Constitutional reform grants Kenyans the “right to a clean and healthy environment”
Environmental rights have been explicitly recognised as part of the constitutional relationship between Kenya’s Government and its people for the first time. Adopted last year following a referendum, the new constitution grants every person “the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures”.
Local lawyers have welcomed the step. Maurice Makoloo, Director of the Institute for Law and Environmental Governance, Nairobi, says that the new legal provisions would have a “profound effect” on prospects for environmental litigation. Specifically, says Makoloo, they will alleviate procedural barriers to court hearings, and improve public access to information about the environment. “These new rights elevate discourse on environmental issues to a higher level”, he adds.
Kenya faces severe problems of deforestation, which have been blamed for widespread soil erosion in many of the country’s hilly regions. Laws preventing forest clearance are widely flouted. Kenya joins a growing band of low-income countries enshrining environmental protection in constitutional law. Neighbouring Ethiopia’s first comprehensive statement of Environmental Policy, which includes the mandate that developmental projects “shall not damage or destroy the environment”, was approved back in 1997. Ecuador followed in 2008, granting “nature [the] right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution”.
For Niall Watson, Programmes Legal Adviser at WWF-UK, considering the environment as a human right is a “powerful national statement”, and one which mirrors the rising prominence of environmental concerns in the developing world.
But will a step change in environmental protection result? Christoph Schwarte of the Foundation for International Environmental Law and Development in London cautions that, while legal traditions and contexts vary, environmental rights have often been only of “marginal” practical significance. “The extent to which there is further legislation and the mechanisms that provide means for citizens to claim rights” will have to be closely watched, he says.
