How does the Constitution of Kenya 2010 promote environmental sustainability?

Written by
Dr Ayub Macharia

Kenyans voted a new constitution through a referendum held in 2010. The Kenya constitution 2010 gave a lot of emphasis on environmental conservation and sustainable development.
Some of the Articles of the constitution emphasizing the need for environmental conservation include
• Preamble which states that “We, the people of Kenya –Respectful of the environment, which is our heritage, and determined to sustain it for the benefit of future generations.” ……….
• Article 2(5) of the Constitution states that the general rules of international law shall form part of the law of Kenya. For the purposes of protection of the environment several principles of international environmental law which act as a guide on development of environmental legislation have been identified. Among the said principles are;
• the polluter pays principle;
• principle of public participation;
• principle of sustainability;
• principle of inter & intra- generational equity;
• principle of prevention;
• precautionary principle
• The principle of sustainable development is entrenched in Article 10 2(d) of the Constitution as one of the National values and principles of governance.
• The Constitution guarantees the right to a clean and healthy environment at Article 42. Article 42 further guarantees the right to have the environment protected for the benefit of present and future generations through legislative and other measures particularly those contemplated in article 69 and the right to have obligations relating to the environment fulfilled under Article 70
• Article 69 imposes obligations on the State. The state is required to;
a) ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;
b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;
d) encourage public participation in the management, protection and conservation of the environment;
e) protect genetic resources and biological diversity;
f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment;
g) eliminate processes and activities that are likely to endanger the environment; and
h) utilize the environment and natural resources for the benefit of the people of Kenya.
• Article (69) (2) imposes obligations on every person, to cooperate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.
• Article 70 provides an avenue for redress for any person who alleges that the right to a clean and healthy environment has been, is being or is likely to be denied, violated, infringed or threatened. The Court is empowered to issue preventive, cessation or compensatory orders.
• Article 70 relaxes the rule on locus standi as a result of which, there is no need to prove loss or injury by an applicant. Anyone may institute a claim seeking to enforce the environmental rights and obligations stipulated in the Constitution.
• Enforcement contemplated by Article 70 will be done through the Environment and Land Court established under Article 162 (2) (b). The Court has the same status as the High Court. This effectively denies High Court jurisdiction over environmental matters under Article 165 (5) (b).
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