Common use of KENYA Clause in Contracts

KENYA. The constitution of Kenya 2010 reinforces the importance of natural resources and the environment. Chapter 5, Environment and Natural Resources, contains principles and obligations on the environment; protection and conservation of the environment; enforcement of environmental rights; the use and development of natural resources; agreements relating to natural resources; and environmental legislation. The constitution also provides for the establishment of an environment and land court to address legal disputes related to environmental and land resources and processes. Kenya’s newly devolved system of government calls for collaboration between national and county administrations. The central government has jurisdiction over the use of international waters and water resources, marine navigation, and the protection of the environment and natural resources including fishing and water. The county government is responsible for fisheries and implementing national policies. Legislation relevant to the marine environment is substantive (nearly 50 pieces of legislation) but confusing. The framework involves at least 14 government ministries and a further 9 authorities. Duplication, omission and poor implementation dilute regulatory effectiveness. The National Biodiversity Strategy and Action Plan (2000) harmonizes the fragmented and multiple laws on the environment across different sectors. However, its marine and coastal aspects are rarely referred to. It is likely that few coastal people are aware of its existence. Co-management with communities has also become the norm in many of the newer policies and regulations although few communities are aware of their rights (Samoilys et al., 2011c). The Environmental Management and Coordination Act (EMCA) (1999) provides the legal and institutional framework for managing and protecting Kenya’s environment. It is being reviewed to align it to the 2010 constitution. Moreover, the Kenya Forest Service (KFS), KWS, and National Museums of Kenya also have jurisdiction over mangroves, which leads to confusion in enforcement and management (Samoilys et al., 2011c). The EMCA can declare any area of the sea to be a protected coastal zone. The National Environment Council, established by Section 4(1) of the EMCA, undertakes policy formulation and provides direction for the purposes of the EMCA. The National Environment Management Authority (NEMA) was established under the act to implement policy. It became operational in 2002. Section 55 mandates NEMA, in consultation with the relevant agencies, to prepare a survey of the coastal zone and an ICZM policy to encourage effective methods for managing and protecting the marine and coastal environment and its river basins and estuaries. The EMCA imposes stringent penalties for pollution and hazardous-waste dumping. Prosecutions are rare, and regulations envisaged under section 55(6) for the prevention, reduction and control of pollution have yet to be issued. The provisions of Section 55(7) relate directly to Kenya’s obligations under UNEP’s Global Programme of Action for the Protection of the Marine Environment from Land-based Activities. It mandates the minister to issue regulations to control pollution in rivers and estuaries from pipeline and outfall structures in vessels, aircraft and other engines used in the coastal zones. The Environmental Impact Assessment and Audit Regulations (2003) require the inclusion of environmental management plans in all EIA reports. The Physical Planning Act (1996) assists in protecting the coast’s physical environment and to sustain tourism and other socioeconomic activities. The County Government Act of 2012 provides for the integration of economic, physical, social, environmental and spatial planning in the county planning framework. The national spatial development framework must also include a strategic assessment of the environmental impact of development, and public service delivery should ensure environmental sustainability. The Public Health Act (1986, revised 2012) Cap 242 has jurisdiction over public health management. The Wildlife Conservation and Management Act (2013) broadly provides for the protection of vulnerable ecosystems along the coastal zone through MPAs managed by KWS. The Forest Act (2005) is a substantial improvement on preceding legislation. It established KFS and encourages private-sector and community participation in the management of forests. Mangrove areas and coastal forests, including kaya forests, are recognized as areas requiring better management. Community forest associations, enshrined in the act, engage with the government on sustainable management. The act prohibits dumping waste in mangrove forests. Previous studies have shown a severe loss of vegetation and reduced fish populations from sewage sludge, oil spills and other urban waste (UNEP 2009b). The Kenya Maritime Authority Act (2006) is reinforced by the Merchant Shipping Act (2009) and any other legislation relating to the maritime sector. It established the Kenya Maritime Authority, which advises the government on legislative and other measures for