ENVIRONMENTAL LAW NOTES

The focus is on national environmental law, not enough time to cover international but just a background to international environmental law.  it is an introduction course for national environmental law.

The Concept of the Environment

Theory that forms the management of environmental law

Physical Planning and Development Law

Water

Air

Hazardous Chemicals and substances

The Theory of Environmental Management

What is environment?

Albert Einstein defined the environment as everything except me” this is the most comprehensive definition because it is all encompassing.  This definition means in the end that the environment is perceived from the point of view of the person who is interacting with the environment, it is from the point of view of the actor which means that with respect to your neighbour, you are part of the environment and so is your neighbour.

In Kelsenian philosophy then the environment represents the other.

There is not a complete dichotomy between me and the environment since when my neighbour is speaking I am part of the environment.

For purposes of the subject of environmental and natural resources law the component of the environment law that is dealt with is the component of the natural environment which represents that aspect of the environment which has arisen without the intervention of human beings.  The natural environment is influenced by human beings but it is not the direct result of human activity and in that sense one can talk of the ecosystem and biological diversity etc.   all these are aspect of the natural environment.  Human beings influence the natural environment to the extent that it becomes difficult to appreciate it independent of the human influence.  In that sense the natural environment is not represented by organisms which have arisen outside of human influence.  It is common to imagine that God created the world but in fact much of this has come about through interaction between humans and nature and this is what we describe and natural environment.

The natural environment is in a constant state of motion, it is dynamic.  Human beings are part of that dynamism of nature.  Nature has a tendency towards achieving a balance and this is an inherent tendency which means left alone nature would achieve a balance.

Secondly nature has an inherent capacity to absorb change.  Part of that change arises from the impact of human activity on nature, essentially because humans are part of nature, then humans are part of the dynamism of nature, human will also influence this motion.  Human activity with respect to nature is legitimate, it is perfectly natural, environmental management is not based on the theory of zero impact on nature because nature can absorb impact from humans and other aspect.  The reality is that human impact on nature has a tendency now to destabilise the natural balance and that destabilization of the natural balance is what we refer to as environmental degradation or pollution.

Human impact on nature tends to destabilise nature because of advance in technology which has meant that the capacity of humans to impact on nature has changed in scope and character.  A good example is that humans are not content just to have basic things, they want more and have the capacity to build bigger for example houses and so on.  Humans are even attempting to create new forms of nature through technology like bio-technology

Secondly human beings are adventurous, they have limited knowledge about natural processes and therefore often humans cannot predict the impact of their activities on nature but because of the constant experiments that humans carryon in respect to nature, quite often there are impacts which are not observed until the damage has occurred.   The case of the Nile Perch is introduced in Lake Victoria without realising it will eliminate all other fishes.  Limitations of human knowledge are important aspect.

Human acquisitiveness which is that humans on the whole are not content to live from day to day, they want to stock for the future so they acquire, most animals have a meal a day and assume that the next meal will be available when they wake up but not so humans, humans stock and the result is that they do not allow nature to recover its balance because of this tendency of planning ahead. 

Because of the tendency by humans to destabilize natural balance, it becomes necessary to put into place measures for regulating human conduct which impact on the environment.  Left to themselves, the human instinct is very much towards self-aggrandizement, it is this behaviour which tends to mean that the logic that human behaviour will destabilize the environment might be appreciated academically but in reality nobody thinks about it.  In economic terms it is referred to as the tragedy of the commons (the phrase is inherited from British economist called Harding who wrote about commons which refers to a common area,  Harding described his observation with regards to a traditional community who rely on the commons for grazing, the cows are owned individually but the grazing area is held in common and the result is that everyone has the urge to maximise the use of the commons like adding the numbers of cows grazing at the commons or sending them earlier before others, the result is that the commons is degraded but no one restrains themselves because everyone thinks the neighbour will get the better of them) this is why left to themselves, humans will degrade the environment because the environment is common to everybody and the benefit to be had from exploiting the environment is individual and so each person has the temptation to appropriate more and more components of the environment.  It becomes necessary to introduce standards to regulate human behaviour.

ENVIRONMENTAL LAW DEFINED

Environmental Law is thus defined as norms which regulate human conduct in order to ensure that the impact of human conduct does not destabilize natural balance.  This law is more about human behaviour.

In determining environmental degradation there is a tendency to think in subjective terms which essentially means that we define environmental law qualitatively or subjective e.g. this air is polluted.  Qualitative perceptions are problematic in the context of enforcement.  The Penal Code has a provision that makes it an offence for vehicles to emit dark smoke, it is a misdemeanour, dark smoke is clearly an environmental pollutant and the problem is how to prove that dark smoke was emitted.  So the way in which we utilise concept of environmental degradation is by introducing objective standards.

A standard is an objective indicator of environmental degradation or pollution and standards are expressed numerically in terms of numbers.  For instance one will say that 10mg/litre of chlorine, one may say that anything above 10 is pollution and below is not.  In dealing with environmental offences one needs a numerical representation.

HISTORY OF MODERN ENVIRONMENTAL LAW

Modern environmental law dates back to industrialization that occurred in the West this is in the last century.  Internationally, environmental issues were taken up by the United Nations after the 2^nd World War.  In the 1960s the General Assembly of the UN thought to organize a conference focusing on the issue of industrial pollution and urban settlement.  The two issues of industrial pollution and urban settlement were the environmental issues affecting western industrialised countries at the time.  The UN General Assembly as an organ brings together both industrialized and non-industrialized countries.  In the 60s non-industrialized were represented by countries that had just emerged from colonialism and whose predominant preoccupation was with economic development which they understood at the time as arising from industrial growth.  The thinking of non-industrialised countries was influenced by the experienced of industrial countries who had achieved economic development through industrialisation.  They therefore assumed that the way to develop was to industrialise.  They interpreted efforts by industrialised countries to regulate industry as being an attempt by industrialised countries to limit the prospects for economic development by the non-industrialised countries.

Therefore there was an ideological divide in the UN about the necessity and utility of a conference on industrial pollution and urban settlement.  The West wanted it because they were experiencing the negative of industrial pollution and unplanned urban settlement, the Southern Countries saw this as a Neo-imperialist plot to keep them poor and so there was an ideological divide.   The Stockholm Conference on Environment and Human Settlement was held in Stockholm in 1972 against the background of the ideological divisions. 

This conference came up with the Stockholm declaration one of whose principles was that development is the sovereign right of each state and that environmental management is a matter of national jurisdiction.  The focus was at this time to see these as issues of national jurisdiction and not of international concern.  Nevertheless, the Stockholm conference agreed to establish an environmental program within the United Nations in order to gather scientific data and information on the problem of the environment and to put forward proposals on dealing with the environmental problems identified.  That programme initially was located in New York but from 1974 it was located in Nairobi by a General Assembly decision. (UNEP) and has become the main UN institution in the field of environment.

The conference also agreed to establish a centre for Human Settlement also located in Nairobi and now known as HABITAT so that both UNEP and HABITAT became Institutions of UN focussing on issues of environment and urban settlement.

Subsequently to Stockholm in 1993 the UN established a commission to examine the relationship between environment and development in an effort to bridge the ideological divide.  The UN Commission on Environment and development was chaired by the Norwegian Prime Minister known as Gro Harlem Brundtland, the Commission produced its report in 1987 known as Our Common Future: The Report of the UN Commission on Environment and Development – 1987.  Our Common Future has one enduring phrase, it attempted to define the relationship between environment and development and said that “Environmental protection requires that economic development must be sustainable.”  It popularised the term “Sustainable Development” it defined sustainable development as development which meets the needs of the present generation without compromising the ability of the future generations to meet their own needs.

The concept of sustainable development was acceptable to both sides of the ideological divide.  For those interested in environmental protection, it recognised the need to regulate economic development and for those interested in economic development it accepted that economic development was a worthwhile and legitimate pursuit.  The link is that economic development must be sustainable and it is sustainable if it allows the present generation to meet their needs but does not compromise the ability of future generations to also meet their needs.

The Commission used the analogy of capital and interest to explain the concept of sustainable development.  Capital represents the stock of natural resources and interest represents the annual growth in the stock of natural resources.  Thought of in environmental terms the commission was saying that assuming we have inherited a stock of natural resources like a forest, if we cut one tree then we plant two.  This is to sustain the resource.  This theory proved attractive to both sides of the divide.

In 1992 the UN General Assembly held a 20^th anniversary to the Stockholm conference held in June 1992 in Rio De Janeiro, The Rio Conference – UN Conference on Environment and Development,  this was the first of the series of UN conferences established the nature of Modern international environmental law,  this was because it was attended by the heads of states and governments of all countries of the world who were member states of the UN and the only head of state who did not attend was George Bush since the US had a disagreement with the other countries over the issue of climate change.   The nature and level of attendance is significant because the resolutions that were adopted are believed among international lawyers to have created soft law.  The resolutions created soft law i.e. law that is not outlined in the UN Charter as sources of international law.  soft law is influential although not necessarily binding and their influence comes from the fact that all countries from heads of states and their officials have endorsed them. 

The concept of sustainable development was endorsed as the theoretical underpinning of Modern environmental law at the Rio Conference.  This has begun to make its way into sources of hard law through reference in treaties and decisions at the ICJ. 

The document that endorsed the concept of sustainable development is the Rio Declaration on environment and development.  It is not feasible today to say one is an environmental lawyer without the thorough grasp of the concept of sustainable development. 

The Rio Conference also adopted a document known as Agenda 21.  Agenda 21 is a statement of principles on how to achieve sustainable development in the 21^st Century.

The Rio Conference also established a UN institution known as the UN Commission on Sustainable Development which is the organ of the UN supposed to monitor progress by the international community towards achieving sustainable development.  It meets at intervals of 5 years to review progress and to set targets.  Its headquarters is in New York.  There is the theory that has emerged that Environmental management is just one pillar of sustainable development, and that there is social equity and economic development in order to really develop sustainability.

There are a few people who think that the concept of sustainable development as defined by the Brundtland Commission is both inappropriate and inadequate.  There are two reasons for this

1.                  The argument that the concept of sustainable development is anthropocentric in nature as opposed to being bio-centric.

2.                  The argument that the concept of sustainable development focuses on the relationship between present generations and future generations and requires that the future relationship be equitable.  In that sense it is a concept based on inter-generational equity.  It ignores intra-generational equity and is silent and because it is silent on intra-generational equity, the West likes it.

What the concept has done is to direct focus away from the inequities that have taken place.  For example if one takes energy, almost 36% of today’s energy sources are being used by the United States, between Europe and USA they use 80%, and Africa about 1%.  This critic is focussing on the need to equitably distribute resources.

Anthropocentricity is the theory that human beings are at the centre of the world and that this theory of sustainable development is centred on human interest.  The Rio declaration Principle 1 says that human beings are at the centre of concerns about sustainable development.  Anthropocentricity focuses on human self interests while bio-centricity focuses on biological organisms.  The criticism is that it has not focused on bio-centricity and therefore legitimises human exploitation of natural resources at the expense of other components of the eco systems.  It also legitimises human tendency to see the world in terms of human self-interest.

Anthropocentricity should not become the focus   you will not end up with the balance but the preponderance of what humans want to create.

Bio-centricity argues that there is no ranking and humans and mosquitoes are equal and that the interest in managing the environment should focus in keeping that balance.  Everyone has its place and everyone’s place is the equal of the other.  The criticism is that it is anthropocentric in focus and therefore legitimates a re-ordering of nature away from natural balance. 

Enforcement of environmental law

Enforcement may be defined as the process of bringing about compliance with legal requirements. And that process can be based either on action by private parties or it can be based on action by state agencies. Where it is based on action by private parties then the action is a civil law action and where based on action by state agencies it is a criminal law action.

Private parties may take court action against either private individuals or against public entities. Ordinarily the private litigant may only take court action in order to redress private injury. Where a private individual wishes to bring court action to redress an injury to the public then under the common law that private individual is required to obtain the permission of the Attorney-General to use the Attorney-General’s name in the action and such an action is known as a related action.

Given this philosophy it is not possible under the common law for private individuals to bring action in their own name to redress damage to the environment, the reason being that damage to the environment is the wrong to the public and therefore only the Attorney-General would be entitled under the common law to bring suit to redress it.

This traditional position has been popularized in the case of Gouriet v Union of Post Office Workers (1964) All Er which is an English authority. This was during the time of apartheid in South Africa. The Union of Post Office Workers in England decided that as a sign of solidarity with the black African working in an apartheid regime in South Africa they would refuse to handle mail that was intended for delivery to South Africa or was received from South Africa. Gouriet, a public spirited individual decided to bring an action against the Union of Post Officer Workers arguing that to refuse to handle mail in the way in which the union proposed to do amounted to criminal offence under UK law. And Gouriet sought orders from the court preventing the union from committing a criminal offence. The court declined to give the orders sought and the reasons are articulated in the judgment of Lord Atkins. He said, “The jurisdiction of a civil court to grant remedies in private law is confined to the grant of remedies to litigants whose rights in private law have been infringed or are threatened with infringement. To extend that jurisdiction to the grant of remedies for a lawful conduct which does not infringe any rights of the plaintiff in private law is to move from the field of private law into that of public law where different principles apply.”

That same principle of Gouriet was upheld in the Wangari Maathai v Kenya Times Media Trust, civil case no. 5403 of 1999. Kenya Times Media Trust wished to construct an office block in Uhuru Park which they said was going to be about 60 stories. Wangari Maathai – then leader of the Green Belt Movement --sought an injunction to stop the construction of the office block on the basis that Uhuru Park was a public recreation facility.  The AG took a preliminary objection to the application on the basis that that Wangari Maathai had no locus standi. 

Dugdale J. observed that, it is not alleged that the plaintiff has any right either public or private which has been breached by the defendant. It has not been alleged that it has caused her any damage and nor does she anticipate any damage. It is well established that only the AG can sue on behalf of the public. The court finds the plaintiff has no locus standi and therefore no right against the company.

Locus standi is inherited from British law. Under common law a private individual is able to bring action in that private individual’s name on the basis of an interference with the public right in two situations.

1. where the interference with the public right also interferes with some private right of the person concerned

2. where in the absence of any interference with the private right the person concerned has suffered damage peculiar to himself or herself which is additional to that suffered by the rest of the public.

