Environmental Management and Coordination Act (EMCA)

Inspired by the Brundtland report and Agenda 21, Kenya developed EMCA, outlining guidelines for design, safeguarding, and conservation of the environment, Environmental Impact Assessment (EIA), Environmental Audit (EA), and monitoring. Additionally, it sets out specific environmental standards. Drawing from EMCA 1999 (reviewed per constitution 2010), the country created various institutions and enacted numerous environmental legislation including Wildlife Conservation and Management Policy, Forest Policy, Wetland Policy, industrial development policies, performance, and standards. Ironically, current development plans seem distant from these efforts. Vision 2030 is grounded on three broad pillars: political, social, and economic pillars, which primarily draw from the millennium development goals and Sustainable Development Goals (SDGs). The economic pillar aims to move the economy up the value chain through agriculture, tourism, livestock, and industry (manufacturing). In contrast, the social pillar strives to improve the quality of life for all Kenyans. This is by pursuing a cross-section of social and human welfare programs and projects. The political pillar aims at good governance, accountability, equality, participation, and decentralization in a democratic space. On paper, Vision 2030 arguably falls short of a deliberate concern for environmental sustainability. Emphasis is put on economic growth. Therefore, it is assumed that previous and existing environmental management and coordination policies should automatically guide the three pillars of the vision, thus hacking the win-win narrative.

In the following, the study argues that the ACT has since its inception been used by the government to legitimize its development projects, which have to be implemented to justify the funds that come from the donor organization.

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With this act, it is argued that the institutional framework in Kenya is pretty robust and comprehensive when it comes to matters of the environment. Before this act was enacted, Kenya lacked all-inclusive legislation that regulates the environment. The act is extensive, but its critical contribution to environmental governance is the creation of the National Environment Management Authority (NEMA). Several of the provisions enclosed in EMCA, along with the subsidiary legislation, ought to offer regulations for the usage and type of permissible activity in Kenya’s diverse habitats and ecosystems. EMCA, therefore, gives NEMA absolute powers to oblige any ministry or authority to comply with environmental regulations that are in existence (Barczewski, 2013).

EMCA is anchored within the principles of sustainable development. EMCA defines sustainable development as one that meets the needs of the current generation while at the same time ensuring that future generations will be in a position to meet their needs by sustaining the carrying capacity of the supporting ecosystems. This is talked about in detail in the fifth section of EMCA. The definition adds an obligation to reserve the carrying capacity of ecosystems and includes the principles of environmental law as stipulated in the fifth section of EMCA. The concept of ecosystems carrying capacity typically denotes the necessity to put external boundaries of progress to maintain ecosystems' integrity by avoiding degradation that cannot be reversed. The sustainable development principle has a crucial juridical position in the legal system of Kenya as one of the important national values and principles of governance enumerated in Article 10 of the Constitution (Mwanza, 2020).

Accordingly, EMCA entitles everyone in Kenya to a healthy and clean environment and must protect and improve the environment. The act was enacted when the government of the environment in Kenya was observed to be deteriorating, and there was a need to protect the environment. The act was passed on 6^th January 2000 and commenced on 14^th January 2000, after which it was revised in 2012 (Government of Kenya, 2015).

It serves as the legal framework for environmental conservation and management. It has to be stressed that this framework established other institutions-NEMA, National Environment Tribunal, National Environment Action Plan Committees, National Environment Trust Fund, Public Complaints Committee, County Environment Committee- to drive the country’s sustainability goals (Koech & Munene, 2020).

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It gives orders, restoration, conservation, and environmental assessment procedures. An ecological conservation order may be enforced on burdened land to conserve fauna and flora, preserve water quality, restrict the scope of any agricultural activity on burdened land to save the environment. It stipulates the guidelines affecting environmental impact assessment. Before carrying out a project, its impacts are assessed to determine the positive and negative effects on the environment to take the necessary precaution. This act defines environmentally-related offenses and describes the measures needed if these laid down regulations are not adhered to.

How else do you explain the continuous deteriorating environmental conditions in the country even with the existence of such good and well-articulated documents?

Under EMCA, it is a prerequisite that resource users and developers undertake EIAs and EAs.

It sets out the operational procedures necessary for planning and managing the environment and its natural resources. As such, it is essential in preparing environmental action plans. These environmental action plans help coordinate environmental planning at various levels. These operational guidelines set up The study argues are constantly disregarded by the government whenever they intend to implement or are implementing large-scale development projects. With most Environmental Impact Assessment (EIA) studies passed by the National Environment Management Authority, an institution established by the ACT, it has been challenging for the public to challenge them. Public consultation meetings are selectively done basically to fulfill the requirements of the law. Still, their views are only considered whenever they do not overlap the governments in most cases. In other words, public interests are usually overtaken by interests of the government and especially the executive wing of the government.

It has established committees such as the public complaints committee to investigate suspected cases of environmental degradation, complaints or allegations regarding the government of the environment or on its motion and make reports of its findings and recommendations to the National Environment Council (NEC). Doing so ensures that ongoing projects do not have severe impacts on the environment and determines the short and long-term effects of the actions of any activity by monitoring them; this is practically not the case. The people themselves never understand how the committees operate or even their existence, for that matter. They are only known to those in the field of environment as a profession. Also, the committee established has to wait for the public to launch a complaint which in most cases, due to technicalities involved, the public never does so. Without issues launched by public members, projects flouting the environmental conditions go on to completion.

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While it provides a means for entering both international and regional treaties and agreements, the question remains to what extent are such treaties and agreements applicable in Kenya and whose interest they primarily serve. Kenya is a signatory to several international and regional agreements and treaties that should be respected and implemented. EMCA offers a legal means by which Kenya can enter such agreements. I advance the thought that being a signatory to international treaties which must be respected, the elites have always manipulated this. I ask how important the treaties are for Kenya and the population? How do the treaties translate, and how are they actualized in Kenya? It is in the interest of this study to find out who the actors in Kenya that take lead roles in such are and their interests.

Section 58 of EMCA requires projects specified under schedule 2 to undergo an EIA process.

However, the process of undertaking EIA in Kenya has been highly criticized. This I observe is because of its selective application. For example, substantial infrastructural projects have been and continue to be undertaken without proper EIAs. I view them as exercises meant to tick specific boxes to obtain a license (Okul, 2019).