ENVIRONMENTAL PROTECTION THROUGH
Transcription
ENVIRONMENTAL PROTECTION THROUGH
A critique of Environmental Management and Coordination Act (EMCA) 1999 SUMMARY ENVIRONMENTAL PROTECTION THROUGH PARTICIPATION AND INVOLVEMENT I t is not enough to think of development as a means through which human beings life can be improved but as a means thorough which life shall be preserved, conserved and promoted. There is a growing concern both in Kenya and at the global level that many forms of development initiatives cause damage to the environment. This then leads to natural calamities, destruction of livelihoods and the dwindling of resources. This has been as a result of lack of awareness and inadequate information amongst the public on the consequences of their interaction with nature. Additionally there is limited local communities’ involvement in participatory planning and management of the environment and natural resources. Although EMCA provides for a relatively good framework for environmental management it is important to note that there is inadequate capacity among lead agencies, civil society and the private sector among others to enforce EMCA. A general lack of political will to implement EMCA has also made it difficult for its effective enforcement. SUMMARY OF RECOMMENDATIONS • Local communities should be given an opportunity to participate in environmental and natural resource management by providing opportunities through which they will select their representatives with no political interference • Mechanisms on benefit sharing need to be stated clearly within the Act to ensure transparency and equity • NEMA as the organ charged with the running of all the matters that concern the environment, it is essential for it to be accountable and transparent, not only to the Government but also to the general public T he Environment Management and for managing the environment. The principles of Coordination Act of 1999 (EMCA1999) sustainable development that underpin EMCA was enacted to provide an appropriate include; Public participation in the development of legal and institutional framework for the management policies, plans and processes for the management of of the environment management in Kenya. EMCA does not repeal the sectoral legislation but seeks to coordinate the activities of the various institutions the environment; Integration of cultural and social principles traditionally applied by communities in Kenya for management of the environment and tasked to regulate the various sectors. It establishes natural resources; International cooperation in the the right of every person in Kenya to a clean and management of shared environmental resources and healthy environment and as well as a duty to safeguard Inter-generational and intra-generational equity. and enhance the environment. It also legalizes the principle of sustainable development as the basis Legislation and Institutional framework Under EMCA T he Kenyan Constitution recognizes projects. Statutory committees provided for in the the environment as the foundation Act include the Standards and Enforcement Review for socio-economic advancement and Committee, the National Environment Action that every citizen is entitled to a clean and healthy Plan Committee and the Environmental Impact environment. This is also provided for by EMCA. Assessment–Technical Advisory Committee, and the Citizens are also under obligation to enhance and County Environmental Committees. The National safeguard a quality environment. Action Planning framework provides for decentralized EMCA 1999 provides for the overall protection and planning where, County Environmental Committees conservation of the environment which is achieved and National Environment Action Plan Committees regulations, are to prepare environment action plans every five procedures and guidelines. EMCA does not replace years. The environmental action planning committee through enforcement of different the existing environmental laws. It aims at providing recommends legislative measures for preventing, an appropriate legal and institutional framework controlling or mitigating adverse environmental for the management of the environment and the impacts. It recommends methods for building national awareness through environmental education sustainable use of natural resources. campaigns. The Act establishes the National Environmental The National Environment Trust Fund Management Authority (NEMA) which is charged with the duty of ensuring coordination of the supports research to further the requirements of implementation of the government policy for the environmental management, capacity building, sound management of the environment environmental awards, environmental publications as well as scholarships and grants. In addition, Under EMCA, institutional structures are the objective of the Restoration Fund is to act as provided for, including the National Environment supplementary insurance for the mitigation of Council (NEC), National Environment Management environmental degradation. It will be used in cases Authority (NEMA), National Environment Trust Fund, where the perpetrator of the damage is not identifiable, National Environment Restoration Fund and a number or under exceptional circumstances that force the of national statutory and decentralized environment Authority to intervene. committees at the provincial and district levels that are directly linked to NEMA at the national level. Finally, EMCA provides policy instruments NEC is charged with policy formulation, promoting for the protection and conservation of rivers, lakes, partnerships for environmental management, setting wetlands, areas of cultural significance, hilltops, national goals and objectives as well as determining hillsides, mountain areas and forests. The policy environmental policies and priorities. NEMA on the instruments include environmental impact assessment, other hand, is the government’s principal instrument economic instruments such as fiscal incentives, for implementation of all environmental policies. It environmental quality standards, restoration orders, promotes integration of environmental considerations conservation orders and environmental easements. into