NEMA must be restructured

A decade after it was formed, the National Environment Management Authority, NEMA, must be fundamentally restructured and its mandate reviewed in order for its objective of effective environmental management to be achieved. In the past decade, it has become increasingly clear that NEMA is frequently ineffective and a source of confusion, chaos and conflict, especially in its mediation between the needs of local communities and prospective developers. Frequently, narrow interests, without the backing of communities, take potential projects hostage until every little detail is litigated to its conclusion. No one denies that environmental considerations must be paramount when carrying out development projects, but no one should deny that there are always mitigation measures that can be erected to ensure that the projects do not have overly adverse effects on the environment. Anyone who suggests that projects will not lead to adverse effects is a fool, and anyone who expects all effects to be mitigated should have his head examined. In this situation, NEMA has constantly proven to be a disappointment, unable to regulate the implementation of projects effectively, frequently forcing opposing parties to fight it out in our courts.

Like with any government agency in Kenya, NEMA jealously guards its expanded mandate, issuing permits and licenses and pocketing the fees that come with them. However, all it has done is to create a bloated bureaucracy that is incapable of enforcing its dictates, frequently at the expense of the environment it is supposed to safeguard. Taking an idea that had been incorporated in the updated Physical Planning Act of 1996, NEMA bastardised it beyond recognition, frequently frustrating job-creating projects and scaring away potential investors due to its incompetence. Section 38 of the Physical Planning Act was a recognition that environmental considerations were fundamental to the effective implementation of projects and that their incorporation into the mandates of municipal authorities would guarantee the safeguarding of basic environment resources for current and future generations. The enactment of the Environmental Management and Co-ordination Act should have been the foundation for empowering not just municipal authorities, but all state agencies and departments to protect the environment while at the same time pursuing the goal of economic growth through development activities. But the creation of what amounted to a super-agency, without the power to enforce its rules and regulations, and lacking the capacity to punish those that violated them, merely made a chaotic system worse.

The Environmental Impact Assessment system enshrined in both the Physical Planning Act and the Environmental Management and Co-ordination Act is a valuable tool in ensuring that development does not so overwhelm the environment that all we will be left with after the implementation of projects is a wasteland incapable of supporting life. Therefore, it is imperative that this system be freed from the inept hands of NEMA and instead made part of the mandate of all agencies that have a role to play in development projects, including, but not limited to, the Kenya Forestry Service, the Kenya Wildlife Service, the National Biosafety Authority, all municipal authorities (and their successors, the county governments), implementing ministries such as those of roads, public works and housing, etc. These are the institutions that must be empowered to implement the EIA process to ensure that projects being implemented in Kenya cause the least environmental havoc, while NEMA oversees the whole process by playing a policing role, hauling violators of the rules off to court.

At present, NEMA's District Environment Officers, the men and women on the frontline of environmental security, do not have the capacity to oversee the myriad projects being implemented in their areas of jurisdiction. For them to be effective, they must have multiple diverse skills in environmental management, engineering, physical planning, hydrology, ecology, forestry, wildlife management, public health and sanitation, law enforcement and many others. Clearly, this is not possible. However, there are many specialised government agencies that have these skills and it is to them that NEMA must turn to for advice and guidance. It would be more effective for these agencies to be empowered to assess the risks that projects pose to the environment and to make the final determination whether projects should proceed or not. It is the only way that NEMA can play a positive role in the protection and conservation of the environment.

It is in the arena of policy that NEMA can be more effective. Given its global, regional and local implications, environmental policy requires a specialised agency to address it. NEMA should concentrate its manpower in resolving the knotty issues that arise out of environmental policy considerations and abandon its goal of being a policy-maker, a regulator and policeman all rolled into one. This is the only way that environmental management will come of age and NEMA will finally fulfill its obligations as an agency.