Carbon Trade in Kenya: Aligning the Municipal Regulatory Framework With International Climate Change Law Regime

Abstract

The worsemng impacts of climate change 1S a result of global warnung prompted the international community to seek appropriate responses to stem rising concentrations of greenhouse gases in the atmosphere. Consequently, the United Nations adopted the United Nations Framework Convention on Climate Change (UNFCCC) in May 1992 and the Kyoto Protocol in 1997. These agreements sought, inter alia, to stabilize greenhouse gas emissions at 1990levels by 2012 and in addition set up flexible market oriented mechanisms for ensuring low costs in emissions' reduction. These include the Emission Trading, Joint Implementation and CleanDevelopment Mechanism (CDM). The CDM supports projects carried out by proponents from developed countries in the developing world in order to obtain tradeable carbon credits which can be sold to industries (in the former) that are unable to meet statutory green houses gas emission limits. The CDM is (lOW a multi-billion dollar carbon trade scheme which is expected to generate investment m developing countries, especially from the private sector and promote the transfer of environmentally-friendly technologies. Kenya is a state party to the UNFCCC and the Kyoto Protocol. As a developing country, Kenya also qualifies to benefit from CDM processes and has witnessed a steady rise in investments linked to the carbon trade. Kenya has already designated National Environment Management Authority (NEMA) as the national CDM regulatory body. This study sought to inquire into the extent to which the municipal regulatory framework on carbon trade is in line with the international climate change regime and the concept of sustainable development, with a view to formulating the appropriate legal and policy proposals for reform. The study found that in spite of efforts to ensure compliance with international standards, the current regulatory framework, a, evinced by the NEMA Guidelines on CDM, is of doubtful legal validity from the Kelsenian theoretical point of view. The Guidelines contradict recent changes in the international climate change legal regime as well as the concept of climate justice. The Sustainable Development Criteria developed by NEMA to assess CDM projects is inconclusive, anchored on outdated policy basis and relies on a vague definition of the concept of sustainable development. The study also analysed the forestry and energy sectoral policy and legal regimes that are linked to carbon trade and found them to have significantly integrated principles of sustainable development, thus enhancing their compatibility with the international regulatory framework of carbon trade.