development policies, plans, programmes and Under EMCA, developers and resource users are required to undertake environmental audits or impact assessments. This provision supports the Physical affected by environmental degradation seem to be The local community and the people most Planning Act, which requires developers to advertise well represented. However, the Cabinet Secretary and and seek approval of change of use of a particular land the County Governor appoints their representatives unit. Through restoration, conservation or easements, at the national and county level respectively. These the authority can effectively demand restoration, institutions are open to new partnerships and can be conservation or restrict the right, interest and use tapped for the implementation of new approaches of a burdened land with compensation as deemed in environmental and natural resource management appropriate. Most of the other resource based policies by communities if the appointments are inclusive, and legislation have been formulated based on the democratic, open and fair. environmental framework law. EMCA’s promotion of community participation in environmental and natural resource management A Though the appointments to the Trust Fund are likely to be politicized, the criteria of selection is on the right track as only postgraduate degree holders from recognized universities are recommended. s stated above, the Act provides for It is evident that the Act also promotes social the establishment of institutions inclusion equity and democratic environmental from the County to the national governance which is aimed at a steady flow of products level that are responsible for the implementation of and services, integrating the poor into societal the Act. It accords every Kenyan the legal right to take processes aimed at diversifying their livelihood environmental cases to court and also to participate in the development of plans and management strategies for managing the environment. The Act also provides for economic incentives and disincentives, to encourage sound environmental management among various stakeholders. This in turn gives communities a chance to participate in the sound management of the environment. strategies and eventually alleviating poverty. Constraints to Community participation in environment and Natural resource management under EMCA A lthough the EMCA provides for community participation in environment and natural The processes used in the formation and resource management, the community’s role in operation of the various committees are not only decision making regarding natural resource use and synergistic, but also participatory, providing a management is very weak. suitable entry point for the integration of community participation in environmental management. There are no clear mechanisms for Furthermore, memberships to these committees transparency by the County Governments in benefit include representatives from interest groups like sharing especially in supporting their priority pastoralists, farmers, Civil Society organizations and concerns. In Part III section 4 of the Act that deals the businesses community with Administration provides for the members of NEC. It provides that that the representation shall consist of the Cabinet Secretary, Principal Secretaries with the running of all the matters that concern the as specified in the first schedule, two representatives environment, it is essential for it to be accountable of public universities appointed by the Minister, two and transparent, not only to the Government but also representatives of specialized research institutions, to the general public. Although the Act specifies the three representatives of business community, two qualification of the Board Members, the appointments representatives of NGOs active in the environmental still remain political without any censuring from either field, Director General, and such other members as the public or the Parliament. Consequently, members may from time to time be co-opted by the Cabinet of the Board are likely to come from the affluent that Secretary. Under the Act, the Cabinet Secretary is are likely to have no experience in environmental bestowed with exclusive powers to appoint, hence, matters. There is a need for specific criteria to be put he/she may err as he/she is likely to do this without in place for the appointment of representatives to consultations. these bodies. This would give communities a chance Conclusion and recommendation A critique of the to participate meaningfully in environmental and natural resource management. above provision is that there is no The Act further provides for the establishment of Public Complaints Committee to investigate any clear criterion provided for allegations or complaints against any person or the appointment of the representatives except for against the authority in relation to the condition of the NGO’s which states that it shall be made from the environment in Kenya. It is noted that farmers the nominees submitted by the NGO Council. This and pastoralists are not represented in the PCC even provision can be abused by the appointment of cronies though they are habitually affected by environmental who will serve the interest of the appointing authority degradation. The business and the legal fraternity are The locals should be given a chance to appoint their heavily represented in this committee. own representatives without the interference of the politically inclined Minister. Further, the functions of these committees are too generalized in the Act. One The fact that the Minister has more power in determining the protection of the environment than thing that prominently lacks in the Act is the financing the locals contravenes the first principle of the Act of these committees and their working guidelines which states that every person in Kenya is entitled to despite their grassroots representation. a clean and healthy environment and has the duty to safe-guard and enhance the environment. Considering that NEMA is the organ charged Published By: RECONCILE, P.O BOX 7150-20110, NAKURU, TEL: +254-51-2211046 EMAIL: [email protected], WEBSITE: www.reconcile-ea.org