Public Interest Environment Litigation

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by Ruth Nzioka*

This refers to a branch of law that prevents, mitigates, remedies or compensates for harm done to the environment. The necessity lies in the rapid degradation of environment and the need of efficient environmental management. The right to defend the environment is usually provided for by the laws of each country, either constitutionally or by an Act of parliament. These laws will usually include a provision allowing “any person” to bring suit in court against “any person” who violates the statute. These law suits have many unique characteristics that distinguish them from typical civil litigation.

Usually in the common law countries, for one for one to file a suit, one must have locus standi. This becomes difficult to prove in environmental cases. However, this problem was resolved with the enactment of the Environmental Management and Coordination Act, No.8 of 1999.It spells out that every citizen has a right to bring an action to protect the environment and does away with the requirement of sufficient personal interest. The Constitution of Kenya, 2010 provides in Article 42 that every citizen has a right to a clean and healthy environment. It further provides in Article 70, where an environmental right is violated or is likely to, the person may apply to court for redress. Article 22(c) sums it up by stating that every person has a right to institute court proceedings claiming that a fundamental right has been violated in the interest of the public. All this simply means that anyone of us can bring an action in court with the interest of protecting our environment. An action can be brought for public interest litigation under the following:

  1. Environmental degradation
  2. Violation of basic human rights of the poor
  3. Content or conduct of government policy
  4. Compel municipal authorities to perform a public duty
  5. Violation of religious rights or other basic fundamental rights

According to Bhagwati J. in Bandhua Mukti Morcha-Vs-Union of India, AIR 1984 S.C. “Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice, which is the signature tune of our Constitution”.

Public interest litigation has been used as an effective tool to control acts of environmental degradation. In Uganda for example, civil societies have been active in compelling government and private organizations to observe measures to protect the environment. In TEAN Vs Ag and NEMA [Misc. Application No. 39 of 2001], court forced a tobacco company to increase the size of the cigarette warning on cigarette packs and advertisements; the court also held that public smoking pollutes the environment and is a danger to the health of non smokers. In India smoking was held to be a violation of the right to life of non-smokers in Ramakrishnan and others Vs State of Kerala [AIR 1999 Kerala 385], while in Enviro-Legal Action Vs Union of India [1996] 2 LRC 226, the Indian supreme court held that uncontrolled pollution of water sources and air by industrial wastes was a threat to right to life.

Although a vital branch of law, people are yet to start using it as a tool to safeguard a clean and healthy environment. This can be attributed to the fact that though not a new concept, it is being made aware to the citizens, while for others it seems like an unrealistic venture and futile as gains one no personal benefits as seen in civil suits. Its uniqueness thus creates a number of challenges which i discuss briefly.

  1. Non-justiability

 First and foremost the some environmental cases have been held by American and Canadian courts as non-justiciable. This is tortious actions in nuisance concerning greenhouse gas emissions. Defendants to such climate change litigation have argued that courts lack subject matter jurisdiction to adjudicate the plaintiff’s claims as they raise non-justiciable political questions. Common law tort claims do not present non-justiciable political questions. The only issues are those inherent in the adjudication of the plaintiff’s common law tort claims. There is no federal constitutional statutory provision committing any of these issues to a federal political branch.

The issue of justiciability needs to be addressed by potential public interest litigants in the choice of the type and subject matter of the litigation. A wrong choice could doom the litigation from the start.

  1. Willing and able plaintiffs

While there may be legal suits capable of being brought to prevent, harm to the environment, which are justiciable by the courts, citizens or citizen groups must be willing and able to bring them. Willingness is a product of not only enthusiasm and zeal for the environmental cause but also a cultural attitude. The cultural tradition of the country needs to support, and not impede citizen access to justice through legal suits. Public interest litigation is often a form of protest, challenging powerful interests in the government and the private sector.

Where protests and challenges to power are met with sanctions, citizens and citizen groups will be inhibited from taking public interest litigation. Hence, promotion of public interest litigation involves promotion of democratic principles of free speech and assembly, and access to justice.

Ability is a product of many factors, including knowledge and experience of the subject matter of the legal suit and of the substantive and procedural law governing the suit, the capacity to access sufficient and adequate human, financial and material resources to bring and maintain the suit, and personal attributes such as dedication, perseverance and resilience. Public interest litigation is not easy, only special plaintiffs prevail

  1. Knowledgeable, experienced and willing lawyers

Citizens and citizen groups can represent themselves in courts; they are not required to be represented by lawyers. However, lawyers can improve the prospects of a citizen action succeeding if they are knowledgeable and experienced in litigation, especially in litigation of the type and subject matter of the particular action. Public interest litigation, by its nature, complexity and importance, justifies engaging the assistance, advice and advocacy of leading lawyers. There is a need, therefore, to facilitate access to such lawyers, including by addressing the issue of cost.

  1. Funding of litigation

A critical issue for the public interest litigant is how to fund public interest litigation, including the cost of access to leading lawyers. There are numerous methods that have been used around the world. First, the public interest plaintiff can raise the funds themselves. For citizen groups, this tends to be difficult. Fundraising activities and events tend to raise only a small proportion of the funds needed.

Philanthropic funding source, such as charitable foundations and donors, are usually disinclined to fund litigation because of its adversarial nature.

