The environmental impact assessment as a means of achieving sustainable development in kenya

Abstract

This study focuses on the Environmental Impact Assessment as a means of achieving sustainable development in Kenya. Environmental Impact Assessment (EIA) is one of the available environmental management tools used to facilitate sound integrated decision- making where environmental considerations are explicitly and systematically taken into account in the planning and development process. Prior to 1999, there was no legal framework that governed the EIA process in Kenya. The National Environment Secretariat (NES) administered the EIA process. through administrative structures. NES had no legal basis or legal authority for requiring an EIA to be carried out. However, from January 2000, Environmental Impact Assessment became a mandatory legal requirement in Kenya for specified projects likely to have significant adverse impacts on the environment through the enactment of the Environmental Management and Co-ordination Act, 1999. The Environmental (Impact Assessment and Audit) Regulations, 2003 give details of how the EIA should be carried out and administered by NEMA. The study examines the legal provisions on EIA process and sustainable development and takes a critical look at three requirements which make the EIA effective, that is, public participation in the EIA process, inter-sectoral co-ordination, and consideration of alternatives, especially of project sites. It also examines how the EIA has been IX

implemented in Kenya. It exammes the capacity of NEMA to enforce the EIA requirements. This has enabled the author to determine whether the EIA process has contributed towards enhancing sustainable development in Kenya. The study is divided into five chapters. The first chapter is the introduction of the study. The chapter gives the statement of the problem and the methodology used in the study. It also states the objectives, the justification and limitations of the study. It defines the conceptual framework upon which the study is premised. Most importantly, the chapter defines the terms "Environmental Impact Assessment" and "Sustainable Development" The second chapter looks at the objectives and purposes of EIA. It also discusses the concept of sustainable development and how EIA enhances sustainable development. The chapter closes by looking at EIA and sustainable development in the Kenyan context. The third chapter looks at the modalities that were used by NES to promote the carrying out EIA without any legal basis. It also evaluates the performance of NES to assess whether it enhanced sustainable development in Kenya. The chapter also discusses the legal and institutional framework governing the EIA process in Kenya since the enactment of EMCA in 1999.1 The provisions of Environmental (Impact Assessment and Audit) Regulations, 20032 on public participation, inter-sectoral co-ordination and consideration of analysis of alternative project sites are also discussed. I Act No.8 of 1999 (Government Printers, Nairobi, 1999). 2 Legal Notice No. 101 (Kenya Gazette Supplement No. 56, Legislative Supplement No. 31) of 13th June, 2003. x

The fourth chapter analyzes the practical implementation by NEMA of the ErA requirements as stipulated by the law. In particular, it discusses the implementation of public participation, inter-sectoral co-ordination and consideration of analysis of alternative project sites on the ground by NEMA. The chapter also carries an examination of the capacity of NEMA to ensure strict implementation of the ErA requirements. It closes by looking at the appellate process for persons aggrieved by the decisions of NEMA in relation to the EIA process and analyzes some case law arising from the ErA process. Finally, the fifth chapter discusses the conclusion and recommendations of the study.