Implementing environmental rights in Kenya's new constitutional order : prospects and potential challenges

Abstract

Since independence, the process of implementing environmental rights in Kenya has encountered a myriad of challenges. For example, until about a decade ago, the country never had any law or policy specifically designed to address violations of environmental rights. Litigants had to resort generally to the law of contract and tort to redress environmental breaches. Environmental matters were strictly private law affairs that were of less concern to the main branches of public law. Worse still, Kenya's environmental law regime was characterised by the existence of a variety of sectoral laws dealing with specific issues related to environmental conservation, improvement and protection. The promulgation of a new Constitution in August 2010 signifies a paradigm shift in so far as the implementation of environmental rights is concerned. In contrast to its predecessor, the 2010 Constitution of Kenya strengthens the implementation of environmental rights. In particular, it significantly expands the scope of fundamental rights as well as their enforcement mechanisms. The article evaluates how the new Constitution deals with the question of the implementation of environmental rights in Kenya. It reviews the efficacy of both the normative and institutional mechanisms put in place to implement environmental rights. It also highlights the potential challenges to the enforcement of these rights in the country. As a way forward, the article suggests approaches to enhance the effective implementation of these rights.

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