregion& o, $,rica and "adaga&car: $ Con&ervation $&&e&&ment, 1ashington D(; 11. /ichell) Games 0.) =(oastal Hone /anagement *ince &7":; The United *tates +x%erience and its .elevance for Other (o#ntries= M&7"'N) Ocean Qear#ook, vol. '. /igot6Adholla) *. +. ) =*ec#rity of Ten#re and ,and Prod#ctivity in 0enya= M&775N) in G. $r#ce K *. +. /igot6Adholla BedsC) -earching ,or Land Ben%re -ec%rity in $,rica, D#!#>#e) I A) 0endall@ 9#nt P#!lishing (om%any. /igot6Adholla) *. +. K $enoit $larel) =Indigeno#s ,and .ights *ystems in *#!6*aharan Africa; A (onstraint on Prod#ctivity= M&77&N) /orld Iank 9eview. /inistry of +nvironment and 2at#ral .eso#rces) Kenya Fore&try "a&ter lan M&775N) 2airo!i; <overnment Printer. /inistry of +nvironment and 2at#ral .eso#rces) "ine& and Geological 8epartment Iroch%re M-:: N) 2airo!i; De%artment of /ines and <eology. /inistry of +nvironment and 2at#ral .eso#rces) -e&&ional aper 1o. ? o, '((H on Fore&t olicy M-::'N) 2airo!i; <overnment Printer.
/inistry of +nvironment) 2at#ral .eso#rces and 1ildlife) -tat%& o, the Fore&t -ector in Kenya: Challenge& and Opport%nitie& M-::5N. A Pa%er Presented at the Forest /anagement 1orksho% for /em!ers of Parliament) /om!asa 7th6&: Gan#ary. -::5. /lim#ka) Aggrey 0. ,. G.) =The Infl#ence of the &7"- United 2ations (onvention on the ,aw of the *ea on *tate Practice; The (ase of the TanDanian ,egislation +xcl#sive +conomic Hone= M&773N) Ocean 8evelopment and International Law, vol. -' 2o. &. /ogaka) 9.) *. <ichere) .. Davis K .. 9ir?i) Climate Jaria#ility and./ater 9e&o%rce& 8egradation in Kenya: Improving /ater 9e&o%rce& 8evelopment and "anagement M-::3N) 1orld $ank 1orking Pa%er 2o. '7.
/orris) G.) 9ethinking 9i&k and the reca%tionary rinciple M-::-N) ,ondon; $#tterworth 9einemann. /#chnicki) +. Denis) =Only (riminal *anctions (an +ns#re P#!lic *afety= M&77:N) The +nvironmental For#m) /ay6G#ne. /#ga!e) G.) 8From (artagena to 2airo!i; Towards an African Agenda on the $io6safety Protocol M-:::N. $ackgro#nd Pa%er for Panel Disc#ssion at the 3th (onference of Parties to the (onvention on $iological Diversity) 2airo!i. /#ga!e) Gohn) (harles F. $ar!er) <#dr#n 9enne) ,yle <lowka K Antonio ,a Fina eds) $cce&& to Genetic 9e&o%rce&: -trategie& ,or -haring Iene,it& M&77 N) 2airo!i; A(T* Press. /#mma) A. =Fo#ndations of +nvironmental ,aw= M-::&N) in $pproache& to Environmental Litigation and $dvocacy in -o%thern $,rica, IU(26.O*A) 9and!ook *eries 2o. 4.
/#mma) Al!ert) KenyaC& 1ew /ater Law: $n $naly&i& o, the Implication& ,or the 9%ral oor M-::3N. Pa%er Pre%ared for the International 1orksho% on =African 1ater ,aws; Pl#ral ,egislative Frameworks for .#ral 1ater /anagement in Africa)= -'6-" Gan#ary) Gohannes!#rg) *o#th Africa. /#ng8ala P. /.) <overnment +x%erience of (olla!oration with 2<Os in .#ral Afforestation M&774N) in 0. 1ellard K G. <. (o%estake BedsC) 1on!governmental Organi2ation& and the -tate in $,rica: 9ethinking 9ole& in -%&taina#le $gric%lt%ral 8evelopment, ,ondon; .o#tledge. /#t#a60ih#@80enya2ational .e%ort. Instit#tional Arrangements for +nvironmental Protection= M&7"5N) in E1E -ocio!Economic $ctivitie& that may have an Impact on the "arine and Co&tal Environment o, the Ea&t $,rican 9egion: 1ational 9eport&, U2+P .egional *eas .e%orts and *t#dies 2o. 3&) 2airo!i; U2+P. /wango) + 0.) Capacity I%ilding in Integrated /ater 9e&o%rce& ro3ect in IG$8 9egion M-:::N) I<AD P#!lications. /wicha!e) *it#ma) Environmental ro#lem& in Kenya: -%rviving a -poiled Environment M-:::N) Occasional Pa%er 2o. 5 2airo!i; 0onrad Adena#er *tift#ng. 2anda) Fed) International +nvironmental ,aw and Policy M&775N) 2ew Jork; Transnational P#!lishers Inc. 2ash) ..) 1ilderness and the American /ind M&7"-N) 2ew 9aven) Jale University Press. 2ational (o#ncil for *cience and Technology B2(*TC) .eg#lations and <#idelines for $iosafety
in $iotechnology for 0enya M&77"N) 2ational (o#ncil for *cience and Technology. 2ational (o#ncil for *cience and Technology B2(*TC. .eg#lations and <#idelines for $iosafety in
$iotechnology for 0enya M-::4N) 2ational (o#ncil for *cience and Technology) 2o. 5&. 2elson *mith) <. Ill) =2o ,onger G#st a (ost of Doing $#siness; (riminal ,ia!ility of (or%orate Officials for Fiolations of the (lean 1ater Act and the .eso#rce (onservation and .ecovery Act= M&77-N) Law 9eview, vol. &&7. 2g8weno Osolo62as#!o) $ -ocio!Economic -t%dy o, the Kenya 6ighland& ,rom GD((!GDA(: $ Ca&e! -t%dy o, the Eh%r% Government M&7 N.
2ickel) +rnest 9.) =Definition of a /ineral= M&773N) Bhe Canadian, vol. 44. Availa!le on the 1e!site of the International /ineralogist Association ;http:>>www.min&ocam.org>m&a>ima>= -' /arch -:: . 2nadoDie) 0ent) .o!ert ,ettington) (arl $r#ch) *#san $ass K *arah 0ing) African Pers%ectives on <enetic .eso#rces; $ 6and#ookon Law&, olicie& and In&tit%tion& M-::4N) 1ashington D(; +nvironmental ,aw Instit#te. 2oel) *imon) $etween the *#nlight and the Th#nder; The 1ildlife of 0enya M&7'-N. 2orth) D. () In&tit%tion&, In&tit%tional Change and Economic er,ormance M&77:N) (am!ridge; (am!ridge University Press. 2yang) F. O.) 6o%&ehold Energy 8emand and Environmental "anagement in Kenya M&777N) Un%#!lished Doctoral Thesis) University of Amsterdam. 2yerere) G#li#s 0.) E3amaa: Bhe Ia&i& o, $,rican -ociali&m M&7'"N Dar es *alaam; Tanganyika *tandard ,td. Ochich) <eorge =Towards a *#staina!le +nergy ,aw in 0enya= M-::'N) Law -ociety o, Kenya Ko%rnal, vol. &. Odame) 9annington K Patricia 0ameri6/!ote K David 1af#la.) 8<lo!alisation and the
International <overnance of /odern $iotechnology in 0enya; Im%lications for Food *ec#rity8 M-::4N) ID* 1orking Pa%er &77) $iotechnology Policy *eries -:) $righton) United 0ingdom. Ogolla) $. D. K G. /#ga!e) 8,and Ten#re *ystems and .eso#rce /anagement= M&77'N) in (alesto#s G#ma K G. $. O?wang BedsC) In Land we Br%&t A Environment rivate roperty and Con&tit%tional Change, 2airo!i; Acts Press.
O?iam!o) +l%has Fictor) =$attling for (or%orate Acco#nta!ility; +x%eriences from Titani#m /ining (am%aign in 0wale) 0enya= M-::-N. A Pa%er Presented at the Instit#te of Develo%ment *t#dies) University of *#ssex *eminar on ,inking .ights and Partici%ation; *haring +x%eriences and O%%ort#nities. O?wang) G. $.) Laying a Ia&i& ,or 9ight&: Boward& a K%ri&pr%dence o, 8evelopment M&7"-N) 2airo!i; University of 2airo!i Press. Okidi (. O. K Patricia 0ameri6/!ote) Bhe "aking o, a Framework Environmental Law in Kenya M-::&N) 2airo!i; A(T* Press. Okidi) (. O K *ydney 1esley BedsC) "anagement o, Coa&tal and O,,&hore 9e&o%rce& in Ea&tern $,rica M&7 "N) 2airo!i; ID* Occasional Pa%er 2o. -". Okidi) (. O.) =(onservation and Develo%ment of (oastal an Off6*hore .eso#rces in +ast Africa; Agenda for .esearch= M&7 "N) in Okidi K *ydney 1estley BedsC) /anagement of (oastal and Offshore .eso#rces in +astern Africa. Proceedings of a 1orksho% held at the Instit#te for Develo%ment *t#dies) University of 2airo!i) ID* Occasional Pa%er 2o. -". Okidi) (. O.) =+nvironment) 2at#ral .eso#rces and *#staina!le Develo%ment in 0enya8s (onstit#tion6/aking= M-::-N). $ "emorand%m to the Con&tit%tion o, Kenya 9eview Commi&&ion.
Okidi) (. O.) =9ow (onstit#tional +ntrenchment co#ld /itigate (onflicts and Poverty in .eso#rce6.ich African (o#ntries= M-:: N) Environmental olicy and Law, vol. 4 2os &6-. Okidi) (. O.) =International +nvironmental ,aw and 2ational Interest= M&775N) in *ancheD) Ficente K (alesto#s G#ma BedsC) Iiodiplomacy: Genetic 9e&o%rce& and International 9elation&, 2airo!i; A(T* Press. Okidi) (. O.) =,egislative Develo%ment in 0enya (oncerning the Territorial *ea and the (ontinental *helf= M&7 "N) in Okidi K *ydney 1estley BedsC) /anagement of (oastal and Offshore .eso#rces in +astern Africa. Proceedings of a 1orksho% held at the Instit#te for Develo%ment *t#dies) University of 2airo!i) ID* Occasional Pa%er 2o. -". Okidi) (. O.) =2airo!i (onvention; (onservation and Develo%ment Im%eratives= M&7"3N) Environmental olicy and Law, vol. &3 2o. -. Okidi) (. O.) =Policy and ,egal Framework on Develo%ment 6 Driven Invol#ntary .esettlement in African (o#ntries= M&774N) /oi University) *chool of +nvironmental *t#dies) Pa%er Pre%ared for +nvironment De%artment) The 1orld $ank.
Internal Teaching Use Only '::
Okidi) (. O.) =.eflections on Teaching and .esearch on +nvironmental ,aw in African Universities= M&7""N) Ko%rnal o, Ea&tern $,rican 9e&earch and 8evelopment. Okidi) (. O.) =The 0enya Draft Articles on +xcl#sive /aritime +conomic Hone; Analysis and (omments on the Original Pro%osal= in Okidi K *ydney 1estley BedsC) /anagement of (oastal and Offshore .eso#rces in +astern Africa. Proceedings of a 1orksho% held at the Instit#te for Develo%ment *t#dies) University of 2airo!i) ID* Occasional Pa%er 2o. -". Okowa6$enn#n) P. 2. K A. /. /wangi) =,and Tten#re and Forest .eso#rce /anagement=
M&77'N) in (alisto#s G#ma K G. $. O?wang BedsC) In Land /e Br%&t: Environment rivate roperty and Con&tit%tional Change, 2airo!i; Initiatives P#!lishers) ,ondon; Hed $ooks. Ok#r#t) Tom O.) +A( *ecretariat) Leading Environmental ro#lem& o, Ea&t $,rica M-::3N. A Pa%er Presented at the (ollo>#i#m for G#dges of the +ast African (o#rt of G#stices and G#dges from the +ast African (omm#nity) /om!asa) -65 G#ne -::3. Ollenn#) 2. A.) C%&tomary Land Law in Ghana M&7'-N) $irmingham; (A, Press. On?ala) Gose%h) Good Intention&, -tr%ct%ral it,all&: Early Le&&on& ,rom Er#an /ater Commerciali&ation $ttempt& in Kenya M-::-N) (entre for Develo%ment .esearch) (o%enhagen) 1orking Pa%er :-.-. O%schoor) G. $.) "anaging the Environment: Bhe 9ole o, Economic In&tr%ment& M&775N) Paris; O+(D. Organisation for +conomic (o6o%eration and Develo%ment BO+(DC) 9ecommendation& on G%iding rinciple& Concerning International Economic $&pect& o, Environmental olicie& M&7 -N) O+(D Doc. (B -C &-" B&7 -C) Printed in && International Legal "aterial& && -. Organisation for +conomic (o6o%eration and Develo%ment BO+(DC) .ecom!inant D2 A *afety (onsiderations. *afety (onsiderations for Ind#strial) Agric#lt#ral and +nvironmental A%%lications of Organisms Derived !y .ecom!inant D2A Techni>#es M&7"'N) Paris; O+(D. Organisation for +conomic (o6o%eration and Develo%ment BO+(DC) -a,ety Con&ideration& ,or Iiotechnology: -cale!%p o, crop plant& M&774N) Paris; O+(D.
Orie) 0enneth) =(onstit#tional A%%roach to *#staina!le +nvironmental /anagement; +x%erience and (hallenge= M&773N) Environmental olicy and Law. Ostrom) +.) Governing the Common&: Blie Evol%tion o, In&tit%tion& ,or Collective $ction M&77-N) (am!ridge; (am!ridge University Press. Ox!y) (lare) a&toral 1omad& and 8evelopment M&7"-N ,ondon; International African Instit#te.
Internal Teaching Use Only ':&
Oxman) $enard 9.) =The Third United 2ations (onference on the ,aw of the *ea; The 2inth *ession M&7"&N=) $merican Ko%rnal o, International Law, vol. A@ 2o. -. Oy#gi) 1. O.) =,ocal <overnment in 0enya; A (ase of Instit#tional Decline= M&7"4. In Local Government in the Bhird /orld, edited !y P. /awhood) (hichester; 1iley. Paarl!erg) ..) Towards a .egional Policy on </O (ro%s among (O/+*A@A*A.+(A (o#ntries M-::'N. Paarl!erg) .o!ert ,.) The Politics of Preca#tion; <enetically /odified (ro%s in Develo%ing (o#ntries M-::&N) 1ashington; International Food Policy .esearch Instit#te) The Gohns 9o%kins University Press. Pa%adis) 2.) Bhe International Legal 9egime o, $rti,icial I&land& M&7 N) *i?thoft P#!lishers.
Parker *hi%ton) Parker) 8The 0enyan ,and Ten#re .eform; /is#nderstandings in the P#!lic (reation of Private Pro%erty8 M&7""N) Land and -ociety in Contemporary $,rica. Peet) .ichard) 1eoli#erali&m or 8emocratic 8evelopmentU L'((GM, 9eview o, International olitical Economy, vol. 4-7. Pharm +ng.) I,.I) $ecA) 9eport o, the -trategic Environmental $&&e&&ment 9eport ,or Iio&cience& Ea&tern and Central $,rica, /arch M-::3N.
Pierce) <eorge A. $. =*elective Ado%tion of the 2ew ,aw of the *ea; The United *tates Proclaims its +xcl#sive +conomic Hone= M&7"4N) Jirginia Ko%rnal o, International Law, vol. -4. Preston *trom G. Gr.) =The United *tates Attorney8s Policy Towards (riminal +nforcement of +nvironmental ,aws= M&774N) -o%th Carolina Environmental Law Ko%rnal, vol. &"5. Preston) $rian G.) (riminal +nforcement of +nvironmental ,aw in 2*1; A *yno%sis M-::'N. Prince) *. D. K *. 2. <oward) =<lo!al Primary Prod#ction; A .emote *ensing A%%roach= M&773N) Ko%rnal o, Iiogeography, vol. --. Iaim) /.) The +conomic +ffects of <enetically /odified Or%han (ommodities; Pro?ections for *weet Potato in 0enya@I*AAA $riefs 2o. &4) I*AAA; Ithaca) 2ew Jork and H+F $onn. .awcliffe) D. 9.) Bhe -tr%ggle ,or Kenya M&735N ,ondon; Fictor <ollancD P#!lishers. .e%ort of the 1orld (ommission on +nvironment and Develo%ment B1(+DC) O%r Common F%t%re M&7" N) 2ew Jork; Oxford University Press. .e%#!lic of 0enya) $,rican -ociali&m and it& $pplication to lanning in Kenya M&7'3N) 2airo!i;
Internal Teaching Use Only ':-
<overnment Printer. .e%#!lic o, Kenya, 8ra,t Framework for the Develo%ment of a 2ational 1etlands (onservation and /anagement Policy M-:: N. .e%#!lic of 0enya) Economic -%rvey '((H M-::'N) 2airo!i; <overnment Printer. .e%#!lic of 0enya) "ining Inve&tment Opport%nitie& in Kenya M-:: N) 2airo!i; /inistry of +nvironment and 2at#ral .eso#rces) De%artment of /ines and <eology. .e%#!lic of 0enya) 1ational 8evelopment lan '(('!'((): E,,ective "anagement ,or -%&taina#le Economic Growth and overty 9ed%ction M-::-N) 2airo!i; <overnment Printer. .e%#!lic of 0enya) 1ational8evelopment lan, GDD A!'((G M&77 N) 2airo!i; <overnment Printer.
.e%#!lic of 0enya) 1ational olicy on /ater 9e&o%rce& "anagement and 8evelopment M&777N) 2airo!i; <overnment Printer. .e%#!lic of 0enya) 9ep%#lic o, Kenya 8evelopment lan GDD?!GDDH M&775N) 2airo!i; <overnment Printer. .e%#!lic of 0enya) 9e&pon&e to Climate Change and Opport%nitie& ,or -%&taina#le 8evelopment. (o#ntry .e%ort to the United 2ations Framework (onvention on (limate (hange Twelfth (onference of Parties M-::'N) 2airo!i; /inistry of +nvironment and 2at#ral .eso#rces. .e%#!lic of 0enya) -e&&ional aper 1o. G o, GDDD on 1ational olicy on /ater 9e&o%rce& "anagement and 8evelopment M&777N) 2airo!i. .e%#!lic of 0enya) -tate o, the Environment 9eport '((0 M-::5N) 2airo!i; 2ational +nvironment /anagement A#thority B2+/AC. .e%#!lic of 0enya) -tate o, the Environment 9eport '((?, Kenya M-::5N) 2airo!i; 2ational +nvironment /anagement A#thority B2+/AC. .e%#!lic of 0enya) Bhe 1ational "ineral 9e&o%rce& and "ining olicy o, the 9ep%#lic o, Kenya 6 Final Draft M-:: N) 2airo!i; De%artment of /ines and <eology. .e%#!lic of 0enya; /inistry of +nergy) -e&&ional aper 1o. ? o, '((? on Energy M-::5N) 2airo!i; <overnment Printer. .ichardson) $en?amin G.) =+nvironmental /anagement in Uganda; The Im%ortance of Pro%erty ,aw and ,ocal <overnment in 1etlands (onservation= M&774N) K.$,r.L.
Internal Teaching Use Only ':4
.inga) /athias) =Port /eets *afety *tandards= M-::5N) Ea&t $,rican -tandard, -: /ay. .o!ert Falkner K 9elen /ar>#ard) The (artagena Protocol on $iosaf ety; .econciling Trade in $iotechnology with +nvironment and Develo%mentL 57 ) .oyal Instit#te of International
Affairs K ,ondon; +arthscan. .oss) David) =.ed *ea 2ot $rines Area; .evisited= M&7 -N) -cience. .oth) D.) Am!ition) .eg#lation and .eality; (om%lex Use of ,and and 1ater .eso#rces in ,#w#) Indonesia M-::4N. Un%#!lished PhD Dissertation) 1ageningen University. *ands) P.) rinciple& o, International Environmental Law M-::4N) -nd edition) (am!ridge University Press. *ands) Philli%%e) rinciple& o, International Environmental Law: Framework&, -tandard& and Implementation M-::4N) (am!ridge; (am!ridge University Press. *ax) Gose%h ,. 8*tanding to *#e; A (ritical .eview of the /ineral 0ing Decision8) 1at%ral 9e&o%rce& Ko%rnal. *ax) Gose%h ,.) =The P#!lic Tr#st Doctrine in 2at#ral .eso#rce ,aw; +ffective G#dicial Intervention= M&7 :N) "ichigan Law 9eview. *cherr) *. G.) =A Downward *%iralL .esearch +vidence on the .elationshi% !etween Poverty and 2at#ral .eso#rce Degradation= M-:::N) Food olicy, vol. -3. *chillings) (arl <. In /ilde&t $,rica M,ondon; 9#tchinson) &7: N. *chillings) (arl <.) /ith Fla&hlight and 9i,le M,ondon; Games (#mmins $ookseller &7:'N. *chlager) +. K +. Ostrom) =Pro%erty .egimes and 2at#ral .eso#rces; A (once%t#al Analysis= M&77-N) Land Economic&, vol. '" B4C. *en) A.) 8evelopment a& Freedom M&777N) Oxford; Oxford University Press. *he%herd) <.) 8(omm#nal /anagement of Forests in the *emi6arid and *#!6h#mid .egions of Africa8 M&77&N. .e%ort Pre%ared for the FAO Forestry De%artment) *ocial Forestry 2etwork and Overseas Develo%ment Instit#te. *hine) (. K ( I. de 0lemm) =1etlands) 1ater and the ,aw; Using ,aw to Advance 1etland (onservation and 1ise Use= M&777N) IU(2 6 The 1orld (onservation Union) <land
*witDerland) +nvironmental ,aw and Policy Pa%er 2o. 4". *ingh) <#r# Prasanna) Princi%les of *tat#tory inter%retation M&7""N) 5 th edition) 2ag%#r;
1adhwa. *mith) G. 1ardley) =Occ#rrence) (a#se and Avoidance of the *%illing of Oil !y Tankers= M&7 4N. roceeding& o, Koint Con,erence on revention and Control o, Oil -pill&, /arch &46&3. *tarr) G#dson 1) =T#r!#lent Times at G#stice and +PA; The Origins of +nvironmental (riminal Prosec#tions and the 1ork that .emains= M&77&N) /a&hington Law 9eview. *teinhart) +.) =9#nters) Poachers and <amekee%ers; Towards a *ocial 9istory of 9#nting in (olonial 0enya M&7"7N=) Ko%rnal o, $,rican 6i&tory, vol. 4:) 2o. -. *teinhart) +.) =2ational Parks and Anti6Poaching in 0enya &75 6&73 = M&775N) International Ko%rnal o, $,rican 6i&torical -t%die&, vol. - ) 2o. &. *tern) 2.) -tern 9eview, 1ew Economic& Fo%ndation M-::'N) ,ondon. *terner) T. Bhe "arket and the Environment: Bhe E,,ectivene&& o, "arket!Ia&ed olicy In&tr%ment& ,or Environmental 9e,orm M&777N) (heltenham) U0; +dward +lgar. *terner) T.) olicy In&tr%ment& ,or Environmental and 1at%ral 9e&o%rce "anagement M-::4N) 1ashington D(; .eso#rces for the F#t#re. *teven ,awry) Ben%re olicy Boward& Common roperty 1at%ral 9e&o%rce& in -%#!-aharan $,rica M&77:N 2at#ral .eso#rces Go#rnal) vol. 4:B-C. *t#dy of (ritical +nvironmental Pro!lems B*(+P .e%ortC) "anC& Impact on Glo#al Environment M&7 :N) /IT Press. *#tton) (. 9.) Iathymetric Compari&on&: $ "an%al o, "ethodology, Error Criteria and Bechni:%e&
M&7 3N) Firginia Instit#te of /arine *cience *%ecial .e%ort 2o. '') in A%%lied /arine *cience and Ocean +ngineering. *wan) G#dith@89ighly /igratory *%ecies; The *o#th Pacific For#m Fisheries Agency= M&777N) in (lingan) Thomas A. K Alfred 9.A. *oons BedsC) Implementation o, the Law o, the -ea Convention Bhro%gh International In&tit%tion, ,aw of the sea Instit#te) University of 9awaii. *wan) Peter 2.) =International A%%roaches to Oil Poll#tion .es%onsi!ility; +merging .egime for or <lo!al Pro!lem= M&7 &N) Oregon Law 9eview, vol. 3:. Taylor) Gohn) Iig Game and Iig 9i,le& M&733N) ,ondon; *afari Press. Teclaff) ,#dwik A. K Utton) Al!ert +.) International Gro%ndwater Law M&7"&N) ,ondon; Oceana P#!lications.
Tiffen) /ary et al, "ore eople, Le&& Ero&ion: Environmental 9ecovery in Kenya M&775N) (hichester; Gohn 1iley K *ons ,td. Tinker) (atherine) =A 2ew $reed of Treaty; The United 2ations (onvention on $iological Diversity= M&774N) ace Environmental Law 9eview, vol. &- 2o. -. Torori) (leo%has O.) Al!ert /#mma K Alison Field6G#ma) =,and Ten#re and 1ater .eso#rces= M&77'N) In Land /e Br%&t: Environment, Common roperty and Con&tit%tional Change, 2airo!i; A(T* Press. Tra%nell) (. <. K I. ,angdale6$rown) 8The 2at#ral Fegetation of +ast Africa8 M&7'-N) in +. 1. .#ssell Bed.C) Bhe 1at%ral 9e&o%rce& o, Ea&t $,rica. Tsamenyi) /artin K /ax 9erriman) =Ocean +nergy and the ,aw of the *ea; The 2eed for a Protocol= M&77"N) Ocean 8evelopment and International Law, vol. -7 2o.l.
U2) 4 roce&& o, reparation o, the Environmental er&pective to the Qear '((( and Ieyond.4 M&7"4N <eneral Assem!ly .esol#tion 4"@&'&)&7 Decem!er. U2) Legi&lative Be<t& and Breaty rovi&ion& Concerning the Etili&ation o, International 9iver& ,or Other %rpo&e& than 1avigation M&7'4N. U2) Permanent *overeignty Over 2at#ral .eso#rces; The +xercise of Permanent *overeignty Over 2at#ral .eso#rces and the Use of Foreign (a%ital and Technology for The +x%loitation M&7 :N. .e%ort of the *ecretary <eneral) <eneral Assem!ly Doc A.":3" of &5 *e%tem!er &7 :. U2) Bhe -ea: revention and Control o, "arine oll%tion M&7 &N) U2 Doc. +@3::4 .e%ort of the *ecretary6<eneral. U2) Qear#ook o, the Enited 1ation& M&7'"N) vol. --. U2+P) =2at#ral Allies; U2+P8s +ngagement with (ivil *ociety M-::-N. 2airo!i; U2+P. U2+P) $,rica Environment O%tlook: a&t, re&ent and F%t%re er&pective& M-::-N) 2airo!i; U2+P. U2+P) Compendi%m o, Environmental Law& o, $,rican Co%ntrie&, vol. I: Framework Law& and EI $ 9eg%lation& M&77'N) BU2+P@U2DP Goint Pro?ect on +nvironmental ,aw and Instit#tions in Africa. U2+P) Ind%&trial -o%rce& o, "arine and Coa&tal oll%tion in the Ea&t $,rican 9egion, 2airo!i; U2+P .egional *eas .e%orts and *t#dies 2o. . U2+P) Legal $&pect& o, rotecting and "anaging the "arine and Coa&tal Environment o, the Ea&t $,rica
Internal Teaching Use Only ':'
9egion M&7"4N) U2+P .egional *eas .e%orts and *t#dies 2o. 4") 2airo!i; U2+P.
U2+P) Oil oll%tion Control in the Ea&t $,rican 9egion M&7"-N. U2+P .egional *eas .e%orts and *t#dies 2o. &:) 2airo!i; U2+P. U2+P) %#lic 6ealth ro#lem& in the Coa&tal Fone o, the Ea&t $,rican 9egion M&7"-N) 2airo!i; U2+P .egional *eas .e%orts and *t#dies 2o. 7. U2+P) -elected Be<t& o, Legal In&tr%ment& in International Environmental Law M-::3N) 2airo!i; U2+P. U2+P) -%pplement to Compendi%m o, Environmental Law& o, $,rican Co%ntrie&, Jol%me I: Framework Law& and EI$ 9eg%lation& M-::5N) Partnershi% for the Develo%ment of +nvironmental ,aw and Instit#tions in Africa BPAD+,IAC. U2+P) Bhe -tat%& o, 9egional $greement& 1egotiated in the Framework o, the 9egional -ea& rogramme M-::&N) 2airo!i; U2+P. U2+P) E1E 6and#ook ,or 8ra,ting Law& on Energy E3,iciency and 9ene<va#le Energy 9e&o%rce& M-:: N) 2airo!i; U2+P. U2+P@<overnment of 0enya) 8eva&tating 8ro%ght in Kenya: Environmental Impact& and 9e&pon&e& M-:::N) 2airo!i; U2+P. United 2ations BU2C) =Iss#es $efore the -'th <eneral Assem!ly=) in International Conciliation M&7 &N) 2o. 3"5. United 2ations (ommission on *#staina!le Develo%ment) (om%rehensive Assessment of Freshwater .eso#rces of the 1orld) +@(2.& @&77 @7) at 56' B5 Fe!r#ary &77 C.
United 2ations +conomic and *ocial (o#ncil) -%#&tantive I&&%e& $ri&ing in the Implementation o, the International Covenant on Economic, -ocial and C%lt%ral 9ight&, Draft) <eneral (omment 2o. &3) (ommittee on +conomic) (#lt#ral and *ocial .ights) <eneva) &&6-7 2ovem!er) -::-. United 2ations <eneral Assem!ly BU2<AC) 9eport o, the Enited 1ation& Con,erence on Environment and 8evelopment: $nne< I ! 9io 8eclaration on Environment and 8evelopment BU2<A) &- A#g#st &77-) A@(O2F.&3&@-' Bvol. ICC. 1a!#noha) .o!ert) 8evelopment and 6armoni2ation o, Cro&&!#order Environment Eaw and In&tit%tional I&&%e&: Bhe E<perience o, the Ea&t $,rican -%#!9egional ro3ect %nder $8ELI$ M-::'N) PAD+,IA; The First &: Jears) U2+P. 1af#la D. K 1aithaka /.) .e%ort of the .A$+*A .egional 1orksho% on the .egional
Internal Teaching Use Only ':
