the role of the Judge in implementing and enforcing environmental law

TABLE OF CONTENTS

Dedication………………………………………………………………………………..i

Declaration……………………………………………………………………………….ii

Acknowledge…………………………………………………………………………….iii

Table of Acronyms………………………………………………………………………iv

Table of Cases…………………………………………………………………………..v

Table of Conventions…………………………………………………………………..vi

Table of Statutes……………………………………………………………………….vii 

1.0       CHAPTER ONE: THE RESEARCH PROPOSAL. 3

1.1 Introduction. 3

1.2 Background of the Study. 5

1.4 Statement of the Problem.. 8

1.5 Theoretical Framework & Definition of Terms. 9

1.6 Hypotheses. 11

1.7 Research Questions. 11

1.8 Objectives of the Study. 12

1.9 Research Methodology. 12

1.10 Literature Review.. 13

1.11 Chapter Breakdown. 18

2.0 CHAPTER TWO: THE UNEP GLOBAL JUDGES PROGRAMME: JUDGES’ PROGRAMME FOR CAPACITY BUILDING.. 19

2.1 Introduction. 19

2.2 Regional Judges Symposia on Environmental Law, Sustainable Development and the Role of the Judiciary. 22

2.3 Global Judges Symposium on Sustainable Development and the Role of Law, Johannesburg, South Africa, 18 – 20 August 2002. 25

2.3.1 Johannesburg Principles on the Role of Law and Sustainable Development 27

2.3 The Judges Ad hoc Meeting for the Development of a Plan of Work as a Follow-Up to the Global Judges Symposium Relating to Capacity Building of Judges, Prosecutors, and other Legal Stakeholders. 31

2.4 UNEP Governing Council Decision 22/17 on Governance and Law.. 33

2.5 A Roundtable Dialogue on Advancing MDGs through the Rule of Law.. 36

3.0       CHAPTER THREE: LEGISLATIVE AND INSTITUTIONAL FRAMEWORK FOR THE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW IN KENYA.. 37

3.1 Introduction. 37

3.2 International Environmental Law and Principles. 38

3.3 National Environmental Legislations. 41

3.3.1 Physical Planning Laws. 42

3.3.2 Sectoral Environmental Laws. 44

3.4 Environmental Institutions in Kenya. 46

3.4.1 United Nations Environmental Programme and UN Habitat 46

3.4.2 Institutions under EMCA, 1999. 47

3.4.3 Ministry of Environment 48

4.0 CHAPTER FOUR: THE ROLE OF JUDGES IN IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW IN KENYA: A PERSPECTIVE.. 50

4.1 Introduction. 50

4.2 Access to Justice. 51

4.3 Appraising Past Environmental Decisions. 55

4.3.1 Sea Star Malindi Ltd v Kenya Wildlife Services. 55

4.3.2 Peter Kinuthia Mwaniki & 2 Others v Peter Njuguna Gicheha & 3 Others. 57

4.3.3 Rodgers Nzioka & 2 others v. Tiomin Kenya Limited. 59

4.3.4 Lereya & 800 Others v. Attorney General & 200 Others (the famous toothless goat case). 61

4.3.5 Nakumatt Holdings Limited v National Environmental Management Authority & Another 64

5.0 CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS.. 69

5.1 Introduction. 69

5.2 Restatement of the Objectives of the Research. 69

5.2 Summary of the Content 70

5.3 Conclusions. 71

5.3 Recommendations. 73

International Level 73

5.4 Recommendations for Further Work (Research) 75
 

1.0       CHAPTER ONE: THE RESEARCH PROPOSAL

 

1.1 Introduction

 

In this discourse, we interrogate the role of the Judge in implementing and enforcing environmental law nationally. The standard aimed at in this research is, uniform implementation and enforcement of environmental law globally by all Judges irrespective of jurisdiction.

Environmental law itself has seen rapid development in the past half century. Part of this development has necessitated an extensive formulation and adoption of various Multilateral Environmental Agreements (“MEAs”) to try and control human impact on the earth. The 1972 United Nations Conference on the Human Environment came up with the first Principles and rules for nationals to develop rules in the field of environment.[1] The Conference also reached a decision to create the United Nations Environmental Programme (UNEP) with its secretariat in Nairobi, Kenya. UNEP is the principal organ of the United Nations on environment.

The Agenda 21 adopted by the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, Brazil reiterates the importance of implementing international treaties through the enactment and enforcement of laws and regulations at the regional, national, provincial or municipal level because these laws and regulations are essential for the implementation of most international agreements in the field of environment and development.

In Kenya, the laws and regulations on environment were contained in numerous sectoral laws prior to 1999. In 1999, Kenya enacted the Environmental Management and Co-ordination Act (EMCA)[2] to provide for the establishment of an appropriate legal and institutional framework for the management and coordination of the environment, in parallel with the sectoral laws. National Environmental Management Authority (NEMA) is perhaps the most important administrative organ established under the EMCA, all appeals from NEMA lies to the National Environmental Tribunal (NET)[3]. Presiding in the Tribunal is the Judge(s) who is expected to dispense justice to all competently and independently, and most importantly uniformly. Under section 8 of the EMCA environmental cases can also be filed in the High Court of Kenya which has jurisdiction over all matters.

As noted above, in both the High Court and the NET under EMCA, it is the Judge (s) who makes determinations on environmental matters. To the extent he does so, his role has even greater implications and consequences to the implementation and enforcement of environmental law nationally, which also affects the uniformity desired universally irrespective of jurisdiction. Towards this end, the Judge will remain indispensible in environmental discourses.

1.2 Background of the Study

The past half century has seen the evidence to the need to protect and conserve the environment. Environmental awareness has covered issues like ecosystem management; need to protect the ozone layer; pollution control; sustainable development; trade related aspects; climate change, among others.[4] In Africa, particularly, a large part of the population directly depends on the environment and natural resources for their livelihoods.[5] This situation is emphasized in the words of Klaus Topfer[6],

“Today’s world is facing an unprecedented environmental crisis. Deterioration of the Earth’s environment increasingly threatens the natural resources base and processes upon which all life on Earth depends. Without strong and multifaceted action by all of us, the biosphere may become unable to sustain human life and future generations will suffer deprivation and hardship unless current patterns of production, consumption and waste management dramatically change. The urgency of balancing development with the Earth’s life support systems is being finally recognized and understood. Now it is time to act upon this understanding.”[7]

As earlier noted, Kenya did not have an integrated body of National Environmental Law until recently.[8]  The applicable law governing environment matters was confined to common law and various statutes regulating sectors such as health, water, forestry, agriculture and industry.  Due to increase in environmental activism and the government cognizance of the significance of a comprehensive and sound framework for environmental regulation culminated in the enactment of Environmental Management and Coordination Act (EMCA) of 1999[9] alongside the sectoral laws. Both the sectoral laws and EMCA provide the regime of environmental protection and conservation in Kenya.

The Judiciary – as the universally recognized guardian of the Rule of Law – therefore, plays a crucial role in promoting sustainable development through the application, interpretation and enforcement of environmental law.[10] According to UNEP, the Judiciary remains a crucial partner in promoting environmental governance, upholding the rule of law and in ensuring a fair balance between environmental, social and developmental considerations through its judgments and declarations.[11] The Judge is in the centre of the judiciary.

1.3 Significance of the Study

International focus has given considerable attention to the role of Judges in the implementation and enforcement of environmental law. These effort, have come with the realization of the solemn role a Judge plays in dispute settlement and more particularly in settling environmental disputes. This appreciation is linked to the Judge’s role of interpreting laws and his unrivalled position of guaranteeing justice to all, however, the nature of this role will differ depending on the legal system of a country. In countries where the administrative systems are relatively undeveloped, the courts have been able to fill the gap by imaginative interpretation of constitutional guarantees.[12] For example, the Kenyan case, Waweru v Republic of Kenya[13], the learned Judge observed that a development that threatens life is not sustainable and ought to be halted. The decision is premised on Principle 4 of the Rio Declaration. The principle states:

“In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”[14]

Secondly, unlike all the other environmental institutions, the Judiciary is protected by the doctrine of separation of powers. This is because the Judiciary is one of State organs whose independence is constitutionally guaranteed. The state doctrine of separation of powers protects the Judiciary from the executive and legislature interference. The Judges are also bestowed security of tenure to encourage independence and impartiality in carrying out their work.

Thirdly, decisions made in courts influence the direction of implementation and enforcement of environmental law at a national level. Therefore, non-uniform interpretation of environmental laws and principles will have serious implications globally.

Fourthly, the obiter dicta and ratio decidendi, of Judges in higher courts are used as precedents in subsequent cases under the doctrine of stare decisis. For example, in Wangari Maathai (Greenbelt Movement) v Kenya Times Media Trust[15] the court upheld the defendants’ contention that the plaintiff had no locus standi. Such precedent is a bad precedent which must be reversed or reviewed because it limits locus standi and thus impedes on efforts to conserve and preserve environment.

1.4 Statement of the Problem

Like all human beings, Judges are prone to making mistakes and errors in carrying out their work. They are also prone to misapplying or misinterpreting existing environmental laws and/or principles. Therefore, deliberate efforts must be made to address these shortcomings. The UNEP Governing Council Decision 22/1 II A calls upon the Executive Director to help improve the capacity of those involved in the process of developing, implementing and enforcing environmental law at the national and local levels, including judicial officers.[16]

Secondly, the fine nuances of particular situations which the Judge encounters in individual cases are often not matters with which legislatures have time and resources to deal. It is often before the Judiciary that they come up for the first time. Environmental litigation can take forms, inter alia, civil actions based on tort; contract or property law; criminal prosecutions; public interest litigation that, e.g., challenges government action or inaction; or enforcement of constitutional rights. Depending on the category different standards and approaches apply which must be delicately balanced. For example, a constitutional right has much more bearing than civil actions since constitutions are always regarded as supreme.

1.5 Theoretical Framework & Definition of Terms

Consider the poem below,

“Nature never did betray, the heart that loved her”

(William Wordsworth – Poet)

 

The theoretical framework in this research derives inspiration from the natural law tradition; the preservationists assume that the natural ecosystems are well-ordered and harmonious. All parts of the ecosystem, and especially all its biotic members, have a distinctive place in the overall scheme. Each one contributes to the natural order in its own way. Thus, nature undisturbed is goodness reserved. Ecological problems arise when man interferes with the natural order and treat other natural objects as having value only insofar as they serve human purposes.[17]

Although the natural law tradition of Aristotle allows for a moral hierarchy with humans “higher” than animals and animals “higher” than plants, it nevertheless recognized that living things have a good of their own. Some preservationists interpret this as granting moral standing to animals and plants. They argue that plants and animals are not only objects, but are holders of rights as well.[18]

While natural law theory inspires our study, our theoretical framework will, however, be based on positivism and realism; positivism to mean what is the law on environment and realism to imply how is the law on environment interpreted and enforced everyday in courts by Judges. To this end we intend to emphasize on the role of the Judge and not the law on environment.

