Before discussing this right, which is entrenched in the Constitution of Kenya 2010, it is deemed appropriate define the term environment in general and environmental law in particular


Defining Environment


The term ‘environment’ is capable of many different meanings. This is explained partly by the fact that environmental concerns encompass an extremely wide field and a host of varied problems. The term has become a subject of study in a number of disciplines. Different professions attach specific connotations to the term. Each of them tends to explain the term from their basic perspective. Environmental issues are, for instance, currently the subject of major concern to those in agriculture, forestry, mining, manufacturing, urban planning, economic planning and international relations. Likewise, environmental debates may integrate various perspectives such as ethics, morals, religion, politics, economics, ecology and law. Environmental issues tend to transcend different spheres of human concern, thus necessitating a delineation of boundaries for the present inquiry. Fuggle et al. observe that it has become common for people to speak of a natural environment, built environment, and even of an economic environment.[1]


The word ‘environment’ is derived from the French language. The verb ‘environer’ means to surround, and the noun ‘environs’ means the outskirts, surrounds or districts of a town. The meaning of environment given in the Oxford English Dictionary varies from ‘the region surrounding anything’ to ‘the conditions under which any person or thing lives or is developed; the sum total of the influences which modify and determine the development of life and character’.[2] In the Shorter Oxford Dictionary it is defined as ‘that which environs; especially the conditions or influences under which any person or thing lives or is developed’.[3] Macquarie Dictionary gives a similar explanation. It defines the term in the following words: ‘(i) the aggregate of surrounding things, conditions or influences; (ii) the act of environing; (iii) the state of being environed; and (iv) that which environs’. ‘Environs’ is defined as meaning ‘to form a circle or ring round; surround; or envelope.’[4] Webster’s Dictionary defines ‘environment’ as the ‘circumstances, objects or conditions by which one is surrounded’.[5]


Kiss states that the ‘environment’ can describe a limited area of almost infinite space and factors.[6]He states that, in its largest sense, the environment is a ‘house created on earth for living things’.[7] A more appropriate scientific term for ‘house’ in this context is ‘ecosystem’.


The Commission of Environment and Sustainable Use of Natural Resources of the International Union for the Conservation of Nature (‘IUCN’) defines ‘environment’ as the totality of nature and natural resources, including the cultural heritage and the infrastructure essential for socio-economic activities.[8]Fuggle points out that, when applied to human beings, the single term ‘environment’ relates to the totality of the objects and their relationships that surround and routinely influence the lives of human beings.[9] He warns against using the term in place of ‘circumstances’, ‘situations’ or ‘milieu’, when the user’s intention is to indicate context or circumambience rather than interrelationships. In 1992, Plant, echoing the current provisions of the relevant international law, stated as follows:

The term natural environment is to be understood in its widest sense to cover not merely objects indispensable to survival of the human population, such as foodstuff, drinking water and livestock but also forests and other vegetation mentioned in protocol 11 to the Inhuman Weapons Convention, ‘as well as flora, fauna and other biological and climatic elements’.[10]


South Africa’s Environmental Conservation Act seems to capture most of the definitions in the above dictionaries. It defines environment as ‘the aggregate of the surrounding objects, conditions and influences that influence the life and habits of human beings or any other organism or collection of organism’.[11] Another South African Act, the National Environmental Management Act[12] (‘NEMA’) defines ‘environment’ as:

            The surroundings within which humans exist and that are made up of –

                                 i.            The land, water, and atmosphere of the earth;

                               ii.            Micro-organisms, plant and animal life;

                              iii.            Any part or combination of (i) and (ii) and the relationship among and between them; and

                              iv.            The physical, chemical, aesthetic, and cultural properties and conditions of the foregoing that influence human health and well-being.[13]


Section 2 of Kenya’s Environmental Management and Co-ordination Act, 1999 (‘EMCA’) defines ‘environment’ to include the physical factors of the surroundings of human beings including land, water, atmosphere, climate, sound, odour, taste; the biological factors of animals and plants; and the social factor of aesthetics, and includes both the natural and the built environment


From the above set of definitions, it is clear that there is no fixed definition of the concept environment, and consequently environmental law is quite broad, as examined below.




As Kiss et al. point out, ‘environmental law, is an evolving subject, with new principles emerging as time goes by and its rate of development varies from one country to another and from one time period to another’.[14] It is nonetheless imperative to define the term from a legal perspective, because a legal definition is important to delineate the scope of the subject, determine the application of the legal rules and to establish the extent of liability when harm occurs. It is submitted that a lucid understanding of this branch of law calls for a definition and answers to questions such as: what is the nature, scope and role of environmental law in a particular jurisdiction, and what are the new classifications, concepts, basic principles, remedies, methodologies and procedures, if any, that clearly distinguish this field of law from the others.


Fuggle argues that an all-embracing concept of the term is unacceptable as a working basis for determining the scope and the content of environmental law, because the all-encompassing nature of ‘environment’ would tend to make all law environmental law and this may create absurdity[15] (my emphasis). Cowen argues that the conventional way of identifying environmental law is by means of the ‘subject-matter approach’.[16] This view posits that environmental law consists of all legal principles, which ‘have in common not so much their special character, but the subject they regulate’.[17] The subject matter that falls under the general topic of environmental management would encompass pollution control, land use and planning, conservation of biodiversity as well as public health.[18]


Based on Cowen’s approach, environmental law includes all rules and norms derived from international treaties and customs,[19] provisions in national constitutions and domestic legislation,[20] regulations adopted by national and or local regulatory bodies and administrative agencies, judge-made law (common law), and the indigenous or customary law pertaining to environmental management.


One way of looking at environmental law is to ascertain its distinctive principles. A clear recognition of the principles gives the field a systematic structure that could improve its philosophical and intellectual content. This enhances rationality, and leads to an improvement in the interpretation and implementation of the relevant norms. As recently as 1996, Rabie stated that ‘environmental law does not yet contain distinctive principles of its own’.[21] According to him:

Environmental law does consist of a collection of legal norms encountered in a number of conventional fields of law. It shares this feature with certain other recognized areas of legal regulation, such as medical law, labour law, press law, social welfare law and the law relating to consumer protection. This factor accordingly, does not disqualify environmental law as a separate area of law …… Environmental law practically serves a type of omnibus function, accommodating principles of traditional law, which are united only in by their common object in serving environmental conservation. It therefore lacks systematic unity and may be referred to as cross-divisional law.[22]


He highlights the uncertainty that exists as to what exactly constitutes environmental law. He attributes this uncertainty to the vague meaning of the term ‘environment’, and to doubts as to what legal rules pertaining to environment constitute environmental law.[23] He attempts to explain what environmental law is by identifying various principles that range from those which relate exclusively to environmental management, to those with no environmental relevance at all. The categories he identifies, with a brief explanation, are as follows:

(a)    Exclusive environmental legislation aims exclusively at environmental management and contains only environmentally specific;

(b)    Legislation predominantly containing environmentally specific norms calculated to promote an environmental objection but with provisions other than those that are environmentally specific

(c)     Legislation incidentally containing environmentally specific norms, whose general purpose is not environmental conservation or management, but which includes individual provisions with that aim ;

(d)    Legislation with direct environmental relevance, not calculated to further environmental management, but comprising provisions that are of direct environmental relevance;

(e)    Legislation with potential environmental relevance, not aimed at environmental management, but including provisions that are potentially of environmental significance

(f)      Legislation regulating environmental exploitation, such as mining legislation;

(g)     Legislation with no environmental relevance.


Categories (a) and (b), according to Rabie, would qualify as environmental law, whilst category (g) would clearly not. The norms in category (c), which is of environmental significance, would also qualify. The remaining three categories, (d), (e) and (f), are more controversial. Rabie argues that purely exploitative legislation, such as (f), would obviously not constitute environmental law, but if legislation governing environmental exploitation contains provisions that seek to minimise the harmful impact upon the environment, such provisions should be regarded as establishing environmental law.[24]


Norms on sustainable development would also qualify as environmental law. Rabie’s categorisation seems to focus more on pollution control and preservation of the environment. It ignores issues of the sustainable use of resources, which are increasingly being acknowledged to be an integral part of environmental law.


Categories (d) and (e) are essentially neutral and, as Kidd argues, they fall under environmental law to the extent that they are used for environmental purposes.[25]It is clear that environmental law may encompass broader elements of the environment. Like other branches of the law, it is dynamic and constantly changes. Consequently, an appropriate definition should leave room to allow for the incorporation of new norms that become relevant to environmental management.


There are at least two flaws in Rabie’s approach. First, as Kidd argues, ‘even a law that deals exclusively with the environment might still share principles with other branches of law’.[26] Second, and perhaps of more significance, it categorises environmental law from a statutory perspective as though this is its only source. Other than the statutes, the bulk of this branch of law is increasingly found in constitutions, common law, traditional African law, and international law. Kenya recognises the African traditional methods of conservation of environment.[27] Traditional conservation methods are found in people’s practices and attitudes, rather than in legal documents, and are more or less self regulatory. In other words, traditional methods do not require state enforcement. Conservational practices among African people predate the creation of modern states and governmental structures.




It appears idle to ask what human rights mean. This is a term that is exceedingly commonplace and yet, on careful scrutiny, turns out to be complex. This complexity is more significant in the international sphere where diverse cultures are involved and where implementation mechanisms are different, nebulous and, at times, nonexistent.


An understanding of the right to a healthy environment and sustainable development calls for a lucid exposition and grasp of the terms ‘rights’ in general and ‘human rights’ in particular. An examination of human rights, their development, and modern characteristics is useful in answering the question as to whether a healthy environment and sustainable development form part of human rights. Besides being a principle of international environmental law, this right is part and parcel of mainstream human rights.


A healthy environment and sustainable development is essential for the realisation of human dignity and potential. Constructions of this right have come about as a result of the human struggle for survival and better lifestyles. Effective environmental protection and sustainable development require the elevation and treatment of the right in question so that it is seen as part of mainstream human rights. Human rights have largely developed within the framework of international law and are best implemented when incorporated into domestic law through national constitutions and domestic legislation.


There is no consensus among scholars as to exactly what rights are. Hohfeld aptly captures the difficulty of defining the concept when he says that: ‘the term is chameleon hued’.[28] He states that the term ‘right’ is sometimes used in its strict sense, where the holder of a right is entitled to something, with a correlative duty on another,[29] so that when a right is invaded a duty is violated. This means that being the bearer of a right implies that some other person, either natural or juristic, bears a correlative duty, the performance of which will indicate the entitlement to the right. Failure to perform the correlative duty, where the right is justiciable, calls for enforcement. For example, the South African constitution enjoins the court to enforce a breach of a correlative duty that goes with any constitutional right against a party that has violated that duty.[30] The correlative duty can be performed either positively or negatively. Gerwith demonstrates this clearly in his definition of the concept ‘right’:

A right is fulfilled when a correlative duty is carried out, for example, when the required action is performed or the prohibited action is not performed. A right is violated when it is unjustly infringed, for instance, when the required action is unjustifiably not performed or the prohibited action is unjustifiably performed. And a right is overridden when it is justifiably infringed, so that there is sufficient justification for not carrying out the correlative duty, and the required action is justifiably performed. A right is absolute when it cannot be overridden in any circumstances, so that it can never be justifiably infringed and it must be fulfilled without any exceptions.[31]


A cursory look at the international instruments on human rights shows that different protections are accorded to different rights. The human rights dealt with in the ICCPR prohibit governments from interfering with such rights, and require them to take positive steps so as to enable their citizens to enjoy them.[32]


Henkin asserts that men have used the term ‘right’ for centuries because some languages give several (though not unrelated) meanings to the term.[33] To him, to have a right is to have an entitlement, the exercise of which is not dependent on the goodwill, permission, benevolence, or charity, of another person. Other persons are under an obligation to provide or at least not to interfere with the bearer’s exercise of the right and if denied, the bearer can protest.[34] According to Vincent, a right is a claim, assertion or a demand.[35] To Finnis, borrowing from Squarez, a Spanish jurist of the 17th century, believes that the Latin ‘jus’ means a ‘right’ and it connotes a moral power, ‘facultas, which every man has, either over his property, or with respect to that which is due to him.[36]Another scholar, Cranston, asserts that a legal right is a claim, which is conceded and enforced by the law of the state; not necessarily what is deserved.[37]In 1994, Ritchie asserted that a legal right in the strictest sense is a capacity, residing in one man, of controlling, with the assent and assistance of the state, the actions of others.[38]


None of the above propositions, taken alone, can satisfy the definition of the concept ‘rights’. When the word ‘right’ is qualified by the word ‘human’ to become a human right or rights, the definition becomes even more complex, but one that nonetheless needs some discussion.


The definition of human rights and its claim to ‘universalism’ is confronted with multiple cultural contexts. Moreover, there is controversy as to the status of human rights within various systems of law. Many states regard human rights as a matter for domestic jurisdiction, as opposed to international jurisdiction, while others think otherwise.[39] Currently human rights are increasingly becoming matters of international, regional and domestic jurisdiction. This is clear from the number of national constitutions that have incorporated the provisions of the International Bill of Human Rights.[40] At the international level, various efforts have been made for the protection of human rights, particularly through the enforcement of humanitarian law.[41]


The Western liberal concept of democracy has considerably influenced world public opinion, and emerged as an important philosophical and theoretical foundation for current international human rights law. This is the product of the refined heritage of ‘Greek philosophy, Roman law, the Judeo-Christian tradition, the Humanism of the Reformation and the Age of Reason’.[42]


In defining human rights Dowrick says: ‘Human Rights are those claims made by men, for themselves or on behalf of other men, supported by some theory which concentrates on the humanity of man, on man as a human being, a member of human kind which would be in essence an ethical theory’.[43] He goes on to submit that human rights are moral claims, in essence, as they build on the ethical doctrine of the 18th century, and that ethical and political rights have been transformed into legal rights, as a result of their sanctioning by international treaties, such as the ICCPR and ICESCR. And to Alcock, they are ‘moral and political rights springing from religious teachings that have been influenced by social, economic and political realities’.[44] Another source sees human rights as those conditions of life that allow people to develop and use their human qualities of intelligence and conscience, and to satisfy their spiritual needs.[45] These would certainly include environmental goods or resources.


There are several types of human rights. Under Kenyan law, they are expressed in chapter four of the constitution. Kenya is also signatories to a number of international human rights documents.


Human rights are considered to be inherent to human beings by virtue of their being human. Maritain eloquently states:

The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of its acts, and which consequently is not merely a means to an end, but an end, an end which must be treated as such …… The expression means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things, which are owed to man because of the very fact that he is a man.[46]


Whether one accepts the above argument or not depends on one’s attitude to the crucial concept he/she invokes, i.e. natural law, together with the idea of positive rights, and rights as viewed by Marxist theorists. The three theories are considered below.


Several writers have set out different criteria for the identification of environmental rights as different from other rights. In his discussion on human needs and human rights, Winslade argues that human rights have to meet the vital needs of man.[47] He describes vital needs as needs ‘whose satisfaction would be in the interest of, and would be wanted and desired by, nearly all intelligent and rational persons under ordinary circumstances’.[48]On the relation between human needs and human rights, he treats fundamental moral principles as a necessity for the transformation of needs into rights:

…….the rights are based not only on the unfulfilled vital needs, but also upon an appeal to fundamental principles such as equality and human worth. That is, unless these moral principles have operative moral and political force, the growth of rights from needs will be frustrated for principles like equality and human worth to have moral and political force, they must be taken seriously not merely as lofty ideas but as guides for social reform.[49]


Edel’s uses the criteria of status and functions for distinguishing human rights from other rights. Human rights must be rights of an inherent nature, to signify the fundamental values of the society in which they are intended to operate. Their normative values flow through and control the relations between a political society and its members.[50] They do not necessarily exist as a convention, but because they are inherent in individuals as the owners of the human personality.


Environmental rights are rooted in the reality of the inherent human condition, and their indispensability to human personality. They cannot be regarded as the offspring of a convention, although conventions serve in identifying them. Viewed in the context of these criteria, it appears that, in terms of jurisprudence, environmental rights qualify as human rights. Kiss explains this position. He is categorical that fundamental human values and freedoms are not created by legal systems:

The legal system did not create these values; they emerged gradually from religious, ethical and cultural foundations of societies. The legal system brought these values into the open by discussing them, recognizing them and then taking appropriate measures to protect them by the only means at its disposal. Within states this process is characterized by the inclusion of principles enshrining these values in constitutions or constitutional texts, which have to be implemented by specific legislation. In the international sphere the values are often enshrined in non-binding declarations (such as the universal Declaration of Human Rights), the principles of which are later transformed into obligatory statutes by inserting them into treaties.[51]


In his book that details issues of human rights, their development and implementation mechanisms in Africa, Nmehielle points out that to define law as being what emanates only from the state ignores the fact that law exists outside the framework of state.[52] This questions positivist theory that sees law as emanating from the state or the sovereign. Nmehielle argues, quite convincingly, from an African perspective that:

The natural law argument that law derives from God or a Supreme Being has long been a substantial element of African legal philosophy, even though it may not have been couched into a thesis by an ancient African philosopher. It is nothing but a belief in religion as a source of law, which in turn was applied in modern European States.[53]


Nmehielle’s arguments are apt when one considers a number of freedom fighters in Africa. A case in point is the Mau Mau movement in Kenya. The Mau Mau carried on a bloody war against the British colonial rule to reclaim their land and freedom. Their activities were not based on what was to be found in books, but rather by what they considered to be inhumane and unjust and therefore deserved to be opposed at all costs.


The development of human rights in Kenya has also been inspired by the international human rights covenants. Political and civil rights activists in both countries drew inspiration from the human rights standards sets in the various international instruments. The sustained efforts and pressure from these activists and the international community saw the collapse of tyrannical regimes that had hitherto sought to maintain the status quo for the benefit of the small elite at the expense of the masses. The expansion of democratic space led to the incorporation of various forms of human rights in the constitutions of the two countries.


Environmental rights are evolving norms. This makes it difficult to offer definitive descriptions. The Ksentini Report offers what may be the broadest definition, or better still, components, of environmental rights. It suggests that the possible components of substantive human rights or perhaps several environmental rights can be seen in one source which sets out no less than fifteen rights relative to environmental quality.[54] These include:

         i.            freedom from pollution, environmental degradation and activities that adversely affect the environment, or threaten life, health, livelihood, wellbeing or sustainable development;

       ii.            protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems;

      iii.             the highest attainable standards of health;

     iv.            safe and healthy food , water and working environment;

       v.            adequate housing, land tenure and living conditions in a secure, healthy and ecologically sound environment;

     vi.             ecologically sound access to nature and conservation and the use of nature and natural resources;

    vii.            preservation of unique sites; and

  viii.            enjoyment of tradition life and subsistence for indigenous people.


This description cannot be said to be exhaustive. It does not directly mention intergenerational rights. Intergenerational equity is an important notion of environmental rights, as is canvassed in greater detail in chapter three.


Lorenzen describes environmental rights as inclusive of many rights. The right to a clean and safe environment is the most basic, while others are the right to act to protect the environment as well as the right to information, access to justice, and to participate in environmental decision-making.[55] Environmental rights are broadly categorised into substantive and procedural rights. Of the substantive rights, the right to a clean and safe environment is the most basic, and related rights include the rights to safe drinking water, to clean air, and to safe food. The procedural aspect refers to the processes by which citizens may act to protect the environment. This includes the rights to environmental information, to participation in environmental decision-making and to access to justice. Okidi is of the view that the definition is wider than this. According to him

Environmental law is the ensemble of norms, rules, procedures and institutional arrangements found in common law, statutes and implementing regulations, case law, treaties and soft law instruments concerned with or relating to the protection, management and utilisation of the environment, and natural resources for sustainable development or intergenerational equity.[56]


Kenya has substantive provisions in its constitution that recognise the right to a healthy environment and sustainable development. Kenya’s constitution, states in relation to environmental rights:

Every person has the right to a clean and healthy environment which includes the right-

(a)     to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated by Article 69.

(b)     to have obligations relating to the environment fulfilled under Article 70


The South African constitution guarantees the right to a healthy environment to its citizens.  Section 24 states:

              Every person has the right:

(a)     to an environment that is not harmful to their health or well-being

(b)     to have the environment protected, for the benefit of the present and future generations, through reasonable legislative and other measures that –

i.                      prevent pollution and ecologic degradation;

ii.                     promote conservation; and

iii.      secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.