A%%roach to $iotechnology and $iosafety Policy in +astern and *o#thern Africa 4:64& /ay M-::'N. 1alters) /ark) 8+cological Unity and Political Fragmentation; The Im%lications of the $r#ndtland .e%ort for the (anadian (onstit#tional Order8 M&77&N) $l#erta Law 9eview, vol. -7. 1ard) $ar!ara K .ene D#!os) Only one +arth M&7 -N) 2ew Jork; 2orton and (o. 1ardley *mith) G. =Occ#rrence) (a#se and Avoidance of *%illing of Oil !y Tankers= M&7 4N. roceeding& o, Koint Con,erence on revention and Control o, Oil -pill&, /arch &46&3) 1ashington D(; American Petrole#m Instit#te. 1ass) Peter Bed.C) KenyaC& Indigeno%& Fore&t&: -tat%&, "anagement and Con&ervation M&773N) <land; The IU(2 Forest (onservation Programme 2o. :&7 and +arth%rint 1esley) /arx) Bhe Frail Ocean M&7' N) $allantine $ooks. 1ill) /artin /ichael ,odge) Gohn (addy K 0wame /fodwo) $ 6and#ook ,or 1egotiating Fi&hing $cce&& $greement& M-::&N) 1orld 1ildlife F#nd Pro?ect on Promoting *#staina!le Fisheries (onservation and /anagement) 1ashington D(.
1orika) I!i!ia ,#cky) +nvironmental ,aw and Policy of Petrole#m Develo%ment; *trategies and /echanisms for *#staina!le Develo%ment M-::-N) $enin (ity; <ift6Prints Associates. 1orld $ank) Five Qear& a,ter 9io: Innovation in Environmental olicy M&77 N) +nvironmentally *#staina!le Develo%ment *t#dies and /onogra%h *eries 2o. &") 1ashington D(; 1orld $ank. 1orld $ank) -trategic Environmental $&&e&&ment o, the Kenya Fore&t $ct '((@ M-:: N) 1ashington D(; The 1orld $ank. 1orld $ank) Bhe 9ep%#lic o, Kenya: Boward& a /ater!-ec%re Kenya: /ater 9e&o%rce& -ector "emorand%m B-::5C. 1orld (ommission for +nvironment and Develo%ment B1(+DC) =O#r (ommon F#t#re= M&7" N) Oxford; Oxford University Press. 1orld (onservation Union BIU(2C) $n Introd%ction to the $,rican Convention on the Con&ervation o, 1at%re and 1at%ral 9e&o%rce& M-::5N) BIU(2 +nvironmental ,aw Programme 6 IU(2 +nvironmental Policy and ,aw Pa%er 2o. 3'C. 1orld 9ealth OrganiDation) 6ealth and the Environment in -%&taina#le 8evelopment: Five Qear& a,ter
Internal Teaching Use Only ':"
9io M&77 N) <eneva. Jeager) .odger K 2orman 2. /iller BedsC) /ildli,e, /ild 8eath ! Land E&e and -%rvival in Ea&tern $,rica M&7"'N.
Index
A
$.G. 5Gam#ia7 v 13ie A!erdares A!id?an (onvention. -ee al&o (onvention for (oo%eration in the Protection and Develo%ment of the /arine and (oastal +nvironment $ct%& 9e%& Administration Police Act -4Advance informed agreement BAIAC Affey)9on. Africa6wide $iosafety (a%acity6$#ilding Pro?ect African (entre for Technology *t#dies BA(T*C African (onvention African (onvention for the (onservation of 2at#re and 2at#ral .eso#rces -ee al&o Algiers (onvention African (onvention on 2at#re and 2at#ral .eso#rces African District (o#ncils Ordinance African /odel ,aw on *afety in $iotechnology African Union BAUC African Union (ommission W <erman Federal /inistry for +conomic (oo%eration and Develo%ment
BAU(6$/HC African 1ildlife Fo#ndation BA1FC Agenda Agrarian sector and the environment (ommon ,aw in environmental management legal organisation organic integration reg#latory %arameter system dysf#nction Agric#lt#ral $iotechnology *#%%ort Programme BA$*PIIC Agric#lt#ral Finance (or%oration agric#lt#re Agric#lt#re Act AID* vaccine $l#ert 9%t%ri S $nother v Bhe "ini&ter ,or Finance S Other& Alexander) Professor ,ewis /. Algeria Algiers (onvention $nglo!1on%egian Fi&herie& Ca&e Angola Animal Diseases Act Anti>#ities and /on#ments Act Ara!#ko *okoke Argentina Armed Forces Act A*A.+(A. -ee
al&o Association for *trengthening Agric#lt#ral .esearch in +astern and (entral Africa BA*A.+(AC Asia6Africa ,egal (ons#ltative (ommittee Association for *trengthening Agric#lt#ral .esearch in +astern and (entral Africa BA*A.+(AC Atkinson) ,ord $ttorney General v .Q$. R%arrie& Ltd A#stria) .e%#!lic of . I 5a minor7 v 8 5'(((7
$amako (onvention on $an of the Im%ort Internal Teaching Use Only '&: into Africa and the (ontrol of 9aDardo#s 1astes within Africa 6 $am!#ri (ement $angladesh +nvironmental ,awyers Association B$+,AC $arth) (hief G#stice $asel (onvention on the (ontrol of Trans!o#ndary /ovements of 9aDardo#s 1astes and their Dis%osal $each management #nits B$/UsC $ei?ing Amendment 4 . -ee al&o /ontreal Protocol $enefit6sharing reg#lations $enin !io6%ros%ecting
!iodiversity BmeaningC $iological Oxygen Demand B$ODC $iomass energy $iosafety $ill $iosafety (learing 9o#se B$(9C $iosafety Protocol $iosciences +astern and (entral Africa B$ecAC $iotechnology BmeaningC research develo%ment $oard of the 2ational +nvironment Tr#st F#nd $onn <#idelines $onn <#idelines on Access to <enetic .eso#rces and Fair and +>#ita!le *haring of the $enefits Arising o#t of their Utilisation. -ee al&o $onn <#idelines Iot&wana $randl) +rnst $raDil $ritain -ee al&o United 0ingdom $romochloromethane B$(/C $r#ndtland) <ro 9arlem $r#ndtland B(ommissionC .e%ort -7. -ee al&o .e%ort of the 1orld (ommission on +nvironment and Develo%ment $r#ndtland (ommission
$#ngert) 9artwin $#rkina Faso $#r#ndi C Cam#ridge /ater Company v Ea&tern Co%ntie& Leather plc (ameroon (anada (anada6Ontario Agreement .es%ecting <reat ,akes 1ater I#ality (anadian +nvironmental Assessment Act " (anadian International Develo%ment Agency B(IDAC (a%e Town (onference on an African Process for the Develo%ment and Protection of the (oastal and /arine +nvironment (a%e Town Declaration (a%e Ferde (artagena Protocol on $iosafety (assava research (atchment Area Advisory (ommittees B(AA(sC (atholic *ecretariat (entral Africa .e%#!lic (entral $ank of 0enya BAmendmentC Act) -::: &::. -ee al&o Donde $ill (entral Forest *%ine B(F*C M/alaysiaN (entre for Advanced *t#dies in +nvironmental ,aw and Policy
B(A*+,APC (entre for .esearch in +nvironmental Internal Teaching Use Only '&& +d#cation and ,aw B(.++,C (ernea) /ichael certiorari (herangani MForestN (herangani 9ills (hief8s A#thority Act (hief (onservator of Forests (hief 2ative (ommissioner (hildren8s Act &7': (hina) Peo%le8s .e%#!lic of " (hlorofl#orocar!on B(F(C 43 Chri&topher "tikila v the $ttorney General (hy#l# MForestN (hy#l# 9ills (IT+*. -ee (onvention on International Trade in +ndangered *%ecies (ivil Proced#re Act (ivil Proced#re .#les (lean Develo%ment /echanism (lean 1ater Act MU*N (limate (hange (onvention (oo%eration in (om!ating /arine Poll#tion in (ases of +mergency in the +ast African .egion (oordinating (ommittee of the ODone ,ayer B((O,C
(oastal A>#ac#lt#re ,td. coastal environment national interest %oll#tion !y shi%s (offee Act (offee $oard of 0enya (O/+*A. -ee (ommon /arket for +astern and *o#thern Africa (ommissioner for /ines and <eology (ommissioner of ,ands Commi&&ioner o, Land& S $nother v Coa&tal $:%ac%lt%re Ltd. (ommission on +nvironmental ,aw B(+,C (ommission on ,imit of (ontinental *helf (ommission on *#staina!le Develo%ment B(*DC (ommon ,aw ca#se of action ca#ses of action emerging environmental rights environmental management environmental law =?#dicial review= %rocess remedies (ommon /arket for +astern and *o#thern Africa B(O/+*AC (omm#nal Pro%erty .eso#rces B(P.sC (omm#nity Forest Association (omm#nity 1ildlife *ervice De%artment (omoros
(om%anies Act (onference for the (odification of International ,aw (ongo M$raDDavilleN (onstit#tional Act M(anadaN (ons#ltative <ro#% on International Agric#lt#ral .esearch B(<IA.C (ontem%t of co#rt (ontinental *helf Act (onvention (oncerning the Protection of the 1orld (#lt#ral and 2at#ral 9eritage (onvention for (oo%eration in the Protection and Develo%ment of the /arine and (oastal +nvironment of the 1est and (entral African .egion (onvention for the (onservation) /anagement and Develo%ment of the /arine and (oastal +nvironment of the +astern Africa .egion (onvention for the +sta!lishment of the ,ake Fictoria Fisheries Organisation -ee al&o ,FFO (onvention (onvention for the Preservation of 1ild Animals) $irds and Fish in Africa Internal Teaching Use Only '&-ee al&o ,ondon (onvention (onvention for the Protection) /anagement and Develo%ment of the /arine and (oastal +nvironment
of the +astern African .egion 35 (onvention on $iological Diversity B($DC (onvention on Desertification (onvention on Fishing and (onservation of ,iving .eso#rces of the 9igh *eas (onvention on International Trade in +ndangered *%ecies B(IT+*C) (onvention on /igratory *%ecies B(/*C (onvention on Poll#tion and Use of Trans!o#ndary 1aterco#rses and International ,akes (onvention on .elating to Intervention on the 9igh *eas in (ases of Oil Poll#tion (as#alties (onvention on the (onservation and /anagement of Fishery .eso#rces in the *o#th6+ast Atlantic Ocean (onvention on the (onservation of /igratory *%ecies of 1ild Animals (onvention on the (ontrol of Trans!o#ndary /ovement of 9aDardo#s 1astes. -ee al&o $asel (onvention (onvention on the ,aw of 2on6 2avigational Uses of International 1aterco#rses (onvention on the Prevention of /arine Poll#tion !y D#m%ing of 1astes and Other /atter (onvention on the Protection of the
+nvironment (onvention on the Protection of the Underwater (#lt#ral 9eritage (onvention on 1etlands of International Im%ortance) es%ecially as 1aterfowl 9a!itat -ee al&o .amsar (onvention (o%enhagen Amendment. -ee al&o /ontreal Protocol (ornell University Corp%& Chri& ti (oteDTvoire (otton Act cotton research (o#rt of A%%eal for +astern Africa (o#rt of G#stice of +ast Africa criminal law (ro% Prod#ction and ,ivestock Act (rown ,ands Ordinance of &7:(rown ,ands Ordinance of &7&3 D Da!!s) (or!!ert Dairy Ind#stry Act damages Danforth (enter) *t. ,o#is Dasmann) .0F declarations B?#dicialC declaratory ?#dgment Denning) ,ord De%artment for International Develo%ment
BU0C De%artment of /ines and <eology De%artment of .eso#rce *#rveys and .emote *ensing BD.*.*C &7& De%artment of Feterinary *ervices BDF*C =Develo%ment and #se of ,and BPlanningC .eg#lation of &7'&= disaster management disaster %re%aredness District Agric#lt#re (ommittee District +nvironment Action Plans BD+APsC District +nvironmental (ommittee BD+(C District +nvironmental Officers BD+OsC District ,iaison (ommittees. -ee District Internal Teaching Use Only '&4 Physical Planning ,iaison (ommittee District Physical Planning ,iaison (ommittee District 1ater $oards D?i!o#ti Dominion Farms ,td DondeAct Donde $ill. -ee (entral $ank of 0enya BAmendmentC Act 8onogh%e v -teven&on Draft Agreement on the 2ile .iver $asin (oo%erative Framework Draft International (ovenant on +nvironment and Develo%ment Draft /ining $ill
Draft /ining Policy Draft 2ational $iosafety $ill -:: 8ra,t 9eg%lation& and G%ideline& ,or Iio&a,ety in Iiotechnology ,or Kenya Draft 1ildlife Policy D. (ongo 8r "ohi%ddin Faroo:%e v Ianglade&h D#!lin *tatement
E
+ast Africa a>#atic ecosystems (oo%eration in +nvironmental /anagement (ommon ,aw contem%orary environmental law environmental iss#es environmental law environmental %ro!lems environmental reso#rces legacy of national environment laws terrestrial ecosystems +ast Africa B9igh (ommissionC Orders in (o#ncil +ast Africa B,andsC Order6in6(o#ncil +ast African (o6o%eration +ast African (ommon *ervices Organisation Agreements +ast African (omm#nity
!iosafety (#stoms Union Protocol environmental agreements environmental conventions Goint +conomic (o#ncil +ast African (omm#nity B+A(C +ast African (o#rt of G#stice +ast African (#rrency $oard +ast African (#stoms Union +ast African <overnor8s (onference +ast African Income Tax $oard +ast Africa ,egislative Assem!ly B+A,AC +ast African Protectorate +(APAPA +(O1A* +gy%t +IA <#idelines for Trans!o#ndary +cosystems Eichhornia cra&ippe& Bwater hyacinthsC Ekapa +lectricity Act MU0N &:& +lectricity .eg#latory $oard B+.$C +lectric Power Act +liot) *ir (harles +l1ak +/(A -ee al&o +nvironmental /anagement and (oordination Act +/(A $ill +/ (omm#nications
eminent domain) conce%t of +nergy Act +nergy .eg#latory (ommission +nergy reso#rces environmental re>#irements Internal Teaching Use Only '&5 +nergy sector disaster %re%aredness environmental re>#irements +nglish (hannel +nvironment BmeaningC Environment $gency 5,ormerly 1ational 9iver& $%thority7 v Empre&& Car Co. 5$#ertillery7 Ltd 5GDD)7 +nvironmental BIm%act Assessment and A#ditC .eg#lations +nvironmental Assessment Act M(anadaN +nvironmental Assessment and .eview Process B+A.PC 6 (anada +nvironmental a#dit +nvironmental A#dit and +nvironmental /onitoring +nvironmental conservation +nvironmental +asement Orders +nvironmental Im%act Assessment B+IAC +nvironmental Im%act Assessment B-::&C +nvironmental law and energy law and %hysical %lanning law !ackgro#nd !asic %rinci%les
(anadian (onstit#tion conce%ts constit#tional entrenchment constit#tional %rovisions cor%orate lia!ility cost criminal law and dis%#te resol#tion !odies +ast Africa enforcement enforcement ca%acity enforcement challenges environmental offences environment management 5 federal ?#risdiction Federal .e%#!lic of 2igeria framework law f#nction f#nctional law general %rinci%les instit#tional mechanisms international criminal law international waterco#rses 0enya land #se %lanning ,aw of the *ea legal evol#tion /alaysia marine environment %olitical feasi!ility
%reca#tionary %rinci%le %rovincial ?#risdictions sco%e sectoral law *o#th Africa str#ct#re TanDania treaty law Uganda United *tates (onstit#tion wildlife law and +nvironmental ,iaison Units B+,UsC +nvironmental management agrarian sector and to#rism coastal environment com%liance mechanism conservation instit#tions conservation mechanism conservation orders decentralisation of management economic iss#es economic %olicy instr#ments +/(A instit#tions enforcement ca%acity Internal Teaching Use Only '&3 environmental easements forest management forestry law and in 0enya
instit#tional arrangements instit#tional framework international as%ects land ten#re management standards marine environment mechanism %olitical economy %rotection mechanism %#!lic %artici%ation reg#latory instit#tions rent seeking restoration orders s#staina!ility waste management water reso#rces +nvironmental /anagement and (oordination B(onservation of $iological Diversity and .eso#rces) Access to <enetic .eso#rces and $enefit *haringC .eg#lations +nvironmental /anagement and (oordination B(ontrolled *#!stancesC .eg#lations +nvironmental /anagement and (oordination B1aste /anagementC .eg#lations +nvironmental /anagement and (oordination B1ater I#alityC .eg#lations
+nvironmental /anagement and (oordination Act B+/(AC organisational framework overview Technical Advisory (ommittee &3: environmental monitoring &'" environmental offences & +nvironmental Offences (ommittee &4-6 &45.&4' +nvironmental %reservation & +nvironmental Protection Act B+PAC 6 United *tates -3 +nvironmental Protection Agency B+PAC &-+nvironmental Protection Agency M<hanaN &--.&4 +nvironmental Protection Agency Act M<hanaN &: +nvironmental Protection and Poll#tion (ontrol Act MHam!iaN &: Environmental rotection and -%&taina#le 8evelopment: Legal rinciple& and 9ecommendation& A +nvironmental %rotection !onds 4'3 +nvironmental Protection (o#ncil M<hanaN +nvironmental I#ality Act M/alaysiaN +nvironmental .estoration Orders+nvironmental .isk /anagement B+.AC +nvironment M(anadaN
+nvironment (onservation Act M*o#th AfricaN +nvironment Im%act *tatement B+I*C +>#atorial <#inea +riksen)*.9. +ritrea +rnst K Jo#ng +thio%ia +thio%ian Proclamation +#ro%ean (o#ncils +vidence Act +xcl#sive +conomic Hone B++HC +xcl#sive Pros%ecting .ights +xtraordinary /eeting of the African /inisterial (o#ncil for *cience and Internal Teaching Use Only '&' Technology
F
Factories Act FAO. -ee Food and Agric#lt#re Organisation Federal +nvironmental Agency Decree M2igeriaN Federal +nvironmental Assessment and .eview Office M(anadaN Federal Office of the +nvironment MA#striaN Feeney Amendment FertiliDers and Animal Foodst#ffs Act Fi!re .esearch *tation. -ee 0A.I Fi!re .esearch *tation
Fisheries Fisheries Act Fi&herie& re&o%rce& Folger, Frank Food and Agric#lt#re Organisation BFAOC Forest Act &&")-:" Forest /anagement and (onservation F#nd Forest management comm#nity %artici%ation legal enforcement legislation Forests Act Formosa $ay. -ee Ungwana $ay Fowler France
9
<a!on <am!ia <ame BAmendmentC Ordinance <ame Ordinance <ame Policy (ommittee Gammon v $G ,or 6ong Kong 5GD)@7 Gathoni v 9ep%#lic <edi .#ins <enencor <enetically /odified Organisms B</OsC <enetic reso#rces access access law
+/(Aand intellect#al %ro%erty %rotection international law ownershi% <eneva (onvention on Territorial *ea and the (ontig#o#s Hone <ermany) Federal .e%#!lic of << $ill <hana Giella v Ca&&man Irown <ishwati forest reserve <lo!al (ons#ltation on *afe 1ater and *anitation <lo!al (onvention on the Prevention of /arine Poll#tion !y D#m%ing of 1astes and Other /atter <lo!al Positioning *ystem B<P*C <lo!al Programme of Action for the Protection of the /arine +nvironment from ,and6$ased Activities Go%riet v Enion o, o&t O,,ice /orker& <ray) /r G#stice <reat $arrier .eef <reat $ritain. -ee $ritain <reen $elt /ovement <reen%eace A#stralia ,td Greenpeace $%&tralia v 9ed#ank ower Company ty Ltd S -ingleton Greenwatch v $.G. S 1E"$ CG
<ro#% of +x%erts on *cientir;; 6 /arine Poll#tion B<+( <#inea <#inea $issa# Internal Teaching Use Only '&
0
9ag#e (onference for the (odification of International ,aw 9aller Park 9amilton) /r Games 9elsinki .#les 9erriman 9ides) *kin and ,eather Trade Act 9igh (o#ncil for +nvironmental Protection MIranN 9ighlands $oard 9oma 9ills 6%ngary v -lovakia. -ee I(G (ase (oncerning <a!cikovo62agymaros Pro?ect 9#tton),ord 9ydro!romofl#orocar!ons B9$F(sC
I
Iceland I(G (ase (oncerning <a!cikovo6 2agymaros Pro?ect I/(O. -ee Intergovernmental /aritime (ons#ltative Organisation Inde%endent Power Prod#cers BIPPsC India Indian Co%ncil ,or Enviro!Legal $ction v
Enion o, India Indian Ocean (ommission Indian Ocean +x%edition Indian Ocean Fisheries (ommission Indian Ocean T#na (ommission BIOT(C Individ#ally Transfera!le I#otas BITIC Indo6Pacific Fisheries (o#ncil Ind#strial %oll#tion Ind#strial Pro%erty Act in?#nction Insect .esistant /aiDe for Africa BI./AC %ro?ect Instit#te for Develo%ment *t#dies BID*C Instit#te for ,aw and +nvironmental <overnance BI,+<C instit#tion instit#tional framework intellect#al %ro%erty %rotection BIPPC intellect#al %ro%erty rights BIP.sC inter6generational e>#ity Inter6<overnmental A#thority on Develo%ment BI<ADC Inter6governmental (ommittee for the (artagena Protocol on $iosafety BI((PC Inter6<overnmental /aritime (ons#ltative Organisation BI/(OC Inter6governmental Panel on (limate (hange BIP((C Inter6/inisterial (ommittee on the
+nvironment BI/(+C Intergovernmental /aritime (ons#ltative Organisation BI/OC. -ee al&o International /aritime Organisation Intermediary $iotechnology *ervice BI$*C International Agric#lt#ral .esearch (entre BIA.(C International (entre of Insect Physiology and +cology BI(IP+C International (onference on 1ater and the +nvironment International (onvention for .eg#lating of 1haling International (onvention for the Prevention of Poll#tion from *hi%s -ee al&o /A.PO, International (onvention for the Prevention of Poll#tion of the *ea !y Oil International (onvention for the Protection of 2ew Farieties of Plants BUPOFC International (onvention on (ivil ,ia!ility for Oil Poll#tion Damage International (onvention .elating to Internal Teaching Use Only '&" Intervention on the 9igh *eas in cases of Oil Poll#tion (as#alties International (o#ncil for $ird Preservation BI($PC International (o#ncil of +nvironmental
,awBI(+,C International (o#rt of G#stice International ,a!o#r Organisation BI,OC International ,aw Association International ,aw (ommission International ,ivestock .esearch Instit#te BI,.IC International /aiDe and 1heat Im%rovement (entre B(I//JTC International /aritime (onference International /aritime Organisation International /ineralogical Association International *ervice for 2ational Agric#lt#re .esearch BI*2A.C International Treaty on Plant <enetic .eso#rces for Food and Agric#lt#re BITP<.FAC International Union for the (onservation of 2at#re and 2at#ral .eso#rces -3) 447. -ee al&o IU(2 International 1aterco#rses (onvention 4&464&5. -ee al&o United 2ations Framework (onvention on the ,aw of the 2on6navigational Uses of International 1aterco#rses International 1aterfowl .esearch $#rea# Intervention on the 9igh *eas in (ases of /arine Poll#tion Iran) Islamic .e%#!lic of Ireland
Irrigation Act Isahakia) Dr. /ohmmed I&aka /ainaina S $nother v "%rito wa Indagara S Other& Ivory (oast
"
Gackson) *enator 9enry Ga%an Gohannes!#rg Plan of Im%lementation Kohn eter "%reithi and Other& v Bhe $ttorney General and Other& G#dicial review G#dicial *ervice (ommission G#ma K%&t v "arinette Co%nty BU*AC
K
0a?iado (o#nty (o#ncil Ka3ing B%#ek v Ekran Ihd S Other& 0akamega MForestN 0A/. -ee 0enya Association of /an#fact#rers 0amanda) /aina 0arekeDi 0A.I Fi!re .esearch *tation Ka&iga% 9anching 58$7 Ltd v Kihara S ? Other& 0en<en 4 7. -ee al&o 0enya +lectricity <enerating (om%any 0enya coastal environment
(ommon ,aw ?#risdiction contig#o#s Done (ontinental *helf District +nvironmental (ommittees BD+(sC Draft (onstit#tion of 0enya Draft ,and Policy Draft /ining $ill Draft /ining Policy Draft 1ildlife Policy electric %ower #ndertakings +/(A$ill energy law energy reso#rces laws Internal Teaching Use Only '&7 environmental a#dit environmental conservation mechanism environmental management environmental management instit#tions =+nvironmental /anagement Policy= environmental monitoring environmental reg#lations +xcl#sive +conomic Hone foreign vessels forest degradation forest management forest reso#rces framework environmental law <ame Policy (ommittee genetic instit#tional framework
genetic reso#rces </O cro% research </O research %ortfolio gro#% land ownershi% instit#tional environmental management intellect#al %ro%erty %rotection land rights land ten#re land #se law ,ocal 1ater A#thorities marine environment mineral reso#rces mining ind#stry mining sector national !iosafety framework 2ational +nvironment Action Plan (ommittee 2ational +nvironmental Advisory (ommittee %rivate land ownershi% Provincial +nvironmental (ommittees BP+(sC %#!lic health laws %#!lic land ownershi% reso#rce management .iver $asin Develo%ment A#thorities sanitation management small6scale farming solid waste management Technical Advisory (ommittee
Territorial 1aters Traditional environmental management instit#tions U2+P /ission water management 1ater Policy water reforms wetlands management wildlife legislation 0enya6Uganda .ailway 0enya Agric#lt#ral .esearch Instit#te B0A.IC 0enya Alliance of .esidents Associations 0enya Association of /an#fact#rers B0A/C 0enya $ankers Association Kenya Ianker& $&&ociation v "ini&ter ,or Finance S $nothe 0enya $#rea# of *tandards B0+$*C 4" ) 0enya +lectricity <enerating (om%any B0en<enC 0enya +nergy 2on6<overnmental Organisation B0+2<OC 0enya Fisheries Policy 0enya Forestry Association 0enya Forestry .esearch Instit#te B0+F.IC 0enya Forest *ervice B0F*C 0enya Ind#strial Pro%erty Instit#te B0IPIC 0enya ,and (onservation Tr#st 0enya ,egal Framework for *afety in