Secondly, plaintiffs and the lawyers can agree to seek legal aid for the particular case.

Legal aid is usually provided by the government. In Kenya however, legal aid public interest environmental matters is difficult to obtain as some of the environmental issues sought to be challenged are of interest to the government.

  1. lack of awareness

Generally, there is a high level of ignorance on environmental issues. This is because society feels there are bigger problems to solve other than planting a mere tree. This therefore means, citizens who are environmentally conscious will be the only ones to take cases to court. On the other hand lawyers and judges will only facilitate protection of the environment if they are aware of environmental law and their role in management of the environment.

  1. intimidation/threats/corruption

It is obvious public interest environmental litigation challenges the powerful in the society. This therefore presents a difficult battle for the weaker person, as they will use all means necessary to frustrate the litigation, if not being frustrated they will receive threats that maybe to extreme seeing a litigant withdraw the lawsuit.

In light of these challenges, the importance of public interest litigation cannot be overstated. It may be one of the less attractive law branches but indeed the most important as it is one of the tools the world is using to safeguard sustainable development for the present and future generations. Public interest litigation is important because of several factors. These are:

  1. a) In most developing countries, the legal regime of environmental laws is weak and the laws are difficult to enforce and sometimes ambiguous. Public interest litigation has helped bridge this gap.
  2. b) Public interest litigation is important where the government is not willing to promote/protect the environment. The government may not be willing to prosecute those who violate environmental laws and at times the government is a violator of environmental laws. In some jurisdictions an injunction can be brought to compel or stop the government from degrading the environment.
  3. c) In most developing countries governments lack resources to prosecute and investigate all the criminal cases that take place within its jurisdiction. Public interest litigation enables individuals to bring action on behalf of the community, a role the government may not play.
  4. d) Where criminal remedies are not enough, e.g. a fine may be too small compared to the amount of environmental degradation. A civil suit is well suited for orders such as restitution and compensation which may not be provided for by criminal laws of a country.
  5. e) Where criminal remedies are not enforceable, e.g. where a crime is committed by a company and yet the punishment for the crime is imprisonment, it becomes hard to punish the company. Litigation on behalf of the public can be brought as a tort under negligence, nuisance and the rule of strict liability in Rylands Vs Fletcher.

    The success of public interest environment litigation in Kenya in promoting sustainable development will depend on the level of environmental awareness and willingness. It further requires the existence of a supportive group of lawyers trained and experienced in environmental law and who are willing to take up environmental cases. Most importantly however, success in public interest litigation will depend on co-operation  and role of all stakeholders, given the complex political nature of the environmental question.

*Ruth Nzioka is a Legal Researcher at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.

International Climate Initiative (IKI):Vertical integration and learning for low-emission development in Africa and Southeast Asia (V-LED)

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 An increasing number of national and regional support programmes and new funding approaches and initiatives are emerging particularly in industrialized countries seeking to strengthen local climate action through financial and capacity building measures. Efforts to improve enabling conditions for local climate actions are being undertaken and important lessons are starting to emerge:  improving planning and implementing capacities in local level governance institutions and initiating and advancing learning exchanges among the institutions. Moreover, the results of such initiatives are increasingly being fed back into national and international climate policy processes in order to promote their replicability.

 To contribute to the above global efforts, The Institute for Law and Environmental Governance (ILEG) and adelphi Germany GmbH are partnering in implementing an International Climate Change Initiative (IKI) on “Strengthening national and county capacities to promote climate resilient low carbon development at county level in Kenya: Learning through exchange and networking.” The project is funded by Germany’s Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMUB). Its overall goal is to contribute to the achievement of national climate-resilient low-carbon targets and priorities. County governments in Kenya are crucial in national climate policy, with decisive roles in the country’s climate-resilient low-carbon development and strong potential to promote efforts towards achieving national and global mitigation goals. The project will be implemented in Siaya and Kwale counties in Kenya.

 As one of the activities under the project, ILEG organized for an inception workshop on 24th June 2015 at Sarova Panafric Hotel in Nairobi, Kenya. The participants to the workshop were key stakeholders drawn from community representatives, civil society, government, private sector and development partners. The workshop aimed at presenting the project to the stakeholders to seek convergence with the ongoing initiative, while exploring the gaps, barriers, and challenges encountered in achieving low carbon development. It was envisaged that this would  help align the project’s priorities with national and county climate change adaptation and low-carbon development planning priorities in Kenya.

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Implementation of Article 71 of the Constitution of Kenya,2010

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by Ruth Nzioka*

Kenya is in a period of interest in exploration and development of oil, natural gas and other mineral resources in the recent past. Other natural resource sectors such as fisheries, forests, and hydro-power are also increasingly attracting investments both from local corporations and multinational companies. Contracts relating to these resources are in most cases signed between the national government and the companies, with parliament. The Constitution of Kenya 2010 sought to change this by requiring parliament to ratify agreements relating to natural resources. The Constitution states in Article 71 states that a “transaction is subject to ratification by Parliament if it––(a) 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. The Constitution further requires Parliament to enact legislation providing for the classes of transactions subject to ratification and to give effect to the provision above. The timeline given by the Constitution for the said legislation to be enacted by Parliament is 5 years from the promulgation of the Constitution. This time limit expires in August 2015 which means the legislation has to be enacted before then.

