On September 23, 2019, Kenya woke up to the shocking and saddening news of the collapse of Precious Talent School in Nairobi that resulted in the death of eight children.
This came a year after the Patel Dam tragedy at Solai in Nakuru where 48 people died.
Besides these, other loss of human life and property because of human-induced environmental disasters in the country have occurred, continue to occur and will do so in the future if appropriate preventive measures are not put in place.
These disasters have been attributed to blatant negligence by national and county government agencies who have not taken up their duties with zeal.
At the national level, the National Environmental Management Authority (Nema) has been the focus.
This is the agency that is responsible for environmental protection through enforcing compliance to environmental laws.
Kenya has a progressive and robust Constitution and environmental law:the Environmental Management and Coordination Act (EMCA) 1999, which was further strengthened by Environment (Impact Assessment and Audit) Regulations, 2003.
These environmental legal frameworks provide for mechanisms to avert environmental disasters.
Despite this, 20 years later, laxity still exists on the implementation of environmental laws.
This then begs the question why the public and private development projects are a major threat to environmental security in the country. If we have appropriate policy frameworks in place, where then is the disconnect?
Projects or activities that are likely to have an impact on the environment are approved after an environment impact assessment (EIA).
However, there are many complaints regarding the manner in which EIAs are carried out in Kenya.
In addition, it seems that the EIA regulations of 2003 are no longer responsive to today’s demand for accountability on actors who wish to carry out activities that exploit the natural resources found in the environment.
Examples of this exploitation are found in construction, quarrying, mining and water harvesting.
The EIA regulations of 2003 are not comprehensive enough to address emerging environmental issues brought about by development projects.
For example, these regulations do not address the impunity of unscrupulous private developers who take advantage of local communities.
The developers have become used to corruption and buying their way out at the expense of the lives of many Kenyans.
To be sure, the outcry from the public is regularly ignored by national and county governments, until disaster strikes.
Thereafter, a flurry of activities takes place, including a few arrests. A week later, there is a lull and it is business as usual until another disaster strikes.
The adage that history teaches people nothing, seems to hold true.
In 2018, Nema through a collaborative process with line ministries, private sector and civil society organizations drafted the Environmental (Strategic Assessment, Integrated Impact Assessment and Audit) Regulations, 2018, that were meant to replace the Environment (Impact Assessment and Audit) Regulations, 2003.
These new draft regulations are in line with the amended EMCA, Cap 387, which was amended in 2015.
Further, they are designed to address emerging issues such as strategic environmental assessments (SEAs), environmental and safeguard procedures, climate change, devolved governance structures, rapid land use changes and new technological advancement.
Many stakeholders have been waiting for the gazettement of these new regulations.
‘2003 regulations inadequate’
Instead of this, many stakeholders were shocked, when at the beginning of 2019 the Cabinet Secretary for Environment and Forestry published Legal Notice 32, amending just one sub-regulation of the EIA regulations of 2003.
This has made many wonder if the draft Environmental (Strategic Assessment, Integrated Impact Assessment and Audit) Regulations, 2018 have been shelved altogether.
Noting the inadequacy of the 2003 regulations, and the extensive efforts put into the drafting of new regulations to address these loopholes, the National Environment Civil Society Alliance of Kenya (NECSA Kenya) wishes to urge the Cabinet Secretary to gazette the regulations.
Legal Notice 32 is very porous, is inadequate and has numerous inconsistencies.
The notice gives room for continued negligence on the part of national and county government officers responsible for the protection of the environment.
For example, it has introduced the concept that “low risk” and “medium risk” projects can be approved without having to undertake a comprehensive EIA.
This then leaves the approval of such projects in the hands of officials who have not done an exemplary job in the past.
NECSA Kenya is therefore calling for the withdrawal of Legal Notice No.32 and the gazettement of the Environmental Strategic Assessment, Integrated Impact Assessment and Audit Regulations 2018.
This article is authored by thee The National Environment Civil Society Alliance of Kenya (NECSA Kenya).