$iotechnology 0enya ,egal Framework on $iosafety 0enya /arine and Fisheries .esearch Instit#te B0+/F.IC 0enya /aritime A#thority Order 0enya /eat (ommission Act 0enya /edical .esearch Instit#te B0+/.IC Internal Teaching Use Only '-: 0enya 2ational Parks Organisation B02POC 0enya 2avy 0enya 2avy O%erations 0enyan (onstit#tion 0enya Pi%eline (om%any B0P(C 0enya Plant 9ealth Ins%ectorate *ervice B0+P9I*C 0enya Ports A#thority 0enya Power and ,ighting (om%any B0P,(C 0enya Try%anosomiasis .esearch Instit#te B0+T.IC 0enyatta MGomoN 0enya 1ildlife *ervice B01*C 0hamasi)9on. 0imar#) /r. 9. <. 0iserian .iver 0iserianTown 0itale .iverine forest 0och Ind#stries 0oech) Prof. /ichael 0orir
0P,(. -ee 0enya Power and ,ighting (om%any 0#!o) /r. $. P. 0yoto Protocol
L
,a Farge +cosystems ,ake$aringo ,ake$ogoria ,ake(hala ,ake (onstance ,ake +lmentaita ,ake Gi%e ,ake 2aivasha ,ake 2ak#r# ,ake .#dolf. -ee ,ake T#rkana ,akeT#rkana ,ake Fictoria ,ake Fictoria $asin (ommission *ecretariat ,ake Fictoria $asin ,ake Fictoria $asin (ommission ,ake Fictoria Fisheries Organisation B,FFOC ,ake Fictoria *o#th 1ater *ervices $oard ,and B<ro#%C .e%resentative Act ,and Ac>#isition Act ,and Planning Act ,and .eg#lations of &"7 Law o, the -ea Convention ,aw .eform (ommission Lawrence 1ginyo Kari%ki v Co%nty Co%ncil o,
Kiam#% ,aw *ociety of 0enya Law -ociety o, Kenya v Commi&&ioner o, Land& S Other& ,eag#e of 2ations Leatch v 1ational ark& and /ildli,e -ervice and -hoalhaven City Co%ncil ,eo%old) Aldo ,esotho ,i!eria ,i!ya ,ist of 1etlands of International Im%ortance ,iving modified organisms B,/OsC ,ocal <overnment Act ,ocal 2ative (o#ncils B,2(sC ,ondon Amendment. -ee al&o /ontreal Protocol ,ondon (onvention -ee al&o (onvention for the Preservation of 1ild Animals) $irds and Fish in Africa ,ondon D#m%ing (onvention ,ong6.ange Planning Unit ,#saka Agreement -ee al&o ,#saka Agreement on (oo%erative +nforcement O%erations Directed at Illegal Trade in 1ild Internal Teaching Use Only '-& Fa#na and Flora
,#saka Agreement on (oo%erative +nforcement O%erations Directed at Illegal Trade in 1ild Fa#na and Flora ,#tta) /r. $enna ,F$ Protocol. -ee al&o Protocol for *#staina!le Develo%ment of ,ake Fictoria $asin ,FFO (onvention. -ee al&o (onvention for the +sta!lishment of the ,ake Fictoria Fisheries Organisation
M
/aasai/ara /aasai /ara <ame .eserve /aathai) Prof. 1angari /acintyre) Andrew /adagascar "aina Kamanda and $nother v 1airo#i City Co%ncil S $nother /aiDe research /akawa) +rnest /alawi /alawi 2ational +nvironment (ommission /alaysia /ali /alta mandam%& /a%#to (onvention on +nvironment and 2at#ral .eso#rces /ara6*erengeti ecosystem
/ara .iver /arine environment delimitation marine fisheries /aritime Hones Act /A.PO, -ee al&o Intergovernmental /aritime (ons#ltative Organisation /A.PO, (onvention /arsa!it MForestN material transfer agreements B/TAC /ats#da) /ari /a# +scar%ment /a# Forest "#ari!ya!"%rathami clan /c(affrey) *te%hen /ensah) ,arsey men& rea /erchant *hi%%ing Act /erchant *hi%%ing $ill methyl !romide B(94$rC /exico /igratory $ill Treaty Act MU*N /illenni#m Develo%ment <oals /illenni#m *eed $ank %ro?ect /inamata incident mineral agreements mineral contracts. -ee mineral agreements /ineral 0ing Falley /ineral reso#rces
access rights artisanal mining +nvironmental Im%act Assessment +xcl#sive Pros%ecting .ights ex%loitation ind#strialisation legal framework ownershi% %etrole#m #ndertakings small6scale mining /inerals) conce%t of /inerals Advisory $oard /ines and /inerals Act -::' mining /ining B*afetyC .eg#lations /ining Act environmental considerations /odel ,aw for the .ecognition and Protection of the .ights of ,ocal (omm#nities) Farmers and $reeders Internal Teaching Use Only '-/oi MDanielN /om!asa6Uganda 9ighway /om!asa Pi%eline $oard /om!asa Pi%eline $oard Act /ontreal Protocol on *#!stances that De%lete the ODone ,ayer /orocco /o#nt +lgon /o#nt 0enya
/o#nt 0enya Forest .eserve /o#nt 0iliman?aro /o#nt 0#lal /oDam!i>#e /oDam!i>#e $elt /rima 9ills /#go)..F. /#hoho) <eorge /#i $asin /#ki!ira gold mines /#k#ra forest reserve /#ltilateral environment agreements B/+AsC /#ltilateral +nvironmental Agreements B/+AsC /#tara h#nting reserve "v K%&i and "v -hakwe /wea Te!ere
N
2airo!i (ity (o#ncil 2airo!i (ity 1ater and *ewerage (om%any ,imited 2airo!i (onvention 2airo!i .iver 2amanga 9ills 2ami!ia 2atal Fresh Prod#ce <rowers Association 1atal Fre&h rod%ce Grower& $&&ociation v $gro&erve 5 ty7 Ltd 2ational Agric#lt#ral .esearch *ystems
B2A.*C 2ational $iosafety Act 2ational $iosafety (ommittee B2$(sC 2ational (o#ncil for *cience and Technology B2(*TC 2ational (o#ncil for the Protection of the +nvironment M$raDilN 2ational (o#ncil of (h#rches in 0enya B2((0C 2ational +nvironment Act MUgandaN 2ational +nvironment Action Plan B2+APC 2ational +nvironment Action Plan B2+APC
MUgandaN
2ational +nvironment Action Plan (ommittee 2ational +nvironmental (o#ncil MHam!iaN 2ational +nvironmental /anagement Act MTanDaniaN 2ational +nvironmental /anagement A#thority MUgandaN 2ational +nvironmental Policy Act B2+PAC 2ational +nvironmental Protection Agency MUnited *tatesN 2ational +nvironmental .estoration F#nd 2ational +nvironment $ill 2ational +nvironment (ommission M/alawiN 2ational +nvironment (o#ncil 2ational +nvironment +nhancement and /anagement $ill B2++/AC
2ational +nvironment /anagement A#thority B2+/AC 2ational +nvironment /anagement A#thority MUgandaN 2ational +nvironment Policy Act B2+PAC MUnited *tatesN 2ational +nvironment .estoration F#nd 2ational +nvironment *ecretariat B2+*C 2ational +nvironment Tri!#nal B2+TC 2ational +nvironment Tri!#nal .#les of Proced#re 2ational +nvironment Tr#st F#nd Internal Teaching Use Only '-4 2ational <rid (om%any %lc 2ational Irrigation $oard 2ational ,and Policy B2,PC 2ational ,iaison (ommittees. -ee 2ational Physical Planning ,iaison (ommittee 2ational /#se#ms of 0enya B2/0C 2ational Parks and the Town and (o#ntry Planning Act MU0N 2ational Parks and 1ildlife Act MA#straliaN 2ational Parks $oard of Tr#stees 2ational Physical Plan M/alaysiaN 2ational Physical Planning ,iaison (ommittee 2ational Policy on 1ater .eso#rces /anagement and Develo%ment 2ational 1ater $oard 2ational 1ater (onservation and Pi%eline
(or%oration B21(P(C 2ational 1ater /aster Plan of &7 5 2ational 1ater *ervices *trategy 2ational 1ildlife A#thority 2ative Tr#st $oard 2at#re (onservation Act MIcelandN negligence 2+/A6Uganda 2+T. -ee 2ational +nvironment Tri!#nal 2ew Delhi *tatement 2ew Partnershi% for Africa8s Develo%ment B2+PADC 2ew Town Act MU0N 2gong 9ills 2g#r#mani@,oita 1icholl& v 8irector General o, 1ational ark& and /ildli,e 2iger 2igeria) Federal .e%#!lic of 2igerian Federal +nvironmental Protection Agency 2ile .iver $asin 2ile .iver $asin (oo%erative Framework 2orth) Do#glas 2orthern M<ameN .eserve 1orth -ea Continental -hel, Ca&e& 2orway n#isance 2yam!ene MForestN 2yam#) 9on. G#stice
2yando .iver 2Doia .iver
3
Ocean thermal conversion BOT+(C Ofori) (hief 2ana >wang8) Prof. G. $. Okidi) Professor (harles O. Okoth6Ogendo) Professor OlDonyo2yiro Ole#m <as ,eak (ase Omieri Omino) 9on. Goa! Omondi) (aroli Ongeri) Professor *amson Opo&a v Factor an O%tional Protocol .elating to *ettlement of Dis%#tes Orao) Peter 0. Organic +nvironmental ,aw of .wanda Organisation of African Unity BOAUC -ee al&o African Union Os#ndwa) 9on. 1ycliffe Otieno) G#stice Onyango O%r Common F%t%re Ow#or) <. O. O<,ord Engli&h 8ictionary Oxford University Oy#gi P pacta &%nt &ervanda, doctrine of
pacta tertii& nee nacent nee pro&%nt, doctrine of Pakistan Internal Teaching Use Only '-5 ark Jiew -hopping $rcade Limited v Charle& ". KangCethe S Other& Parliamentary (ommittee on Agric#lt#re) ,ands and 2at#ral .eso#rces Partnershi% for the Develo%ment of +nvironmental ,aw and Instit#tions in Africa BPAD+,IAC Patents Pem!a (hannel Pem!a (hannel Agreement Pem!a Island Penal (ode Permanent Presidential (ommission on *oil (onservation and Afforestation BPP(*(AC Pest (ontrol Prod#cts $oard BP(P$C eter K. /awer% v 9ep%#lic eter Kin%thia "waniki S ' Other& v eter 13%g%na Gicheha S 0 Other& Petrole#m B+x%loration and Prod#ctionC Act Petrole#m B+x%loration and Prod#ctionC .#les Petrole#m Act Petrole#m *haring (ontract BP*(C Phili%%ines) .e%#!lic of
Physical Planning Act and environmental law environmental considerations environmental indicator f#nctional instit#tions growth considerations social indicators Plant !reeders8 rights BP$.sC Plant (ontrol Prod#cts Act Plant <enetic .eso#rces BP<.sC Plant Protection Act %lant variety %rotection Plant Fariety Protection Office BPFPOC Poll#ter Pays Princi%le reca%tionary rinciple ro,. eter $nyangC 1yongCo and D Other& ver&%& $ttorney General o, Kenya, Clerk o, the Ea&t $,rica Legi&lative $&&em#ly and -ecretary General o, the Ea&t $,rican Comm%nity Programme for $iosafety *ystems BP$*C Pro?ect +xternal +val#ation (ommittee BP++(C Pro?ect /A. P.OT+(T Act Protocol for *#staina!le Develo%ment of ,ake Fictoria $asin -ee al&o ,F$ Protocol Protocol on +nvironment and 2at#ral
.eso#rces Provincial +nvironmental (ommittees BP+(sC P#!lic (om%laints (ommittee BP((C %#!lic health P#!lic 9ealth Act %#!lic law %#!lic n#isance P#!lic Proc#rement and Dis%osal Act Pyrethr#m $oard of 0enya R 9. v 9o#ert $2emia and Or& .A$+*A Initiative .amsar (onvention -ee al&o (onvention on 1etlands of International Im%ortanceE -ee al&o (onvention on 1etlands of International Im%ortance es%ecially as 1aterfowl 9a!itat .amsar ,ist .an?a .$<60ew. -ee .oyal $otanic <ardens .ed!ank Power (om%any .egional A%%roach to $iotechnology and Internal Teaching Use Only '-3 $iosafety Policy in +astern and *o#thern Africa B.A$+*AC. -ee al&o .A$+*A Initiative .egional *eas Programme .egistered ,and Act
.egister of Treaties and Other Agreements in the Field of +nvironment .egistration of Doc#ments Act .egistration of Titles Act =.eg#lations for the Prevention of Poll#tion !y Oil= .eg#lation of Access to $iological .eso#rces .eg#lation of 1ages and (onditions of +m%loyment Act =.eg#lations for the Prevention of Poll#tion !y Oil= .eg#lations and <#idelines to the +nvironment /anagement and (oordination Act .eid) ,ord .ent .estriction Tri!#nals .e%ort of the (ommission of In>#iry into Illegal@Irreg#lar Allocation of P#!lic ,and .e%ort of the +ast Africa .oyal (ommission of &7346&733 .e%ort of the 1orld (ommission on +nvironment and Develo%ment 9ep%#lic v "ini&ter o, In,ormation S Iroadca&ting and $hmed Ka#ril e< parte Ea&t $,rica Belevi&ion 1etwork Limited .eso#rces (onflict Instit#te .evised African (onvention for the
(onservation of 2at#re and 2at#ral .eso#rces .ingeraG .io (onference -ee al&o United 2ations (onference on +nvironment and Develo%ment BU2(+DC .io Declaration .io +arth s#mmit. -ee al&o United 2ations (onference on +nvironment and Develo%ment BU2(+DC .iver $asin Develo%ment A#thorities B.$DAsC .iver 2yando .iver 2Doia 9odger& "%ema 12ioka and Other& v Biomin Kenya Limited .oyal $otanic <ardens at 0ew B.$<60ewC .oyal 2ational Parks of 0enya Ordinance .#ral +lectrification A#thority .#ri 9ills . v -ecretary o, -tate ,or Brade and Ind%&try e< parte 8%ddridge .wanda .wanda +nvironment /anagement A#thority B.+/AC 9yland& v Fletcher S *am!#) 9on. Gohn -am Odera and other& v Bhe 1ational
Environmental "anagement $%thority and E" Comm%nication& -am&on Lereya and Irother& v $ttorney General and 1E"$ *ax) Gose%h ,. *chool of ,aw *ea *tar /alindi ,td. -ea -tar "alindi Ltd v. Kenya /ildli,e -ervice *eeds and Plant Farieties Act *eeds for ,ife Pro?ect *enegal sentencing *entencing .eform Act MU*N *erengeti 2ational Park -e&&ional aper 1o. G( o, GDH@ on $,rican -ociali&m and it& $pplication to Internal Teaching Use Only '-' lanning in Kenya -e&&ional aper 1o. 0 o, GDA@ -e&&ional aper 1o. ? o, '((? on Energy *eychelles -hehla Fia v /$ 8$, *him!a 9ills *hoalhaven (ity (o#ncil *ierra (l#! *ierra ,eone *ingleton (o#ncil *isal Ind#stry Act *ociety for the Preservation of the Fa#na of the +m%ire
*omalia *ond#6/iri# *o#th Africa) .e%#!lic of *o#thern M<ameN .eserve *o#thern Indian Ocean Fisheries Agreements B*IOFAC *o#th 1est Indian Ocean Fisheries B*1IOFC *oviet Union *tandards Act *tandards and +nforcement .eview (ommittee &tare deci&i&, doctrine of *tate (or%oration Act *tate (or%orations A%%eals Tri!#nal *tein) G -tem 9eview on the Economic Change *tock and Prod#ce Theft Act *tockholm Declaration strict lia!ility Bhe -t%dy o, Critical Environmental ro#lem& -t%rge& v Iridgeman *#dan *#n Oil (om%any *#%reme (o#rt of *eychelles *#rvey Act s#staina!le develo%ment (ommon ,aw in s#staina!le #tilisation
*waDiland *weet Potato Feathery /ottle Fir#s B*PFF/C sweet %otato research -weet v ar&ley LGDA(M *witDerland * Taita 9ills Tala Falley) 2atal Tana and Athi .ivers Develo%ment A#thority Tana .iver TanDania Taskforce for the .eform of Penal ,aws and Proced#res Taskforce on /aritime ,aw Taveta 9ills Tea Act BE$1 v $.G. and 1E"$ Tea .esearch Fo#ndation Berminalia &pp Territorial 1aters Act Be&co -%permarket& Ltd v 1attra&& LGDA'M Bhe a:%ete 6a#ana Tinderet MForestN Titani#m mining %ro?ect Togo Borrey Canyon Town and (o#ntry Planning Act M/alaysiaN Town Planning Act
Trade ,icensing Act Trade .elated As%ects of Intellect#al Pro%erty .ights BT.IP*C Transfer of Pro%erty Act MIndiaN Transfer of 1ater *ervices .#les -ee al&o 1ater BPlan of Transfer of 1ater *ervicesC .#les of -::3 Treaty for the +sta!lishment of the +ast Internal Teaching Use Only 'African (omm#nity) tres%ass Tr#st ,and Act Tsamenyi T#noi) G#stice U Uganda Uganda 1ildlife *tat#te Ugolo) Gohn Uh#r#Park U2+(+ (onvention. -ee al&o United 2ations +conomic (ommission for +#ro%e8s (onvention on the Protection and Use of Trans!o#ndary 1aterco#rses U2+P -ee al&o United 2ations +nvironment Programme U2FAO. -ee Food and Agric#lt#re Organisation U2 Framework (onvention on (limate
(hange Ungwana $ay United 2ations United 2ations (ommission on *#staina!le Develo%ment United 2ations (ommittee on +conomic) (#lt#ral and *ocial .ights United 2ations (onference on +nvironment and Develo%ment BU2(+DC United 2ations (onference on the 9#man +nvironment BU2(9+C United 2ations (onference on the ,aw of the *ea United 2ations (onvention on the (ontinental *helf United 2ations (onvention on the ,aw of 2on62avigational Uses of International 1aterco#rses United 2ations (onvention on the ,aw of the *ea BU2(,O*C United 2ations (ovenant on +conomic) *ocial and (#lt#ral .ights United 2ations +conomic (ommission for +#ro%e8s (onvention on the Protection and Use of Trans!o#ndary 1aterco#rses -ee al&o U2+(+ (onvention United 2ations +d#cational) *cientific and (#lt#ral Organisation BU2+*(OC
United 2ations +nvironment Programme BU2+PC United 2ations +nvironment Programme <lo!al +nvironment Facility BU2+P<+FC United 2ations Food and Agric#lt#re Organisation. -ee al&o Food and Agric#lt#re Organisation Enited 1ation& Framework Convention on Climate Change 5E1FCCC7 United 2ations Framework (onvention on the ,aw of the 2on62avigational Uses of International 1aterco#rses United 2ations <eneral Assem!ly .esol#tion on Permanent *overeignty over 2at#ral .eso#rces United 2ations /illenni#m Develo%ment <oals United *tates United *tates Agency for International Develo%ment BU*AIDC United *tates +nvironmental Policy Act United *tates *#%reme (o#rt Enited -tate& v Koch Ind%&trie& Enited -tate& v 9iver&ide Iayview 6ome& Inc University of 2airo!i U**. V Internal Teaching Use Only '-" Fienna Ad?#stments Jienna Convention ,or the rotection o, the O2one Layer
Jienna Convention on Law o, Breatie& w 1a!#noha) .o!ert /angari "aathai v 1airo#i City Co%ncil /angari "aathai v Bhe Kenya Bime& "edia Br%&t 1ater %ec#liarity 1ater BPlan of Transfer of 1ater *ervicesC .#les of -::3 1ater Act revised Act 1ater A%%eal $oard B1A$C 1ater A%%ortionment $oard B1A$C 1ater governance. -ee water management 1ater management degradation +/(Aand instit#tional frameworks international norms 1ater Policy -ee al&o 2ational Policy on 1ater .eso#rces /anagement and Develo%ment 1ater %oll#tion 1ater reso#rces 1ater .eso#rces /anagement A#thority B1./AC 1ater .eso#rces Users Associations B1.UAsC 1ater *ervice $oards B1*$sC 1ater *ervice Providers B1*PsC
1ater *ervices .eg#latory $oard B1*.$C 1ater *ervices Tr#st F#nd B1*TFC 1eeramantry) G#dge 1etlands 1etlands management 1etlands International. -ee al&o International 1aterfowl .esearch $#rea# 1etlands management +/(Aand environmental s#staina!ility in 0enya international legal framework legal framework %olicy framework %ro%erty rights and 1etlands of International Im%ortance es%ecially as 1aterfowl 9a!itat. -ee al&o .amsar (onvention 1hite 9ighlands 1ild Animals BT#rtlesC Protection reg#lations 1ild Animals and $irds Protection Act B*eychellesC 1ild Animals Protection Ordinance 1ildlife B(onservation and /anagementC Act 1ildlife (onservation and /anagement De%artment B1(/DC 1ildlife management
and s#staina!le develo%ment comm#nity %artici%ation +/(Aand environmental %rotection %olicy review s#staina!le management 1ildlife Policy 1ise Use of 1etlands 1oodside +nergy 1orld $ank 1orld (harter for 2at#re 1orld (ommission on +nvironment and Develo%ment 1orld (onference on Disaster .ed#ction 1orld (onservation Union -ee IU(2E -ee al&o International Union for the (onservation of 2at#re and 2at#ral .eso#rces BIU(2C Internal Teaching Use Only '-7 1orld 9eritage (onvention =1orld 9eritage ,ist= 1orld /aritime Day 1orld /eteorological Organisation B1/OC 1orld *#mmit on *#staina!le Develo%ment 1orld Trade Organisation B1TOC ? Qaa Jala M.iverN Jala *wam%
J#goslavia B Haire. -ee D. (ongo Ham!ia Him!a!we
APPENDII JAH %&&9 <enyan Press .rticles La/e t&at -as on!e &o#e to 7B9=== ! o!o*%les
Plans to esto e -ate t&-a te* b' )%lla$e s -&o a e +n-%ll%n$ to #o)e o+t of t&e a ea Until three years ago) 0amnarok 2ational .eserve in 0erio Falley was home to more than &3)::: crocodiles. It attracted to#rists) with its famed !ird watching sites. +le%hants >#enched their thirst there. 2ow the lake is slowly !#t s#rely getting consigned to the d#st!in of historyE it8s drying #% fast. *it#ated a%%roximately 4: kilometres north6west of 0a!arnet Town) the 0amnarok reserve is home to ele%hants) !#ffalos) !#sh %igs) and dik diks. $#t the wherea!o#ts of the crocodiles remains #nknown. The once a vi!rant water !ody is now a m#rky gro#nd with !ig cracks. For years the lake has !een a treas#red water so#rce for the local comm#nity and their livestock. It was also the watering %oint for wild animals in the neigh!o#ring .imoi <ame .eserve in 0eiyo District) es%ecially d#ring dry seasons. According to 2ational +nvironmental /anagement A#thority B2emaC) the lake is recogniDed !y the .amsar (onvention as a wetland of international re%#te.
Internal Teaching Use Only '4:
.esidents say the drying #% of the lake is a !ad omen !eca#se the region8s
economic activities gravitate aro#nd cattle kee%ingE the #nrelia!le rainfall cannot s#stain s#!sistence farming in the semi6arid region. O21bo- la/e (o#ncillor He%hania (he%konga of 0a!#tie 1ard where the lake falls #nder says area %astoralists are %ondering over the next water so#rce. =I wonder where I8ll water my cattle now that this lake has event#ally dried #%= /artin (hemalin says. The ox6!ow lake was in the news headlines in /arch -::' when three ad#lt ele%hants got st#ck near its centre as they attem%ted to reach o#t for the receding water to drink. One died fo#r days later while two others were resc#ed !y 01*. 9#man activities and fast dehydration of 0erio .iver) the lake8s main so#rce of water) may have led to its drying #%. $aringo district national management environment officer G#ma /asakha says illegal c#tting of trees had accelerated soil erosion) which ca#sed heavy siltation. =The %oor farming methods in the lake !asin have ca#sed heavy siltation) so the lake co#ld not to hold any water)= he says. $aringo game warden (hristine $oit also says; =/assive environmental degradation res#lting from %oor conservation methods and h#man activities #%stream along the 0erio Falley are to !lame for lake8s siltation.= Indeed) there8s massive and #n!ridled felling of trees to satisfy the h#ge demand for charcoal. From a certain height) one co#ld see smoke !illowing from charcoal !#rning sites that litter the ex%ansive valley. $ags of charcoal for sale are a common sights in the valley roads. Former $aringo co#nty co#ncil clerk Peter 0eitany) who has since !een transferred to T#rkana) !lames the lakes disa%%earance on 0i%tilit <#lley) which #sed
to serve as the lake8s o#tlet. =The o#tlet caved in d#e to soil erosion) so water drained into .iver 0erio) which took away water from the lake.= Plans to restore the lake have !een derailed !y a %rotracted decade6long land dis%#te !etween the co#nty vision. Donors insist that %eo%le living in the reserve m#st move o#t. =The dis%#te disco#raged donors who had shown interest in saving the lake= /r 0eitany said. .esidents whose lands were annexed into the &: km s> reserve want to !e %aid. $#t the co#ncil is rel#ctant to acknowledge their claim to ownershi%) insisting that it8s a gaDetted national reserve. ,ast year) 01* director G#li#s 0i%ngetich visited the area to s%earhead negotiations !etween the fe#ding %arties. The meeting) which was held inside the reserve) was stormy. In a signed memorand#m read o#t !y their gro#% secretary .e#!en (he%konga) residents demanded to know whether the %ro%er %roced#re was followed when the reserve was gaDetted in &7"4. They f#rther went ahead to s%ell o#t the %reconditions they wanted the co#ncil and 01* to meet for them to consider relin>#ishing their lands. To% on the list was amendment of the reserve !o#ndary to red#ce its siDe) alternative settlement and a /emorand#m of Understanding. .es%onding to the statement) /r 0i%ngetich said that the land was not the concern of 01* and that the ma?or interest was the wildlife in the reserve. The director f#rther told to residents that their land was not taken away) !#t only given to the co#ncil as a tr#stee.
=*o there is no reason for claiming com%ensation. 1ho has taken yo#r landL= he asked. 9e directed the co#ncil to act according to the gaDettement to save the reserve from extinction. =/y office has set aside money for the develo%ment of this reserve. 1e shall also mo!ilise for more f#nding for the reserve. $#t all this de%ends on yo#r willingness to coo%erate)= /r 0i%ngetich said.
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9e f#rther challenged them to em#late the exam%le of their neigh!o#rs in .imoi <ame .eserve who) he said) were rea%ing the !enefits of to#rism after giving o#t their land to the co#nty co#ncil of 0eiyo. 2oting that there was ignorance a!o#t the !enefits of to#rism) the director %ledged to s%onsor comm#nity to#rs so that residents co#ld to see for themselves how others living near s#ch reserves !enefited. =/y office will take ': %eo%le from each of the three locations B0a!#tiei) ,awan and 0erio 0a!oskeiC to /aasai /ara and *am!#r# national reserves)= he said. Previo#s co#ncil efforts on conservation of the lake were thwarted. =1e had) for instance) !#ilt ga!ions across the 0i%tilit g#lley) !#t they intentionally removed the wire mesh and #sed it to hang !eehives)= /r 0eitany said. 2ow that the lake has dried #%) its re%erc#ssions are !eing felt. 9#man6wildlife conflict has heightened. And there are re%orts of ele%hants and monkeys attacking %eo%le. In /ay -::') two men were killed !y a rog#e ele%hant.
APPENDII A 3!ont%n+e*4 Conse )at%on