In order to comply with this requirement, the Ministry of Environment, Water and Natural Resources (MEWNR) set up a technical Committee and hired a Consultant to develop the Bill. The Consultant, Prof Albert Mumma from University of Nairobi has since developed a draft Bill, the Agreements Relating to Natural Resources (Ratification by Parliament) Bill. Following invitation from the Ministry, ILEG Executive Director Benson Ochieng has been part of the Technical Committee working on the Bill.

Draft bill on Agreements relating to Natural Resources (Ratification by parliament) Act.
The bill is divided into six parts: Preliminary; Classes of Transactions; Submission of the agreements to the cabinet secretary; Procedure for ratification; Administrative arrangements; and Miscellaneous provisions. The following is a brief overview of the main features of the draft bill.

Preliminary
An agreement relating to natural resources is defined in the bill as an agreement whether or not in writing, which grants to a party the right to exploit a natural resource and includes permit issued under county or government legislation.

Analysis
The above means therefore an agreement can either be a contract or a license. Whether or not the contract can be oral is yet to be agreed upon. Of interest to our discussion though is the aspect of a permit as a form of an agreement. The Bill therefore alludes that a person seeking to exploit natural resources in Kenya can present to parliament for ratification a contract or a permit issued by a local authority in line with legislation .In this case the permit becomes precedes the contract, while the contract in our case precedes the permit.

The Bill defines a beneficiary as one who has been granted the right to exploit, while a grantor is one who grants this right.
The term cabinet secretary is defined in bill as the cabinet secretary for the time being responsible for natural resources.

Analysis
This definition presents a conflict due to the existence of the problem of multiplicity of players as regards management of natural resources in Kenya. This therefore raises the question of, who is to be the cabinet secretary of in this Bill. Article 132 of the Constitution of Kenya seems to be the proposed solution. This Article provides empowers the president to appoint cabinet secretaries in accordance with Article 152.The fallback position in case the president fails to appoint a cabinet secretary seems therefore to be the one adopted by the Bill.

Natural resources mean natural resources as defined in Article 260 of the Constitution. This refers to the physical non-human factors and components.

Analysis
This definition would seem likely to gain criticism for being too broad. It however is worthy to note that a new definition by the Bill would risk a failure to include all natural resources in Kenya and thus the definition by the constitution would seem to be appropriate as captures it all.

Parliament is defined as the National Assembly and the Senate, while the relevant house is either of both depending on the context in which the phrase is used.

Analysis
According to the Bill, this means both houses will ratify the agreement. The issue however is which committee of the parliament will be responsible for this?

Section 3 provides for transactions entered into between the effective and commencement date. These transactions will be deemed valid. It further states that any exploitation of natural resource in Kenya contrary to provisions of the Bill will be deemed unjust enrichment and beneficiary of exploitation refund to the government financial benefit obtained from the exploitation.
Analysis

Two issues are raised in this context. The Bill does not provide for agreements already entered into before the effective date. The second issue is, the requirement to pay a refund may encourage furtherance of none ratified transactions as the refund maybe too little a burden to the beneficiary, hence suggestion to put an alternative penalty. The refund costs should also be inclusive of costs of loss and destruction to environment.

Classes of transactions
Section 5 provides for 5 classes of transactions. These are concessions relating to exploitation of endangered species, protected areas, with a national of a foreign state, for taking resources out of Kenya, those under the Public Private Partnership Act, 2013 and for private commercial benefit.

Section 5(2) provides for transactions that shall not be subject to ratification unless parliament by a majority vote, decides to ratify transaction relating to this section. These transactions are those that are for subsistence purposes, for scientific research, educational or non-commercial purposes, those that have already been through the process of public consultation and those that have followed an open tender process in line with our laws.

Analysis
This section though imperative in one sense, as the burden on an individual person of this law would be burdensome and costly. In light of this, it therefore opens a doorway for a number of issues. First, there is a risk of people presenting their transactions in this classes as a disguise, secondly, this section is oblivious to intellectual property rights of indigenous people and third the tendering process in Kenya is always rigged with corruption and this is just an open door for the same.

For purposes of Section 5(2), Section 6 requires that these agreements should anyway be notified to the cabinet secretary. It further states that these transactions will become valid after 30 days have lapsed, without a majority vote.

Analysis
One would argue that this section beats the purpose of section 5(2) as still in a subtle way the transactions are still part of the rigorous process of getting approval. The argument however is this section is not meant to beat it’s purpose, but to acknowledge that parliament retains the power to ratify any transaction regardless of its nature as empowered by the Constitution.

Section 6(2) states that an agreement entered into during a period when parliament is not in session, the time will begin to run on the day parliament resumes. This is to deter people from taking advantage of time when parliament is not in this session to enter into these transactions.

Submission of agreements to cabinet secretary
A beneficiary is required to submit the agreement to the cabinet secretary within 14days of entering into the agreement. This is to be accompanied by a memorandum that is to state as provided for in section 7(2).

Analysis
The requirements that accompany the agreement in this section, fails to include a clause on the analysis of sustainability of the exploitation. This is imperative as the transactions that are ratified should be geared towards sustainability as required by our constitution.