That common law position has been redressed in most countries by the introduction of statutes which grant members of the public locus standi with regard to the damage to environment Section 3 of the EPA gives every person right to a clean and healthy environment and subsection 3 if a person alleges that his entitlement to a the clean and healthy environment has been or is likely to be contravened that person can apply to the High Court for redress. A person who is proceeding under this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury. So under section 3 it is possible for individuals or bodies to bring action with respect to environmental damage without having to show that they have suffered personal loss.

Nixon Sifuna v Nema. He claimed a number of things including the goings on in Mau Forest and that the Director was not qualified and other complaints and the court could not strike out these complaints because he had not suffered any personal damage. It was dismissed but not on the basis of locus standi.

The basis of a claim under civil law is known as a cause of action. The cause of action arises if there is cause of injury to a person or property. If the injury is caused by a public body exercising public powers or performing a public duty then it is public law cause of action.

Where the injury is caused by a private person or caused by a public body in the cause of a private action then the cause of action is private law cause of action.

One is tort, the other is judicial review.

The causes of action in public law are ultra vires, natural justice, and error of law. The remedies are certiorari, prohibition, mandamus and declaration.

The causes of action in private law are trespass, nuisance, strict liability, negligence and the Rule in Rylands v Fletcher and the remedies of injunction. Action in public law is supposed to be legal in public bodies the process is known as judicial review

Where action is taken in judicial review the objective is to quash an unlawful decision known as Certiorari or to stop an unlawful action known as Prohibition or to require the performance of a public duty known as Mandamus. At times all an applicant wants is a declaration of the legal position and that is known as a Declaration.

Judicial review is available where the public body has committed the following acts or omissions:

1.         where the public body has acted beyond its powers, it has acted ultra vires; or

2.         where the public body has infringed the principles of natural justice; or

3.         where the public body has acted in error of the law

Statute has also provided for judicial review to persons who are aggrieved by the decisions of the public body. The aggrieved applies to the court to review the decision with which the person is dissatisfied. In the case of The Attorney General of Gambia v Njie Lord Denning said the words person aggrieved are of wide import and should not be subjected to a narrow interpretation. They do not of course include of course a mere busybody who is interfering with things that do not concern him but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interest.

Judicial Review

Judicial review has been incorporated in Order 53 of the Civil Procedure Act. Order 53 requires the applicant to seek the leave of the court to bring an action. In granting leave the court has to consider whether the applicant has sufficient interest in the matter and most applications collapse because of that.

Trespass

In private law the causes of action trespass arise where a person causes physical matter to come into contact with another’s land. Trespass protects a person’s right to enjoy his land without unjustified interference. It is limited to direct rather than indirect interferences.

Nuisance

Nuisance consists of private and public nuisance. Public nuisance is an interference with the public’s reasonable comfort and convenience. It is an interference with the public’s rights and constitutes both a criminal offence and private cause of action. In the case of AG v PYA Quarries Ltd, Lord Denning said:  “It is described public nuisance which is so widespread in its range and so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it but that it should be taken on the responsibility of the community at large.” The case before Lord Denning concerned quarrying next to a public road and the quarrying raised dust which was interfering with the visibility of motorists on the road.

A private nuisance is an interference with a person’s enjoyment of his land. Not all interferences amount to nuisance. Nuisances are those interferences that are unreasonable causing material and substantial injury to property or unreasonable discomfort to those living on the property. The liability of the defendant arises from using land in such a manner as to injure neighbouring property. Therefore nuisance imposes a duty of reasonable use on neighbouring occupiers.

The reasonableness of the use is determined by

1.         the locality of the activity

2.         utility of the activity.

Locality of the activity is illustrated in the case of Studges v Bridgeman. A confectioner had for more than 20 years used a pestle and mortar in his back premises. The back premises abutted on the garden of the physician. The noise and vibration were not felt as a nuisance and were not complained of; but in 1873 the physician built a consulting room at the end of his garden and then the noise and the vibration became a nuisance to him. He brought an action for an injunction and succeeded and the court held that whether anything is a nuisance or not is a question to be determined not merely by an abstract consideration of the thing itself but by reference to its circumstances.

The law of nuisance is what has led to law of planning, to separate incompatible uses.

The utility is the second consideration: with regard to utility the best illustration is Christie v Davey, two neighbours who lived in maisonettes. Davey gave music lessons in her premises. The noise from the music instruments were nuisance to Christie. So he brought pots and pans adjoining the music room. So they sued him. And the court ruled the action of Christie had no utility.

Strict Liability

Strict liability arose from Rylands v Fletcher. The defendant, Fletcher constructed a reservoir to collect and hold water for his mill. Under his land were underground workings of a coalmine whose existence he was not aware of. After the reservoir had been filled with water, the water escaped down the underground workings through some old shafts and flooded the plaintiff’s colliery. The plaintiff filed a suit which failed on the basis of trespass and nuisance. The court basically created a third cause of action now known as strict liability and explained that a person who for his purposes brings onto his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril and if he does not do so he is prima facie answerable for all the damage which is the natural consequence of the escape.”

The matter went to the court of appeal and the court of appeal added the proviso that the liability arises because the land had been put to a non-natural use.  For such use of land the occupier is strictly liable for the consequences of the escape.  Strict liability means the occupier is responsible whether or not he was wrong.

Negligence

Negligence arises from the failure to exercise the care demanded by the circumstances with the result that the plaintiff suffers an injury. Negligence is the only private law cause of action whose objective is not necessarily to protect the enjoyment of land. With the other three you must have an interest in land in order to sue. What the plaintiff needs to show is that he is owed a duty of a care and that the defendant has breached that duty of care with the consequence that the plaintiff has suffered an injury. The famous illustration is Donaghue v Stevenson. Lord Atkins asked the question “Who is my neighbour? My neighbour is the person who is so closely and directly affected by my act that I ought reasonably to have him in contemplation when directing my mind to the acts in question.”

This definition led to a fourth cause of action called negligence which requires that every person owes a duty of care to all those who he can foresee might suffer injury if he does not behave with care. The principle of negligence has freed the private law causes of action from application only to landowners.

Remedies

There are basically two remedies: damages and injunction. Damages is compensation given to a party who has suffered an injury. The sum added is based on the principle that the injured person should be placed in the position he or she would have been in had she not been injured.

Injunction

This is an order of the court which directs the party to do or refrain from doing something. It is granted to stop a continuing or a recurring injury in circumstances where damages would not be adequate compensation.

Typically an injunction will not be granted unless the damage is serious and irreversible. In deciding whether to award an injunction the court will decide on the balance of convenience. In the US but not in other Commonwealth jurisdictions litigants have taken the point that  to deprive a landowner of the use of his or her land by awarding damages instead of an injunction is tantamount to compulsorily acquiring that land in favour of the neighbour.

Next: Use of criminal law for the purposes of enforcement

PHYSICAL PLANNING:

Physical Planning is basically the mechanism for the management of the environment and in the majority of countries it served for a long time as the only framework for environmental management.  Physical Planning essentially refers to the organisation of the use of physical space and its environmental role arises from its ability to separate incompatible uses because incompatibility in use tends to be the primary positive factor in the perception of pollution.  The background to physical planning is to be found in the common law specifically in the law relating to property interests in land. 

Under the Common Law a landowner has the right of use and abuse of the land and the right of use and abuse is the right to use the land productively or to commit waste on the land.   The commission of waste may extend to environmental degradation of the land.  The primary limiting factor to the landowner’s right of use and abuse is a correlative right enabling land owners all sorts of use and abuse.  This means that each landowner has a comparable right of use and abuse.  The common law gives to each landowner the right to prevent a use from neighbouring land which would interfere with his land.  Under the common law the principle mechanism for a landowner to protect the right of use is the law of nuisance.  It enables landowners to take action to prevent unreasonable use which unjustifiably interferes with the reasonable comfort and enjoyment of an occupant of land.

The common law action of nuisance is reactive in nature which means that it comes into play when the unjustifiable interference occurs.  It is not pre-emptive in nature.

With the development of the modern State, legal jurisprudence began to develop to the effect that the State could assume cumulatively the individual rights of each of the landowners to prevent unreasonable use which causes unjustified interference with the enjoyment of land.  Jurisprudence began to develop allowing the State to act on behalf of all the landowners who could individually take action, this was developing because of the growth of the Modern State.  the action by the State on behalf of individual landowners is known under the common law as the exercise of Police power.  Police power essentially relates to the State taking action to prevent unreasonable use of land which interferes unjustifiably with neighbouring landowners.

In the exercise of Police Power the State can act only to prevent unreasonable use of land and it is in that context that the State can act to prevent use of land which can cause environmental degradation.  During the development of police power, the State has not restricted itself to reactive action but has gone further to take pre-emptive action and the pre emptive action has taken the form of planning the use of physical space and therefore the State has developed mechanisms for putting in place measures to prevent individual landowners from using their land in such a way that environmentally degrading acts are committed.

In the legitimate exercise of police power the State can prevent a landowner from developing the land but as long as the action is taken in order to protect the interest of other landowners then the State is not obligated to pay compensation to the landowner whose rights of use have been restricted.  If on the other hand the State takes action to confer a benefit on the other landowners then  this would amount to an exercise by the State of its power of Eminent Domain and for this compensation is payable.    An example is the case of Just V Marinette County 201 N.W. 761  This is a case in which in 1961 a couple known as the Justs purchased land along a lake.  Subsequently a law was passed which designated the land and the lake as a protected swamp (wetland)  following the passage of this law in 1968 the Justs commenced building on their land and dug and started placing the material that they dug out of the building site on to the wetland as a way of getting rid of it.  The County sought an injunction to restrain the Justs from filling the wetland without obtaining a permit as required by the law.  The Justs argued that to prevent them from using their land in this way amounted to a compulsory taking of their land without compensation.  The County argued that the restrictions were a proper exercise of police power and did not merit compensation.  The court held that this was a restriction on the use of property not to secure benefit to the public but to prevent harm from the change in the natural character of the property.  The public purpose sought to be obtained by the law was to protect navigable waters and the public rights in them from degradation which could result from uncontrolled use and development of shore lands.

The outcome of the common law position has been the development of the branch of law known as physical planning law and as we’ve indicated physical planning relates to the organisation or use of physical planning.  It has two components, planning and development control.

PLANNING

The planning of the use of physical space may be defined as the establishment of the objectives to be achieved in the use of given physical space.

DEVELOPMENT CONTROL

This relates to the mechanisms to ensure that development activities comply with the statement of objectives or comply with the plan.

The two components must be there to have a system of physical planning.  In Kenya we seem to have the plan but no effective system for ensuring compliance.

There is no necessary correlation between the existence of a physical plan and the achievement of environmental objectives, the two don’t need to go together. Physical planning is an indication to be achieved with regards to physical space.  In our time physical planning has been used expressly for purposes of environmental management and the tool which is used to ensure that physical planning serves an environmental management purpose is an Environmental Impact Assessment.

There are 3 components

1.                  Plan

2.                  Development Control

3.                  Environmental Impact Assessment this is the system that ensures that physical planning serves an environmental purpose.

In the USA physical planning is referred to as zoning because in practice users of physical space are specified on the basis of zones.  The term zoning is quite illustrative of the activity taking place.  In order to ensure that one minimises pollution issues, one has to ensure that users within one zone are compatible users, i.e. industries with industries and residents with residences.

In Kenya there are 3 principle statutes that deal with Physical Planning

1.                  The Land Control Act

2.                  Physical Planning Act

3.                  Environmental Management and Coordination Act

Land Control Act regulates development, use and subdivision of agricultural land, it was designed to ensure that agricultural land is used and developed in such a way that good husbandry is not compromised.  Consequently the process required that the regulatory institution known as the Land Control Board must be satisfied that the user of the land or the prospective user is capable of putting the land to productive agricultural use.  For instance the Board may ask for what purposes the land is being purchased and whether it is being put to good use, secondly the board must ensure that land is not subdivided into sizes which are not capable of being put into agricultural use.

In practice what has happened is that the Land Control Board for various reasons has drifted away from monitoring agricultural use and has become a body for promoting family peace i.e. ensuring that the family is in agreement on whether to sell the land.  They are not serving the intended purpose.  The mechanism of the Land Control Land allows the Land to be used for purposes of environmental management but it has not been used thus.

The Physical Planning Act is a much more comprehensive statute that provides for physical planning and development control.  The Physical Planning Act was enacted in 1996 repealing two earlier statutes the Town Planning Act (Planning in Urban areas) and the Land Planning Act (Planning in rural areas).  The Physical Planning Act provides for planning in both urban and rural areas.  It came into effect in November 1998 as a response primarily to the outcry relating to the excision in Karura Forest.  Nevertheless it is now in effect.  Institutionally the Physical Planning Act places the functions of Physical Planning in the Office of the Director of Physical Planning, administratively the director of physical planning is an officer in the ministry of lands.  The Act states that the Director of Physical Planning is the chief government advisor on all matters related to physical planning and in that capacity he shall formulate physical development policies prepare physical development plans, advise the Commissioner of Lands on the alienation of government lands, advise the Commissioner of Lands and Local authorities on the most appropriate use of land and require local authorities to ensure the proper execution of physical development control.  The Act establishes committees known as physical planning liaison committees at National, provincial and district levels.  The function of these committees is to act as an appeal mechanism from the decisions of the Director of Physical Planning.  The membership of these committees is comprised of permanent secretary as the chair, the Director as the secretary … it is top heavy full of government people.

The Act provides for three kinds of physical planning

1.                  Regional Physical Development Plan

2.                  Local Physical Development Plan

3.                  A special area physical development plan.

The regional physical development plan is prepared by the director with reference to any land within the area of authority of a county council for purposes of improving the land and providing for the proper physical development of such land.  It is also designed to secure provision for transport, public purpose, utilities and services, commercial, industrial, residential and recreational areas and to make provision for the use of land for building and other purposes.  A regional physical development plan is prepared for a rural area.  The purpose of the plan is to provide for proper physical development and also to provide for commerce transport etc.

A local physical development plan is prepared with respect to land within the area of the city, municipal, urban or Town Council or any trading or market centre.

Under Section 23 the Director may declare an area with unique development potential or problems as a special planning area.  The declaration of a special planning area enables the preparation of a physical development plan irrespective of whether such an area lies within the area of a local authority.

THE CONTENTS OF THE PLAN

A regional physical development plan consists of the following

1.                  A technical report on the conditions, resources and facilities in the area;

2.                  A statement of policies and proposals with regard to the allocation of resources and the locations for development within the area;

3.                  A description and analysis of the conditions of development in the area necessary to explain and justify the statements of policies and proposals.

