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 2nd
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 20th 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 21st 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.
- where the interference with the public right also interferes with some private right of the person concerned
- 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 5th 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 1st 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 2nd 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 13th June 2003
and any project commenced after 13th 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 31st
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.
18th
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.
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