PUBLIC PARTICIPATION AND ENVIRONMENTAL JURISPRUDENCE INKENYA: EDUCATION FOR SUSTAINABLE DEVELOPMENT PARADIGM

Duncan Kiboyye Okoth-Yogo

John O. Oluoch

ABSTRACT

Public participation is today an integral part of Kenya’s legal positivism out of the acceptedwisdom that the authorities in charge of environmental management will do better if they areexposed consistently to public views. In addition, the public is likely to feel better and be more positively won over to accept outcomes if they are invited to express their opinions and facts.Education is an essential tool for proffering better public participation as it not only eases thecommunication and understanding of its rationale but also augments the potency of indigenousknowledge, science and technology, international comity and national goals for sustainabledevelopments. A study of the Environmental Impact Assessments, Environmental Audits, PublicInterest Litigation and Public Participation as provided for under the Environmental Managementand Coordination Act of Kenya (1999), conducted between 2003 and 2008, has shown that thereis a profound nexus between public participation on sustainable development issues on the onehand and higher learning on the other. A further study on the contents of the schools and collegescurricular also reveal that sustainable development is not adequately reflected as a vitalcomponent of the pedagogies. Third, the laws on public participation on environmentalassessments are provided as if the levels of education are immaterial in carrying out effectualappraisals. Further to the foregoing, the provision for public participation under EMCA onlyenvisages a public response to decisions which are already made. The law is silent on public participation at the project or policy planning phases. The principle of public participation istherefore rendered deficient. It has in many cases led to post decision citizens protests and costlylitigation processes. The study has shown that an educated citizen involvement at the inception of projects and policies not only promotes environmental management resourcefulness but also justice. The paper recommends legal reforms that reflect the exigency for exponentialenvironmental education for better informed choices. This can be done by way of civic education,continuing environmental education for relevant professionals and the need to reorient curricular at all levels to include a thorough understanding of sustainable development matrix. These areconsidered crucial for environmental justice.

1.INTRODUCTION

Public participation is one of the principles of environmental law in Kenya as embodiedin the Environmental Management and Coordination Act [EMCA].

Every member of the public has an express

locus standi

to sue for purposes of protection of the environment.

Duncan Kiboyye Okoth-Yogo is a Law Lecturer, Moi University’s Schools of Arts and Social Sciences,Environmental Studies and School of Natural Resources Management; Advocate of the High Court of Kenya; Law InDevelopment consultant, Moi University Holdings LTD; Member of the Law Society of Kenya; Member of the EastAfrican Law Society; Formerly Legal Officer, Moi University

John Osicho Oluoch is an Administrative Officer, Corporate Planning, Office of the Deputy Vice Chancellor, MoiUniversity; Adjunct Media Lecturer, School of Human Resources Development; Member, Public Relations of Kenya.

Environmental Management and Coordination, Act 8 of 1999, Laws of Kenya.

Even as the High of Kenya rejected Sifuna’s assertion that the Director General Of NEMA should be a formerlyqualified environmentalist, it affirmed that Locus standi is no longer restricted on environmental issues. Sifuna versus NEMA, HCCC of 2003.

Public participation is also one of the most basic requirements for environmentalassessments which include Environmental Impact Assessments [EIA], EnvironmentalAudits [Eau] and Strategic Environmental Assessments [SEA]. The NationalEnvironmental Management Authority [NEMA] is compelled, under EMCA, to publishan EIA report, and invite for public comments, presented by a proponent.The underlying principle herein is that it is the public who bears the brunt of environmental degradation. It is also supposed that while it is good for the social order toassign certain public affairs to special institutions, the society as a whole should preservea right to have input in the decision making and enforcement processes

. It is onlyapparent that to attain the goal of environmental justice and sustainable development theactive involvement and support of those people most affected by their dearth is crucial

.Situma opines that ‘public participation makes a major contribution to soundenvironmental governance in the sense that besides acting as a check on the quality of theEIA process, it also promotes transparency and accountability’.

In addition to theforegoing, it is a positive practice to provide for an adaptable procedure where a verdictmay be petitioned without necessarily resorting to the litigious and protracted judicial process.

It is presumed that the invitation to the public will attract both the lay membersof the public and experts in various fields who would infuse useful intercourse for thecommon good of the society.That wholesome environmental management is an integral part of sustainabledevelopment can not be gainsaid.

For reasons of intergenerational equity, health andsafety, national security, advancement of science and technology

, inter alia,

the nexus isfar-reaching. EMCA has been summed as ‘the product of a methodology for thedevelopment of environmental law, which is designed to promote public participation inthe conception and formulation of the law.’

