ENVIRONMENTAL POLICIES AND LEGAL FRAMEWORKS AT A GLANCE

1.1 POLICIES

1.1.1 National Environmental Action Plan (NEAP)

According to the Kenya National Environmental Action Plan (NEAP, 1994) the Government recognized the negative impacts on ecosystems emanating from industrial, economic and social development programmes that disregarded environmental sustainability. Established in 1990, the Plan’s effort was to integrate environmental considerations into the country’s economic and social development. The integration process was to be achieved through a multi-sectoral approach to develop a comprehensive framework to ensure that environmental management and the conservation of natural resources are an integral part of societal decision-making. Under the NEAP Process, Environmental Impact Assessment (EIA) was introduced, and among the key participants identified were the industrialists, business community and local authorities.

1.1.2 National Policy on Water Resources Management and Development

While the National Policy on Water Resources Management and Development (1999) enhances a systematic development of water facilities in all sectors for the promotion of the country’s socioeconomic progress, it also recognizes the by-products of these processes as waste-water. It, therefore, calls for the development of appropriate Sanitation Systems to protect people’s health and water resources from pollution. Projects should therefore be accompanied by corresponding waste management systems to manage wastewater and other wastes emanating therefrom. The same policy requires that such projects should undergo comprehensive E.I.As.

1.1.3 Policy Guidelines on Environment and Development

Amongst the key objectives of the Policy Paper on Environment and Development (Sessional Paper No. 6 of 1999) are: (a) the need to ensure that from the onset, all development policies, programmes and projects take environmental considerations into account, and (b) to ensure that an immediate Environmental Impact Assessment (EIA) report is prepared for all kinds of developments before implementation. Under the Sessional Paper No. 6 of 1999, broad categories of development issues, amongst them being the Human Settlement Sector, have been covered that require sustainable approach. The policy recommends the need for enhanced re-use/recycle of residues including wastewater, use of low non-waste technologies, increased public awareness and appreciation of clean environment. It also encourages participation of stakeholders in the management of wastes within their localities. In respect to Human Settlement, the paper encourages better planning in both rural and urban areas, and provision of basic needs such as water, drainage and waste disposal facilities among others.

1.2 THE LEGAL FRAMEWORK

1.2.1. The Constitution of Kenya

The Constitution of Kenya is the supreme law of the Republic and binds all persons and all State organs at all levels of government. Kenyans passed a new constitution in a referendum held on 4 August 2010, and the State promulgated it on the 27^th September 2010 into Law. It repealed the older version drafted and at Lancaster, United Kingdom, in 1964. The Constitution of Kenya, 2010 provides the broad framework regulating all existence and development aspects of interest to the people of Kenya, and along which all national and sectoral legislative documents are drawn.

In relation to the environment, Article 42 under Chapter Four on the Bill Of Rights confers to every person the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations through legislative measures, particularly those contemplated in Article 69, and to have obligations relating to the environment fulfilled under Article 70. Chapter 5 of the Constitution enshrines the main pillars on which the 77 environmental statutes are hinged.

Part 1 of the Chapter 5 dwells on land, outlining the principles informing land policy, land classification as well as land use and property. The second part of Chapter 5 directs focus on the environment and natural resources. It provides a clear outline of the State’s obligation with respect to the environment which obligations are outlined below:-

§   Ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;

§  Work to achieve and maintain a tree cover of at least ten percent (10%)of the land area of Kenya;

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

§  Encourage public participation in the management, protection and conservation of the environment;

§  Protect genetic resources and biological diversity;

§  Establish systems of environmental impact assessment, environmental audit and monitoring of the environment;

§  Eliminate processes and activities that are likely to endanger the environment; and

§  The station being constructed will impact on sensitive components of the physical and natural environment hence need for a clearly spelt out environmental management plan to curb probable adverse effects to the environment.

The Constitution further makes provisions on enforcement of environmental rights as well as establishment of legislation relating to the environment in accordance with the guidelines provided in this chapter. In this regard, it provides that:

§  In conformity with the Constitution of Kenya, 2010, every activity or project undertaken within the Republic must be in tandem with the State’s vision for the national environment as well as adherence to the right of every individual to a clean and healthy environment.

