IMPLICATIONS OF THE CONSTITUTION OF KENYA OF 2010 ON ENVIRONMENTAL GOVERNANCE, RIGHTS AND OBLIGATIONS

Kenya promulgated its new constitution in the year 2010, and to many, this constitution set off a new dawn by resorting to manage and/or address the various historical injustices and issues that had risen since time immemorial. 

It also brought to it various amendments and improvements to the 1969 Constitution.  It simplified the text in order to enhance comprehension of its provisions. This is because it is the Supreme law of the Republic that binds all persons and all State organs at both levels of government, echoed in Article 2(1) of the Constitution. 

The Constitution covers a multitude of sectors and aspects of human existence in Kenya as well as our relations with the international community. 

This article is however limited to focus on provisions relating to the environment, which is an important concern in not only Kenya, but also the world at large. 

Environmental Rights 

The Constitution expressly provides in Chapter 4, Article 42 that: Every person has the right to a clean and healthy environment, which includes the right:- 

a) To have the environment protected for the benefit of present and future generations through legislative and other measures; 

b) To have obligations relating to the environment fulfilled. 

Article 42 gives us a glimpse but is not conclusive picture on what constitutes the environment. However, Chapter 5 provides ample information as to what the word “environment” constitutes. It has two categories: Land and Environment and Natural Resources.

Principles of Land Policy The Constitution also enshrines these principles, which are meant to govern the use of land (private, public and community land) in a manner that equitable, efficient, productive and sustainable. 

These principles are: (a) Equitable access to land; (b) Security of land rights; (c) Sustainable and productive management of land resources; (d) Transparent and cost effective administration of land; (e) Sound conservation and protection of ecologically sensitive areas; (f) Elimination of gender discrimination in law, customs and practices related to land and property in land; and (g) Encouragement of communities to settle land disputes through recognized local community initiatives consistent with the Constitution. 

MANAGEMENT OF LAND 

The overall body responsible with matters land is the National Land Commission (NLC).

Its functions are:

 (a) To manage public land on behalf of the national and county governments; 

 (b) To recommend a national land policy to the national government; 

 (c) To advise the national government on comprehensive landholding by non-citizens;

 (d) To conduct research related to land and the use of natural resources and make recommendations to appropriate authorities; 

 (e) To initiate investigations, on its own initiative or on a complaint, into present or historical land injustices and recommend appropriate redress; 

 (f) To encourage the application of traditional dispute resolution mechanisms in land conflicts; 

 (g) To assess tax on land and premiums on immovable property in any area designated by law; 

 (h) To monitor and have oversight responsibilities over land use planning throughout the country; and 

 (i) All other functions prescribed by national legislation. 

Role of the State 

The State has obligations on pertaining to environment and natural resources. 

In this regard, Article 69 provides that the State is to ensure:

(a) Sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; 

(b) Work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya; 

(c) Protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities; 

(d) Encourage public participation in the management, protection and conservation of the environment; 

(e) Protect genetic resources and biological diversity;

(f) Establish systems of environmental impact assessment, environmental audit and monitoring of the environment; 

(g) Eliminate processes and activities that are likely to endanger the environment; and 

(h) Utilise the environment and natural resources for the benefit of the people of Kenya. 

REDRESS FOR VIOLATIONS OF ENVIRONMENTAL RIGHTS 

Every person has the duty to not only cooperate with State organs in the protection and conservation of the environment, but also to ensure ecologically sustainable development and use of natural resources. As such, if it is alleged that the right protected under Article 42 above mentioned has been, or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies available in respect to the same matter. The Constitution thus gives locus standi to every person who has reason to believe that right protected under Article 42 has been, or is likely to be, denied, violated, infringed or threatened. 

Once an application has been made, the Court may either make any order or give any directions, it considers appropriate:

(a) To prevent, stop or discontinue any act or omission that is harmful to the environment; 

(b) To compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or

(c) To provide compensation for any victim of a violation of the right to a clean and healthy environment. 

AGREEMENTS RELATING TO NATURAL RESOURCES 

It is important to note that any agreements relating to natural resources is subject to ratification by Parliament if: 

(a) It involves the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resource of Kenya; and 

(b) It is entered into on or after the effective date. These agreements will be governed by legislation enacted by Parliament, which is to provide for the classes of transactions subject to ratification as above mentioned and enact legislation to give full effect to the provisions relating to environment and natural resources, pursuant to Article 71 (2) and 72 of the Constitution. We trust the above brief shed some light on IMPLICATIONS of the Constitution of Kenya of 2010 on environmental governance, rights and obligations. Nonetheless, should you require any clarification on the matters canvassed herein-above, please contact us. 

For: STRATEGIC LEGAL SOLUTIONS GROUP 

Teddy Okello, & Centre for Environmental Law – a participating legal consultancy firm in the SLS Group of Consultancies. 

info@stralexgroup.com