Big Blow to Siaya County As NEMA Vows to Stop All Tenders and Works Done Without EIA

NEMA has flagged Siaya County Government for implementing Projects without the Mandatory Environmental Impact Assessments (EIA). Among the projects under the radar of NEMA is Siaya Ultramodern Stadium, Siaya County Aggregation and Industrial Park, Siaya Surgical Theatre and ICU Complex Center and the recently advertised civil works construction tenders.\ contracts.

Section 58(1) and (2) of the , the second schedule to the (EMCA) and regulation 17 of the (EMCA Regulations) Civil Works Contracts including Siaya Stadium, Industrial park, ICU complex among others are required to undertake an Environmental Impact Assessment (EIA) prior to their commencement. No EIA was conducted prior to the commencement of the tenders and the said contracts. An EIA ought to have been conducted prior to the commencement of the impugned tenders and Projects.

The principle of public participation is not new and did not come with the promulgation of the . It is always recognized as an element of the common law doctrine of natural justice. The statute law has imposed the obligation of public participation in most spheres of governance. It would be contrary to Siaya residents to be denied public participation. Siaya County ought to take on board the views and values on environmental management held by communities likely to be affected by decisions affecting environmental resources that are close to them or in which they lived.

The embodied elaborate provisions with considerable implications for sustainable development. Article 42 of the provided that every person had the right to a clean and healthy environment. That right included the right to have the environment protected for the benefit of present and future generations through legislative and other measures. Article 70 of the conferred standing upon a person who alleged violation of rights to a clean and healthy environment. Protection of the environment is an urgent responsibility to which Kenya’s legal system responded to inadequately.

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Article 69 of the imposed obligations on the State in respect of the environment. Among other obligations imposed on the State included the duty to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources. The State is also obligated to ensure equitable sharing of the accruing benefits. It is also required to encourage public participation in the management, protection and conservation of the environment. We have solemn duty to enforce the right to a clean and healthy environment.

The impugned tenders/contracts can not be undertaken unless an Environmental Impact Assessment had been concluded and approved in accordance with the provisions of No 9 of 1999 (EMCA) and the made thereunder. There is uncontroverted evidence that the tender process is to commence without the undertaking of an Environmental Impact Assessment.

Section 3 of EMCA provides the principles of sustainable development. The principle of sustainable development had both substantive and procedural elements. From the substantive perspective one way of ensuring that development decisions did not disregard environmental considerations is for the legislature to provide for EIA for all development projects.

An EIA is a systematic examination conducted to determine whether or not a programme, activity or project would have any adverse impacts on the environment. Considering the lack of public participation in commencement of the impugned tender, the citizen’s rights to a clean and healthy environment is under threat and at risk of being violated.

Siaya County is required to undertake an Environmental Impact Assessment before invitation of bidders for Civil Construction Works. No public participation was conducted prior to invitation of bidders for the impugned tenders and contracts and hence therefore the same is in contravention of the Constitution and the law.

Article 10 (1) and (2) of the Constitution provides as follows:

1. The national values and principles of governance in this article bind all state organs, state officers, public officers and all persons whenever any of them––
a. applies or interprets this Constitution;
b. enacts, applies or interprets any law; or
c. makes or implements public policy decisions.
2. The national values and principles of governance include––
a. patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
b. human dignity, equity, social justice, inclusiveness, equality, human rights, non- discrimination and protection of the marginalized;
c. good governance, integrity, transparency and accountability; and d. sustainable development

Article 69(1)(d) of the Constitution provides as follows: (1) The State shall—
(d) encourage public participation in the management, protection and conservation of the environment;

Article 232(1)(d) of the Constitution provides as follows:
(1) The values and principles of public service include—
(d) involvement of the people in the process of policy making;

The principle of public participation is not new. It did not come with the promulgation of the Constitution . It is always recognised as an element of the common law doctrine of natural justice. The parties cited a number of authorities before in support of their rival positions on the issue.

The Constitution embodies elaborate provisions with considerable implications for sustainable development. These range from environmental principles to the right to a clean and healthy environment as enshrined in the Bill of Rights. Chapter V of the Constitution is entirely dedicated to land and environment.

The Constitution begins by acknowledging the need for cautionary dealing with the environment by a provision in its preamble which, as is relevant, provides 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…”

These words of the Constitution in its preamble clearly suggest reverence to sustainable development.

It is undisputed that the Constitution contains an explicit environmental right in article 42 which provides that every person has the right to a clean and healthy environment. This right includes the right (a) 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 (b) to have obligations relating to the environment fulfilled under article 70.

Article 70 of the Constitution confers standing upon a person who alleges violation of rights to a clean and healthy environment. This means that

“the environmental right is sufficiently comprehensive and all-encompassing to provide ‘everyone’ with the possibility of seeking judicial recourse in the event that any of several potential aspects related to the right or guarantee derived there from is infringed.”

It is clear that protection of the environment has now become an urgent responsibility to which our legal system responds to inadequately. It is undisputed that environmental protection in Kenya has constitutional protection.

Article 69 of the Constitution imposes obligations on the State in respect of the environment. Among other obligations imposed on the State include the duty to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources. The State is also obligated to ensure equitable sharing of the accruing benefits. It is also required to encourage public participation in the management, protection and conservation of the environment.

It is clear, our legal system provides an express, justiciable constitutional right to a clean and healthy environment. Kenyans secured this powerful right to the environment through the promulgation of the Constitution and courts have a solemn duty to enforce this right in the context of environmental harms.

The impugned tenders and contracts could not be undertaken unless an Environmental Impact Assessment had been concluded and approved in accordance with the provisions of Environmental Management and Coordination Act No 9 of 1999 (EMCA) and the Regulations made thereunder. There is uncontroverted evidence that the same is to commence without the undertaking of an environmental impact assessment.

Section 58 of EMCA and regulation 4(1) of The Environmental (Impact Assessment and Audit) Regulations 2003 which provides that:-

“ 4. (1) No proponent shall implement a project-
a. Likely to have a negative environmental impact, or
b. For which an environmental impact assessment is required under the Act or these regulations, unless an environmental impact assessment has been concluded and approved in accordance with these regulations.”

Article 42 of the Constitution provides:

“ 42. Every person has the right to a clean and healthy environment, which includes the right-
a. 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
b. To have obligations relating to the environment fulfilled under article 70.”

Although EMCA is a pre-Constitution 2010 statute it gives effect to the constitutional provisions in respect to Environmental Rights. In dealing with matters on Environmental Rights, section 3 of EMCA directs that the High Court shall be guided by the principles of Sustainable Development. Some of those principles are:-

“ (a) the principle of public participation in the development of policies, plans and processes for the management of the environment;
………. ……
(d) the principles of intergenerational and intragenerational equity;
……………..
(f) the pre-cautionary principle.”

“The Bill of Rights Handbook (5th Edition) at page 527”.

“ The principle of “sustainable development” has both substantive and procedural elements. From the substantive perspective one way of ensuring that development decisions do not disregard environmental considerations is for the legislature to provide for Environmental Impact Assessment (EIA) for all development projects.”

The definition and core purpose of an Environmental Impact Assessment is set out in section 2 of EMCA. It states that an EIA is:-

“ A systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impacts on the environment”

The impugned tenders and Civil Works contracts being implemented by Siaya County Government without an environmental impact assessment and without the undertaking of adequate public participation is contrary to the Constitution and the applicable statutes, and violates citizen’s rights to a clean and healthy environment.