By Cynthia Orenge
The recent Mau forest complex evictions brought to light the extent of violations of the rights of Kenyans, in government’s bid to reclaim the vital resource. To enable better realization of environmental rights, advocacy, community engagement and environmental justice litigation require further development and strengthening. This is possible through capacity building at various levels. Environmental justice is fundamental in improving the day to day livelihoods of people, and therefore it requires protection from government and other stakeholders.
Capacity building for environmental sustainability can be defined as the process by which individuals, organisations and societies strengthen their ability to address environmental issues, manage natural resource issues, and mainstream environmental sustainability, to uphold the right to environmental information, participation and involvement in decision-making. It further allows for retaining of knowledge, skills and expertise to ensure the exploitation of natural resources is done with due regard to environmental and social needs.
Legal and institutional framework
Capacity building is spelt out in the in Article 9.2 (d) of the United Nations Framework Convention on Climate Change (UNFCCC), which calls upon the Subsidiary Body for Scientific and Technological Advice (SBSTA), created under Article 9 of the Convention, to provide ways and means of supporting home-grown capacity-building in developing countries.
This preceding provision is in line with Article 72 of the Paris Agreement which establishes the Paris Committee on capacity-building, whose aim is to address current and emerging, gaps and needs in implementing capacity-building in developing countries. This speaks to the agreement’s object of reducing greenhouse gas emissions while dealing with climate-related impacts.
The Rio Declaration on Environment and Development (1992) provides that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and for the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. The foregoing provision gives light to public participation being at the core of providing platforms at various levels that allow the discourse on various environmental issues to be discussed such as environmental justice.
Climate change, being the result of poor, unsustainable environmental practices, such as over-exploitation of natural resources, require rapid and pragmatic approaches to allow people to live sustainably but at the same time have their fundamental human rights protected and promoted as guaranteed in the Constitution of Kenya, 2010.
The Kenya Environmental Information Network provides for capacity building network under the initiative of the United Nations Environmental Programme and the National Environment Management Authority. One of its objectives is to build capacity for the development and management of core datasets. Secondly, it supports and initiates institutional networking, and develops capacities related to the management of data and information at the national, sub-regional, and regional levels.
Why capacity building?
Essentially, environmental justice is about legal and institutional transformations centred on dealing with abuses of power that lead to poor and vulnerable members of local and indigenous communities suffering from disproportionate impacts of environmental degradation – owing to disproportionate exploitation of natural resources, including access and benefit.
Capacity building for environmental justice is fundamental in developing and strengthening access to information, undertaking public participation that allows for better decision-making to allow for good environmental governance. In addition, prioritizing capacity building in the environmental justice sector ensures that the people within the local communities understand what it entails. This means they can access relevant, objective and accurate information before giving prior, informed consent where need arises in relation to exploitation of natural resources, thus protecting their land, environmental and indigenous rights.
Access to courts is fundamental in promoting environmental justice. Due to poor institutional and weak governance procedures, characterised by laxity by government agencies, local communities face a number of hindrances as they seek to protect their environment rights. These include poor access to the courts, complexity of procedures and rules in the judicial system and use of legal jargon in proceedings. There is need to build capacities through strengthening judicial systems to encompass easy access and engagement with the necessary entities within the Judiciary. This includes alternative and traditional dispute resolution mechanisms to alleviate the noted hindrances and promote environmental justice. Additionally, these processes would enable the parties to enjoy autonomy over the process and outcome as they are not as complex as court proceedings. It is therefore important to have multifaceted approaches that move beyond legal proceedings to give communities greater avenues for protecting their environmental rights and benefit from the use of natural resources.
The environmental justice sector is ever growing and gaining momentum in promoting and protecting community land rights and environmental rights. Therefore, it is necessary for key actors in the sector such as litigants, community officers, paralegals, policymakers and all other actors to develop their expertise, through continuous professional training and skill development on issues arising in the sector. In addition, capacity building provides a platform for raising awareness, sharing and disseminating information necessary for understanding traditional knowledge and practices of indigenous people and local communities, which is essential in the conservation efforts.
Capacity building strives to promote public participation processes to be initiated at various levels of environmental governance. At their core, public participation forums allow for involvement and consultation of the public in decision-making processes as provided in the proposed Public Participation Bill. Environmental justice is based on the idea that when everyone participates meaningfully in a process whose procedures and content they understand, local communities or indigenous people in that case shouldn’t be disadvantaged. The relevant key institutions and environmental agencies are therefore urged to develop capacities that are needed in strengthening participation through active involvement by the local communities as they make decisions in regard to exploitation of natural resources and land tenure systems.
The role of public participation was aptly stated in ‘The Matter of National Land Commission (2015) eKLR Advisory Opinion References No. 2 of 2014’ where Mutunga, CJ, as he then was, identified public participation as a major pillar and bedrock of democracy and good governance. He further stated that public participation was community-based, where communities organise themselves and their goals at the grassroots level and work together through governmental and non-governmental community institutions to influence decision-making processes in policy, legislation, service delivery, oversight and development.
Capacity building is fundamental in providing the necessary tools, plans and platforms to the relevant stakeholders, local communities and key actors towards the better promotion of environmental justice while contributing to realization of sustainable development goals. The journey towards protecting and promoting environmental justice requires joint efforts among the relevant environmental agencies, local communities and government. With the necessary support from all these entities, it is possible to achieve environmental justice in Kenya. To effectively attain this goal, the following recommendations would suffice. Stakeholders must:
Undertake resource mobilisation for mainstreaming capacity building activities to enable sharing and dissemination of environmental information which comprises of information held by authorities on factors that affect the environment, the research done on the environment as well as health and safety measures.
Actively initiate and facilitate sharing of experiences and best practices among practitioners in the sector such as public interest lawyers, community-based officers, paralegals, local community leaders, policymakers and project officers on various issues arising while promoting environmental justice.
Offer advisory opinions to the Council of Legal Education and other tertiary institutions on how best to integrate environmental justice as part of the curriculum in environmental protection and conservation, to shed more light on why it is vital in promotion of sustainable development goals.
Enhance better dissemination of information on the current status of environmental justice as harnessed and collected by Kenya Environmental Information Network.
Facilitate better stakeholder understanding on the current status of environmental justice, emerging areas of interest and continuous training programmes, to raise awareness on environmental justice, in the pursuit of sustainable development goals.