B Hons Nrb, LL. Abstract Abstract Equity, particularly intergenerational and intragenerational equity, is central to the concept of sustainable development. The rhetoric of equity has been incorporated in sustainable development instruments and is already part of customary international law.
For example, until about a decade ago, the country never had any law or policy specifically designed to address violations of environmental rights.
Litigants had to resort generally to the law of contract and tort to redress environmental breaches. Environmental matters were strictly private law affairs that were of less concern to the main branches of public law.
The promulgation of a new Constitution in August signifies a paradigm shift in so far as the implementation of environmental rights is concerned. In contrast to its predecessor, the Constitution of Kenya strengthens the implementation of environmental rights.
In particular, it significantly expands the scope of fundamental rights as well as their enforcement mechanisms.
The article evaluates how the new Constitution deals with the question of the implementation of environmental rights in Kenya. It reviews the efficacy of both the normative and institutional mechanisms put in place to implement environmental rights.
It also highlights the potential challenges to the enforcement of these rights in the country.
As a way forward, the article suggests approaches to enhance the effective implementation of these rights. In contrast to its repealed predecessor, the Constitution dedicates a number of its provisions specifically to environmental rights and their protection.
The desperate search for a sustainable framework for the effective management of the environment culminated in the enactment of the Environmental Management and Co-ordination Act EMCA in Rather unfortunately, the Act turned out to be too weak for such an expectation. The repealed Constitution did not make matters any better as it failed to expressly give credence to environmental rights and their implementation.
Environmental rights were not among the rights listed in chapter V of the repealed Constitution. The said chapter contained a catalogue of human rights.
It is worth noting that the enforcement of environmental rights under the previous constitutional dispensation was a herculean task.
This was due mainly to the rigidity of the laws that restricted the institution of legal proceedings against violations of rights. The courts also relied heavily on administrative law principles of locus standi to stifle the enforcement of environmental rights.
This explains why, in several instances, the courts relied overly on common law principles to determine environmental issues. For example, in Wangari Maathai v Kenya Times Media Trust Ltd, 9 the High Court ruled that only the Attorney-General could sue on behalf of the public and, therefore, the plaintiff had no right of action against the defendant.
In this case, the High Court relied on administrative law to determine the question of locus standi. The enforcement of environmental rights in Kenya, during the existence of the repealed Constitution, was to a large extent based on the common law principles established in the case of Gouriet v the National Union of Post Office Workers, 10 where the Court had held: It was a fundamental principle of English law that public rights could only be asserted in a civil action by the Attorney-General as an officer of the Crown representing the public.
Except where statute otherwise provided, a private person could only bring an action to restrain a threatened breach of the law if his claim was based on an allegation that the threatened breach would constitute an infringement of his private rights or would inflict special damage on him.
The High Court of Kenya entrenched this position in many cases involving violations of environmental rights.In Kenya the right to a clean and healthy environment which inter aliaincludes the right to have the environment protected for the benefit of present and future generations has been codified in the legal framework and the courts have had occasion to interpret this right in the Kenyan context.
Enviroment Enforment of Law in Kenya. Topics: Management EMCA establishes several organs as discussed below which help in the effective enforcement of environmental law: i) National Environmental Council It is responsible for policy formulation and directing, setting national goals and objectives, determining policy and priorities for the.
The enforcement of environmental rights in Kenya, during the existence of the repealed Constitution, was to a large extent based on the common law principles established in the case of Gouriet v the National Union of Post Office Workers,10 where the Court had held.
How can Environmental Law be effectively enforced in Kenya? For environmental law to be effectively enacted in Kenya their needs to be emphasis on the need for a universal environmental ethic. There needs to be a concern on the ability to provide information that changes behaviour towards the environment i.e.
not stopping at awareness creation. Feb 27, · Act in CO Okidi et al (eds) Environmental governance in Kenya: Implementing the framework law () CO Okidi: Review of the policy framework and legal and institutional arrangement for the management of environment and natural resources in Kenya, The Constitution of Kenya, The Environmental Management and Coordination Act, There are a number of law enforcement organisations in Kenya, with the main organisation being the Kenya Police Service.
Kenya employs up to 40, police and paramilitary personnel.