Within 7 days of its receipt the cabinet secretary will give one copy of the agreement to the clerk in each house of parliament. Section 9 provides that there is an implied term that compliance with the Act is a condition to an agreement’s validity as lack of agreements not ratified in accordance with the Act shall be void; Section 10.No public officer is bound to give effect not such an agreement.

Analysis
Kenyan public officers are notorious for sometimes if not most failing to comply with the law. It is in line of this that it was suggested that to include a criminal offence for both the beneficiary and public officer who fails to comply with this requirement.

Procedure for ratification
Upon receipt from cabinet secretary, the clerk will refer it to relevant committee of the house. This transaction shall then be publicized inviting the public to give their comments within seven days, Section 11.

Analysis
The question that arises therefore is, which media platform would then be used to divulge this information to reach the public most effectively and even then, would 7days suffice, as sufficient public consultation?

Section 12 provides for preliminary determination of the class that the transaction falls in, to be done within 14days.Upon determination, this will be submitted to the speaker of the relevant house. Where neither house passes resolution by a majority vote within 30 days, the agreement shall become effective in terms of section 6.

Where agreements are subject to ratification, the agreement will be tabled in the relevant house within 90days.The agreement will be deemed ratified unless within 120days the relevant house resolves it not ratified or requires modifications on the agreement, which then will go through the same procedure, section 14.If referred to mediation, the parliament will resolve to ratify or not ratify within a further 60days.

Where there is a different resolution in the houses, section 15 states that procedure to be followed is that in Article 112 and 113 of the Constitution.

Analysis
The timelines provide by the Bill are well reasoned, however, the risk of backlog of the numerous agreements being submitted to the parliament seem like an eminent danger to the successful and realistic running of the ratification process.

The relevant considerations the parliament should consider before ratifying agreements are listed in section 17.In making this considerations, parliament is required to be guided by relevant considerations and remain objective on the merits and demerits of the agreement.

Analysis
Additional consideration that have suggested:
a)Host community benefit
b)Environmental sustainability

Where the parliament is requested to ratify or require modifications on an agreement, it will avail opportunity to the parties to make oral presentation to the committee of relevant house, section 17.

Administrative procedures
A secretariat is established under section 19 to discharge functions of cabinet secretary. A register is to be maintained for the agreements, in an electronic format and members of public may inspect it at no charge or on payment of reasonable fee for a copy made. This is to be duly stamped.

Where a party pleads confidentiality, they will apply to the cabinet secretary who will communicate as soon as practicable. Where information is certified confidential, the agreement will not be availed to the parliament, only its summary Confidentiality of any agreement may be challenged in the High Court.

Analysis

This may also be an avenue that maybe exploited by some parties, hence the court platform to challenge the agreement. The question however, what qualifies an agreement’s confidentiality? Is an agreement still confidential when the information could cause public harm? Non-disclosure should not be to the extent of causing harm to the society.

Miscellaneous provisions
These provisions Section 23-26 provide for regulations, computation of time, prohibition of amendments following ratification and offences.

Analysis
The offences contrary to the Act are few compared to the various offences that can arise from the process of ratification. It was strongly suggested that the offences list should include offences such as falsifying of documents, public officer and individual who acts contrary to act.

Conclusion
The draft bill has well captured the main issues that are relevant. It is however noteworthy that a few vital elements that have been raised in various platforms and public consultations that have been overlooked and it is with this we hope the same shall be noted and included in the draft bill,for it to be more legally sound.

*Ruth Nzioka is a Legal Researcher at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.

Environmental Democracy Index

By Julie Boyer*

On Wednesday, 27th May 2015, the World Resources Institute (WRI), in partnership with the Institute of Law and Environmental Governance (ILEG), launched, at UNEP Gigiri (Nairobi), the first-ever interactive public platform that tracks countries’ progress in establishing national laws to promote transparency, accountability and inclusiveness in environmental governance, called the Environmental Democracy Index. This rendezvous also held the opportunity to disclose the results of the assessment made for Kenya in terms of its environmental democracy.

What is the Environmental Democracy Index?
The Environmental Democracy Index is a significant tool, developed by the World Resources Institute (1) and the Access Initiative (TAI) (2). It aims to measure the quality of laws and other legally-binding rules that exist at the national level in providing and protecting the rights of access to information, public participation, and access to justice in environmental matters. For assessing national laws, the tool is based on an international standard developed under the framework of the United Nations Environment Programme’s (UNEP) Bali Guidelines for the Development of National Legislation on Access to Information, Public Participation, and Access to Justice in Environmental Matters (3), commonly named the Bali Guidelines. There are 26 guidelines, internationally-recognized and completely voluntary, that have been adopted by the UNEP Governing Council in 2010 in Bali. Through these 26 UNEP P10 guidelines, 23 of them have been chosen for elaborating 75 indicators for the Environmental Democracy Index: 51 legal indicators and 24 practice indicators.

As the name suggests, the legal indicators assess laws, regulations and any other legally bidding rules in the following sectors:
• The Constitution and interpretations of the Constitution by competent bodies (e.g. The Supreme Court or Constitutional Court);
• The main national freedom of information law, public participation law and access to justice law (including access to administrative justice), if these exist;
• The apex environmental management law;
• Laws and regulations governing pollution control (including air and water quality laws), environmental impact assessments, terrestrial biodiversity (protected areas and wildlife), extractive industries, and forests;
• Laws governing the creation of environmental policies.

