The Kenyan Constitution’s Enhanced Focus on Protecting Environmental Rights

The 2010 Kenyan constitution was hailed as progressive for dealing with issues rarely addressed by national law. Issues of land and environment are addressed in Part2 of Chapter 5 of the Kenyan Constitution. The state has an obligation to protect the environment as well as protect the rights of the people in regards to their dependence on and use of the environment.

Article 69: 7 Environmental Obligations of the Kenyan State

Article 69 of the new Kenyan constitution outlines the obligations of the state in protecting the environment. These obligations include, but are definitely not limited to the following 7 points:

1. Ensuring sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensuring the equitable sharing of the accruing benefits;
2. Working to achieve 10% forest cover of Kenyan land mass;
3. Protecting the indigenous communities’ knowledge in biodiversity and genetic resources;
4. Protecting genetic resources and biodiversity;
5. Prohibiting activities that harm the environment;
6. Establishing systems to monitor, audit, and assess impact on the environment by various activities;
7. Ensure gains from the environment benefit all Kenyans.

Lofty goals one and all, but you know what they say about shooting for the moon – even if you fail, you just may land on the stars.

Article 42: The Enforcement of Environmental Rights

Article 42 of the constitution guarantees the people a clean and healthy environment. This includes the right to have the environment protected in the present and future generations. Article 70 expands on this by stating that anyone who feels these rights have been denied, infringed, violated, or threatened can seek legal redress in a court of law.

The court as a state agency has an obligation to stop, prevent and discontinue any act of commission or omission that is harmful to the environment. It has the powers to compel a state officer to take action to stop the harmful actions. Where the case can be proven that the victim’s rights were indeed violated or denied, the court can order compensation or any redress it sees fit.

NEMA: The Protector of the Environment

The Kenyan government has taken steps to protect the environment over the years. The biggest efforts are in halting environmental degradation. The government has committed to facilitate planting of 30 million trees in the next 3 years.

The National Environmental Management Authority is a state agency to deal with environmental related issues. It also has the mandate to monitor, audit and assess the impact of different activities on the environment.

The parliament also passed the Mining Act (2016). This act guides the exploitation of mineral resources and the sharing of the benefits. The act states that minerals are part of the land held in trust by the government and as such the government has the obligation to ensure equitable distribution of the gains from these resources, and further protect the land during their exploitation.

The new Kenyan constitution greatly expands the responsibilities of the state in protecting the environment for all Kenyans – and reiterates the country’s regional and global importance in doing so. We should all look forward to the day when Nairobi’s streets are clean with the smallest and slimmest options for trash bins in every corner, and a populace that is legitimately concerned for it.
We can all dream, right?