*DISCLAIMER*
The notes below are adapted from the
Kenyatta University,UoN and Moi Teaching module and the students are
adviced to take keen notice of the various legal and judicial reforms that
might have been ocassioned since the module was adapted. the laws and statutes
might also have changed or been repealed and the students are to be wary and consult
the various statutes reffered to herein
The subject of environmental law is
focused on how environmental activities are managed. This unit focuses on the
legal regimes in Kenya and dwells on national environmental law.
The focus basically covers:
-
The history of modern environmental law,
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Theories and justifications for environmental law
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Various sectors of environmental law, which are dealt with
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Laws relating to physical planning, management of water resources, waste and
biological diversity
An essay is written as part of a
continuous assessment and the course takes about ten weeks of teaching.
Environmental
law
The term describes the interaction
between human activities and mechanisms that exist for regulating the impact of
human activities on the environment. The environment has been described as
everything that is not me – this is attributed to Albert Einstein who said ‘the
environment is everything that is not me’ an all-encompassing definition
that covers everything. In terms of management the environment is therefore
dealt with thru sectors and so there is a system for managing the natural
environment, the physical environment, the economic environment, the political
environment, the social environment etc.,
The subject matter here is the physical
environment. The natural environment is that component of the environment
constituted without primary human intervention. Human intervention to the extent
that it exists is indirect. We are not saying that they have had nothing to do
with it but they had no primacy to do with it. The natural environment exists
in and on itself but human intervention forms part of the dynamism of the
natural environment.
Human beings themselves are part of
nature and humans exist in two worlds, the natural world and the human world.
This means they are part of nature but at the same time independent of nature.
The way humans define nature depends on the way humans appreciate nature. For
instance, some human beings may think of the forest as a dangerous place and
others as a beautiful recreational ground and yet others as a good source for
timber poles.
Humans have an impact on nature because
humans depend on nature for their sustenance. They cut down trees, hunt animals
and so on. This is part of natural processes. Nature has the capacity to absorb
the impact of human activity. Nature is dynamic, subject to constant change.
Part of that change arises from human activity. Consequently, human reliance on
the environment for sustenance is a natural process. With the development of
human society, the ability of human beings to have an impact on nature has also
increased. This increased ability has arisen from on the one hand an increase
in human population and on the other an increase in technological capability.
The combined effect of increased technological effect and human activity means
that present day human society has a far superior ability to cause an impact on
nature than earlier human societies. The increased impact of human activity on
nature tends to destabilize the natural balance. Instability in the natural
balance manifests itself in environmental degradation.
The subject mater of environmental law
is to put in place measures to ensure that human activities do not lead to
environmental degradation. Modern environmental law can be traced to the 1960s.
It was triggered by the experience of industrial pollution in western
industrialized countries. In the period after the Second World War western
countries developed their industries as a response to the economic problems
that they were then experiencing. The development of industries in the west
created serious congestion in urban areas as labour migrated into towns but it
also created serious industrial pollution because the industries emitted gasses
and discharged wastes into watercourses.
In the late 1960s proposed to hold a
conference to discuss the implications on the environment of the
industrialization that was then going on in the west. The conference was
planned for Stockholm, Sweden and the agenda of the conference focused on
industrial pollution and urban settlements. The non-industrialised countries at
the time took the view that the proposed conference was not going to address
their problems. Their problems arose from poverty and the low level of economic
growth whereas the conference was preoccupied with urban settlements and
industrial pollution. They therefore showed no interest in attending the conference.
In 1969 the UN convened a meeting at a
town called Founex, Switzerland to discuss the concerns of the
non-industrialised countries and it was agreed that ways be found to factor in
issues of poverty into the conference. The UN Conference on Environment and
Human Settlements was held in Stockholm in June 1972. The outcome of the
conference was the establishment of a program of the UN to deal with
environmental issues. That program was the United Nations Environment Program -
UNEP and in 1974, its headquarters was located in Nairobi. The conference
established also a center for human settlements known as the UN Center For
Human Settlements and that center was also located in Nairobi. Subsequently,
the center was renamed HABITAT. Two outcomes were thus the establishment of
UNEP and HABITAT (focused on human urban settlements.)
In 1982, UNEP recommended to the
General Assembly that discussions needed to be continued on the question of the
relationship between poverty and environmental concerns. The UNGA established a
commission known as the UN Commission on Environment and Development chaired by
the then PM of Norway, Ms Groharlem Brundtland. The Commission published their
report in 1987, commonly known as the Brundtland Report but whose official is
known as ‘Our Common Future: The Report of the UN Commission on Environment and
Human Development’. It discussed the relationship between environment and
development and argued that environmental protection was not necessarily
contrary to economic growth. It argued that economic growth could be made
compatible with environmental protection and that it was necessary to make
economic growth compatible with environmental protection because that was the
only way in which development could be made sustainable. The Commission defined
sustainable development as development which meets the needs of the present
generation without compromising the ability of future generations to meet their
own needs.
Sustainable development as a concept
quickly gained widespread support. In June of 1992 the UN General Assembly held
a 20th anniversary conference to the Stockholm conference in Rio De
Janeiro, Brazil. The UN Conference on Environment and Development – changed
from the UN Conference on Environment and Human Settlements in 1972. At the
1992 Conference, the International Community endorsed the concept of
sustainable development. The UN Conference on Environment and Development
approved the Rio Declaration which endorsed the principle of sustainable
development as the way to reconcile the demands for economic growth and the
imperative to protect the environment. The conference also approved the
document known as Agenda 21 which is the statement of principles of how to
achieve sustainable development in the 21st century. The concept of
sustainable development provides the philosophical underpinnings for modern
environmental management.
The concept appeared to satisfy both
developing and developed countries – a way in which both could rally around the
idea of environmental protection. The rationale for it is the idea of prudent
management of resources. The Brundtland Commission adopted the analogy of
capital and interest. Capital is the inherited sum. One was to think of the
resources as capital, we had to live off them but leave them intact for future
generations so that the capital was always there. Hence slogans like if u cut
one tree, u plant two others.
The philosophy was very attractive and
the concept of sustainable development came to dominate the way people think of
environmental management. A small group has continued to express
dissatisfaction though and have highlighted two fundamental weaknesses:
-
The concept is unduly centered on human interest (anthropocentricity). The Rio
Declaration principle 1 in fact states that human beings are at the center of
concerns for sustainable development. Thus critics say the concept subjects
other components of nature to satisfying the needs of human beings. This means
human beings determine whether other parts of nature will die or survive
depending on whether human beings like it or not. This they argue is not nature
but nature as created by human beings. The world inherits resources not exactly
as they were. They argued for a biocentric system, a concept centered on all
living organisms.
