Financing Environmental Management in Kenya’s Extractive Industry: The Place of the Polluter Pays Principle

 

Geoffrey Omedo
Centre for Advanced Studies in Environmental Law and Policy,
University of Nairobi, Nairobi, Kenya
Correspondence: United Nations Development Programme Kenya,
P.O. Box 45804 – 00100, Nairobi, Kenya
Geoffrey.omedo@gmail.com

Kariuki Muigua
Centre for Advanced Studies in Environmental Law and Policy,
University of Nairobi,
Nairobi, Kenya

Richard Mulwa
Centre for Advanced Studies in Environmental Law and Policy,
University of Nairobi,
Nairobi, Kenya

 
 

Kenya’s environmental regulatory framework – the Environmental Management and Coordination (EMCA) Act (Amended) 2015 integrates the Polluter Pays Principle (PPP) as one among six other key principles of Sustainable Development, including public participation, cultural and traditional social principles, international cooperation, inter and intra-generational equity and the precautionary principle. These are to lead to the realization of the constitutionally enshrined ‘right to a clean and healthy environment’. However, apart from this broad statement of intent, there lacks any further proper guidance on how to actualize the PPP’s transformative potential. In this article, qualitative and quantitative methodological approaches are used to analyse the PPP’s application in Kenya for environmental management, especially within the extractives industry. The article finds that the PPP’s implementation continues to be hampered by various factors including state capture, over-regulation, poor economic incentive strategies, lack of awareness and a weakening accountability culture. As a result, the country’s environmental protection regime continues to be driven largely by command and control tools. The research finds that the PPP’s application in environmental management in Kenya has greatly been dented by the waiving of all the environmental impact assessment fees through a Presidential Executive Order in 2016. This has resulted in the immediate reduction of the environmental regulators’ income by over 70 per cent, drastically affecting the ability of the National Environmental Management Authority (NEMA) to undertake its regulatory function effectively. The article finds that as the demands for environmental management in Kenya’s extractives industry continues to rise, the weakening of the PPP regime poses significant challenges to the future of environmental management in Kenya.

 

Environmental impact assessment, extractives, extractive resource industry, polluter pays principle.

 


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