4.                  Maps and Plans showing the present and future land users and development in the area.

The local physical development plan consists of a survey of the area and maps and a description to indicate the manner in which the land may be used.  In preparing the regional physical development plan, the Act specifies matters to be dealt with and these are

1.                  Population Growth, Projections, Distribution and Movement;

2.                  Land potential including the distribution of agricultural land, population and land imbalance, land tenure and other natural resource endowments

3.                  Employment and incomes including distribution, the labour force, the potential of the informal sector and their locations;

4.                  Human settlements including distribution of existing services, growth and pattern of urbanisation, causes and primacy of rural urban migration.

The second stage is to develop the policy which requires looking at alternative development patterns and strategies for human settlement including the development of service centre, transport and communication networks and rural development.

In a local physical development plan the purpose is to ensure orderly, coordinated, harmonious and progressive development of the area in order to ensure health, safety, amenity, convenience and the general welfare of the inhabitants.  The Plan should classify the area for residential, commercial, industrial and other purposes.  It should also determine the type and density of development in any particular locality as well as the conservation of the natural beauty of the area including lakes, rivers, hilltops, summits and valleys if they exist.  The plan should also provide for routes, communication routes and the basis for the local authority to declare public streets.

The Plan is prepared by the Director of Physical Planning and within 30 days the Director shall notify the public in the Gazette of the existence of the draft plan and request representation or objections to be lodged within 60 days.  Representations and objections which are lodged shall be considered by the Director who may take them into account or reject them.  If rejected the aggrieved party may appeal to the liaison committee.  After the 60 days the Director shall certify the Plan with or without amendments and submit it to the Minister for his approval.  If the Minister approves the Plan, he shall publish it in the Gazette an approved Plan shall have full force and effect in its area and every person shall comply with it.

The Plan is the basis for development control and as we indicated development control is the system that ensures that development activities conform to the plan.  At the heart of this system is the requirement for development permission.  Section 30 provides that no person shall carryout developments without development permission granted by the local authority.  It is an offence punishable by fine of a 100,000/- or imprisonment of upto 5 years to carry out development without permission.

What constitutes development?

Development is defined to mean the making of any material change in the use or density of any buildings or land or the subdivision of any land and the erection of such buildings or works as the Minister may from time to time determine and the Act specifies that the deposit of refuse, scrap or waste material on land involves a change of use on land.  The use as two or more dwellings or a building previously used as one dwelling constitutes development.  The erection of more than one dwelling or shop or the erection of both dwelling and shop on one plot constitute development.  The display of any advertisement constitutes development.  The use of any buildings or land within the cartilage of dwelling for any purpose incidental to the enjoyment of the dwelling constitutes development. 

The local authority has power to prohibit or control the use and development of land and buildings in the interests of proper and orderly development and to consider and approve development applications and grant development permissions.  The person who requires a development permission shall apply to the local authority and the application shall be accompanied by such plans and particulars as are necessary to indicate the purpose of the development.  The local application shall refer to their director for his comments and when considering the application the local authority shall be bound by any relevant regional or local physical development plan approved by the Minister.  It shall also have regard to health, amenities and convenience of the community generally and to the proper planning and density of development and land use in the area.  It shall have regard to any comments received by the director.

The local authority may grant the application or refuse it and the aggrieved party may appeal to the relevant liaison committee.  If in connection with a development application, a local authority is of the opinion that proposals for industrial locations, dumping sites, sewerage treatments, quarries or any other development activity will have injurious impact on the environment, the applicant shall be required to submit an Environmental Impact Assessment Report.

Under Section 37 the Registrar of Lands shall refuse to register a document relating to the development of land unless development permission has been granted.  If development is carried out without planning permission the local authority may serve an enforcement notice and the notice is served on the owner, the occupier or the developer of the land.  The notice shall specify the development concerned and such measures required to be taken within a specified period to restore the land to its original condition.  In particular the notice may require the demolition or alteration of any building or works or the discontinuance of any use of land.  A person aggrieved by such a notice may appeal to the liaison committee.

Statutory Framework for Environmental Planning

Environmental Planning is a system of Planning which runs parallel to the system of physical planning established under the Land Control Act and the Physical Planning Act.  It establishes a Planning System at District Level and at National Level.  Unlike the Physical Planning Act which is based on planning at national level but on implementation through local authorities.

Section 37 establishes the National Environment Action Plan Committee.  The function of the National Environmental Plan Action Plan is to prepare a national environmental action plan after every 5 years for consideration and adoption by the National Assembly.  The NEAP is a compilation of District Environment Action Plans which are prepared by the district environment committee.

Section 40 establishes in each District a District Environmental Committee whose task is to prepare a district environmental plan and submit the DEAP to the provincial Environmental Action Plan Committee.  The Provincial EAPC is to prepare a provincial environmental plan based on the district environmental plan further compiled at the national level.

The National Environmental Plan is further required to analyse the national resources of the country and set out actions required to be taken to implement environmental measures across the country.  The Environmental Management and Coordination Management Act does not indicate in what way the Environmental Action Plan relates to the Physical Plan and so one ends up with plans that are really running in parallel which is an unfortunate set-up coz there should have been a way of interlinking the two plans.

The very first National Action Plan was prepared in 1994 prior to the enactment of the Environmental Management and Coordination Act and one of the actions that was proposed in that plan was the enactment of an environmental law.  since the enactment of this Act no National Environmental Plan has been prepared although if one takes the date , this would be the 5^th year.

Planning is a precondition to environmental management primarily it enables the separation of incompatible uses of land.  Physical planning does not have to necessarily have environmental objectives.  To ensure that physical planning promotes environmental objectives a methodology known as the Environmental Impact Assessment has been applied (EIA)

ENVIRONMENTAL IMPACT ASSESSMENT

EIA is defined as a methodology for gathering information about the potential environmental impacts of a proposed development and making that information available for use in decision making.  EIA does not itself determine whether or not a proposed development may proceed.  It places information before decision makers which decision makers must take into account alongside other information in order to come to a conclusion whether to permit the project to proceed.  And therefore the fact that the information suggests that the proposed developments will have negative impacts on the environment does not mean that that development will not be permitted.  But because the information is available at the time of decision making it enables decision makers to take that into account in deciding on the application for permission.

The first legal instrument to provide for environmental impact assessment was the Environmental Protection Act of the USA which was enacted by Congress in 1969 and came into effect on the 1^st of January 1970.  That statute imposed a requirement on US Federal Agencies which proposed to carry out development to conduct an assessment of the potential environmental impacts of their proposed actions.  So the focus at the time was on the proposed actions of Federal Agencies and so Federal Agencies are Government Bodies and the idea was for govt bodies to carry out an assessment of their proposed action.  Subsequent development in the USA extended these requirements to US State Agencies was made by way of enactments at State Level.  The extension of this requirement to private bodies was carried out by way of Judicial interpretation of the statute. 

The Mono Lake Decision case extended the requirement to carry out an assessment of environment impact.   The facts of this case were that a private developer wished to construct a Housing Estate.  The development of the Housing Estate required Planning permission from Mono Lake County which was the local authority of that region. Those opposed to the development took court action against Mono Lake county arguing that State Legislation required State Agencies to carry out an assessment of the potential environmental impact of the Agency’s proposed action.  They argued that the word actions included the action of granting Planning permission which meant that where Mono Lake County proposed to take the action of granting Planning permission for a Housing Development it was required to carry out an Environmental Impact Assessment before granting Planning Permission.  The implication was that the EIA would then extend to a development to be carried out by a private body.  That action succeeded in court with the result that Mono Lake County did carry out an EIA of the development and in the end did not grant Planning Permission for the proposed development.

Following that precedent it was established that prior to granting planning permission, a decision making authority must carry out an assessment of the development whether or not that development is to be carried out by a public authority or private body.  For this reason EIA has come to be understood as involving 3 critical stages:-

1.                  The information gathering stage – the responsibility for information gathering has been placed on the developer.  Many people have argued that placing the responsibility for information gathering on the developer means that the developer is likely to influence the kind of information provided as a way of influencing the outcome of the decision making process.   Those who have pointed out the risk have argued that the information should be gathered by the decision making authority which would mean that one makes an application and then the decision authority goes out to gather the information about the proposal that way the information gathered will not be biased.  The problem here would be the delay that would arise if the decision making authority was given the task of gathering information.

2.                  The Assessment Itself:   Assessment refers to using the information gathered to make a decision about whether or not the project should proceed or whether it should be given planning permission.  Assessment is typically the responsibility of the decision making authority.  Assessment of Environmental Impact is a process that takes into account environmental considerations alongside other considerations such as economic social and political factors.  For instance, it may be that the information gathered suggests that there will be negative environmental impact but the project will also lead to prospects for jobs and on the basis of both kinds of information, a decision is made.  This is particularly annoying to so called environmentalists who tend to take the view that if you can marshal a lot of grim data about the destruction which painted the picture of Armageddon around the corner.  Decisions are multi dimensional.

3.                  Implementation of the outcome of the EIA:  Ordinarily the information gathered will suggest that there will be adverse environmental impact.  The decision however quite often will be that nevertheless planning permission should be granted.  The way in which the potential adverse environmental impact are often dealt with is through the imposition of a condition in the planning permission that measures must be put in place to mitigate against adverse environmental impacts.   The developer is required to put forward and implement a mitigation plan as a condition of Planning permission.  The Mitigation Plan is then supposed to be monitored and enforced.  No one is happy in the short term but in the long term they get satisfied with the results.

EIA has two important features which ordinarily take on the appearance of constraints.

(a)                The fact that EIA is project specific;

(b)               The fact that EIA is a methodology that focuses only on proposed developments it does not extend to existing or ongoing activities.

With regard to the first feature, decision making occurs at various stages in the process of a development.  Typically a development is based on a policy, a strategy and a project.  At each stage decision making is involved.  A policy is an objective set to be achieved) policy may or may not be written but in order to constitute policy it must be objective, it must be articulated by an authorised person.  For instance there could be govt policy articulated by the Minister.  If it is in writing then it is easier to conceptualise but the fact that it is in writing does not make it any more policy than if it wasn’t in writing.  An example is that the govt will provide free primary school education, this is policy.  Arising out of policy is a strategy, a strategy is an articulation as to how the policy is to be achieved.  The strategy might say that in order to achieve the policy of free education the government will build a hundred primary schools in every district.  Quite often a strategy is articulated through a plan.  A plan is a time bound strategy which basically means that if you say free primary school education will be achieved through building 100 primary schools in every district in five years, you have given it a time range.  Emanating out of the plan and the strategy, one ends up with the project which is the concrete expression in a specific location of the plan.  So if the plan is to build classrooms, then the primary schools are built, that is the project.  Decisions are made at each stage of Policy, Strategy, Plan and Project.

EIA comes into play at the project stage of decision making and for that reason EIA is often constrained by decisions which have been taken at prior decision making stages.  The result is that by the time an environmental impact assessment is being undertaken, chances of the outcome of the assessment leading to the denial of plan permission are often limited.  It is for that reason that the typical outcome of EIA is a mitigation plan to mitigate against adverse Environmental Impact Assessment.  More recently the methodology of strategic environmental assessment has been developed.  Strategic environmental assessment is a methodology designed to assess the potential impact on the environment of alternative strategies to achieving a given policy objective.  And therefore strategic environmental assessment is carried out at the Plan level.  This methodology is quite recent and only a few countries have adopted it, most countries adopt strategic assessment at project level.

Ordinarily the objective of project specific environmental impact assessment is that mitigatory measures need to be built into the implementation of that project.  However typically there will be many projects already ongoing which cause a negative impact on the environment which either were not subject to EIA or which were not anticipated at the time of the EIA.

Ongoing projects are dealt with through the methodology of environmental audit not Impact Assessment.  An Environmental Audit is an assessment of the Impacts on the environment of ongoing activities.  It leads to recommendations  on how the activities should be conducted in order to minimise the negative environmental impact.  Typically environmental audits are carried out at periodic intervals.  Environmental Audits are similar to financial audits and can be carried out by either internal auditors or by external auditors.  When carried out by internal auditors, environmental audits are a management tool which enable the managers of the project to take action to redress negative environmental impact of the project.  When carried out by external auditors, environmental audits are a regulatory tool to enable regulators enforce compliance.

Part 6 of the Environmental Management and Coordination Act deals with environmental Assessment

Section 8 – not withstanding any approval, licence, permit granted under any law in Kenya, before financing, commencing, proceeding with, carrying out executing or conducting a specified project, the project proponent must apply for and obtain an environmental impact assessment licence.  The Application is made to the National Environmental Management Authority which is established by Section 7 of the Act.  This National Management Authority is an idea generated through the initiative of an idea in UNEP.

The project proponent must obtain an Environmental Assessment Impact Licence regardless of any other licence or permit that one may have obtained.  Two problems arise one, for the project proponent this is yet another handle that they must overcome.  Second problem is operation in nature i.e. one does not know which of the licences to obtain first.  A project proponent is anyone carrying out, financing or executing or causing to be carried out, financed or executed.

The procedure is as follows:

The project proponent must first prepare a project brief describing what the project is about.  On the basis of the project brief the authority will take a decision on whether that project should undergo the full environmental impact assessment study.  The decision on whether a full study is required will be based on 3 factors

1.                  Scale of the project; - the bigger the scale of the project the more likely that it will undergo a full study and the smaller the project the lesser likely that it will need a full study;

2.                  Nature of the Project – projects  of a category which are listed in the 2^nd Schedule to the Act require an environmental Impact Assessment, these include urban development, dams, rivers and waters resources projects, transport projects, mining, forestry, manufacturing industries, waste disposal and nature conservation;

3.                  The location of the project: projects in environmentally sensitive locations will require full study and those not located in environmentally sensitive locations will not require full studies. 

EIA experts are consultants appearing on a register which is maintained by the authority.  The law requires that one chooses their experts from that register.   Those experts carryout the study based on terms of reference which are developed by the developer and approved by the authority and those terms of reference will define the scope of the study.  For example if one imagines the potential impact arising from a development, that would be all over, if one wanted to built a hospital, one must take into consideration that there might be germs of TB emanating from hospital and one might want to do a study of TB.  Therefore one must do scoping to decide what the study will focus on.  The developer must define the scope.