The right to a healthy environment and sustainable development is a right that every state owes to its citizens and to humanity as a whole. It is also owed to future generations. Kenya, like all other countries also has an obligation, under international law, to humanity as a whole, to protect the environment. Thecountry played significant role in the development of international environmental law and rights. United Nations (‘UN’) records reveal that Kenya has frequently been an active participant in conference diplomacy. It was because of the lobbying by the country’s delegation that Nairobi became the location of the first major UN agency to be based in a developing country, the United Nations Environmental Programme (‘UNEP’). UNEP was established soon after the United Nations Conference on Human Environment (‘UNCHE’). This was held in Stockholm in 1972.[57] Since the Conference, Kenya has adopted several agreements relevant to environmental management and natural resources conservation.[58] These agreements are in the form of bi-lateral agreements or multilateral treaties negotiated between several countries. In most instances, multi-lateral treaties are conducted under the aegis of international organisations, such as the UN, East African Community (‘EAC’) and the African Union (‘AU’). 




Sustainable development entails the pursuit of social development, economic development and environmental protection and enhancement. According to section 2 of the EMCA, sustainable development is defined to mean development that meets the needs of the present generation without compromising the ability of future generations to meet their needs, by maintaining the carrying capacity of the supporting ecosystem.


The preamble to Kenya’s constitution emphasises the pursuit of sustainable development by the Kenyan people. It states in paragraph 4 that ‘we the people of Kenya [are] respectful of our environment, which is our heritage, and determined to sustain it for the benefits of future generations.’ In addition, this important document identifies sustainable development as part and parcel of Kenya’s national values and principles of governance.[59]


Sustainable development is a means to towards the attainment of basic human needs: food, clothing, shelter and employment, for both the present and future generations. Sands identify at least four principles, which are crucial if such values are to be realised.

                                 i.            there is the need to preserve natural resources for the benefit of future generations (the principle of intergenerational equity)

                                ii.             it is necessary to exploit natural resources in a manner that is ‘sustainable’, or ‘prudent’, or ‘rational’ or ‘wise’, or ‘appropriate’ (the principle of sustainable use);

                              iii.            essential is the equitable use of natural resources, which implies that use by one state must take account of the needs of other states (the principle of equitable use, or intragenerational equity); and

                              iv.            the need to ensure that environmental considerations are integrated into economic and other development plans, programmes and projects, and that development needs are taken into account when applying environmental objectives (the principle of integration).[60]


Ruiz conceives sustainable development as not only that which responds to economic aspects, but also considers other elements, such as the human dimensions.[61]He explains that sustainable development pursues the achievement of three objectives. These are:

i.         Those that are purely economic objective. This entails efficiency in the use of natural resources, and quantitative growth;

ii.        Social and cultural objectives and social equity. This entails the benefits that society derives; and

iii.      Ecologic objective, the preservation of the physical and biology system. That is intergenerational equity (emphasis added).[62]


The above three tests form the core guidelines in the exploitation of natural resources. Often the tendency is to give more weight to one of the three. A free market capitalist will more often than not be inclined to give more weight to efficiency and enhanced profit margins, whereas a socialist or a social democratic person would tend to give relatively more weight to equity. On the other hand, conservationists may give more weight to sustainability. It is necessary to balance them, or to integrate all three criteria in any economic endeavour. Glazewski points out that South African law[63] provides a broader perspective on the concept of sustainable development. Accordingly:

Sustainable development requires the consideration of all relevant factors including the following:

i.         That the disturbance of ecosystems and loss of biological diversity are avoided; or, where they cannot be altogether avoided, are minimised and remedied;

ii.        that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided are minimised and remedied;

iii.       that the disturbance of landscapes and sites that constitute the nation’s cultural heritage is avoided, or where it cannot be altogether, is minimised and remedied;

iv.      that waste is avoided, or where it cannot be altogether avoided, is minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner;

v.        that the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource;

vi.      that the development, use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised;

vii.     that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and

viii.   the negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied.[64]


Sustainability implies the maintenance, rational use and enhancement of natural resources base that underpins ecological resilience and economic growth.[65] The concept of sustainable development may also be understood as the practice of mobilisation and utilisation of natural resources while, as far as possible, maintaining a balance. This includes conservation, which, as a management concept, means to manage the renewable resources in a sustainable manner and to avoid a waste of non-renewable natural resources. The concept of conservation is distinctively different from preservation as Okidi observes.[66] He defines the latter as:

To set aside and to protect selected natural resources such as unique biological formations, endangered or threatened species, representative biomass or other natural or cultural sites of importance so as to maintain their characteristics in a manner unaffected by human activities to the fullest extent possible.[67]


Conservation in the modern sense means ‘the management of human use of the biosphere so that it may yield the greatest sustainable benefit to the present generations while maintaining its potential to meet the needs and aspirations of future generations’.[68]


The notion of wholesome preservation is undesirable. This is particularly so for developing countries, where the solution to many social and political problems, such as unemployment, poverty and disease, are largely dependent on the improvement of the economy. Wholesome preservation may therefore mean economic stagnation, which could bring about acute human hardships. In the South African case of BP Southern Africa (Pty) v MEC for Agriculture, Conservation and Land Affairs it was held:

The concept of ‘sustainable development’ is the fundamental building block around which environmental legal norms have been fashioned, both internationally and in South Africa, and is reflected in Section 24 (b) (iii) of the Constitution… pure economic principles will no longer determine, in an unbridled fashion, whether a development is acceptable. Development, which may be regarded as economically and financially sound, will in future, be balanced by its environmental impact, taking coherent cognisance of the principle of intergenerational equity and sustainable use of resources in order to arrive at an integrated management of the environment sustainable development and social economic concerns.[69]


The link between the concepts of environmental protection and sustainable development gathered special momentum from 1987 when the Brundtland Report was released, and reached its climax in 1992, with the United Nations Conference on Environment and Development (‘UNCED’) adopting Agenda 21 and the Rio Declaration. The Johannesburg World Summit for Sustainable Development in 2002 (Johannesburg WSSD 2002) kept the spirit burning. Agenda 21 is significant in that it provides for a basis of action in the pursuit of sustainable development and protection of environmental degradation, with a view to combating poverty, protecting and promoting human health conditions and human settlement development.


The integration of environmental issues into development planning was advocated in the Brundtland Report, ‘Our Common Future’ (World Commission on Environment and Development) (1987).[70] This report popularised the definition of sustainable development as humanity’s ability to ‘ensure that it meets the need of the present without compromising the ability of future generations to meet their needs’. To achieve this outcome, the report states: ‘the international economy must speed up world growth while respecting the environmental constraints by the appropriate management of technology and social organization’.[71] According to the Report:

The concept of sustainable development provides a framework for integration of environment policies and development strategies. … [T]he integration of environment and development is required in all countries, rich and poor. … Sustainable development seeks to meet the needs and aspirations of present without compromising the ability to meet those of the future….Policy makers guided by the concept of sustainable development will necessarily work to ensure that growing economies remain firmly attached to their ecological roots and that these roots are protected and nurtured so that they may support growth over the long term. Environmental protection is thus inherent in the concept of sustainable development, as is a focus on the sources of environmental problems rather than the symptoms.[72]


As Macneill, former secretary general of the Brundtland Commission puts it, thus:

…..an essential condition for sustainable development is that a community’s and a nation’s basic stock of natural capital should not decline over time. A constant or increasing stock of natural capital is needed not only to meet the needs of present generations, but also to ensure a minimum degree of fairness and equity with future generations.[73]


The Brundtland Commission called upon all countries to adopt the following principles to guide their national policies:

                       i.            Revive growth, because poverty is a major source of environmental degradation;

                     ii.            Change the quality of growth to achieve sustainability, equity, social justice and security.

                    iii.            Conserve and enhance the resource base by reducing per capita consumption of resources and developing non-polluting processes and technologies;

                    iv.            Ensure a sustainable level of population through population policies, which are integrated with programmes for education, healthcare and raising standards of living, especially for the poor;

                     v.            Re-orientate technology to pay greater rewards to environmental factors and costs;

                    vi.            Integrate environment and economics by requiring decision-makers to be responsible for the impact of their decisions upon the environmental resource capacity;

                  vii.            Reform international economic relations to help developing countries to diversify their economic and trade bases and build self-reliance; and

                 viii.            Strengthen international co-operation for sustainable human progress.[74]


Despite widespread support, the Brundtland Report did not receive universal acceptance. In particular, it did not hold the most developed countries responsible for many of the most severe environmental problems, nor did it emphasise the need to redistribute the world’s wealth. It, did, however, stress that a change of approach was required. We are living in a world where there are big gaps of inequality. This is confirmed by a number of economic reports.[75]Whereas most people in the richest countries, especially in the north, can afford all sorts of luxuries available in the world today, many people in the less developed south continue to languish in abject poverty, where malnutrition, ignorance and disease are taking a huge toll on them.


In emphasising that human beings are at the centre of concern for sustainable development, Principle 1 of the Rio Declaration at UNCED, 1992, employed the language of human rights law.[76] Its most important principles relating to sustainable development include:

i.                     Principle 3: The right to development must be fulfilled so as to equitably meet development and environmental needs of present and future generations.


ii.                    Principle 8: To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote demographic policies.[77]


Agenda 21 was also a product of the Rio Conference, and is a blueprint or action plan for the implementation of sustainable development. Although these documents are not legally binding,[78] almost 200 states and numerous NGOs signed them in an effort to promote international and national co-operation, and create a basis for devising more holistic and synchronised approaches towards the environment and development.[79]


The emergence of sustainable development has coincided with a broadly increasing consensus in international human rights.[80] A number of concepts in international environmental law are actually concepts of economic development. These include:

The concept of internalising the economic costs of pollution and environmental degradation, referred in environmental law as ‘full cost pricing’;[81]The ‘polluter pays’ principle which seeks to make the polluter fully responsible for all the costs of pollution, be they economic, human, social or cultural;[82]The concept of environmental responsibility and liability based upon a product’s ‘cradle to grave life-cycle; and The mechanism of ‘economic instruments’ which provide incentives and disincentives regarding desired environmental performance or behaviour.


Principle 3 of the Rio Declaration states that the right to development must be fulfilled so as to meet the developmental and environmental needs of present and future generations equitably. Environmental protection is treated as an integral part of the development processes[83] and states are consequently called on to cooperate in a spirit of global partnership to conserve and protect the earth’s resources. The concept, though relatively new, has rapidly gained momentum. It has become an accepted principle of international law. Besides the Rio Principles, the concept also was given recognition at the Global Conference on Sustainable Development of Small Island States,[84] the Copenhagen World Summit on Social Development,[85] and in a host of treaties, notably the North American Free Trade Agreement.[86] Paragraph 13 of the latter’s preamble binds the parties to promote sustainable development. Both the Convention on Biological Diversity[87] and the Convention to Combat Desertification[88] incorporate the concept of sustainable development.


In its broadest sense, sustainable development aims at promoting harmony among human beings, and between human beings and nature. The pursuit of sustainable development and resource conservation requires strong legal norms and national and international political and economic institutions that will in particular support:

                     i.            Political systems that secure effective citizen participation in decision-making;[89]

                    ii.            Economic systems that are able to generate surpluses and technical knowledge on a self- reliant and sustainable basis;

                  iii.            Social systems that provide solutions to the tensions arising from disharmonious development;[90]

                  iv.            Production systems that respect the obligation to preserve the ecological base for development; and

                   v.            International systems that foster sustainable patterns of trade and finance.


A Strategy for Sustainable Living, Caring for the Earth, launched in partnership with the World Conservation Union, UNEP and the World Fund for Nature, puts the case for sustainability succinctly:

Because of the way we live today, our civilization is at risk. The 5.3 billion people alive now, especially the 1 billion in the best of the countries, are misusing natural resources and seriously overstressing the Earth’s ecosystems. World population may double in 60 years, but the Earth will be unable to support everyone unless there is less waste and extravagance, and a more open and equitable alliance between the rich and the poor. Even then, the likelihood of a satisfactory life for all is remote unless present rates of population increase are drastically reduced.[91]


Caring for the Earthstressed two fundamental requirements:

                     i.            Secure a widespread and deeply held commitment to an ethic for sustainable living within the Earth’s capacity; and

                    ii.            Development, to enable people everywhere to enjoy long, healthy and fulfilling lives. It further states that living sustainable depends on accepting a duty to seek harmony with others and care for the Earth. Humanity must take no more from nature than nature can replenish. This in turn means adopting lifestyles and development paths that respect and work within nature’s limit. This can be done without rejecting the many benefits that modern technology has brought, provided that technology also works within these limits.[92]






Environmental law is a relatively fast developing legal discipline in Kenya. It has come to the fore in response to the escalating global and local disquiet at mounting evidence of environmental degradation. Nonetheless, from antiquity, moral philosophies have informed relationships between individuals and social groups. It is a fact that for a long time both ethical norms and some form of legislation have regulated human use of the environment.


Many states, claiming sovereignty over their natural resources, and in their zeal to develop modern infrastructure and improve the material life of their people, embarked on massive plundering and indiscriminate consumption of natural resources. As a result, serious ecological problems abound, as evidenced by global warming, acid rain, depletion of the ozone layer, land degradation, water and air pollution, the extinction of numerous animal and plant species, and a loss of biodiversity.


Ecological problems lead to severe violations of human rights, affecting large numbers of people. In recent years various problems have reached pervasive, disruptive and potentially disastrous levels. Global public awareness of the threats posed to the environment has increased. At the centre of the increased awareness is the phenomenon of ‘humankind versus nature’. Extensive research shows that humans are not living in harmony with the planet. Over the years, scientists have articulated a great apprehension and sense of irreparable harm to the natural systems which support life on earth. The words of Marjorie Kinnan Rawlings have never been more appropriate:

The earth may be borrowed but not bought. It may be used but not owned. It gives itself in response to love and tending, offers flowering and fruiting. But we are tenants and not possessors, lovers but not masters.[93]


Another scholar, Shabecoff, states that ‘suddenly the world itself has become an environmental issue’.[94] Yet another one has correctly termed environmental crises as an ‘ecocide’.[95]This has been treated as constituting an offence against humanity. Falks describes environmental ‘offences’ as acts that involve:

Official conduct that seriously endangers the life, health and serenity of current and future generations. The notion of human rights is incomplete to the extent that it fails to encompass those forms of deliberate behaviours that produce serious environmental damage. Environmental quality is a critical dimension of human dignity that may have a significant impact on development and even survival of mankind.[96]


Environmental problems have largely been noticed as a result not of what damage it has been caused to the environment per se, but of the affect on human interest. Ironically, most environmental problems emanate from human conduct. It is human beings whose actions and inactions cause deleterious effects on the environment, which ultimately affect human beings in a number of ways. A change in human conduct will solve most environmental problems.


Although there had been a rising concern for environmental matters in a number of countries around the world before the 1970s, it was only after this period that political and legislative attention became focused on environmental issues. This is illustrated by indicators of environmental consciousness in several countries, including:

i.          Enactment of legislation;

ii.         Establishment of voluntary bodies, civil bodies, for example NGOs or issue-based lobby groups;

iii.        Compiling and publication, and release of reports of conferences and seminars;

iv.       Official publications such as those of green and white and SessionalPapers

v.         Adoption of treaties, conventions, pronouncements or declarations at international forums etc; and

vi.       Growth in litigation of environmental nature and subsequent development of environmental common law through judicial pronouncements.[97]


Globally, environmental consciousness culminated in the holding of the United Nations Conference on Human Environment (UNCHE) in Stockholm in 1972. Its agenda included determining how to solve problems of pollution and urban squalor. These were viewed as problems predominant in the more developed Western countries[98] and resulted in a fierce protest by the developing countries of Asia, Africa and Latin America. They viewed UNCHE as irrelevant to their needs. This persuaded the Secretary-General of the conference to convene a meeting of experts at Founex, Switzerland, in 1971 to develop a policy paper to show a connection between environment and development, and the use of natural resources.


The division between the developed North and the developing countries of the South re-emerged at the Rio Conference in 1992[99] over the issue of how environmental deterioration and responsibilities should be handled. The formulation of Principle 7 of Agenda 21 generated a heated debate that pitted the two factions against each other.[100] The different standpoints taken were prompted by the fact that, whilst developed states did not like to be held legally responsible for their past acts of environmental degradation, many developing states felt that the text should specifically blame the North for its past and present behaviour. The 77 Group (‘G77’) of developing states was particularly disappointed when its own proposal for Principle 7, formulated in the following terms, was rejected:

The major cause of the continuing deterioration of the global environment is the unsustainable patterns of production and consumption, particularly in developed countries…In view of their main historical and current responsibility for global environmental degradation and their capability to address this common concern, developed countries shall provide adequate, new and additional financial resources and environmentally sound technologies on preferential and concessionary terms to developing countries to enable them to achieve sustainable development.[101]


Divisions notwithstanding, these two conferences heralded the major environmental concerns of modern times. The international community succeeded in linking environmental issues with those of sustainable development and natural resource conservation. Issues of sustainable development, pollution control and natural resource conservation were seen to be closely interlinked. The fact that environmental management was a human responsibility was also underscored. Much has not been done however towards the establishment of the effective structures.


Divisions remain between the developed north and the developing south. As recently as 2010, the United Nations Conference on Climate Change at Copenhagen witnessed such a sharp division between the two worlds, that there is little to report in respect of the success of the conference. A leading South Africa’s environmental expert, Glazewski, captures the mood of the event in stating ‘at Copenhagen the (United States) US delegation led by the biggest bull in the kraal, President Obama, seemed to adopt the attitude follow us, we’re right behind you’.[102]


Concerns over the environment in Kenya currently bring together politicians, activists from Non-Governmental Organisations (NGOs), diplomats, jurists, policy makers and academics. The need for an effective environmental management framework or the enhancement of existing frameworks is considered to be important agendas. These are the main stakeholders in this area of international discourse.[103] International environmental conferences and summits have inspired and encouraged the development of international environmental law. International law has become significant in providing solutions to a number of environmental issues. The growth of international environmental law is clear evidence that environmental issues are the concern of the entire human race. It is impossible for a country, or merely a few countries, to manage the environment effectively. The proliferation of environmental law instruments and conference resolutions are a manifestation of how humanity has belatedly acknowledged the magnitude, scope and scale of environmental issues. It is an admission that such problems can be effectively countered only through consensus building and concerted international efforts, and cooperation involving all humanity. The entire human race needs to rise to the occasion and reverse the deleterious effect that has been caused to the environment. The principle of common but differentiated responsibility gives all of the current generation of humanity a duty to manage the environment in a prudent manner.


At the global level, environmental rights developed much later than those contained in ICSCR and ICCPR. Before 1970, environmental issues were not regarded as matters of much human concern. No adverse impact on the environment was recognised or felt, even as there was increased acceleration in industrial growth and use of new technologies, particularly in the west. The desire to achieve rapid economic growth took priority over all other considerations in national policies. As a result, environmental problems such as pollution and the depletion of natural resources were witnessed. At the UNCHE in Stockholm, serious attention was given to the right to a clean environment. It was agreed that ‘man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well being’.[104]


However, in the field of other forms of human rights there were, prior to the UDHR and UNCHE, some notable historical precedents that set and widened the field. These include: England’s Magna Carta of 1215,[105] which asserted the right to a fair trial and a just legal system; the Declaration of the Independence of the United States of America of 1776;[106] the 1787 French Declaration of the Rights of Man and the Citizen,[107] and the 1803 Haitian Declaration of Independence.


The international instruments pertaining to the environmental rights of human beings during the pre-UNCHE era were confined to the right to life. The UDHR provided merely that ‘everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care’.[108] Though this does not directly allude to environmental rights, such rights can be inferred. The right to a healthy environment is fundamental and inherent. Being alive, which depends on having a sound environment precedes the rights such as freedom of expression, press, assembly, religion, liberty and others. This is because such rights are exercisable only by one who is alive and in good health.