-
As a concept, it promotes a false notion of equity. There are two kinds of
equity: Equity between the present generations (intragenerational equity) and
between the present generations and future generations (intergenerational
equity). Sustainable development focuses on intergenerational equity. One of
the leading proponents of sustainable development, Edith Brown Lee wrote ‘In
fairness to future generations’. The critics argue that in encouraging us to
think of future generations it takes away our attention from the unfairness to
present generations. There is no fairness in the way the resources of the world
are distributed for instance. Africa has 1% of the wealth of the world and
instead of focusing on that unfairness today we are thinking of the future.
Thus, the critics argue that the
concept of sustainable development is flawed. Nevertheless, the concept has
taken center stage in the way in which we manage environmental resources. The
subject of environmental law revolves around this.
The Law Dealing with
Physical Planning
Physical planning refers to the
management of the use of physical space. The history of physical planning dates
back to the common law in 18th century England under which the
landowner has rights of use and abuse of the land which the particular
landowner has. The right to use the right to put the land to productive
purposes while the right to abuse is the right to commit waste on the land. The
landowners right of use and abuse is only limited by an equal right of
use and abuse in neighbouring landowners. Where the use or abuse to which
landowner puts land cause or threatens to cause damage to neighbouring land the
neighbouring landowner has a remedy under the law of nuisance to stop the damaging
use or abuse.
Nuisance is a remedy available to
protect owners or occupiers of land from the damaging effects of the
unreasonable use of land by a neighbouring landowner. The right of action
available to one landowner is equally available to all landowners. With the
development of the modern state, the state arrogated to itself the right to
take action to protect land from damaging use arising from unreasonable use by
neighbouring landowners, and what the state assumed was the power available to
all landowners to protect land from damaging use. The state power in this
regard is referred to as police powers.
When the state acts in exercise of
police power it may restrict the use to which the landowner may put his or her
land. Because the restriction is intended to prevent damaging use of the land
no compensation is payable to the landowner whose use of land is restricted.
The implication of the states exercise of police power is that the landowners
right to develop his or her land may be curtailed.
It is upon this premise that the law of
physical planning has arisen. Physical planning controls the use of physical
space. It comprises two parts.
- The physical plan
- Development control
The physical plan is a statement of the
objectives which it is sought to achieve in using particular physical space
whereas development control is the process of subjecting proposed developments
to consideration with a view to determining whether the proposed developments
conform to the physical plan.
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Westlands
Residences, churches, police station
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Eastlands
Industries, landfills, army, prisons
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Southlands
Entertainment spots, national parks
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Northlands
Institutions, universities
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The key purpose to achieve is to ensure
that incompatible uses are separated one from the other in order to ensure that
nuisance is minimized.
For instance above, residences to be
near churches and institutions away from national parks. The industries are not
too far to avoid long commuting distances.
The second step is to ensure proposed
developments conform to the plan.
The law relating to
physical planning in Kenya
This is dealt with in the
Physical Planning Act CAP.286 of the Laws of Kenya. It is complemented by two
other statutes:
v Land Control
Act – CAP 302
v Environmental
Management and Coordination Act of 1999
The Land Control Act is not
predominantly perceived as a means of physical planning but in fact it is. It
is an act whose objective is to regulate developments in agricultural land. It
establishes land control boards and subjects transactions in agricultural land
to the requirement for an approval by the land control board. Anybody proposing
to transfer, transmit or subdivide agricultural land must obtain the permission
of the land control board.
Transfer occurs inter vivos when
both parties are alive, transmission occurs where the owner has died.
The objective of the Land Control Act
is to ensure that good husbandry/agricultural practice is promoted. That one
does not subdivide beyond the point that it is possible to use it for
agriculture.
The Environmental Management and
Coordination Act is an act designed to provide a system for coordinating
activities which have an impact on the environment. Part IV of the Act provides
for environmental planning. It establishes a National Environment Action Plan
Committee. The function of the Committee is to prepare a National Environment
Action Plan at least every five years. The National Environment Action Plan is
required to contain among other things guidelines for the use of land. The
process of preparing the plan is that at district level the district
environment action plan is prepared which gives guidelines for the use of land
in the district. All the district plans are then assembled at the province and
the provincial environment action plan is prepared. Finally, the Provincial
Environment Action Plan is incorporated with plans from other provinces to
constitute the National Environment Action Plan.
Presently, the Environmental Action
Planning process has not started and the ways in which this plan will relate to
the physical plan is not yet clear but the idea is that for purposes of
environmental management there will be a plan. The physical planning Act
replaced two earlier statutes:
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The Town Planning Act
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The Land Planning Act
Both Acts were repealed when the
physical planning Act came into effect in November of 1998.
The Act provides for the preparation
and implementation of physical development plans. It establishes the office of
the director of physical planning whose job it is to formulate national,
regional and local physical development and advise commissioner of the lands
and local authorities on the most appropriate use of land including land
management.
It establishes physical planning
liaison committees at national, provincial and district levels and the function
of the committees is to act as an appeal body against the decisions of the
director of physical planning and his officials.
The Act provides for two kinds of
plans:
v A regional
physical development plan
v A local
physical development plan
The regional physical development plan
is prepared by the director with reference to any government land, trust land
or private land within the area of authority of the county council whereas a
local physical development plan is prepared by director with reference to
government land, trust land or private land within the area of the city,
municipal, town or urban council or a trading or marketing center.
Under section 23 of the Act, the
director may declare an area with unique development potential or problems to
be a special planning area and for this purpose may prepare the physical
development plan for the area irrespective of whether it lies within another
local authority. The regional physical development plan has the purpose of
improving the land and providing for the proper physical development of the
land and finally to secure suitable provision for transport, public purposes,
utilities and services – commercial, industrial, residential and recreational
areas including parks, open spaces and reserves. The plan shall consist of a
technical report on the commissions resources and facilities of the area and a
statement of the policies and proposals of the area. What are the policies with
regards to the allocations of resources and locations of development within the
area?
Thirdly, an explanation and
justification of the policies and proposals. Maps and plans showing the present
and future land uses and development in the area.
