Environmental Law in Kenya

How can Environmental Law be effectively enforced in Kenya?

For environmental law to be effectively enacted in Kenya their needs to be emphasis on the need for a universal environmental ethic. There needs to be a concern on the ability to provide information that changes behaviour towards the environment i. e. not stopping at awareness creation but to also go through education & advocacy. This led to the enactment of the Environmental Management and Coordination Act. (EMCA).

With the enactment of the EMCA, the fundamental principles on the environment espoused in various multilateral environmental agreements and intellectual discourse were incorporated into Kenyan law. Therefore it is based on the recognition that improved co ordination of the diverse sectoral initiatives is necessary for better management of the environment. To facilitate a coordinated approach to environmental management, EMCA establishes several organs as discussed below which help in the effective enforcement of environmental law:

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1. National Environmental Council

It is responsible for policy formulation and directing, setting national goals and objectives, determining policy and priorities for the protection of the environment and the promotion of cooperation among the public and private bodies engaged in environmental protection programmes. The council is responsible in regards to international treaties, conventions and agreements relating to the management of the environment to which Kenya is a party or should be a party.

2. National Environmental Management Authority (NEMA)

It is responsible for the following:

1. Co-ordinate the various environmental management activities being undertake by the lead agencies and promote the integration of environmental considerations Into development policies, plans, programs and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of he quality of human life in Kenya;
2. Take stock of the natural resources in Kenya and their utilization and conservation;
3. Establish and review in consultation with the relevant lead agencies, land use guidelines;
4. Examine land use patterns to determine their impact on the quality and quantity of natural resources.
5. Carry out surveys which will assist in the proper management and conservation of the environment;
6. Advise the government on legislative and other measures for the management of the environment or the implementation of relevant international conventions, treaties and agreements in the field of environment,
7. Advise the government on regional and international environmental conventions, treaties and agreements to which Kenya should be a party and follow up the implementation of such of such agreements where Kenya is party;
8. Undertake and co-ordinate research, investigation and surveys in the field of Environment and collect collate and disseminate information about the findings of such research, investigation or survey;
9. mobilize and monitor the use of financial and human resources for environmental Management;
10. identify projects and programs or types of projects and programs, plans and policies for which environmental audit or environmental monitoring must be conducted under this Act;
11. Initiate and evolve procedures and safeguards for the prevention of accidents Which may cause environmental degradation and evolve remedial measures where Accidents occur;
12. Monitor and assess activities, including activities being carried out by relevant lead Agencies, in order to ensure that the environment is not degraded by such activities, environmental management objectives are adhered to and adequate early warning on impending environmental emergency is given;
13. Undertake, in co-operation with relevant lead agencies, programs intended to enhance environmental education and public awareness about the need for sound Environmental management as well as for enlisting public support and encouraging the effort made by other entities in that regard;
14. Publish and disseminate manuals, codes or guidelines relating to environmental Management and prevention and abatement of environmental degradation;
15. Render advice and technical support, where possible, to entities engaged in natural Resource management and environmental protection so as to enable them to carry out Their responsibilities satisfactorily; Prepare and issue an annual report on the state of the environment in Kenya and in This regard may direct any lead agency to prepare and submit to it a report on the state Of the sector of the environment under the administration of that lead agency;
16. Perform such other functions as the Government may assign to the Authority or As are incidental or conducive to the excise by the Authority of any or all of the functions provided under this Act. Provincial and District committees

The committee is responsible for the following:

• is responsible for the proper management of the environment within the province or district in respect of which they are appointed.
• Perform such additional functions as are prescribed by this Act or as may, from time to time, be assigned by the Minister by notice in the Gazette.

There are certain mechanisms that are set in place for the protection and conservation of the environment, framework environmental laws also provide for the management of specific environmental aspects, whether they are of a sect oral nature or of cross sectoral nature or both.

These mechanisms include:

• Environmental Impact Assessment

This is a tool that helps those involved in decision making concerning development programmes or projects to make their decisions based on knowledge of the likely impacts that will be caused on the environment, whether negative or positive. Whether the impacts are negative and likely to result in significant harm, decision makers will be able to decide what kind of mitigating measures should be taken to eliminate or minimise the harm. Therefore the EIA is an anticipatory and where there is harm, a preventive mechanism. By using the EIA both environmental and economic benefits can be achieved such as reduced cost and time of project implementation and design, avoiding treatment/ clean up costs and impacts of law and regulations.

• Environmental auditing and monitoring

This is a process that assesses the nature and extent of environmental concerns at an existing facility or any other site where the existence of industrial pollution problems is identified or anticipated. Enforcement of Environmental Law Most environmental enforcement strategies derive from legal requirements that must be met by individuals, facilities whose operations or activities may cause undesirable environmental impacts. These environmental impacts are an essential foundation for environmental and public health protection.

