The emergence of a fundamental right to a decent environemnt: a portrait for Kenya

Abstract

The focus of this study is environmental rights as fundamental human rights. It presents a critical examination of the emergence, juridical nature, scope and content of an emerging human right to a decent environment, and shows the significance and rationale for constitutionalization of the right in Kenya. The central theme of this thesis is that the right to a decent environment is steadily emerging as a fundamental human right, and that it merits inclusion into the recognised human rights catalogue at both international and national levels. Ultimately, this study seeks to demonstrate why and how constitutionalization of the right should be undertaken in Kenya. Chapter One explores the links between the environment, environmental rights and human rights, and lays the foundation for this study. It examines the theoretical and conceptual background of the right to a decent environment and provides a definition of the right to a decent environment within a human rights context. The chapter also attempts to demonstrate the significance, foundation and the philosophical and/or juridical basis for the right to a decent environment. Chapter Two is devoted to a survey of the process of emergence and evolution of the human right to a decent environment. It focuses on the salient features of the right, its juridical nature, scope, and content. The extent to which the right is emerging as a fundamental human right at both national and international levels is also examined, alongside the formulation of the right in legal instruments. In Chapter Three, we discuss the vanous problems andlor obstacles facing the emergent right to a decent environment with particular emphasis being given to the enforcement process and two countervailing norms to the right to a decent C environment, that is, the right to development and state sovereignty. , Chapter Four is a discussion on Kenya. It provides a test for Kenya, critically evaluating the place of environmental rights and the human right to a decent environment in the country's legal and constitutional order. In this Chapter we also . attempt to show why and how constitutionalization of the emergent right to a decent environment should be done in Kenya. Chapter Five gives the conclusion for the study, and suggests the way forward by way of recommendations.