§  Utilise the environment and natural resources for the benefit of the people of Kenya.

1.2.2. The Environment Management and Coordination Act, 1999

This Act defines the legal and administrative co-ordination of the many diverse sectoral initiatives in environment. This Act harmonizes the sector-specific legislations touching on the environment in a manner designed to ensure wholesome protection of the environment. This Act is guided by the policies of the National Environmental Council, while the day-to-day enforcement falls under the Director General of the National Environmental Management Authority (NEMA). Thus, NEMA enforces the Act on behalf of the Minister responsible for Environment. Its functions include:-

        i.            The coordination of various environmental management activities;  Initiation of legislative proposals; Research, investigations, and surveys on the field of environment;

     ii.            Creation of environmental education and awareness programmes;

   iii.            Advise the government on regional and international agreements to which Kenya is party to;

   iv.            Executing the Environmental Impact Assessment (EIA) under the Environmental Impact (Assessment and Auditing) regulations, 2003, among other duties.

1.2.3. The Petroleum Act, 1972 (Cap 116)

Implementation of the Petroleum Act has witnessed several challenges in the petroleum sector, which include:

·         proliferation of substandard petroleum;

·         dispensing and storage sites which pose environment health and safety risks;

·         diversion of petroleum products destined for export into the local market by unscrupulous business people to evade tax; and

·         dominance of the market by a few companies among others.

The Government of Kenya has noted these challenges in its Energy Policy contained in Session Paper No. 4 of 2004 on Energy and recommended review of the Petroleum Act Cap 116 and other energy sector statutes and the introduction of a new energy sector legislation to cover petroleum, electricity and renewable energy. Session Paper No. 4 of 2004 on Energy also recommended the formation of a Single Energy Sector Regulator to regulate electricity, downstream petroleum, renewable energy and other forms of energy.

1.2.4. The Occupational Safety and Health Act, 2007

This is an Act of Parliament which provides for: the safety, health and welfare of workers and all persons lawfully present at work places; the establishment of the National Council for Occupational Safety and Health; and for connected purposes. The Act seeks to:

·         Secure safety and health for people legally in all workplaces by minimization of exposure of workers to hazards (gases, fumes & vapours, energies, dangerous machinery/equipment, temperatures, and biological agents) at their workplaces.

·         Prevent employment of children in workplaces where their safety and health is at risk.

·         Encourage entrepreneurs to set achievable safety targets for their enterprises.

·         Promote reporting of work-place accidents, dangerous occurrences and ill health with a view to finding out their causes and preventing of similar occurrences in future.

·         Promote creation of a safety culture at workplaces through education and training in occupational safety and health.

Failure to comply with the OSHA, 2007 attracts penalties of up to KES 300,000 or 3 months jail term or both or penalties of KES 1,000,000 or 12 months jail term or both for cases where death occurs as a consequence of employer’s action or inaction. The Occupational Safety and Health Act (OSHA) 2007 repealed the Factories and Other Places of Work Act. Anything done under the provisions of the Factories and Other Places of Work Act including subsidiary legislation issued before the commencement of the OSHA 2007 shall be deemed to have been done under the provisions of this Act.

The Factories and Other Places of Work Act had over the years passed several subsidiary rules and regulations for effective implementation of the Act. All these regulations, as long as it is not inconsistent with OSHA 2007, remains in force until repealed or revoked by subsidiary legislation under the provisions of OSHA 2007 and shall for all purposes be deemed to have been made under this Act.

These regulations include:

·         The Factories (Cellulose Solutions) Rules 1957;

·         The Factories (Wood Working Machinery) Rules 1959;

·         The Factories (Dock) Rules 1962;

·         The Factories (Eye Protection) Rules 1978;

·         The Factories (Electric Power) (Special) Rules 1978;

·         The Factories (Building Operations and Works of Engineering Construction)

·         The Factories and Other Places of Work (Health & Safety Committees)

·         The Factories and Other Places of Work (Medical Examination) Rules 2005;

·         The Factories and Other Places of Work (Noise Prevention and Control)

·         The Factories and Other Places of Work (Fire Risk Reduction) Rules 2007;

·         The Factories and Other Places of Work (Hazardous Substances) Rules 2007.

