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 27th 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).
