- The Constitution of Kenya 2010, enshrines the right to a clean and healthy environment as a fundamental human right (Article 42).
- The Forest Conservation and Management Act of 2016 aims to protect and sustainably manage Kenya’s forest resources.
- Slow adjudication processes can allow environmental damage to continue unchecked, exacerbating the harm and making remediation efforts more difficult and costlier.
The quest for environmental sustainability in Kenya hinges significantly on The Judiciary’s pivotal role in interpreting and enforcing environmental laws.
The Judiciary’s function extends beyond mere legal interpretation; it plays a crucial role in upholding the rule of law, promoting environmental governance, and ensuring a delicate balance between environmental, social, and developmental considerations.
Kenya, a nation renowned for its rich biodiversity and awe-inspiring landscapes, has witnessed The Judiciary’s pivotal role in shaping environmental sustainability through landmark decisions and unwavering commitment to upholding the principles enshrined in its constitution and legal framework.
The Constitution of Kenya, promulgated in 2010, enshrines the right to a clean and healthy environment as a fundamental human right (Article 42).
This constitutional provision serves as a bedrock for environmental protection, empowering the judiciary to interpret and enforce laws that safeguard this inalienable right.
The Supreme Court, in the case of Peter K. Waweru v Republic (2012), affirmed the constitutional obligation to conserve the environment, setting a precedent for future environmental adjudication.
The Environmental Management and Co-ordination Act (EMCA) of 1999 is a cornerstone legislation that provides a comprehensive framework for environmental governance in Kenya.
This act establishes the National Environment Management Authority (NEMA), mandated with enforcing environmental regulations and monitoring compliance.
Crucial Role
The judiciary plays a crucial role in interpreting and applying the provisions of EMCA, ensuring that development projects and activities adhere to environmental impact assessment (EIA) requirements and comply with prescribed environmental standards.
The Forest Conservation and Management Act of 2016 aims to protect and sustainably manage Kenya’s forest resources.
In the case of Mahmoud Sheikh Abdullahi & 2 others v Cabinet Secretary for Environment and Forests & 3 others (2018), the High Court upheld the principles of public participation and environmental impact assessment in the degazettement of forest lands, underscoring the judiciary’s commitment to safeguarding the country’s forest resources.
The Wildlife Conservation and Management Act of 2013 seeks to protect and conserve Kenya’s rich wildlife heritage.
The Judiciary has played a pivotal role in enforcing this act, as exemplified in the case of Save Lamu & 5 others v National Environmental Management Authority & another (2019). In this case, the National Environment Tribunal (NET) halted the construction of a coal-fired power plant in Lamu due to its potential adverse impacts on the region’s UNESCO World Heritage Site and marine ecosystems.
The Water Act of 2016 regulates the management, use, and conservation of water resources in Kenya.
The Judiciary has been instrumental in ensuring compliance with this act, as demonstrated in the case of Mara Conservancy & another v Narok County Government & 6 others (2019).
The High Court ruled against the unsustainable abstraction of water from the Mara River, safeguarding the delicate ecosystem and the livelihoods of local communities.
The Land Act of 2012 and the Land Registration Act of 2012 provide a framework for sustainable land management and administration.
The Judiciary plays a pivotal role in adjudicating land disputes and ensuring that land use and development comply with environmental regulations.
Effectively Implemented
In the case of Wilfred Matengo & 3 others v Masaku Suppliers Ltd & 2 others (2020), the High Court upheld the protection of riparian reserves, preventing encroachment and safeguarding water resources.
The Climate Change Act of 2016 establishes a legal framework for mitigating and adapting to the impacts of climate change in Kenya.
The Judiciary’s role in interpreting and enforcing this act is crucial in ensuring that the country’s climate change policies and strategies are effectively implemented.
In the case of Jacqueline Okuta & another v Nairobi City County Government & 3 others (2021), the Environment and Land Court ordered the county government to develop and implement a climate change action plan, demonstrating the judiciary’s commitment to addressing climate change challenges.
The Judiciary has played a proactive role in upholding the principles of public participation and access to information in environmental decision-making processes.
In the case of Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others (2015), the High Court emphasised the importance of meaningful public participation and access to information in the environmental impact assessment process for proposed coal mining projects.
The Judiciary has also been instrumental in recognising and protecting the rights of indigenous communities in environmental conservation efforts.
In the case of Ogiek Community of Mau Forest v Government of Kenya (2017), the African Court on Human and Peoples’ Rights affirmed the Ogiek community’s right to occupy and use their ancestral lands in the Mau Forest, recognising their role as traditional custodians of the forest ecosystem.
The Judiciary’s commitment to environmental sustainability extends beyond adjudication.
Kenyan courts have embraced environmental jurisprudence, incorporating principles such as the precautionary principle, the polluter pays principle, and the principle of sustainable development in their rulings.
Major Challenges
This progressive approach ensures that environmental considerations are given due weight in judicial decision-making processes.
However, the path to environmental sustainability is not without challenges. One of the primary obstacles The Judiciary faces is limited resources.
Environmental cases often require extensive research, expert testimony, and specialised knowledge, which can strain the financial and human resources of the courts.
This scarcity of resources can lead to prolonged legal processes and inadequate judicial outcomes, ultimately hindering the enforcement of environmental laws and regulations.
Another significant challenge is the delay in case adjudication. Environmental issues are often urgent, requiring swift action to prevent further degradation or to mitigate ongoing harm.
Unfortunately, Kenyan judicial system is frequently burdened with backlogs of cases, leading to significant delays in hearings and verdicts.
These delays can be particularly detrimental in environmental cases where timely intervention is crucial.
Slow adjudication processes can allow environmental damage to continue unchecked, exacerbating the harm and making remediation efforts more difficult and costlier.
The enforcement of court orders remains a persistent issue. Even when courts successfully adjudicate environmental cases and issue orders, ensuring compliance can be problematic.
There is often a gap between legal judgments and their implementation due to bureaucratic inertia, lack of political will, and insufficient enforcement mechanisms.
To address these challenges, continuous capacity-building and the establishment of specialised environmental courts are essential.
These courts, staffed with judges and legal professionals trained in environmental law, can enhance the efficiency and effectiveness of environmental adjudication, ensuring that legal rulings lead to real-world environmental protection and sustainability.
In the quest for environmental sustainability, the Kenyan judiciary stands as a beacon of hope, interpreting and enforcing laws that protect the nation’s natural heritage.
YOU MAY ALSO LIKE: Greening the Legal Landscape: Kenya’s consumer protection laws as catalysts
Through landmark decisions, the courts have safeguarded the constitutional right to a clean and healthy environment, upheld environmental impact assessments, protected forest and wildlife resources, and addressed issues of climate change and sustainable land management.
While challenges persist, The Judiciary’s unwavering commitment to upholding environmental principles and ensuring compliance with environmental regulations remains a cornerstone of Kenya’s journey towards a sustainable future.
The writer is a legal researcher and lawyer.