With regards to the local physical
development plan it is prepared for the purposes of guiding and coordinating
the development of infrastructure and services in the area. It consists of the
survey in respect of the area and maps and descriptions which indicate the
manner in which the land may be used.
In the 3rd Schedule to the
Act provision is made for what must appear in that document. Provision must be
made for:
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the locations of factories and industries generally
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buildings for commercial purposes
-
open spaces
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public and private use
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and facilities for waste disposal
The process for developing the plans
requires that the director prepares the plan and within 30 days he notifies the
local authority of the existence of the plan and publishes the notice in the
gazette. Within 60 days anybody with objections to the plan must notify the
director giving reasons. IF the director rejects the objections the objector
may appeal to the relevant to the relevant physical planning liaison committee.
If no objections are received or if the ones received have been dealt with, the
director shall certify the plan and give it to the minister for his approval.
The minister (for Lands) may approve the plan with or without modifications or
he may require the director to prepare another one.
Within 14 days of the minister’s
approval the plan shall be published in the gazette and the notice shall state
where it may be inspected. An approved plan shall have full force and effect in
the area to which it relates and every person shall comply with its
requirements and no development shall take place on any land unless it is in
conformity with the plan. A plan that has been approved may be amended or
modified and the reasons for this may be that there are practical difficulties
in its implementation or enforcement or that there has been a change of
circumstances since the plan was approved. If there’s a proposal to modify,
then the proposed modifications must be published in the gazette and people
given a chance to make representations or to object. If there are no objections
or if the objections or if the objections that are received have been dealt
with then the director will submit the proposed modifications to the minister
for his approval. The same process will take place afterwards.
The role of local authority here is
merely to make comments, a big change from the position before 1988 under which
the local authorities made the plans. Now the director makes the plans. This
was because of the unreliability and inefficiency associated with local
authorities.
EXERCISE OF DEVELOPMENT CONTROL
- Section 30 PPA: no person shall carry out development within the area of L.A without development permission.
- It is an offence punishable upto a fine of sh 100,000 and an imprisonment term up to 5 years or both to carry out development without development permission. Any development traditionally which carried out without development permission is null and void and the L.A. will require the developer to restore the land on which such development has taken place to its original condition within a period of 90 days.
- If after 90 days the developer has not restored the land as required the L.A. itself may restore the land and recover the cost incurred from the developer. L.A. is able to demolish the building.
- No licencing authority shall grant a licence for commercial or industrial use or occupation for any building or in respect of any premises of land for which no development. Permission has been granted by the L.A.
Commercial use includes shops, offices,
hotels, restaurants, bars, kiosks, markets and similar businesses.
Industrial use includes manufacturing,
processing, distilling and brewing, warehouses and storage, workshops and
garages and petroleum filling stations.
The L.A. itself may not grant
development permission without a certificate of compliance issued by the director
of physical planning. Advises L.A. minister in respect of development of land.
Development is defined in section 3 of
the Act and means the making of any material change in the use or density of
any land or buildings on land or the subdivision of land or alternatively the
erection of buildings or works provided that;
- Carrying out of works for the maintenance or improvement or other alteration or addition to any building where the alteration or addition to any building where the alteration or addition does not exceed 10% of the floor area of the building measured on the date this Act becomes applicable to the area shall not constitute development.
- Carrying out by a competent authority of any works required for the construction or improvement or maintenance of a road shall not constitute development.
- Carrying out by an L.A. or statutory body of works for the purpose of preparing or inspecting or renewing sewers, mines, pipes, cables or other apparatus including the breaking open of the street for purposes of installing services shall not constitute development.
NB:
a)
The deposit of refuse/waste material of land involves the change of use of
land.
b)
The use of two or more dwellings for a building previously used as one dwelling
shall constitute development
c)
The erection of more than one dwelling or shop or the erection of both dwelling
and shop on one plot constitutes development.
d)
Display of any advertisement constitutes development.
e)
The use of any building or land within the curtiledge(areas adjoining) of a
dwelling for purposes incidental to the enjoyment of the dwelling constitutes
development.
Under section 29, each L.A. has power
to
i)
Prohibit or control the use of land development of land and buildings in the
interest of proper and orderly development of its area.
ii)
Control or prohibit the subdivision of land into small areas
iii)
Consider and approve all development applications and grant all development
permissions
iv)
Ensure the proper execution and implementation of physically approved areas
v)
Formulate by-laws to regulate zoning in respect of use and density of
development.
vi)
Reserve and maintain all the land planned for open spaces, parks, urban forests
and green belts.
A person requiring a
development permission shall make an application to the clerk of the L.A.
responsible for the area in which the land is situated.
The application shall
be accompanied by such plans and particulars as are necessary to indicate the
purposed use and density of the development.
Upon receipt of the
application the L.A. within 30 days refer it to the director of Physical
Planning for his comments. Additionally, the L.A. may consult any of the
following officers:
- Director of survey
- Commissioner of lands
- Chief Engineer of Road
- Chief Public Health Officer
- Director of Agriculture
- Director of Water and Development
- Director of Urban Development
- Director of Livestock Development
- Chief Architect
- Director of forests
In considering the application, the
L.A. shall be bound by the relevant regional or local physical development
plan. It shall have regard to the health, amenities and convenience of the
community generally and to the proper planning and density of land use in the
area. It shall have regard to any comments received.
If the development application requires
the subdivision or change of use of agricultural land the L.A. shall require
the application be referred to the relevant LCB.
The L.A. may grant or refuse to grant
planning permission. If it refuses, it shall state its reasons. If it grants,
it may improve conditions.
A person who is dissatisfied with the
L.A.’s decision, may appeal to the relevant P.P. liaison committee. A further
appeal lies from the P.P. liaison committee to the H.C. Under section 36
if in connection with a development application, a L.A. is of the opinion that
the proposal will have an injurious impact on the environment then the L.A. may
require the developer (applicant) to submit on an environmental impact
assessment report (EIA). Where development permission has not been
obtained the registrar of lands may refuse to register the documents relating
to the development unless development permission is granted.
In terms of enforcement, section 38 gives the L.A. power to issue an
enforcement notice where development permission has not been obtained or where
the conditions of a development permission have not been complied with.
The enforcement notice shall specify the development alleged to be carried out
without development permission or the conditions which have been contravened.
It shall state also the period of time within which action shall be taken to
restore the land to its previous condition. The notice may require the
demolition of the building or the discontinuance of any use of the land or the
discontinuance of carrying out any activities on the land.