After the study is done the expert submits a report which is submitted to the authority and the authority is required to

(a)                publicise the existence of the report and ask members of the public to comment on the report;

(b)               The authority may set up a technical advisory committee to advise it on the report.  The technical advisory committee comprises of persons who are experts on the issues dealt with by the report, the technical committee set up by the authority is to be paid for by the developer but on the basis of comments from the public and recommendation from the technical advisory committee, the authority will decide whether a public hearing is required at the proposed site of the project.  After the public hearing if it is held a decision will be held on whether to grant an impact assessment licence.  If granted the licence may have a mitigation plan to be implemented by the developer.

The Act provides that if during the implementation phase of the project, the conditions of the licence are not complied with, the licence may be revoked or suspended for a period of 24 months.  The Act empowers the authority to charge fees for the licence and the authority has imposed a fee of 0.1% of the Project cost.

With regard to existing projects, Part 7 of the Act provides for Environmental Audits to be carried out by an environmental inspector appointed by the authority.  Existing or ongoing projects are defined in the Environmental Impact Assessment and Audit Regulations of 2003 Rule 31 defines an ongoing project as a project commenced prior to the date of the regulations and the date of the regulations is the 13^th June 2003 and any project commenced after 13^th June 2003 is a new project for which an EIA must be undertaken. 

Basically where a project is defined as ongoing, then NEMA imposes a requirement that the operators of those projects must submit an environmental audit report by 31^st December 2004.  These regulations deal with the second issues which is that as we had indicated, the Act focuses on project specific environment impact assessment.  Rule 42 of the Regulations provides for strategic environmental assessment stating that lead agencies shall subject all proposals for public policy, plans and programs to a strategic environmental assessment to determine which ones are the most environmentally friendly.  That assessment is to result in a choice of policy and strategy options based on environmental impact.  In Muma’s view because the statute does not provide for Strategic Environmental Assessment, then it is ultra vires for the regulations to require it.

VARIOUS SECTORAL ENVIRONMENTAL MEDIA

Water Management

This includes management of water resources and provision of water supplies.

In the past the law relating to water management in Kenya was contained in the Water Act Cap 372 Laws of Kenya.  In 2002 the Water Act was repealed and replaced by new law which is presently known as the Water Act 2002 and does not have a Chapter number.  This came into effect in March 2003 by which Water Act Cap 372 was repealed.

Kenya’s statutory law on management of water resources is based on the common law and under the common law the land owner is presumed to own everything on the land upto the sky and down to the centre of the earth and this is a principle found in the course of property interest in land.  At the same time the common law considers running water air and light to be things the property of which belongs to no person but the use to all persons.  This principle is articulated in the case of Liggins V Inge 131 E.R 263. 

Although the common law considers that the landowner owns everything on land a landowner has no property in running water air and light.  What his land ownership gives him is a natural right to the use of running water air and light.  The Natural right is considered to be incidental to the land ownership.  The land owner whose land abuts on a water course is known as a riparian owner.  A riparian owner is considered to have a natural right to water.  With respect to riparian ownership the principle is articulated in Stockport Waterworks Corporation  V. Potter 159 ER 545. 

A right to water is the ability to exercise as of right the right which is available to all members of the public to use running water.  None riparian owners can only exercise the right to use running water under an agreement with a riparian owner.  An agreement providing for access over riparian land is known as an easement.  In the absence of an easement non-riparian owner will be committing a trespass if he attempted to exercise the right to use running water.  Because the right to use riparian water is shared by all riparian owners, its use must be reasonable.  No one owner may use the water in a way which prejudices the right of other riparian owners.  The principle of reasonable use is articulated in the case of Embrey v Owen 155 ER 579.

The extent of the riparian owners right to water and the scope of reasonable use can be reduced to 3 rights:

1.                  Right of Access and Navigation;

2.                  Right to the Natural quantity of the water in the water course;

3.                  Right to the Natural quality of the water in the water course;

These 3 are known as the riparian rights.  The right to navigate the tidal river belongs to all members of the public (a tidal river is a river that is influenced by the movement of the waves so typically a tidal river is salty River Tana in Kenya is a tidal river).  The reason for the rights belonging to all members of the public is because the ownership of the land beneath a tidal river is vested in the State whereas the ownership of the land beneath a non-tidal river is vested in the riparian owner.  The tidal part of the river is therefore accessible to any member of the public whereas the other part of the river is only accessible to the riparian owner.  Only a riparian owner has a right of access to his land which enables him to embark and disembark on the non-tidal part of the river.  This principle was established in the case of Lyon v Fishmongers Co. [1876] 1 A.C. 662 this is a case that arises o of fishing in the North Sea and the Fishmongers Company wanted a place on which to land after fishing but the particular spot on which they had established their key turned out to be non-tidal so the owner was denying them to embark or disembark on it.

The riparian owners right to quantity enables him to abstract, divert, obstruct or impound the water.  The water abstracted may be used for ordinary domestic purposes such as drinking, cooking and washing or it may be used for purposes such as irrigation which the common law considers to be extraordinary purposes.  Where the riparian owner uses the water for ordinary purposes, there is no restriction in the quantity that he/she may abstract even if the abstraction exhausts all the water in the river.  This principle is articulated in the case of McCartney v Londondery & Lough Swilley Railway Co.  [1904] A.C. 301.

Where the riparian owner uses the water for extraordinary purposes, the use is restricted to the extent that it is subject to the right of other riparian owners.  Any use which prejudices the use by a lower riparian owner is considered to be unreasonable.  Basically if a riparian owner A is using the water for irrigation, if it prejudices the right of G to use water for ordinary purpose he is said to prejudice the use of water by G.  This principle is articulated in the case of Swindon Waterworks Co. v Wilks & Berks Canal Navigation Co. [1875 7 LR 697.

Under the common law the riparian owner is not allowed to use riparian water for foreign purposes.  Foreign purposes means use of water outside of the riparian land.  Any such use is considered as unreasonable even if it does not prejudice the use of any other riparian owner.

The riparian owners right to quality entitles the riparian owner to the flow of water past his land in its natural state of purity undeteriorated by noxious matter discharged into it by others.   This principle is articulated in the case of Jones v Llanwrst Urban District Council [1911] 1 Ch. D 393. 

The principle of riparian ownership is the principle of water resources management which operated under the common law.  under this the management of water resources was based on balancing the competing demands of neighbouring riparian owners. 

As per the common law the riparian owner owns the land upto the midian line of the river but our statute specifically the Agriculture Act prohibits the riparian owner from cultivating up to 2 meters of the river.  Under the Physical Planning Act the Local Authority can prohibit cultivation of the river beds.

The common law principles have however been incorporated into statute law even if with modifications and the current statute governing water resources management is the water Act Cap 2002 which was enacted in July 2002 and came into effect in March 2003.  The Water Act 2002 provides for the management, conservation, use and control of water resources.  Secondly it provides for the acquisition and regulation of rights to use water and for the regulation of water supply and sewerage services. 

The Water Act has divided the management of the resource and the provision of the supply.

WATER RESOURCES

The Act defines Water Resource to mean any lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin or other body of flowing or standing water whether above or below the ground.  Under Section 3 of the Act, every water resource is vested in the State.  Section 5 provides that the right to use the water from any water resource is vested in the Minister.  The Minister shall have and may exercise control over every water resource in accordance with the Act.  Section 6 provides that no conveyance or lease shall convey transfer or vest in any person any property or right or interest or privilege in respect of any water resource.  Property rights, interests or privileges in water resources shall be acquired only under the Act.  Under Section 25 a permit is required for any use of water from a water resource, any drainage of any swamp the discharge of a pollutant into any water resource or any other purposes prescribed by rules made under the Act.  It shall be an offence to use water from a water resource without a permit except in 3 cases set out in Section 26. 

A permit is not required

1.                  For the abstraction of the use of water without the employment of works from any water resource for domestic purposes by any person having logged for access for water.  Works are defined as any structure, apparatus, device or thing for carrying, conducting or utilising water but it does not include hand utensils.  This means that a person who has lawful access to the water i.e. a riparian owner or a person with easement may use water without a permit in two situations one that he is not using equipment and two that the purpose is domestic.

2.                  A permit is not required for any development of ground water where none of the works necessary for the development are situated within a 100 meters of any body of service water.  It is being assumed that one is using equipment not if one is just using hand utensils.  So long as the works are not situated near a groundwater conservation area.  Groundwater conservation is defined in Section 44 as any area in which special measures for the conservation of groundwater are necessary in the public interest.  Special measures may be necessary to protect water for public supplies or for supplies for use in industry or agriculture.  The whole of Nairobi has been declared as a groundwater area so to construct a borehole, one would need a permit.

3.                  A permit is not required for the storage of water or the abstraction of water from a dam which is constructed in a channel or depression which does not constitute a watercourse.

Under Section 27 any person who is not the holder of the permit but construct or employs works to use water commits an offence.  The holder of the permit which authorises the construction of works which will be situated on another person’s land shall acquire an easement. 

The conditions of the permit

The permit may provide for charging for the use of the water which basically means that there may be a charge whereas before water was for free the government may decide there is a charge.  In determining an application for a permit the govt takes into account

1.                  Existing lawful uses of the water;

2.                  Efficient and beneficial use of water in the public interest;

3.                  The likely effect of the proposed use on the water resource and on other users;

4.                  The strategic importance of the proposed use;

5.                  The quality of the water in the water resource and the probable duration of the activity.

Section 32 provides that the use of water for domestic purposes shall take precedence over the use of water for any other purpose.  Under Section 36 the Act creates a provision which allows the cancellation of all existing permits in an area experiencing water stress followed by fresh applications and a re-allocation of the resource.

Under Section 40 a permit may be varied and under Section 37 it may be cancelled.  The variation or cancellation of the permit may be taken if the permit holder contravenes the conditions of the permit.

Section 7 of the Act establishes an authority known as the Water Resources Management Authority.  The task of the Authority is to allocate water resources and to regulate and protect the quality of water resources.  Applications for permits for water use are made to the Authority and not to the Minister.  The Authority is created as a parastatal body to allocate water resources.  The Authority is required to establish regional offices which are to be established within catchment areas.  Under Section 14 the Authority is empowered to designate a defined area from which rain water flows into a watercourse to be a catchment area.  The country has been divided into 7 catchment area.  The reason for managing water on the basis of catchment areas is self-evident.  The idea is to manage the resource on the basis of the whole catchment not on the basis of administrative districts.

Section 11 requires the Minister to formulate a National water resources management strategy spelling out how the water resources of Kenya shall be managed, used, developed and conserved.  The water resources management authority is required to formulate catchment area management strategies.  The catchment area management strategies shall be consistent with the National Water Resources Management strategies. 

The Minister is also required to determine for each water resource a reserve.  A water reserve is defined in the Act as the quantity and quality of water which is required to satisfy basic human needs for all people who are or maybe supplied from the water resource and secondly the quantity and quality of water required to protect aquatic ecosystems in order to secure ecologically sustainable development and use of the water resource.  Having determined the reserve the Minister is required to classify each water resource and specify for each water resource the quality objectives and the dates from which those objectives will apply. Resource quality objectives is defined by the Act to mean the level to be achieved and maintained.

WATER SERVICES

Water services relates to the provision of the supply of water.  You have the resource and now you want to supply it for use.  Under our traditional system, the service is purely domestic but we want to move beyond this domestic service.;  Section 49 requires the Minister to formulate a National Water Services Strategy with the following objects

(a)                It shall put in place arrangements to ensure that at all times there is in every area of Kenya a person capable of providing water supply;

(b)               The strategy shall design a programme to bring about an extension of sewerage to every centre of the population in Kenya.  The strategy shall contain details of existing water services and the number and location of persons who are not being provided with the basic supply of water and basic sewerage.  It will also contain an investment programme and a time frame.

Under Section 51 the Minister is required to establish water service Boards and the Water Services Board is responsible for the efficient and the economical provision of water services.  The Minister has established 7 Water Service Boards, one in each area.

Section 56 provides that no person shall provide water services to more than 20 households or shall supply more than 25,000 litres of water a day for domestic purposes without a licence.  It is an offence to supply water without a licence.

Only a Water Services Board may apply for a licence to provide water.  The services authorised by the licence shall be provided by an agent of the Board known as Water Services Provider and the Board itself is prohibited from directly providing water to consumers unless it is not possible to find an agent.

A water services provider is defined as a company a non-governmental organization or other person providing water services under an agreement with the licensee.  It is for these reasons that local authorities have been forming companies to supply water services.  The licence is to be granted by a regulatory body which is known as a Water Services Regulatory Board and its function is to issue the licence and determine standards for the provision of services to consumers.  These boards and the providers are to be regulated by the Water Services Board, regulation is removed from the Minister.

MANAGEMENT OF WASTE

This is looked at in two components

1.                  Management of Solid Waste

2.                  Management of Hazardous substances and Chemicals

The management of waste always requires an understanding of the concept of waste.

Definition of Waste:   waste is an item or substance which has no utility value to the holder of the item.  By the same token waste may well have some value to somebody else or to the same person in a different context.  Therefore whether or not an item is considered to be or not to be waste must be determined from the point of view for the person who has control or is in possession of that particular item.  An item which is waste is not the same thing as an item that does not have value. Waste items always have value and it is only that its value to the holder is less then the cost to the holder of retaining possession of it.  Therefore the holder always faces an inherent temptation to dispose of the item at least cost to himself or to herself. 

The first choice of disposal of a waste item is into the environment i.e. a cigarette smoker will puff away until they get to the butt end of the cigarette and then they have the Pavlov’s instinct of letting it drop from their hands and will drop it  anywhere and for this reason waste presents an environmental problem because the holder does not see the need to invest resources in disposing the item.  Where the holder is not able to dispose of it in the environment, the holder will hand over that item to the person who is willing to take the item.  Such a person may well be prepared to pay for the item for the reason that the intending possessor of the item may well see utility value in the item.  But the key thing is that the holder is disposing of the item rather than the person acquiring it is paying for it so the price that the holder imposes for the item will typically not represent the true economic value of the item.  In an auction for instance one sets a reserve price which represents what one perceives as an item’s economic value.  At times the holder is even prepared to pay for somebody to take away this item.

So waste presents an environmental management problem, the theory of managing waste is captured in an approach to management known as cradle to grave management or ‘life cycle management’.  Cradle to Grave Management presents an approach that looks at an item from its inception to its disposal, the approach looks at the entire lifecycle of the item.

Lifecycle Management introduces management principles at each stage of the life of the item.  At production the management approach is to reduce or minimize waste.  After production, in use the approach is to reuse waste and on disposal the approach is to recycle.  Reduction of waste is basically the principle that the production process should result in

1.                  an item which potentially will generate little waste

2.                  The production process itself should give rise to as little waste as possible.

If in the process of producing an item the maker of the item is also generating a lot of waste.  The idea is to minimize waste, there are people who argue that minimization of waste cuts costs. 