Ne#a bla#es (oo fa # '%el*s on (oll+t%on9 %lle$al lo$$%n$ T ee &a )est%n$ !a+se fo (oo a$ %!+lt+ e9 *e!l%n%n$ -ate )ol+#es
The 2ational +nvironment /anagement A#thority has its work c#t o#t this year. 2ema) as the lead environmental agency on its im%lementation of the 2airo!i .iver $asin Program) has the diffic#lt task of cleaning 2airo!i .iver) which c#rrently chokes with waste. The a#thority8s director6general Dr /##sya /winDi said he will strive to reha!ilitate and manage the 2airo!i river to im%rove environmental >#ality and val#es thro#gh economic and recreational activities. . ea*bas/et 2ema will also !e seeking to contain the indiscriminate felling of trees. In *e%tem!er last year) agric#lt#ral ex%erts and environmentalists warned that the co#ntry8s !read !asket in the 2orth .ift was threatened #nless #rgent meas#res were taken to sto% illegal tree harvesting. 2ema !lames massive logging and clearing of wetlands for %oor agric#lt#ral %rod#ction and declining water vol#mes in the region. =A%art from forest destr#ction) discharge of agro6chemicals from the farms and raw waste materials from ind#stries contri!#te to environmental %oll#tion) which
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is a ma?or concern in the area)= said Uasin <ish#6!ased 2ema official /ichael 0omen. *ince its esta!lishment in -::4) 2ema has set #% %olicy str#ct#res to s#%%ort its o%erations. 2ema8s chair%erson Dr Dorcas Otieno said in the last two years) they have gained the s#%%ort of stakeholders and to la#nch and im%lement their target %rogrammes. Dr Otieno cited the develo%ment of s#!sidiary legislation) which is %ivotal in the
im%lementation of the +nvironmental /anagement and (oordination Act B&777C against a !ackdro% of a fast declining environment) as one of their s#ccesses. Sto( o *e s Under the +/(A) the a#thority is em%owered to work with lead agencies) incl#ding law enforcement ones) to im%lement environmental reg#lations) es%ecially in %rosec#tions and the enforcement of sto% orders. 9owever) the im%lementation of these has faced o%%osition from some other %#!lic agencies) s%ecially on sanitation iss#es. In A#g#st last year) for instance) 2ema clashed with the /inister for P#!lic 9ealth and *anitation /rs $eth /#go) over the clos#re of Dagoretti) /#m#) Thiani) 2yon?oro and 2yongara a!attoirs in her Dagoretti constit#ency. Dr /winDi said the sla#ghterho#ses had contravened environmental reg#lations and gave the owners three months to com%ly with the conditions) one of which was to sto% discharging effl#ent into the near!y river. Another one was to restore and reha!ilitate the degraded environment and a%%ly for an effl#ent discharge and other relevant waste management licences. They later . com%lied with the conditions and res#med o%erations. 2ema concedes that the extent of damage to the environment !y some ma?or com%anies and cro% %lantations is worrying. And ?#stice m#st !e seen to !e done to the firms ro#tinely acc#sed of discharging toxic effl#ent into rivers and lakes) %artic#larly lakes Fictoria) 2ak#r# and 2aivasha) which have had this %ro!lem for a long time. The %ro!lem is so extensive that civil society organisations have threatened to t#rn to co#rt to !ar ind#stries from discharging effl#ent into rivers.
$#t even then) 2ema has !een visi!ly active !y taking c#l%rits to co#rt for flo#ting environmental laws. Cle / !&a $e* In *e%tem!er) -::7) 2yeri town clerk Patrick /#t#ngi /#ro was charged with o%erating a d#m% site witho#t a licence from the 2ational +nvironmental /anagement A#thority. The case is ongoing. In environmental management) 2ema works with other instit#tions and committees) incl#ding the P#!lic (om%laints (ommittee set #% to investigate com%laints related to environmental conditions. The 2ational +nvironment Tri!#nal B2+TC reviews decisions made !y 2+2,* whenever there are com%laints from the %#!lic and other aggrieved %arties while the 2+T F#nd f#ndraises for environmental conservation.
APPENDII J.H JCo(en&a$enH 6==:

Co(en&a$en
A &%sto %! fa%l+ e t&at -%ll l%)e %n %nfa#'
The most %rogressive U* %resident in a generation comes to the most im%ortant international meeting since the *econd 1orld 1ar and delivers a s%eech so devoid of s#!stance that he might as well have made it on s%eaker%hone from a !each in 9awaii. 9is aides arg#e in %rivate that he had no choice) s#ch is the o%%osition on (a%ital 9ill to any action that co#ld challenge the dominance of fossil f#els in American life. And so the nation that %#t a man on the /oon canVt s#mmon the collective will to %rotect men and women !ack here on +arth from the conse>#ences of an economic model and lifestyle
choice that has taken on the mantle of a religion. Then a (hinese %remier who is in the %rocess of converting his comm#nist nation to that new faith Bhigh6car!on cons#mer ca%italismC takes s#ch #m!rage at $arack O!amaVs s%eech that he ref#ses to meet6s#lking in his hotel room) as if this were a teenagerVs ho#se %arty instead of a final effort to stave off the !reakdown of o#r !ios%here. ,ate in the evening) the two men meet and co!!le together a collection of %aragra%hs that they call a \dealY) altho#gh in reality it has all the meaning and a#thority of a !#s ticket) not that it sto%s them signing it with great solemnity. O!amaVs tem then !riefs the traveling 1hite 9o#se %ress %ack most of whom) it seems) #nderstand a!o#t as m#ch a!o#t glo!al6climate %olitics as o#r own lo!!y hacks know a!o#t !ase!all. $efore we know it) 0he 1e# ?or/ 0imes an* (22 are declaring the !irth of a =meaningf#l= accord. /eanwhile) a friend on an African delegation emails to say that he and many fellow mem!ers of the < !loc of develo%ing co#ntries are streaming into the corridors
after a long disc#ssion a!o#t the %erilo#s state of the talks) only to see O!ama on the television anno#ncing that the world has a deal. It8s the first they8ve heard a!o#t it) and a few min#tes later) as they examine the text) they realise very >#ickly that it effectively condemns their continent to a cent#ry of devastating tem%erat#re rises. $y now) the +#ro%ean leaders 6 who know this thing is a farce !#t have to %resent it to their %#!lics as %rogress6have their aides %honing the directors of civil society organisations s%inning that the talks have !een a s#ccess. A s#ccessL This deal crosses so many of the red lines laid o#t !y +#ro%e !efore this s#mmit started that there are scarlet skid marks across the $ella (entre) and one honest Z +#ro%ean di%lomat tells #sZ this is a =shitty) shitty deal=. I#ite so. This =deal= is !eyond !ad. It contains no legally !inding targets and no indication of when or how they will come a!o#t There is not even a declaration that the world will aim to kee% glo!al tem%erat#re rises !elow -(. Instead) leaders merely recognise the
science !ehind that vital threshold) as if that were eno#gh to %revent #s crossing it. The only %art of this deal that anyone sane came close to welcoming was the X&::!n glo!al climate f#nd) !#t it8s now a%%arent that even this is largely made #% of existing !#dgets) with no indication of how new money will !e raised and distri!#ted so that %oorer co#ntries can go green and ada%t to climate change. I know o#r %oliticians feel they have to smile and claim s#ccessE they feel that8s the only way to kee% this train on the tracks. $#t we8ve %assed that %oint 6 we need to go !ack to first %rinci%les now. 1e have to admit to o#rselves the scale of the %ro!lem and recognise that at its core this car!on crisis is) in fact) a %olitical crisis. Until %oliticians recogniDe that) they8re kidding themselves) and) more than that) they8re kidding #s too. 2ot all of o#r %oliticians deserve the o%%ro!ri#m of a dismayed world. O#r own +d /ili!and fo#ght hard) on no slee%) for a !etter o#tcomeE while $raDil8s President ,#iD Inacio ,#la da *ilva offered to financially assist other develo%ing co#ntries to co%e with climate change) and %#t a relatively !old car!on target on the ta!le. $#t the +U
didn8t move on its own commitment Bone so weak we8d act#ally have to work hard not to meet itC) while the United *tates offered nothing and (hina stood firm. $efore the talks !egan) I was of the o%inion that we wo#ld know (o%enhagen was a s#ccess only when %lans for new coal6fired %ower stations across the develo%ed world were dro%%ed. If the giant #tilities saw in the o#tcome of (o%enhagen an #nmistaka!le sign that governments were now determined to act) and that coal %lants this cent#ry wo#ld !e too ex%ensive to r#n #nder the regime agreed at this meeting) then this s#mmit wo#ld have s#cceeded. Instead) as details of the agreement emerged last night) we received re%orts of Ga%anese o%%osition /Ps %o%%ing cham%agne corks as they savo#red the %ossi!le colla%se of their new government8s car!on targets. It8s not ?#st that we didn8t get to where we needed to !e) we8ve act#ally ceded h#ge
amo#nts of gro#nd. There is nothing in this deal 6 nothing6 that wo#ld %ers#ade an energy #tility that the era of dirty coal is over. And the im%lications for h#manity of that sim%le fact are %rofo#nd. I know we <reens are %artial to hy%er!ole. 1e #se lang#age as a !l#dgeon to direct attention to the crisis we are facing) and yo# will hear m#ch more of it in the coming days and weeks. $#t) really) it is no exaggeration to descri!e the o#tcome of (o%enhagen as a historic fail#re that will live in infamy. In a single day) in a single s%ace) a s%ectacle was %layed o#t in front of a dis!elieving a#dience of %eo%le who have read and #nderstood the stark warnings of h#manity8s greatest scientific minds. And what they witnessed was nothing less than the very worst instincts of o#r s%ecies artic#lated !y the most %owerf#l men who ever lived.
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C&%na stan*s a!!+se* of - e!/%n$ $lobal *eal