The person aggrieved by the notice may appeal to the PPLC and a further appeal
to the H.C. If the notice is not complied with the L.A. may enter the land and
take the measures required and recover costs incurred from the person on whom
the notice was served.
Finally, the Act prohibits subdividing land unless permission has been
given the L.A. to subdivide the land. When an application for subdivision is
made the L.A. shall publish a notice in the gazette and also in newspapers circulating
in the area. If it receives an objection to the application it shall notify the
applicant of the objections and give the applicant an opportunity to respond to
the objections and following that, it may then determine the application.
ENVIRONMENTAL IMPACT ASSESSMENT
EIA may be called for, as in section
36, where the L.A. is of the view that the proposed development may have an
injurious impact on the environment. The provision under the P.P.A. does not
impose a mandatory requirement for environmental impact assessment.
Under the EMCA part VI there is a mandatory requirement for EIA. EIA is the
procedure for carrying out a study about the potential environmental impacts of
the proposed development and for using the results of the study to make a
decision about whether or not the proposed development should be granted
planning permission.
In Kenya, it is provided for under Part IV of EMCA which states that
notwithstanding any approval, permit or licence granted under this or other law
in force in Kenya before financing, commencing, proceeding with, carrying out,
executing or conducting any undertaking which is listed in schedule 2 of the
Act, the project proponent shall apply for EIA licence.
There are four things to note:
1.
This requirement is additional to any other licences or permits that may have
been obtained already e.g. planning permission, business licence, water
pollution discharge licence etc
2.
The responsibility to obtain to apply for the EIA licence is on the project
proponent (person proposing to finance, carry out etc the project)
3.
The requirement with respect to projects so that the EIA we have is a project
based environmental impact assessment.
This means that the requirement applies
at the point when the project has been conceived.
Project Development Cycle
Stage 1: Policy (idea/objective)
to introduce free primary education
Stage 2: Develop a plan or a
programme (strategic plan) it is within this plan that one develops how one
will achieve the idea of introducing free primary education.
Stage 3: Project, location
specific
It is the project that is subjected to
EIA
According to EMCA, one does not carry
out an EIA on the policy nor the plan but on the project only. Project based
EIA suffers from fundamental weakness in its ability to influence the outcome
of the application. EIA is only carried out at the project level, reason being
the methodology for carrying out EIA at earlier stages of decision making is
not yet developed.
4.
Provided for in the Act. The activities to be subjected to an EIA are defined
in schedule 2 of the Act and has the following list of activities;
a)
an activity out of character with its surroundings
b)
any structure of a scale not in keeping with its surroundings
c)
major changes in land use
d)
other activities involving urban development, transport, water resources,
mining, forestry, agriculture, manufacturing, waste disposal, nature
conservation including the creation of national parks, nuclear reactors, major
developments in bio-technology including the introduction of genetically
modified organisms.
All activities in these areas require
an EIA. What is not clear is whether every single activity in that list
requires an EIA. The Act does not distinguish activities on a small scale and
activities on a large-scale.
It is therefore, not possible to
determine in advance the range of activities and the scope of activities that
must be subjected to an EIA. The way in which other countries have dealt with
this is by imposing some thresholds which is a quantitative limit. It is an
assignment of a certain limit which determines the point at which the need for
an EIA comes in e.g. a threshold could say a housing estate involving
construction of 20 houses and more will require an EIA. 19 houses and less do
not require EIA therefore people will be informed on what development requires
an EIA.
The requirement for an EIA is defined
in Part VI in EMCA. The application for an EIA licence is made to NEMA. At the
moment the applications are made to the headquarters of NEMA in Nairobi
regardless of where one is because NEMA has not established regional offices.
Application commences on the submission
of the project brief report. It is a brief description of the project with an
indication of the likely significant environmental impacts e.g. in a housing
estate, significant environmental impact is how they will deal with the waste.
NEMA will decide whether a full EIA
study is required. If it decides that a full EIA study is required, the
developer shall engage a team of consultants known as Environmental Impact
Assessors. These consultants are paid for by the developer, but the
developer is required to select them from a list of experts which is maintained
by NEMA.
These experts carry out the study and submit a report to NEMA. Once NEMA
receives the report, its required to advertise the application for the licence
in the gazette and in newspapers. NEMA is to provide on indication as to where
you can get the report if you wish to study it and the advert shall invite
comments.
Additionally, NEMA may set up a committee of experts known as a technical
advisory committee to advise it on the report. The reason is because NEMA
does not have all experts it needs in house e.g. it may need experts in nuclear
activity, which it may not have experts.
On the basis of the report, the recommendations of the T.A. (and any comments
received from the public, NEMA is required to give a decision either granting
the licence or refusing the application for the licence.)
The Act requires NEMA’s decision to be given within a period of 90 days (on
application). NEMA has interpreted this as 90 days from the time the EIA study
report is submitted to it. In granting the licence, NEMA may impose conditions
dealing with how the negative impacts that have been identified will be
mitigated. This is often contained in an environmental mitigation plan. A EMP
demonstrates how the developer intends to mitigate the impacts that the study
has presented and this becomes a condition for the licence.
The government is not exempt from the EIA. It should apply for an EIA licence
but in practice it is not the case.
Under section 62, authorities may require the project proponent to carry out a
further study if it is necessary to ensure the report is as accurate as
possible. Also, a fresh EIA report may be required where there is a substantial
change or modification in the project or in the manner it is being carried
where the project causes an environmental threat that could not be foreseen
initially of if it is established that information given by proponent was false
inaccurate or intended to mislead.
The authority may revoke, withdraw or
suspend licence if the project proponent does not comply with conditions. There
is a fee for the licence i.e. it is set at 0.1% of the project cost.
Additionally, section 28, provides:
The authority may require that persons
engaged in activities likely to have a significant adverse effect on the
environment shall deposit bonds with the authority which may be confiscated if
the person breaches conditions of the licence.
Section 25 establishes the National
Environment Restoration Fund (NERF) consisting of:
(a)
A proportion of fees or deposit bonds which have been paid to the authorities.
(b)
Other sums/funds levied on project proponents as a contribution towards the
restoration fund.
