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Client Alert: Environment and Climate Change Law Review: Kenya Chapter Now Available

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The 5th Edition of The Environment and Climate Change Law Review Kenya Chapter is now available with the valuable contribution from Partner Stephen Mallowah and Head of Climate Change and Sustainability Practice and Associate Chris Oyier. Part of the reputable The Law Reviews Series, this edition delves into the increased global reach of environmental law and policy and the impact on multinational corporations and players in the manufacturing industry in different jurisdictions. The Kenya Chapter addresses the foundation of environmental law in the Kenyan constitution 2010 and international rules and principles and the various laws that have come into place with development in further fields such as energy and climate change and sustainability action points.

The full publication is available at The Law Reviews: The Environment and Climate Change Law Review and the full Kenyan chapter is accessible at https://thelawreviews.co.uk/title/the-environment-and-climate-change-law-review/kenya and you can read a snippet below:

“As a starting point, the preamble to the Constitution states that ‘the people of Kenya are respectful of the environment, which is Kenya’s heritage, and are determined to sustain it for the benefit of future generations’. Several provisions of the Constitution reflect this elevation of broad environmental principles. Article 10 entrenches the principle of sustainability as one of the national values and principles of governance, while Article 42 guarantees the right to a clean and healthy environment, including the right to have the environment protected for the benefit of present and future generations.

Although a number of legislative and policy options have been set in motion by the Kenyan government to mainstream environmental and climate change obligations into the country’s economic blueprint, the Climate Change Act 2016 and the regulations contemplated under it qualify as the most notable recent direct legislation in this area. In terms of policy initiatives, the Climate Change Act 2016 requires the cabinet secretary to formulate a National Climate Change Action Plan (NCCAP), which shall be reviewed every five years. The resultant NCCAP 2018–2022 (the Plan) aims to ‘further Kenya’s development goals by providing mechanisms and measures to achieve low-carbon climate-resilient development’.

The Plan provides a framework for Kenya to deliver on its nationally determined contributions (NDCs) under the Paris Agreement. The Plan focuses on seven priority climate action areas where government efforts should be directed to achieve low-carbon-resilient development. These priority action areas are disaster (drought and floods) risk management, food and nutrition security, water and the blue economy, forestry, wildlife and tourism, health, sanitation and human settlements, manufacturing, and energy and transport. The NCCAP is aligned with the Kenyan government’s developmental policy roadmap comprising Vision 2030 and sustainable development goals (SDGs), all which reflect the commitment by the Kenyan government to achieve low-carbon and climate-resilient development.

As an example of its commitment to this vision, the Kenyan government has at times taken radical conservation measures such as involuntary relocation of rural communities from ecologically sensitive areas such as the Mau Forest, a major water catchment area. This is part of the broader plan to rehabilitate the degraded environment and achieve 10 per cent forest cover nationally. The forest is the largest remaining indigenous forest in Kenya and contains the largest of the country’s five water towers, as well as the largest closed-canopy forest ecosystem. Despite political resistance and legal challenges on the mode of carrying out the relocations, the action demonstrates renewed commitment by the Kenyan government to sustainability and environmental restoration.

In a similar vein, the Kenyan government banned the introduction of all plastic containers, straws and other related products to any national park, national reserves or conservation areas effective June 2020. There has been some corresponding fiscal incentive for corporates investing in recycling, including a 15 per cent corporate tax incentive for the first five years of operation and VAT exemption for the supply of machinery and equipment used in constructing plastic recycling plants and services to those plants.

Please note: The information provided in this publication is general and may not apply in a specific situation, nor does it necessarily represent the views of authors’ firms or their clients. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided was accurate as at January 2021, be advised that this is a developing area.

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