Concerning the scoring, each indicator has multiple choice responses, with scoring options between 0 and 3, with 3 always being the highest score. The indicator scores are averaged to produce a Guideline score. The Guidelines are grouped under three “Pillars”: access to information, access to public participation, and access to justice. The Guideline scores for each pillar are averaged to produce a Pillar score. Lastly, the three Pillar scores are averaged to produce an overall score for the country.
For carrying out this assessment, two lawyers from each country were chosen to score and review the indicators. These lawyers may have been recruited from civil society, government, the private sector, or academia. They were selected based on their experience and proficiency with the laws assessed for EDI. Finally, the scores were reviewed two more times by experts at the World Resources Institute, after the initial scoring and review was determined.

For more information regarding the background and methodology of this environmental democracy index, you can check the website: http://www.environmentaldemocracyindex.org/.

What are the results for Kenya?
The Environmental Democracy Index assessment aims to be worldwide, the index has evaluated environmental democracy in 70 countries already. Kenya accepted to be one of them.
For the first pillar on access to information (also named transparency pillar), Kenya got a score of 1.22 out of 3. Regarding the second pillar on access to participation, the score is 0.99 out of 3, and for the last pillar on access to justice, Kenya got the best score with a score of 2.16 out of 3. Finally, the overall score for Kenya is 1.46 out of 3.
Based on the legal index scores, Kenya is ranked 36th out of 70 countries around the world and 4th in Africa after South Africa, Cameroon and Zimbabwe, placing the country in the average.

The table below gives an overview of the different strengths and weaknesses analysed in Kenya for the three access rights:

Strengths and Weaknesses

Access to Information – Strengths
 The public has a clear right to request information from all branches of government, which is supported by strong constitutional and statutory protections
 There is a constitutional public interest test that can be used to force the release of otherwise confidential information
Access to Information – Weaknesses
 Only a limited amount of public health information must be proactively disseminated to the public.
 The government has no legal obligation to release information to the public in cases where there is an imminent threat to public health or the environment.
Public Participation – Strengths
 The government is obliged to provide the public with an opportunity to participate in the development of EIAs.
 The public have adequate time (sixty days) to submit comments on draft EIAs, following the notice period.
Public Participation – Weaknesses
 Although the public is given an opportunity to participate in the development of EIAs, this is required only once the scoping process has been completed, limiting the influence it can have in the process.
 The government only has to “take into account” the public’s comments. What this means is left to the discretion of the government.
Access to Justice – Strengths
 There are clear review procedures for refusals to requests for information and for challenges to administrative actions, which are heard by an independent and impartial court of law.
 A wide variety of remedies, including restoration, are available in environmental cases, which can be flexibly applied by the courts.
Access to Justice – Weaknesses
 There are very few positive measures to reduce barriers to justice in environmental matters.
 Information on procedures for administrative and judicial review are not made immediately available to the public.

Source: 2014 Environmental Democracy Index Results – Kenya

Perspective:
The Environmental Democracy Index seems to be an interesting and fundamental tool to protect these rights and ensure that environmental democracy does not remain only theoretical but truly exists in practice in Kenya and in all countries around the world. The index provides to citizens and governments important insights of what is already satisfactory in environmental laws and what needs to be done to improve the situation of the country in terms of environmental democracy.

As the index tends to evaluate 69 other countries in the world, this can also help a country to improve with the effect of comparison. Indeed, by comparing its own results with another country that presents better scores, it may influence and encourage a country to adopt the same laws, helping it therefore to enhance its institutions. In other words, the index can be a real driving force for a country that seeks to fit into sustainable development.

Nevertheless, the only downside of this assessment, in my opinion, is that the environmental democracy index does not take into account the practice indicators into the legal practice scores. Clearly, it does not measure implementation.

The index is clear about it, the aim of this assessment is to only evaluate laws. By doing this, the index helps to better analyse gaps and issues in laws for, let’s hope, thereafter reforming them. The supplemental practice indicators results provide only key insights into how environmental democracy rights are manifested in practice. However, legal and practice should not be separated for the final result as we need both indicators to know what we have in laws and what is really happening on the ground. By taking into account those two indicators, we can definitely have a result more based on the facts. The laws can sometimes be well-written – perfect, in theory – and ineffective when it comes to their implementation. Vice versa, laws can also be very poor in their wording and be well implemented in practice.

Results must reflect somehow the situation that prevails in the country in terms of environmental democracy. Those results should stem from an assessment through laws, but also and above all, through practice. Indeed, the results of practice indicators may also largely help to fill the gaps. To not include them is clearly to put the veil on a part of the truth and therefore to offer a result that do not illustrate the reality.

Of course, it is extremely important to assess laws but I do not imagine a legal assessment such as the environmental democracy index to dismiss the practice indicators results in the final score. They can be calculated separately, but we – experts, citizens, governments – need to know what is the score for legal indicators and what is the score for legal indicators by taking into account practice indicators.

I also admit it that it is not an easy task to score practice indicators, it requires more energy, more time, more people to fulfil the mission. However, I do believe we need accurate results to have the hope of concrete advancement in this area.

