By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- Environmental rights are intrinsically linked to fundamental human rights such as the right to life, health, and well-being. Environmental degradation can lead to severe health issues, loss of livelihoods, and diminished quality of life. The right to life, as enshrined in Article 26 of the Kenyan Constitution, is fundamentally threatened by environmental harm. Therefore, safeguarding environmental rights aligns with protecting the most basic human rights.
- Kenyan jurisprudence has increasingly recognized the importance of environmental rights. In the landmark case of Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others (2017), the court upheld the right to a clean and healthy environment
Environmental rights should be considered non-derogable rights in Kenya due to their fundamental importance to human survival, dignity, and well-being. Non-derogable rights, which cannot be suspended or limited under any circumstances, ensure the protection of essential human rights. Given the escalating environmental degradation and its severe impacts, recognizing environmental rights as non-derogable would reinforce their critical importance and ensure their protection under all conditions.
Kenya’s Constitution, particularly Article 42, guarantees every person the right to a clean and healthy environment. This includes the right to have the environment protected for the benefit of present and future generations. Additionally, Article 69 mandates the State to ensure sustainable exploitation, utilization, management, and conservation of the environment and natural resources, as well as achieving and maintaining a tree cover of at least 10% of the land area. These constitutional provisions highlight the importance of environmental conservation and sustainable development, underscoring the need to elevate environmental rights to non-derogable status.
Environmental rights are intrinsically linked to fundamental human rights such as the right to life, health, and well-being. Environmental degradation can lead to severe health issues, loss of livelihoods, and diminished quality of life. The right to life, as enshrined in Article 26 of the Kenyan Constitution, is fundamentally threatened by environmental harm. Therefore, safeguarding environmental rights aligns with protecting the most basic human rights.
Kenyan jurisprudence has increasingly recognized the importance of environmental rights. In the landmark case of Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others (2017), the court upheld the right to a clean and healthy environment, demonstrating judicial commitment to environmental protection. Such precedents highlight the judiciary’s role in enforcing environmental rights and provide a foundation for classifying these rights as non-derogable.
Scholars have argued that environmental rights should be considered fundamental due to their pervasive impact on other rights. Professor David Boyd, in his book “The Environmental Rights Revolution,” argues that recognizing environmental rights as fundamental leads to stronger environmental policies and enforcement mechanisms. Applying this perspective to Kenya, elevating environmental rights to non-derogable status would likely result in more robust environmental governance.
Kenya is a signatory to several international environmental agreements, including the Paris Agreement and the Convention on Biological Diversity. These commitments underscore the importance of protecting the environment for global sustainability. Classifying environmental rights as non-derogable would demonstrate Kenya’s dedication to its international obligations and enhance its leadership in environmental stewardship.
The United Nations’ Sustainable Development Goals, particularly Goal 13 (Climate Action) and Goal 15 (Life on Land), underscore the critical need for robust environmental protection. By recognizing environmental rights as non-derogable, Kenya would align its national policies with these global objectives, fostering sustainable development and resilience against environmental challenges.
Kenya is highly vulnerable to the impacts of climate change, including droughts, floods, and food insecurity. Ensuring environmental rights are non-derogable would mandate continuous and unwavering efforts to mitigate and adapt to climate change. This would protect vulnerable communities and ecosystems, ensuring long-term resilience and sustainability.
A healthy environment is foundational to economic prosperity. Environmental degradation leads to loss of biodiversity, reduction in agricultural productivity, and increased health costs, which cumulatively hinder economic development. By safeguarding environmental rights as non-derogable, Kenya can secure the ecological bases necessary for sustainable economic growth.
The principle of intergenerational equity, which is embedded in the concept of sustainable development, mandates that current generations should not compromise the ability of future generations to meet their needs. Recognizing environmental rights as non-derogable ensures that the actions taken today do not jeopardize the prospects of future generations, fostering a fair and just society.
Elevating environmental rights to non-derogable status would necessitate the strengthening of Kenya’s legal and institutional frameworks for environmental protection. This would include more stringent enforcement mechanisms, greater accountability for environmental harm, and enhanced public participation in environmental governance, leading to more effective and inclusive environmental management.
In conclusion, making environmental rights non-derogable in Kenya is not only a constitutional and ethical imperative but also a pragmatic approach to ensuring sustainable development and protecting fundamental human rights. This move would reinforce Kenya’s commitment to environmental protection, align with international standards, and safeguard the well-being of current and future generations. As environmental challenges escalate, such a robust legal safeguard is essential to preserve the environment and promote overall societal resilience.
The writer is a legal researcher and lawyer.
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