ENVIRONMENTAL PROTECTION THROUGH

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