Environmental law and human rights have traditionally been treated separately, despite the existence of a number of overlaps. As examples, the rights to safe food and water, to live in a decent and healthy environment, and to participate in environmental decision-making such as in Environmental Impact Assessment (‘EIA’) processes, relate both to human rights and to environmental law. Both environmental law and human rights have essential common points that enable the creation of a field of co-operation. It has been pointed out that:

                                             i.                        Both disciplines have [a] strong social roots, even though human rights law are more installed in the collective conscience, the accelerated process of environmental detriment has generated a new ‘environmental awareness’.

                                            ii.                        They are legal systems with purposes and objectives, subjected to universal consent and with variable contents, open to reality and social change.

                                          iii.                        They are developed in the framework of public international law; the international community has assumed the commitment to watch for the fulfilment of human rights and the respect for environment.

                                          iv.                        The influence of these fields over the conservation of the world peace and security is critical.[109]


Unlike traditional international law which is designed to serve common or reciprocal national interests, human rights proceed from a different motivation. Human rights law is essentially idealistic and humanitarian. It is deep in its purpose to improve the lot of individual human beings everywhere, even where national institutions and non-legal international forces are inadequate. International law provides an appropriate value structure for the complementation of national law. Certain material incidents peculiar to both the human rights system and environmental law follow a common pattern. Implementation of environmental rights is enhanced within a framework of developed human rights structures and institutions.




There is now a general consensus that the veil of sovereignty cannot be employed to shut out the operation of human rights or to stop the application of international environmental law principles. There is a movement in international environmental law away from the traditional emphasis on the concept of sovereignty. The emphasis is increasingly on the community of interests of states and the need for states to act in a unified way to deal with problems of common concern.[110] To undertake this duty, international law provides a useful framework against which the entire human race converges and decides on how to shoulder the responsibility for itself and the future generations. This responsibility also extends to other biotic life with which humanity shares the earth.


The right to life and the right to health form norms of jus cogens and are consecrated universally as fundamental and inherent rights. They impose on states duties related to the environment. States are required to refrain from actions that lead to environmental degradation that put the life and health of people at risk. They also impose actions on the part of states to ensure decent human living conditions. These conditions include access to clean water, a healthy atmosphere, clean shelter and adequate food supplies. It is a scientific fact that the right to life and health are affected by environmental degradation and pollution.[111]According to some statistics, it is estimated that about 40 per cent of acute infections in the respiratory tract, 90 per cent of cases of diarrhoea, 50 per cent of respiratory chronic disorders and 90 per cent of cases of malaria can be prevented through improved environmental conditions.[112]


Likewise, the protection of the global environment is the responsibility of all humanity. It is an obligation erga omnes.[113]In other words, it is a duty that is owed by this generation to the international community or all of humanity. By virtue of being subject to international law, states are expected to be in the forefront in carrying out this responsibility. The International Court of Justice (‘ICJ’) cited with approval the view of the International Law Commission (‘ILC’) that safeguarding the earth’s ecological balance is an essential obligation of all states, in order to protect the international community as a whole.[114] Erga omnes (in relation to everyone) is frequently used in legal terminology describing obligations or rights towards all. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights.[115] The concept was recognised in the ICJ’s decision in the Barcelona Traction case (Belgium v Spain) (Second Phase), when it held:

….an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis a visanother State in the field of diplomatic protection. By their very nature, the former are concern, of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. ……….Such obligations derive for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law…. others are conferred by international instruments of universal or quasi-universal character.”[116]


Erga omne obligations give third-party states, rather than just the victim, legal claims against states that violate those obligations. This means that where a state has engaged in an activity that violates an erga omnes norm, all states, irrespective of whether they have suffered a direct injury or not, have the right to engage in countermeasures. The ILC has set out several pertinent rules on the baseline case of two-state violation. The relevant provision states:


A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to:

(a)    That State individually; or

(b)    A group of States including that State, or the international community as a whole, and the breach of the obligation:

(c)     Specifically affects that State; or

(d)    Is of such a character as radically to change the position of all other States to which the obligation is owed with respect to the further performance of the obligation.’[117]


Obligations erga omnes, together with the related concept of peremptory norms, reflect a common core of norms essential for the protection of communal values and interests which transcend bilateralism and parochial state concerns dominating traditional international law. The norm has become one of the rallying calls of those sharing a belief in the emergence of a value based international public order based on law. Delbruck sees it as part of ‘the ongoing process of the constitutionalisation of international law’.[118]


Not all states have similar capacities to shoulder international environmental responsibilities. There is a movement in international environmental law away from the traditional emphasis on the concept of ‘sovereignty’. There is an increase in the emphasis on the community of interests of states, and the need for states to act in a unified way to deal with issues of common concerns. This underscores the need for the states to enforce environmental management beyond their political boundaries. Ecosystems of the earth are interlinked, so that what occurs in the environment of one state often has an effect upon other states and upon areas which are not governed by any single state.


Developing countries such as Kenya lack the capacity to deal with a number of environmental problems as will be examined below. The environmental principle, ‘common but differentiated responsibility’ appreciates the disparities in capacities. Principle 7 of the Rio Declaration acknowledges this principle:

States shall cooperate in a spirit of global partnership to conserve, protect and restore the health of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibilities that they bear in the international pursuits of sustainable development in view of the pressures their societies place on the global environment and of the technologies and the financial resources they command.[119]


Under this principle, much is expected from the developed states in tackling environmental and economic problems affecting the world. This is because of the technological and financial resources they command. In addition to this, human individuals in their societies place more pressure on the global environment to sustain their lifestyles. Such states also have better developed skills and technologies. The fact that individuals in the developed world enjoy a higher economic per capita income than their counterparts in the developing world suggests that more per capita resources are used on individuals in the former than in the latter. This is all the more reason why it is fair that they bear greater responsibility for environmental management. Developing countries require the technological and financial support from their developed counterparts to effectively realise the right to a healthy environment and sustainable development.






International law has often played a significant role in the development of domestic environmental law. A number of environmental rights are housed in the international law principles, as is examined in this thesis. Public international law is primarily applicable to states rather than to individuals. Consequently, international legal norms become a source of domestic legal obligations for state officials, and domestic rights for citizens, only through some manner of incorporation into the State’s own municipal law.


Kenya’s constitution is emphatic that the general rules of international law shall form part of the law of the country.[120] It also provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the constitution.[121]


Anthropocentrism[122] informs and shapes most of the principles of international environmental law. The view of the primacy of humanity is the standard within this branch of law. In placing human beings at the centre of its concern, international environmental law has similarities with human rights. Both propagate and advance values that accrue to humanity. Human perception of environmental harm provides a valid justification for the development of legal principles whose objectives are to protect and advance human needs, which in many instances have been recognised as human rights. For example, Article 22, of the 1968 African Convention on the Conservation of Nature and Natural Resources, entitled the ‘Fundamental Principle’, is couched in anthropocentric terms. It states that ‘the parties shall undertake to adopt the measures necessary to ensure conservation, utilisation and development of the soil, water, flora and faunal resources in accordance with the scientific principles and with due regard to the best interest of the people’.[123]


The 1972 Stockholm Declaration reflected an anthropocentric basis in its very title.[124]This was strengthened by the emphasis on the protection of the environment for present and future (human) generations. Additionally, the Declaration emphasised that ‘of all things in the world, people are the most precious’.[125] In 1973 the Council of Europe declared that, ‘as benefits the genius of Europe, particular attention will be given to the intangible values and to protecting the environment so that progress may really be put at the service of mankind’.[126]


Both Kenya has national and international obligations to ensure that the rights to a healthy environment and sustainable development are realised. Environmental issues are too complex to be approached from a national perspective alone. Human rights, as well as issues of environmental management, deal with an area where the doctrine of national sovereignty has to give way to external concerns when it comes to a national activity.


In 1987, the World Commission on Environment and Development stated that ‘sustainable development is a process that is designed to enhance both current and future potential to meet human needs and aspirations’.[127]


Although anthropocentricism has more influence in the international environmental law-making process, ethical considerations, or biocentrism, appear to have made substantial inroads. In the practical application of environmental conservation principles, however, little distinction is made between the two concepts. Anthropocentric considerations do not make up the entire body of international environmental law. Slowly, the ethical basis for environmental protection (deep ecology) appears to be informing and shaping this growing and expanding branch of law. There are several examples to support this contention. In 1973, a European Ministerial Conference on the Environment noted that ‘the environment must be taken care of because of its own value’.[128] Six years, later the Convention on the Conservation of European Wildlife and Natural Habitats recognised in its preamble that wild fauna and flora have intrinsic value.[129] In 1982, the World Charter for Nature stated that ‘every form of life is unique, warranting respect regardless of its worth to man, and to accord other organisms such recognition, man must be guided by a moral code of action’.[130] In 1986, the Declaration of Fontainebleau, adopted at the 4th anniversary of the IUCN, stated that ‘if humanity is to find a way forward, it must base advance on a code of values that is less aggressive and more caring for the earth — a code that will reflect deep sensitivity to ecological interdependence of our planet and respect for life in all its forms’.[131] In 1987, the World Commission on Environment and Development concluded its report with the warning that ‘human survival and well-being could depend on the success of elevating sustainable development to a global ethic’.[132] The report went as far as specifying that ‘the case for the conservation of nature should rest not only with development goals. It is part of our moral obligation to other living beings and future generations’.[133]


In the preamble to the Rio Declaration ‘the integral and interdependence of nature of Earth, our home’ is noted.  In Principle 7, the Declaration recognised the necessity to ‘conserve, protect and restore the integrity of the Earth’s ecosystem’. This idea is similar to the preamble of the 1991 Protocol on Mining in Antarctica, which recognised the intrinsic value of the whole Antarctic ecosystem.[134] Likewise, the preamble of the United Nations Conservation of Biological Diversity recognised the ‘intrinsic value of biological diversity’.[135] The UNEP attempted to raise the profile of the ethical dimensions of the human relationship with nature with its publication Ethics and Agenda 21.[136] This was taken a step further at the 1995 World Summit for Social Development, where Dowdeswell pointed out that ‘the consideration of the fundamental questions facing humanity is a moral and ethical one. So far ethics and morality have been sideshows in the drama of restless change, but now they need to take centre stage. ‘Morality … encompasses the entire planet. We are all part of nature.’[137]


International law is appropriate both in its own right and in complementing domestic law in enhancing environmental management. The need for it arises from a number of factors. Some of these factors are highlighted below.

                                 i.            Cross boundary nature of environmental problems arising from sharing of resources. The fact that, like human rights issues, some environmental problems have trans-frontier impacts automatically calls for concerted efforts by the international community either at global or regional levels. As far back as 1968, the European Water Charter,[138] one of the first modern international instruments relating to the environment, articulated a fundamental principle at the beginning of the ecological era. This was the principle that water, which is an environmental medium, knows no boundary.[139] Experience and observation make it obvious, for example, that neither the oceans nor the atmosphere, both considered as the common heritage of humankind, are constrained by boundaries. As such, cross-border efforts are required in combating environmental crises associated with them. Caldwell observes that there are more than 200 separate river basins in the world which are shared by two or more countries,[140] and with growing demands on water supplies for competitive commercial, agricultural, industrial and domestic purposes, almost everywhere access to these sources is becoming a matter of political friction.[141] These are issues, which can best be effectively addressed within the framework of international law.

                                ii.            International economic factors. International trade has become an important aspect of international co-operation. The production of goods is achieved at some cost to the environment. The states that protect their environment, which is a move to be applauded from an ecological point of view, are disadvantaged in a purely business sense, as the internalisation of costs has the effect of increasing the costs of production, thus increasing the prices of commodities. It is necessary to establish international legal measures that harmonise the requirements of environmental protection for all those involved in international trade, so as to ensure equity. This is the premise upon which the ‘polluter pays’ principle is based. The Rio Declaration includes it in rather abstract terms stating:

National legislation should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with regard to the public interest and without distorting international trade and investment.[142]


                              iii.            Prevention of international pollution. International co-operation and the adoption of common standards are important to combat the cross-border transfer of environmentally harmful substances such as nuclear waste and pesticides. Adopting such standards may fill in the gaps created by the absence of national law. Where a country does not rigorously enforce its national laws for one reason or another, other countries and multi-national business corporations may take advantage and pollute its environment. International environment law could provide the only barrier to the activities of such polluters. Where, for instance, there is a breakdown of law and order in a particular country, such as in the case with Somalia, which for a long time had no central government, other countries or multinational corporations were able to take advantage and deposit environmentally harmful materials in its territories. In such a situation, international environmental law may be invoked to prohibit a country from engaging in an act that may cause deleterious effects on the environment of other countries.

                              iv.            Setting the pace for domestic environmental law. International environmental law has often played the role of pacesetter for the development of national laws. The development of domestic environmental has particularly been driven by the trends of international law, the pressures of globalisation and the fact that many environmental problems occur irrespective of political interest. In many instances, international law principles crystallise to become national law through the process of domestication that varies from one country to another. The constitutional provisions contained in several countries’ Bill of Rights have been informed and shaped by a number of widely recognised international environmental law principles and rights.[143] International conferences provide platforms and forums which legitimise environmental policy as a universal concern among nations, and also create a place for environmental issues on many national agendas where they have previously been unrecognised. Conferences such as the UNCHE1972 and the Rio Earth Summit of 1992 were watershed events, providing impetus and guiding the development of environmental law principles. South Africa, for instance, adopted the Convention on Biodiversity in 1995.[144]A number of the Convention’s provisions were brought into South African law by the enactment of the National Environmental Management: Biodiversity Act 10 of 2004.[145]

                               v.            Enforcement or implementation of environmental human rights. Many international environmental instruments provide and recognise environmental rights, and make their implementation imperative. Without such instruments, it would be impossible to talk about international environmental human rights. As with other forms of human rights, international efforts are sometimes required to enforce them. International law therefore becomes very important.


Despite their variety in subject matter and geographical scope, international environmental law instruments, particularly treaties, share common characteristics, use similar legal techniques, and are often interrelated. Kiss states that they share the following features:

                                             i.                        Emphasis on national implementation measures being taken by state parties;

                                            ii.                        Call for creation of international supervisory mechanisms to review compliance by the state parties;

                                           iii.                        Have simplified procedures to enable rapid modification of treaties;

                                          iv.                        Use action plans for further measures;

                                            v.                        Emphasis creation of new institutions or the utilisation of already existing ones to promote continuous cooperation;

                                          vi.                        Utilise framework agreements and interrelated or cross-referenced provisions from other environmental instruments; and

                                        vii.                        They are regional and in many instances fall short of being global.[146]                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

A treaty or a convention binds all States parties, requiring an obligation from them. Courts in South Africa are required to interpret legislation in tandem with international law.[147]Kidd argues that NEMA contains provisions relating to international environmental law.[148]Where the country is not yet bound by an international instrument, the Minister may make decisions regarding accession and ratification of an international environmental instrument which may deal with the following:

(a)available resources to ensure implementation;

(b) views of interested and affected parties;

(c)  benefits to the Republic;

(d) disadvantage to the Republic;

(e) the estimated date when the instrument should come into effect;

(f) the estimated date when the instrument will become binding on the Republic;

(g) the minimum number of states required to sign the instrument in order for it to come into effect;

(h) the respective responsibilities of all national departments involved;

(i) the potential impact of accession on national parties;                                                                                                  

(j) reservations to be made,

 if any; and

(k) any matter which in the opinion of the minister is relevant.[149]









A number of environmental problems that affect Kenya  are not unique to the country. They are regional and, at times, global. As much as national efforts are required in ameliorating them, concerted regional and international efforts provide crucial opportunities.  As pointed out, one clear characteristic of environmental problems is that they are cross-border. In isolation, an individual country cannot act effectively. Environmental problems such as ozone layer depletion affect the entire world, and should always be the concern of all humanity. The obligations cannot be left to any single person or state. A number of environmental problems are global, affecting several countries and many peoples. It is little wonder that there has been an upsurge in international treaties in the last few years. Any given country will always find itself grappling with environmental issues resulting from external and internal factors. International co-operation in a spirit of mutual respect and understanding is imperative in achieving meaningful results. Likewise, countries should, in light of the doctrine of erga omnes shoulder obligations to all of humanity. Countries need to ensure that no activity which could adversely affect the environment is carried out within their territories.


A number of global environmental problems and challenges and how Kenya is grappling with them are examined below.




Human activities, including the burning of fossil fuels such as coal, oil and natural gas (for example in industrial processes) is commonplace. This, together with other activities such as deforestation, mining and construction are causing harm to the environment. Air pollution changes the atmospheric concentration of greenhouse gases that shape the planet’s climate. The industrial revolution has resulted in a tremendous increase in the levels of carbon dioxide in the atmosphere while the release of particular oxides into the atmosphere causes acid rain.[150] Global warming is a result of an increase in greenhouse gases. There are dangers arising from human activities that are associated with global warming. Scientists attached to the UN and the World Bank have identified such threats to include:

                                 i.            Significant increases in the geographical range and incidence of vector-borne diseases, particularly malaria and dengue, in the tropics and sub-tropics;


                                ii.             Increased risk of hunger and famine for many of the world’s poorest who depend on isolated agricultural systems, especially in the tropics and sub-tropics;


                               iii.            Displacement by rising sea levels of tens of millions of people   living on small islands and low-lying delta areas such as Egypt, Bangladesh and China;


                              iv.             Shifts in distribution, structure, and functioning of terrestrial and aquatic ecosystems, and potentially irreversible changes, such as loss of biodiversity;


                                v.             Decreased amounts of precipitation in many arid and semi-arid areas.[151]


The international community has undertaken a number of measures to counteract this problem. Many of the efforts have been carried out under the aegis of the UN. To address the issues of global warming, the United Nations Framework Convention on Climate Change (‘UNFCCC’) was adopted.[152] Parties acknowledged that the change in the earth’s climate and its adverse effects are a common concern of humanity.


The largest share of historical and current global emissions of greenhouse gases has originated in developed countries. On the other hand, the per capita emissions in developing countries are relatively low. However, the share of global emissions emanating from the less developed countries will inevitably grow because of growth in their social and economic activities. UNFCCC requires the developed countries to reduce their emissions but gives some leeway to the developing ones. This is based on the fact that for them to catch up with their developmental needs, gaseous emissions, although harmful and thus undesirable, are inevitable.


Article 1 of the UNFCCC calls on states to enact effective environmental legislation and ensure that environmental standards, management objectives and priorities reflect the environmental and development context to which they apply. It recognises that it is inappropriate to have all member states apply the same standards and gives some leeway to the developing ones. The rationale is that, as already alluded to, their economic growth cannot be expected without some increase in the release of greenhouse gases. The Convention’s objective ‘is to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’[153] Such a level is to be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.


In their quest to achieve the objectives of the convention and to implement its provisions, the Parties agree to be guided by the following principles.

                     i.            Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed countries should take the lead in combating climate change and the adverse effects thereof.

                    ii.            The specific needs and special circumstances of developing countries particularly those that are vulnerable to the adverse effects of climate change and those parties that would have to bear a disproportionate or abnormal burden under the convention, should be given full consideration.

                  iii.            The parties should take precautionary measures to anticipate, prevent or minimize the cause of climate change and mitigate its adverse effects.

                  iv.            The parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human induced change should be appropriate for the specific conditions of each party and should be integrated with national development programmes, taking into account the economic development essential for adopting measures to address climate change.

                   v.            The parties should cooperate to promote a supportive and an open international economic system that would lead to sustainable growth and development in all countries, particularly developing countries, thus enabling them better to address the problems of climate change. Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.[154]


The Kyoto Protocol to the UNFCCC was adopted on 11 December 1997 in Kyoto, Japan. The Protocol contains provisions enjoining the parties to commit themselves to reduce their emission of greenhouse gases.[155] Article 3 of the Protocol calls on parties to ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of greenhouse gases do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitment inscribed in Annex B of the instrument with a view to reducing overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period, 2008 to 2012.


The significance of these two instruments is that they seek to be fair and equitable to all countries by acknowledging the environmental harm that has been caused by industrialisation. It enjoins developed countries to reduce their greenhouse gas emissions, and at the same time notes the inevitability of gas emissions by developing countries as they transform their economies from basic subsistence and primary production to industrial. In other words, it appreciates the fact that, much as emissions are harmful and should consequently be reduced and ultimately done away with, this would be an impossible task for the developing countries, as their economic needs remain high, and their engagement in economic production will inevitably be at the added cost of emissions. The instruments will give some leeway to a developing country such as Kenya, which hopes to be industrialised by 2030.[156] This is seen to be a solution to many economic problems such as poverty and unemployment.




