By Daniel Otunge
On Wednesday, October 30, 2024, I keenly followed Jeff Koinange’s wide-ranging conversations with Environment Cabinet Secretary (CS) Hon. Aden Bare Duale on the JK Live Show.
During the show, CS Duale said many things that got me thinking seriously about environmental management in Kenya. For example, he promised to clean up the heavily polluted Nairobi River in 18 months. He also said Kenya would grow (not plant)15 billion trees in seven years.
Starting with the clean-up of the Nairobi River, the CS said the government had identified about 145 companies unlawfully emptying their toxic effluents/wastes directly into the river.
Indeed, section 42 (1) of the Environment Management and Coordination Act (EMCA) states that no person shall, without prior written approval of the Director-General given after an environmental impact assessment concerning a river, lake, or wetland in Kenya, carry out any of the following activities – erect, reconstruct, place, alter, extend, remove or demolish any structure or part of any structure in, or under the river, lake or wetland and deposit any substance in a lake, river or wetland or in, on, or under its bed, if that substance would or is likely to have adverse environmental effects on the river, lake or wetland.
In addition, Article 42(1) of the Constitution of Kenya 2010 guarantees every Kenyan a clean and healthy environment. Therefore, Hon Duale must stop and prosecute these wayward companies and all those living on the riparian land.
The CS should tell the country why the National Environment Management Authority (NEMA) is not enforcing the law. These companies should be compelled through due process to pay the cost of cleaning up the river under the Polluter Pays principle, stipulated under section 3(5) paragraph (e) and international environmental law, including the 1992 Rio Declaration.
Principle 15 of the Rio Declaration provides that states shall widely apply the precautionary approach to protect the environment according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
The fact that the United Nations Environment Programme (UNEP) is headquartered in Nairobi begs the question: Why is the Nairobi River such an Augean Stable after all these years of UNEP’s domicile in Nairobi? Could it have tried to get it cleaned up but thrown in the towel due to the lack of political will that defined the previous regimes? Is Ruto’s commitment real or just politics, Hon. Duale?
Our food markets, like the Mukulima Market in downtown Nairobi, are another source of deadly greenhouse gas emissions responsible for the climate emergency that has put the world on a sharp edge. Yet, adequate legal and policy instruments, such as the Public Health Act, were purposefully enacted to address such matters if evoked and applied strictly.
Duale confessed that he reads Michuki’s notes as his role model. I wish he could do what the late John Michuki did about the matatu noise and the Nairobi River pollution. The cleanup of the Grogon area of the river and turning the vast garbage dump and dirty motor garage into a green park is an exemplary manifestation of the fruits of the strict implementation of the EMCA under the non-nonsense Michuki. It also gives us hope that it can be done if a resolute will is backed by action and the law.
That Kenya ought to be a carbon trade market hub needs no gain saying, and Duale said as much.
Perfect because it is easy to effectuate. The CS should use all ministerial powers (including residual power) and local and international networks to get all public, private, and individual entities and individuals to grow trees.
Let there be a decree that all idle land be covered with trees within seven years. After all, land belongs to the sovereign, despite constitutional classifications under Chapter Five. There are plenty of such lands, especially in Arid and Semi-Arid areas, that, if clothed with trees, we can meet the 15 billion trees by 2032 or 1.5 billion trees a year. That about six hundred and eighteen million trees have been planted is an excellent start.
The tree farmers can then sell the realized carbon credits from the trees. The good thing is that the legal framework for this market is in place. The revised Climate Change Act 2023 and its regulations (the Climate Change (Carbon Markets) Regulations, 2024) have set a suitable legal framework for carbon trading in Kenya.
The Act says carbon markets are a mechanism that enables and allows public and private entities to transfer and transact emission reduction units, mitigation outcomes, or offsets generated through carbon initiatives, products, programs, and projects subject to compliance with national and international laws.
Part IVA stipulates the law on carbon Markets in the country. All that remains to be seen is what the minister for Environment, Climate Change, and Forestry, Aden Duale, will do to realize the law’s benefits for Kenyans and their environment.
Turning the Nairobi River into a clean recreational, economic, and water transport facility from the 40-kilometer massive sewer it has been for decades in under two years (18 months) is an uphill task. It will require total mobilization of the armed forces, National Youth Service, industry, and youth groups.
But if Hon Duale can accomplish it, which he must, then it could just be one of the lasting legacies of the Ruto presidency. If it comes to pass, Duale will be immortalized, too, as an environmental Moran.
CS Duale rightly cited the underutilized 2020 Environmental Management and Co-ordination (Extended Producer Responsibility) Regulations as a potent tool in his legal toolbox. Suppose he can apply this tool with Michuki’s zeal; most of our environmental challenges, especially the mountains of garbage choking our streams and wetlands, will be a thing of the past.
Extended producer responsibility (EPR) refers to a producer’s obligation to reduce pollution through environmentally sound practices in all product lifecycle phases, including post-consumer and safe end-of-life stages. It includes but is not limited to design for reuse and recyclability, creation of take-back schemes, recycling, composting, and other suitable recovery and disposal measures.
Take back simply means the collection and transportation systems put in place for consumers to return their post-consumer products. For example, after drinking water from a plastic bottle, there should be an accessible system to send the bottle back to the company that bottled the water in it for recycling.
What I liked most from the conversations was that Hon. Duale understands that he has solid constitutional and statutory backing to make Kenya the environmental capital of the World. He should not listen to nay-sayers who want to derail his mission to rid Nairobi of numerous environmental pestilences, including loud, immoral, steamy clubs.
As he said to Jeff and Kenyans during the JK Live Show, EMCA is the framework of environmental law in Kenya, and all other sectional environmental laws must bow to it. Above EMCA is only the Constitution (Articles 10, 42, 69, 70, and 71). EMCA reigns over all other statutes touching on the environment.
The Environmental Impact Assessment and its other variants provided under section 58 of EMCA and Article 69(1)(f) of the Constitution apply to all projects and activities. EMCA takes a precautionary approach to environmental protection based on the cardinal International Environmental Law Principles domesticated in our legal system through Section 3(5)(f) of EMCA and Article 2(6) of the Constitution.
It is a trite law that a county law cannot trump EMCA and the Constitution. Air and noise pollution control is under the NEMA by dint of EMCA. The role of the County Government, which is rightly working with the CS to tame the wayward clubs and industries polluting the city with noise and the river with garbage, is licensing and supervising compliance with the license conditions.
The Constitution gives the Environment CS and the Nairobi County Governor Arthur Johnson Sakaja the mandate to work together to tame rogue club owners and the rent seekers who allow the clubs to violate our hard-earned constitutional right to a clean and healthy environment. To wit, Article 6(2) states that the national and county governments are distinct and interdependent and shall conduct their mutual relations based on consultation and cooperation.
Yes, we want the rule of law that ensures the predictability of the applicable law’s outcomes and fair administrative action. This is why all must appreciate that the essence of EMCA is to protect Kenya’s flora and fauna.
Duale said his docket is like the ministry of life. Indeed, it is more critical than even the health and agriculture dockets. It controls air, water, and earth and all its contents. If well managed, many diseases and hunger problems can be prevented.
It is instructive to note that a clean environment prevents the most common ailments. The Covid-19 period has taught us this. Just by washing our hands and covering our mouths, hospital visits for common ailments dropped drastically. Without water, air, and soil, there would be no life!
So, Hon Duale, please roll up your sleeves, go forth, and save Kenya by fixing the environment and climate change. Get out all rich and poor squatters away from the riparian land.
The Writer is an environmental law expert.