Public participation in Kenya since theenunciation of the law is now characterized by community acting with a lot of information or propaganda, access to decision making institutions, and implementing itsarticulated objectives of underscoring sustainable development that balances the needs of man for prudent use of the environment.Sustainable development, as is defined under section 2 of EMCA ‘means developmentthat meets the needs of the present generation without compromising the ability of futuregenerations to meet their needs by maintaining the carrying capacity of the supportingecosystems’. This definition is basically derived from the Brundtland Commission’s

Okidi C.O & Kameri Mbote Patricia [2001]

Environmental Law in Kenya: The Making of a Framework.

Nairobi:United Nations Environmental Program [UNEP]& African Center for Technology Studies ACTS. . p. 104

MaGraw Daniel & Owen Lynch. [2006].

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In TheWorld Bank Law Review:. Law Equity and Development Volume 2. MAritinus NIjhoff Publishers. p. 463

Situma F.D.P. EIA,

Evolution, Legal and Institutional Aspects, Published in Tole Mwakio, [ed] Environmental Impact assessment in Kenya: Theory and Practice. [

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Okidi& Kameri-Mbote Op.cit, p. 104

Yogo Kiboyye [2008]

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Nairobi: Micropaq Publishers.

Okidi C.O & Kameri Mbote Patricia [2001]

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Nairobi:United Nations Environmental Program [UNEP]& African Center for Technology Studies ACTS..

proviso.

It is vital for the squaring off significant objectives like human rights, promotion of socially and environmentally sustainable economic growth and protectionand wise use of the natural environment, which sometimes are engendered in such a waythat they appear to be opposed.

It is essential for a conventional exposé of developmentto encompass a socio-economic constituent hinged on materialism and its advancementand as balanced against unassailable health, education, and housing and employmentindicators.

Further it is significant that values such as human rights, political freedom,enfranchisement and democracy are embodied. Exemplification of a cultural identity,self worth to people and the ‘full life paradigm concerned with the ultimate meaning of life and history as expressed in history and beliefs’ are significant on the same vein.

Consequently, choices in the management and use of environmental resources arenecessary for a people to augment the socio-economic and political aspects of development.

A 1999 OECD report also stressed that

If the primary goals of environmentally sustainable development are freedom from poverty, secure livelihood, good health, and quality of life,then socially responsible development has to deal with such needs as food,basic housing, access to good water, health care, sanitation, education,energy in the form of fuel, transport, etc.

The conception of sustainable development was also elucidated by the Rio Declaration onEnvironment and Development.

It enunciates the global agenda on sustainabledevelopment by listing 18 principles of sustainability which are herein encapsulated.First, a healthy environment is a sacrosanct part of the human civilization anddevelopment effort which should adhere to the tenet of intergenerational equity.Secondly, international amity should be a hallmark of sustainable development. Thirdly, public interests and participation is an integral part of the development debates and processes. Fourth, the persons who utilize the environment but end up causing pollutionsand other environmental hazards should pay for the restoration of the environment, andindemnify those who are injured by their activities. Fifth, empirical understanding of phenomena alone is not enough premises on which debates and process on environmentand sustainable development can be founded. They should be augmented by the precautionary principle.

World Commission on Environment and Development. 1987.

Our Common Future

. Oxford: Oxford UniversityPress. p. 3:‘Sustainable development refers to development that meets the needs of the present without compromisingthe ability of the future generations to meet their own needs.”

Magraw Daniel and Lynch Owen. 2006.

One Species, One Planet. Environmental Justice and Sustainable Development.

the World Bank Legal Review: Law, Equity and Development.

Washington DC, USA: World BAnk.Martinus Nijhoff Publishers

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Goulet D. [1990].

Development Ethics and Ecological Wisdom.

In Engel J.R. and Engel J.G.

eds. Ethics of Environemnt and Development: Global Challenge, International Response.

Tucson. University of Arizona Press.

Ibid.

Ojwang J.B. & Juma Calestous. [1996].

Towards Ecological Jurisprudence

. In Land we trust: Environemnt, PrivateProperty and Constitutional Change/Calestous Juma and J.B.Ojwang, eds. Nairobi, Kenya: Initiative Publishers:London UK: Zed Books.] p. 310

OECD [1999]. OECD Seminar Social and Environmental Interface Proceedings. ENV/EPOC/gep/ [99] 13 [Sept. 22-24, 1999], http://www.olis.oecd.org/olis.1999doc.nsf/LinkTo.env-epoc-gep[99]13

1992 UN Conference on Environment and Development.

Yogo Kiboyye [2008].

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. Nairobi: Micropaq Publishers.