Several definitions and concepts have been used in this research as follows:  ‘Sustainable development’  means “inherent in the concept of sustainable development is the principle that development needs are to be taken into account in interpreting and applying environmental obligations”;[19] Environment’ has been used in its modern context of sustainable development, and it encompasses the physical and social factors of the surroundings of human beings and includes land, water, atmosphere, climate, sound, odour, taste, energy, waste management, coastal and marine pollution, the biological factors of animals and plants, as well as cultural values, historical sites, and monuments and aesthetics; ‘Environmental law’ means the body of law that contains elements to control human impact on the Earth and on public health; ‘Environmental litigation’ take forms, inter alia, civil actions based on tort; contract or property law; criminal prosecutions; public interest litigation that, e.g., challenges government action or inaction; or enforcement of constitutional rights; and National Environmental Management Authority (NEMA)’ is used in the study as established under the EMCA.

1.6 Hypotheses

 

  1. The Judges play a solemn role in ensuring the universal implementation and enforcement of environmental law.
  2. Judges do not uniformly implement and enforce environmental law and principles in all jurisdictions.
  3. Environmental law has limited precedents and some conventions are very technical in nature, thereby, imposing a considerable challenge in interpretation to the Judges.
  4. The UNEP global Judges programme is an effective tool for training and capacity development to achieve uniform universal implementation and enforcement of environmental law.
  5. Judges’ decision-making that fails to take into consideration environmental law has a potential of destroying the Earth in which all of us live.

 

1.7 Research Questions

 

  1. What are the environmental rules and principles on environment that Judges should implement and enforce in courts and tribunals?
  2. Do Kenyan Judges have the requisite capacity to uniformly implement and enforce environmental law in courts and tribunals?
  3. What are the effects of poorly decided cases on the implementation, and enforcement of environmental law in Kenya?
  4. What is the usefulness of the UNEP Global Judges Programme for Judges?

                                    

1.8 Objectives of the Study

 

The research study aims at achieving, inter alia, the following objectives:

  1. To contribute to the development of environmental discourse on the role of Judges in implementing and enforcing environmental law.
  2. To identify the major challenges Judges face in implementing and enforcing environmental laws in courts and tribunals.
  3. To appraise on the achievements of the UNEP Judges Environmental Programme and suggest recommendations.
  4. To find out the impact of bad environmental decision making in the implementation, development and enforcement of environmental law;
  5. To understand the role of the Judge in the Implementation and enforcement of environmental law.

 

1.9 Research Methodology

 

The researcher will use both primary and secondary sources of data.

The researcher will also undertake a desktop review of different materials including, inter alia: legal instruments, reports, books, papers and publications relating to the area of study.

Case law analysis will be used to identify gaps and challenges in environmental implementation and enforcement.

Primary sources will include, inter alia, interviews with Judges, environmental experts and students of environmental law on the subject matter of the study.

The internet and other electronic sources will be very useful throughout the different levels of the study.

1.10 Literature Review

African countries have suffered excessive exploitation of natural resources. Although the former colonial authorities promulgated some norms both at the regional and domestic levels in order to reduce the destruction of nature, these norms only addressed specific natural resources sectors and were mostly ‘use oriented’ and ‘rule oriented.’[20] However, today, treaties are the major mechanism employed by states in the conduct of their relations with each other. 

There are several types of environmental treaties and national legislative approaches to environmental management. These include, inter alia, the following: Constitutions, sectoral laws, framework environmental laws, comprehensive codification of environmental laws, penal codes, and the implementation of international environmental legal instruments. Generally, judicial institutions serve several functions in society, among them the peaceful settlement of disputes, upholding the rule of law, and applying and interpreting the law.[21]

Laws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development policies into action, not only through ‘command and control’ methods, but also as normative framework for economic planning and market instrument.[22]

In August 2002, UNEP convened the Global Judges Symposium on Sustainable Development and the Role of Law in parallel with the World Summit on Sustainable Development. The outcome of the symposium was the unanimous recognition by these senior Judges representing the various legal systems of the world, of the crucial role that the judiciary plays in enhancing environmental governance and the rule of law, through the interpretation, application, further development and enforcement of environmental law in the new context of sustainable development.[23]

This recognition was finally embedded in the Johannesburg Principles on the Role of Law and Sustainable Development (the Johannesburg Principles), that the Judges adopted by acclamation, which were presented to the Secretary-General of the United Nations, Mr. Kofi Annan, and to the World Summit on Sustainable Development by the Chair of the Symposium, the Chief Justice of South Africa.[24]  It contained the following statement:

“We affirm that an independent judiciary and judicial process is vital for the implementation, development and enforcement of environmental law, and that members of the judiciary, as well as those contributing to the judicial process at the national, regional and global levels are crucial partners for promoting compliance with and implementation and enforcement of international and national environmental law”.

 

Underlying this project have been four fundamental ideas: first, that the task of safeguarding the environment for present and future generations, while providing an acceptable standard of life, is probably the greatest challenge we face in the 21st century; secondly, that time is running out; thirdly, that the principles which should guide our response to that challenge (sustainable development, precautionary principle, public trusteeship) form a shared pool of knowledge and experience, which is now recognized in one form or another by most of the legal systems of the world; and fourthly, that Judges at all levels, national and international, are uniquely placed, as decision-makers and opinion reformers, to put those principles into practice.[25]

The Johannesburg Principles on the Role of Law and Sustainable Development recognized that: an independent Judiciary and judicial process is vital for the implementation, development and enforcement of environmental law; the fragile state of the global environment requires the Judiciary as the guardian of the rule of law, boldly and fearlessly to implement and enforce applicable international and national laws, which will assist in alleviating poverty, while also ensuring that the  inherent rights and interests of succeeding generations are not compromised; the people most affected by environmental degradation are the poor and that, therefore, there is an urgent need to strengthen the capacity of the poor and their representatives to defend environmental rights, so as to ensure that the weaker sections of the society are not prejudiced by environmental degradation and are enabled to enjoy their rights to live in a social and physical environment that respects and promote their dignity; the Judiciary plays a critical role in the enhancement of public interest in  a healthy and secure environment; the rapid evolution of multi-lateral environmental agreements, national constitutions and statutes concerning the protection of the environment increasingly requires the courts to interpret and apply new legal instruments and keeping with the principal of sustainable development; and that the deficiency in the knowledge, relevant skills and information in regard to environmental law is one of the principle causes that contribute to the lack of effective implementation, development and enforcement of environmental law. [26] 

The challenges of implementing and enforcing environmental law are best captured by the sentiments of Lord Woolf, Lord Chief Justice of England and Wales, he said:

“…it is my firm belief that the Judiciary of different jurisdictions have immense amount to learn from each other. Our legal systems may differ. They may fall on one side or the other of the divide between the common law and civil law systems or they may be a mixture of both systems or even unrelated either of those systems. Yet, the problems with which they are confronted today are very similar. They are: How to ensure that all sections of the public can obtain access to justice from our courts?….How to ensure the independence of the Judiciary and finally how to protect the environment, the critically important subject of this conference?”

 

It also emerges that the deficiency in the knowledge, relevant skills and information in regard to environmental law is one of the principal causes that contributes to lack of effective implementation, development and enforcement of environmental law.[27]

Broadly speaking, role of the Judiciary in the environmental arena includes: administering environmental litigation; promoting compliance by enforcing the law; serving as guarantor of public participation rights; balancing environment and development considerations; influencing societal attitudes towards the environment and the concept of sustainable development; through judgments, furthering the development of legal concepts in the area of sustainable development; through judgments, furthering the development of legal concepts in the area of sustainable development; furthering the implementation of regional and global environmental accords where part of the corpus of domestic law; serving as a check on executive inaction and overreaching in the environmental arena; and protecting the rights of the accused. [28]

 

In January 2003, a follow-up meeting in Nairobi brought together 25 Judges’ representatives of the world’s legal systems and regions to provide guidance to UNEP in the development and implementation of a programme directed at the judiciaries of the world, to achieve more effective application and enforcement of domestic environmental law.[29] The Global Judges Symposium and the subsequent Nairobi meeting inspired the UNEP Governing Council to adopt Decision 22/1 II A which called upon the Executive Director to help improve the capacity of those involved in the process of developing, implementing and enforcing environmental law at the national and local levels, including judicial officers.[30]

1.11 Chapter Breakdown

 

The study will contain five chapters. Chapter one contains the proposal of the study. Chapter two discusses the UNEP’s Global Judges Programme. Chapter three gives a general legislative and institutional framework on environmental law in Kenya. Chapter four discusses the role of a Judges in ‘access to justice’ and ‘environmental litigation’. Chapter five contains the research conclusions and recommendations.

2.0 CHAPTER TWO: THE UNEP GLOBAL JUDGES PROGRAMME: JUDGES’ PROGRAMME FOR CAPACITY BUILDING

 

2.1 Introduction[31]

The UNEP Global Judges’ Programme initiative is based on the idea that the role of the Judiciary is fundamental in the promotion of compliance with, and enforcement of international and national environmental law. It aims at promoting Judiciary networking, and harmonization of the approach to the implementation of global and regional instruments.

UNEP’s commitment to this end is based on the specific mandate provided in the programme for the Development and Periodic Review of Environmental Law for the first decade of Twenty-First Century.[32] The work, focusing on Judiciary, commenced with the organization of Regional Judges Symposia on Environmental Law, Sustainable Development and the Role of the Judiciary. Based on the outcome, UNEP convened the Global Judges Symposium on Sustainable Development and the Role of Law in Johannesburg, South Africa, on 18 – 20 August 2002 as a parallel event to the World Summit on Sustainable Development. The Outcome of the Global Judges Symposium, the Johannesburg Principles on the Role of Law and Sustainable Development, was presented to the UN Secretary General and to the World Summit on Sustainable Development (WSSD).