Having generated the item, the idea is that the item itself should be an item that is capable of reuse which basically means putting the item back to use in the same form. A good example is a beverage bottle.  These are items that can be used again in the same form.  In order to encourage reuse, the management uses a deposit and return system to encourage reuse.  Replacement of this particular item like cans for bottles leads to a waste management problem.

RECYCLING

This is using an item but in a different form e.g. paper, paper can start as writing paper to toilet paper etc, it changes its form. Usually in order to make an item recyclable, it is necessary to remove the impurities which converted it into waste in the first place.  Ordinarily the generation of waste will require that the waste that results at the end is disposed off.  Even where waste is minimized, at some stage one still ends up with some waste and that waste has to be disposed off. 

Waste is disposed off either in a Landfill which is the process of burying solid waste in the ground or by incineration.  A properly designed landfill constitutes an effective disposal method.  In designing a landfill there are 3 issues to look out for

1.                  The control of methane gas –by-product arising from the decomposition of waste-product or hydrocarbon

2.                  Control of Leachate – this is the liquid by-product arising from the decomposition of waste.  It is highly polluting particularly to ground water and needs to be collected and disposed off.  This is used by treating the waste by covering with layoff soil.

3.                  Control of Smell

 Incineration is the second method of disposing of waste.  It is the process of burning waste at High temperatures.  It is very expensive and therefore it is not used for management of bulk waste.  It is restricted to disposing of pathogenic waste.  Pathogenic waste is waste with pathogens (bacteria and viruses) waste from hospitals.  That sort of waste is destroyed through incineration for the reason that the high temperatures destroy the pathogens.

There are several categories of waste.  Broadly waste is divided into solid waste and hazardous waste.

Solid waste refers to waste which contains few hazardous characteristics.  Examples of solid waste are waste from domestic establishments and street litter.  Waste from domestic establishment will be dirty water from the kitchen and things from the toilet and street litter is i.e. banana peels and papers.  Within solid waste there is what is referred to as Municipal waste which the municipal council is responsible for collecting.

Hazardous waste is waste with characteristics which present a danger to human health or to the environment.  These characteristics that present danger to human health are listed in Section 91 of the Environment Management and Coordination Act and it is that waste item that has characteristics that make it corrosive or carcinogenic or flammable or toxic or explosive or radioactive (ccfterP) or finally persistent (items that do not biodegrade easily such as polythene).

Carcinogenic means that a substance has the ability to mutate and therefore cause cancer.  Radioactive items that emit ultra violet rays, their capacity to penetrate objects leads to mutation which can lead to cancer.

In Kenya the management of solid waster has a very recent legislative history.  On the whole the laws dealing with solid waste management are found in the Public Health Act Cap 242 Laws of Kenya, the Local Government Act Cap 240 Laws of Kenya and more recently the Environmental Management and Coordination Act.

Section 116 of Cap 242 imposes a duty on every local authority to take all lawful necessary and reasonably practicable measures for maintaining its district  at all times in a clean and sanitary condition and for preventing the occurrence therein or for remedy or causing to be remedied any nuisance or condition liable to be injurious or dangerous to health.  It also imposes on the Local Authority the responsibility to take action against any person causing or responsible for the continuance of any such nuisance or condition.

Section 118 defines what constitutes a nuisance and provides 5 categories of nuisances

1.                  Any street, road, stream, ditch, sink water closet, urinal soak-away pit,  refuse pit, ash pit, manure heap, garbage receptacle, dustbin or septic tank which is so foul or in such a state as in the opinion of the medical officer of health to be offensive or to be injurious or dangerous to health;

2.                  Any accumulation or deposits of refuse, offal or manure or other matter which is offensive or which is injurious or dangerous to health;

3.                  Any accumulation of stones, timber or other material which in the opinion of the medical officer of health is likely to harbour rats or other vermin.

4.                  Any area of land kept or permitted to remain in such a state as to be offensive or liable to cause any infections, communicable or preventable disease or injury or danger to health.

5.                  Any act, omission or thing which may be dangerous to life or injurious to health.

Where an item falls under the jurisdiction of the Local Authority to deal with as a nuisance Part IX of the Public Health Act provides a procedure known as a nuisance abatement procedure for dealing with nuisances.  Under this procedure the Medical Officer of Health who is based at the Local Authority, they are employees of the Ministry of Health serves a notice on the author of the nuisance if the author cannot be found the notice is served on the occupier of the dwelling.  The Notice will require the removal of the Nuisance within a specified time and it will specify the works to be carried out to remove the nuisance, it is the removal which is known as abatement of the nuisance.  If the notice is not complied with the Medical Officer of Health shall cause a complaint to be made to a Magistrate who again is stationed at the local authority and the Magistrate shall issue a summons requiring the person to appear before the court.  if the Magistrate is satisfied that the nuisance exists or may recur the magistrate shall order compliance with the notice.

If the order is not complied with the Medical Officer shall again cause a complaint before the Magistrate and the Magistrate shall again issue a summons and on this occasion the Magistrate shall in addition to ordering the removal of the nuisance impose a fine which is a daily fine which accumulates until the nuisance is removed.  If the person still refuses to remove the nuisance the medical officer of health shall at that time force a complaint before the magistrate and this time the magistrate shall order the local authority to remove the nuisance and recover its costs for doing so from the author of the nuisance or the occupier of the premises.  The removal of the nuisance may require the demolition of the structures responsible for the nuisance in which case the magistrate shall order the demolition of the structures accordingly.

One does not have to wait until waste has become a nuisance in order to abate it. 

The Local Government Act Cap 240 at Section 160 gives local authorities power to establish and maintain sanitary services for the removal and destruction of or otherwise dealing with all kinds of refuse and effluence and where such a service is established, it gives local authorities power to compel the use of such a service by persons to whom the service is available.

Under Section 162 the Local Authority has power to compel occupiers or where the premises are vacant owners to keep their premises free from all unwholesome matter.

Under Section 201 Local Authorities have power to make bylaws on matters necessary for maintaining health, safety and well-being of the inhabitants and for the prevention and suppression of nuisances.

Acting under those powers the city of Nairobi made the following bylaws in the good old days of colonialism

1.                  The city of Nairobi General Nuisance Bylaws NO. 275 of 1961;

2.                  City of Nairobi Conservancy bylaws No. 69 of 1961;

3.                  City of Nairobi Restaurants, Eating Houses and Snack-bars bylaws No. 674 of 1961

4.                  The City of Nairobi Slaughterhouses Bylaws No. 325 of 1966;

5.                  City of Nairobi Hairdressers and Barbers Bylaws No. 146 of 1970;

6.                  City of Nairobi food shops and stores bylaws No. 384 of 1956;

7.                  City of Nairobi Hawkers bylaws No. 748 of 1963.

8.                  The Local Government Adoptive bylaws (Building Order) No. 15 of 1968

The conservancy bylaws deal with the collection of refuse.  It requires the council to provide receptacles (waste bins) at premises and to require that all refuse for disposal be placed in the receptacle for collection by the council’s refuse collection service. In the good old days the council did provide waste bins.  The Bylaws impose a charge for the hirer of the receptacle and for the service of emptying the receptacle.  The charge is imposed on the occupier of the premises and the occupier is defined as the person who enters into an agreement to pay for a water supply to the premises from the council.

The building code deals with the removal of building debris and it provides that any person who deposits or causes to be deposited any builders material upon any street shall be guilty of an offence.  The general nuisance bylaws prohibit the deposit of solids, vegetation or refuse on any land in the city.  It provides that it is an offence to place deposits or leave behind any carton, paper or other rubbish so as to create later or to throw down or leave behind any orange peel, banana skin or other substances likely to cause a person to fall down.  Any person who while being in charge of a dog allows such a dog to foul any footpath is also guilty of an offence.

The other six bylaws have a standard provision which gives the council power to refuse to issue a licence or to cancel a licence if the premises are not provided with adequate sanitary arrangements.

Other statutes also contain limited provisions dealing with management of solid waste.  The medical Practitioners and Dentists Act which is Cap 253 deals with the management of Hospital Waste.  Section 4 constitutes the Medical Practitioner and Dentist Board.  Section 15 gives the Board power to authorise the use of premises for the purposes of the practice of medicine.  In determining an application for authorisation, the Board must consider whether provision has been made for the disposal of the hospital’s pathogenic waste.

The Scrap Metal Act Cap 503 Laws of Kenya prohibits dealing in scrap-metal without a dealers licence.  The Dealers License is issued by the Police.  The statute prohibits a licence dealer from storing or dealing in any scrap metal elsewhere than at the premises specified in the licence.

The Use of Poisonous Substances Act Cap 247 Laws of Kenya requires the Minister to make regulations to protect persons from poisoning by substances arising from the storage, transport sale and disposal of material.

The Food Drugs and Chemical Substances Act Cap 254 Laws of Kenya provides that any person who disposes of any chemical substances in any way that might cause contamination of food or water for human consumption commits an offence.

The Radiation Protection Act Cap 243 Laws of Kenya provides that disposal of radioactive material requires a licence and the person responsible must appoint someone experienced in radiation health and safety matters to take proper care of the waste.

The Environmental Management and Coordination Act has also introduced provisions dealing with the management of waste.  Section 91 gives power to the standards and enforcements review committee to recommend criteria for classifying waste.  One of the classes of waste is solid waste.

With regard to the management of waste the Act requires that any person managing waste must not handle the waste or dispose of it in such a manner as to cause pollution to the environment or ill-health to any person.  Secondly any person transporting waste requires a valid licence to transport waste issued by the authority.  Thirdly the person transporting waste may only transport it to the waste disposal site established in accordance with the licence issued by the Authority and no person shall operate a waste disposal site or a plant without a licence issued by the authority.

In applying for the licence, the operator is required to undertake an environmental impact assessment of the proposed activity and in considering the application for a licence, the authority shall take into account whether there exists planning commission for the site.  There must be a planning commission in addition to an environmental impact assessment.  In Nairobi waste has been disposed off to a site known as Dandora which started off as a quarry but over the years it became the city council’s dump site.  It has now been proposed to close Dandora and move the landfill to a place known as Ruai but the council cannot do that as they have to pay some recently settled people.

MANAGEMENT OF HAZARDOUS CHEMICALS AND SUBSTANCES

There are two kinds of sources of pollution of the environment

1.                  Point sources of Pollution

2.                  Non-Point sources – referred to as diffuse sources of pollution

POINT SOURCES OF POLLUTION

Point sources of pollution are sources which are fixed and the pollution from which is predictable and known in advance.  The epitomy of point sources of pollution is waste drain.  The ways in which point sources of pollution are managed is through firstly the establishment of standards to be met by the pollutants which are to be discharged from those point sources.  In order to regulate that point source, the permit or licence is issued for that particular activity.  For example if one wishes to run a factory that will discharge pollutants through a pipe, then you apply for a permit and the permit will indicate what the factory must meet.  Discharge of effluence is a normal part of economic activity and it is handled by issuing permits and handling it so it falls to manageable standards.

NON POINT SOURCES OF POLLUTION

Non-point sources of pollution refer to sources of pollution whose origin is unpredictable and diffuse, they arise from unpredictable events or circumstances one does not know until the pollution occurs at which particular point the pollution will occur.  The example of a non-point source of pollution is an accident involving a petrol tanker.  Until the accident occurs one doesn’t know where it occurs.  Use of pesticides on crops is another example, when it rains the rains wash pesticides into the river and no one knows when it will happen.

The method of dealing with non-point source of pollution is through prescribing preventive measures.  These are measures designed to ensure that the activity is undertaken in such a way as to minimise or prevent altogether the occurrence of pollution or the extent of environmental damage arising from the pollution.

Hazardous chemicals and substances are chemicals and substances which contain characteristics which contain a danger to humans and the environment.  We have listed the characteristics under Section 91 of the Environmental Management and Coordination Act contains a list of characteristics that make substances hazardous, these are that the substances are corrosive, carcinogenic, flammable, toxic, persistent, explosive or radioactive.  Until that characteristic or the substance leads to environmental damage, the danger remains latent, latent means that it exists but has not yet manifested itself.  It is for these reasons that these substances represent diffuse sources of pollution that is because you can live with them but something may occur that makes environmental damage become a reality.

In Kenya a diverse range of laws deal with the management of hazardous chemicals and substances.  They include the Pest Control Products Act Cap 346 of the Laws of Kenya, the Pharmacy and Poisons Act Cap 244, Radiation Protection Act Cap 243 of the Laws of Kenya, the Petroleum Act Cap 116 Laws of Kenya, Fertilisers and Animals foods Act Cap 145, the Foods, Drugs and Chemicals Act Cap 254, the Environmental Management and Coordination Act of 1999 has introduced a parallel system for managing hazardous chemicals and substances.  All of these laws are product specific which means that each of them focuses on a certain category of products but the principles on which they are based are similar in every case.  The objective is preventive and it is an international principle that provides for Classification, Packaging and Labelling Products.   Classification, Packaging Labelling is a principle of management of hazardous chemicals and substances applied internationally which means that whether in Europe or Africa the principles are the same.  The extent to which they are respected however is different depending on where one is.

PEST CONTROL PRODUCTS ACT Cap 346

This Act regulates the import/export manufacture distribution and use of products which are used for the control of pests and of the organic function of plants and animals.  These are products used to control pest (pesticides) this is an Act that regulates the import/export and use of pesticides.  The Act establishes the Pest Control Products Board and makes it the function of the Board to register pest control products.  It requires that every person who desires to register a pest control product shall make an application to the Board.  The Board may refuse to register the product if its use would lead to unacceptable risk or harm to

1.                  Things on or in relation to which the pest control product is intended to be used; or

2.                  To public health, plants, animals or the environment.

CLASSIFICATION

The Act establishes 3 classes of pest control products

1.                  A restricted class – a class of products which present significant environmental risks and these are products which are intended for use in aquatic and forestry situations; a good example was the Cyprus Trees being destroyed by aphid, spraying all the Cyprus trees would pose a problem to the environment since it was so widespread.

2.                  Commercial Class – class with environmental effects which are limited to a specific region.

3.                  Domestic Class – this is a class of products for which

(i)                 No special precautions are required in use

(ii)               No equipment are required for inhalation hazard

(iii)             No irreversible effects from repeated exposure.

