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Environmental human rights in Kenya: between promise and reality

Photo by pisauikan on Unsplash

By Rosemary Mwanza, PhD student at the UEF Law School. Photo by pisauikan on Unsplash.

This blog post is based on my recently published article entitled ‘Toxic Spaces, Community Voices, and the Promise of Environmental Human Rights in Kenya: Lessons on the Owino Uhuru Pollution Incident, appearing in the Nordic Journal of Human Rights. The article explores the environmental rights implications of a lead pollution incident in the Owino Uhuru community located in Lamu, a county on Kenya’s coast.  The incident is the subject of an ongoing case filed in the Environment and Lands Court in Kenya. It is noteworthy that the petition was filed in the Environment and Lands Court, a novel type of court that was established as part of the reforms introduced in the 2010 Constitution. The Environment and Land Court is a court of the rank of a high court. Under Kenyan law, alleged human rights violations are filed in the first instance at the high court. Appeals may be filed at the Court of Appeal and finally at the Supreme Court, the highest court in the country. The Constitution of Kenya introduced a comprehensive Bill of Rights in 2010, paving the way for an exponential increase in human rights litigation as a mechanism to seek justice for environmental harm. The Owino Uhuru case is one such case.  It provides an appropriate prism to examine the performance of environmental human rights in real-life cases and to understand some background factors that enhance environmental human rights or contribute to their violation. 

Environmental human rights and their transformative potential

The term ‘environmental human right’ has several meanings. It is used to refer to first-generation procedural and substantive civil and political rights when they are used to achieve environmental outcomes. Environmental human rights also refer to specialised environmental procedural rights, including the right of access to environmental information, the right of citizens to participate in the decision-making process regarding environmental matters, and the right of access to justice for environmental disputes (Atapattu and Schapper, 2019).  In some jurisdictions, the right of access to justice has been the basis for establishing specialised environmental courts to deal exclusively with environmental disputes. In recent years, the evolution of environmental human rights has taken a decisive turn as many countries worldwide have adopted stand-alone human right to a clean and healthy environment as a constitutional norm (Boyd, 2011). This development corresponds with an ongoing push to recognise a right to a clean and healthy environment as an international norm (Rodríguez-Garavito, 2018).

The clamour to recognise new human rights is invariably informed by a realisation that existing rights do not sufficiently protect a vital public interest. As such, human rights are always transformational in their objective. Once recognised as law, human rights serve as a binding framework for assessing whether the conduct of public and private actors conforms to the dictates that they embody and to prescribe the consequences of non-conforming behaviour. Moreover, from the perspective of victims of violations, human rights are robust tools to champion legal and policy reforms and to advocate for remedies to address the consequences of environmental damage and exclusion. Thus, questions on whether environmental human rights are transformational necessarily revolve around assessing their ability to shape outcomes in specific environmental damage or exclusion cases. 

The Owino Uhuru Pollution incident in Kenya

Factual incidents of environmental damage and exclusion provide the most appropriate test-cases to assess the transformational potential of environmental human rights. The Owino Uhuru pollution incident is one such case. The events related to the Owino Uhuru pollution incident started in 2007 after the National Environment Management Authority granted a license to the now-defunct Metal Refineries Limited to operate a lead-acid smelting plant. The lead smelting plant was located a mere 50 metres from the periphery of the Owino Uhuru neighbourhood. Metal Refineries Limited’s activities were part of an Export Processing Zone initiative. Export processing zones are programs adopted in many developing countries to create an attractive environment for foreign direct investment. Under Kenyan law, the minister in charge of trade and industry determines whether a firm qualifies to operate within the export processing initiative. The minister also designates the geographical locations in which such firms can operate. It is noteworthy that while the export processing zone programs became part of Kenya’s industrial activity in the early 1990s, the neighbourhood is an informal settlement that was created in the early 1930s. 

Typically, all firms whose activities can cause environmental impacts are required to conduct an Environmental and Social Impact Assessment. Once licensed, firms must abide by environmental standards applicable to their operations. Under Kenyan law, the primary legislation dealing with the environmental aspect of industrial activity is the Environmental Management and Co-ordinationAct (1999) and a host of thematic regulations dealing with specific issues such as water quality, soil quality, waste management, and noise standards. These are the laws that Metal Refineries Limited was required to comply with. To ensure compliance, public officials from the National Environment Management Authority and other relevant institutions such as the Ministry of Health carry out regular inspections and audits and intervene to ensure compliance in case complaints about pollution are raised. 