Following the Global Judges Symposium, UNEP Prepared a practical plan of work and organized a meeting of a small group of Judges’ representatives of the world’s legal systems and regions, to secure their advice on the plan of work. The meeting, the Judges Ad Hoc Meeting for the Development of a Plan of Work as a Follow-Up to the Global Judges Symposium Relating to Capacity Building of Judges, Prosecutors, and Other Legal Stakeholders, was held in Nairobi, Kenya one week before the 22nd session of the Governing Council of UNEP. The participants adopted a final document, containing suggestions on how to develop and implement the capacity building programme, which was presented to the Governing Council of UNEP at its opening session on 3 February 2003 by the Chief Justice of South Africa.

The 22nd session of the Governing Council, held in Nairobi on 3-7 February 2003, endorsed UNEP’s commitment in this field in its decision 22/17 on Governance and Law, part II, A on Follow-up to the Global Judges Symposium focusing on capacity-building in the area of environmental law. To implement UNEP Governing Council decision 22/17 II(A) UNEP has embarked upon an extensive work programme (the Global Judges Programme), developed and carried out with the advise and guidance of a UNEP Ad hoc Advisory Group of Chief Justices and other Judges drawn from around the world, headed by the Chief Justice of South Africa.

The goal of this programme of work is for UNEP to carry out, on a cohesive, structured and sustained basis, national activities under the direction and guidance of the respective Chief Justices, for strengthening the role of the Judiciary in securing environmental governance, adherence to the rule of law and the effective implementation of national environmental policies, laws and regulations including the national level implementation of multilateral environmental agreements. Several governments, including the governments of the Netherlands, Belgium and Norway have provided significant financial support to UNEP for the implementation of this programme of work.

The programme, set out in a Road Map, is implemented by the Environmental Law Branch of UNEP’s Division of Policy Development and Law, in collaboration with relevant Divisions and Regional Offices of UNEP as well as several partner agencies. To facilitate the conduct of capacity-building activities at national level that were carried out beginning in 2004, UNEP convened throughout 2003 and the first half of 2004 eleven Regional Chief Justices Needs-Assessment and Planning Meetings. These Meetings have drawn up needs-responsive and country specific national programmes of work for strengthening judicial capacity in the area of environment and sustainable development.

These national programmes of work are implemented at the national level by the Chief Justices and the respective national judicial training institutions, and are supported by UNEP in partnership with a global alliance of partners, including the World Bank Institute, the United Nations University, UNITAR, IUCN, the global academia and regional and national institutions with relevant capabilities in the area of environmental law, training and education.

2.2 Regional Judges Symposia on Environmental Law, Sustainable Development and the Role of the Judiciary[33]

 

In order to promote the role of the Judiciary in sustainable development UNEP convened Regional Symposia for Judges on the Role of the Judiciary in Promoting the Rule of Law in the Area of Sustainable Development. The Symposia brought together Chief Justices and Prosecutors from countries in the different regions with the aim to: examine contemporary developments in the field of national and international environmental law; exchange views, knowledge and experience in promoting the further development and implementation of environmental law in the region; review the role of the Courts in promoting the rule of law in the area of sustainable development, including an examination of important Judgements.

Mombasa, Kenya (1996)[34] 

The first Symposium was held in Mombasa, Kenya in October 1996 and targeted African countries. UNEP organised it under the Joint UNEP/UNDP Project on Environmental Law in Africa funded by the Dutch Government. Judges and judicial officers from Burkina Faso, Kenya, Mauritania, Mozambique, Sao Tome and Principe, South Africa, Tanzania, and Uganda were in attendance.

Colombo, Sri Lanka (1997)[35] 

Encouraged by the outstanding results of this pioneering initiative, UNEP organized the second Symposium for countries in South Asia in Colombo, Sri Lanka, in July 1997. The Symposium was organised in collaboration with the South Asia Cooperative Environment Program (SACEP), with funding from the Royal Norwegian Government through Norwegian Agency for Development Cooperation (NORAD). Delegations from Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka attended.

Manila, Philippines (1999)[36] 

Another Symposium, the Southeast Asian Justices Symposium: ‘The Law on Sustainable Development’ was held in Manila, Philippines, from 4–7 March 1999. The event was organised by UNEP in partnership with UNDP, the Government of the Philippines and the Hanns Seidel Foundation. The Chief Justice of the Philippines hosted the Symposium. Participants included Chief Justices, Deputy Chief Justices, Judges and Senior Government Officials from Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam.

Mexico City, Mexico (200)[37] 

A fourth Symposium, on Environmental Law and Sustainable Development: Access to Environmental Justice in Latin America, was held in Mexico City, Mexico, 26-28 January 2000. The Symposium, organized by UNEP with the collaboration of the Federal Attorney General’s Office for Environmental Protection (PROFEPA) of the Mexican Government, was attended by Supreme Court Justices and other high-level Judges from the following countries: Argentina, Brazil, Chile, Colombia, Cuba, Mexico and Peru. A publication with the proceedings, the Judges’ presentations and the core working paper of the symposium was prepared and released by UNEP in September 2000.

Castries, Saint Lucia (2001)[38]

The fifth Judicial Symposium, on Environmental Law and Sustainable Development: Access to Environmental Justice for the Countries of the English Speaking Caribbean, was held in Castries, Saint Lucia, on 8-10 April 2001. The event was organised by UNEP and the International Network for Environmental Compliance and Enforcement (INECE), including the World Bank, Commonwealth Secretariat, US Environmental Protection Agency, CIDA-ENACT Jamaica and the Natural Resources Conservation Authority of Jamaica. Thirty-four high-level Judges and prosecutors participated in the programme.

Brisbane Australia (2002)[39]

The last Symposium, the Pacific Symposium on Environmental Law and Sustainable Development, was held in Brisbane on 4-8 February 2002. Chief Justices and Judges from 9 Pacific Island States participated: the Federated States of Micronesia (FSM), the Commonwealth Secretariat and the United Nations University (UNU). The Chief Justices and Judges made presentations on their National Environmental legal systems in view of the challenges and Recent Trends in the Development of Environmental Jurisprudence. A Statement of Conclusions and Recommendations was adopted at the end of the Symposium. One of the main recommendations was to identify an institution in Queensland that could serve as a Regional Centre for Capacity Building in the field of Environmental Law and MEAs, for the benefit of Pacific Island States.

 

2.3 Global Judges Symposium on Sustainable Development and the Role of Law, Johannesburg, South Africa, 18 – 20 August 2002.

 

The Global Judges Symposium on Sustainable Development and the Role of Law, was held in Johannesburg, South Africa, from 18 to 20 August 2002, and hosted by Hon. Justice A. Chaskalson – the Chief Justice of South Africa.[40] One hundred and twenty-six (126) Chief Justices and senior Supreme Court Judges participated in the symposium including thirty two (32) Chief Justices. Judges of the International Court of Justice, the European Court of Justice and the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA) also participated.[41]

The outcome of the symposium was a unanimous recognition by these Judges representing the various legal systems of the world, of the crucial role that the Judiciary plays in enhancing environmental governance and the rule of la, through the interpretation, development, implementation and enforcement of environmental law in the new context of sustainable development.

One writer summarizes UNEP’s role, from the symposium’s view, to be stabilization of the network of Judges and stimulating capacity building as well as provision of an impetus to move the “paper tigers”[42] to real law. And I quote,

 “….A deep consensus had emerged at the recent Global Judges Symposium on Environmental Law that environmental rights were an essential part of human rights….Judge Chaskalson, describing the meeting held in Pretoria, South Africa from 18 to 20 August, said there had been an absolute commitment from all parts of the world about the importance of the rule of law and of the Universal Declaration of Human Rights. Environmental rights, it was agreed, were not an end in themselves, but a tool towards ensuring the fundamental right to life and better living conditions for all….The stories told had revealed much concern about damage to the environment and ineffective existing legal structures, as well as the need for support in countries where legal structures were not very strong, he added. At the end of the symposium, a set of principles was adopted, which included a commitment to explore at the Summit many of the issues raised at the Judges’ conference….Mr. Toepfer reiterated that there were lots of legally binding conventions and protocols, but those would remain “paper tigers” without implementation. Among the main focuses of the conference had been the need to work together to implement and change laws relating to sustainable development. Parliamentarians must be involved, as well as administrative personnel and civil society. For its part, UNEP must stabilize the network of Judges and stimulate capacity-building, especially in developing countries, as well as provide an impetus to move the “paper tigers” to real law[43]….”

 

2.3.1 Johannesburg Principles on the Role of Law and Sustainable Development[44]

 

In the preamble to the document members affirmed their commitment to the pledge made by world leaders in the Millennium Declaration adopted by the United Nations General Assembly in September 2000,

 “to spare no effort to free all of humanity, and above all our children and grandchildren, from the threat of living on a planet irredeemably spoilt by human activities, and whose resources would no longer be sufficient for their needs”.

They agreed that the Judiciary has a key role to play in integrating Human Values set out in the United Nations Millennium Declaration: Freedom, Equality, Solidarity, Tolerance, Respect for Nature and Shared Responsibility into contemporary global civilization by translating these shared values into action through strengthening respect for the Rule of Law both internationally and nationally.

Perhaps what captures the sentiments of the Judges more vividly is the excerpt from the preamble to the principles as quoted below:

….We feel reassured that the implementation and further development of international environmental law aiming at sustainable development, the implementation of agreed international norms and policies, and the strengthening of the capacity of those engaged in promoting the implementation and enforcement of environmental law are cornerstones of the UNEP Programme of Work in the field of Evironmental Law, as reflected in the Nairobi Declaration adopted at the 19th session of the Governing Council in February 1997, and the Programme for the Development and Periodic Review of Environmental Law for the First Decade of the Twenty-first Century, adopted by the UNEP Governing Council in February 2001( Montevideo Programme III).”

The Judges agreed on the following principles that should guide the the Judiciary in promoting the goals of sustainable development through the application of the rule of law and the democratic process:

1)           A full commitment to contributing towards the realization of the goals of sustainable development through the judicial mandate to implement, develop and enforce the law, and to uphold the Rule of Law and the democratic process,

2)           To realise the goals of the Millenium Declaration of the United Nations General Assembly which depend upon the implementation of national and international legal regimes that have been established for achieving the goals of sustainable development,

3)           In the field of environmental law there is an urgent need for a concerted and sustained programme of work focused on education, training and dissemination of information, including regional and sub-regional judicial colloquia, and

4)           That collaboration among members of the Judiciary and others engaged in the judicial process within and across regions is essential to achieve a significant improvement in compliance with, implementation, development and enforcement of environmental law.