The scope of OSHA 2007 has been expanded to cover all workplaces including offices, schools, academic institutions and plantations. It establishes Codes of Practices to be approved and issued by the Director, Directorate of Occupational Health and Safety (DOHS) for practical guidance of the various provisions of the Act.

Machinery safety to include:

·         Safe use of machinery, plant and equipment;

·         Prime makers and transmission machines;

·         The maintenance, construction of fencing safeguards;

·         The statutory requirements of various machines, plants and equipment (hoists and lifts, chains and ropes, cranes, steam receivers and containers, air receivers, cylinders for compressed liquefied and dissolved gases and refrigeration plants).

Chemical safety including:

·         Handling, transportation and disposal of chemicals and other hazardous substances;

·         Labelling and marking of chemical substances;

·         Control of air pollution, noise and vibrations;

·         Redeployment on medical advice.

1.2.5. The Water Act 2002

Part II, section 18, of the Water Act, 2002 provides for National Monitoring and Information Systems on water resources. Sub-section 3 thereof allows the Water Resources Management Authority to demand from any person or institution, specified information, documents, samples or materials on water resources. Under these rules, specific records may be required to be kept by a facility operator and the information thereof furnished to the authority.

Section 73 of the Act allows with a holder of a license (licensee) to supply water to develop operational guidelines for purposes of protecting water sources from degradation. Section 75 (1) allows a Licensee to construct and maintain drains, sewers and other works for intercepting, treating or disposing of any foul water arising or flowing upon land for preventing pollution of water sources within his/her jurisdiction.

1.2.6. The Public Health Act (Cap. 242)

Under this Act, every local authority or health authority is mandated to take all lawful, necessary and reasonable practicable measures to prevent all injurious conditions in premises, construction condition or manner of use of any trade premises. Under this Act, nuisances include: any noxious matter or waste water, flowing or discharged from any premises wherever situated, into any public street, or into the gutter or side channel of any street or watercourse; or any accumulation or deposit of refuse or other offensive matter. Every municipal council and every urban area council may make by-laws as to buildings and sanitation.

1.2.7. The Local Government Act (Cap. 265)

The Local Government Act  has provisions for the making of by-laws in respect of suppression of nuisances, imposing fees for any license or permit issued in respect of trade or charges for any services. Local authorities, whose functions have since been taken over by County Governments, are given power to control or prohibit all developments which, by reason of smoke, fumes, chemicals, gases, dust, smell, noise, vibration or other cause, may be or become a source of danger, discomfort or annoyance to the neighbourhoods, and to prescribe the conditions subject to which such developments shall be carried on.

 

1.2.8. The Physical Planning Act, 1996

This Act provides for the preparation and implementation of Physical Development Plans for any development or infrastructure. It establishes the responsibility for the physical planning at various levels of Government in order to remove uncertainty regarding the responsibility for regional planning.

It provides for a hierarchy of plans in which guidelines are laid down for the future physical development of areas referred to in a specific plan. The intention is that the Three-Tier Order Plans, the National Development Plan, Regional Development Plan, and the Local Physical Development Plan should concentrate on broad policy issues.

The Act also promotes public participation in the preparation of plans and requires that in preparation of plans, proper consideration be given to the potential for socio-economic development needs of the population, the existing planning and future transport needs, the physical factors which may influence orderly development in general and urbanization in particular, and the possible influence of future development upon natural environment.

Part V section 30 of the Physical Planning Act states that no person shall carry out development within an area of local authority without a development permission granted by the respective local authority. The Physical Planning Act has provisions to control development and use of land in particular areas, especially where a project may involve subdivisions or amalgamation of land parcels, or located in an area otherwise reserved for other uses. The Act grants power to the local authorities to consider and approve all Development Applications and grant all Development Permission.

1.2.9. Water Quality Regulations

Water Quality Regulations apply to water used for domestic, industrial, agricultural, and recreational purposes; water used for fisheries and wildlife purposes, and water used for any other purposes. Different standards apply to different modes of usage.

