The polluter pays principle is one of the most important environmental principles in Kenya. Therefore, a current operator or landowner (or buyer) is generally only liable for environmental events or damage caused by their actions, whether committed in the past or present. Vision 2030 was launched in 2008 as Kenya`s development plan for the period 2008-2030. The goal was to make Kenya a “newly industrialized middle-income country that provides quality lives for all its citizens” by 2030. The social pillar of Vision 2030 explicitly states that Kenya`s path to broad-based prosperity involves building a just and cohesive society that enjoys equitable social development in a clean and safe environment. The vision of a clean and sustainable environment by 2030 must be achieved through better pollution and waste management, better adaptability to global climate change and harmonization of environmental laws for better environmental policy and planning. Kenya`s policy approach is to pursue low-carbon and climate-resilient development. Priority is given to adaptation, and the country is working to pursue mitigation measures that bring positive benefits to adaptation. Climate action is also guided by the principles of sustainable development, equity and social inclusion in burden-sharing, costs and benefits, integrity and transparency, and stakeholder participation. The National Management and Environment Authority has also developed the National Guidelines for COVID-19 Waste Management.
These guidelines concern the separation of biomedical waste, the securing, packaging, storage and disposal of all medical waste such as surgical gloves, face masks and disinfectant bottles, which pose risks to the environment and health. The Environment and Management Coordination Act 1999 (EMCA) is the applicable law for environmental matters. This is Kenya`s first environmental framework law. It establishes general principles, establishes administrative bodies, sets environmental quality standards and provides for the inspection, enforcement and enforcement of environmental offences. It complements other sectoral laws in areas such as water, land, forestry, mining and wildlife. The SCMS was enacted in the context of 78 sectoral laws that address various components of the environment, the deteriorating state of the environment in Kenya, and growing social and economic inequalities, the combined effects of which have a negative impact on the environment. The ultimate goal of the adoption of the EMCA in 1999 was to harmonize the country`s environmental management. However, certain categories of environmental information, such as EIA study reports, must be published and easily accessible to interested members of the public without the need for a formal request for access.
Sectoral laws – including the Water Act 2016, the Forest Protection and Management Act 2016, the Wildlife Protection Act and the Management Act 2013 – create criminal offences for various types of environmental offences. In addition, the Criminal Code also recognizes certain offences in the field of the environment. Lawmakers are currently seeking stakeholder input on the bill, and it is likely that there will be further changes to recalibrate and harmonize environmental policy in Kenya based on stakeholder views and concerns. 33 See “Kenya To Lead Resource Mobilization Efforts For Climate Change Mitigation In Africa,” available at www.president.go.ke/2021/11/03/kenya-to-lead-resource-mobilization-efforts-for-climate-change-mitigation-in-africa/ (accessed November 8, 2021). This paper examines the principles of environmental law, which include: Polluter pays principle, precautionary principle, prevention principle, sustainable development principle, public participation and inclusion. The approach chosen is first of all to analyze the origin and purpose of the principles. secondly, it examines how the principles have been incorporated and applied in the Kenyan Constitution and other laws. Finally, I have reviewed some case law according to which these principles have been applied in Kenyan courts.
As a starting point, the preamble to the constitution states: “The Kenyan people respect the environment which is the heritage of Kenya and are determined to preserve it for the benefit of future generations.” Several provisions of the Constitution reflect this strengthening of general environmental principles. Article 10 enshrines the principle of sustainability as one of the national values and principles of governance, while Article 42 guarantees the right to a clean and healthy environment, including the right to environmental protection for the benefit of present and future generations. Established under the EMCA, NEMA is the primary regulator with the authority to provide overall oversight and coordination on all environmental matters and to implement environmental policies on behalf of the government. The draft law aims to create a legal and institutional framework for environmental management by improving national capacities for environmental management. Among the new institutions proposed in the bill is the National Institute for Environmental Research, whose main task will be to conduct and coordinate environmental research. In the area of climate protection, there have been few disputes in Kenya. However, citizens will be better able to take action to enforce their environmental rights. A notable recent case is Save Lamu & 5 others v. National Environmental Management Authority (NEMA) & another [2019] eKLR, in which a community-based organization representing the interests and well-being of Lamu residents challenged the granting of an EIA license for a 1,050 MW coal-fired power plant project in Lamu, a declared World Heritage Site.