For the realisation of these principles the Judges proposed that the programme of work should include the following:

a)           The improvement of the capacity of those involved in the process of promoting, implementing, developing and enforcing environmental law, such as Judges, prosecutors, legislators and others, to carry out their functions on a well informed basis, equipped with the necessary skills, information and material,

b)           The improvement in the level of public participation in environmental decision- making, access to justice for the settlement of environmental disputes and the defense and enforcement of environmental rights, and public access to relevant information,

c)            The strengthening of sub-regional, regional and global collaboration for the mutual benefit of all peoples of the world and exchange of information among national Judiciaries with a view to benefiting from each other’s knowledge, experience and expertise,

d)           The strengthening of environmental law education in schools and universities, including research and analysis as essential to realizing sustainable development,

e)           The achievement of sustained improvement in compliance with and enforcement and development of environmental law,

f)              The strengthening of the capacity of organizations and initiatives, including the media, which seek to enable the public to fully engage on a well-informed basis, in focusing attention on issues relating to environmental protection and sustainable development,

g)           An Ad Hoc Committee of Judges consisting of Judges representing geographical regions, legal systems and international courts and tribunals and headed by the Chief Justice of South Africa, should keep under review and publicise the emerging environmental jurisprudence and provide information thereon,

h)            UNEP and its partner agencies, including civil society organizations should provide  support to the Ad Hoc Committee of Judges in accomplishing its task,

i)              Governments of the developed countries and the donor community, including international financial institutions and foundations, should give priority to financing  the implementation of the above principles and the programme of work,

j)              The Executive Director of UNEP should continue to provide leadership within the framework of the Montevideo Programme III, to the development and implementation of the programme designed to improve the implementation, development and enforcement of environmental law including, within the applicable law of liability and compensation for environmental harm under multilateral environmental agreements and national law, military activities and the environment, and the legal aspects of the nexus between poverty and environmental degradation, and

k)            This Statement should be presented by the Chief Justice of South Africa to the Secretary-General of the United Nations as a contribution of the Global Judges Symposium to the forthcoming World Summit on Sustainable Development, and for broad dissemination thereof to all member States of the United Nations.

2.3 The Judges Ad hoc Meeting for the Development of a Plan of Work as a Follow-Up to the Global Judges Symposium Relating to Capacity Building of Judges, Prosecutors, and other Legal Stakeholders.[45] 

 

The meeting gathered 25 Chief Justices and Senior Judges, representative of different regions and legal systems, to provide advice and guidance on the development of a plan of work for the capacity-building of judicial officers in developing countries and countries with economies in transition as well as other legal stakeholders active in the implementation and enforcement of national environmental law, such as prosecutors, enforcement officers, lawyers, public interest litigation groups, civil society groups active in safeguarding environmental rights of people as well as, in the longer term, teachers and students of environmental law.[46]

The strategy proposed by UNEP was to develop a plan of work that is globally conceived, planned and managed, regionally and sub-regionally delivered, and is nationally tailored and driven so as to be responsive to the needs of each country, for the capacity building of the above mentioned target groups in the field of environmental law. The programme is also designed so as to maximize impact by supporting and complementing similar capacity building activities carried out by other organizations, targeting similar or other interest groups (e.g. the private sector), by providing inputs such as training materials, web-site information, expertise and experiences developed for or gained through this initiative.[47]

The outcome of the Nairobi planning meeting saw the Judges expressing their full support and cooperation to UNEP for the development and implementation of capacity-building programmes directed at target groups, and undertook to contribute towards the programmes for the capacity-building of the Judiciary.

In addition, UNEP established an Ad Hoc Advisory Group of Judges’ representatives of the different regions and legal systems to advise UNEP in the development and implementation of this programme of work especially in regard to the training and capacity of judicial officers. The composition of the Advisory Group is changing in the course of the programme. In its initial stage the Ad Hoc Advisory Group of Judges comprised the following:  Chair – Hon. Justice A. Chaskalson, Chief Justice of South Africa; Members – Hon. Justice Barnabas A. Samatta, Chief Justice of Tanzania; Hon. Justice Hilario G. Davide Jr., Chief Justice of the Philippines; Hon. Justice Guy Canivet, President of the Court de Cassation of France; Hon. Justice Vyacheslav M. Lebedev, Chief Justice of the Russian Federation; Hon. Justice Falefatu M. Sapolu, Chief Justice of Samoa; Hon. Justice Adel Omar Sherif, Deputy Chief Justice of Egypt; Hon. Justice Clifford Wallace, Chief Judge Emeritius, United States Court of Appeal; Hon. Justice Vladimir Passos de Freitas, Federal Judge at the Court of Appeal of Brazil; and Hon. Justice Paul L. Stein Am, Judge, New South Wales Court of Appeal and Judge of the New South Wales Supreme Court.

2.4 UNEP Governing Council Decision 22/17 on Governance and Law

 

After presentation of the outcomes of the Global Judges Symposium at the inauguration of the 22nd Session of the UNEP Governing Council,[48] the General Council unanimously adopted decision 22/17 II A which expressly calling upon its Executive Director to support:

the improvement of the capacity of those involved in the process of promoting, implementing, developing and enforcing environmental law at the national and local levels such as Judges, prosecutors, legislators and other relevant stakeholders, to carry out their functions on a well informed basis with the necessary skills, information and material with a view to mobilizing the full potential of the judiciaries around the world for the implementation and enforcement of environmental law, and promoting access to justice for the settlement of environmental disputes, public participation in environmental decision-making, the protection and advancement of environmental rights and public access to relevant information”. [49]

The objective was to mobilize the potential of the Judiciary around the world for the implementation and enforcement of environmental law and to promote access to justice for the settlement of environmental disputes, public participation in environmental decision-making, the protection and advancement of environmental rights and public access to information.

The strategy adopted was the Executive Director of UNEP to support the improvement of the capacity of those involved in the process of promoting, implementing, developing and enforcing environmental law at the national and local levels such as Judges, prosecutors and other relevant stakeholders, to carry out their functions on a well-informed basis with the necessary skills, information and materials.

The programme under phase I also include the development of a series of environmental law training materials, to be translated into the official languages of the UN. These materials include: A UNEP Manual in Environmental Law; A Judicial Handbook on Environmental Law; Legal Drafters handbooks on specific topics such as water, energy, land and soil management and economic instruments, such as the Guidebook for Policy and Legislative Development on Conservation and Sustainable Use of Freshwater Resources; Two UNEP collections of Texts of Selected Documents on International Environmental Law: – Selected Texts on Legal Instruments in International Environmental Law; Compendia of Summaries of Judgments in environment-related cases from around the world.

Under phase two, which is formulating national capacity-building plans by sub-regional needs assessment and planning meetings of Chief Justices, the following has been achieved: Lviv, 16-17 May 2003, for Chief Justices of Eastern and Central Europe; Bangkok, 17-18 June 2003 for the Mekong region countries; Bueno Aires, 23-24 September 2003, for the Latin American Countries; Nairobi, 10-11 October 2003, for Anglophone African Countries; Johannesburg, 7-8 December 2003, for Southern African countries; Auckland, 15-17 December 2003, for Asia and the Pacific; Cairo, 29-31 May 2003, for the Arab countries; Trelawny, Jamaica, June 12-14 2004, for the English-Speaking Caribbean countries; Paris, February 2005, for the Francophone African countries.  

In this context, UNEP also organized in cooperation with other partners, the following meetings: the symposium on “Johannesburg Summit Next Steps: The Role of the Judiciary in the Implementation and Enforcement of Environmental Law”, held in Rome, on 9-10 May 2003, and organized in cooperation with IUCN and the International of the Environment Foundation (ICEF); the Meeting for the Establishment of a European  Union Judges Forum for the Environment, held at the European Court of Justice, Luxembourg, on 26 April 2004. During the meeting, the participants adopted the Statute of The European Union Forum of Judges for the Environment. Similar associations are being established in different regions. The draft Statute of the Arab Judges Union for the Protection of the Environment was established by a decision at the Cairo Meeting in May 2004. 

 2.5 A Roundtable Dialogue on Advancing MDGs through the Rule of Law

 

In February 2005, prior to the 23rd Session of the Governing Council/Global Ministerial Environment Forum (GC-23/GMEF), UNEP organised a Roundtable Dialogue on advancing MDGs through the rule of law, affirming that an independent Judiciary is one of the key elements of a legal system operating under the rule of law and that the Judiciary is also a crucial partner in achieving the appropriate balance between environmental, social and developmental considerations to achieve sustainable development: moreover, ensuring an informed and active Judiciary is crucial to achieving the MDGs.


3.0       CHAPTER THREE: LEGISLATIVE AND INSTITUTIONAL FRAMEWORK FOR THE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW IN KENYA

3.1 Introduction

 

Widespread concern about the need for global action for the protection of the natural environment is a relatively recent phenomenon. General public awareness of the problems relating to the global environment and need for coordinated multilateral action to address these problems was not evident even a few decades ago. With the wider dissemination of information relating to the ever increasing environmental challenges, international concern has grown steadily over the years. Some interstate efforts to address problems relating to the oceans, endangered species, and other natural resources, date back to the nineteenth century, but many problem areas relating to the environment remained to be addressed.[50]

In Kenya, prior to the enactment of the Environmental Management and Coordination Act, 1999[51] there was no integrated body of National Environmental Law. Instead the law governing environment matters was confined to common law and various statutes regulating sectors such as health, water, forestry, agriculture and industry.

3.2 International Environmental Law and Principles[52]

 

International environmental law is a subset of international law; and international law has been developing over a long period of time. Article 38(1) of the International Court of Justice Statute establishes a practical hierarchy of sources of international law in settling disputes.[53] First, relevant treaty provisions applicable between the parties to the dispute must be employed. In the event that there are no applicable treaty provisions, rules of “customary international law” should be applied. If neither a treaty provision nor a customary rule of international law can be identified, then reliance should be placed on the general principles of law recognized by civilized nations. Finally, judicial decisions and writings of highly qualified jurists may be utilized as a subsidiary means of determining the dispute.

Kenya has ratified a number of MEAs, inter alia, the 1978 Bonn Convention on Migratory Species (CMS), the 1992 Rio De Janeiro Convention on Biological Diversity (CBD), the 1974 Washington Convention on International Trade in Endangered Species (CITES) and the 1971 Ramsar Convention on Wetlands of International Importance as Waterfowl Habitat. However, since Kenya is a dualist state the conventions have to undergo transformation into the national legislation in order to be enforceable within the justice system nationally. However, they remain binding internationally with or without transformation as long as ratification is given.[54] But, the creation of binding rights and obligations is subject to the treaty’s entry into force.