The depletion of the ozone layer poses a threat to human life and all forms of biodiversity. The earth’s ozone layer protects life from the sun’s harmful radiation[157] by acting as a shield.[158] This crucial shield, which human activities continue to damage, absorbs the sun’s ultra-violet rays. It has been scientifically proved that a sustained increase in ground-level UV-B radiation causes a number of harmful effects, including:

                                 i.            A significant increase in the incidence of melanoma skin cancer in light skinned people;

                                ii.            An accelerated formation of eye cataracts, which are the leading cause of blindness in many developing countries;

                              iii.            Potential suppression of the human immune system;

                              iv.            A decrease in the productivity of some terrestrial and aquatic ecosystems;

                               v.            A decrease in air quality, because UV-B radiation reacts with a number of air pollutants to form harmful oxidants, including tropospheric ozone.[159]


The earth’s atmosphere is divided into several layers. The lowest region, the troposphere, extends from the earth’s surface up to 10 kilometres in altitude. Virtually all human activities occur in the troposphere. Mount Everest, the highest mountain on earth is only 9 kilometres.[160] The next layer, the stratosphere, continues from 10 kilometres to about 50 kilometres.


Stratospheric ozone, which shields the earth from much of the sun’s harmful ultraviolet-B radiation, has been depleted at all latitudes except the tropics and sub-tropics as a result of the emissions of human-made compounds. The chemicals involved, including chlorofluorocarbons (‘CFCs’), halons, and related substances, have been used for decades in refrigerators and air-conditioners, and as cleaning solvents, foam blowing agents, aerosol propellants, and fire extinguishing agents.


The ozone layer is found between 15 to 50 kilometres above the surface of the earth and its depletion is said to be greatest in the Polar regions in late winter and early spring.[161] This depletion has resulted in an increase in the level of UV-B radiation reaching the Earth’s surface.


In the early 1970s, scientific researchers began to investigate the effects of various chemicals on the ozone layer, particularly CFCs, which contain chlorine. They also examined the potential impacts of all other chlorine sources. It was discovered that chlorine from swimming pools, industrial plants, sea salt and volcanoes does not reach the stratosphere.[162] Chlorine compounds from these sources readily combine with water (moisture) in the troposphere very quickly. By contrast, CFCs are very stable and do not dissolve in moisture, meaning that there are no natural processes that remove the CFCs from the lower atmosphere. Over time, wind drives the CFCs into the stratosphere.[163] The CFCs are said to be so stable that only exposure to the strong UV radiation breaks them down. When that happens, the CFC molecules release atomic chlorine. It has been established that one atom of chlorine can destroy over 100000 ozone molecules.[164] The net effect, therefore, is that ozone is destroyed at a faster rate than it is naturally created.


Natural processes have not been known to destroy the ozone layer. The destruction is generally blamed on human activities.[165] Thus, natural phenomena themselves do not appear to harm each other. Even when there are interactions, there are natural ways or processes by which restoration occurs.[166] Natural phenomena are in harmony with themselves, and it appears that only human beings interfere with them and, in the process, undermine the balance, subsequently bringing suffering unto themselves and indeed the entire life in the troposphere. Solutions to these problems therefore lie squarely in the control and regulation of human activities and behaviour.


As experts began to explore specific measures to be taken, the journal Nature published a paper in May 1985 by British scientists — led by Dr Joe Farman — about severe ozone depletion in the Antarctic. The scientists’ findings were confirmed by US satellite observations and offered the first proof of severe ozone depletion, thus making the need for definite measures to be taken more urgent.[167] These findings set the stage for the Montreal Protocol on Substances that Deplete the Ozone Layer of September in 1987. An agreement was reached on specific measures to be taken to protect the stratospheric ozone layer. The Montreal Protocol stipulates that the production and consumption of compounds that deplete the ozone in the stratosphere – CFCs, halons carbon tetrachloride, and methyl chloroform – were to be phased out by 2000 (2005 for methyl chloroform).[168]


In the Convention on the Protection of the Ozone Layer, [169]nations agreed to take ‘appropriate measures to protect human health and environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer’.[170] South Africa acceded to this Convention on 15 January 1990.[171] The measures are, however, unspecified. There is no mention of substances that might harm the ozone, and CFCs only appear towards the end of the annexure to the treaty, where they are mentioned as chemicals that should be monitored.[172] The main thrust of the Convention is to encourage research, cooperation and exchange of information among countries. The Convention provides for future protocols and specifies procedures for amendment and dispute settlement. The significance of this Convention lies in the fact that, for the first time, nations agreed in principle to tackle global environmental problems before their effect become full blown.


Kenya has domesticated its obligations regarding the protection of the ozone layer as stated in a number of the provisions in the Convention.[173] According to the EMCA, NEMA-K is obligated to engage in consultation with lead agencies,[174] to undertake or commission other persons to undertake national studies and give due recognition to development in scientific knowledge relating to substances, activities and practices that deplete the ozone layer to the detriment of public health and the environment.[175] Accordingly, NEMA-K is required to consult with the lead agencies for the purposes of issuing guidelines and instituting programmes concerning the –

                                 i.            Elimination of substances that deplete the stratospheric ozone layer;

                                ii.            Controlling of activities and practices likely to lead to the degradation of ozone layer and the stratosphere;

                              iii.            Reduction and minimisation of risks to human health created by the degradation of the ozone layer and the stratosphere; and

                              iv.            Formulate strategies, prepare and evaluate programmes for phasing out ozone depleting substances.[176]





A healthy environment is an important home for biological resources which are vital for human well-being. Biological resources have been defined to include genetic resources, organisms or part thereof, populations or any other biotic component of ecosystems with actual or potential use or value to humanity.[177]They are tangible or physical components of biological diversity (or biodiversity).


Kenya is rich in biodiversity. Their value is discussed in more detail in chapter five of this thesis. Biological diversity is the measure of variation in genes, species and ecosystems. The phrase ‘biological diversity’ encompasses three forms of variability: genetic diversity, species diversity and ecosystem diversity.[178] Biodiversity refers to the variety of life on earth, including the variety of species, the genetic variability within each species, and the variety of different ecosystems.[179] Genetic diversity refers to genetic information contained in the genes of individual plants, animals and micro-organisms that inhabit the earth; species diversity relates to the variety of habitats, biotic communities; and ecosystem diversity relates to the variety of habitat, biotic communities and ecological processes in the biosphere.[180]


Nature’s products support diverse industries such as agriculture, cosmetics, pharmaceuticals, paper and pulp, horticulture and construction. Loss of biodiversity threatens food supplies, opportunities for recreation, tourism, wood, medicines and energy, among other things.[181] Biodiversity plays a vital role in essential ecological services such as the purification of air and water; detoxification of decomposing waste; stabilisation and moderation of the earth’s climate; generation and renewal of soil fertility, including nutrients cycling; pollination of plants, including many crops; cultural and aesthetic benefits; and moderation of floods, droughts, temperatures and the extreme forces of wind.[182]


Over the years, human-induced climatic changes have increasingly become a major factor in the reduction of biodiversity. Pressures on biodiversity are, to a large extent, driven by the human need to use more land for economic development.


 Human activities are causing loss of biodiversity among animals, plants and ecosystems.[183]It is the combination of life forms and their interactions with each other and with the rest of the environment that has made the earth a uniquely habitable place for humans. Biodiversity provides a large number of goods and services that sustain human life. Protecting biodiversity resources is a sure way in which to guarantee the sustainable nourishment of humanity’s welfare.


Wildlife, such as elephants in Kenya, is dwindling in number due to poaching.[184] Loss of biodiversity is mostly the result of human-induced activities, including some of the following:

                                 i.            Habitat conversion; where land that was formerly the habitat of wild animals is converted for agricultural purposes.[185]

                                ii.            Fragmentation of large ecosystems into smaller, disconnected patches of original vegetation occurs particularly during re zoning of hitherto undeveloped land such as that on the outskirts of urban centres for economic development such as the construction of residential and business premises.

                              iii.            Over-exploitation of species from game-hunting for domestic human consumption or poaching of wild animals such as elephants.

                              iv.            Introduction or accidental release of exotic species can prove harmful to indigenous species.[186]

                               v.            Air and water pollution are harmful. Pollution including oil leaks in the seas is known to kill aquatic life.[187]


Forest resources are facing over-exploitation and are at risk of depletion in Kenya.[188] The country is experiencing threats where forest trees or species are facing extinction due to the conversion of forestland for agriculture and human settlement. These harmful activities are due to economic hardships, particularly unemployment. Pressure for agricultural land has seen the conversion of forest, grassland and wetland ecosystems into agro-ecosystems. These ecosystems are less stable and less resistant to various environmental interventions. Other ecological effects include soil and water contamination by chemicals and pesticides, land degradation and salinisation. Unsustainable exploitation of timber is also a cause of these problems.


The government under Daniel arap Moi (1978-2002) neglected the forestry sector. Despite its importance and the significant role it plays in economic development, forests were often not accorded due recognition by the then Ministry of Finance and Planning[189] in budgetary allocations. This was clearly demonstrated by the fact that investments and management of the sector was largely donor driven. In the financial year 2000/2001, for example, donor funding to this sector (for development and recurrent expenditure) was 78 per cent, compared with 22 per cent contributed by the Kenyan government. The investment in the sector over the 1999/2000-budget year was a meagre Ksh 720 million compared to a total government budget of Ksh 287,840 million.[190] This translated to 0.25 per cent of the total budget.


Some of the reasons why the Ministry of Planning has not been inclined to accord much significance to the forest sector include:

                                 i.            Lack of reliable statistics that can be used for planning;

                                ii.            The existence of unaccounted for values;

                              iii.            The lack of an established environmental accounting system in the national income accounts;

                              iv.            The lack of human capacity in resource economics and in the field of environmental economics and accounting;

                               v.            The difficulty in factoring out the social costs of deforestation from other causes of environmental degradation;

                              vi.            The poor linkages between development planning and financing of programmes and projects.[191]


Without reasonable financial backing from the central government, it is difficult for the ministry in charge of forestry to develop sound policies that would ensure sustainable exploitation of forest resources. The official policy appears to be that the forestry resources belong to the government and that it can do anything with them. The government has managed forests as though it was the owner, rather than trustee. An investigative article by the Daily Nation newspaper revealed shocking information about the beneficiaries of forestland and resources therein.[192]


This is best demonstrated by the constant land use changes in forests and unsustainable use of forest resources. Forest excisions and boundary alterations have been carried out without regard for the views of forest-dependent communities or other stakeholders. It is common practice for senior government officials to excise forests and divide some parts into small portions. This is ostensibly to distribute land to the poor, but in reality corruptly allocates it to the rich and powerful. It is little wonder that when taken to task to explain all this plundering of the forest, the then minister Mr Kalweo, whose portfolio included forestry, answered that forest excision had greatly helped in alleviating famine, diseases and poverty and that degazettment had benefited deserving cases for the development of schools, hospitals and other amenities including resettling the landless.[193] This is always the pretext used, and for the government to advance such simplistic explanations regarding matters of national importance shows how little it cares about conservation.


Activities that reduce biodiversity jeopardise economic development and human health through the loss of useful materials, genetic stocks, and the services of intact ecosystems. Material losses include food, wood and medicines, as well as resources important for recreation and tourism. Loss of biodiversity is a sure way of eroding human welfare and loss of income. For underdeveloped countries this leads to heightened problems of poverty, worsening the already bad situation viz. disease and malnutrition and reduced life expectancy.


Losing genetic diversity makes it even more likely that further environmental degradation will result in serious reductions in the goods and services that the earth’s ecosystem is otherwise capable of providing. Finally, in addition to the economic reasons for protecting biodiversity, proponents of environmentalism go further and seek a fundamental shift in consciousness from the human domination of nature to a perception of human and non-human life as having equal intrinsic value, as is discussed in greater depth in chapter three.


Efforts towards the conservation of biodiversity have been made in several forums at global level.[194] One of the key agreements adopted at the Rio Earth Summit, 1992, was the Convention on the Conservation of Biological Diversity. In this pact, governments set out commitments for maintaining the world’s ecological underpinnings as they go about the business of economic development. The convention established three goals: the conservation of biological diversity; the sustainable use of its components; and the fair and equitable sharing of the benefits of genetic resources.[195]


The conference of the parties to the convention adopted a supplementary agreement to the convention known as the Cartagena Protocol on Bio-safety.[196] The objective of the Protocol is to contribute to the safe transfer, handling and use of Living Modified Organisms (‘LMOs’) and sustainable use of biological diversity, taking into account risks to human health, and specifically focussing on trans-boundary movement.[197] The Protocol also seeks to protect biological diversity from potential risks that may be posed by LMOs that are affected by modern biotechnology. It establishes an advanced agreement procedure for ensuring that countries are provided with prior written notification and information necessary to make informed decisions before agreeing to the first import of LMOs that are to be intentionally introduced into the environment.


The Protocol makes reference to the Precautionary Principle 15 of the Rio Declaration on Environment and Development of 1992.[198] The Protocol also establishes a bio safety-clearing house to facilitate the exchange of information and experiences on LMOs and to assist countries in the implementation of the Protocol.[199]


It has been said that Convention on Biological Diversity is a landmark in the environment and development field.[200] The overall objective of the convention is to conserve biological diversity, promote sustainable use of its components, and fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.[201] For the first time, a holistic and integrated, rather than a species-based approach is taken to the conservation and sustainable utilisation of natural resources. It provisions are generally expressed as overall goals and polices rather than precise obligations. It adopts a holistic approach by not setting targets or including lists of specifies or areas to be protected. It sets general rights and obligations.




One of the consequences of intensive use of land, particularly arid and semi-arid lands, has been massive land degradation. This has often resulted in a marked decrease in soil fertility.[202] Erosion, salinisation, compaction, and other forms of degradation have lowered the fertility of land.[203] Low soil fertility reduces food and cash crop production. The loss of soil fertility adversely affects pastureland. All of these combine to worsen the vulnerable economies of many developing countries.[204] The spread of desert conditions ultimately undermines sustainable development.[205]


Desertification and land degradation result from poor land management, which is exacerbated by climatic variations. Decreasing soil organic matter is almost always a clear indication of soil degradation, and often is accompanied by reductions in water infiltration, fertility and ability to retain fertilizer. Desertification is a real problem in sub-Saharan Africa. The expansion of the Sahel desert is causing significant concern to countries in the Horn of Africa region.[206] The Intergovernmental Organisation on Growth and Development (‘IGAD’) was founded partly by countries from the region to initiate programmes to counter the spread of deserts.


Likewise, land degradation is a huge problem in South Africa. UNEP classifies more than 90 per cent of the country as arid or semi-arid or sub-humid.[207] Many of the land problems that South Africa suffers today are a legacy of apartheid.[208] Desertification is exacerbated by inequitable land ownership. UNEP indicates in its report that the former homelands or Bantustans areas are the most severely degraded in the country.[209]Many decades of too much pressure on land is a major contributor. Agricultural land in the former homelands has been overgrazed and over cropped. This was exacerbated by land tenure laws and practices in the former homelands and townships which did not encourage people to conserve land in which they did not have a stake.


Desertification and land degradation undermine efforts towards sustainable development, the vehicle that seeks to ensure that the economic interests of the present and future generations are safeguarded.[210] Desertification reduces the ability of land to support life, affecting wild species, domestic animals, agricultural crops and people. This leads to increased poverty, poor health, malnutrition, impaired child development and susceptibility to diseases. Severe desert conditions have been known to be a major contributory factor to large-scale human migration, which can become a source of social tensions and cross-border security issues in some countries.[211] Intense poverty among some nomadic groups, attributed to change in climate and growth of desert conditions, often lead them to raid their neighbours for livestock. In the process this contributes to cross-border insecurity.[212] On the other hand, nomads escaping the harsh desert conditions in fact end up extending the same conditions through their land use and practices which are ecologically insensitive.


Agenda 21 dwells on issues regarding deserts in its 12th Chapter, Managing Fragile Ecosystems: Combating Desertification and Drought. Fragile ecosystems are identified as including deserts, semi-arid lands, mountain, wetlands, small Islands and certain coastal areas. Accordingly, the most obvious impact of desertification, in addition to widespread poverty around the world, is the degradation of 3.3 billion hectares of the total area of rangeland, constituting 73 per cent of the rangeland with a low potential for human and animal carrying capacity.[213] Agenda 21 called on the UN General Assembly to set up an inter-governmental committee to prepare a legally binding instrument that would address the problem of desertification.


Former UN Secretary General, Kofi Annan, stated that ‘drought and desertification threaten the livelihood of over 1 billion people in more than 110 countries around the world’.[214] On 17 June 1994, the United Nations Convention to Combat Desertification (‘UNCCD’) was adopted in Paris, France. June 17 has become the world’s day to combat desertification.[215] The objective of the convention is ‘to combat desertification and mitigate the effects of drought in countries experiencing serious drought and desertification, particularly in Africa’.[216]To achieve this, the convention calls for action involving international cooperation and a partnership approach.[217] It focuses on improving land productivity, rehabilitation of land conservation and sustainable management of land and water resources. Fighting desertification and reducing the effects of desert conditions could go a long way in reversing incidences of mass migration, human conflicts over scarce resources such as water, loss of biodiversity and climate change.


Effective strategies, programmes and a plan of action for combating desertification should include actively engaging in mobilising both human and financial resources; conducting scientific research; and promoting afforestation programmes. Developing countries might not have the financial and human capacity to pursue all these, and therefore industrialised nations and international financial institutions, such as the IMF and World Bank, should assist in capacity building under the principle of common but differentiated responsibility.




Pollution is a process that adversely affects human well being and survival. EMCA defines pollution to mean:

Any direct or indirect alteration of the physical, thermal, chemical, biological, or radio-active properties of any part of the environment by discharging, emitting, or depositing wastes so as to effect any beneficial use adversely, to cause a condition which is hazardous or potentially hazardous to public health, safety or welfare, or to animals, birds, wildlife, fish or aquatic life, or plants or to cause contravention of any condition, limitation, or restriction.[218]

Accordingly, ‘pollutant’ includes any substance whether liquid, solid or gaseous which-.

(a)    may directly or indirectly alter the quality of any element of the receiving environment;

(b)    is hazardous or potentially hazardous to human health or the environment; and includes objectionable odours, radio-activity, noise, temperature change or physical, chemical or biological change to any segment or element of the environment.


In South Africa pollution is defined to be:

            Any change in the environment caused by-


(i)                   substance;

(ii)                  radioactive or other waves; or

(iii)                noise, odours, dust or heat,

emitted from any activity, including the storage or treatment of waste substances, construction and the provision of service, whether engaged in by any person or organ of state, where that change has an adverse effect on human health or well-being or on the composition, resilience and productivity of natural or managed ecosystems, or on materials useful to people, or will have such an effect in the future’.[219]


Pollution may be said to be the addition of any substance or form of energy (for example heat, sound, radioactivity) to the environment at a rate faster than the environment can accommodate it by dispersion, breakdown, recycling or storage in some harmless form. Pollution is harmful as it can destroy biodiversity or may have the ecological effect of altering the environment.              


 Pollution occurs when a substance or energy is introduced into an environmental medium such as soil, air or water especially in a concentrated form. It happens in many forms, but mainly through human activities. The consequences include environmental degradation. These are evident in the killing of biodiversity or the weakening of it through diseases or, in the case of land, rendering it into wastelands with little or no economic value. Pollution is a major problem in most urban areas in the world. It is one of the most noticeable ecological problems in cities all over the world and exacerbates poverty among the masses, particularly slum dwellers.