Environmental actions may include applying one or a combination of the following actions:

• Inspections and monitoring to determine the compliance status of the regulated community and to detect and to respond to violations.
• Negotiations with violators or facility managers to develop mutually agreeable schedules and approaches for achieving compliance.
• Awareness creation to sensitise the regulated community on the requirements to be met
• Taking legal action where necessary to compel compliance and:
• Compliance promotion among the regulated community.

2. Discuss why health and safety laws are necessary for any worker? Health and safety may be perceived as an investment or loss within an organization.

Accidents happen and it is imperative for organizations to strive towards a ‘zero’ rate because they can prove very expensive if a company is deemed liable. Employers may be expected to invest a relatively minimal initial outlay for risk assessment and hazard identification procedures - which may or may not require consultancy fees, installation of modern equipment or staff training – but in reality these can all be viewed as an investment rather than a loss and there is no arguing with the fact that an injury free workplace is a safe workplace. All employers were required to ensure, in so far as ‘reasonably practical’, the safety, health and welfare at work of their employees and to carry out an annual review of safety statements specifying how it is managed.

On the other hand, employees are obliged to co-operate with their employer and report any circumstances that may pose a serious threat to health and safety. In the opinion of Hoyle (2004), "Accident prevention is primarily the responsibility of individual workers. ” The promotion of health and safety within an organization can be seen as an investment. If employees keep healthy, their productivity will be good and this can promote profits. With safety the same applies. In a safe environment there are fewer injuries, more productivity, more profits and less worker compensation insurance premiums, etc. The financial implications of accidents and ill-health are often overlooked or underestimated, especially relating to absenteeism.

Apart from still having to pay the absent employee’s wages, employers could also be faced with additional wages for replacement staff, overtime and lost time spent on investigations and meetings, increased costs due to reduced productivity, possible contract penalties and external consultancy fees, all of which can add up to substantial hidden costs (TSSA). In fact, organizations with active training programmers in health and safety - such as OHSAS 18001 - have many advantages, including fewer work-related injuries and lower healthcare costs, improved productivity, reduced absenteeism, lower insurance premiums and compensation claims and a higher rate of worker retention and employee satisfaction. Workers’ compensation claims due to workplace accidents and occupational ill-health appear in the papers every day. And costs facing organizations include investigation time, wages paid for lost time, clerical time, decreased output of injured worker upon return and the loss of business and goodwill.

Unfortunately, in smaller firms where major injury rates tend to be higher, conviction could ruin a company. Many small organizations harbor a negative view of the business benefits of corporate and social responsibility. They see the implementation and maintenance of appropriate operational standards as a waste of time, money and staff resources because of the required controls, practices and procedures and other overheads which they regard as a drain on their limited resources. While some employers may see health and safety as a loss, this will only occur when an organization has failed to take reasonable steps to prevent injury and non-injury accidents and ill-health. The advantages of reventive policies can be financially beneficial, an added investment is that they ‘can also consist of benefits that are harder to express in money, such as morale, productivity or quality gain. ’ Nevertheless, employers must undertake suitable and sufficient assessment of risks to health and safety in their workplace and appropriate arrangements must be made to review preventive and protective measures, assess their efficacy and level of legal compliance and establish a sound health and safety culture. A risk assessment is a hazard identification process to identify what could cause harm to people. It forms part of the preparation of a Safety Statement and helps employers to manage the health and safety of their employees.

Employers are legally required to do everything that is ‘reasonably practicable’ to ensure that identified hazards will not injure anyone. They should also ensure that all employees are familiar with the relevant contents of the Safety Statement, especially when revisions have been made. Improving health and safety need not cost the employer a lot of money. Even changing the way a particular task is performed can reduce the risk of injury. For example, placing anti-slip material on a slippery floor is a relatively inexpensive precaution when compared to the financial implications of a bad fall. Any safety measures introduced “need only be proportional to the real risks involved and should be sufficient to control, eliminate or minimize any risk of injury” (ibid).

Managing health and safety in the workplace is not just a legal requirement, it also makes commercial sense. Many investors closely monitor health and safety performance with a view to increasing investment opportunities. Simple and relatively inexpensive steps like arranging courses such as First Aid, Manual Handling, Fire and Electrical Safety, Health and Safety and Stress Management, etc. for all employees is most definitely a good investment for any forward-looking organization and the potential dividends for both staff and employees are immeasurable.

References

1. Environmental Management and Coordination Act 2000 Okidi et al, Environmental Governance in Kenya: Implementing the Framework law. East African Publishers, 2008

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