Safeguarding environmental rights in Kenya

Abstract

The lack of a constitutional guarantee to a clean and healthy environment was widely seen as the main setback towards achieving an integrative and harmonious policy and legal framework for sound environmental management in Kenya. The clamour for an integrated framework resulted in the enactment of the Environmental Management and Co-ordination1 and more recently the Constitution.2 This paper appraises the constitutional basis of environmental rights in ensuring that they are observed, respected, protected, promoted and fulfilled. The scope of the right to a clean and healthy environment will be examined. Equally the authors examine the efficacy and the role of procedural rights such as access to information, access to justice and public participation in decision-making in the promotion, protection and fulfillment of environmental rights. The enhanced role of the courts under the constitution in promoting and safeguarding environmental rights through their judgments, declarations and other reliefs that they may grant to litigants will also be discussed. The authors argue that by having the right to a clean and healthy environment and other procedural rights as constitutional rights and by enhancing the role of the courts environmental rights will be more safeguarded. The paper proceeds in four parts. Part 1.0 is the introduction. Part 2.0 addresses environmental rights in the constitution. It discusses the right to a clean and healthy environment and its scope; economic and social rights; procedural rights; the right to life and environmental protection measures. Part 3.0 examines the challenges and opportunities in realizing the right to a clean and healthy environment. The conclusion is in Part 4.0