Human activities result in the pumping into the atmosphere of over 8 billion tons of carbon, along with millions of tons of nitrogen oxides, sulphur dioxide particulate, and other such airborne waste every year.[220]The oceans are not spared either.[221] Besides the problem of pollution, which needs concerted efforts and co-operation of states to reverse, species such as whales are facing extinction as a result of pollution.[222] Sea pollution is mainly caused by hundreds of tons of sewage, agricultural runoff, industrial waste and oil leaks from shipping accidents.[223]


Persistent Organic Pollutants (‘POPs’) are human made compounds such as dioxins, DDT, toxaphene, dieldrin and hexachlorobenzene. These chemicals are put into use in industrial and agricultural processes and products such as pesticides. The processes by which such chemicals are released into the environmental media such as water, land and air are also human induced. They are mainly released as by-products whose chemical structure allows them to persist in the environment, resisting natural degradation. They can be carried long distances by wind, water or inside human made vessels such as ships. Scientifically, some of the pollutants are known for their toxicity and have the capacity to destroy vegetation and kill animals or cause cancerous growths and birth defects in human beings.[224]


The international community has sought to address these problems through the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.[225]It has facilitated the initiation of a procedure, Prior Informed Consent (‘PIC’), that helps participating countries to learn more about the characteristics of potentially hazardous chemicals that may be shipped to them with a view to sharing responsibility between exporting and importing countries in protecting human health and the environment from harmful effects of hazardous chemicals that may be traded internationally. The Food and Agriculture Organisation (‘FAO’) and UNEP jointly implement PIC.


Kenya joined other African countries under the Organisation of African Unity (‘OAU’), the predecessor to the AU, in negotiating and concluding the Convention on the Ban of the Import into Africa and the Control of Trans-boundary Movement and Management of Hazardous Wastes within Africa. This was signed in Bamako, Mali on 29 January 1991. The Bamako Convention is the most comprehensive instrument that seeks to regulate problems of hazardous wastes in the region. The parties to the convention expressed their determination to protect, by strict control, the health of the African populations and the environment against any adverse effects, which may result from the generation of hazardous waste.[226] In this way, they underscored the need for the adoption of precautionary measures as a way of preventing pollution by the release into the environment of substances which may cause harm to humanity and the environment without waiting for scientific proof of such harm.[227]


Intra-African cooperation is emphasised as a means of implementing the provisions of the convention.[228] For effective enforcement of this convention, its domestication into the national law of the member countries is crucial. This ought to be followed by effective programmes for capacity building, training of personnel, sharing of information and monitoring procedures. Most African countries do not have the capacity and the political will to undertake their responsibilities regarding the environment, not only under this convention but under international law in general.


Kenya has not domesticated the provision of this Convention. However, even without domestication, the same is applicable by virtue of the provisions of the constitution.[229] The only statutory provision that comes close to regulating hazardous waste is the Traffic Act.[230] It is, however, of limited application as it only prohibits the parking of vehicles carrying hazardous substances within specified urban areas for long periods.


The global Basel Convention on the Control of Trans-boundary Movement of Hazardous Wastes and Their Disposal was adopted in March 1989. African countries generally objected to this Convention, primarily because it allowed for trans-boundary movement of hazardous waste. In their view, allowance for controlled movement, however regulated, is open to abuse.[231]


Kenya’s Public Health (Ports, Airports and Frontier) Rules promulgated in 1970 under the Public Health Act[232] are significant in their protection of the marine environment. This act authorises a health officer to take all practical measures to control the discharge of a ship’s sewage or refuse which might contaminate any waters of a port, river or canal. Section 74(2) provides that it is an offence to violate these rules and, upon conviction for violation, the perpetrator is liable to a fine not exceeding one thousand shillings or imprisonment without the option of a fine for a term not exceeding three months, or both. One thousand shillings in today’s exchange rate is equivalent to US $ 12.80. This penalty cannot be said to have an effective deterrent effect.


Laws for the protection of the marine environment are particularly deficient in respect of pollution from land-based sources which constitutes a substantial cause of environmental degradation. These include the silt load from agricultural fields that contain agricultural inputs like pesticides, and industrial discharges and municipal sewerage. Kenya has a considerably long coastline that is shared with Tanzania and Somalia.[233] Because of this, Kenya should come up with stringent policies for the protection of the marine environment as it might take Somalia a long time to come up with effective environmental management policies.


Other forms of pollution have been the result of defects in technology and industrial accidents that have caused the release of harmful substances into the atmosphere. The Chernobyl nuclear reactor disaster of 1986 is a case in point. On 26 April 1986, a nuclear power station in Chernobyl in the Ukraine, then part of the Soviet Union (USSR), experienced an accident which caused the dispersal of radioactive substance over the northern hemisphere, with serious environmental and health problems affecting Europe and in particular the Ukraine.[234]


At the global level, the disaster had the effect of decreasing confidence in nuclear energy. In the period just after the accident, many areas received lethal doses, whose greatest impact were in the coniferous trees and small mammals present within 10 kilometres of the reactor. Foodstuffs such as milk and green vegetables were contaminated by radioactive materials soon after the accident. Plant personnel, fire-fighters, clean up workers and medical staff also suffered acute health problems. Overall, 237 individuals were thought to have suffered from acute radiation sickness, of whom 28 died.[235]


One of the major long-term effects was observed in children. In 1996, a joint report from the European Commission (‘EC’), the International Atomic Energy Authority (‘IAEA’) and the World Health Organisation (‘WHO’) stated that radiation exposure from the accident had led to a highly significant rate of thyroid cancer in children in the three most affected countries, Russia, Belarus and the Ukraine.[236] Other reports give details of problems such as a 50 per cent drop in the birth rate in Belarus, with a steady rise in the number of miscarriages and birth defects.[237]


Chernobyl offers a painful lesson to humanity of the potential danger of defects in technology. Although we receive many benefits from our day-to-day advanced science and technology, it is essential to realise that they harbour potentially negative aspects. The effects of the Chernobyl disaster are typical characteristics of the trans-boundary nature of environmental pollution.[238]


The TrailSmelter case of North America is another illustration of the trans-boundary ramifications of pollution.[239] The Trail Smelter Arbitration on Air Pollution was the first air pollution case to be decided by international arbitration. It was a long and drawn-out case between Canada and the United States, which took over a decade. The dispute concerned  damage caused to crops in Washington state in the US by pollution from the zinc and lead smelting plants of a mining and smelting company operating inside Canada.


In 1927, farmers in the US complained that their crops and health had been damaged by sulphur dioxide emissions from the Canadian side, which had been taking place from 1925.[240] The matter was referred to a tribunal, which held Canada liable and awarded $78,000 in damages. The Trail Smelter Arbitration made an important contribution in two respects. First, it established the precedent of investigating trans-boundary pollution damage through international arbitration. Second, it established the principle of state responsibility for trans-boundary environmental interferences.[241] This means that a state is responsible for acts that are committed within its territory that cause environmental harm in the territory of another state. Further, the tribunal’s award opened up the possibility of individual action against trans-boundary polluters in the event of serious consequences.[242] This has subsequently become a principle of customary international law.


The principle of the abuse of rights has also been developed to protect states from harmful environmental effects from their neighbours.[243]The principle requires balancing the interests of the two states, and respecting proportionality in conduct.[244] The OECD Principles on Trans-frontier Pollution explicitly refer in the introduction to ‘a fair balance of rights and obligations among countries concerned by transfrontier pollution’[245]and subsequently state that countries should seek, as far as possible, an equitable balance of their rights and obligations as regards the zones affected by transfrontier pollution.[246] Although it recognises the exclusive territorial jurisdiction of the polluting states, it nonetheless subordinates the state’s sovereignty or power to the superior rule of international law, which forbids sovereignty to be exercised in an abusive manner. Abuse can consist in the arbitrary exercise of the right, that is, in the absence of an acceptable motivation for an action when the activity prejudices another state.[247] It can result from acts whose benefits are negligible when compared to the consequences produced in the other state.[248]An agreement between Finland and Sweden concerning boundary waters incorporates this concept:

Where the construction would result in a substantial deterioration in living conditions of the population or cause a permanent change in natural conditions such as might entail substantially diminished comfort for people living in the vicinity or significant nature conservancy loss or where significant public interest would be otherwise prejudiced, the construction shall be permitted only if it is of particular importance for the economy or for the locality or from some other public standpoint.[249]


According to Article 5(1) of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses:

Watercourse states shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by a watercourse state with a view to attaining optimal utilization thereof and benefits therefrom, taking into account the interests of other watercourse States concerned, consistent with adequate protection of the watercourse.[250]


The need to reconcile the rights of the two states is evident. In general international law, there is a fundamental principle based on state practice, announced by the ICJ in its judgement in the Corfu Channel case.[251] The court referred to ‘every State’s obligation not to knowingly allow its territory to be used contrary to the rights of other States’.[252] In the same year as this decision, the United Nations Survey Information of International Law concluded that there is ‘general recognition of the rule that a State must not permit the use of its territory for purposes injurious to the interests of other States in a manner contrary to international law’.[253] States are obliged under international law to notify others of environmental crises.[254] For instance, the United Nations Convention on the Law of the Sea (‘UNCLOS’), sums up the provisions contained in various conventions relating to marine pollution, both in general and in regard to regional seas, by stating that:

When a state becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other States it deems to be affected by such damage, as well as the competent international organisation.[255]


International law therefore provides the most appropriate forum for addressing cross-border pollution. Domestic law is restricted to the borders of a given country, while international law, being supra-national, is the only option through which the community of nations is able to address cross-border environmental issues including pollution. There is, however a need for countries to domesticate international law standards in a way that will enhance their obligations.




Population growth and landlessness in Kenya has created pressure on poor people to continue the exploitation of marginal rural and urban environments for survival. This leads to resource degradation, which in turn creates more poverty and jeopardises their survival in the long term. The marginal areas in the two countries are either remote or ecologically fragile rural areas or, increasingly, are at the edges of growing urban areas and can barely support adequate lifestyles. Government’s development plans in Kenya have concentrated on highly populated areas.


If the population growth rate is slow, it becomes possible to invest more resources in uplifting educational standards and in developing skills, health care, and infrastructure. In turn, individuals’ incomes rise, and hence savings and, consequently, investment rises. More jobs are created. More resources go a long way towards boosting productivity, thereby improving living standards. Where the existing population is productive and the economic environment conducive more savings will be made and pressures on resources are reduced.


 Slowing the increase in population, especially in the face of a rising per capita demand for natural resources, can take pressure off the environment and buy time to improve people’s living standards on a sustainable basis. Poverty eradication is one of the rallying calls in a number of developing economies.[256] With high population growth rates, such a goal becomes elusive because the high growth occurs mainly among poor families. Population growth ushers more people into poverty in the short run and makes escape from poverty difficult. It becomes difficult to save income for future investment when it is committed to trying to keep up with the current needs of rapidly growing numbers of people. In such a situation, the majority of households inevitably find themselves living from hand to mouth, as the vicious cycle of poverty engulfs their lifestyles.


Many people are worried that if the population continues to grow at the current rate, the earth will run out of resources and the environment will not be able to sustain the number of people on the earth.[257] An increase in population has direct links to loss of ecosystems such as forest land and land originally occupied by wild animals in developing countries. This is more so in sub-Saharan Africa where subsistence agriculture is the main economic activity of the majority of people in rural areas. Population pressure causes a rise in demand for land for subsistence agriculture and human settlement. Population growth also causes pressure on the available water and fishery resources.[258] As the world’s population increases and urbanisation and industrialisation take hold, the demand for water keeps rising, while the quality continues to deteriorate. Today, water scarcity affects many nations, particularly the developing ones. Access to clean drinking water and sanitation also remain poor.[259]


Family planning programmes play key roles in stabilising population growth, in any given country. Where family planning information and services are widely available and accessible, couples are better able to determine the number of children they want to bring up. Indeed, if countries made a commitment to population stabilisation and resource conservation, the world would better be able to meet the challenges of sustainable development.


The world’s private sector has shown commitment to population stabilisation. In 1979, for instance, US media millionaire Ted Turner began the trend of donating huge sums of private money towards population control when he donated US $ 1 billion to the UN Population Fund.[260] The highest single contribution, however, came from the American software billionaire, Bill Gates, who donated the vast amount of US $ 2.2 billion to his private foundation which supports population control.[261]


Poverty and environmental degradation are the result of tendencies inherent in most economic systems to externalise environmental and social costs. Likewise, limited access to resources often leave the poor in situations in which they have limited choices and in which they are more preoccupied with their immediate survival needs than in conserving resources for purposes of long term sustainability. There is always pressure on the impoverished groups to exploit increasingly marginal environments to meet immediate survival needs, which leads to environmental degradation and even deeper conditions of poverty in the long run. It has been noted that:

                                 i.            poverty and environmental degradation have the same or related root causes;

                                ii.            poverty reduction is a prerequisite for sustainable development; and

                               iii.            the poor are both victims and agents of environmental damage;

                              iv.            alleviating poverty is not only moral but also a prerequisite for environmental sustainability and sustainable development.

                               v.            that past attempts to address these issues have mostly suffered from a lack of integration.[262]


Issues of poverty and environment are better dealt with jointly. Sustainable development, in the long run, has the effect of reducing poverty levels and ensuring a decent living for a country’s citizens. In Kenya and South Africa, the burden of HIV/Aids is partly attributed to environmental factors. Social ills such as poverty, ignorance, and promiscuity as a survival occupation cause the spread of HIV/Aids and related complexities such as sexually transmitted diseases and waterborne diseases. These are associated with inadequate sanitation services and water supplies, poor water drainage and poor housing.


Poverty levels remain high in Kenya. Poverty may be absolute or relative and may be defined in various ways. The condition of absolute poverty generally refers to people whose income is insufficient to obtain the necessities to function effectively. There is no definitive measure because nutritional needs, and other minimal necessities vary according to climate, age, sex and health. Often from a narrow perspective, the measurements are based on the percentage of income required for food and housing needs.[263]


In 1978, Robert McNamara, former President of the World Bank, described absolute poverty as ‘a condition of life so limited by malnutrition, illiteracy, disease, squalid surroundings, high infant mortality and low life expectancy as to beneath any reasonable definition of human decency’.[264] The poverty line as defined by the World Bank is about US $ 420 per capita, in 1990 prices. Relative poverty is defined by the ability to live according to cultural norms and expectations or contemporary standards of living measured according to the median income of the society in which it occurs.[265]


The most widely used indicators of development are Gross Domestic Product (‘GDP’) and per capita income. They provide an aggregate measure of market based production and consumption, and the degree of access to productive and consumptive goods. With respect to poverty, they are used to develop a head count of persons below the poverty line.[266] The number of Kenyans, now living below Kshs 83 per day (equivalent to 1 US$) and therefore in extreme poverty is more than 10 Million out of a total population of 40 Million.[267] This means that one in every four Kenyans is extremely poor. It is easy to notice widespread poverty in the country. It is evidenced by the fact that in most rural areas basic infrastructure is lacking, social amenities such as schools and hospitals are few and far apart, unemployment is rampant, and people live in squalor, with hardly enough food to eat. Frustrations among adults are reflected in alcoholism and drunkenness. Malnutrition among children and concomitant diseases such as kwashiorkor are common.


There are many people who live in dilapidated and poorly constructed shelters, mostly with grass thatched roofs and mud walls that are vulnerable to the vagaries of the weather. The urban areas, including Nairobi, the capital city, are no better. The state of infrastructure, particularly roads, is pathetic. Many people have small informal dilapidated shelters in slum areas, such as Mathare Valley and Kibera, as their homes. There are urchins and street families who beg within the central business district (‘CBD’) of Nairobi. This is a city facing many critical challenges as a modern metropolis that include public health, insecurity, environmental degradation, pollution, poor sanitation, unemployment, homelessness and poor housing.


Income inequalities in Kenya are also considerably high. In fact, the country is among the 30 most unequal societies in the world, and among the top-low income economies with high concentration of income among 10 per cent of the population, which controls 35 per cent of the national income.[268] According to the Human Development Report 2001, Kenyans were poorer in 2001 than they were five years before. This has not improved. The vulnerable groups include single mothers, pastoralists, slum dwellers and peasant agriculturists. In addition, results of the welfare monitoring report indicate that the level of poverty rose from 40.3 per cent in 1994 to 52.3 percent in 1997, and has been increasing steadily over the years.[269]


In 2001, the number of Kenyans unable to afford decent food, medical services and education increased by 9 per cent, which is up 26 per cent in 1997 to 35 per cent. Despite the launch of a poverty eradication strategy by the government in the same year, nothing has changed so far.[270] According to this report, the Human Development Index, (which measures the average achievements made by a country in meeting basic needs like food, shelter and health), has declined sharply in the last five years, so that most Kenyans can be described as living from hand to mouth.


Eradication of poverty is the most profound challenge facing Kenya. Population growth needs to be checked so as to ensure that natural resource bases are not depleted. Likewise, available resources need to be shared on equitable basis. High levels of poverty are compounded by high levels of inequality, lack of access to natural resources and financial resources in certain sectors. Those who bear the brunt of poverty and marginalisation are illiterate people, mostly women, women-headed households, the young, and the elderly who are mostly in urban slums and in the rural areas. Despite the presence of vast natural resources in the two countries, poverty alleviation provides a lot of challenges. Poor people may become trapped in short time-horizons with respect to resources over which they have little or no control because they lack assurances of future access to such resources or because they lack other economic opportunities. To the extent that they are excluded from participation in the market economy, they also rely directly on non-marketed natural resources for their immediate survival.


Prudent and sustainable use of natural resources provides the basis for addressing issues of poverty, such as diseases and unemployment. Kenya needs to adopt policies that will inspire economic growth and diversification in the production and promotion of exports. Sustained economic growth goes a long way towards reducing unemployment, improving peoples’ incomes and hence their lifestyles, and increasing life expectancy. The rapid expansion in the movement of goods, services, capital, technology, ideas and people around the world offers the prospect of stimulating economic growth and productivity and improving living standards. In this age of globalisation, a collective effort is required at global, regional and national level to provide a framework within which market forces can be harnessed to maintain and increase growth and to create jobs, while preserving the environment for future generations and strengthening social cohesion.


It is important that the world’s resources are equitably used to the benefit of many people. Inequality in the distribution of the resources is widespread. The right to a healthy environment and sustainable development needs to be pursued so as to address poverty. The need to address poverty throughout the world is crucial: poverty is a global concern. The international community has set many agendas to address the reduction of poverty levels, particularly in developing countries. These have been articulated in many recent gatherings. It is noteworthy that the UN Development Goals are geared towards addressing issues of poverty. The UN is accordingly determined to:

                                 i.            Halve poverty and hunger by 2015

                                ii.            Attain universal primary education

                               iii.            Promote gender equality

                              iv.            Reduce child mortality

                                v.            Combat HIV/Aids

                              vi.            Ensure environmental sustainability

                             vii.            Develop a global partnership for development.[271]


UNEP’s Global Ministerial Environmental Forum adopted the Malmo Declaration in May 2000 in which it was noted that poverty is a crucial issue that needs to be addressed. The declaration noted that the 2002 WSSD should address two major challenges to sustainable development, namely (i) the pervasive effects of the burden of poverty on at least half of humanity, and (ii) the excessive and wasteful consumption and inefficient use of resources that perpetuate the vicious cycle of environmental degradation and increasing poverty.[272]


Since the Malmo Declaration, the following major initiatives have taken place.

                                 i.            In September 2000, 146 heads of state pledged in the United Nations Millennium Declaration to spare no effort to free all humanity – and, above all, future generations – from the threat of living on a planet irredeemably spoiled by human activities and whose resources would no longer be sufficient to meet their needs.

                                ii.            In February 2001, the Governing Council Decision 21/15 requested that the UNEP undertake an analysis of the poverty-environment nexus and advise governments from developing countries on how to better incorporate key environmental sectors in their poverty reduction strategies.[273]


The Declaration and Governing Council Decisions have given a clear mandate for UNEP to advise governments, especially in the less developed and highly indebted countries such as Kenya, on ways and means to incorporate environmental considerations within the context of Poverty Reduction Strategy Papers (‘PRSPs’), Country Assistance Strategies (‘CASs’) and national development plans. This role is especially important as the momentum for the development of the PRSPs increases and is beginning to be accepted as the standard for international aid.