These regulations provide for the protection of lakes, rivers, streams, springs, wells and other water sources. The objective of the regulations is to protect human health and the environment. Effective enforcement of the Water Quality Regulations leads to a marked reduction of water-borne diseases and hence a reduction in the health budget.

The regulations also provide guidelines and standards for the discharge of poisons, toxins, noxious, radioactive waste or other pollutants including petroleum products into the aquatic environment in line with the Third Schedule of the regulations. The regulations have standards for discharge of effluent into the sewer and aquatic environment. While it is the responsibility of the sewerage service providers to regulate discharges into sewer lines based on the given specifications, NEMA regulates discharge of all effluent into the aquatic environment.

Everyone is therefore required to refrain from any actions, which directly or indirectly cause water pollution, whether or not the water resource was polluted before the enactment of the Environmental Management and Coordination Act (EMCA) in 1999. It is an offence to contravene the provisions of these regulations with a fine not exceeding five hundred thousand shillings (Kes. 500,000.00).

1.2.10. Waste Management Regulations

The Minister for Environment and Natural Resources gazetted these regulations in 2006. These Regulations are to be cited as the Environmental Management and Coordination (Waste Management) Regulations, 2006. Waste Management Regulations are meant to streamline the handling, transportation and disposal of various types of waste. The aim of the Waste Management Regulations is to protect human health and the environment. Currently, different types of waste are dumped haphazardly posing serious environmental and health concerns. The regulations place emphasis on waste minimization, cleaner production and segregation of waste at source.

A proponent of a project must observe the guidelines as set out in the Environmental Management Plan as well as the recommendation provided for mitigation /minimization /avoidance of adverse impacts arising from the Project activities.

 

1.2.11. Energy Act, 2006

In 2006, the Energy Act No. 12 of 2006 was enacted. This led to the transformation of the then Electricity Regulatory Board to the Energy Regulatory Commission (ERC) to also regulate petroleum and renewable energy sectors in addition to electricity. The Act states in Section 5(a)(ii) that the objects and functions of ERC include regulating the importation, exportation, transportation, refining, storage and sale of petroleum and petroleum products. Accordingly one of the functions of the ERC is the licensing of petroleum import, export, transport, storage, refining and sale.

Construction Permits are also to be issued by ERC for all petroleum related facilities in order to check proliferation of substandard sites. All petroleum operators are required to comply with provisions for Environment Health and Safety. Petroleum products should also meet the relevant Kenya Standards.

1.2.12. Electricity Power Act No. 11 of 1997

The Electric Power Act No. 11 enacted in 1997 deals with generation, transmission, distribution, supply and use of electrical energy as well as the legal basis for establishing the systems associated with these purposes. In this respect, the following environmental issues are to be considered before approval is granted:

·         The need to protect and manage the environment, and conserve natural resources.

·         The ability to operate in a manner designated to protect the health and safety of the project employees, the local and other potentially affected communities.

Under Schedule 3 of the Electric Power {licensing) Regulations 2003, it is mandatory to comply with all safety, health and environmental laws. Moreover, schedule 2 (regulation 9) of the Electric Power (licensing) Regulations 2003 stipulates that licensing and authorization to generate and transmit electrical power must be supported by the following documents which are approved by NEMA. Environmental Impact Assessment Report (EIA) or Initial Environmental Audit Report (IEA).

1.2.13. Way Leave Act

The areas zoned for communication lines, sewer lines, power lines, water pipes etc are known as WAY LEAVES. The Way Leave Act prohibits development of any kind in these designated areas. Thus any developer is bound by this Act to see to it that no development takes place in these areas.

CONCLUSION

We trust that the above presentation on environmental policies and legal frameworks at a glance will be useful in your decision making processes. However, should you have any further queries regarding issues arising herein, please do not hesitate to contact us at info@stralexgroup.co.ke or on + 254 715 310 677 for clarification.

Prepared for Strategic Legal Solutions Group Limited, by:

Teddy Okello, through Centre for Environmental Law & Policy (a participating consultancy firm in the SLS Group of consultancies).