 Shortly after Metal Refineries Limited began its operations, residents of Uhuru Owino started to experience what they believed and was later confirmed to be the effects of air, water and soil pollution by untreated waste released from the smelting plant. In addition to lead-contamination related diseases, several deaths of community members have reportedly been linked to the pollution. Some of those affected were day labourers working in the lead smelting plant. As most of the members of the Owino Uhuru community are economically disadvantaged, the effects of pollution had devastating impacts on their livelihoods. Their demand for intervention directed to the National Environment Management Authority and other relevant public authorities failed to yield fruit as Metal Refineries Limited was allowed to continue its operations. The only intervention came in the form of intermittent closures of the firm’s operations meant to force the firm to comply with environmental standards. Shortly after each closure, the firm would be allowed to reopen again, without any indication that it had taken measures to comply. 

Consequently, the residents of Owino Uhuru filed a constitutional petition in 2014. The crux of the petition was that the pollution incident resulted from Metal Refineries Limited’s failure to comply with regulations on waste management combined with the misfeasance by public authorities. The claimants framed their case as a violation of environmental human rights protected in Kenya’s Bill of Rights. In light of these violations, the claimants sought several remedies: a declaratory order stating that the specified environmental human rights have been violated; a thorough investigation of the full extent of environmental and health impacts of lead pollution to provide a springboard for remediation and clean up; adequate remediation and clean up; monetary damages to compensate for the loss of life, livelihood and the cost of medical care for those who suffered from pollution-related diseases. 

Bringing the company to book was not an easy task as the company officials used creative means to evade the case for more than a year. Ultimately, the case proceeded to trial and was decided in the claimants’ favour. The Court found that the state and the corporate respondent were jointly liable to pay the compensation award. The state has since launched an appeal challenging the order that directed it to bear the obligation to pay compensation jointly with the corporate respondents.

Between promise and reality

The pleadings and the eventual judgement brought to light some valuable insights regarding the potential of environmental human rights.  The first insight is that the existence of an extensive bill of environmental human rights is not a fool-proof guarantee against violations. The pollution incident occurred and evolved against a backdrop of an exhaustive list of environmental human rights in Kenya’s constitution. At the same time, the Owino Uhuru litigation shows that the availability of an expansive bill of rights that covers the type of claims that are likely to arise from environmental damage is a crucial tool for realising justice for victims of environmental harm. The existence of the bill of rights and its application to advance the claim for remedies in the Owino Uhuru case is a remarkable development considering the reality in the legal context preceding the 2010 constitution. Not only did the old constitution not recognise environmental rights, but it also placed procedural barriers to human rights litigation. Consequently, victims of environmental harm lacked effective means to hold the state and private actors liable for environmental misconduct. The state exercised environmental governance powers arbitrarily and with little regard to those negatively affected by environmental damage. Moreover, efforts by environmental activists to push back against the state’s excesses were often suppressed using flagrant displays of violence. The implications of these factors as barriers to access to remedies in cases of environmental misconduct were brought to light in the famous 1994 Maathai cases.

At the same time, since constitutional human rights embody the most cherished priorities in a given political system at the highest juridical level, claims framed in terms of environmental human rights communicate a sense of urgency, meaning that, unlike in the past, there is now a robust legal basis to demand that the state take action to protect those negatively affected by pollution. Moreover, as constitutional rights, environmental human rights are a forceful tool to check the state’s exercise of environmental governance powers. This function is crucial considering that the abuse of environmental governance powers, through the failure to conduct a proper environmental impact assessment and monitor compliance, played a significant role in facilitating pollution. 

The outcome of the Owino Uhuru case is attributable mainly to the efforts of environmental activists and community members who persistently called on the National Environment Management Authority to intervene on their behalf against the company and eventually filed a constitutional petition. The case shows the potential of procedural environmental human rights as a facilitator of environmental advocacy. With the combination of a polluting company’s flagrant misconduct and a state whose response fell far below the expected standard of care, the ability of environmental activists to apply the protections afforded to them by procedural environmental rights is indispensable in realising the goal embodied by substantive environmental rights, which is the protection from the consequences of environmental damage.