As identified above, Article 38 (1) (c) recognizes general principles of law recognized by civilized nations as an authoritative source of international law. Principles and concepts embody a common ground in internal environmental law; and they both reflect the past growth of international environmental law and its future evolution. Most of these principles have been captured in the body of various multilateral environmental agreements. The 1972 Stockholm Declaration on Human Environment[55] and the 1992 Rio Declaration on Environment and Development[56] recognized the need for increased public participation and education on environmental issues.

Principle 1 of the Stockholm Declaration asserts the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well being. The duty to improve the environment for the future and present generations is recognized. Principle 19 of the Stockholm Declaration advocates for education in environmental matters for the younger generation as well as adults giving due consideration to the underprivileged in order to broaden the basis for an enlightened opinion and responsible conduct by individuals, enterprises and communities in protecting and improving environment in its full human dimensions.

Under the Agenda 21[57] and the Rio Declaration[58] the parameters of sustainable development[59] are clarified.

Principle 4 of the Rio Declaration provides:

“In order to achieve sustainable development, environmental protection shall constitute an integral part of the development and cannot be considered in isolation from it.”

 

Principle 25 of the Rio Declaration provides also:

Peace, development and environmental protection are interdependent and indivisible”.

Principle 4 and Principle 25 makes clear the policies and activities in various spheres, including environmental protection must be integrated in order achieve sustainable development. Principle 10 of the Rio Declaration provided for access to information, public participation and access to justice in environmental matters. The Governing Council (GC) of the United Nations Environmental Programme noted development of UNEP Guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters on 21 June 2008,[60] and is expected to adopt the Guidelines at the special session of the GC in 2009.

Kenya recognizes the above principles and some are expressly articulated under EMCA. Section 3(5) of EMCA borrows several principles and provides that in exercising the jurisdiction conferred upon under subsection (3), the High Court shall be guided by the following principles of sustainable development. First, the principle of public participation in the development of policies, plans and processes for the management of the environment; secondly, the cultural and social principles traditionally applied by any community in Kenya for the management of the environment and natural resources in so far as the same is not repugnant to justice and morality or inconsistent with any written law; the principle of international cooperation in the management of the environmental resources shared by two or more states; the principle of intergenerational and intragenerational equity; the polluter-pays principle; and the precautionary principle.

3.3 National Environmental Legislations

 

National environmental law includes rules at the national level that protects the environment. These consist of the legislation, standards, regulations, institutions and administrations adopted to control activities damaging to the environment within a state.[61]

In many countries the functions of environmental legislation include the following: Reflection of the particular policies and schemes considered by the legislature to be most appropriate for achieving the desired goals; establishment of the institutional machinery for giving effect to those principles and schemes; empowering of the related institutions and partners to function efficiently within the framework of policy parameters; establishment of legislative techniques and regulatory approaches, such as command and control regimes, economic incentives and land use planning and zoning; and provision of adequate financial and human resources.[62]

3.3.1 Physical Planning Laws[63]

 

Physical planning is basically the mechanisms for the management of the environment and in the majority of the countries it served for along time as the only framework for environmental management. Physical planning essentially refers to the organization of the use of physical space and its environmental role arises from its ability to separate incompatible uses because incompatibility in use tends to be the primary positive factor in the perception of pollution. The background to physical planning is to be found in common law specifically in the law relating to property interests in land.

In Kenya there are three principle statutes that deal with physical planning: The Lands Control Act, 1967, The Physical Planning Act, 1996 and the Environmental Management and Coordination Act, 1999.

The Land Control Act regulates development, use and subdivision of agricultural land is used and developed in such a way that good husbandry is not compromised. Consequently the process required that the regulatory institution known as the Land Control Board must be satisfied that the user of the land or the prospective user is capable of putting the land to productive agricultural use.

The physical Planning Act is a much more comprehensive statute that provides for physical planning and development control. The Act institutionally places the functions of physical planning in the office of the Director of Physical Planning, administratively an officer in the Ministry of Lands. The Act states that the Director of Physical Planning is the Chief Government Advisor on all matters relating to physical planning and in that capacity he shall formulate physical development policies, prepare physical development plans, advise the Commissioner of Lands on the alienation of government lands, advise the Commissioner of Lands and the Local Authorities on the most appropriate use of land and require local authorities to ensure the proper execution of physical development control. The Act establishes committees known as physical planning liaison committees at National, Provincial and District levels. The function of these committees is to act as an appeal mechanism from the decisions of the Director of Physical Planning.

As noted earlier, part 6 of the EMCA, 1999 deals with Environmental Assessment. Under section 8, notwithstanding any approval, licence, permit granted under any law in Kenya, before financing, commencing, proceeding with, carrying out, executing or conducting a specified project, the project proponent must apply for and obtain an environmental impact assessment license. This application is made to the NEMA which is established by section 7 of the Act.

3.3.2 Sectoral Environmental Laws[64]

Water Act, 2002[65] is based on the common law position that the landowner owns everything on land and no property in running water, air and light. The land owner whose land abuts on a water course is known as a riparian owner. A riparian owner is considered to have a natural right to use running water. Because the right to use riparian water is shared by all riparian owners, its use must be reasonable. Under section 3 of the Act, every water resource is vested in the State. Under section 25 a permit is required for any use of water from a water resource, any drainage from a swamp. The discharge of a pollutant into any water resource is an offence.

On the whole laws dealing with the management of waste are found in the Public Health Act[66], the Local Government Act[67], and more recently the EMCA, 1999. For example, section 116 of Local Government Act imposes a duty on every local authority to take lawful necessary and reasonable measures for maintaining its districts at all times in a clean and sanitary conditions preventing the occurrence therein or for remedy or causing to be remedied any nuisance or condition liable to be injurious or dangerous to health. It also imposes on the local authority the responsibility to take action against any person causing or responsible for the continuance of any such nuisance or condition; and the EMCA under section 91 gives power to the Standards and Enforcements Review Committee to recommend criteria for classifying waste.

Other laws in this area of waste include, the Medical Practitioners and Dentist Act[68] which establishes the Medical Practitioners and Dentist Board under section 4; the Scrap Metal Act[69] which imposes a license to be issued by the police before dealing in scrap metal; the Use of Poisonous Substances Act[70] requires the Minister to make regulations to protect persons from poisoning substances arising from the storage, transport, sale and disposal of such substances; Finally, the Food, Drugs and Chemical Substances Act[71]; and the Radiation Protection Act[72] which controls import, export, possession and use of radioactive substances and irradiating apparatus (equipments which emit radio activity).

In Kenya, a diverse range of laws deal with the management of hazardous chemicals and substances. They include the Pest Control Products Act[73]; the Pharmacy and Poisons Act[74]; the Energy Act[75]; Fertilisers and Animals Foods Act[76]; and the Foods, Drugs and Chemicals Act[77]. All of these laws are product specific and the objective is precautionary which is an international principle relating to classification, packaging and labeling products. In addition, EMCA has introduced a parallel system of environmental management superior than the sectoral laws. However, it is not clear whether EMCA is superior to pieces of legislations which are being enacted after the EMCA, 1999.

3.4 Environmental Institutions in Kenya

 

The institutions are both international and local.

3.4.1 United Nations Environmental Programme and UN Habitat

This institution can be traced back to the 1972 Stockholm Conference on Environment and Human Settlement which came as a result of the effects of industrial pollution and urban settlement especially to the West. The conference agreed to establish an environmental program with the UN in order to gather scientific data and information on the problem of the environment and to put forward proposals on dealing with the environmental problems identified. That programme was initially located in New York and from 1974 it was relocated to Nairobi by a General Assembly decision. UNEP has become the main institution in the field of environment. The conference also established a center for human settlement also located in Nairobi and known as HABITAT focusing on urban settlement.

3.4.2 Institutions under EMCA, 1999

 

The main management organs established by EMCA are the National Environmental Council (NEC) and the National Environmental Management Authority (NEMA). The NEC is responsible for policy formulation, setting national goals and objectives. Setting priorities for environmental protection, and promoting cooperation amongst public and private organizations engaged in environmental protection programmes.[78] NEMA is the main administrative organ and it is established to exercise general supervision and coordination over all matters relating to the environment.[79] NEMA is also mandated to promote the integration of environmental considerations into development policies, plans, programs and projects.[80]

EMCA also avails a number of adjudicatory mechanisms for environmental matters that members of the public can utilize to secure environmental justice without necessarly having recourse in the High Court. The Public Complaints Commission (PCC) and the National Environmental Tribunal (NET) are vested with broad powers to investigate, review and adjudicate on any allegations or complaints against any person or against the authority (i.e. NEMA) in relation to the coordination of environment in Kenya.[81]

While the PCC offers an informal channel for access to justice against the activities and operations impacting on environment in Kenya, there is no guarantee its recommendations to NEC will be enforced. The NET on the other hand has an appellate jurisdiction to review the administrative decisions of NEMA.

3.4.3 Ministry of Environment

 

The Ministry of Environment is mandated to protect, conserve and manage the environment and natural resources through sustainable exploitation for socio-economic development aimed at eradication of poverty, improving living standards and ensuring that a clean environment is sustained now and in the future. The main functions include to: Monitoring and coordinate environmental activities and enforce compliance of environmental regulation and guidelines; environmental and natural resources policy formulation, analysis and review; sustainable management and conservation of the environment and natural resources; continuous development of geo-database for integrated natural resources and environmental management systems; conduct applied research and dissemination of research findings in forestry, land resources and geology; carry out geological surveys, mineral exploration and regulation of mining and use of commercial explosives.

Under the Ministry there are three departments as follows: Department of Resource Survey and Remote Sensing (DSRS) whose main function is to monitor the conditions, trends of range lands through livestock, vegetation and wildlife surveys; Mines and Geology Department is divided into mining and geology divisions, the geology division carry out surveys and research, maintain a geo-scientific database, information and administration of legislations relating to mineral resources and the mining division involves in mining and policy formulation as well as advising the Government on policy matters; The Kenya Meteorological Department provides meteorological and climatologically services to agriculture, forestry, water resources management, civil aviation and the private sector including industry, commerce and public utilities for the better exploitation and utilization of natural resources for national development.

4.0 CHAPTER FOUR: THE ROLE OF JUDGES IN IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW IN KENYA: A PERSPECTIVE

4.1 Introduction

The role Judges have already been identified earlier. They include implementation of laws and the enforcement of laws. We have also seen that in carrying out this role certain guidelines must be followed to ensure universal interpretation. This includes capacity building and other Judges’ programmes. In particular, Principle 10 of the Rio Declaration emphasizes on access to information, public participation and access to justice.