The World Bank, a primary architect of PRSPs, has produced a guidebook for policy makers in developing countries to use when formulating their respective PRSPs. There is a chapter on the environment that provides valuable information on integrating environmental concerns into poverty reduction strategies. The World Bank Environmental Strategy acknowledges the important role the environment plays in poverty alleviation through three channels.[274] The first thrust of the initiative is based on improving the quality of life by:

                                 i.            Improving people’s health by air pollution, waterborne and vector borne diseases and toxic substances;

                                ii.            Enhancing poor people’s vulnerability to environmental risks such as natural disasters, severe weather fluctuations and the effects of climate change by getting information to poor communities and empowering them to adapt.[275]


The second thrust relies on improving the quality of growth by:

                                 i.            Improving the policy, regulatory and institutional frameworks for sustainable environmental management; and

                                ii.            Supporting environmentally and socially sustainable private sector development.[276]


The third thrust lies in protecting the quality of the regional and global commons by:

                                 i.            Focusing on the positive linkages between poverty reduction and environmental protection;

                                ii.            Focusing first on local environmental benefits, and building overlaps with regional and global benefits;

                              iii.            Addressing the vulnerability and adaptation needs of developing countries;

                              iv.            Facilitating transfer of financial resources to meet costs of generating global environmental benefits not matched by national benefits; and

                               v.            Stimulating markets for global environmental goods.[277]


Issues of poverty, particularly in the developing countries have also become a concern for the EU, which has adopted plans and programmes of actions towards addressing poverty and environment in developing countries such as Kenya. It has gone on record as expressing its concern on poverty levels and environment situations in developing countries by stating:

The marginalisation of many economies, the increase in poverty in the world, the need to manage better environmental interdependencies, the destabilizing effect of migration, and the consequences of armed conflicts, natural disasters and pandemics are major concerns for everyone and Europe’s citizens understandably expect effective EU action in tackling them. Given the finances at its disposal and their economic and political weight the EU can make an impact.[278]



Kenya also benefited from the EU declared shift of policy towards helping the poor countries, and the EU is on record stating:

The European Union believes that it is politically and morally unacceptable that more than 1 billion people on the planet still have to survive on less than one euro per day. As a result the fight against poverty is the central thrust of the EU’s development policy efforts as it concentrates its attention on a more limited number of policy areas.[279]


Other European frameworks assisting the least developed countries including Kenya could be pursued through international trade agreements. It is notable that the EU played a vital role initiating the Cotonou Agreement.[280] This was signed in 2000 in the capital of Benin, which gives it its informal name. At the occasion, six new countries from the Pacific joined, bringing the total to 77 African Caribbean and Pacific (‘ACP’) members. The outcome underlines how far the partnership has evolved over 25 years.


 The agreement sets out an integrated and comprehensive approach to sustainable development, poverty eradication, trade and political dialogue that include prevention of conflicts, the promotion of human rights and democratisation and issues of mutual concerns such as migration. It also includes some notable qualitative changes from its predecessors, as it moves from market-access-based trade relations to a more comprehensive relationship, and from government to government partnerships to a more inclusive process involving all elements of civil society. It is both comprehensive and innovative.


Pursuant to this agreement, the EU has instituted special trade concessions for all least developed countries, of which 39 are signatories of the Cotonou Agreement. The agreement introduces more refined ways of determining fluctuations in export earnings for the ACP countries than the previous compensation schemes.[281] The implementation of the terms of this agreement could go a long way in underscoring the international environmental principle of common but differentiated responsibilities discussed above.


The above arrangements could be harnessed to address problems of poverty in Kenya. In particular, more access to European markets would promote exports. As Kenya relies heavily on agriculture, increase in exports of agricultural products would spur development in the rural areas and this would in turn have the effect of reducing rural-urban migration, as jobs would be created and hence poverty alleviated. With prudent sustainable economic management, this would expand the capital that could be used for environmental conservation, among other things.


The US has, under the African Growth and Opportunity Act (‘AGOA’),[282] provided incentives to the developing African countries such as Kenya and South Africa, aimed at promoting exports of goods to US markets. Kenya has responded positively to this initiative. The growing and processing of cotton, where Kenya has been given a certain quota to export to the US, is being revived. A number of textile industries such as Raymonds and Kenknit in Eldoret, a town which had collapsed have been revived and are largely attributable to the AGOA initiative.


The gap in wealth between the industrialised countries and primary producers continues to widen. For instance, the US consumes 30 per cent of the world’s resources, yet it makes up only 5 per cent of the world’s population.[283] This means that a large proportion of the world’s resources support a smaller section of the population at the expense of the greater majority. Likewise, the gap between the very few rich and the very many poor in both Kenya and South Africa is extremely wide.


UNCED recognised the relationship between poverty and environmental degradation in underdeveloped countries, as well as the problem of unsustainable production and consumption patterns in developed countries.[284]The relationship of poverty to environmental degradation is a direct one in developing countries such as Kenya and South Africa.


Practising sustainable development requires a combination of wise public investment, effective natural resource management, cleaner agricultural and industrial technologies, less pollution and slow population growth. Better resource management protects the environment and preserves nature’s productive capacity. Consequently, stronger economies can afford to invest more in protecting the environment. Slower population growth can speed up economic growth and enhance the conservation of natural resources.


Environmental issues cannot be addressed in isolation with those that cause poverty. The creation of jobs and raising incomes, improving standards of education and public awareness, improving standards of health and nutrition, provision of water and environmentally friendly sources of energy such as electricity, building of decent houses with better sanitation and fighting crime are some of the measures needed. It is understandable that such measures cannot be realised in the short term due to budgetary constraints. This however should never be an excuse. The masses should be equipped with the knowledge, skills and capacity for effective participation in measures aimed at controlling pollution and achieving sustainable resource use. In particular, public education should be directed towards enlightening the citizenry on the reduction of the amount of waste by encouraging them to re-use and recycle resources; improving standards of waste disposal; and setting priorities and working out solutions that society can afford.




Many planners, policy makers and resource managers grossly underestimate the economic significance of forest resources. It is misleading to gauge the importance of forests solely through official statistics. This is because this approach looks only at the commercial marketed output of timber products. Forests yield a wide range of non-timber products, many of which are consumed at the household level.[285] The forestry sector plays a significant role in socio-economic development in Kenya. In particular, it provides basic subsistence to many households in the rural areas. Without forest resources, the cost of living would be too high for many households in the rural areas. In addition, forests form crucial water catchment areas for vital rivers, for example the Tana and Athi, in Kenya. Both rivers have their source in the forests of Mount Kenya. The Mara River which flows into Tanzania before pouring its water into Lake Victoria has its source in the Mau Forest.


The importance of forests and forest-based resources was underscored by the court in the case of Francis Kemei and Others v The Attorney General and Others[286] (‘the Ogiekcase’). The Ogiek community had applied to court for orders restraining the government from evicting them from the Tinet indigenous forest, mostly known as Mau Forest. The applicants argued that the forest was their ancestral home and that because of peasant agriculture and food gathering, hunting and bee-keeping, their livelihood was dependent on the forest. They also argued that they had, over the years, developed a culture of preserving the natural environment, that they had never been a threat to it, and had never interfered with it, except insofar as was necessary to build schools, provincial government administrative centres, trading centres and houses of worship. The government relied heavily on archival records to prove its contention that the applicant community had long been settled on alternative land in order to protect the forest, which is an important water catchment area.


Highlighting the provisions of a number of laws concerned with the protection of the environment and sustainable use of natural resources,[287]the court confirmed the importance of the forest as a public utility, which should never be allowed to slip into private ownership:

To say that to be evicted from the forest is to be deprived of the means to livelihood because then there will be no place from which to collect honey or where to cultivate and get wild game etc. is to miss the point. You do not have to own a forest to hunt in it. You do not have to own a forest to harvest honey from it. You do not have to own a forest to gather fruits from it. This is like to say that to climb Mount Kenya you must own it; to fish in our territorial waters of the Indian Ocean you must dwell on and own the Indian Ocean; to drink water from the “Weeping” Stone of Kakamega you must own that stone; to have access to the scenic caves of Mount Elgon you must own the mountain. But as we all know, those who fish in Lake Victoria do not own and reside on the lake; they come from afar and near: just as those who may come from far away districts or from nearby. We know that those who exploit the proverbial Meru oak from Mount Kenya Forests do not necessarily dwell on that mountain in those forests. Those who enjoy the honey of Tharaka do not necessarily own the shrubs and wild flowers and wild bees, which manufacture it; nor do we who enjoy that honey own the lands where it is sourced.


There is no reason why the Ogiek should be the only favoured community to own and exploit at source the sources of our natural resources, a privilege not enjoyed or extended to other Kenyans…. If hunting and gathering in a territory were in themselves alone to give automatic legal proprietary rights to the grounds and soils we hunt and gather upon then those who graze cattle nomadically in migratory shifts everywhere according to climatic changes, would have claimed ownership of every inch of every soil on which they have grazed their cattle. If every fisherman who fished in the Sagana River or River Tana or in Lake Victoria were to say his is the Sagana River, his is the mighty Tana, his is Lake Victoria, then this and other rivers would not belong to Kenya but to private persons; and Lake Victoria would not be ours, but would have been grabbed a long time ago by every fisherman. But these gifts by Mother Nature to us have not suffered that fate, because they are common property for the good of everyone; just as public forests are common property for the common wealth of mankind. They cannot be a free subject of uncontrolled and unregulated privatisation either for the benefit of individuals or a group of individuals howsoever classified and called.[288]


In this case, the court emphasised the pivotal role of the government in the protection of public resources and the need to regulate the use of such resources. It also emphasised that the function of the law was to promote access to resources by the wider society, as it was never the preserve of a small group. The court decision underscored public trust doctrine in ownership of forest resources. This doctrine developed in Roman law. It classified certain property as not being capable of private ownership i.e. res extra commercium. The court’s position was that certain property, and in this case the Mau forest, belonged to all the people, i.e. universitas.


Most forests in Kenya are gazetted as government forests and thus managed by a state institution, the Kenya Forest Service. Access to such forests is restricted, while use of forest resources in such cases is generally prohibited except under licence. Communities extract products of some value such as wild vegetables and wood for fuel. Large companies access forest products of high economic value such as timber, water and medicinal herbs. The importance of forests in the country is also reflected in honey harvesting, grazing and grass cutting, use of the ecosystem for eco-tourism and recreation, scientific and educational purposes, agro-forestry, social and cultural activities, and the development of community-based industries. Forests are also known for the significant role they play in spiritual and religious matters. The ‘sacred’[289] Kaya[290] forests in the Kenyan coastal region are, for instance, of considerable cultural and religious value to the local Mjikenda community.[291] The Kayas have been preserved as sacred religious places and burial grounds and therefore any destruction of vegetation around these sites is prohibited. The Kaya sacred sites are also important as part of biodiversity conservation in Kenya. Botanical surveys of coastal forests in Kenya over the years continue to reveal rare and interesting plant species in the Kaya forests. These sacred forests are the only known location for certain plant species. This is because the Kayas form part of the complex mosaic of rich Eastern African coastal forest. The coastal forests have been described as a heterogeneous group of isolated evergreen closed-canopy forests within sixty kilometres of the Indian Ocean.[292]


The importance of forests and woodlands is aptly captured in the South Africa‘s White Paper on Sustainable Forest Development thus:[293]

                                 i.            Provisions of timber for housing, kraals and fencing;

                                ii.            Fruit as an important dietary supplement, and sap for brewing of beer and wine;

                               iii.            Bark for making ropes and weaving;

                              iv.            Medicinal products from bark, bulbs, leaves and roots;

                                v.            Honey production;

                              vi.            Harvesting of insects, mushrooms and other eligible plants;

                             vii.            Grass for thatching and weaving and for grazing of livestock; and

                            viii.            Local craft industries


Forest cover in Kenya is estimated at less than 3 per cent of the total land surface, and therefore far below the internationally recommended level of 10 per cent.[294] It is said that any country with less than 10 per cent of its land area under forests is environmentally unstable.[295]  The Constitution 2010 provides that the State shall work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya.[296] The main forest ecosystems include moist highland forests, dry forest, tropical rain forests, coastal forests, and riverside and mangrove forests. Despite their proportionately small areas, compared to the overall surface area, they provide a valuable natural home for the country’s flora and fauna.




Water is of immense value to human beings and to all forms of biodiversity. Human beings use water resources in various ways. These include direct consumption, agricultural irrigation, fisheries, hydro-electric power, industrial production, recreation, navigation, the disposal and treatment of sewerage and industrial effluent.


In Kenya, marine national parks are a home to a number of aquatic lifeforms, such as various species of fish. Such parks form one of the leading tourist attractions in the two countries. Management of water resources in Kenya, however, presents a number of challenges that call for attention.


In Kenya, most people depend for their domestic and industrial water needs on rivers, streams and lakes, some of which have been heavily polluted through inadequate and improper disposal of garbage and sewage arising from agricultural activities, urbanisation, and industrialisation. This has often led to waterborne diseases such as typhoid, cholera and dysentery. In urban areas, such as Nairobi, Mombasa, Kisumu, Nakuru, Eldoret, and Thika, water provides for much of the agricultural, domestic and industrial needs. Ineffective management of water services has led to wastage, improper billing and frequent water shortages. In many parts of the country, municipal councils are in charge of water delivery systems, but this has not been done effectively.


The flagship legislation on water resource management and utilisation in the country is the Water Act of 2002.[297] There are other pieces of legislation that have provisions regarding water resource, such as the Agriculture Act,[298] which provides in section 201 that where any provision therein is inconsistent with a provision of the Water Act, the provision in the latter shall prevail. The purpose of the Water Act, according to its title, is to provide for the management, conservation, use and control of water resources and for the acquisition and regulation of rights to use water and to provide for the regulation and management of water supply and sewerage services. Except for waters that are wholly situated in a private landowner’s domain, the Act vests the rights over all surface and ground water in the state.[299] Water within the domain of the state is subject only to the rights that users may acquire under licence, from time to time.


The minister in charge of water exercises overall control of every body of water. He or she has a duty to promote the investigation, conservation and proper use of water resources throughout Kenya. The Act provides for a Water Resources Management Authority to act as an advisory body. A number of functions are exercised by the minister and the Director of Water Resources in consultation with the Water Services Regulatory Board (‘WSRB’), a body also established by the Water Act.[300]


WSRB functions include:

                                 i.            the issuance of licences for provision of water services;

                                ii.            The determination of standards for the provision of water services to consumers;

                              iii.            The establishment of procedures for handling complaints made by consumers regarding licences;

                              iv.            Monitoring and regulating licences;

                               v.            Monitoring compliance with established standards for design, construction, operation and maintenance of facilities for water services;

                              vi.            Monitoring and regulating licences and enforcement of licence conditions;

                            vii.            Advising licensees on procedures for dealing with complaints from consumers and monitoring the operation of these procedures;

                           viii.            Developing guidelines for the fixing of tariffs for the provision of water services;

                              ix.            Developing guidelines for, and provision of advice on, cost effective and efficient management and operation of water services;

                               x.            Developing model performance agreements for use between licensees and water service providers;

                              xi.            monitoring the operation of agreements between water service providers and taking appropriate action to improve their effectiveness;

                            xii.            Developing guidelines on regulations for the provision of water services to be adopted by licensees;

                           xiii.            Disseminating information about water services;

                           xiv.            Promoting water conservation and demand management measures;

                            xv.            Monitoring and, from time to time, re-assessing, national water services strategy; and

                           xvi.            Advising the minister concerning any matter in connection with water services.[301]


Under section 4(1), the minister is empowered to have and exercise control over every water resource in accordance with the Act. Section 4(2) imposes a duty on the minister to promote the investigation, conservation and proper use of water resources throughout the country and to ensure the effective exercise and performance by any authorities or persons under the control of the minister of their powers and duties in relation to water. Such wide provisions enable the minister to: make regulations regarding conservation, the facilitation of efficient management, pollution control and sustainable, equitable and beneficial use of water resources in the public interest. These are broad powers which, if invoked, can enhance water management in a country that experiences acute water problems.


The government, by an order issued under section 30(1) of the State Corporation Act established the National Water Conservation and Pipeline Corporation.[302] The order was made by the President vide Legal Notice No. 27 on 16th June 1988. The corporation has among its functions the development and management of the water projects specified in the schedule thereof. The details of the projects are held in the offices of the Corporation and the Permanent Secretary in the Ministry of Water Development where the corporation is located.[303]


The quality of water reveals everything, right or wrong, that humans do within their ecosystem. Every decision made, whether the issue is growth, housing, transportation or economic development, is directly linked to the use of water resources. The quality of water can be used as an indicator of the sustainability of resources. Its quality and availability indicate the level of social development within a community. It is an indicator of the level of poverty and/or development. It indicates social tensions and it is also a proven indicator of the quality of the environment.


Lack of steady and reasonable income among many Kenyans has further been compounded by problems associated with recurring droughts and chronic water shortages in many areas. The majority of Kenyans, both in rural and urban areas,[304] Nairobi included, pay an increasingly high price for water. The poorest are the worst affected. They are the ones who pay more in cash to buy small quantities of water from distant sources, suffer more impaired health from contaminated or too little water, and lose more in diminished livelihoods.


The water infrastructure in urban areas of the country is in a poor state. Blocked and overflowing sewers are commonplace. Burst water and sewer pipes take a long time to be attended to.[305] These are open avenues for health threats that could be avoided. In some residential areas, piped water is a ‘pipe dream’, the presence of plumbing systems notwithstanding. Consumer complaints are common in print media.


To tackle these problems effectively, a new approach to water resource management is needed. A new agenda for the country’s sustainable development is required. This approach needs to incorporate all issues of economic development and environmental management into planning and policy formulation. In particular, efforts should be put in place to increase access to improved water and sanitation facilities. This could be done by mobilising resources for construction and rehabilitation of facilities for domestic water supply, for instance, piped water schemes, boreholes, protected springs and rainwater tanks. Under the new constitution, every person has the right to clean and safe water in adequate quantities.[306] The implementation of this provision will result in frequent litigation against water providers, most of which have not been effective in their work.


Water infrastructure services are generally capital intensive and they therefore require huge amount of financial investment. Kenya lacks the economic capacity to direct resources towards the delivery and management of water infrastructure and services delivery, and therefore the World Bank and donor community in general should be asked for support in respect of most of the water projects in the country.


Most parts of Kenya receive poor and unevenly distributed rainfall. In view of the ever growing population that depends largely on agriculture for its survival, it is necessary for the country to rely on irrigation so as to increase food and cash crop production. The irrigation schemes would compel the government to work out details on water husbandry and apportionment as well as catchment conservation. Movement in this direction would require long-term planning based on the quantities available by basins, measured against national water requirements for industrial, domestic and agriculture uses. As the leader in the consumption of water, irrigation requires careful planning that includes not only the areas which are clearly irrigable, but also those which can be made irrigable given the current advancement in irrigation techniques and technology.


Currently, water-related policies have been developed in a fragmented fashion by a host of institutions in the country. Lack of co-ordination, and often intense rivalries among ministries and government departments, have resulted in rendering water policies generally sub-optimal. During the first quarter of 2003, shortages of water in the city of Nairobi resulted in an open confrontation between the Ministry of Water Resources Development and the Ministry of Local Government. The Local Government Minister insisted that he never witness a situation where total water control is vested in the former, as this resource is one of the leading revenue earners to most local authorities in the country.


Without institutional rationalisation and strengthening, water management simply cannot become optimal. Some obstacles to effective, holistic, participatory water management include the promotion of short-term rather than long-term perspectives in decision-making, values and attitudes, and lack of the necessary funding to implement and monitor policies and decisions. Education, training and strengthening of local organisations and decision-making authorities can help to overcome some of these obstacles. There is also a need for greater budgetary allocations so that dams and dykes could be constructed along watercourses in order to minimise the effect of flooding and to put floodwater into more beneficial public use.


To be effectively implemented, integrated water resource management should include institutional and legal capacity building, human resources development and participatory approaches. The basis for a strategic approach to integrated freshwater management can be founded on a set of key elements that brings together all the relevant parties and their particular social, economic and environmental concerns that are bound by freshwater. It is important that domestic policies and actions should not be seen to be separate from international policies and action. However, for water quality, quantity and ecosystem concerns, changes are often needed in the country’s domestic policies and activities.


One glaring weakness of the Water Act is that it does not seem to have incorporated principles emanating from the general international trend. This calls for the involvement of local communities and other stakeholders in sustainable water resources management. Nor does it specifically mention water as a right to every Kenyan; as the EMCA specifically stipulates viz. the environment. It is however significant that there is now a constitutional provision that has filled this glaring gap.


