Kenyan High Court Adjourns Hearing on Controversial EMCA Amendments

By Abiud Onyach

Destroyed mangroves in Kilifi County, Kenya
Natural Justice and Katiba Institute made submissions on proposed changes to the Environmental Management and Coordination Act in Kenya. The hearing was postponed until June.

Natural Justice was in court on Monday, 11 March 2019, for the hearing of a petition filed by Katiba Institute against the Attorney General (AG) and the National Assembly of Kenya following the changes introduced to Sections 125 and 129 of the Environmental Management and Coordination Act, 1999 (EMCA) through the Statute Law (Miscellaneous Amendments) (No.3) Act 2018.

Natural Justice has been working with Katiba Institute on this petition.

The High Court adjourned the hearing after the AG and National Assembly requested more time to prepare and file their submissions. The next hearing will take place in June, but in the meantime, the conservatory orders preventing the amendments from taking effect apply.

The Statute Law (Miscellaneous Amendments) (No.3) Bill amended Section 125 of EMCA allowing the National Environmental Tribunal (NET) members to elect the Chairperson of the NET and removing the role of the Judicial Service Commission in appointing the Chair, as is the process with other judicial officers.

A critical role of the Judicial Service Commission is to ensure that the process of judicial appointments remains independent and objective. With the change in the law, the executive arm of the Kenyan government would appoint five of the six tribunal members.

Further, the Bill amended Section 129 revoking all provisions that automatically stop the commencement of a project if an appeal has been lodged at the NET. Without automatic stop orders, there is an inherent risk that irreparable harm to the environment, which thousands of community members rely upon, will occur.

In our comments to the Statute Law (Miscellaneous Amendments) (No.3) Bill 2017, which were submitted in December 2017, Natural Justice and its partners expressed their support for the role of the Judicial Service Commission in appointing the Chairperson of the National Environmental Tribunal. We also suggested that this individual have the requisite qualifications as those of a Judge of the Environment and Land Court to ensure that the NET is chaired by a qualified individual and will serve to benefit the NET and its users. As a result, we submitted that the amendment to s125 (1) (a) and s125 (5) be disallowed.

We also submitted that the National Assembly should disallow the proposed amendments to s129.

You can view the comments that Natural Justice and partners made on the Statute Law (Miscellaneous Amendments) (No.3) Bill 2017 Submission_Statutes_Amendment_Bill_2017 (2).

14 March 2019


Extractives and Infrastructure, Governance of Lands and Natural Resources



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