Constitutional Review Process

Following the establishment of the Constitution of Kenya Review Commission under the Constitution of Kenya Review Commission Act, the process of collecting views from the public on proposals to include in a new constitution for the country begun in earnest.

Various institutions and individuals participated in the review process and made proposals and submissions for inclusion into a new constitution. ILEG with its mandate on environment and natural resource management sought to influence the constitutional provision on these issues. This was driven by the realization that the Kenyan constitution did not have adequate and substantive provisions on environment and natural resource management. One of ILEG’s trustees presented a memorandum to the Constitution of Kenya Review Commission on 6^th February 2002. the memorandum dealt with the issue of environment, natural resources and sustainable development in the context of constitution making. It made extensive and far reaching proposals for a entrenching environment and natural resource management in the Constitution.

After receipt of submissions and holding of hearings to receive views throughout the country, CKRC produced a draft constitution. The draft included a chapter on environment and natural resource management. Following the publication of the report, the Act provided that a national constitutional conference needed to be held to discuss the draft, make amendments and adopt it. The conference was convened in October but disbanded the same day it started deliberations. The conference only reconvened in March 2003 after the General elections of December 2002.

ILEG was represented at the conference by one of its trustees who was a delegate. To inform the delegates and enrich the discussions on the provisions in the draft constitution, ILEG in partnership with Kenya Land Alliance (KLA the memorandum that had been earlier presented to the Commission. The publication titled "Environment, Natural Resources and Sustainable Development in Kenya’s Constitution-Making” also contained an audit of the provisions in the draft constitution as looked at against the proposals made in the Memorandum to CKRC and highlighted issues that the conference needed to consider so as to enrich the constitutional treatment of environment and natural resource management.

The Memorandum, for example, had proposed that the constitution should set out fundamental principles to guide all administrative and judicial decisions on matters related to the environment and natural resources so as to ensure sustainable development. These principles include;

The Principle of transparency, uninhibited access to justice and public participation in the development of policies, projects, plans and processes for the management of the environment
The principle of inter-generational equity and sustainable utilization of natural resources
The polluter pays principle
Observance of social and cultural values, traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality in any written law
The principle of international cooperation in the management of environment and natural resources where such resources are shared with other states or where management measures in one state may have adverse or positive consequences in another state.
The precautionary approach which requires application of precautionary principle, environmental impact assessment and that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost –effective measures to prevent new or continuing environmental degradation
The principle that exigencies of sound environmental protection should be integrated in all development planning and management
The principle that for every aspect of environmental planning, policy and management must be identified with specific legal and institutional framework, whether existing or new, for its implementation and that Parliament is obliged to enact one where none exists. Such an institutions facilitative and not bar to application of the principle

The Memorandum argued that the right to a clean environment must be included in the constitution. Such a provision would deal expansively with issues of environmental rights and duties as well as with conservation and sustainable use of natural resources for the development interests of present and future generations. In addition the constitution should vest the environment and natural resources in the people and the government as trustees of the people.

The Memorandum also sought to address the challenge of unplanned residential and business settlements and informal settlements such as slums. It proposed that a provision be made to prevent unplanned structures being put up rather than waiting for construction to take place for them to be demolished.

Having made proposals for the entrenchment of environment and natural resources in the constitution, the memorandum made proposals for the protection of rights guaranteed in the constitution. It dealt with

Non-award of costs against persons who bona fide, pursue cases in the public interest

Waiver of fees in public interest cases

Creation of the office of public defender of environmental and human rights

Granting of high court or supreme court, Suo moto, jurisdication to order investigation and determination of cases of environment and human rights violations.

Lastly, the memorandum proposed a constitutional mechanism for implementation of environmental treaties and that the office of the Director-General under the Environment management and Coordination Act of 1999 as the chief executive of the national environmental management authority be given constitutional protection.

The publication was distributed to delegates at the conference who found it very useful. The Memorandum in its entirety and an audit of the draft bill of the constitution of Kenya review commission chapter 11 and 12 dealing with land and property and environment and natural resources respectively is available as a publication from the ILEG library.

About ILEG

Mission

Board of Trustees

Executive Management

Contacts

Constitutional Review Process

Following the establishment of the Constitution of Kenya Review Commission under the Constitution of Kenya Review Commission Act, the process of collecting views from the public on proposals to include in a new constitution for the country begun in earnest.

The Memorandum, for example, had proposed that the constitution should set out fundamental principles to guide all administrative and judicial decisions on matters related to the environment and natural resources so as to ensure sustainable development. These principles include;

The Principle of transparency, uninhibited access to justice and public participation in the development of policies, projects, plans and processes for the management of the environment

The principle of inter-generational equity and sustainable utilization of natural resources

The polluter pays principle

Observance of social and cultural values, traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality in any written law

The principle of international cooperation in the management of environment and natural resources where such resources are shared with other states or where management measures in one state may have adverse or positive consequences in another state.

The principle that exigencies of sound environmental protection should be integrated in all development planning and management

Having made proposals for the entrenchment of environment and natural resources in the constitution, the memorandum made proposals for the protection of rights guaranteed in the constitution. It dealt with

Non-award of costs against persons who bona fide, pursue cases in the public interest

Waiver of fees in public interest cases

Creation of the office of public defender of environmental and human rights

Granting of high court or supreme court, Suo moto, jurisdication to order investigation and determination of cases of environment and human rights violations.