 In addition, Article 9 of the Aarhus Convention requires,

“3…each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedure to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.[82]

 

It continues,

4…the procedure referred to in paragraph… 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.”[83]   

4.2 Access to Justice

The Rio Declaration, Principle 10, states “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities and the opportunity to participate in decision-making process. State shall facilitate and encourage awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

Agenda 21 underlines that public participation in environmental decision-making is one of the fundamental prerequisite for the achievement of sustainable development. In fact, the Aarhus Convention (Europe) concerning public participation and right of access to information and access to justice in environmental matters is a direct result of an expression of principle 10 of the Rio Declaration on Environment and Development.

Court decisions affect to a larger extent the enforcement and implementation of environmental law, and specifically, access to justice. In Prof. Wangari Maathai Pius, John Njogu, John Makanga v City Council of Nairobi, Commissioner of Lands and Market Plaza Limited[84] the plaintiff sued the defendants and seeking, inter alia, an injunction to restrain the third defendant from selling or carrying out any construction work upon a particular parcel of land, due to its alleged illegal acquisition. The third defendant challenged the standing of the plaintiff to bring the action.

The court held the plaintiff the plaintiff had no locus standi to seek injunctive relief as they did not have sufficient interest to bring the action. The Court established that section 222 of the Local Government Act 1972, only allowed the Attorney General to sue on behalf of the public for the purpose of preventing public wrongs. A private individual could not do so on behalf of the public, though he might be able to do so if he would sustain injury as a result of a public wrong. However, the court has no jurisdiction to entertain such claims by private individuals who had not suffered and were not likely to suffer damage.

In effect, this case locks out private individuals from accessing courts on public interest grounds; particularly, sections such as section 222 of the Local Government Act which expressly identifies the Attorney General as having the requisite standing. Other requirement to be fulfilled, as per the ruling, is establishment of injury (or sufficient interest in the matter) on the part of the plaintiff. Clearly this precedent is bad because it is in breach of Principle 10 and Agenda 21 as set out by UNEP.

Subsequent cases have, however, overruled the above precedent as bad law. In Paul Nderitu Ndungu & Others v Pashito Holdings Limited & Shital Bhandari[85] the defendant owned some parcels of land at Loresho, within the city of Nairobi. The parcels were subdivided and several of their sub parcels were reserved for public utility. After the Commissioner of Lands purported to cancel the titles of the properties, the plaintiffs sought a declaration that the allocation of the properties owned by the defendant was null and void ab-initio, and the corresponding injunction to restrain them from taking possession of them by fencing or developing the said parcels. Plaintiffs consider the parcels are public utility and that the defendants acquired them in an illegal way. Defendants challenged the locus standi of the plaintiffs to bring the suit alleging their lack of sufficient interest.

It was held that considering the public utility character of the parcels, the court stated the wide public interest of the issue and granted the locus standi of the plaintiff. Unlike the previous case, this case expands locus standi by bringing in a new concept of public interest. Private individuals are now allowed to bring environmental cases to court on public interest grounds. Subsequently, the Environmental Management and Coordination Act, 1999 under section 3 expand the locus to include an individual’s right to ‘a clean and healthy environment’.

In other cases the above position has been confirmed, in Republic v Minister for Information and Broadcasting and Ahmed Jibrid exparte E. A. Televisions Network Ltd, Khamoni, J, stated that an applicant only needs to demonstrate that he or she has a “sufficient interest” in the matter before the court and comply with the procedural requirements of Order 53 of the Civil Procedure Rules in order to be granted standing.[86]

More recently in the case of Albert Ruturi and Others v. Minister for Finance & Another, the court stated that “as part of reasonable, fair and just procedure to uphold the constitutional guarantees, the right of access to justice entails a liberal approach to the question of locus standing.”[87]

Perhaps, a controversial decision relates to that of Justice E. Mukule who once in his ruling in R v NET, NEMA, Malindi Greenbelt Movement & Malindi Residents[88] tried to limit locus standi by arguing that only affected parties could bring environmental matters in court. This position has been rejected and it was not followed in Giakaro Grace v 4 Others[89].

Elsewhere in other parts of the world, access to environmental justice has been expanded to include right to sue on behalf of succeeding generations. A Philippines Supreme Court decision in Juan Antonio Oposa and Others v The Honourable Fulgencio S. Factoran and Another[90] the Supreme Court held that the Petitioners had he right to sue on behalf of succeeding generations because every generation has a responsibility to the next generation to preserve the rhythm and harmony of nature for the full enjoyment of a balanced and healthful ecology.

4.3 Appraising Past Environmental Decisions

4.3.1 Sea Star Malindi Ltd v Kenya Wildlife Services[91] 

The applicant sought orders of certiorari, mandamus and prohibition against the decision and actions of Kenya Wildlife Services (KWS) in banning and restricting it from building a hotel in Malindi. The KWS had ordered the applicant its construction on the land allegedly because there was a 100 feet space between the applicant’s land, the high water mark, which space fell under the jurisdiction of KWS under the Wildlife (Conservation and Management) Act.[92] KWS stated that the area needed to be preserved in order to ensure the protection of the fragile ecosystem of the area.

The applicant argued that the land had always remained freehold private land and that that there was no record showing that it had been acquired by the Government for any public use. It stated that its documents of titles and the survey records showed that the land extended up the Malindi Municipality had given its approval to the building plans.

The court held, inter alia, that in situation where private land is required to be protected area so as to protect the ecosystem for the greater good of the environment the procedure provided by section 6(1) of the Wildlife. The actions and decisions of the respondents were ultra vires and illegal and remained so unless the legal requirements of the Wildlife Management Act and Land Acquisition Act were complied with it was also against section 75 of the Constitution.

In my view this decision is controversial owing to the existence of the precautionary principle in international environmental law. It is worth noting that this decision did not give enough attention to the contention by KWS that the area needed to be preserved in order to ensure the protection of the fragile ecosystem of the area. Instead, lack of want of procedure took centre stage. Under principle 15 of the Rio Declaration 1992, in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

 

4.3.2 Peter Kinuthia Mwaniki & 2 Others v Peter Njuguna Gicheha & 3 Others[93]

This case represents what I regard as a proper decision making by an environmental court. In this case the 3 plaintiffs sued the 4 defendants jointly and severally seeking a permanent injunction to restrain the defendants, their agents and servants from constructing or continuing to construct a slaughter house in the parcel of land and known as Plot No Zone 6 within Limuru Township.

The plaintiffs suit is grounded on the fact that the defendants have contravened the law in that their act of building a slaughter house in the neighbourhood is in contravention of section 58 and 75 of the EMCA, as they have neither sought and obtained a license to discharge effluent, nor have undertaken an Environmental Impact Assessment, or obtained an environmental assessment license. The plaintiff claimed further in paragraph 14 of the plaint, further, the plaintiff avers that in failing to comply with the above stated environmental statutory provisions, the defendants acts are likely to cause injury to the plaintiff and is a violation of the plaintiff basic right to clean and healthy environment.

The defendant denied the plaintiff’s claim in the defence and at paragraph 8 thereof stated, ‘‘further the defendant state that the EMCA does not apply retrospectively, but in any event the defendants have not breached any of its provisions.

In his judgment the learned Judge turning to the defence filed, and particularly at paragraphs 7 and 8 which is outlined in this judgment, the Judge found that no evidence was adduced in court to show that the slaughter house was being constructed to international standards, with specific regards to water, waste disposal….’’ The learned Judge also rejected the defence in paragraph 8 because the Judge believed the plaintiffs’ evidence which shows that the defendant breached the relevant provisions of EMCA,1999 especially section 58 of the application for an EIA license which the defendants did not and still do not have. As the defendants had not made any provisions for disposal of effluent discharge, yet their butchery was almost ready for use, the Judge found that they were likely to contravene the provisions of section 75 of the Act. Finally, though the matter of ‘locus’ was not raised in the defence or the issues filed in court, the Judge nevertheless felt that he should refer to it, and say that the plaintiffs, though not the owners of the land in dispute, nevertheless have the authority being derived from section 3[3] of EMCA which states, if a person alleges that the entitlement under subsection [1] to a clean and healthy environment]has been, or is likely to be contravened in relation to him, then without prejudice to any other act with respect to save matter which is lawfully available, that person may apply to the High court for redress and the High court make orders, issues such writs or give directions as it may deem appropriate. [a]to prevent, stop or discontinue any act or omission deleterious to the environment.

The above case demonstrates the wide nature of Section 3(3) to allow anybody, so far, to be able to challenge any matter relating to environment. This liberal approach adopted by the courts has made environmental litigation in Kenya very successful in the recent past.

 

4.3.3 Rodgers Nzioka & 2 others v. Tiomin Kenya Limited[94]

Tiomin Kenya Ltd, the defendant, was a locally incorporated subsidiary of Tiomin Resources Inc. of Canada.  Tiomin Kenya obtained licences to prospect for titanium in Kwale District.  The plaintiffs were the local inhabitants of the prospective mining area and brought this suit on their behalf and on behalf of other inhabitants. 

The plaintiffs sought an injunction to restrain the carrying out of the mining activity in Kwale and for declaratory order that any mining carried out there would be illegal.  They also prayed for general damages.  The plaintiffs were concerned not only that Tiomin Kenya was not offering them adequate compensation but also that mining activity would result in numerous environmental and health problems which could not be adequately compensated in damages.  They argued that Tiomin Kenya had not submitted an Environment Impact Assessment Plan and that it had not been licenced under section 58 of the Environmental Management and Co-ordination Act, No.8 of 1999 (the EMCA).

For its part, Tiomin Kenya stated that it was merely prospecting and not mining titanium and that it was acting pursuant to a licence issued under the Mining Act (Cap. 306).  It stated that it was legally acting as an agent or nominee for Tiomin Resources Inc of Canada.

Hayanga, J, stated that in cases where a person 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 be invaded.  The Judge reasoned that the traditional tests for the grant of an injunction established in the celebrated case of Giella vs. Cassman Brown[95] may need to be revised in cases concerning environmental degradation.  His major opinion was that since environmental degradation affects the public at large, the balance of convenience test should be applied with a view to considering the convenience of the public as opposed to that of the parties to the suit.  Further, he stated that EMCA prevails over the sectoral legislation where there is conflict, on the reasoning that “where the provisions of one statute not expressly repeal the earlier Act, the courts admit an implied repeal.”  He held that EMCA prevailed over the Mining Act.

This case demonstrates the superiority of EMCA over other sectoral environmental laws and thereby successfully dealing with the contradictions that were already manifest.