implementing international conventions, protocols and agreements. It also safeguards the marine environment from pollution and responds to marine environment incidents. The Coast Development Authority Act (1990) established the Coast Development Authority to coordinate development projects in the coastal zone and in the EEZ. It covers most of the upstream areas connected with land-based sources and activities. The Water Act (2002) gives the minister powers to gazette catchment areas as protected areas. It outlaws actions that degrade the quality of water in rivers. Untreated sewage and wastewater discharged into the sea is one of the principal sources of pollution in the coastal zone. NEMA has recently gazetted wastewater regulations. The Agriculture Act (1963) Cap 318 oversees degradation of the coastal zone by POPs and fertilizers. The Fertilizers and Animal Foodstuffs (Amendment) Bill (2013) will regulate the use of POPs. The Public Health Act (1986, revised 2012) Cap 242; the Pharmacy and Poisons Act (1957) Cap 244; and the Narcotic Drugs and Psychotropic Substance Control Act (1994) need to be amended to provide for the reduction and elimination of POPs containing dioxins, furans, hexaclorobenzene, and polycyclic aromatic hydrocarbons. The Mining Act (1940) prohibits the discharge of poisonous substances into waterways and recognizes the effect of mining on the seabed and Kenya’s EEZ. The Mining Bill (2012), once enacted, will replace the existing legislation. The EMCA and the EIA and Audit Regulations regulate mining activities along the coast. However, they have not been enforced with sufficient rigor for the mining of salt and limestone, which could cause permanent damage to the physical environment. The Merchant Shipping Act (2009), which repealed the Lakes and Rivers Act (1930), prohibits marine pollution, ensures security and protects marine environments. Under Section 410, the act regulates marine pollution by drawing from various international maritime conventions and agreements. The Science, Technology and Innovation Act (2013) established KMFRI to conduct aquatic research in Kenyan waters and riparian areas including the EEZ but does not specify the scope and field of research. Kenya has enacted land laws aligned with the Constitution of Kenya 2010 to regulate the use of land resources, including tenure, user rights and alienation. Even so, unsustainable coastal development continues, often with impunity, due to corruption and lack of enforcement (Samoilys et al. 2011c). In term of policy instruments the Draft National Environment Policy (2012) aligns sectoral policy with the EMCA. It is a framework for integrating environmental considerations into sectoral policies, development plans and decision-making processes and for regional and international cooperation in environmental management. It calls for sustainable management of terrestrial and aquatic resources to raise the livelihoods and standard of living for coastal communities. The National Oceans and Fisheries Policy (2008) is rooted in the provisions of the Convention on the Law of the Sea (1982), the Maritime Zones Act (1989) Section 5 and the Presidential Proclamation of June 2005. It affirms Kenya’s sovereignty over the exploration, exploitation, conservation and management of ocean resources. It focuses on resource management in territorial waters and the EEZ. It addresses most aspects of fisheries management and development, including environmental conservation, regional cooperation, research, surveillance and monitoring, social responsibility and governance. The preparation of specific fishery management plans is given high priority, but certain regulations need to be adapted to allow for these plans to be effective (▇▇▇▇▇▇▇▇ et al. 2011c). This policy and the ICZM Action Plan have similar objectives and should be harmonized to avoid duplication. The Draft Wetland Policy (2009) recognizes the economic importance of coastal, marine and inland wetlands and proposes stringent measures to counter the (primarily human) threat to their longterm sustainability. Its integrated approach complements other sector policies and fulfils Kenya’s obligations under the Ramsar Convention and other multilateral environmental agreements and protocols. Education on the importance of wetlands, a greater consultative process with civil society and political good should pave the way for adoption of this policy. No clear legal framework governs wetland conservation and management. Different aspects are handled by KWS, KFS, NEMA, the State Department of Fisheries (SDF), water sector institutions, regional development authorities and communities (Samoilys et al. 2011c). The National Land Policy (2009) underpins a system of land administration and management that allows all citizens to gain access to land and to use it. It calls for the equitable and environmentally sustainable use of land resources and requires policies, regulations and laws to be aligned with the EMCA. Its guidelines for formulating land use and management practices take into account the fragile nature of the coastal zone. As land use has major implications for the coastal and marine