NERF is a supplementary insurance for the
mitigation of environmental degradation where the perpetuator has not been
identified or where there are exceptional circumstances that the authority is
required to intervene to mitigate environmental degradation e.g. where a
perpetrator is identified but is unable to pay or where no one single
perpetrator can be pinpointed as in pollution of Nairobi river. The authority can
resort to the NERF
Part 7: provision for environmental
monitoring and auditing. The practice of auditing is applied to environmental
degradation. Auditing is a verification of the activities of a company to
ensure it complies to the licence.
An environmental inspector may enter
any land/premises to determine how far the activities the activities carried
out on land/premises or land conform to the EIA report. Owner of the premises
should keep records and submit them to the authority on an annual basis
describing how far the operation of the project conforms with the EIA report.
Where there are matters that were not contemplated in the report, the project t
proponent shall take measures to mitigate those matters as well.
On June 13th, 2003, the
authority gazetted rules i.e. EIA and Audit Regulations. They state:
‘all projects commenced after 13th
June, 2003 shall require an EIA licence and all projects which were ongoing as
on 13th June, 2003 shall require an Environmental Audit. In June
2004, notice put up by authority to require all industries to submit an audit
by December 2004. Estimated that about 5000 operators submitted reports.
All applications and licences are
handled in Nairobi, shortcoming, backlog.
MANAGEMENT OF WATER RESOURCES
Dealt with in the Water Act 2002 this
replaced the Water Act cap 372 (repealed)
Kenya’s water law is founded in common
law provision i.e. under common law, the land owner is presumed to own
everything on the land i.e. from the sky to don the center of the earth. Except
that statute has qualified the rights of an owner on land e.g. under the Mining
Act, Aviation Act
The common law holds the principle that
running water, air and light are the things whose property rights belong to no
one person but belong to the use of all mankind. See: Higgins v Inge 131 ER
263
Landowners have no property in air,
water and light, he only has the “right of use which is incidental to the land
ownership. These come naturally with the land.
A landowner whose land adjoins (or
abats) a watercourse is known as a riparian owner. A riparian owner has a
natural right to running water. See: Stockpost Waterworks Corporation v
Potter 159 ER 545. This is the right to use the running water as of right.
(W/o requiring permission)
A non-riparian owner can only exercise
the right to running water if he has an agent with the riparian owner, allowing
him access over the riparian owner’s land without such an agreement, the NRO
would be committing a trespass were he to cross over the riparian owner’s land
to gain access, therefore the key thing regarding water is access. Such an
agreement is called an easement (right of way or right to cross over another’s
land)
Since the right to riparian water is
shared by all riparian owner’s, its use must be reasonable. No one owner will
use the water in a way that prejudices the use of other owners. See: Embry v
Owens i.e. use of water must be reasonable
Under common law each riparian owner
has a right of action against unreasonable and prejudicial use by other
riparian owners.
The scope of reasonable use consists of
three rights:
(a) Right
of access and navigation
(b) Right
to the Natural Quantity of water in the watercourse
(c)
Right to the Natural Quality of water in the watercourse
The above are called Riparian rights.
A tidal river is one which is
affected by the rise and fall of the sea i.e. it flows into the sea. River
water is fresh while sea water is salty, the portion affected by the sea at the
entry point consists of both and is called the tidal part.
Under common law the bed of the tidal
river and the bed of the sea up to the territorial (sea) waters is owned by the
sovereign. The bed of the rest of the watercourse which is non-tidal is owned
by land owners on both sides of the water up to the median (middle) line of the
river. However, the Agriculture Act states that the landowner may not cultivate
or graze cattle up to a distance of two meters from edge of the watercourse.
Where the breath of the watercourse
exceeds two meters, the landowner may not cultivate up to a distance of thirty
meters from the river. This portion is called the riparian reserve (sides of a
watercourse that should not be used for cultivation).
Within urban areas, the same
restrictions on the use of the riparian reserves are imposed by LA by-laws.
Note: the use of the bed of the watercourse is restricted.
The right to navigate tidal river
belongs to all members of the public because ownership of the bed belongs to
the state. But only a riparian owner has a right of access to use his land
which allows him to embark and disembark on his land. See: Lyon v
Fishmongers Co. (1876) 1 App. Case
The riparian owner’s right to quantity
enables him to abstract(take out), obstruct, divert or impound (dam) the water.
The water which is abstracted may be used for ordinary domestic purposes such
as drinking and other culinary purposes and for extraordinary/secondary
purposes e.g. irrigation. It may also be used for foreign purposes i.e. use of
water on non-riparian land.
When a riparian owner uses water for
ordinary purposes there is no restriction as to the quantity he abstracts, even
if he uses all of the water. See: Londonderry v Lough Smiley Railways Co.
1904 AC 301
Significance, upstream riparian owners
have a prior right to use of water.
In USA they have a principle of prior
appropriation i.e. the first person to get to the water can use it all.
Not the same as the Kenyan principle regarding the prior right of upstream
users.
Where the Riparian owner uses the water
for secondary purposes, the use is restricted in so far as it is subject to the
use of other Riparian owner’s. See: Swindon Waterworks v Wilks & Berks
Canal Navigation Co. 1875 7LR
The moment the use of water for
secondary purposes affects the rights of lower Riparian owner’s adversely, such
use becomes unreasonable.
Under common law, the use of water for
foreign purposes is considered to be automatically unreasonable. The right to
use is attached to the riparian land e.g. you cannot take it to others.
The Riparian owner’s right to quality
entitles him to the flow of water on his land in its natural state and purity,
undeteriorated by obnoxious matter discharged on it by others. See: Jones
Landwrist v District Council 1911 Ch.Div 393
NB: The common law does not restrict the
use of underground water
There’s no property in water but the
use of water is available to all.
The Water Act 2002 replaced the Water
Act Cap 372 (repealed) and came into effect in March 2003. Section 3 vests
every water resource in the State. Water resource means any lake, pond, swamp,
marsh, stream, waterfalls, estuary, acquifer (underground layer of water),
artesian basin (underground lake), or other body of flowing or standing water
whether below or above the ground.
The right to use water from any water
resource vests in the Minister and under section 6, no conveyance, lease or
other instrument shall be effectual to convey, device, transfer, or vest in any
person any property, right or interest or privilege in respect of any water
resource except as provided for under this Act.
Note: Under common law, the
right to use water is incidental to ownership of land (section 6 seems to
contradict this common law notion)
Under section 25, the permit is
required for the use of water from any water resource, for the drainage of any
swamp or any land, for the discharge of a pollutant (something causing
pollution) into a water resource.