Environmental human rights can shape corporate conduct directly and indirectly to the benefit of victims of corporate environmental damage. Corporate entities present a unique challenge to the realisation of environmental human rights. Corporate actors can employ highly resistive ways to avoid accountability. In the Owino Uhuru incident, the officials of the Metal smelting plant were able to avoid service of summons to answer to the petition for a whole year after the petition was filed, forcing the claimants to use a more expensive and time-consuming method to serve the summons successfully.  This behaviour also raised the risk of loss of crucial evidence due to the possibility that witnesses’ memory could lapse over time.  Moreover, the dissolution of a company responsible for pollution may extinguish all the prospects for recovery. This dimension of corporate pollution underlines the fact that the realisation of environmental human rights will, in some cases, hinge on how corporate actors are regulated in a given legal context. 

This reality calls for progressive approaches to ensure accountability. One such approach used in this case was the horizontal application of human rights on the corporate respondents. Horizontal application of human rights entails applying human rights law to corporate actors either directly or indirectly (Barak, 2003). Horizontal application of human rights is a promising avenue to ensure that the transformative potential of environmental rights is brought to bear on corporate actors. Horizontal application in Kenya is a recent phenomenon that emerged through judicial interpretations of the Constitution following its adoption in 2010. From the perspective of victims of pollution, the horizontal application of human rights is beneficial because it can bring corporate conduct within the normative orbit of environmental human rights. The Owino Uhuru case showcases the transformative potential of the horizontal application of human rights 

Environmental human rights may be a basis for reframing the polluter-pays principle. The incident demonstrates that the state is often the greatest threat to the realisation of environmental human rights. The threat from the state can take the form of misfeasance, nonfeasance, and malfeasance.  In the Owino Uhuru case, the intervention by the National Environment Management Authority and other public authorities could have protected the residents of Uhuru Owino by ensuring that the lead smelting plant complied with standards relating to water and waste management. Nonetheless, the response was characterised by misfeasance that took the form of bureaucratic violence. Officials engaged in conduct aimed to create the appearance that they were enforcing environmental standards by carrying out investigation, closing up the firm, among other measures that were then followed by non-action. This dimension of the incident compelled the Court to hold the state (through the relevant public institutions) jointly liable to pay compensation for loss of life and harm to health. The finding that the state was jointly liable to pay compensation is the crux of an appeal launched by the state and currently pending in the Court of Appeal. In the appeal, the state has argued that the polluter-pays principle should be construed narrowly to apply only to the party whose conduct is directly responsible for introducing harmful contaminants in the environment.  While it remains to be seen whether the Court will agree with the interpretation of the polluter pays principle adopted by the Environmental and Lands Court, the finding raises the question of whether the realisation of environmental human rights can be a basis for reframing the polluter-pays principle. 

In sum, the Owino Uhuru incident and the outcome of the litigation shows that constitutionalising environmental human rights was an important development for Kenya. In contrast to the state’s excesses and indifference that characterised the pre-2010 context, constitutionalised environmental rights signify a paradigm change in which the entitlement to a clean and healthy envrionment must be prioritised as a constitutional matter. For members of the Owino Uhuru community, constitutionalised environmental human rights have provided perhaps the most powerful language to frame their claims for justice and advocate for remedies in a manner that would likely not have been possible without them. Constitutionalised environmental rights prefigure a hopeful future for victims of existing and emerging cases of environmental damage. A the Owino Uhuru case demonstrates, realising the promise embodied by constitutionalised environmental human rights (which is to protect human wellbeing from the consequences of environmental damage) is not a given. On the contrary, it is an ongoing process that depends on the respect for procedural environmental rights, enforcement of and compliance with environmental standards, and courts that function well and use environmental human rights creatively to offer real justice to victims of environmental damage. 

BIBLIOGRAPHY

Atapattu S and Schapper A, Human Rights and the Environment: Key Issues (Routledge 2019).

Barak A, ‘Constitutional Human Rights and Private Law’ in Friedmann D and Barak-Erez D (eds), Human Rights and Private Law (Hart Publishing 2003).

Boyd DR, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press 2011).

Mwanza R, ‘Toxic Spaces, Community Voices, and the Promise of Environmental Human Rights in Kenya: Lessons on the Owino Uhuru Pollution Incident’ (2021) 38 Nordic Journal of Human Rights 279.

Rodríguez-Garavito C, ‘A Human Right to a Healthy Environment?’ in Knox J and Pejan R (eds), The Human Right to a Healthy Environment (Cambridge University Press 2018).

Constitution of  Kenya, 2010. 

KM & 9 others v Attorney General & 7 others (2020 eKLR) [The Envionment and Lands Court].

Maathai v Kenya Times Media Trust (1994) 1 KLR (E&L) 2006, 188–193.

Maathai & 2 others v City Council of Nairobi & 2 others (1994) 1 KLR (E&L) 2006, 164–171.