4.3.4 Lereya & 800 Others v. Attorney General & 200 Others[96] (the famous toothless goat case).

The five plaintiffs together with 796 other persons describing themselves as the affected resident of Marigat Divison of Baringo District in the Rift Valley Province sued the Attorney General, the Minister for Environment and Natural Resources and the National Environment Monitoring Authority (the 1st, 2nd and 3rd defendants respectively) seeking the eradication of a week plan on their land.  The plaint averred that about the year 1983, the government of Kenya authorized the Food and Agriculture Organization (FAO) to introduce the weed, Proposis Juliflora, in Ng’ambo Location of Marigat Division, ostensibly to curb desertification.  After its introduction, the weed, which is invasive in nature, allegedly went out of control so that in twenty years, it had overgrown and continued to spread over Marigat and Magutani Divisions causing harm to humans, livestock, and the environment.

Counsel for the 1st and 2nd defendants raised a preliminary objection to the suit, which was supported by the 3rd defendant.  The objection was based on four grounds:  first that the plaintiffs had not served the statutory notice of intention to sue on the Attorney General as required under the Government proceedings Act (Cap 40) section 13A.

The plaintiffs had exhibited a notice stated to have been issued by the trustees of Ilchamus Community Development Trust.  While the notice showed its date of signature to be 29th September 2005, the rubber stamp affixed to it purportedly signifying the Attorney General’s receipt of the notice bore the date of the previous day, i.e. 29th September 2005.

The second ground of the preliminary objection was that the suit was barred by statutory limitation.  The basis for the plea of limitation was in essence that since the government was said to have introduced the week in 1983 and the suit was filed in 2006, i.e. over 20 years later, the suit was time-barred.  In opposing this argument, plaintiff’s counsel submitted that because the environmental harm which was the subject matter of the suit was continuing, then limitation did not apply.

The final ground of the preliminary objection was that the plaintiffs had no specific interest in the subject matter and therefore, they lacked locus standi and that there was mis-joinder of the 2nd defendant, the Minister for Environment and Natural Resources, as he was not capable of being sued under the provisions of section 12 of the Government Proceedings Act.

The court held that EMCA filled the gap existing in Kenyan law by being the first statute containing provisions specifically addressing the issue of locus standi in matters of environment.  Specifically at page 770 the court stated that “there is no plea in the present suit that it is frivolous, vexatious or an abuse of the court process.  On the basis of section 3(3) and (4) of EMCA; we hold that the preliminary objection based on the ground of lack of locus standi has no merit and is hereby also dismissed.”

This case confirms the wide nature of section 3(3) and (4) of EMCA as regards the question of locus standi. Other Judges have, however, wrongly restricted locus despite the provisions.

 

4.3.5 Nakumatt Holdings Limited v National Environmental Management Authority & Another[97]

This case involved the Appellant appealing against the 1st Respondent’s approval of the EIA Project Report submitted by the 2nd Respondent in support of the application for an EIA licence for the development of a housing estate to be known as Eagle Plains Housing Estate on plot L.R. No. 209/10829 Nairobi. The land on which the estate is proposed to be adjoins the Headquarters of the Appellant and lies in an area off Mombasa Road. Prior to seeking an EIA licence the 2nd Respondent had begun the construction of the project, apparently unaware of the requirement of the EMCA, 1999 but on being informed on the need of an EIA licence it stopped construction.

The Appellant’s objection was that the proposed residential project would not be in harmony with the existing industries surrounding the plot, of which the Appellant’s activity was one. The Appellant claimed that the air pollutions in the area are higher than that of World Health Organization standards for long term human exposure and that heavy traffic density and 24 hours industrial operations produce high noise levels for residential development. In addition, the Appellant argues that the proposed development which was a proposal to construct 350 unit housing estate in an area where not less than 13 industries were located was “out of character with its surroundings” consequently, it could not be approved on the basis of the project report alone, and required a full Environmental Impact Assessment study.

In evidence the Appellant faulted the EIA project report on the grounds that it proceeded only on the basis that the only relevant consideration was that potential impact of the project in the area on which the proposed project was to be located. On this basis, the Respondent had come to the conclusion that there were no potentially adverse impacts which the project was likely to inflict on the environment in its locality that could not be adequately mitigated. In the Appellants view, this was completely the wrong premise on which to have proceeded.

What the EIA report should have done, in Appellants view, was to look at the potential impact of the proposed project of the environment in the locality. Had they done so, they would have realized that an area with industrial activities, an allegedly high traffic and noise pollution levels, the perceived risks of explosions arising from the manufacture of gas cylinders, possible danger from the manufacture of vaccines thought to be going on in the vicinity and radiation arising from mobile phones transmitters located nearby, was not an appropriate areas in which to locate a major residential estate. But because the EIA study team had not approached the matter in that way, they had not found it necessary to collect the relevant data that would have demonstrated the inappropriateness of this location for the proposed project.

The witnesses for the Respondents defended the decision to grant the approval on the basis of the project report alone. They argued that the area in which the project was located had been designated in the Physical Planning laws as Zone 9, in which both light industrial and residential development are allowed. They pointed out that the relevant planning authorities including the Ministry of Lands and the City Council of Nairobi had granted the required permits for the proposed development…. The witnesses further gave evidence of the actual mixed developments that are to be found in the area including, residential estates, a hotel, godowns, other commercial establishments and light industries.

In its ruling the Tribunal noted that the purpose of EIA licencing process as prescribed by Part VI of EMCA, 1999 and Environmental (Impact Assessment and Audit) Regulations[98] which are made thereunder is to assess the likely significant impact of proposed project on the environment. In deciding on he nature of likely impacts, Account must be taken on the status of the area underwhich the project will be undertaken. Consequently, the levels of air pollution, traffic noise and other features of the environment in the area off Mombasa road in which the project is to be carried out are relevant considerations….What is critical for these proceedings is to ascertain the actual status of the environment in the locality.

The Tribunal continued, the evidence showed that the, for this purpose, in the absence of statutorily prescribed limits, Kenya relies on the WHO Standards. The claim by the Appellant that residence within this locality would expose those living within the proposed estate to serious health risks or account of high levels of pollution in the area were not substantiated by credible evidence.

The Tribunal also found that no evidence was adduced by the Appellant’s witness or anyone else that this project would adversely impact on the environment in ways that could not be mitigated by the measures that had been proposed in the EIA Project Report. In addition to the proposed mitigatory measure, the 1st Respondent and other regulatory authorities can resort to provisions available in the EMCA, 1999 and other laws, among them, the requirement for regular environmental audits, to require that the activities being carried on in the area within which the proposed project is to be located do not cause unavoidable environmental degradation. Accordingly, there are mechanisms in place for managing the potential adverse environmental impacts that might arise from this project.

In dismissing this appeal the tribunal acknowledge the existence of irregularities, however, in rejoinder they took the view that these irregularities do not vitiate the decision taken by the 1st Respondent on the central issue, that is, that the development of a residential estate in the proposed location is not likely to introduce significant adverse environmental impacts which cannot be mitigated through appropriate measures, such as those proposed in the EIA Project Report.       

It therefore emerges that while there could be a legitimate need for the protection and conservation of the environment, the same must be balanced with the need to develop. This has been what is now termed as sustainable development in current environmental jurisprudence.

5.0 CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS

5.1 Introduction

This chapter attempts a summary of the dissertation itself with the aim of drawing reasonable conclusions and recommendations based on the research. These conclusions and recommendations espoused through fair commenting and judgment aimed at reflecting on the role of the Judge. Suggestions for further research have been attempted.

5.2 Restatement of the Objectives of the Research

 

The objectives of the research were identified as follows:

  1. To contribute to the development of environmental discourse on the role of Judges in the implementing ad enforcing of environmental law;
  2. To identify the major challenges Judges face in implementing and enforcing environmental laws in courts and tribunals;
  3. To appraise on the achievements of the UNEP Judges Environmental Programme and suggest recommendations;
  4. To find out the impact of bad environmental decision making in the implementation, development and enforcement of environmental law;
  5. To understand the role of the Judge in the Implementation and Enforcement of Environmental Law

 

5.2 Summary of the Content

This research has revealed that the position of the Judge is unique. As earlier noted, the Judge plays the role of upholding the rule of law, interpreting and enforcement of laws and peaceful settlement of disputes. In carrying out his role, the Judge faces several challenges that extends also to the Judiciary. Lord Woolf identified them as: guaranteeing access to court, ensuring the independence of the Judiciary, and the protection of the environment in the new context of sustainable development. In protecting the environment, the major challenge identified was lack of capacity. The lack of capacity on environmental law has led to poor and non-uniform implementation and enforcement of environmental laws.

While most environmental laws and principles applied nationally and internationally are both progressive and comprehensive, they present a possible challenge to most of the Judges, especially those without environmental law background. This, therefore, justifies the UNEP’s global Judges Initiative to try and improve on capacity not only that of the Judge but also all other legal practitioners. This approach has so far seen a positive progress and many people have benefited. Most significantly is the resource materials published and made available has proven to be invaluable. The periodic global trainings have also proven to be very empowering to the stakeholders around this area.

While Kenya has a comprehensive sectoral laws on environment, it has yet to domesticate/transform all of its international obligations into legislations applicable locally. However, a few aspects of international law and principles have been contained under EMCA and the Judiciary has occasionally applied international principles even where they are not domesticated nationally. There are also a few contradictions and duplications between EMCA and other environmental laws; the jurisprudence available has however confirmed the supremacy of EMCA as opposed to the other environmental legislations.

In terms of institutions, Kenya can be commended for having in place an elaborate system of addressing environmental concerns as well as managing the environment. Without derogating from the gains associated with the same, there is need to streamline environmental management by clearly defining the roles of each institution – Ministry of Environment, Local Governments and institutions under EMCA.  

The determination made by Judges in courts shows the gap existing between legislating around environment and the actual implementation and enforcement of the same. This gap presents a dangerous default towards the preservation and protection of the environment. In essence what this means is that without proper determinations in court the environment may suffer albeit the existence of progressive legal instruments.

5.3 Conclusions

It is emergent in this research that some Judges are not up to the task in the implementation and enforcement of environmental law. A particular attention is seen in the debate around access to justice. Other inconsistencies are also seen in the way cases are decided in courts. Finally, in order to achieve the goal of universal interpretation of environmental law by all Judges a lot needs to be done to increase on a Judge’s capacity.