I heard that the next environmental democracy index will take more practice indicators into consideration, I am sure this will help all of us to make more progress in kenyan laws and practices.

References:

(1) http://www.wri.org/

(2) http://www.accessinitiative.org/

(3) http://www.unep.org/civil society/Portals/24105/documents/Guidelines/GUIDELINES_TO_ACCESS_TO_ENV_INFO_2.pdf

*Julie Boyer is Legal Research Associate at the Institute of Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.

World Environment Day 2015

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ILEG would like to take this opportunity to join the world in celebrating World Environment Day marked on 5th June every year. ILEG has made its pledge to the environment as follows:

“We pledge to continue working with local communities, governments, the private sector and civil society organizations to ensure fair, balanced and equitable development policy choices to improve peoples’ lives and protect the environment.
We pledge to continue seeking ways to transform the way governments make decisions and implement laws and policies,that affect the environment and natural resources.
This is our pledge to the environment and the people of the Republic of Kenya.”
– ILEG KENYA
World Environment Day is celebrated every year to raise global awareness to take positive environmental action to protect nature and the planet Earth. It is run by the United Nations Environment Programme (UNEP). It was established by the United Nations General Assembly in 1972 on the day that United Nations Conference on the Human Environment began. Like slogans, every event has a theme. This year’s theme is “Seven Billion Dreams. One Planet. Consume with Care.” “Earth Anthem” by poet-diplomat Abhay K was launched in June 2013 on the occasion of the World Environment Day. This year’s world Environment Day will be hosed in Italy.

World Environment Day Anthem
“Our cosmic oasis, cosmic blue pearl
the most beautiful planet in the universe
all the continents and the oceans of the world
united we stand as flora and fauna
united we stand as species of one earth
black, brown, white, different colours
we are humans, the earth is our home.

Our cosmic oasis, cosmic blue pearl
the most beautiful planet in the universe
all the people and the nations of the world
all for one and one for all
united we unfurl the blue marble flag
black, brown, white, different colours
we are humans, the earth is our home.”

“We have made our pledge, have you?”

7 billion dreams

ACCESS TO INFORMATION IN KENYA

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By Ruth Nzioka*

“You cannot protect the environment unless you empower people, you inform them, and you help them understand that these resources are their own, that they must protect them.”

Wangari Maathai(2004 Nobel Peace Prize Laureate)

Introduction

The right to access public information refers to the right any person has to look for, request, and receive information held by the government.

The constitution is the foundation of all the rights in Kenya.Access to information is provided under Article 35 and states as follows:
(1) Every citizen has the right of access to —
(a) Information held by the State; and
(b) Information held by another person and required for the exercise or protection of any right or fundamental freedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
(3) The State shall publish and publicise any important information affecting the nation.
The implication of Article 35(1) is that a citizen does not have to give reasons for seeking information from the State. In case where he seeks information from a private entity or another person and the request is denied and files suit in court to compel the person to provide him with the information he has the onus of showing that the information sought is required for the exercise or protection of a particular right or fundamental freedom.
It should be noted this right only applies to citizens as interpreted by the Kenyan courts. This was seen in the case of Famy Care Limited vs. Public Procurement Administrative Review Board & Another [2012] e KLR and only natural persons as seen in the case of Nairobi Law Monthly Company Limited V Kenya Electricity Generating Company & 2 Others [2013] e KLR, where court held such right can only be enjoyed by a natural person.
Article 24 recognizes that any right or fundamental freedom in the Bill of rights may be limited but the limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” The limitation must be through legislation and shall not limit the right or fundamental freedom so far as to derogate from its core or essential content. The burden of proof lies on the person seeking to justify the limitation.