Use in relation to water resources
means the obstruction, abstraction or diversion of the water, alternatively the
discharge of materials or substances into the water. All this requires a
permit. The circumstances where a permit is not required are:
1)
For the abstraction or use of water without the employment of works from or in
any water resource
2)
For domestic purposes;
3)
By any person having lawful access to the water
What is ‘works’? Act says it is any
structure, apparatus, device or thing for carrying, conducting, providing or
utilizing water but does not include hand utensils. Hand utensils are pots,
buckets etc as opposed to e.g. a pump.
With respect to underground water, the
law says that where none of the works necessary for the development of the
underground water are situated within 100 meters of any body of surface water
or within a ground water conservation area, then a permit is not necessary i.e.
works not used, outside 100 meters, outside GCA(Groundwater conservation area)
– no permit.
GCA is defined in section 44 of the Act
as an area where special measures are necessary for the conservation of ground
water. GCA is declared to be GCA by the Water Resources Management Authority
(WRMA).
A permit is not required for storage of
water in, or the obstruction of water from a dam which is constructed in any channel
or depression which does not constitute a water course. Water course means any
natural channel/depression in which water flows regularly or intermittently
(every now and then), i.e. if you have a natural channel in which water flows,
even if you find it dry, it still is a water course. If you dry your own drain
at home to encourage water to flow, you require no permit. You shouldn’t
connect it to the natural channel. In every other case, a permit is required
for the use of water.
To use water without a permit is an
offence punishable with imprisonment of upto 12 months and a fine of Kshs
100,000. An application for permit is made to the authority known as WRMA
established under section 7 of the Act. The Act is required to advertise the
application to allow people opposed to the grant of the application the
opportunity to object.
In considering the application, the Act
shall consider the following:
1)
The existing lawful uses of the water
2)
Efficient and beneficial use of water in the public interest
3)
The likely effect of the proposed water use on the water resource and the other
water users
4)
The class and resource quality objective of the water resource
5)
The strategic importance of the proposed water use
6)
The quality of water in the water resource
7)
The probable duration of the activity for which the water use is to be
authorized
Under section 12, the Act is required
to classify water resources: e.g. International water bodies like Lake
Victoria; of strategic importance like Tana River for H.E.P. After that, it is
also required to assign each class resource quality objective i.e. the level to
be achieved and maintained with respect to each water resources. The minister
is required to specify for each water resource, a reserve.
The reserve means the quantity and
quality of water required to satisfy basic human needs of all people who are or
who may be supplied from the water resource, and to protect aquatic eco-systems
(habited) i.e. the life forms which live in water. (This reserve is the minimum
standard)
In considering applications for
permits, the use of water for domestic purposes shall take precedence over the
use for any other purposes.
In the event of a drought, the
authority may vary the permit in order to give priority to domestic use.
Permits run with the land and the particular portion of the land to which the
permit is appurtenant (fixed or refers to) must be specified. Hence in reality
it is not possible to have permit in gross.
There are arguments that a permit
should not be attached to land as this is unfair for landless people. For a
person with land but no access to water he can only acquire a permit but must
obtain an easement. The permit should be used on the land you applied under.
Permits may be varied because there’s a shortage of water for domestic
purposes, deterioration of quality of water or inequity in use.
However, it cannot be varied without
notice to permit holder who should be given an opportunity to show cause why it
should not be varied. A permit may be cancelled but the holder must be given an
opportunity to show cause why it should not be cancelled.
The Act is required to establish a
register of permits which is a public document and any person may examine it.
Section 7 establishes the WRMA whose
role is to receive and determine applications for permits and to monitor and
enforce the conditions for the permit. The Act is required to divide the
country into catchment areas/basin. A catchment area is where water collects
i.e. from which rain water flows into a water course. The Act ahs created
certain catchment areas:
-
Lake Victoria North
-
Lake Victoria South
-
Rift Valley
-
Athi River Catchment Area
-
Tan River Catchment Area
-
Ewaso Nyiro Catchment Area
-
Coast Catchment Area
In each catchment area, the authority
is required to establish a regional office.
The Act is required to establish a
catchment area management strategy which will describe the water allocation
plans for that catchment and the arrangement for development and conservation
of water for that catchment.
At national level, the minister is
required to establish the natural water resource management strategy. The CA
management strategy is also required to establish ways of enabling communities
participate in managing water resources within the CA. In particular the
strategy shall encourage the establishment of water resource users associations.
These are fora for the cooperative management of water resources and conflict
resolution. These associations involve the community.
Water
Services
For urban areas, tap water is relied
on. Piped water is dealt with under water services or water supply. Water
surfaces relate to water which is provided for purposes of consumption. Water
Act 2002 is titled Water Supply and Sewerage.
Essentially, water services is provided
by persons appointed by the minister. Under s.49 of the Act, the
minister is required to develop a National Water Services Strategy. The
Strategy shall
(d)
institute arrangements to ensure at all times there is in every area of Kenya a
person capable of providing water supply.
(e)
design a program to bring about the progressive extension of sewerage to every
centre of population in Kenya
Sewerage system is a piped network for
the disposal of used water. Essentially, from a house or premises, the water
drains down the plumbing into the system of pipes called the sewerage. The used
water is the sewer. It goes into a treatment plant and through the
action of bacteria, the sewer is broken down until only water is left. This is
directed back to the river and reused. There are two systems:
- the water treatment palnt where the water is tapped from the river (through the use of chlorine) and;
- the sewerage treatment plant for the treatment of sewer and direction of water back to the river
We have Dandora Works and a Treatment
Plant in Gigiri.
Under s.51, the Minister is
required to establish a Water Services Board responsible for the
efficient provision of water services.
Six boards have been established in the
country. The boards are established along the catchment areas e.g. Rift Valley
WSB, Lake Victoria North WSB etc. The Boards are agencies for providing water
services.
This is a marked departure from the
situation prior to 2002 as there was no body in law responsible for providing
water services.
Water services means the supply of
water and the provision of sewerage. The purpose of the board is to then supply
the water and handle sewerage. Under s.55 of the Act, the board is
required to identify a person known as a water services provider to
provide water services as the Board’s agent.
The water services provider is a
company, NGO or a person which provides water services in an agreement with the
board.
The board itself is not allowed to
provide water services directly to consumers unless it is impossible to identify
water service providers in that area.
