How NEMA can meet the challenges of a developing Kenya

When the Environmental Management and Co-ordination Act, 1999 (EMCA), came into force on the 14th January, 2000, it was a watershed moment. For decades Kenya's environmental policy was implemented through a raft of statutes that numbered over 70 that included the Chiefs' Act and the Public Health Act. The ten years it took to come up with the EMCA were not in vain, and today we have institutions such as the National Environment Management Authority (NEMA), the National Environment Council (NEC) and the little-known Public Complaints Committee (not to be mistaken with the Public Complaints Standing Committee, the Office of the Public Ombudsman).

It is of course a truism that policy comes before legislation. However, with the EMCA, policy will follow statute and thereby, there is much confusion as to the thrust of Kenya's environmental policy today, especially when faced with the vagaries of drought and the needs of the Kenya Vision 2030, our blue-print for turning Kenya into a middle-income industrialised nation within the next two decades. Many point out that in 1978, Kenya's GDP equalled that of the Republic of Korea and the other Tiger Economies of South Asia, but that today, while they have leapfrogged forward, we are still languishing somewhere near the bottom of the league tables in terms of development. Many Kenyans today live below the poverty line, and those that don't struggle to make ends meet, sometimes taking on more than one job to sustain themselves and their families. In this context, the role of environmental management institutions has come in for criticism, especially when the implementation of environmental laws makes it very expensive to invest in development projects.

When we speak of the environment in Kenya, we usually speak of the elements that make up the natural environment, and not the physical environment comprising of towns and cities and their infrastructure. We see the forests, water bodies and to some extent our wild flora and fauna as the sum-total of "environment." However, environmental experts will state that 'environment' is a much broader term and that its definition is not easily made or presumed. Therefore, for example, operators of Public Service Vehicles and proprietors of entertainment places see the intervention of environmental legislation in their livelihoods as a bad thing, threatening their bottom lines in ways that were not anticipated in the year 2000.

Part of the reason why environmental legislation is now seen as a burden is because of the manner by which it is being implemented, especially by the NEMA. In the year 2000, NEMA was seen as an institution that would play a supervisory role in ensuring that all government ministries, departments and agencies followed a predictable course in the implementation of environmental legislation and policy. It was not envisaged as a super-policeman, keen on taking on the active role of implementing the environmental legislation and policy at the same time. However, as a consequence of its taking on roles that it did not have the competence to perform, NEMA has become the favorite bogey-man of the investor class, especially in its zealous application of the Environmental Impact Assessment and Environmental Audit processes, and now, of the Noise Regulations, Water Regulations and Waste Management Regulations.

It is not enough to castigate the process by which these Regulations were enacted, cutting out or limiting the role of interested parties in their formulation. We must also address the structural problems associated with the manner by which NEMA intends to enforce these Regulations. It is now apparent that part of the reason why the NEMA is implementing these regulations revolves around the question of license and permit fees. If the fees had been channelled towards ensuring that the NEMA became a better enforcer of the regulations, no one would bat an eyelid or raise a stink. But, it has not done so, and as a result it is overstretched and outmanned when it comes to the matter of enforcement. 

Quite simply put, NEMA does not have the capacity, either technical or structural, to implement the 7 Regulations it has passed since 2003. On a good year, it will receive at least three thousand applications for an EIA license and at least six thousand environmental audit reports. It has a staff of less than 2000, including officers in its Department of Compliance and Enforcement. They must go through every single EIA study report (or project report) and audit report and determine whether or not they meet its standards under the EMCA. Then, they must conduct regular site-inspections to verify that the information contained in these reports, and the commitments made, are accurate and that they are abiding by the rules. Where a project proponent is found to be non-compliant, the Authority must consider whether enforcement will be by means of administrative action or by litigation.

In all respects of the EIA/EA process, NEMA can now be classified as a failure. The same can be said for the manner in which it is enforcing the 7 other environmental regulations it is enforcing as well as in the manner in which it is co-ordinating the development and implementation of environmental policy. For NEMA, and environmental legislation in general, to receive broad public support, the NEMA must jettison the need for overseeing every aspect of environmental law enforcement, and allow the other institutions involved to play a more meaningful role in their implementation. 

For instance, the Ministry of Public Health and Sanitation, as well as the Ministry of Labour, play a crucial role in determining the safety of all buildings in which people are employed, through Public Health Officers and Health and Safety Inspectors, respectively. When publishing the Noise and Excessive Vibrations Regulations, NEMA could have permitted these agencies to oversee the process of enforcing the noise requirements for such premises that fell within the scope of the regulations, rather than taking on this role itself. As such premises must undergo regular inspection to check on their public health and workplace safety compliance, these institutions would have a better opportunity to ensure that compliance needs were met, rather than the ill-trained and ill-equipped officers from NEMA. That way, there would be fewer complaints and a greater chance of enhancing the environmental quality of workplaces. 

Thus for NEMA to succeed as an agency, it must give up the police roles it has abrogated to itself and allow the other institutions with better capacity to take them up. In this way, environmental legislation and policy could play a positive role in enhancing development and ensuring that as we meet our Vision 2030 targets, no one is left behind.