Besides ineffective distribution, it is notable that dry areas of the Kenya have often experienced the effect of devastating floods followed by long periods of drought. The effects include crop failures and death of livestock and wild animals, which further exacerbate poverty among rural populations. In 2003, a prolonged dry spell in the Nairobi area caused the lions in the Nairobi National Park to wander out of the park and kill livestock in the neighbouring Maasai community. The Maasai responded by killing the lions in a classic case of human/wildlife conflict. The government reacted by cautioning restraint but some people dismissed the government because the latter was perceived as being more concerned with the well-being of wild animals than of human beings. The government is yet to come up with effective policies of reducing human/animal conflicts.


It is worrying that there has been virtually no government initiative to harvest and control floodwater for sustainable utilisation in the country. Most rainwater simply drains into the sea without being turned to maximum beneficial use. During the first few months of 2003, the Budalangi area of Western Kenya experienced heavy flooding, which resulted in several human deaths and property destruction.[307] The best the government could do for the victims was to provide them with relief such as foodstuff, medicine and blankets. There is a clear need for the government to initiate the construction of dams and dykes in areas which are prone to flooding to contain floods and establish water reservoirs that could be used during dry seasons.


The other feature of Kenya’s inland waters is their international character. The main drainage basins, which straddle the Kenyan boundaries, are Rivers Malaba, Mara and Juba, and Lakes Victoria, Natron, Jipe, and Turkana. Lake Victoria, which is shared by Kenya, Uganda and Tanzania, is the largest freshwater lake in Africa and a source of the River Nile whose waters flow through Uganda, Sudan and Egypt. The old and now obsolete international agreement governing the use of the Nile waters has denied Kenya and other East African countries the right to enjoy maximum use of Lake Victoria waters.[308] It is important for all countries sharing in the water masses of the Nile and Lake Victoria to devise an agreement that would create an effective institutional arrangement for consultation and co-operation. This would ensure fair and equitable use of this crucial natural resource. Egypt appears to be the only country enjoying maximum use of the Nile water resources, by virtue of this agreement.


The lessons from the past are clear. Without appropriate policies and institutional capacities to make the transition to more comprehensive ecosystem-based water resources management, no technical or engineering fix will succeed. Water is life and an issue of human rights. Sound management of this crucial resource is an integral component of the new paradigm shift in sustainable development – one that allows a steady improvement of living standards without destroying the fragile natural capital of river, marine and ground water systems.


It is important for the country to improve its water management practices. There is a need to develop a national water strategy, which would respect the peculiarities of the country in terms of its social, economic and development goals. It ought to be based on a realistic assessment of the country’s water resources. This requires an integrated approach given the linkages it has with other sectors of the economy.


Just like in Kenya, water is a constitutional right in South Africa.[309]In 1994, the Department of Water Affairs and Forestry initiated the Community and Water Supply and Sanitation(‘CWSS’) Program. The main objective of this programme is to enhance the capacity of local government to promote the sustainability of water services projects.[310]The National Water Act 36 of 1998 is the main legislation regarding management of water resources in the country. According to section 2, the purpose of the Act is to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in ways which take into account the following:

                                 i.            meeting the basic human needs of present and future generations;

                                ii.            promoting equitable access to water;

                              iii.            redressing the results of past racial and gender discrimination;

                              iv.            promoting social and economic development;

                               v.            providing for growing demand for water use;

                              vi.            protecting aquatic and associated ecosystems and their biological diversity;

                            vii.            reducing and preventing pollution and degradation of water resources;

                           viii.            meeting international obligations;

                              ix.            promoting dam safety; and

                               x.            managing floods and droughts.


The national government is the public trustee of the nation’s water resources. It is required to ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate.[311]


The innovative significance of the new water law in the country is that it appreciates that water is a scarce resource. It endeavours to direct appropriate actions from the national government to fulfil its constitutional mandate. Water is life, and without it life is impossible. Scarcity of this commodity affects adversely affects the well-being of a given community. The Water Act provides for fundamental reform of water resource management. The country’s previous water laws, for instance Water Act 54 of 1956, basically applied the rules of the well-watered colonising countries of Europe to the arid and variable climate of the country. Water was used by the dominant group which had privileged access to land and economic power. The following have been identified to be the key elements which guide water management in the country:

1.       The status of the nation’s water resources as an indivisible national asset was confirmed and formalised.

2.       National government act as the custodian of the nation’s water resources and its powers in this regard is exercised as a public trust.

3.       Only water required to meet the basic human needs and maintain environmental sustainability will be guaranteed as a right.

4.       In shared river basins, government is empowered to give priority over other uses to ensure that the legitimate requirements of neighbouring countries can be met

5.       The new system of allocation will be implemented in a phased manner, beginning in water management areas which are already under stress. This system of allocation will use water pricing, limited term allocations and other administrative mechanisms to bring supply and demand into balance in a manner which is beneficial in the public interest.

6.       The riparian system of allocation, in which the right to use water is tied to the ownership of land along rivers, was effectively abolished. The transitional arrangements will, over time, ensure an orderly, efficient and gradual shift in water use allocation as and when necessary.

7.       Water use allocation will no longer be permanent, but will be given for a reasonable period, and provision will be made to enable the transfer or trade of these rights between users, with Ministerial consent.

8.       To promote efficient use of water, the policy will be to charge users for the full financial costs of providing access to water, including infrastructure development and catchment management activities. This will be done on an equitable basis and according to the realistic reasonable programme which has already been begun.

9.       All water use, wherever in the cycle it occurs, will be subject to a catchment management charge which will cover actual costs incurred.

10.    To promote equitable access to water for disadvantage groups for productive purposes such as agriculture, some or all of these charges may be waived for a determined period where this is necessary for them to be able to begin to use the resource.

11.    All major water use sectors must develop a water use, conservation and protection policy, and regulations will be introduced to ensure compliance with the policy in key areas.

12.    Provision will be made for the phased establishment of catchment management agencies, subject to national authority, to undertake water resource management in these water management areas.[312]


 With the constitutionalisation of this right in Kenya, Parliament ought to come up with new legislation that will make its realisation more effective.


The right to water is part of socio-economic rights. The same is enforceable in some jurisdiction. For instance, in South African, during the First Certification judgement the Constitutional Court stated the following regarding socio-economic rights:

It is true that the inclusion of socio-economic rights may result in courts making orders which have direct implication on budgetary matters. However, even when a court enforces civil and political rights such as equality, freedom of speech and the right to fair trial, the order it makes will often have such implications. A court may require provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view it cannot be said that by including socio-economic rights within a Bill of Rights, a task is conferred upon the courts so different from that from that ordinarily conferred upon them by a Bill of Rights.


Nevertheless, we are of the view that these rights are, at least to some extent, justiciable. As we have stated in the previous paragraph, many of the civil and political rights without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rights to such implications does not seem to use to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion. In the light of these considerations, it is our view that inclusion of socio-economic rights in the New Constitution does not result in a breach of … (Constitutional Principles).[313]


Socio-economic rights which include the right to access to water are therefore justiciable under the South African Constitution.





[1]Fuggle RF, et al Environmental Management in South Africa (Juta, 1992) p 4.

[2]  2002, 6 ed.

[3] 2002 9 ed.

[4]  1981 Edition of the Macquarine Dictionary.

[5]Webster’s Ninth New Collegiate Dictionary (1983)

[6] Kiss A et al. Manual of European Environmental Law. 2nd Edition (Cambridge University Press (1997) p 4

[7] Ibid. Kiss et al quoting Barry Commoner, See footnote 2 The Closing Circle(1972) 32. ‘Ecology, ‘the Study ofinterrelationship of all living things and their surrounding is sometime’.

[8] ‘Strength in Sustainable Use of Natural Resources’. Published by World Conservation Union. Accessed at  <www.iucn.org/themes/ssc/susg/sconeupdatedsep 2003 html>(Last visited 20 October 2007).

[9]Fuggle et al (ed) op cit note 30 at 8.

[10] .Plant G, Environment Protection and Law of War(London and New York: Belhaven Press 1992) p 25.

[11] Section 1

[12] Act 107 of 1998

[13] Section 1 (1)

[14] Kiss et al  35 at 3. It is for instance pointed out that defining the scope of ‘European Environmental Law’ is not easy because it continues to evolve rapidly.

[15] Ibid 89,

[16] Cowen D ‘Towards Distinctive Principles of South African Environmental Law: Some Jurisprudential Perspectives and a Role for Legislation’ 1989 52 THRHR 3 at 7.See also J Glazewski Environmental Law in South Africa (Butterworths, Durban) 2000 pp 9-16 and M Kidd. Environmental Law: a South African Guide. (Juta Publishers 1997) pp 4-11

[17] Ibid Cowen quoting Fuggle et al ‘Environmental Concerns in South Africa: Technical and Legal Perspectives’ (1983) p 35.

[18]Glazewski. J Environmental Law in South Africa 2005 (LexisNexis) pp 9-16.

[19] Some of these treaties and Conventions are examined in this thesis.

[20] Okidi . CO. International Perspectives on Environment and Constitutions. (1996) No 1 SAELP 38.

[21]Rabie. M. A ‘Environmental Conservation’ in W A Joubert (ed) The Law of South Africa First Reissue v 9 at 32.

[22]Fuggle et al op cit 30 at 93.

[23]Ibid 93-5.

[24] Ibid 95.

[25] Kidd M Environmental Law 2008 pp 4- 7.

[26] Ibid pp6-7.

[27] Sec 3 (5) (b) EMCA acknowledges the Cultural practices traditionally applied by any community in Kenya as part of principles of environmental law.

[28] As quoted in Theodor Meron (ed) Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon Press, 1984) vol 1 p 70.

[29]  Hohfeld WN International Legal Conceptions as Applied in Judicial Reasoning’ in Lord Lloyd of Hampstead, Introduction to Jurisprudence 4 ed (London: Steven & Sons Ltd, 1979) pp 1-2.

[30] In Du Plessis & others v De Klerk & another 1996 3 SA 850 (CC) it was held that the South African Interim Constitution could only have a vertical application. Sec 8(2) of the Constitution states that the provisions of the Bill of Rights bind natural and juristic persons implying that the Constitution has both vertical and horizontal application, that is the rights contain therein can be enforced as against the state and private entity.

[31] As quoted in Waldron  JT Theories of Rights (Oxford University Press, 1984) p 92.

[32] Ibid.

[33]Henkin L, The Right of Man Today (London: Steven & Sons Ltd 1978) p1.

[34] Ibid at 2.

[35]Vincent RJ. Human Rights and International Relations (Cambridge University Press 1986) p 5

[36] Ibid at 6.

[37]Cranston M, What are Human Rights?( London: The Bodley Head Press 1973) pp 4-7.

[38]Ritchie GDNatural Rights (London: Swan Sonney Selian & Co 1994) p 78.

[39]Wallace RM International Law: A Student Introduction (London: Sweet & Maxwell 1986) p 175.

[40] For example Chapter 4 of the Kenyan Constitution and Chapter 2 of the South African Constitution wherein most of the provisions contained in the International Bill of Human Rights have been incorporated.

[41] An example is the establishment of the International Military Tribunal of Nuremberg of 1945, the International Criminal Tribunal for the territory of former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and the Rome Statute which established the International Criminal Court (ICC).

[42]Alcock, A Short History of Europe: From the Greeks and Romans to the Present Day (Palgrove: Macmillan 1998) p 13. Alcock contends that, ‘the search for harmony with nature that was so much part of the Greek philosophical ideal led the Epicureans to insist that Nature behaved according to natural laws and no one, gods or not could interfere with these’.

[43]Dowrick FE , (ed) Human Rights: Problems Perspectives and Texts(Kettering Northamptonshire: University of Durham 1979) at 12.

[44]Alcock op cit 73 at 11-13.

[45] United Nations Human Rights 50 Questions about Human Rights and United Nations Activities New York DP1 1646 p 2.

[46] Cranston op cit 66 at 7.

[47] As quoted in EB Weiss (ed) Environmental Change and International Law: New Challenges and Dimensions (Tokyo: United Nations University Press 1992) p 210.

[48] Ibid.

[49] Ibid.

[50] Ibid.

[51] Kissop cit 38.

[52]Nmehielle VO The African Human Rights System: Its Laws, Practice, and Institutions (Martinus Nijhoff Publishers 2001) p 8.

[53] Ibid at 11.

[54] Human Rights and the Environment: Final Report of Special Rapporteur appointed by the Sub- Commission on Prevention of Discrimination and Protection of Minorities, U. N Doc. E/CN.4/ Sub.2/1994/9 (1994) p 74

[55] Lorenzen M, Background Paper on the Project Environmental Human Rights, available at <http://www.anped.org/docs/background%> 20 documents. Doc (last visited 8th May 1998)

[56]Okidi. C, Concepts, Function and Structure of Environmental Law. Contained in a Report of the East Africa Regional Judicial Colloquium on Environmental Law and Access to Justice. Held between 10th- 15thApril 2007 in Mombasa. available at University of Nairobi Law Library.

[57] UNEP Booklet op cit note 966 at 77.

[58] For a complete list of Treaties and Agreements signed, ratified and acceded by the country see ibid p 78-84.

[59] Article 10 of Kenya’s new Constitution states that the national values and principles of governance include- (d) sustainable development.

[60] Kidd op cit. 37 at 17.

[61] Ruiz JJ Derecho International de Medio Ambiente. MC Graw Hill Madrid 1999 p.33.

[62] Ibid.

[63]Section 4(a) of NEMA of 1998.

[64]Glazewski op cit 47at pp 14-15.

[65]Decision of the Governing Council of UNEP, 15/2 of May 1989, Annex II.

[66] Okidi op cit 49 at 41.

[67] John Clarke in David E Cooper et al (eds) Environments: Intergenerational, International and Inter-spatial Issues 1995 p 42.

[68]Paras. 4 and 5 of Strategy 1, IUCN (1980), World Conservation Strategy: Conservation like development is for people.

[69] 2004 (5) SA 124 WLD at 144B-C

[70]Report of the World Commission on Environment and Development. Accessed at < www.un-documents.net/wced-ocf.htm> (last visited 4 May 2008).

[71] Ibid.

[72]quoted in K Bosselmann. ‘The European Union Reform of Environmental Governance: Any Closer to Sustainable Development.’(2002) 9 SAJELP pp106-7.

[73]MacNeil. J ‘Meeting the Growth Imperative for 21st Century’ in DJR Angel et al (eds) sustaining Earth: Response to Environmental Threats (1990) p 191.

[74]Reproduced in Duchin F et al. The Future of the Environment 1994 at 4.

[75] For example an article attributed to Trevor Manuel, South African Minister of Finance, ‘Manuel: We Want to Bridge the Economic Divide’. Accessed at <www.iol.co.za/index.phpset_id=chick_id+13art_id+qw&I (last visited 26 October 2008).

[76]Principle 1 of the Rio Declaration, 1992 states that human beings are entitled to a healthy and productive life in harmony with nature.

[77] Bray E. ‘Towards Sustainable Development: Are We on the Right Track? (1998) 5 SAJELPp.2.

[78]Olivier ME. ‘Enforcement of International Environmental Law’ (200) 9 SAJELP p.158

[79] Bray op cit note 110 at 2.

[80] A number of constitutional issues of environment, which include sustainable development, are lumped together with other human rights issues in the Bill of Rights, for example that of South Africa as shown above.

[81] For example, ‘Subsidies for the Use of Natural Resources’ Australian Government Publication available electronically at <http://www.deh.gov.au/pcepd/economics/subsidies/subs.3 html> (last visited on 14 October 2009).

[82] For example ‘Life Cycle Assessment’. < www.pre.nl/life-cycle-assessment/default.htm> (last visited 14 October 2009).

[83]Principle 4 of the Rio Conference 1992.

[84] Held from 25 April –6 May 1994 at Bridgetown, Barbados. <http://www.agora21.org/cpeid/cpeid-eno1.html> (last visited 26 January 2008.

[85] World Summit for Social Development, Copenhagen< www.wwsd/text-version/index.html>(last visited 5 May 2010).

[86]Adopted on 6 September 1992 by the U.S, Canada and the United Mexican States

[87]Adopted 5 June at Rio de Janeiro, 31 ILM818 (1992).

[88]Adopted on 14 October 1994, UNGA Doc. A/AC.241/15/Rev.7, 33 ILM 1328.

[89] Can be achieved through EIA mechanism.

[90] Can be realised through enhanced accessibility to court through relaxation on the rule of locus standi.

[91]Quoted in Fuggle, et. al. op. cit.32 p 2.

[92] Ibid.

[93] Cross Creek (1942) 368 quoted in Siemon CL ‘Who owns Cross Creek?’ 5 (1990).Journal of Land Use and Environmental Law 323.

[94]Shabecoff. L ‘Suddenly the world itself is a World Issue’ New York Times25 Dec 1988 at p 4.

[95]Trinade  AA‘The Constitution of Human Rights Law to Environmental Protection, With Special Reference to Global Environmental Change’ in Weiss EB (ed) 1992 p 276.

[96] Ibid.

[97]Fuggle et al (ed) 30 p 3.

[98] Okidi 49 p 35.

[99]  French, D. ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’ International and Comparative Law Quarterly 49 January 2000 p 367.

[100] Ibid.

[101] UN Doc.A/CONF.151/PC/WG.111/L.20/REV. (1992): Proposal Submitted on behalf of the Group of 77.

[102] The newspaper article, ‘National Sovereignty v Global Common Good’. Posted on the web by Cape Times on 22 April 2010

[103] For example the 1979 Stockholm Conference on Human Development, 1982 Law of the Sea, 1985 Vienna Convention for the Protection of Ozone Layer, 1987 Montreal Protocol On Substance that Deplete the Ozone Layer, 1992 Rio UN Conference on Environment and Development, 1994 UN Convention to Combat Desertification; 1995 Global Programme for Action for the Protection of the Marine Environment from Land Based Activities, 1997 Kyoto Protocol on Greenhouse Gases, 1997 UN Convention on the Law of Non-Navigable Uses of International Watercourses, 1998 Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. All these gatherings have brought together the aforementioned stakeholders.

[104]United Nations Conference on Human Development (UNCHE), Stockholm Sweden, 1972. Article 1 of UNCHE Declaration.

[105]  Magna Carta<www.archives.gov/exhibit_hall/featured_document/magna carta> (last visited 21 July 2009).

[106]  Declaration of American Independence- primary documents <www.law.ou.edu/hist/decind.html> (last visited 24 August 2009).

[107]  Declaration of the Right of Man <www.wwnorton.com/college/history/ralph/workboo/ralprs 25.htm> (last visited 18 October 2009)

[108]Article 6 of ICCPR.

[109] A New Development Strategy for Americas: A Human Rights and Environmental Rights Perspective. www.cedha.org/docs/doc79-eng.htm# Toc 3693963> (last visited 19th January 2010).

[110] Kiss A, ‘Economic Globalization and the Common Concern of Humanity’ in Kiss, A et al(eds), Economic Globalization and Compliance with International Environmental Agreement (2003) 4-5

[111]  A New Development Strategy fo Americas: A Human Rights and the Environment Perspective, March 2002< www.cedha.org.ar/docs/doc79-eng.html#Toc3693963> (last visited 17th January 2008).

[112] Ibid.

[113] Kiss A et al International Environmental Law 2 ed (Ardsley, New York: Transnational Publishers, Inc 2000) p 25.

[114] Ibid.

[115]Zamanek K ‘ New Trends in Enforcing Erga Omnes’ . http://www-mpil.de/shar(last visited 18 April 2011).

[116] Ibid.

[117] United Nations International Law Commission (2001) Article 42.

[118] Tams. J. C ‘Enforcing Erga Omnes in International Law’. Available at <http://www.cambridge.org/us/catalogue.asp> (last visited 3rd June 2010).

[119]French D ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’ International and Comparative Law Quarterly 49 January 2000 p 367.

[120] Article 2 (5)

[121] Article 2 (6)

[122] Anthropocentrism and deep ecology approaches to environmental management are considered in details in Chapter Three below.

[123] Art 22: African Convention on the Conservation of Nature and Natural Resources. 3 UNTS 1001.

[124] That is in stating ‘Declaration of the United Nations on Human Environment’. This means that the interests of human beings which are what anthropocentrism is about, were at the centre or were the focus of the Conference.

[125]1972), para. 7, Ch 1. Declaration of the United Nations Conference on the Human Environment, UN Doc. A/CONF 48/14.

[126] Official Journal of the European Communities (1973), part 1. Introduction of the Declaration of the Council of the European Communities on the Programme of Action of the European Community on the Environment, Vol 16, no 6,112, 20 Dec.