The role of Judges in the implementation and enforcement of environmental law includes:

  1. The role of the Judge includes the interpretation and enforcement of environmental law, principles and concepts towards environmental protection and conservation;
  2. In making decisions in court the Judge should understand that proper decision making in courts is a crucial guarantee towards environmental protection and conservation nationally and internationally;
  3. Increasingly any development decisions should incorporates sustainable development as a concept in environmental governance;
  4. The Judges plays a crucial role in the development of environmental law and policy, and jurisprudence through their ratios and obiters in deciding environmental matters;
  5. Some Judges in their absolute discretion can facilitate the importation of international environmental concepts, doctrines and principles for application nationally through the court process;
  6. The Judges play a watchdog role to the other branches of Government especially when undertaking development in the country, they also checks environmental administrative institutions and remedies aggrieved persons;
  7. Judges are involved in settlement of disputes and to an extent the maintenance of peace by ensuring environmental protection and conservation;
  8. Judges can ensure members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravenes provisions of its national law relating to the environment.
  9. All Judges should be empowered to be the ambassadors of environment and ensure its conservation and protection;
  10. The training of legal practitioners and Judges at the university and the national professional institutions of law MUST include in their curricular the training on environmental law as a compulsory unit as opposed to an elective unit;
  11. The resource materials developed through the UNEPs’ Global Judges Programme should be disseminated and / or made easily available in all libraries and bookshops for reference, research and training purposes;
  12. UNEP should consider supporting the development of clubs and organizations in the university and outside the university, and the civil society organizations working towards capacity building on environment of the legal practitioners in the Judiciary;
  13. There should be developed a reward scheme to recognize Judges and legal practitioners who have made outstanding and fundamental contributions to the field of environment annually through the judiciary, “The Judges & Legal Practitioners Environmental Award”;

5.3 Recommendations

International Level

National Level

  1. The right to a clean environment should be expressly constitutionalized in Kenya, the previous draft constitutions had attempted to include environmental law in its Bill of Rights[99];
  2. The sectoral laws and EMCA should be reviewed through the National Law Review framework to streamline the contradictions and duplications currently manifest;
  3. The Ministry of Environment, NEMA and other environmental institutions in Kenya should be streamlined (their functions) to ensure effective coordination and management of the environment;
  4.  The mandate to issue environmental licenses should be a strict preserve of NEMA after presentation of EIA report;

10. The establishment of specialized environmental courts at the High Court will reduce the instances of poor decision making around environmental matters;

11. There is a need to establish a national website specifically for environmental cases reporting and resources like in Germany, Austria and Belgium;

12. The introduction of legal aid around environmental matters will ensure more access to environmental justice and improve participation by the public on environmental governance.

5.4 Recommendations for Further Work (Research)

Acknowledging the limitations of this research I recommend the undertaking of the following research:

  1. A baseline survey on the achievements of the Global Judges Programme to establish its effectiveness and achievements so far;
  2. A research study on the role of other legal personnel apart from Judges in the implementation and enforcement of the environmental law;
  3. The effectiveness and efficiency of the existing environmental law and institutions nationally in preserving and protecting the environment.
  4. The feasibility of an annual Judges and Legal Practitioners Award Scheme and its benefit in promoting role of Judges in the Implementation and enforcement of environmental law.

 


[1] The Principles were adopted in the 1972 Declaration of the United Nations Conference on the Human Environment and adopted at the 21st Plenary Meeting of the UN on 16 June 1972 in Stockholm, Sweden.

[2] Act No. 8 of 1999. It came into force in 14th January 2000.

[3] Established under the Environmental and Co-ordination Act, 1999 (Act No.8 of 1999).

[4] Read the Preface to the Second Edition of the IUCN Environmental Policy and Law Paper No. 56 Rev., An Introduction to the African Convention on the Conservation of Nature and Natural Resources, IUCN 2006, at ix.

[5] Ibid at ix.

[6] Klaus Topfer at the time of writing was an Executive Director at UNEP.

[7] Read the Foreword to the Training Manual on International Environmental Law, UNEP 2006, at iii.

[8] The EMCA, 1999 was the first law in Kenya that attempted to integrate existing laws for the coordination and management of the environment.

[9]Act No. 8 of 1999 which came to force on 14th January 2000.

[10] Read the Message from the Executive Director as found in the Judicial Training Modules on Environmental Law: Application of Environmental Law by National Courts and Tribunals, UNEP 2007.

[11] UNEP Global Judges Programme, UNEP 2005

[12] Supra Note 9.

[13] High Court of Kenya, 2006

[14] The 1992 Rio Declaration http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=78&ArticleID=1163

[15] HCCC No. 5403 of 1989.

[16] Supra Note 10

[17] Message delivered at the Judges’ Forum on Environmental Protection: Philippine Environmental Law, Practice, and the Role of Courts, on August 14, 2003, at the PHILJA Development Center, Tagaytay City.

[18] Supra Note 10.

[19] Separate Opinion of Vice-President Weeramantry in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ, 1997, General List No. 92, 25 September 1997.

[20] Ogolla D. Bondi, “Environmental Law in Africa: Status and Trends”, International Business Lawyer, October 1995.

[21] UNEP Judicial Handbook on Environmental Law, 2005, Chapter 5

[22] Chapter 8, paragraph 13 of Agenda 21 of the United Nations Conference on Environment and Development held in Rio de Janeiro, Brazil, 1992 UNCED.

[23] Supra Note 20..

[24] Ibid.

[25] Rt Hon Lord Justice Carnwath CVO, Access to Environmental Justice, (Unpublished paper presented at the Aarhus Workshop – Prague April 2008.

[26] The symposium, hosted and chaired by Chief Justice Arthur Chaskalson of South Africa, brought together more than 120 Chief Justices and senior Judges from over 60 countries including several Judges from international courts and tribunals.

[27] Johannesburg 2002.

[28] UNEP Judicial Handbook on Environmental Law, 2005, Chapter 5.

[29] Supra Note 10.

[30] Ibid.

[31] This introduction can also be read from: http://www.unep.org/law/Programme_work/Judges_programme/index.asp, Web Accessed on 13 April 2009 at 2.15pm.

[32] Montevideo Programme III, the programme adopted in 2001, identifies the Judiciary as one of the key target groups for capacity building activities in the field of environmental law.

[33] This information can also be accessed at: http://www.unep.org/Law/Programme_work/Judges_programme/Judges_prog_regional.asp, Web accessed on 29 April 2009 at 4.00pm.

[34] Ibid.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] For more information visit: http://www.unep.org/law/Symposium/Judges_symposium.htm Web accessed on 5 May 2009 at 3.00pm.

[41] The convener was Executive Director of UNEP, Mr. Klaus Toepfer, in close cooperation with Hon. Valli Moosa, the Minister for Environment Affairs and Tourism of South Africa.

[42] “”Paper tigers” can be interpreted to mean some of the comprehensive MEA’s on environmental law.

[43] Quoted from a press conference released by the Department of Public Information – News and Media Services Division – New York on 27 August 2002. The statement captures what I would have said in my summary to this subchapter.

[44] Adopted on 20th August 2002, in Johannesburg , South Africa.

[45] Nairobi, Kenya – 30-31 January 2003

[46] http://www.unep.org/law/Symposium/Default.htm

[47] Ibid.

[48] Held in Nairobi in February 2003 by Justice Arthur Chaskalson (Chief Justice of South Africa).

[49] UNEP Judicial Handbook on Environmental Law, 2005,

[50] See Generally,”Multilateral Environmental Agreements”, in Training Manual on International Environmental Law, (UNEP 2006), pp 1 – 13.

[51] Act No. 8 of 1999.

[52][52] See Also, Training Manual on International Environmental Law, UNEP 2006.

[53] The Sources listed under Article 38(1) are regarded as the Authoritative sources of international law, and thus also of international environmental law.

[54] 1969 Vienna Convention on the Law of Treaties, Article 12.

[55] Stockholm, June 1972.

[56] Rio De Janeiro, June 1992.

[57] Agenda 21 is a statement of principles on how to achieve sustainable development in the 21st centrury.

[58][58] Adopted at the United Nations Conference on Environment and development

[59] See also the Brundtland Commission on Environment and Development Report, Our Common Future, 1978 for definition and findings on Sustainable development.

[60] UNEP/GC.25/INF/15/Add.2

[61] See also The Role of National Environmental Law in the Training Manual on International Environmental Law, UNEP 2006, pp 15 – 22.

[62] University of Nairobi, Environmental Law Notes, 2004

[63] Ibid.

[64] Ibid.

[65] Came into effect in March 2003.

[66] Cap 242 Laws of Kenya.

[67] Cap 240 Laws of Kenya.

[68] Cap 253 Laws of Kenya.

[69] Cap 503 Laws of Kenya.

[70] Cap 247 Laws of Kenya.

[71] Cap 254 Laws of Kenya.

[72] Cap 243 Laws of Kenya.

[73] Cap 346 Laws of Kenya.

[74] Cap 244 Laws of Kenya.

[75] Of 2006.

[76] Cap 145 Laws of Kenya.

[77] Cap 254 Laws of Kenya.

[78] Section 5 of EMCA 1999.

[79] Section 9(1) EMCA 1999.

[80] Section 19(2)(a)

[81] Section 37 EMCA 1999.

[82] Aarhus Convention Art 9 as quoted by Rt Hon Lord Justice Carnwath CVO in his unpublished paper presented at Aarhus Workshop-Prague April 2008 titled Access to Environmental Justice.

[83] Ibid.

[84] High Court of Kenya at Nairobi Civil Case No. 72 of 1994. The case can be accessed from the UNEP Compendium of Summaries of Judicial Decisions in Environment-Related Cases, page 7.

[85] High Court of Kenya at Nairobi Civil Case No. 3063 of 1996; the case can be accessed from the UNEP Compendium of Summaries of Judicial Decisions in Environment-Related Cases, page 6.

[86] [2006] eKLR

[87] [2002], 1 KLR 61

[88] High Court MAHCCMA 3 of 2006. Judgement date, 9th May, 2008

[89] NET No. 25 of 2008

[90] G.R. No. 101083 Supreme Court. The case can be accessed from the UNEP Compendium of Summaries of Judicial Decisions in Environment-Related Cases, page 143.

[91] Miscellaneous Civil Suit No. 982 of 1997.

[92] Cap 376

[93] [2006] eKLR.

[94] [2006] 1 KLR (E&L) 423 at pg

[95] [1973] EA 358

[96] [2006] 1 KLR (E & L) 761

[97] [2005] eKLR; This case was a Tribunal Appeal Net 01/02/2005.

[98] Legal Notice No. 101 of 2003.

[99] Section 67 of the Proposed New Constitution, 2005

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