W.S. Regulatory Board > W.S. Board
> W.S. Provider > Consumer
The design: There is the legal
responsibility that there must be someone in every area responsible for
providing water services. In law, you cannot impose a responsibility like that
on bodies not public bodies and hence the reason why W.S.B. is not allowed to
carry out the services of W.S. directly to consumers.
At the same time, the Act recognized
that if you give jobs to public bodies the work would be shoddy and hence
ineffective.
Under s.53 the board is
prohibited from delivering water services directly, the board must engage the
water services provider to provide the water on its behalf.
Under s.56, no person shall
provide water services to more than 20 households or supply more than 25,000
liters a day for domestic purposes without a licence. The licence is applied
for to the Water Services Regulating Board (WSRB) established under s.46
of the Act. Its object is to licence suppliers of water and to regulate
service.
In order to obtain a licence to supply
water services, the applicant must show technical and financial capability to
supply water services. The water services provider is allowed to charge for the
water services provided and in charging for the services, the provider may
include a levy. Sewerage service levy is supposed to cover a reasonable part of
the cost of disposing the water supplied.
Default
by the Board
Supposing the board defaults by for
instance, failing to identify a provider, or one who has no capacity,
squandering of money.
The Act gives the minister reserve
powers to provide water services in case of default by the board. The
minister does not have the technical capacity to provide water services. Under s.22,
provision is made for a parastatals known as national water conservation and
pipeline cooperation(NWCPC).
- They provide water services in case of default by the water services board
- They are responsible for state schemes – schemes which are funded by the state for provision of bulk water supply or alternatively for water conservation purposes. Bulk water supply is basically the big dams whose water is gathered in bulk for supply e.g. Ndakaini dam. The corporation gathers the water in dams and supplies it. The corporation is also involved in conservancy e.g. from floods.
The
Management of Effluent
It is the waste that is discharged from
premises. Some effluent is sewage (domestic) but there is also industrial
effluent/trade effuent. S.76 states no person shall discharge any trade
effluent from any trade premises into the sewers of a licencee without the
consent of the licencee (but if the effluent is domestic, no licence is
required).
An application for the consent shall
state the nature and the composition of the trade effluent (H2SO4,
Paper etc)
The maximum quantity of the effluent
proposed to be discharged on any one day. The highest rate at which it is
proposed to discharge the effluent. The licencee may give his consent subject
to conditions including a condition that there will be a charge for the
discharge of the effluent. If the licencee declines to give consent there is an
appeal to the Water Appeal Board.
Sanitation
It is cleanliness. An aspect of
sanitation is the sewerage system – it is the system for disposal of used
water. The sewerage system depends on a piped network. This raises two
questions:
- How do you dispose of non-liquid items through pipes?
- What happens where there are no sewerage systems?
The country with the highest network of
piped sewerages is UK with a rate of about 99% of the population. In Kenya,
even in Nairobi, the majority of the population does not have a piped system.
Liquid waste is managed by:
i)
The sewerage system
ii)
Septic tanks
iii)
Conservancies
iv)
Latrines
The key issue with regard to latrines
is that it is a system which can adequately manage liquid waste in an area with
low density. The volume can easily be disposed off by bacteria. When you are in
high density area and you use the same it becomes dangerous because they are
not disposed off as quickly.
The conservancy is a modified form of a
latrine – it is constructed so that there is no contact between the ground and
the liquid waste. Periodically, exhausters (tankers) come and suck up the
waste. They can be useful in high density areas.
The septic tank is also a hole in the
ground designed to allow the liquid degradation and therefore it depends on
having sufficient ground areas for the liquid waste to degrade (needs big
areas)
These are systems of sanitation for
solid waste.
Sanitation is regulated under the Public
Health Act (Cap 242), Local Government Act (Cap 265)
The Public Health Act makes it the duty
of all the local authorities to provide a system of sanitation within its area
and to require owners of premises to provide sanitary services within those
premises
The local authority is supposed to
regulate that for owners of premises through public health officers – officers
of the ministry of health who are based within the local authority offices.
In rural areas public health officers
are based at the districts. His job is to regulate the sanitary arrangements of
sanitary services within the area e.g. inspect latrines, septic tanks etc
The local authority itself is also a
provider of sanitary services for public use e.g. it is their job to provide
public toilets.
The Local Government Act Cap 245 makes
provisions for the kind of facilities that must be provided. Under it, some
by-laws known as the building code have been adopted by the Act. It
provides:
i)
Within urban areas, latrines are prohibited except during the course of the
construction of a building which are temporary and for the duration of
construction.
If one intends to use conservancies,
there must be within that area, provision for exhauster service. The council is
required to run an exhauster service for which it charges. It is also required
to licence the exhauster appropriately.
If you intend to rely on the septic
tank, the tank must be constructed by registered plumbers. The land area must
not be less than half an acre and the septic tank must not be built within
black cotton soil. The council must approve the soil within which the septic
tank is in.
If one is planning to dispose of the
waste using a sewerage system, the dimensions of the pipe are prescribed in the
building code and the plumbing works must be undertaken by a registered
plumber.
The council regulations provide
specifications for disposal of liquid waste which are related to the number of
the occupants of the house. Additionally, there must be drains provided for
draining liquids from other wet areas like kitchen and shower and roof. That
drainage system must be channeled away from these sanitary services.
THE
MANAGEMENT OF SOLID WASTE
Waste is an item that does not have
utility value to the holder of the item. This is because it may be residue,
used material, or has simply lost its utility.
An item may not have value to one
person but it may have value to another person. For example, mitumba clothes
have no value to one person but value to someone else.
Because waste has no value to the
holder, he has the temptation to dispose of it at least cost to himself. A
holder of an item typically will dispose of it onto the environment which
presents the available that does not saddle the burden with any
costs.
In economics, the term used is externalities.
It means you externalize a problem, u make your problem somebody else’s
problem.
Its necessary therefore to put in place
mechanisms for ensuring proper waste disposal methods are adopted. Those
mechanisms force the holder to internalize the problem.
There are certain categories of solid
waste that have features that make them dangerous.
Solid waste management is carried out
at three stages:
i)
Generation
ii)
Transport and
iii)
Disposal
This is the waste management cycle.
At generation, the waste
management techniques are reduction, reuse and recycle. This is the stage at
which waste is created. The principle of waste management is to reduce the
quantity and quantity that is created.
To force people to create less waste,
techniques have been developed and the most famous reduction technique is
called the take-back requirement for packaging.