environment, reform in land tenure is imperative for achieving the ICZM Action Plan’s objectives. The Regional Development Authorities Policy (2007) calls for equitable socioeconomic development through the sustainable use of natural resources. The government acknowledges the role that environment plays in spurring economic growth and reducing poverty in the National Poverty Reduction Plan (1999–2015); the Poverty Reduction Strategy Paper launched in 2001; and Kenya’s Vision 2030, which cites environmental degradation as a cause of poverty and argues for environmental protection. The Draft Forest Policy (2012) calls for the sustainable use, conservation and management of forests and trees; sustainable land use through soil, water and biodiversity conservation; the participation of the private sector, communities and others in forest management to conserve water catchment areas and create employment; farm forestry to produce timber, wood fuel and other forest products; and dryland forestry to produce wood fuel, wood and non-wood forest products. It calls for forest extension services for farmers and forest research, training and education as well. The numerous statutes relating to the conservation of the coastal zone can result in duplication, overlap, inconsistency and ineffectual penalties. Although the EMCA prevails in cases where sectoral policies conflict, its effective implementation requires that statutes and substantial financial and technical support be harmonized. There are still no clear government policy guidelines for managing mangroves. Mangrove cutters must be licensed, but their numbers are not controlled. The ICZM Policy brings together all those involved in the development, management and use of the coastal zone within a framework that facilitates the coordination and integration of activities and decision- making processes. The ICZM Action Plan (2010–2014) is a first for Kenya as it protects fragile ecosystems while pursuing sustainable development. Its thematic areas are integrated planning and coordination; sustainable economic development; conservation of coastal and marine environment; environmental risks and management of shoreline change; capacity building, information and public participation; and implementation through institutional and legal frameworks. Marine waters are state-owned public property, and private ownership or leasing is not permitted Historically, the government has founded and managed MPAs with scant stakeholder engagement, but the Fisheries (Beach Management Unit) Regulations (2006) support co-management. BMUs allow fishers to manage their landing sites and in so doing conserve the biodiversity and livelihood of coastal communities. Management plans for community conservation areas are central to the success of the Darwin Initiative Project that the East African Wildlife Society Marine Programme has implemented since 2009. It combines improved livelihoods with the conservation of marine resources to reduce pressure on the ecosystem. Marine and land-based alternative livelihood opportunities have increased in Shimoni, Majoreni and Vanga through a network of six community- conserved areas. This improvement is partly attributable to the BMU regulations, which allow the fish traders, boat owners, fish processors and other beach stakeholders, who traditionally depend on fisheries activities for their livelihoods, to organize sustainable beach management5. The Forests Act (2005) legislates for community involvement in forest management. Kenya’s 10 forest conservancies have community representation on the forest conservation committees. However, there is no national mangrove harvesting plan, a concept that is still new to coastal communities (Samoilys et al. 2011c). Institutions with a mandate for coastal environment management have evolved over time. The EMCA authorizes NEMA to exercise general supervision and coordination over all environmental matters. It established the National Environment Council, which is charged with policy formulation, setting national goals, objectives and priorities for protecting the environment and fostering stakeholder cooperation. It also established provincial and district environment committees. Other institutions are specific to sectors or resources. They include KFS for forest management; Kenya Forestry Research Institute for forestry research; State Department of Fisheries for Fisheries management; KMFRI for fishery research; Kenya Maritime Authority for the regulation of maritime goods and services; Kenya Ports Authority for port and harbour management; and KWS for wildlife management including in MPAs. Others are the CDA for coastal regional development; the Water Resources Management Authority; National Museums of Kenya; public universities for capacity building and research; and various local authorities responsible for Mombasa and other municipalities in the coastal region (Samoilys et al., 2015). The four institutions that are most likely to play a pivotal role in the development and management of the proposed TBCA are KWS, County Authorities, (especially County Fisheries staff and community-level structures), SDF, and KFS.