Environment & Climate Change

CHAPTER ONE: INTRODUCTION

1.2. The National Action Plan Formulation Process

Stakeholders’ Consultation [Page 11]

Given the wide range of business-related human rights concerns, the NBA [National Baseline Assessment] coupled with the regional consultations were vital in the identification of the recurring thematic areas for the NAP. These are: Land and natural resources, Revenue transparency, Environmental Protection, Labour Rights and Access to remedy.

 

CHAPTER TWO: THEMATIC AREAS OF FOCUS [Page 12]

2.1 Land and Natural Resources [Page 12]

The Constitution states that “all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals”. However it is often a source of conflict due to population pressure, rapid urbanisation, environmental degradation, land-intense large-scale projects such as mining, oil and gas and commercial agriculture, all of which result in competition for available productive land.

2.3. Environmental Protection [Page 15-17]

There is growing global consciousness on the impacts of business on the environment. The operations of businesses such as extractives, manufacturing and infrastructure could have adverse impacts on the environment leading to illness or death of populations unless effectively regulated. At the international level, the right to a clean environment is enshrined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the African Charter on Human and Peoples Rights, all of which Kenya is a State party to, among others.

Various SDG goals relate to the environment. These targets are underpinned by human rights, and include : 1.5 (building the resilience of the poor and the vulnerable to reduce their exposure to climate change impacts); 6.3 (improving water quality by reducing pollution, eliminating dumping and minimizing release of hazardous chemicals); 7.2 (increasing use of renewable energy); 9.4 (adoption of clean and environmentally sound technologies and industrial processes); 11.6 (reducing adverse environmental impact of cities, including by paying attention to air quality and municipal and other waste management); 12.4 (adoption of  environmentally sound management of chemicals and waste).

At the domestic level, Article 42 of the Constitution codifies the right to a clean and healthy environment. Article 69 requires the State to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, including by eliminating processes and activities that are likely to endanger the environment. It also obligates every person, the definition of which includes businesses, to cooperate with state organs and other persons in the protection and conservation of the environment. Article 70 of the Constitution gives any person the right to seek redress in court if the right to a clean and healthy environment has been violated or is likely to be violated.

The Environmental Management and Coordination Act, 1999 (EMCA), which was substantively revised in 2015, and the Climate Change Act, 2016 are among the key legal frameworks concerning the protection of the environment. Under the EMCA, Kenya has also adopted the use of the Environmental Impact Assessments (EIA) as a tool to help decision makers improve the environmental outcomes of their management decisions. It is mandatory that certain activities that are likely to have significant impacts on the environment are evaluated and that they spell out measures to be put in place to mitigate identified negative impacts prior to their being approved to commence operations. The National Environment Management Authority (NEMA) is the institution responsible for the review and approval of EIAs and Environmental Management Plan (EMP) as well as for regular auditing and monitoring of the same.

Stakeholders’ consultations during the development of this NAP identified the following concerns related to the impacts of businesses on the environment:

1) Environmental pollution by business operations, including through discharge of effluent into waterways, air and noise pollution and poor disposal of solid waste, toxic and hazardous substances. These negative impacts compromise the rights to; a clean and healthy environment, health, reasonable standards of sanitation, clean and safe water; and

2) Loss of biodiversity due to destruction and encroachment on the natural environment for commercial purposes which negatively impacts livelihoods, health and the access to clean and safe water for present and future generations.

2.5. Access to Remedy [Page 19-20]

One example of an avenue to access remedy is Section 3 of the Environmental Management and Co-ordination Act which provides that a person may apply to the Environment and Land Court for redress for any denial, violation, infringement of or threat to the person’s right to a clean and healthy environment on the person’s own behalf or on behalf of a group of persons or in the public interest. If the Court finds such a denial, violation, infringement or threat to have occurred, it may make any order it considers appropriate to prevent or stop any act or omission that is deleterious to the environment, compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment, require that any on-going activity be subject to an environment audit, compel the persons responsible for environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage, or provide compensation for any victim of pollution.

Despite these legal protections, the community consultations conducted as part of the NAP process revealed structural and procedural barriers to access to remedy, including:

4) There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses.

 

CHAPTER THREE: POLICY ACTION

3.1. Pillar 1: The State Duty to Protect

Policy Actions [Page 21-22]

The Government will:

8) Sensitise relevant sections of the public especially women and other marginalised and minority groups on Land laws, including resettlement and compensation frameworks Labour laws and the rights of migrant workers and environmental laws and standards

 

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

Policy Actions [Page 23]

a) Training

The Government will:

1. develop and disseminate guidance for businesses on their duty to respect human rights and the operationalisation of this duty in the Kenyan context, including the implications of their operations on the environment … to promote responsible labour practices and inclusivity.

3.3. Pillar 3: Access to Remedy

Policy Actions 

A) State-based judicial and non-judicial remedies [Page 25]

The Government will:

1. enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition, natural resource management, environment and revenue management

[…]

6. improve access to the Human Rights Division of the High Court, Employment and Labour Relations Court, and the Environment and Land Court to ensure that they are accessible, expeditious and affordable avenues for remedying business-related human rights abuse

 

4.1. SUMMARY OF POLICY ACTIONS 

Strategic Objective Policy Actions Responsible Actor(s)
Strategic Objective 1:

Enhance existing policy, legal, regulatory and administrative framework for ensuring respect of human rights by business through legal review and development of specific guidance for business

Consider a review of the Companies’ Act 2015 to require mandatory periodic human rights due diligence review for business activities with significant negative risks to the environment, host communities and workers.

 

 
Enforce all applicable laws as well as respect internationally recognized human rights laws and standards as they relate to land access and acquisition and natural resource management, environment and revenue management.

 

 
Strategic objective 2:

Enhance understanding of the obligation of business to respect human rights

Sensitise relevant sections of the public on:

·    Environmental laws and standards

 
Training for national and county government ministries, departments and agencies involved in: –

·    Enforcing of labour and environment protection laws

 
Provide guidance to businesses on their role in environmental protection, including offering specific guidance on measures they should take to respect others’ right to a clean and healthy environment.  
Encourage community-based organizations working on environmental issues to build their technical capacity to effectively monitor environmental impacts of businesses.  
Strategic Objective 3:

Enhance access to justice for victims of business-related human rights abuses

Improving access to information on available judicial and non-judicial mechanisms involved in the resolution of business-related abuses as a measure to promote access to justice. Regions host to businesses operations that pose significant risk to the environment and communities will be particularly targeted.  
Review the operations of the Human Rights Division of the High Court, Employment and Labour Relations Court, and the Environment and Land Court to ensure that they are accessible avenues for remedying business-related human rights abuses. The review shall include an assessment on the whether the courts are expeditious and affordable.  
The Office of the Attorney General will work with the relevant agencies to:

·       Enhance inter-agency coordination in handling complaints of business-related human rights abuses that related to their mandate, including where there is an overlap of their mandate, including environment, labour and land matters

 
·       Support the KNCHR audit environmental impact of business operations. This will be in due regard to the fact that the right to a clean and healthy environment is now enshrined in the Kenya Constitution’s Bill of Rights.

·       Improve their technical capacity to handle grievances support them to effectively play their regulation and law enforcement roles in relation to the environment