(hina systematically wreckedY the (o%enhagen climate s#mmit !eca#se it feared !eing %resented with a legally !inding target to c#t the co#ntryVs soaring car!on emissions) a senior official from an +U co#ntry) %resent d#ring the negotiations) told Bhe Independent on -%nday yesterday. The acc#sation) !acked #% !y a se%arate eye6witness acco#nt from the heart of the talks of o!str#ctive (hinese !ehavio#r) reflected wides%read anger among many delegations a!o#t the nation8s actions at the conference. The concl#ding agreement a!o#t tackling glo!al climate change was widely criticised yesterday for !eing too weak) and was seen as a dashing the ho%es of many concerned a!o#t the warming threat. The lack of teeth in the =(o%enhagen accord= 6 which) it is acce%ted on all sides) is inade>#ate for fighting climate change 6 was widely !lamed !y environmentalists on President $arack O!ama for not making !igger U* commitments to c#t car!on emissions. Jet the key element of the agreement) a timeta!le for making its commitments legally
!inding !y this time next year) was taken o#t at the last min#te at the insistence of the (hinese) who otherwise wo#ld have ref#sed to agree to the deal. Also removed) at (hinese insistence) was a statement of a glo!al goal to c#t car!on emissions !y 3: %er cent !y -:3:) and for the develo%ed world to c#t its emissions !y ": %er cent !y the same date. The latter is regarded as essential if the world is to stay !elow the danger threshold of a two6degree (entigrade tem%erat#re rise. The =3:63:= and =3:6":= goals have already !een acce%ted !y the <-: gro#% of nations and world leaders who were negotiating the agreement) incl#ding <ordon $rown) Angela /erkel of <ermany) 2icolas *arkoDy of France and 0evin .#dd of A#stralia. They were said to !e amaDed at the (hinese demands) es%ecially over the develo%ed nations8 goal. The +#ro%ean official said; =(hina thinks that !y -:3: it will !e a develo%ed co#ntry and they do not want to constrain their growth6= (hina) with its ra%idly ex%anding economy) has now overtaken the U* as the world8s !iggest (:- emitter) and altho#gh at the meeting it agreed for first time to a target to constrain its emissions growth in an international instr#ment) it is des%erate not to have that made legally !inding) the official said. 9e added; =This conference has !een systematically wrecked !y the (hinese government) which has ado%ted tactics that were inex%lica!le at first as we had !een led to !elieve they wanted an agreement.= +ven more %ointed allegations a!o#t (hinese !ehavio#r came last night from another so#rce at the heart of the negotiations. The so#rce was %resent as heads of state and government drafted the final doc#ment) and gave the Io- an astonishing eyewitness acco#nt. 9e said; =There were -3 heads of state in the roomE this was a!o#t six o8clock on Friday night. To my right there was President O!ama in the corner) with <ordon $rown on one side) the +thio%ian President on the other) the President of /exico) the Prime /inister of Pa%#a 2ew <#inea... =If (hina had not !een in that room yo# wo#ld have had a deal which wo#ld have had everyone %o%%ing cham%agne corks. $#t this was the first sign that (hina is emerging as a s#%er%ower) which is not interested in glo!al government) is not interested in
m#ltilateral governance that affects its own sovereignty or growth. Jo# co#ld tell this lack of engagement thro#gh the %rocessE they %lay a m#ch cleverer game than anyone else. They were r#nning rings aro#nd the Americans. =It8s always easier to !lock than to try and get something. The Americans will %ro!a!ly !e given some of the !lame !eca#se that8s the conventional narrative all the %ress#re gro#%s have 6 that the rich co#ntries are !ad) they didn8t give eno#gh money or they wo#ld not create eno#gh mitigation targets.= The so#rce went on; =$#t the tr#th is) I was in that meeting and the Annex &8) rich co#ntries had mitigation targets of ": %er cent !y -:3: which everyone s#%%orted) and it was taken o#t !y the (hinese. The deal was watered down !eca#se the (hinese wo#ldn8t
acce%t any targets of any sort) for any!ody. 2ot themselves or any!ody else. ,egally !inding st#ff was taken o#t !y the (hinese as well and there was a lot of anger in the room. It was controlled !#t it was very) very clear what the feelings were. =The (hinese were ha%%y as they8d win either way. If the %rocess colla%sed they8d win !eca#se they don8t have to do anything and they know the rich co#ntries will get the !lame. =If the deal doesn8t colla%se !eca#se everyone is so des%erate to accommodate them that they water it down to something com%letely meaningless) they get their way again. +ither way they win. I think all the other world leaders knew that !y that stage and were ?#st f#rio#s that they co#ldn8t do anything a!o#t it. =It was extraordinary to see) and incredi!ly worrying for what it !odes for the f#t#re of o#r %lanet in this cent#ry. (hina is not going to get less %owerf#l) and if this is the way that it8s going to !ehave) then we have %ro!lems.= +d /ili!and) the *ecretary of *tate for +nergy and (limate (hange who led the negotiations for $ritain) said last night; =It8s disa%%ointing that the (hinese insisted we sho#ld not commit to a glo!al 3: %er cent emissions c#t) and it8s disa%%ointing that they didn8t s#%%ort a legally !inding treaty. I think !oth of these are necessary.=
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KLA .e&%n* t&e &ea*l%nes of an a* &o!9 (at!&e*1+( (a!t

