Kenya Grants Environmental Rights in New Constitution


photo: Franco Pecchio/Creative Commons

The issue in all this will obviously be in implementation and enforcement, but taking that as a given, this is really pretty great news: As AlterNet reports, Kenya's new constitution takes an important step in elevating the importance environmental protection to the highest levels, with a number of articles dedicated specifically to the rights of the people and responsibilities of the state on environmental matters. In Part 2, on "Rights and fundamental freedoms", section 42 states:

Every person has the right to a clean and healthy environment, which includes the right a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69, and b) to have obligations relating to the environment fulfilled under Article 70.

Chapter five of the new constitution covers "Land and Environment" and includes the aforementioned articles 69 and 70.

Eliminate Processes & Activities Likely to Endanger the Environment...
Article 69:

1) The State shall a) ensure sustainable exploitation, utilisation, management and conservation of the environmental and natural resources, and ensure the equitable sharing of the accruing benefits; b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya; c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities; d) encourage public participation in the management, protection and conservation of the environment; e) protect genetic resources and biological diversity; f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment; g) eliminate processes and activities that are likely to endanger the environment; and h) utilise the environment and natural resources for the benefit of the people of Kenya.

There are some really pretty important (if no doubt open to interpretation) points in there, particularly placing protecting biological diversity and eliminating activities likely to endanger the environment in the constitution itself.

Kenyans Can Sue For Damage to Environment, Preemptive to Humans Being Harmed
Article 70 is where things get even more interesting, as it deals with enforcement. I won't blockquote the whole section this time, but in short it enshrines the right to petition the courts for violations of the right to a healthy and clean environment (which can order the activity violating that right stopped and assign compensation), and "an applicant does not have to demonstrate that any person has incurred loss or suffered injury."

I don't know how that will be interpreted in practice, but it seems to imply that it would allow someone to file a suit simply for damage to the environment itself, even if no one has yet suffered loss from it or been injured. Though it does not explicitly say so, it establishes rights to nature itself, albeit still in the boundaries of its utility to humans.

That's a pretty huge step, Article 70--although it does stop short of what Bolivia has done, effectively enshrining Earth itself with rights.

All of that said, I highly doubt anyone living in Kibera would be able to bring change in their lives about because of this...Granting rights is one thing, enforcing them, even with mechanisms in place, is another.


photo: Christine Olson/Creative Commons
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Tags: Environmental Justice | Kenya

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