(a) Take-back requirement
It is the requirement that the producer
of packaging is required to take back the packaging after it has been used. The
take-back requirement had one dramatic effect i.e. producers of packaging
stopped producing packaging (how do you take back the packaging)
In Europe, they began a system of levying
and so they stopped packaging.
(b) Re-use
This refers to the use of the same
material once again and this means that it is not placed into the waste
management cycle. The best example is a bottle used for beverage and this is
encouraged by the ‘deposit and return policy’.
(c) Recycle
It refers to using item in a different
form. The best example is wood which can be used as timber, then writing paper
and then toilet paper and so on.
All these methods reduce waste placed
in the waste management cycle.
In the Transport category, the solid
waste is separated into its component parts. Separation is the first
phase therefore.
The second phase is tracing i.e.
waste should be traced from origin to destination. There should be a record of
who has taken waste and who has received it so as to prevent fly-tipping
– the practice whereby waste transporters dump the waste at some location by
the roadside or in a bush.
In the Disposal phase, waste is then
removed from the cycle by being permanently deposited at some site. There are
two methods of waste disposal:-
a)
Land filling
b)
Incineration
Landfilling is the practice of
depositing waste in a hole in the ground. Incineration is the practice of
burning waste at high temperatures. Land-filling is the most common way of
disposing waste usually because it is cheap. Landfilling results in two
by-products:
-
Leachate
-
Methane gas
Leachate is a liquid effluent that
comes out of decomposing waste. It is highly polluting to ground water. In
order to deal with the risk of leachate polluting ground water, the bottom of
the landfill should first be covered by a layer of polythene. It will then be
pumped out occasionally and treated.
Methane is gas generated by the waste
because it is decomposing at low temperatures. If it was at high temperatures
it would be carbon dioxide. Methane is highly polluting to the atmosphere and
is easily combustible. It should be vented out through a pipe.
The other problem with landfill is
smell and unsightliness. To deal with them, then the waste should be covered by
a layer of soil, everyday after disposal. If this is not done then one ends up
with a very messy dumpsite.
Incineration is an expensive method
because it involves burning waste at high temperatures and is a requirement
only in certain dangerous categories. For example, clinical waste – This is
waste that has been generated from hospital.
In Kenya, waste management is provided
for in a number of statutes, most important is the Public Health Act (CAP
242), The Local Government Act (CAP 265) and a few other acts.
S 16 of PHA imposes a duty on every
Local authority to take all local necessary and reasonably practical measures
for maintaining its area at all times in a clean and sanitary condition and for
preventing the occurrence therein of any nuisance or of any condition liable to
be injurious or dangerous to health.
S 118 of PHA defines nuisances
including ‘any street, road, garbage receptacle, dustbin, refuse pit or manure
heap which is so far off or in such a state as in the opinion of the medical
officer of health to be offensive or injurious or dangerous to health. Any
accumulation of stones, timber or other material which is likely to harbour
rats or other vermin or any area of land which is kept or permitted to
remain in such a state as to be offensive or liable to cause any
infectious, communicable or preventable disease or injury or danger to
health.
The Act provides a procedure for
abetting nuisance which is found in part IX fo the Act.
Nuisance
Abetment Steps
- The Local authority shall serve a notice on the author of the nuisance to remove it.
- If the author of the nuisance cannot be found it shall be served on the occupier or the owner of the premises
- It shall specify the things to be done and the period within which they must be done.
- If the person responsible fails to comply with the notice the Medical Officer of Health (MOH) shall make a complaint before a magistrate and the magistrate shall issue a summons and the summons shall require a person to appear before a court. If the court is satisfied that a nuisance exists, it shall require the author to remove it.
- The court may also impose a fine for everyday on which the nuisance continues.
- If the person still does not comply, then the local authority may itself go in and remove the nuisance and recover its costs from the person involved. This may require demolition of the building.
There are two aspects of this
procedure:
-The role of the local authority to
deal with nuisance caused by others
-At the same time, the act imposes a
duty on the local authority to keep its area clean.
In order to comply with the statutory
duty in S 116 of PHA, S 160 of the LGA gives the Local authority power to
establish and maintain sanitary services for the removal and destruction of
otherwise dealing with all kinds of refuse and to compel the use of services by
persons to whom the service is available.
Under S 201, Local authorities have
been given power to make by-laws and have then made by-laws. For example, NCC
has made the following by-laws:
i)
Local government adoptive by-laws building order of 1968 – The Building Code
which gives the local authority power to establish standards including that you
must have requirement that one must have provision for garbage collecting
services e.g. a chute for a storeyed building.
ii)
The City of Nairobi General Nuisance By-laws legal Notice No.275 of 1961. This
prohibits the depositing of debris on the streets and it makes it an offence
for any person to place or deposit any leaves, paper, sawdust or other rubbish
so as to create litter or to throw down or leave any orange peel, banana skin
or other substance likely to cause a person to fall down.
iii)
The City of Nairobi Conservancy By-Laws Legal Notice No.659 of 1961. This
empowers the local authority to provide to occupiers of premises what are
called receptacles(dustbins) and requires that all refuse from that premise be
placed in that receptacle for collection by the councils refuse collection
service. The by-laws impose a charge for the hire of the receptacle and for the
service of emptying the receptacle
v)
The City of Nairobi Restaurants, Eating Houses and Snackbar By-laws Legal
Notice No 674 of 1961
vi)
The City of Nairobi Slaughterhouses By-Laws Legal Notice No. 325 of 1966
vii)
The City of Nairobi Hairdressers and Barbers By-Laws Legal Notice No 146 of
1970
viii)
The City of Nairobi Foodshops and Stores Legal Notice No. 384 of 1956
All these by-laws empower the council
to issue a licence for the activity that is mentioned. In considering whether
to give the licence, the council has to take into account whether the premises
to which the licence applies have made provision for sanitation. Do they have a
restroom, toilet etc., and the licence may be cancelled if the premises are in
such a condition as to be dangerous to health or liable to favour the spread of
disease.
The
Scrap Metal Act Cap 503
The Act prohibits dealing in scrap
metal without a dealer’s licence and issuing authority for the dealers licence
is the police. This is because the bulk of scrap metal is from used cars. The
statute requires that the dealer get a licence.
It prohibits a dealer from dealing in
or storing any scrap metal elsewhere than at the premises specified in the
licence.
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