(iv)             Disposal of Containers can be safely done by placing it in the garbage bin; and

(v)               The package sizes are limited to amounts that can be safely used and stored by consumers.

The best examples are insecticides i.e. doom.

PACKAGING

The law requires that the package shall be sufficiently durable and be designed and manufactured to contain the product safely under practical conditions of storage, display and distribution.

LABELLING

The act of labelling requires that every pest control product which is sold or made available must have a label and the label must show the following 14 things.

1.                  Name of the product;

2.                  Information on the nature and degree of hazard inherent in it;

3.                  Statement directing the user to read the label;

4.                  The common name of the active ingredients;

5.                  Contents of the active ingredient;  active ingredient has both a common and scientific name so that the buyer may know;

6.                  Registration number of the product;

7.                  Net content;

8.                  Name and postal address of the registrant;

9.                  Directions for use of the product;

10.              Information on the hazards of handling storage display, distribution and disposal of the product including instructions on procedures to alleviate the hazard, the contamination and disposal of the product and the empty package;

11.              Information identifying any significant hazard to things on or in relation to which the product is intended to be used or to public health, plants, animals or the environment;

12.              First aid instructions;

13.              The toxicological information essential to the treatment of a person who is poisoned for example antidotes, symptoms of poisoning and the ingredient that may affect the treatment;

14.              A notice that it is an offence to use or store the product under unsafe conditions.

15.              Package should bear a cautionary symbol, the cautionary symbols are also standard there is a symbol for poison or danger, there is a symbol for corrosivity which is a test tube with a hand sticking inside and crossed out, symbol for in-flammability which is fire, a symbol for explosivity.

The Act also requires that the premises for manufacturing formulating, packaging selling or storing the product must be licensed.  The premises shall be of suitable design layout and construction to ensure the health of workers and to avoid contamination of the environment. The person who owns, operates or is in charge of the premises shall have adequate knowledge of the chemistry, toxicology, efficacy and general use of the product being dealt with and of the handling precautions of the products within the premises. 

PHARMACY & POISONS ACT

The Pharmacy & Poisons Act makes provisions for trade in drugs and poisons and also establishes the Pharmacy and Poisons Board.  The Board’s function is to prepare and submit to the Minister for his approval a list of substances to be treated as poisons for purposes of the Act.  The list shall consists of Part I poisons and Part II Poisons.

Part I poisons may only be sold by people who are authorised as sellers of poisons and these are people licensed to carry on the business of the Pharmacist and it might also be sold by licensed dealers and dealers in mining, agricultural and horticultural accessories.  Part I poisons are the more dangerous poisons.  Essentially in order to obtain Part I poisons ordinarily one needs a prescription.

Part II poisons might be sold by persons who are not necessarily pharmacist.  Section 30 sets up a poisons book in which sales are to be recorded.  The containers are to be labelled with the name of the poison.  The proportion of the poisonous ingredients, the sellers name and address and if the item is not sold but otherwise supplied, then the supplier’s name.

THE RADIATION PROTECTION ACT

This Act controls the import/export possession and use of radio active substances and irradiating apparatus (equipment which emit radio activity).  Basically radiation occurs because of the impact of ultra violet light. 

The Act provides that

(i)                 no one shall knowingly without a licence manufacture or otherwise produce

(ii)               sell or otherwise deal with,

(iii)             have in his possession for use,

(iv)             import or cause to be imported,

(v)               export or cause to be exported any radio active substance or irradiating apparatus.

 Application for a licence shall be made to the Radiation Protection Board which is established under the Act.  The Minister is required to prescribe precautions to be taken to prevent injury being caused by ionising radiation to the health of persons employed in places where radio active substances are manufactured, produced, treated, stored or used or where irradiating apparatus is used or where other persons are likely to be exposed to harmful radiation.  He is also required to prescribe methods of disposal for radio active waste products and the transport, storage and use of radio active material.  Finally to prescribe maximum working hours of persons working with radio active material.

THE POISONOUS SUBSTANCES ACT

The use of this Act is intended to protect persons against risk of poisoning by poisonous substance which arise from the use of poisonous substance from employment in places where poisonous substances are used, from the storage, transport, sale and disposal of poisonous substances.  The Act operates through regulations to be made by the Minister requiring measures to be taken to protect against the risk of poisoning.

THE FOOD DRUGS & CHEMICAL SUBSTANCES ACT

This Act makes it an offence to sell food, drugs, cosmetics or chemical substances that are adulterated or consist of any filthy, putrid, disgusting, decomposed or deceased substance or foreign matter. The disposal of chemical substances in a manner likely to cause contamination of food or water for human consumption or in a manner liable to be injurious or dangerous to health shall be an offence. 

THE FERTILISERS AND ANIMAL FOODSTUFFS ACT

This Act regulates the import, manufacture and sale of agricultural fertilisers.  The fertilisers is defined to mean any substance or mixture of substances which is intended or offered for improving or maintaining the growth of plants or the productivity of the soil.  The Act prohibits the import, manufacture, sale or mixing of fertilisers which have not been declared to be approved fertilisers.  Any person who knowingly sells the fertiliser containing deleterious ingredients shall be guilty of an offence and the Act provides for rules which prescribe the standards of composition, efficacy, fineness and purity of fertilizers and animal foodstuffs.

Secondly the Act prohibits certain substances and limits percentages or certain substances in fertilizers.  It requires that records and returns be kept and furnished to the Minister.  It requires proper storage of fertilizers and animal foodstuffs and imposes rules on the manner of packing branding, labelling, marking and sealing of containers of fertilisers. 

The Fertilisers and Animal Foodstuffs (Packing of approved Fertilizers) rules which have been made under the Act at present have no provision on health and safety and on measures to protect the environment.  What they focus on at the moment are measures dealing with packaging and labelling of the containers for approved fertilisers.

In Kenya a riparian owner may do as he pleases with the water that is found under or that is running past his/her land.  Discuss with respect to the common law and the Water Act 2002. 

18^th March 2005   6-7 pages

Petroleum Act Cap 116 provides for the regulation of import, transport and storage of petroleum.  The Act gives the Minister power to make rules and therefore the import/transport and storage of petroleum is largely governed by the rules which have been made under the Act.  There was an attempt in 2002 to introduce amendments into the Petroleum Act and this resulted in the Publication of a Petroleum Bill March 2002 which proposed changes with regard to the standards to be met by those who transport, store or otherwise deal in petroleum products.  The bill was not presented for debate and when parliament was prorogued in October of 2002 the Bill basically collapsed and has not been enacted.

The rules divide petroleum into class ‘A’ petroleum and class ‘B’ petroleum, Class A petroleum has a flashpoint of 73o Fahrenheit, if the petroleum is got a flashpoint of over 73 degrees Fahrenheit it is class A.  the flashpoint is the point at which that petroleum would catch fire.  Petroleum that has a flashpoint of 73o can catch fire very easily because it is very low.

A licence is necessary for the transport of petroleum by road and the licence authorises the transport of petroleum in the vehicles and within the area which is specified in the licence.  On the licence will be endorsed the times during which the petroleum may be transported,  the places at which the vehicles transporting the petroleum may be packed, the requirement to notify the licensing or other authority of the intended transport of petroleum if the licensing or other authority considers such notification necessary in the interest of safety.

Where petroleum is transported not in bulk, then the following conditions shall apply:-

(a)                Every vehicle which is carrying petroleum not in bulk shall be strongly constructed with sides and back of adequate height. 

(b)               The vehicle shall not carry other goods of an inflammable nature or passengers.

(c)                The vehicle shall not remain stationary for more than 30 minutes within a 100 yards of any building.

(d)               The vehicle shall exhibit in conspicuous character the words, motor spirit, kerosene or other similar words indicating the nature of the contents.

(e)                While engaged in the transport of petroleum the vehicle shall be constantly attended by at least one person.

(f)                The vehicle shall carry at least one fire extinguisher;

(g)               No petroleum shall be loaded into or discharged from the vehicle between the hours of sunset and sunrise or while the engine is still running.

(h)               No person shall smoke, strike a match or carry any naked light while in or near a vehicle that is carrying petroleum.

Rules with respect to the receptacle, these are the rules:-  The receptacle for conveying petroleum not in bulk shall be

(a)                strong metal receptacle which is so constructed, secured and closed as not to be liable to become defective, leaky or insecure in transit;

(b)               It shall be packed so as not to project beyond the sides and back of the vehicle;

(c)                If it contains Class ‘A’ petroleum it shall exhibit the words motor spirit, petrol or similar words indicating the nature of the contents;

(d)               If it contains class ‘A’ it shall have an airspace of not less than 2.5% of its capacity for expansion and construction.

Petroleum that is in bulk shall not be transported by road and in Kenya it is transported either by train or through the pipeline. With regard to storage of petroleum licences are necessary for the storage of petroleum and a person shall not within a municipality or township store class A petroleum in any building the sides or roofs of which is wholly or mainly constructed of inflammable material. Petroleum which is in bulk shall be kept in an installation or in an underground kerbside tank.

The Petroleum Bill was designed to change the requirement for underground storage of petroleum which is in bulk.  It was motivated by the fact that underground storage of petroleum in bulk requires significant capital outlay. It is expensive.  The consequence is that the Petroleum Industry in Kenya has been dominated by the major petroleum companies.  Entry into the retail of petroleum has been inhibited by the expense involved in providing for storage facilities and in an effort to liberalise the market it was thought that these should be changed.  There was a big dispute about this.  The big companies took the view that this would result in a compromise on safety, the small players argued that the standards were basically protecting the multinationals, in the end many players have entered the market some of whom have not made any investments in the market.  There are a number of companies who have come in the market and they are actually complying with the standards.

Petroleum not in bulk shall be kept in a storage shed. 

The application for the grant of a licence shall be accompanied by specifications and plans indicating

1.      The premises to be licensed giving particulars of the material and construction of each building;

2.      The position of the premises in relation to adjoining property including distances from neighbouring buildings.

3.      In the case of an installation the position and capacity of all tanks, storage sheds and filling stations.  in the case of an installation, the plan that you submit with the application should show the position of all buildings, structure or other works and the manner in which the petroleum is to be stored.

4.      All lighting arrangements including the position of electric cables, switches and fuse boxes, the drainage system, water connections, fire hydrants and fire fighting appliances.

5.      No alterations in the licensed premises or in the method of storing petroleum shall be made without the authority of the licensing officer.

A license to store petroleum within a municipality or a township shall not be granted unless the local authority has approved the site.  Further the license shall not be granted unless the plans and specifications have been approved by the Minister or his representative.

No person shall in or near the storage shed or installation do any act which is likely to cause fire.  An adequate supply of dry sand or earth shall be kept ready for use in an installation and in or near a storage shed for the purpose of extinguishing a fire.  Petroleum shall not be allowed to escape into any drain, sewer, harbour, river or watercourse.

Goods of an inflammable nature other than the licensed petroleum shall not be kept within the installation except as are necessary for the purpose of installation and they must be stored in the manner indicated in the specifications and plans attached to the licence.

With regards to kerbside tanks – where the tanks are entirely below the service of the ground, they shall be covered to a depth of 12” below the ground and where in the event of serious leakage there is a possibilities of water supplies, water courses or drainage systems being contaminated, the tank shall be completely surrounded by pladdled clay not less than 12” in thickness or by concrete of a thickness to be approved by the Minister.  The tanks ordinarily are made of steel and the steel has a certain lifespan so what has been happening is that after 50 years the tank begins to leak and that is the leakage that contaminates drinking water.  Most oil companies have the ability to test the tanks and this is not easy as they are buried under the ground.

The pit of a tank which is partially above the ground shall be capable of holding the volume of petroleum which is not less than 5% of the capacity of the tank.  Bunding may be resulted to, to reduce the tank yard area.  Bunding is a safety measure. 

Where the tank is completely above the ground and where in the event of a serious leakage there is the possibility of water supplies, water courses or drainage systems being contaminated, the flow of the enclosure shall be formed of concrete or other material approved by the Minister.  The enclosure itself shall be drained by a pipe fitted with a valve and the valve shall be actuated from the outside of the enclosure.  The valve shall always be kept closed except when actually in use.

No water shall be allowed to accumulate inside the enclosure and the tank itself shall be adequately protected from rust.  All the pumping mains and the pipes shall be furnished with the means of stopping the flow of petroleum from the tanks in the event of an injury to the pipelines.

Every storage shed shall be constructed entirely of non-inflammable material and the doorway and other openings of the storage shed shall be built up to a height of 6” above floor level or the floor sunk to a depth of 6” so that the petroleum cannot flow out of the building in case of its escape from its receptacles.

Finally the licensee shall take all reasonable and proper steps to ensure that the provisions of the rules and the conditions of the licence are known to and observed by all persons employed in the premises and secondly that unauthorised persons do not have access to the licensed premises.

PROVISIONS WITH REGARD TO THE MANAGEMENT OF HAZARDOUS CHEMICALS THAT ARE PROVIDED IN ENVIRONMENAL MANAGEMENT AND COORDINATION ACT

The EMCA has introduced what in effect is a parallel system for managing hazardous chemicals and hazardous waste.  Section 91 provides the characteristics of hazard.  The Act provides that hazardous waste and substances and chemicals shall not be imported into Kenya or exported from Kenya or transported through Kenya without a valid permit issued by the authority (NEMA).  Where the wastes are being exported from Kenya the written consent of the receiving country must also be obtained.  This is a requirement under the Basel Convention on the transboundary movement of hazardous waste, it is a 1989 convention and it imposes a system which is known as prior informed consent requirement.  The requirement is a requirement that the importing country must give its prior consent before the import is undertaken.  The catch is that the consent must be informed and for the consent to be informed the exporting country must disclose the nature of the substance being exported.  (Kenya has not ratified the Basel Convention only 10 African Countries ratified this convention this is because African countries took the view that they will never get informed consent from the developed world and what they give will not be free consent, and even if informed consent is given, it will be too technical they will not understand it.  Africans went ahead and signed the Bamako convention which says that hazardous material cannot be imported into Africa but they say it can be moved as between the African countries.

Under Section 93 the Act prohibits the discharge of hazardous substances or chemicals into any waters or other segments of the environment.  A person who is responsible for the discharge shall pay the cost of removing the substance or chemicals including the cost incurred by the government in restoring the environment which has been damaged.

