The role of courts in environmental management: the case of Kenya
The very existence of a scheme of rights and duties is reason enough to expect that claims will rise in the one case for violations and, in the other for malfeasance or dereliction of duty. Such claims may either be anticipatory or based on actual damage or injury. Since constitutionalism requires government to behave according to the law, there must be an organ to decide whether in fact the government is abiding by the law of the land. Many modern constitutional systems routinely give this power to the judiciary. Courts,therefore, in their generic existence as the judiciary are part of the legitimate system of government. Over time it has now come to be accepted that in addition to individual rights as has been traditionally held by law, there are other entities which are of sufficient juridical character and thus capable of possessing rights. In this latter category falls artificial persons such as limited liability comparues, non- governmental organizations local communities, among others. This is particularly true in the emerging and growing arena of environmental management. Indeed, the hitherto no-recognized environmental rights is now an admitted reality. But one may pause to wonder about the concern with the courts. For many legal systems, courts are a refuge to those who are unable to obtain satisfaction from administrative or other alternative channels of review and appeal and for those who feel that their interests are of special importance in need of the types of sanctions or remedies which only a court of law can invoke. Often, the court is the last resort by which they preserve their allegedly violated rights. Other times, courts are consulted merely because they are the only institution available for se.ment of ~sputes. In this thesis we examine the role of courts of law in environmental management using the illustration of Kenya. Thus, we explore the concept of environmental management and associated concepts. It is argued that there are various ways in which a country may achieve good environmental management- the avenue of law and particularly the institution of the court is but just one of them. It is, however, argued that the court has certain unique characteristics that make it more amenable to ensuring a proper functioning system of environmental management. In this respect, the thesis explores this uruqueness of the court. We also explore the impediments that stand on the way of the court performing this function diligently and seek ways of addressing them. The thesis is divided into five chapters. In Chapter One we discuss the fundamental underpinnings of the study. It offers the background to the thesis by dealing with the definition of the problem and clarifying the objectives of the study. It also identifies the methodology used in the inquiry and discusses the conceptual framework. In Chapter Two we examine the concepts that are central to this study. These include environment, environmental management, sustainable development, environmental rights and duties. It is posited that the concept of environment as now understood goes beyond the previous understanding. Thus, now it is understood to encompass the totality of nature and the natural resources, but also includes the cultural heritage and the infrastructure constructed by human beings to facilitate socio-economic activities. Fundamentally, environmental management can be achieved inter alia through the medium of law, specifically environmental law. It is also argued in this chapter that development is very closely intertwined with the environment. It is in this respect that sustainable development as a concept was ﾣleveloped and has now been in vogue, dictating how governments shape their development policies. In the chapter we also discussed the twin concepts of environmental rights and' duties. In our analysis, this formulation showed that the quest for environmental rights has necessitated a departure from the definitions of 'right' as hitherto known to law. Unlike environmental rights, environmental duties are not entitlements. Rather, they are action requirements intended to ensure that entitlements generated by a regime of rights are not only protected and respected but also in fact, achievable. Our analysis of data led us to draw a conclusion that the interplay between environmental rights and duties necessitate third party intervention. Often, the recourse is to the courts of law. In Chapter Three we analyse the court as an institution in environmental management in Kenya. The court scenario presents certainty and predictability. One of the ways in which this is achieved is through the doctrines of stare decisis and precedent. Our further analysis in this chapter reveals that the courts in Kenya are created by the constitution and indeed get all their powers from the constitution. Courts are integral in a nation's life as the central agency of horizontal accountability in society. In our legal system, courts deal with matters as and when they are taken to them. They do not act on their own motion. Accessibility to the courts is therefore crucial. Access to the courts is one way of providing justice to society. In this respect, it may be clogging this justice process to put impediments on access to court. In Chapter Four the role that the court plays in environmental management is discussed in greater detail. This is done through a comparative study of how different courts of different jurisdictions have dealt with the twin issues of focus standi and costs. It is our position that how the court deals with these two issues will show how it is likely to deal with other environmental concerns that may arise. It is found that the courts have contributed to the understanding and development of environmental law and management by among other things enlarging the definition of the concept of focus standi. Thus, from a purely technical and narrow interpretation of the concept, a new test of 'sufficient interest' has emerged. The last chapter is on Conclusions and Recommendations. We conclude that the courts have done and in deed can do a lot in environmental management in Kenya, as well as in other jurisdictions.