[127] The World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987) 23, 46.

[128]Preamble to Resolution number 1 of the European Ministerial Conference on the Environment. 1973. Press Release on the European Ministerial Conference on the Environment. 1973. 31 Mar. Reprinted in Rusta, B.et al. (eds), International Protection of the Environment (New York: Oceana 1975), Vol 1 p 172.

[129]Convention on the Conservation of European Wildlife and Natural Habitats. UKTS No. 56 (1982). Europ TS No. 104.

[130] World Charter for Nature. GA Res.7, 36. UN GAOR Supp. (No 51) at 17 UN Doc. A/51 (1992).

[131]Declaration of Fontainebleau. IUCN Bulletin 20.7 (1986).

[132] World Commission on the Environment and Development, Our Common Future (Oxford : Oxford University Press, 1987) 308.

[133] Ibid at 13, 57.

[134] Art. 2, Protocol on Environmental Protection to the Antarctic Treaty. 30 ILM. 1991. 1462.

[135]Para.1, preamble, United Nations Convention on Biodiversity, UNCED. 1992.UNEP. Bio. Div./COMF L2. 1992.

[136] Brown NJ Ethics and Agenda 21: Moral Implications of a Global Consensus (New York: United Nations 1994) see especially 2,11, and 62-3.

[137]  Dowdeswell E, Speech at the World Summit on Social Development. 1995. 7 Mar. UNEP Speech 1995/3. See also her speech at the symposium on Values for Sustainable Future. 1994. 2 June. UNEP. Speech 1994/10, where she stated, ‘I believe and hope that we are at the beginning of a paradigm shift in values’.

[138]European Water Charter, in ‘Legal Problems Relating to Non-navigational Use of International Water Courses,’ Supp. Representative of the Secretary General, UN Doc. A/CN.4/274, 2 Y.B.I.L.C. 342 (1974).

[139]European Water Charter, in ‘Legal Problems Relating to Non Navigational Use of International Watercourses’, Supp. Rep. Of Secretary General, UN Doc. A/CN.4/274, 2Y.B.I.L.C 342 (1974).

[140]  Caldwell  LK International Environmental Policy (Durham and London 1990). Affiliated Press Ltd p 130.

[141] For example in the African context a number of countries with interests on Lake Victoria and the River Nile, such as Kenya, Uganda, Tanzania and Sudan are complaining that the old international agreement governing the use of water resources heavily favours Egypt.

[142] Principle 16 of the Rio Declaration 1992.

[143] For example the constitution of the Federal Republic of Brazil, has entrenched most of the international environmental law principles such as intergenerational equity rights and sustainable development.

[144] This import of this convention is discussed in greater details in Chapter Two below.

[145] The overall objective of the convention is set out as: the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. This is given effect to by the provision made in chapter 6 of the said South African Act.

[146] Kiss et al 35 at p 33

[147] Section 233 states that when interpreting any legislation, every court must prefer any reasonable interpretation of legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

[148] Kidd op cit 57 p46.

[149] ibid

[150] Acid rain is a widespread term used to describe all forms of acid precipitation (rain, snow, hail, fog et cetera).

Accessed at <www.ace.mmu.ac.uk/eae/english.html> (last visited 21 November 2009).

[151] UNEP, ‘Protecting Our Planet: And Securing our Future: Linkages Among Global Environmental Issues and Human Needs’ Nairobi November 1998 p 14.

[152]Adopted in New York in May 1992.

[153]Article 2.

[154]  United Nations Framework Convention for Climate Change. Accessed at <www.iisd.org/riots/agenda/climate.htm> (last visited 21 August 2008).

[155] Annex A to the Protocol lists Greenhouse gases to include carbon-dioxide (CO2), Methane (CH4), Nitrous Oxide (N2O), Hydro fluorocarbons (HFCs), Per fluorocarbons (PFCs), Sulphur hexafluoride (SF6).

[156] The Coalition Government in Kenya has made the Kenya vision 2030 a government policy aimed at transforming the country’s economy from primary a producer to an industrialized nation by the year 2030.

[157] See Article, ‘Ozone Layer Screens out the Sun’s Harmful Ultra Violet Radiation.’ Published by Australian Science of Academy. Accessed at  <www.science.org.au/nova/004/004key.htm> ( last visited 16 December 2008)

[158] Ibid. Ozone is said to be a natural sunblock.

[159] Ibid.

[160]  Mt Everest: Discovery Channel Goes With IMG. Accessed at http://www.outteverest.net/story/stories/everestnewsrouteteampushing8000mafterstomMay62002004.shtml> (last visited on 13 November 2009).

[161]  Recent Ozone Loss Over Antarctica. Accessed at <www.atm.ch.cam.ac.uk/tour/part2.html> (last visited 11th December 2009).

[162]Information obtained from the report of the World Meteorological Organisation, Scientific Assessment of Ozone Depletion: 1998 WMO Global Ozone Research and Monitoring Project- Report Number 44, Geneva, 1998).

[163] Ibid.

[164] Ibid.

[165] Ibid.

[166] Ibid.

[167] The Earth’s Atmosphere and Climate Change. Accessed at  <www.unccd.int/main.php> (last visited 13 October 2009).

[168]  Montreal Protocol on Substances the Deplete Ozone Layer. Accessed at <www.sedac.ciesin.org/entri/texts/montreal.protocol.ozone.1987html> (last visited 10 May 2009).

[169]Vienna Convention for the Protection of the Ozone Layer, UNEP Doc. IG.53/5; Misc.13 (1985).

[170]Adopted in Vienna, Austria in 1985 and came into force on 22 September 1988.

[171] Op cit 181 p 62.

[172]Chemicals mentioned: chlorine substances; bromine substances; nitrogen oxide; and hydrogen oxide.

[173] For instance Section 2 of EMCA defines Ozone layer in terms of the definition provided for in the Vienna Convention for Provision of Ozone layer.

[174] Section 2 of EMCA defines lead agency to mean any government ministry, department, parastatal, state corporation or local authority, in which any law vests functions of control or management or any element of the environment or natural resources.

[175] Section 56 (1) of EMCA.

[176] Ibid sub-section 2.

[177]Glavovic PD, ‘Protection of biological diversity: An introduction’ 1 (1995) SAJELP 15; See also Article 2 of the Convention on Biological Diversity, adopted at Rio de Janeiro 1992.

[178] Ibid.

[179]Biodiversity: The Magic of Our Planet. Accessed at <www.aesop.rutgers.edu/biodiversity/whatis2.html#> (last visited 10 May 2009).

[180] Ibid. Article 2 of the Convention on Biological Diversity defines Biological Diversity as the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and ecological complexities of which they are part; this includes diversity within species, between species and ecosystems.

[181] Ibid.

[182]  Nature Conservation in the EU. Accessed at <www.europa.eu.int/comm/environment/nature/biodiversity/intro-en.htmrom>  (last visited 26 October 2009)

[183] Ibid.

[184]‘Kenya Battles to Keep Ban and Safe Elephants’ Environmental News 31 October 2006.   <www.planetark.com/dailynewstory.cfm/newsid/18381/newsdate/31-Oct-2002/storyhtm#> (last visited on 10 May 2006.

[185]Another example is the case of Kenya where huge acreages of former forestland in Kenya have been converted into settlements and utilised for agriculture. This is fully described in Chapter Five.

[186] Many organisations have developed codes of regulations/ conduct pertaining to handling of invasive species. These include: IUCN Position Statement on Translocation of Living Organisms: Introductions, Reintroductions and Restocking, 4th September 1987; UNEP’s International Technical Guidelines for Safety of Biotechnology. 1995; and IUCN guidelines for the Prevention of Biodiversity Loss caused by alien Invasive Species. February 2000.

[187] Roach J ‘Africa Penguins Still Reeling from ‘Guano Graze’’ National Geographic News 16 August 2004.  Accessed at <www.nationgeographic.com/news/2004/08/0816_040816_african _penguin.html> (last visited 24 October 2004).

[188] Obare et al ‘Underlying Causes of Deforestation and Forest Degradation in Kenya’.  <www.wrm.org.uy/deforestation/Africa/kenya.html>.(last visited 11 May 2004). Published by World Rainforest Movement

[189] Forest Resources, a Government estimates and expenditure reports kept by the Ministry of Finance and Planning in Nairobi, Kenya at p.3. 2004.

[190] Ibid.

[191] Ibid.

[192] The Daily Nation, Nairobi, 24thJanuary, 2002.According to this report whose authenticity is backed by records from the Commissioner of Lands Office, Moi acquired 2,317 acres of Transmara forest, Jackson Kalweo (then minister) acquired 6 acres of Karura Forest, Jackson Angaine (then Minister) acquired 1,350 acres of Meru Forest, Mama Ngina Kenyatta (former first lady) acquired 82.5 acres of the Kikuyu Escarpment Forest among others.

[193] Ibid.

[194] The Biodiversity Convention. Accessed at http://www.biodv.org/doc/publications/guide.asp ( last visited 11 September 2009)

[195]Article 1.

[196]Adopted on 29 January 2000, in Cartagena.  Sustaining Life on Earth, Accessed at <www.bmu.de/files/cbd.pdf> (last visited 12 August 2009).

[197] the preamble of the Convention.

[198] Principle is explained in chapter below.

[199]Article 20.

[200] Glazewski op cit 47 p 259

[201] Article 1 of the convention.

[202] ‘The Headline Indicators Land Degradation’. Available at <www.au/ausstats/abs@nsf/o/faeb 6096cdqadca256bdc001223ff> (last visited 14th December 2009).

[203] Ibid.

[204] A number of developing countries such as Kenya rely on exports from agricultural production which are dependent on good soil and ideal climatic conditions.

[205] Concept of sustainable development, discussed in details in Chapter one above.

[206] These include Sudan, Somalia, Djibouti, Eritrea, Ethiopia and Kenya. These countries are prone to severe dry weather conditions that often result in famine and mass starvation of the poor.

[207]Environmental Glossary. Accessed at <http:www.bcb.uwc.ac.za/inforeep/land 1.htm.> (last visited 12th April 2011)

[208] This is discussed in greater details in chapter five below.

[209] ibid

[210] Explained in greater details below.

[211] For instance, among pastoralists communities such as the Maasai of Kenya and Tanzania, the Somalis of both Kenya and Somalia, the Karamajong of Uganda dry weather conditions have often been a source of inter-communal tensions and conflicts.

[212] For example this is common among the Karamajong of Uganda and Turkana and Pokot herdsmen groups of Kenya.

[213]Report of the United Nations Conference on Environment and Human Development (Rio de Janeiro, 3-14 June 1992); A/CONF.151/26 (Vol.II). 13 July 1992.

[214]United Nations Conventions to Combat Desertification. Accessed at <www.unccd.int/main.php> (last visited 13 October 2008).

[215] Ibid.

[216]Contained in the preamble to the convention.

[217] The convention underscores the principle of common but differentiated responsibilities based on the capabilities of countries.

[218] Section 2

[219] NEMA. Act 107 0f 1998

[220] Stone op cit note 419 above at 86.

[221]Pollution Factsheet. <http: //www.yptenc.org.uk/doc/factsheets/env-facts/seapollutionn.html> (last visited 1 December 2008).

[222]  Baden  J A‘ Whales and Threatened Fishing. Seattle Times. Accessed at <http// www.highnorth.no/library/Ethics/wh-an.th.htm >(last visited 1 December 2009).

[223]Dopp  J ‘Sea Water Pollution Case Analysis’ Accessed at < www.american.edu/ted/projects/tedcross/eseap17.html#> (last visited 15 August 2008).

[224] An example being Nuclear leaks such as that of Chernobyl which is discussed in this thesis.

[225]Adopted on 10 September 1998.

[226]Paragraph number 16 of its preamble.

[227]Article 4(f).

[228]Article 10.

[229] Article 2 (6) provides that any treaty or convention ratified by Kenya shall form part of the law under the constitution. Discussed further below.

[230]Section 52 (B).

[231]Booklet produced by UNEP Poverty and Environment: A Role of UNEP, Nairobi 2002 at 58.

[232]Chapter 403, Laws of Kenya.

[233]Before October 2004, Somalia had been without a central government for more than one decade. Most parts of the country were under the control of warlords. The new government is still based in Nairobi, Kenya and is yet to move to Mogadishu its capital.

[234]  Chernobyl Ibibio. Accessed at <www.ibiblio.org/exp/soviet.exhibit/Chernobyl.html> (last visited 19 October 2009).

[235] Ibid.

[236] Ibid.

[237] Ibid.

[238]Nuclear Energy Agency, ‘Assessment of Radiological and Health Impacts’. Accessed at www.nea.fr/rp/Chernobyl/cOe.html (last visited 19 October 2008).

[239]Interim Award of the Trial Smelter Arbitration can be found in (1939) AJILvol.22, p 182.

[240] Ibid.

[241] Caldwell  LK ‘International Environmental Law and Policy: Emergence and Dimensions’ (New Delhi: Affiliated East West Press Limited) 1991 p 123.

[242]MacCaffrey S ‘Private Remedies for Transfrontier Environmental Disturbances’. Morges Switzerland: IUCN, 1975 p 14.

[243] Kiss et al op cit 35 p 272.

[244] The legal principles drafted by the panel of independent experts for the Brundtland Commission reflects this concept.  Art. 12 p 28.

[245] Ibid.

[246] As early as 1911, in reference to international watercourses, the Institute of International Law stated that neither a state bounded by a river may ‘on its own territory, utilize or allow the utilization of water in such a way as seriously to interfere with its utilisation by other states or by individuals, corporations, etc., thereof.’ Scott, Resolutions of the Institute of International Law Dealing with the Law of Nations 169 (1916).


[248] Ibid.

[249] Ch 3, Art 3(2), Agreement Concerning Frontier Rivers between Finland and Sweden (1971), 825 UNT.191, 282.S.

[250] Kiss op 37 cit 63 p273.

[251] 1949 ICJ Rep 22.

[252] Ibid.

[253] UN Doc. AC.A/CN.4/1/Rev.1 (UN Pub. p33 (1949).

[254] Kiss et al 37 p 275.

[255]Article 198 of United Nations Convention on the Law of the Sea (Monte go), See 1982. UN Doc. A/Conf 62/122 (1982).

[256] For example in Kenya, where the National Policy, supported by IMF and World Bank, is to eradicate poverty through revival of economic activities and wealth creation.

[257]Ehrlich PR et al ‘the Population Explosion: Why We Should Care And What We Should do About it’ 27 ENVT’L L 1187 (1997) noting that Humanity must do something immediately to reduce the impact of population on the environment or face eventual environmental disaster.

[258] UNEP in 2002: ‘Environment for Development ’January 2003 p 31.

[259] Ibid at 32.

[260]Information obtained from  Slifer DL, ‘Growing Environmental Concerns: Is Population Control the Answer?’ Villanova Environmental Law Journal (Vol. XI) 2000 p112.

[261] Ibid.

[262] Tognetti, S. S Poverty and the Environment UNEP p7

[263]UNEP’s handbook, ‘Poverty and the Environment: Reconciling Short term needs with Long term Sustainability Goals’, 1995 (Nairobi) p.16.

[264]Ibid., 7.

[265] Ibid.

[266] According to the World Bank and International Monetary Fund (IMF), people living below one US dollar per day are considered to be poor. See UNEP’s Handbook .op cit note 52 at 19

[267] The Kenya Human Development Reports 2001: Addressing Social and Economic Disparities for Human Development.

[268] Ibid.

[269]Sunday Nation, Nairobi, 12th May 2002 pp. 16 and 17.

[270] Ibid at 9.

[271]BBCNews website <http:// www: news.bbc.co.uk/z/hi/americas/1888068.stm> (last visited 14 April 2008).

[272] UNEP Poverty and the Environment: A Role for the UNEP. Nairobi. (2002), p. 5

[273] Ibid.

[274] Ibid at 8.

[275] Ibid.

[276] Ibid.

[277] Ibid.

[278]Poverty and Environment. Accessed at www.delch.cec.eu.int/en/eu-global-players/s.htm (last visited 14 April 2008).

[279] Ibid.

[280] This Agreement succeeded the Lome Convention.

[281] Ibid.

[282] It was the initiative of the Clinton administration but the Bush administration signed it into law on 18th, May 2003.

[283]Okamoto M ‘‘The Greening Hate’ A MagazineNov 30 1998 at 34 (noting current environmental problems).

[284] Ibid p 8

[285] These include firewood and traditional herbs.

[286] Nairobi High Court civil case number 238.Accessed at Eklr. <www.kenyalaw.org.co.ke>

[287] Fisheries Act Chapter 378; The Wildlife Conservation and Management Act Chapter 376; The Forests Act.

[288] UNEP Compendium op cit 975 p 11.

[289] The concept ‘sacred’ in most societies implies something set apart, holy or revered. It is always associated with secret and forbidden. The main objective of the traditional management of sacred sites is to maintain their separateness or sanctity by controlling access to them. This is achieved largely through the strength of spiritual beliefs and social rules and norms. Active physical policing of sacred places by custodians has tended to be more the exception than the rule. More commonly taboos and other religious observations have applied, regulating access and conduct at the sites threatening dire punishment from the spirit world for those who flouted the rules.

[290] Kaya means homestead.

[291] These are: the Giriamas, Digo, Duruma, Rabai, Kauma, Ribe, Jibalana, Kambe and Chonyi.

[292]Githito A. “The Sacred Mijikenda Kaya Forests of Coastal Kenya and Biodiversity Conservation”.

[293] Released by the South Africa’s Ministry of Water Affairs and Forestry in March 1997. <www2.dwaf..gov.za/dwaf/cmsdocs/25-Forestry%20White%20Paper.htm> (Last accessed on 22nd March 2010)

[294] FAO report states that in order for a country to remain economically viable it needs a minimum of 10% forest cover. Kenya currently has just 3% cover. < www.mountkenyatrust.com/other-pages/forest excisions.htm>(last visited 30th December 2009).

[295] Tolba, M.K.,et al., (eds) The World Environment(1972-1992) 1992 pp.157-215.

[296] Article 69 (1) (b)

[297] Act No.8 of 2002 repealed Water Act Cap 372, Laws of Kenya.

[298] Cap 318 Laws of Kenya.

[299] Section 3 of the Water Act.

[300] Established by section 46 of the Act.

[301] Section 47.

[302] Chapter 446, Laws of Kenya.

[303] The corporation has a Board of Directors comprising of a non Executive Chairman: the Chief Executive: Permanent Secretary responsible for Water Development: the Treasury Permanent Secretary.

[304] ‘Water has been the major constraint on the expansion of industries in Nakuru town. Factory owners claim they get only 60% of their daily water requirements, a situation that has for several years discouraged more entrepreneurs from investing in the town.’ Aligula L. “Improving the Performance of Urban Water Infrastructure Services Delivery and Management in Kenya: A Case Study of Nairobi City, Kisumu and Eldoret Towns”. Shaker (1999) at p12.

[305] Ibid.

[306] Article 43 (i) (d).

[307] for instance, International Federation of the Red Cross and Crescent Societies News Story, “Red Cross Helps 60,000 Kenyans affected by annual floods. < www.ifrc.org/docs/news/03/03052702 >(last visited 15 January 2008).

[308] The 1929 agreement, amended in 1959 on the use of the Nile Waters was entered into by Britain and Egypt long before the other upstream countries attained independence. For details see, E Kasimbazi. ‘The Relevance of Sub- Basin Legal and Institutional Approaches in the Nile Basin.’ (1998) 5 SAJELPpp 17 – 34.

[309] Section 27 (i) (c )of the Constitution of South Africa, Act No 108 of 1996. It states that, ‘everyone has the right to have sufficient food and water….’

[310] Water Affairs and Forestry, op cit, n. 59 above, at 2. Between 1994 to 1999, 1020 projects had been completed benefitting 4 millions South African by enabling them gained access to basic water services.

[311] Section 3(1).

[312] Oosthuizen L. K. quoting from a Water Research Commission Discussion Paper. WRC No KV96/96

[313] Constitutional Court of South Africa. Case No. CCT 23/1996. Certification of the Constitution of the Republic of South Africa. Accessed at <http:www.polity.org.za/govdocs/constitution/cert.html> (last visited 11thNovember 2010).

Law Notes (Knowledge Tree ) 

Leave a Reply