Under Section 94 the Authority is required to establish standards relating to pesticides and other chemicals and those standards shall define the concentration of pesticide residues in raw agricultural commodities, processed foods and animal feeds.  Raw agricultural commodities include fresh foods and vegetables, eggs, raw milk, meat and other agricultural produce.  At the moment in Kenya these standards have not been included in any statutes.  It is important to establish standards and when the standards are established they shall be enforced by the Authority in respect of all produce.  The Authority requires to constantly collect data on pesticide residues.  At the moment there is no system for dealing with this problem.

Section 95 imposes a requirement for registration of pesticides and toxic substances and it says that any person who intends to manufacture, import or process a new pesticide or toxic must apply to the authority for registration.  At the moment this registration process to be administered by NEMA is the exact parallel of the Pest Product Control Act so there is double registration requirement.  In the end this should be resolved in favour of NEMA recognizing the registration that has been granted by the Pest Product Control Act.

Under the Act where pesticide is registered, it shall be registered for a period of 10 years.  It is an offence to distribute, sell, import or receive any unregistered pesticide or toxic substances.  A person who contravenes this section shall be liable to a fine of 1 million shillings or imprisonment for 2 years or both.  Additionally the authority is allowed to seize the product and destroy it.

Finally the Act imposes a requirement with regard to the disposal of motor oil.  Motor oil is another environmental problem.  The mechanics tend to empty motor oil everywhere without a care while motor oil is an extreme pollutant.  The Act provides that Motor Oil is to be treated as a hazardous substance and shall be disposed off through a licensed waste management facility.  Basically the operator or owner of the motor vehicle or vessel from which the discharge of oil or a mixture containing oil into the environment occurs shall

1.                  Immediately give notice to the authority;

2.                  Immediately begin cleaning up using the best available cleanup methods and comply with directions given by the authority;

Where the owner or operator fails to take any of those steps, the authority may seize the motor vehicle and dispose of it to meet the cost of clean-up.

BIOLOGICAL DIVERSITY

The management on diversity is currently provided for under a number of international frameworks.  The frameworks have not been adopted in every place in Kenya but they provide the basis for assessing the law as it pertains in Kenya.

Frameworks for the Management of Biological Diversity:

Internationally the management of diversity has a history dating back to the 70s and that history indicates that the management of biological diversity on the whole has been sectoral in nature.  It has focussed on managing bio-diversity through the regulation of specific aspects of biological diversity.  An early convention is the Convention on International Trade in Endangered Species known as CITES.  CITES was adopted in 1974 in Washington DC.  It focuses on regulating cross-border trade on species which are in danger of extinction.  The degree of threat of extinction determines the extent of regulation required.  The convention therefore establishes 3 appendices

Appendix 1 – this is a list of plant and animals that are in imminent danger of extinction.  With regard to plants and animals that are listed in Appendix 1, International Trade is absolutely prohibited.  For Kenya this particular convention is significant because the African Elephant and the Black Rhino have been listed on Appendix 1.  They are listed on Appendix 1 because of the threat of extinction that they have faced primarily in Kenya.  With regard to the African Elephant what is traded internationally is the task and with regard to the Black Rhino what is traded internationally is the horn in both cases the animal is killed either for its task or its horn.  The banning of international trade by listing of these animals is implemented in Kenya by a prohibition on the hunting of either of these animals.

Appendix 2 -   this is a list of items which are not in imminent danger of extinction but which are facing a threat.  Items listed here can be traded internationally if there is consent by the exporting country and by the importing country.  Therefore countries are required to have a licensing system to facilitate international trade.  If one turns up at an Airport with item under Appendix 2 likes lets say a crocodile skin, you are not immediately locked up but they will demand a licence.  With consent of either

Appendix 3- These items are not in danger and may be traded with the permission of the exporting country alone.  The mechanism of CITES is to protect Biological Diversity through regulating international trade.

The second Convention is the Ramsar Convention.  This is a 1971 Convention, Ramsar is a city in Iran.  It is a convention on Wetlands of International importance as Waterfowl Habitat.  This is an important convention for the protection of biological diversity because it establishes another principle for protection of biological diversity.  It requires that countries should designate at least one wetland which internationally is important as habitat for waterfowl.  Waterfowl move from one wetland to another (migrate) so in one season you find them in a wetland in warm climate and in the cold season you find them in a wetland in cold climate.  The principle of protection of biodiversity in this case is the protection of the Habitat of that biodiversity.  Kenya has so far designated two wetlands Lake Nakuru and Lake Naivasha and is in the process of designating Lake Bogoria.  All of these wetlands are designated because of the Flamingo. 

The third convention is the CMS – Convention on Migratory Species which a 1978 Bonn Convention.  This convention also establishes a principle that countries which are known as range states must establish management frameworks and standards which are similar on either side of the border.  Range States are countries through which, to which or from which migratory species will migrate.  For example the Wilderbeest the Range States are Kenya and Tanzania.  Range states must have comparable standards.

There are other many conventions but our focus is on National Law. 

All these instruments regulate biological diversity through one or other aspect of biological diversity.  It is quite clear that single issue regulation for biological diversity was not appropriate. In 1992 the Convention on Biological Diversity was adopted in Rio De Janeiro in Brazil.  It establishes a comprehensive framework for the management of Biological Diversity.

Firstly the convention provides a definition of biological diversity.  Basically it defines biological diversity as the variability among living organisms and the ecological complexes of which they are a part.  This includes diversity within species, between species and of eco-systems.  The focus is on variability.  Biological Diversity is the difference between living organisms and among different organisms.  In effect biological diversity is a concept, it is an idea that living organisms are different.  They are different as species, there is a difference within the species and among the species in different ecologies.  In ecological complexes, there is different kinds of habitat that exist in the earth i.e. water habitats, terrestrial.  These Habitats have differences and all of that or the idea of that difference is what comprises biological diversity.  This convention is designed to provide systems for managing that diversity.  Biological Diversity is basically the difference in life forms and in the ecology and the convention sets out to provide mechanisms for managing that difference.

The convention has one fundamental philosophical premise that philosophical premise is that biological diversity is necessary in and of itself.  It is inherently desirable.  This means that one does not have to find justification for preserving diversity in the benefits of diversity to humans.  The convention takes the position that difference must be maintained and therefore the loss of diversity is considered negative environmental management, the conservation of diversity is considered positive environmental management.  According to this convention, if the world loses the black rhino for example, it will be a worse off place for the loss.  Every kind of diversity deserves to continue to live.  The point is that one does not have to argue that humans will be worse of if they lose the Rhino or the Mosquito but the Rhino and the Mosquito must exist period.  Diversity must exist.

The convention therefore puts in place a number of requirements for state parties to comply with

1.                  State Parties must identify the biological diversity within their jurisdiction and inventorise it;

2.                  State parties must put into place measures to identify the threats to biological diversity;

3.                  Biological Diversity must be managed in situ, this means managing biological diversity in its natural place of origin.  the management of biological diversity in situ requires the establishment of systems and frameworks which allow in situ management e.g. is the system of protected areas which are known to us as national parks and game reserves.  In situ management is required by all where there is diversity of biological diversity. With respect to biological diversity which are in danger of extinction, states are required to provide for management ex situ.  Management ex situ is management off site of species and it is within these off site arrangements, representative samples of biological diversity must be maintained.  This means that assuming one keeps snakes in a snake park, then one must keep the different kinds of snakes that exists in Kenya, the idea being that there must be diversity.  The Kew Garden which is a botanical garden in London is a representative of every plant that has ever been identified, here you can see the diversity of the plant kingdom.

4.                  Developments of technology which have an impact on biological diversity – the principle established in the convention and the protocol which is the Cartagena Protocol was developed on CBD and this protocol introduces the requirement that with respect to technological developments which have an impact on biological diversity, countries must apply the principle of caution called the precautionary principle.  This principle is the principle that in the absence of scientific evidence that the proposed development will not have an adverse biological impact on the biological diversity it is necessary to proceed with caution.  This principle is applied particularly to developments with respect to genetically modified Organisms (GMOs).  Genetic modification is a technique which changes the genetic makeup of an organism in order to influence the characteristics of that organism.  The resulting organism is the one called Genetically Modified Organism.  Those that support this technique argue that Genetic Modification has significant benefits.

5.                  The Convention takes the position that biological diversity is common heritage of human kind.  Common heritage means that all of humankind has an interest in the existence of biological diversity.  The international community has a shared responsibility for the shared biodiversity.  The Nation State in which that biological diversity is to be found has the responsibility to provide access to the biological diversity to others.  That access will be on terms to be agreed but the responsibility is to provide access.  In turn the international community has a shared responsibility for the management of biodiversity.  The way in which the access is provided has been quite controversial.  Biopiracy is the practice of entities seeking biological resources from other countries and converting those resources to commercial benefits to the detriment of the local people in the place where the resources were found.  Biopiracy should be managed by determining terms of access.  (A case of Americans using phytoplankton from Lake Bogoria to manufacture detergent).  Countries are required to provide financial and technical resources to enable source countries manage their biological diversity.  The regime for managing biological diversity today is premised on the philosophy that biological diversity must be preserved for its own sake preferably it must be preserved on site through the protection of habitat failing which it must be preserved off-site and that it is a shared responsibility of all countries to ensure the preservation of bio diversity.

MANAGEMENT OF BIOLOGICAL DIVERSITY

Law Applicable in Kenya for managing Biological Diversity:

The management philosophy that is encapsulated in the Kenyan legal system is primarily that of protected area management approach.  The history of the protected area management approach dates back to 1933 when the second international conference on wildlife conservation was held in London.  This conference resulted in a convention known as the Convention Relative to the Preservation of Flora and Fauna in their natural state.  This was signed in London in 1933.  This convention enjoined governments to establish National Parks or National Reserves.  Within these areas all settlements would be controlled to ensure as little disturbance as possible to the natural fauna and flora.  The text of this Convention is found in a UNEP Publication titled Selected Multi-lateral Treaties in the field of the Environment at Page 57.  It is edited by Alexandra Kiss.  Within that particular Convention is the principle of setting up and maintaining National Parks and other faunal and floral sanctuaries.

The word ‘sanctuaries’ denotes an area in which an object receives protection from external threats.  The threats in this case were seen to be threats of destruction arising from human settlements.  The philosophy is that flora and fauna need to be protected from human settlements and the way of providing that protection is by creating areas within which human activity is prohibited or restricted.  That philosophy has come under serious questioning since the adoption of the principle of sustainable development in the 1980s.

Under the principle of sustainable development, it is believed that the management of flora and fauna arises from the interaction between all components of the eco-systems.  Human activity is a legitimate part of any eco-system.  Eco-systems have the inherent ability to absorb the impact of human interaction.  It is therefore not necessary or advisable to exclude human activity from eco-systems.  This philosophy is known as a single use philosophy where animals are left in the parks or reserves and humans are driven out.  This is the philosophy adopted by the Kenyan government.  One of the key signatories to the London Convention was the United Kingdom.  Obligation of states under that convention was to establish and maintain National parks and other sanctuaries.;  in 1937 UK as the colonial power in  Kenya commenced on the development of legislation to protect game birds and game animals in the colony and in 1945 the National Parks Ordinance was passed.  The Ordinance set the basis for the establishment of National parks, National Reserves and Bird Sanctuaries.

In 1963 the National Parks Ordinance became known as the National Parks Act.  It was amended in 1976 and named the Conservation of Wildlife and Management Act Cap 376.  At that time the administrative body responsible for Wildlife administration in Kenya was the department of wildlife management which was then a department of Ministry of Tourism.  Between 1976 and 1999 Kenya witnessed catastrophic decline in the Elephant population and in the population of the Black Rhino.  With regard to the elephants numbers reduced from an estimated half a million to just about 60,000 with regard to the Black Rhino it was reduced to near extinction.

Internally the failure to manage the wildlife was attributed to the inefficiency of the Wildlife Management department.  However it is widely known that there was widespread poaching and in 1999 President Moi burnt a heap of elephants tusks as a symbol of commitment to protect the elephant.  The change that was made was to introduce a 1989 to the Wildlife Conservation and Management Act which created a parastatal known as Kenya Wildlife Service whose mandate was to manage wildlife in place of the Wildlife department.  Due to the serious poaching problem the Kenya Wildlife Service was established as a paramilitary organization because it was thought that a paramilitary force was needed to counteract poachers.  This army is supposed to protect wildlife.  Flora and fauna co-exist in a multi-use situation.

In 2004 a Private Members Bill designed to amend the Wildlife Conservation Management Act was introduced basically to allow the hunting of wild animals.  The private members bill was passed and it was then met with serious criticisms from those who believed that to hunt was wrong the President refused to give it assent.

Following on the enactment of the National Parks Ordinance, in 1948 the first national Park in Kenya was established now known as Nairobi National Park by 2000 there were 22 National Parks and reserves in Kenya comprising 8% of the area of Kenya.  It is said however that although 8% of the area of Kenya is Gazetted as National Parks, Wild animals spend only 20% inside that 8% and the reason is obvious that wild animals move back and forth.  The human wildlife crisis arises on account that animals spend 80% of their time outside allocated areas.  Pastrolists  and non agricultural activities tend to be compatible with wildlife use, while agricultural activities tend to be incompatible.

The Wildlife Conservation and Management Act gives the Minister power to declare an area to be a National Park.  He may also declare that a National Park or National Reserve shall cease to be a National Park or a National Reserve.  Where he declares that a National Park or National Reserve shall cease to be so, Parliament must approve.  The notice must be gazetted for 60 days and the Order laid before the National Assembly for its approval.

A National Park is under the management of Kenya Wildlife Service and the reserve is under the management of local authorities. In a few cases such as the Masai Mara reserves are managed by Kenya Wildlife Service as an agent of the Local Authority. In the parks and ,  it is prohibited to do the following:

1.                  To be in possession of a weapon, explosive, trap or poison;

2.                  To enter or reside;

3.                  To cut or set fire to vegetation and to collect honey or bees wax,

4.                  It is also prohibited to be in possession of any animal trophy whether in or outside of the National Park;

5.                  to introduce domestic animals or vegetation into a National Park

6.                  to disturb or stampede animals; or

7.                  to clear cultivate or break up the ground for cultivation and

8.                  to catch or attempt to catch fish.

Hunting:

It is an offence to hunt a protected animal or a game bird without a licence.  Licences will authorise hunting in specific areas and during specific periods and a licence may only be issued to a professional hunter or a person who is accompanied by a professional hunter.