Is %t t +e t&at t&e -o l* &as a ne- a$ ee#ent to f%$&t !l%#ate !&an$eM Jes 6 the (o%enhagen accord) signed at the U2 climate conference in the Danish ca%ital late on Friday night. W&at *oes %t *oM For the first time it enshrines the recognition of all the world8s co#ntries that we sho#ld work together to kee% the glo!al tem%erat#re from rising more than two degrees (entigrade a!ove the level %ertaining !efore the ind#strial revol#tion a!o#t -:: years ago) when we !egan !#rning fossil f#els on a serio#sly large scale. BIt is the emissions of car!on dioxide from the coal and oil and gas we !#rn in %ower stations and cars) and also of the (O- which comes from deforestation) that are tra%%ing the s#n8s heat in the atmos%here 6 acting like the %anes of a greenho#se 6 and ca#sing world tem%erat#res to rise.C Two degrees a!ove the %re6ind#strial level has come to !e regarded as a sort of safety threshold) !elow which the effects of glo!al warming may) with >#ite a lot of ada%ting) !e !eara!le !y h#man society and the nat#ral world. $#t any rise a!ove that the risks >#ickly rise of tremendo#sly damaging new climatic effects) s#ch as devastating dro#ghts) fiercer h#rricanes with more intense rainfall that will !ring flooding on an entirely new scale) sealevel rise and the conse>#ent disr#%tion of comm#nities aro#nd the glo!e. This in t#rn is likely to !ring a!o#t mass migration of millions of climate ref#gees) and a new era of wars. 0o- lon$ -o+l* %t ta/e to $et to t&e 6C t& es&ol*9 )%a t&e (at&-a' -e a e on at t&e #o#entM 2o!ody really knows the timescale 6altho#gh it wo#ld almost certain !e in the lifetime of
%eo%le !orn today 6 !#t in tem%erat#re terms) two degrees a!ove the %re6ind#strial is not that far away. The world as a whole has already warmed !y a!o#t :. 3() and it is estimated that the delayed effect of the car!on dioxide already in the atmos%here commits #s to a warming of another :.'() whatever we do. *o we are already on co#rse for a!o#t &.5( 6 this m#ch of the target is already taken #%. Two degrees) it sho#ld !e remem!ered) refers to the glo!al average tem%erat#re) which will !e more in higher latit#des s#ch as the $ritish Isles 6 %erha%s over 4() which is a very !ig rise. If yo# look o#t of yo#r window this weekend on a snow6 !o#nd landsca%e and wonder what all this glo!al warming f#ss is a!o#t) yo# sho#ld %erha%s !e reminded that) according to the /et Office) the average tem%erat#re in $ritain has risen a f#ll degree centigrade in the %ast 5: years 6 that is) ?#st since the $eatles !roke #%. If the snow makes yo# think that is nonsense) wait till the s%ring comes 6 yo# will find that oak trees in so#thern +ngland are o%ening their leaves on average -' days earlier than they were in the halcyon days of Gohn) Pa#l) <eorge and .ingo) as o#r s%rings get warmer and warmer. Is t&at all t&e Co(en&a$en a!!o * *oesM 2o. It also formally engages the develo%ing co#ntries) from the giants like (hina and India down) to do something a!o#t their ra%idly rising (O- emissions. This is an enormo#sly im%ortant %oint. 1hen) -: years ago) the world first !ecame aware of the threat of climate change and !egan trying to deal with it) the !iggest (O- emitters in the world) !y far) were the rich) develo%ed co#ntries) led !y the U*. In &77: the U*) with 5 %er cent of the world8s %o%#lation) was res%onsi!le for 4' %er cent of glo!al emissions. $#t since then the (hinese8 economy has ex%loded) with growth rates never seen !efore in
modern times of more than &: %er cent a year) and (hina8s own car!on emissions have soared in a way no one imagined %ossi!le only a few years ago; In less than= a decade they do#!led from three !illion to six !illion tonnes ann#ally) and two years ago (hina overtook the U* as the world8s !iggest emitter. India) as it str#ggles to !ring its %eo%le o#t of %overty 6 h#ndreds of millions of them still have no electricity 6 is on a similar economic growth@emissions growth %ath) and so are $raDil)
*o#th Africa) Indonesia and others) and it is estimated that 7: %er cent of all f#t#re growth of emissions will come from the develo%ing co#ntries. If these emissions contin#e to grow #nchecked) climate change will !e im%ossi!le to reverse. 0a)e t&e *e)elo(%n$ !o+nt %es not been eA+% e* to ta/e a!t%on abo+t t&e% e#%ss%ons befo eM They have not) for two reasons. First) when the world !egan to deal with the threat of climate change) their emissions were very m#ch less) and second) the vast ma?ority of the car!on dioxide now in the atmos%here was %#t there !y the develo%ed co#ntries 6 s#ch as $ritain. 1hen the first international emissions6c#tting agreement) the 0yoto %rotocol) was signed in &77 ) it committed develo%ed co#ntries to taking legally !inding actions to c#t their car!on emissions) !#t did not re>#ire the develo%ing co#ntries to take on any c#ts whatsoever. 0as t&e K'oto ( oto!ol been a s+!!essM Jes and no. It kick6started the h#ge) long and com%lex %rocess of nations trying to t#rn their economies on to low6car!on growth %aths) with the whole %ano%ly of car!on6saving initiatives we are now so familiar with) from the constr#ction of wind farms and the installation of solar %anels) to the %ersonal choice of taking the train rather than flying. And it introd#ced firm emissions6red#ction targets for nearly 5: =Annexe l= or develo%ed co#ntries) with the o!?ective of c#tting their emissions to 3 %er cent !elow &77: levels !y a!o#t now.
$#t there are three glaring ga%s in 0yoto. First) many of the develo%ed nations have sim%ly not acted decisively eno#gh and have not met their targets. *econd) in a decision of enormo#s conse>#ence) President <eorge 1 $#sh withdrew the U* from 0yoto in /arch -::&) shortly after ass#ming office. The third great ga% is the a!sence of the develo%ing nations) whose emissions are growing so fast that the world can no longer afford to ignore then. So &as t&e -o l* *e!%*e* to e(la!e K'otoM 2ot >#ite. $#t a critical moment came almost three years ago) with the %#!lication of the fo#rth re%ort of the U28s inter6governmental Panel on (limate (hange BIP(OC) which gave the most #rgent warning yet a!o#t glo!al warming8s dangers. *o at the U2 climate meeting in $ali in Decem!er -:: ) it was decided to negotiate a new treaty which might !ring America !ack into the fold 6 as the U* was never going to re?oin anything with 0yoto in its name 6 and at the same time re>#ire develo%ing co#ntries to take actions of their own to red#ce emissions) while committing the rich nations to ado%t even to#gher target) of c#tting !y -365: %ercent !y -:-:. Jet !eca#se the develo%ing co#ntries were very attached to 0yoto) as it re>#ired them to do nothing while forcing the rich nations to c#t their emissions) they did not want to a!andon it A and negotiations for it to !e renewed for several more years were set in train at the same time) and in %arallel) to the negotiations for a new climate treaty Bwhich were referred to as the \$ali road ma%C. This >#ite !iDarre twin6track negotiating arrangement has !een going on for the %ast two years and was d#e to come to a climax in (o%enhagen) in the meeting which !egan a fortnight ago and ended yesterday when a new climate deal for the world A one new treatyL Two new treatiesL A was d#e to !e agreed. Well9 -&%!& -as %tM one o t-oM They co#ldn8t resolve it 6 even after talking for two years in the r#n6#% to the meeting. It was remarka!le. The +#ro%ean Union and the $ritish government wanted a single new treaty) into which the !asic elements of 0yoto co#ld !e incor%orated and taken forward) !#t the
develo%ing co#ntries) %artic#larly the !loc known as the <
%l#s (hina) resol#tely ref#sed to
give 0yoto #% or contem%late a single new agreement. It has !ecome clear in the %ast -5 ho#rs that m#ch of this o%%osition was orchestrated !y (hina) which was des%erate not to have a single new treaty) which #ltimately might make it) and other emerging economies) legally !o#nd to take action on emissions. So -&at &a((ene*M
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(om%lete stalemate. $y last 1ednesday the negotiations !etween &7- co#ntries had r#n into the gro#nd) nothing of two years work on a climate treaty was likely to !e agreed 6 and the following day) &-: heads of state and government were arriving in (o%enhagen to set the seal on the deal. *o <ordon $rown) who got to (o%enhagen a day ahead of every other leader) drafted) with his senior officials) a com%letely new text for an agreement that world leaders co#ld sign on the s%ot. 9e got a key gro#% of -' co#ntries to s#%%ort the idea) and they !egan negotiations on it early on Friday morning. In a f#ll day of talks) the (hinese insisted on a n#m!er of key %oints !eing withdrawn. The o%ening statement that the world sho#ld strive to c#t its car!on emissions !y 3: %er cent !y -:3:) a %ro%osed timeta!le to make the new %act legally !inding) and new short6 term emission targets for all co#ntries have !een %#t off till next year) when they will !e =listed= in an annexe to the accord. $#t the (hinese did agree to have an emissions target in an international agreement for the first time) to international verification of their %erformance) and to the -( threshold fig#re. Is t&e e an't&%n$ else of note %n t&e Co(en&a$en a!!o *M Jes) a new deal on climate finance. There will !e X4:!n of first start= f#nding over the next three years to hel% develo%6%ing co#ntries red#ce emissions and ada%t to glo!al warming) %l#s a %romise from develo%ed co#ntries to \mo!iliDeY a climate f#nd for them of X&::!n a year !y -:-:. Jo# may have seen the (o%enhagen accord !eing criticiDed for !eing f#ll of holes. lt is and its %rovisions are not remotely ade>#ate to com!at climate change) while all the work of the
%ast two years on a new 0yoto@new treaty has !een %arked for another year. $#t at least com%lete colla%se of the worldVs efforts to fight glo!al warming was avoided last week Btho#gh it came very closeC and the (o%enhagen accord 6 last6min#te) ad hoc) %atched6#%) f#ll of holes as it is A at least gives the world a contin#ing way forward in the str#ggle to contain the greatest threat h#man society has ever known