The State is obliged by Article 35(3) of the Constitution to publish and publicize any important information affecting the nation. The Constitution does not provide what important information is. This calls for legislation or policies and guidelines to provide for what important information is. Publication and making information public by the State will be one of the ways that will promote and give effect to the right of access to information. Citizens will generally seek from the State information that the State has not published or publicized. The net effect of these provision therefore requires the commissions and independent offices to publish information on their operations where citizens can access information from these State bodies without having to request for the information, and at a minimal or no cost. This promotes the protection and realization of freedom of information and access to information in Kenya.
It is of urgent necessity that the Kenya national and county governments operationalize Article 35 of the Constitution through the enactment and effective implementation of freedom of information laws. The Access to Information Bill, 2013 is yet to be passed by parliament.
Article 35 is also given effect by other Constitutional provisions such as provisions requiring constitutional offices and independent offices to publish annual reports to the Kenyan people on their operations. On environmental information, the National Land Commission, for example, will publish environmental or environmental related information thereby giving effect to the Kenyan citizen’s right of access to environmental information.
Importance of an access to information law.
A history of legal and institutionalised secrecy of government operations has created an environment in which the right to information has historically been devalued, allowing corruption and other state excesses to thrive. The Anglo Leasing scandal of the early 2000s demonstrated the importance of right to information in preventing corruption as it involved diminished oversight for the procurement of police equipment because it had been classified as for “security” purposes. National security purposes have also been used to justify other state excesses, such as to curtail civil liberties and media freedoms as witnessed in the police summoning of two journalists over their coverage of the Westgate terror attack in September, 2013.
Access to information held by the state can be seen as a fundamental right of the individual and a crucial component of democracy. It allows the public to be aware of governmental decisions which can impact the environment and individual lives. Access to information also allows the public to participate in criticizing and thereby improving governmental decision-making, which ultimately can help to prevent harmful activities which can cause significant damage to the health of people and the environment.
The absence of such legislation can lead to the violation of citizens’ fundamental rights. In the absence of transparency, it is impossible for countries to operate as democracies. In a democracy it is essential that people can access a wide range of information in order to participate in a meaningful way in matters that affect them. It entrenches the principle that public “servants” act on behalf of the public when carrying out their functions and must remain accountable for their actions.
This law is also essential to combat corruption on the continent and has a significant impact on how citizens live their daily lives, and contributes significantly to access education, employment and health, as well as access to basic amenities and services, such as water, housing and electricity through ensuring citizens can hold government to account.
Progressive measures toward realisation of an access to information law in Kenya
Beyond the Constitution, many laws or bills which are either sector–specific or relating to public service delivery in general acknowledge the role of right to information as a facilitative right for the realisation of economic, socio– cultural and political rights and for improving good governance. These include the Health Bill, Water Bill, Public Procurement and Asset Disposal Bill and Public Service (Values and Principles) Bill, all of 2014, that include provisions to promote transparency and accountability premised on the principle of right to information.
At the decentralised level, the County Management Act provides for public communication and access to information in the management of county affairs. Section 87 of the Act recognises that timely access to information, data, documents and other information relevant or related to policy formulation and implementation is important for promoting citizen participation in the running of county governments.
Actors in Kenya’s development and democracy agendas have acknowledged the necessity of right to information in advancing these processes. Initiatives aimed at enhancing open government have used right to information principles to promote transparency and accountability in government.

These include the Kenya Open Data Initiative (KODI) and the Open Governance Partnership (OGP), which make key government data freely available to the public through a single online portal and comprise a country action plan to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. Efforts of government to promote citizen engagement through initiatives like the open data portal and open government partnership are commendable and should be strengthened. On the downside though, the open data portal is not regularly updated mostly due to reluctance and stubbornness of public government agencies to disclose and make this information available
The judiciary has recognised the import of right to information but has also not been expansive with its interpretations of Article 35. In Peter M. Kariuki vs. AG the court acknowledged the importance of the right in determining appropriate damages for the petitioner. In Kenya Society for the Mentally Handicapped (KSMH) vs. the AG, the court held that “coercive orders of the court should only be used to enforce Article 35 where a request has been made to the state or its agency and such request denied”. These interpretations are contrary to the internationally established principle of maximum disclosure, which establishes the obligation of public bodies to disclose information and the corresponding right of every member of the public to receive this information. This principle further stipulates that everyone present in the territory of a country should benefit from this right.
Conclusion
In conclusion, the effectiveness of Kenya’s right to information mechanisms is dependent on the commitment of the government to effectively implement freedom of information laws and the protection and promotion of these rights. This ongoing process has taken varying approaches driven by different impetuses and responding to changing circumstances including legislative developments, judicial interpretations and the incorporation of right to information in open government mechanisms. Advocacy initiatives should continue to utilise the diverse opportunities to the advance right to information. The media and the public at large should also exercise their rights to know and by so doing, create a demand to access of information.

*Ruth Nzioka is a Legal Researcher at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.

Land Reforms in Kenya: Achievements and the Missing Link

By Duncan Okowa*

This past week, one of the local dailies ran a story narrating how many county and national government institutions are squatters on what used to be public property, and even face eviction by new owners. It described how in Meru for instance, land meant for the most critical public institutions — police stations, hospitals, government offices, roads, even sensitive installations like the County Commissioner’s residence — has been allocated to individuals. Land grabbing and irregular land allocation is commonplace in Kenya. Just last month, Kenyans were treated to disturbing scenes of injured pupils of a primary school in Lang’ata after police threw tear gas canisters at them as they protested the grabbing of their school’s playground.

The Lang’ata school land saga came hot on the heels of what is believed to be the biggest single heist of private land in independent Kenya — the invasion and acquisition of a multi-billion shillings 134-acres property in Karen, with the alleged connivance of state officials. And there is the five-acre wetland plot allegedly grabbed by a church in Nairobi’s Westlands area recently. Examples of land grabbing in Kenya could go on and on. But Kenya’s land problems are not limited to land grabbing. A number of other unresolved critical land issues have also impeded the use of land to support economic growth and sustainable livelihoods. They include issues of tenure security; maximum and minimum land holding; unsustainable land use; and women and other vulnerable groups’ right of access to land.

But why the fuss about land?

Land is not only the most important factor of production but also a very highly emotive issue in Kenya. For starters, ours is a country where over 80% of the population rely on agriculture, yet only 20% of the land mass comprise arable land. Those in political class and in business regard land as a source of personal wealth and power. For citizens especially the majority rural population, land is not only their soul livelihood source but also the subject of great emotional attachment. Land was in fact one of the key issues that drove the fight for independence from the British colonial powers. But even after independence, discontent over land ownership has remained the most notable source of frequent conflicts and tribal clashes between Kenyan communities. The way land is used and managed is therefore extremely critical to Kenya’s peace, prosperity and posterity.