Game Licensing:

A game licence shall cease to be valid as soon as all the animals whose hunting it authorised have been killed, wounded or captured.  A licence cannot authorise hunting on private land and any private land owner who wants to provide facilities for hunting on his/her land must register that land with the director in which case the licence will show which private land it applies to. It is an offence to cause unnecessary or undue suffering to animals in the cause of hunting.

Close Season:

The Act provides for the Minister to declare close seasons.  These are seasons during which hunting of specified birds or animals is unlawful.  Currently we are operating under close season.

Animal Trophies:

With regard to trophies, it is an offence to import or export ivory or Rhinoceros horn without permission of the Minister and therefore a person who kills or captures an animal under the Authority of Game licence must within 30 days produce the animal or trophy to a warder who shall issue a certificate of ownership.

It is also an offence to export life protected animals or birds without the authority of the Minister.

No person shall carry on the business of a dealer unless he holds a valid dealer’s licence.

With regards to animals being kept in captivity a permit is required to keep animals in captivity.   The birds and animals which are kept in captivity shall be made available to a warder at all reasonable times and if the warder believes that they are not being adequately cared for and they are not kept in conditions which are reasonably humane, he may report to the director who may cancel the permit.

With regard to domestic animals, the applicable law is the Prevention of Cruelty to Animals Act which basically requires that animals be treated humanely.

PLANTS

The management of Plants focuses around 2 approaches

Forests are managed within protected areas and so the Forest Act Cap 385 allows the Minister to declare an area to be a forest and to declare an area to cease to be a forest.  An area which is declared a forest is protected in exactly the same way as an area which is a wildlife protected area.  Presently Kenya has about 1.5% of its land area as gazetted forest.  The recommended international requirement is 10% of the land area to be under forest.  Leading the park is Madagascar which has about 13% of its land area under forest.  In law a gazetted forest is an area which is protected because of the gazettement.  It is not an area which necessarily has tree cover.  So a forest in Kenya is a legal Concept.  In reality a lot of forest areas have no trees.  The weakness we have in Kenya is that there is no legal provision protecting individual trees, there is a provision protecting forests. 

The protection of individual trees can only be undertaken either by local authorities using their planning powers or it can be undertaken by chiefs under the Chiefs Act. The Chief Act allows the chief to regulate activities which can degrade the soil.  In 1996 in one of his then famous roadside declarations President Moi issued a directive prohibiting the cutting of indigenous trees. Under that directive the provincial administration has enforced a rule that it is unlawful in Kenya to cut indigenous trees and also that where you cut non-indigenous trees you are required to plant another one.  Whether or not these directives have legal force depends on whether in ones view the President has extra legal powers to make law.

Therefore there is no legal requirement that a farmer must protect individual tree species on his or her land. The protection of forests therefore occurs within gazetted forests but not outside of it.

The second approach to the protection of plant species arises from the protection of crops which are seen as of value because they are agricultural. 

The Agriculture Cap 118 Act aims to promote land husbandry.  It requires that a landowner does not allow the land to degrade to the detriment of agriculture and it requires landowner to apply good agricultural practices on the land.  

The Land Control Act establishes a system for regulating dealings in Agricultural lands.  Dealings include transfer or subdivision of agricultural land.  Such dealings must obtain the consent of the land control board.  The mandate of the Land Control Board is to ensure that dealings do not undermine good land husbandry.  The idea is to promote agriculture

The Plant Protection Act Cap 324 aims to prevent the introduction and spread of disease which is destructive to plants.  Plants are interpreted to mean agricultural plants.  The Act requires the destruction of pests and prohibits the import of articles which are likely to spread pests or disease to plants. 

The Suppression of Noxious Weeds Act Cap 325 gives power to the Minister to declare Plant to be a noxious weed.  Following the declaration the person responsible for the land must clear the weed.  Our legislation is premised on the promotion of agriculture and any plant not contributing to agriculture is to be weeded out.

The Seeds and Plants Varieties Act Cap 326 provides for the establishment of an index of names of plant varieties and it also gives power to impose restrictions on the introduction of new varieties.  It controls the import of seeds and it authorises measures to prevent injurious cross-pollination and lastly it provides for the grant of proprietary rights to persons who are breeding or discovering new varieties.  This is a system of intellectual property rights which is controlling plants.  The people who use this kind of mechanism are the professional breeders.  With regard to the management of plants we have the regime out of forest designed to promote agriculture through the suppression of non agricultural plants.

ATMOSPHERIC POLLUTION CONTROL

ENFORCEMENT OF ENVIRONMENTAL LAW USING THE CRIMINAL PROCESS

Enforcement is defined as the process of ensuring compliance with requirements under Environmental Law and the criminal process presents a second process of ensuring compliance.

The use of criminal legal process has lagged behind the use of the civil legal process as a mechanism for the enforcement of environmental law.  Consequently it is on the whole quite less developed as an enforcement mechanism and its relative unattractiveness arises from difficulties which constrain its utility.  These difficulties can be categorised into three

1.                  Burden of Proof;

2.                  Culpability;

3.                  Enforceability.

BURDEN OF PROOF

Under the common law, the commission of a criminal offence requires two elements, the guilty act known as the ‘Actus Reus’ and the guilty mind known as the Mens Rea  both actus reus and mens rea are standard criminal law requirements.  It is the burden of the prosecution to prove both actus reus and mens rea in order for the offence to have been proved.  In the field of environmental law the prove of both actus reus and mens rea is quite difficult for the reason that environmental offences on the whole tend to be offences of omission rather than offences of commission.

Secondly even where an actus reus can be identified, it is quite often the case that there is no mens rea.  Typically environmental offences arise because a person or an entity has failed to take deliberate steps to prevent the occurrence of the offence.  Rarely do they arise because the person or an entity has taken active steps to cause the offence.  To use the example of pollution it is often the case that pollution occurs because there has been a failure to put in place measures to prevent pollution occurring.  It is less often that pollution will occur because of deliberate action to cause pollution.

Thirdly even where you identify the guilty act it is rarely the case that the guilty act has arisen out of an intention to cause pollution.  It is more often the case that the intention of the polluter was to pursue a different quite legitimate objective.  For this reason typically the prosecution will fail in discharging the burden of proof.

In order to facilitate the use of the criminal law as an enforcement mechanism, statute has intervened to remove the requirements of mens rea. Consequently under statutory criminal law, environmental offences have been converted to offences of strict liability.  They have not however been converted to offences of absolute liability.  The conversion of environmental offences to offences of strict liability has obviated the need to prove intent and made it easier to discharge the burden of proof.  (strict liability is an offence in which the offence is complete only with the guilty act, there is no requirement for mens rea.  There is a requirement that the prosecution must prove the existence of a guilty act.  They are not required to prove intention.  Absolute liability is an offence requiring neither a guilty act nor a guilty mind and there are a few offences of absolute liability, being in charge of a motor vehicle while drunk is an offence of absolute liability.  There is no requirement to show that you were driving while drink.  There is no requirement to show anything except that you were in charge of the vehicle drunk.

An offence of strict liability is best illustrated by the case of Environment Agency v Empress Car Co. (Abertillery).  The appellant maintained a diesel tank in a yard which was drained directly into a river.  The tank was surrounded by a bund to contain spillage but the appellant had overridden that protection by fixing an extension pipe to the outlet of the tank so as to connect it to a drum standing outside the bund.  The outlet from the tank had a tap and the tap had no lock.  One night an unknown person opened the tap and the contents of the tank run into the drum overflowed into the yard passed down the drain into the river.  The appellant was charged with the offence of polluting water, he was convicted and he appealed.  The Appellant’s appeal was based on the fact that the pollution had occurred from the acts of the third party who was not known to the appellant.  The court held that the liability was strict and did not require the proof of the intention to cause pollution or of negligence.  The fact that the deliberate act of a third party had caused the pollution did not mean that the defendant was not guilty.  By maintaining the tank and the drum in the place where they were and by not taking steps to prevent third parties from  opening the tap the appellant had created the situation in which the pollution could occur.  The court held further that foreseeability is not relevant in deciding whether the appellant had caused the pollution. The distinction is between acts which although not foreseeable in this particular case are a normal and familiar fact of life and acts and events which are abnormal and extraordinary. 

CULPABILITY

The second issue has to do with culpability which means guilt.  We will focus on moral culpability.  An offence which is considered to be morally objectionable tends to attract public condemnation.  The consequence of public condemnation is that the enforcement authorities will place a lot of effort in prosecuting the offence and the courts will hand down severe penalties.  Environmental offences typically do not attract public condemnation because the public do not view them as morally blameworthy.  The public thinks of them as technical offences because the public does not view them as morally blameworthy little effort is placed on the prosecution and light penalties are handed down.  Environmental offences are not considered to be blameworthy because they tend to arise in the context of day to day productive and consumptive activities.  When you convert an offence into an offence of strict liability, it removes the moral element and the public begin to view the offence as a technical offence.

ENFORCEABILITY

Typically the punishment for an offence is fines and imprisonment.  Fines tend to be awarded for the less serious offences, imprisonment is awarded for the more serious offences.  Imprisonment is only possible where the offender is a natural person.  The major environmental offences tend to be committed by legal persons who cannot be subject to imprisonment.  The consequence is that the penalty available for environmental offences against legal persons is the lighter penalty of a fine.

In an effort to overcome this shortcoming, statutes have extended criminal liability to the chief officers of legal persons.  Section 145 of the Environmental Management and Coordination Act states as follows:  when an offence is committed by a body corporate, the body corporate and every director or officer of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence to prevent the commission of the offence shall be guilty of an offence.  This means that if you are the MD of Kenya Railways, ordinarily if there is some criminal prosecution the company’s lawyer will defend and a fine will be paid but Section 145 is saying that every director or officer who had knowledge but did not exercise due diligence will be liable and it becomes possible under this section to imprison the chief officers of corporations.  The section also provides that an employer or principal shall be liable for offences committed by an employee or an agent unless the employer or principal proves that the offence was committed against his express directions.

ATMOSPHERIC POLLLUTION CONTROL

Atmospheric pollution is caused by gaseous emissions generated by industry or transport through the burning of fossil fuels and the use of chemicals.  Emissions from industry include oxides of nitrogen, carbon monoxide, carbon dioxide, oxides of sulphur and burnt hydro carbon and particulate matter (scientific term for dust).   Gaseous emissions lead to the depletion of the ozone layer and to climate change. 

With regard to the ozone layer, this is the layer above the earth that protects the earth from the sun’s ultra violet rays.  The earth is protected from them by the ozone layer which is a layer of gases.  Chemicals produced from the industries damage the ozone layer by dissolving the gases that make up the ozone layer.  Ozone depleting substances are Chlorofluorocarbons (CFCs) Methyl Bromide and Halons.  Where they dissolve the gases that make up the ozone layer, this makes the ultra violet rays reach the earth.  There is a convention of ozone depleting substances which has the objective to reduce the production of ozone depleting substances.  The Environmental Management and Coordination Act requires that regulations be introduced to prevent the production and use of ozone depleting substances.  Basically those regulations have not been introduced but through the UNEP programs which help poor nations adapt safer substances.  Carbon monoxide is produced from the incomplete burning of fuels particularly in vehicles.  Charcoal and wood are also polluters that produce carbon monoxide.  At high concentration carbon monoxide can damage the nervous system and cause death.  On a large scale emission of carbon dioxide and carbon monoxide lead to a warming of the atmosphere and this causes changes in the climate.  The UN has the convention on climate change which is a 1992 convention on climate change and this has a protocol which is the Kyoto Protocol.  Basically the objective of the convention of climatic change is to reduce emission of green-houses gasses which cause the warming of the atmosphere, these are carbon dioxide and carbon monoxide.

The other pollutant is hydrocarbons.  These are gases made of hydrogen and carbon emitted from the burning of petroleum, diesel and coal methane is a hydrocarbon which along with carbon dioxide are considered to be greenhouse gases.  The reason that it is called greenhouse it is because the effect is to increase temperatures so that one feels as if they are in a greenhouse.

Hydrocarbons may produce compounds which are known as volatile organic compounds (VOC) these are compounds which are basically capable of burning at very low temperatures.  When VOCs are mixed with other chemicals they produce smog.  Smog is a mixture of volatile organic compounds, other chemicals and particulate matter and smog has the appearance of fog.  In Nairobi there is a lot of smog.  The origin of comprehensive air pollution in the UK was smog in 1952 and as a result about 4000 people died from disease of asthma.  They started on serious exercises of air pollution control.  California has also a smog problem and Mexico City has also serious smoke problems and Nairobi is developing serious smog problem.

The kinds of chemicals which combine with VOCs and sunshine to bring smog are chemicals such as Benzene and Ethylene.  Particulate matter has two sources, biogenic sources and anthropogenic sources.  Biogenic particulate matters include dust from wind, forest fires and volcanic eruptions.  Anthropogenic sources include emissions from industry and motor vehicles.

With regard to the control of smog particularly the environmental management and coordination Act has provided for the declaration of controlled areas under Section 79.  A controlled area is an area in which the Minister has prescribed air-emission standards for that particular area. 

Another problem arising from the transport sector is the emission of lead, this is a metal which is added to fuel to enhance performance of the engine.  Lead enters the body through the respiratory tract and the gastro-intestinal system, i.e. it is swallowed or through respiration.  It is stored in bones, teeth and soft tissue.  Accumulated lead leads to neurological disorders.  It damages the nervous system.  In young children lead damages the brain.

The other air pollutant is chlorine and chlorine is used particularly in the pulp and paper industries i.e. Webuye paper mills.  The chlorine gas is highly poisonous and it dissolves metal.  It also has a pungent smell.  Sulphur dioxide is produced from the burning of petrol.  It contributes to the phenomenal known as Acid Rain Acid Rain is experienced in heavily industrialised countries.

In order to deal with air pollution, the requirement is first and foremost to develop an inventory of sources of air pollution.  Under the Environmental Management and Coordination Act owners and operators of industrial undertakings must obtain a licence for the substances which are emitted from the undertaking. In issuing the licence the authority in this case NEMA will take into account air-quality standards which have been developed by the standards committee.

With regard to vehicles under Section 82 no owner or operator of a motor vehicle shall operate it in such a manner as to cause air-pollution in contravention of established emission standards.  The Authority shall maintain a register of all emission licences issued under the Act and that register shall be public document.  The problem in Kenya is that we don’t have established emission standards.

With regard to smell Section 107 requires NEMA to establish minimum standards for control of pollution of environment by noxious smells and requires procedures for the measurement and determination of noxious smells which is necessary and finally guidelines for the abatement of noxious smells.