Enviromental Law Part 1

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add my voice !y endorsing Environmental Governance in Kenya: Implementing

Abb e)%at%ons an* A! on'#s

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Other instr#ments may !e identified and !e examined in relation to +/(A. The

Part I GENERAL AND FRAMEWORK PERSPECTIVES

Concept, Function and Structure of Environmental Law

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egime of Statutes in Environmental Law

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-::'C. ,eiss M&7 7; -4"6-47N.

+nvironmental Im%act Assessment (entre) Trans!o#ndary Im%acts and +nvironmental Im%act

&& Availa!le &- Ado%ted

&4 *e%tem!er &7 7.

&3 .e%rinted &' I#id &

I#id at 4":. at &3'.

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at www.ecole.org BAccessed on - Decem!er -::'C.

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%rovisions in Uganda (onstit#tion are disc#ssed later herein.

K $#ngert =(oonstit#tional +ntrenchment of +nvironmental Protection; A (om%arative Analysis of

v Factoran <. 2o. &:&:"4)--5 *(.A 74 M&774;&5 6&3N.

comments in $randl K $#ngert M&77-; 3N. - )7-) in $onine K /c<arity

K $#ngert M&77-; 3N.

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&3 K &'. *ee also Opo&a v Factoran, &%pra note -' at 3.

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in $randl K $#ngert M&7'-; '36''N.

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accordance with the law.

In %aragra%h &- of his Order) the G#dge o!served f#rther that;

2o. F9(.$@(@&34.:3 decided on &5 2ovem!er -::3. &.

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healthy environment. To this end) Article 7: %rovides as follows;

1alters s#%ra note 5& at 5-'.

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details) see 0enneth M&77&N.

53 International 5' Articles

Trans!o#ndary .eso#rces (enter M&775; 465N.

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and again on -- *e%tem!er &"'

the s#!?ect of the

5" I#id, 57 I#id,

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a related disc#ssion) *ee Orie M&773; 5463&N.

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P#!lic InformationC) availa!le at ;http:>>www.%n.org>doc%ment&>ga>re&>GA>are&lA.htm=.

P#!lic InformationC) availa!le at P http:>>www.%n.org>doc%ment&>ga>re&>'A>are&'A.hhn=.

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InformationC) availa!le at P http:>>www.%n.org>8ept&>dhl>re&>re&a0A.htrri=.

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Common F%t%re &%pra note generally Adede M&773;4465"N

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': I#id. '& 2ote

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a detailed disc#ssion of the doctrine of intergenerational e>#ity) see $rown61eiss M&7"7N.

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res%ectively) as agents of s#staina!le develo%ment. !recautionar& )easures

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I!id. ee the (onvention in (ontext) in 0wiatkowska K oons BedsC M&774N.

eso+ !es e$ aat%on