 A history of land problems

Kenya’s history of land problems can be traced back to the colonial government’s apparent conviction that private ownership of land created more incentives for long-term investment, access to capital, and growth. Instructively, this conviction has been pursued with remarkable consistency and success by successive post-independence governments. As a result, the vast majority of commercial, residential, and arable land in Kenya was brought under private individual ownership by a process of systematic first registration. For anyone, especially the indigenous people to obtain land, they had to go through the state. This bred a culture of selective land allocation for political support by those in power, inefficiency and corruption. The result was many indigenous people remaining landless and many other land-related problems.

 The clamour for land reforms, the National Land Policy and the Constitution

This led to a clamour for land reforms which eventually yielded the Kenya National Land Policy (NLP) adopted in 2009, and a comprehensive treatment of land in the Constitution of Kenya promulgated in August 2010. Both the NLP and the Constitution followed a well-structured process of wide consultation and public participation. The two documents brought a raft of changes in the way land is managed and utilized, in essence laying the foundation for sustainable management and utilization of land. They detail land policy principles which must be adhered to when holding, using or managing land, and provide the framework for addressing several critical land issues. Among the land policy principles are equity; security of tenure; access to land information; transparency; and good democratic governance.

Notably, the two documents repudiate the long-standing priority of privatizing land, by recognizing communal ownership of land as a legal tenure regime equal in status to the other two – private and public tenure. Another important feature of NLP is that it identifies subsistence farmers, pastoralists, hunters and gatherers as vulnerable groups who require special recognition and facilitation in order to gain secure land rights and effectively participate in land-related decision making. The Constitution and NLP also encourage application of recognized local community initiatives for settling disputes over land.

The Constitution recognizes that lasting solution to the land problem lies in an effective legal and institutional framework. It thus requires all laws relating to land to be revised, consolidated and rationalized. Consequently, parliament has enacted the Land Act 2012 which aims to revise, consolidate and rationalize land laws in order to provide for the sustainable administration and management of land and land based resources. Parliament also enacted the Land Registration Act 2012 whose object is to revise, consolidate and rationalize the registration of titles to land. In the same year, the National Land Commission Act 2012 was enacted purposely to establish and provide for the functioning of the National Land Commission (NLC), the public body charged with managing public land on behalf of the national and county governments. A number of other land-related laws are under consideration, including the Community Land Bill, the Evictions and Resettlement Bill and the Investigation and Adjudication of Historical Land Injustices Bill.

 So what’s ailing the land reform process?

Despite this enormous progress, Kenya’s land reform process seem to have hit a snag, and there are justifiable fears that even the gains made so far in the legal and legislative front are on the verge of being reversed.

 Four closely linked and inter-related factors have contributed to this. First, deeply entrenched vested interests have denied the land reform process the much needed political and business support. Many powerful people in politics and business, especially the beneficiaries of the past flawed land regime and those who are angling to benefit from a non-streamlined land sector, see the reforms as a hindrance to personal wealth and power. Very closely related to this is a lack of political goodwill as senior national and county government officials as well as several members of parliament are deeply entangled in land-grabbing and other irregular land allocation cases. Many of them will go any length to ensure the desired land reforms don’t see the light of day. The third challenge is that the laws that have so far been enacted to effect land reforms have not counted for much because of poor implementation. In fact, even the legislative reforms have lost momentum as evidenced by the slow pace of developing a law on community land, lack of which continue to disenfranchise many communities.

The fourth challenge is a weaknesses in terms of resources, capacity and independence among the public institutions charged with managing land. This weakness is perhaps epitomized by the power struggles and persistent wrangling between the National Land Commission (NLC) and the Ministry of Land, Housing and Urban Development. In President Uhuru Kenyatta’s own words, the internal differences between the commission and the ministry has not only caused uncertainty and concern, but also impeded the government’s ability to move ahead in terms of economic development. Although there exists grey areas in law in terms of clearly defining the roles of the two institutions, pundits believe that a strong political will to implement the desired land reforms would very easily surmount this. Moreover, the NLC especially its chairman Dr Mohammed Swazuri is seen as too meek to survive amidst deeply entrenched political and business interests that surround land reforms. NLC has also not reached a level of functional independence as it still relies very much on the national government for its staff needs and resource allocation, making it vulnerable to manipulation and control.

Which way land reforms?

As a result of these challenges, and despite the enormous progress, most current and historical land injustices remain unresolved. Grabbing and illegal allocation of public and communal land goes on unabated almost throughout the country. The rights of communities, especially vulnerable groups including women and youth continue to be infringed upon or violated, and critical ecosystems continue to be degraded.

 For the land reform process to proceed and succeed, as it must, the challenges and constraints, mainly entrenched political and business interests, and poor capacity of state organs to deliver on their mandates have to be confronted and overcome. Going forward, Kenya’s land reform process should prioritize: a strong political will to achieve land reforms; supporting state organs to deliver on their mandates; acquisition of land to settle the landless; completing and enacting the Community Land Bill; securing land rights and tenure in various contexts for citizens and non-citizens; developing a land use policy to promote land settlement and productive land use; and facilitating public access to information and participation in land management and utilization.

*Duncan Okowa is a Programme Officer at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely his own and do not necessarily reflect ILEG’s position. Twitter: @duncanokowa