The EMCA amendment Act (2015) enhanced the fine to a minimum of two million and the jail terms to a minimum period of one year.
If you doubt what I am telling you, please read for yourself Section 142 of EMCA (1999) Amended 2015 available here http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20387. I wish you’d read this together with section 144.
To simplify the law for you, Section 142 (1) states that its an offense to:
(a) discharge any dangerous materials, substances, oil, oil mixtures into land, water, air, or aquatic environment if you have not been given permission to do so by NEMA. By permission here I mean NEMA has assessed where you want to discharge and is convinced that appropriate measures have been taken to prevent the harmful material from getting to the environment where they can cause damage to other organisms. NEMA normally issues a license to those who are authorized to handle and dispose wastes.
(b) pollute the environment
(c) discharge any pollutant into the environment
If you are caught by NEMA or other County government inspectors, you will be prosecuted under EMCA and on conviction, the law guides the judge to award you a fine not less than two million shillings but not more than five million shillings or to a jail term of not less than one year. Imagine your start up business losing two million shillings just because of something you did out of ignorance. Most individuals and businesses do not have this kind of money and hence jail may be the easiest option. So you now see, to be jailed is not far away from you. Please take care.
In addition to the sentence that the Court may impose upon a polluter, Section 142 (2) states that the Court may direct that person to—
(a) pay the full cost of cleaning up the polluted environment and of removing the pollution;
(b) clean up the polluted environment and remove the effects of pollution to the satisfaction of the Authority.
Of course you know that not anybody could help you to clean the environment. It would require you to hire experts or consultants and this is not cheap. Imagine if you were caught throwing a Yoghurt packet between Naivasha and Gilgil and the judge ruled that you clean that section. Can you do it alone? or with your wife and family? Definitely its quite tedious and you may have to hire several youths to help you and pay them. The time inconvenience plus the wages for those who would help you will add up to big figures. How I wish a judge would mete such a ruling on somebody to make others cautious and hence stop polluting our highways.
What if you were caught disposing used oil or other hazardous liquids into the environment or in a river? If the Judge rules you clean up the river, you will definitely hire experts, buy appropriate reagents, pay for the transport of experts and NEMA officers who will verify and advise the Judge to clear you. The bill definitely will be hefty.
Besides cleaning up the environment, Section 142 (3) states that the Judge may direct the polluter to meet the cost of the pollution to any third parties through adequate compensation, restoration or restitution. Assume the case of waste oil again if it pollutes a borehole or a community well. If you are asked to compensate the residents, it may require you to provide them with fresh water for a period of time. How much would this cost? A water buzzer normally costs over Kshs 4000. Of course to satisfy the community may require several buzzers hence the daily costs would be enormous. Or do you have money to provide pumped water to a community? This is a huge investment only possible to the government.
What if some residents have been affected and have oil pollution related ailments. You may have to cater for their medical bills as well as provide them with a monthly salary to compensate for their livelihood for that period when they are disposed. If a fair judge reads you this bill you’d shudder and collapse.
I am careful when writing this article, rest you say I am scaring you. My intention is to give you facts to enable you to make a choice to stop your bad behaviour of dumping waste anywhere. Please note that the landscape has changed and you may find yourself in jail or losing all your hard earned wealth due to a simple offense.
The ball now rests on NEMA and County Government Inspectors spotting somebody and prosecuting him under EMCA. We applaud our Parliament for their commitment to rid this country of the waste menace and passing punitive law. Let us apprehend the offenders and challenge courts to fix them. Lets not complain any further. Our country should be very clean.
To my fellow mwananchi, my advice to you is that when you generate waste at home, in the vehicle or anywhere, please place it in an appropriate waste receptacle. If you are outdoors, look for a dustbin and if there is none, please carry the waste with you until you reach home. At home, engage a waste handler to pick your waste. Make sure you only engage those licensed by NEMA, and not those who carry waste using hand or donkey pulled carts (mkokoteni). Remember waste dumped anywhere can be traced to its owner and you may be caught. At home also remember to separate your waste and recycle, reuse and compost your waste. This would help reduce the amount of waste you have to dispose.
My hope is that none of us will fall victim of this tough law. I hence wish you an environmental compliant day.
Article Categories:Environmental Legislation in Kenya