Unearthing Suo Motu Jurisdiction in Environmental Protection in Kenya

Unearthing Suo Motu Jurisdiction in Environmental Protection in Kenya

Read this story on Esheria.

Introduction

It is argued that there are various ways in which a country may achieve good environmental management, and that the avenue of law and particularly the establishment of a specific Court is but just one of them. By dint of Article 162 (2) (b) of the Constitution of Kenya 2010 and Section 4 of the Environment and Land Court Act No19 of 2011, the Environment and Land Court (hereinafter referred to as ELC) was established in the year 2011 as one of the superior courts whose mandate is to hear disputes related to environment and land. In this article, I will only focus on the Court’s mandate with regards to environmental matters. Other functions, important as they are, will not be examined in an effort to limit the scope of this work and to focus solely on environmental matters. This exclusion is admittedly somewhat problematic since the ELC Act provides for the Court’s jurisdiction in both environment and land matters and thus considered to be interrelated and interdependent to various degrees and extents.

Despite Kenya's basic environmental protection laws, in particular the Constitution of Kenya 2010, Environment and Management Act 1999 and the ELC Act 2011, enormous gap still exists between the letter of law and what is actually happening on the ground. The problem of environmental rights infringement is still pervasive across the country due to a number of reasons which are a result of human activities. The problem is more acute in urban areas due to the concentration of socio-economic activities and among other things such as increase in population, industrialization etc. Uncontrolled disposal of industrial discharge in the urban areas have gross adverse impacts on the environment and natural resource sectors. Most of the negative impacts affect the innocent population and their basic needs. This article therefore unearths a progressive mechanism, suo motu jurisdiction, to implement ELC's Constitutional mandate and other environmental legislations crafted to protect the environment. The main objective of this articleis to explore the concept of suo motu action in environmental matters and its relevance to the ELC in protecting and promoting environmental justice in Kenya. It examines how suo motu jurisdiction has worked out in India in protecting the environment and how the same can be replicated in Kenya. The article thereafter culminates into a reasonable conclusion.

Understanding Suo Motu Doctrine

To be able to understand Kenya’s efforts to stem its environmental morass, the proper starting point is no doubt to understand the various concepts as are applicable to this endeavour and as used in this discourse. Therefore, suo motu is an Indian legal term which generally refers to a situation where a judge acts without a request by either party to the action before a court. Normally, a judge’s role in any proceeding before the court is to direct the proceeding and act on the motion filed in the Court, meaning one party files a motion and the other party opposes it and the Court rules on the motion. However, in suo motu, the Court acts on its own volition without any of the parties asking for it. Suo motu therefore does away with the requirement of a formal application being made by an aggrieved party. For example, in the case of M.C Mehta V Kamal Nath and Others, the Supreme Court of India, in exercising suo motu jurisdiction to protect the environment, acted on the report by a newspaper repository on the sell of a river basin by a former minister for environment which was against the public trust principle.

Atiqa, relates the rule of suo motu jurisdiction as chemotherapy treatment. To her it is a treatment used to cure the body of deadly cancerous tumors. It functions like a poison that can kill off the body if used excessively, but can also cure the body if implemented correctly:

"the use of suo motu jurisdiction by the Supreme Court of Pakistan can be likened to chemotherapy treatment, where a judge accepts a case on its own accord. However, without a method to determine when it is proper to use this judicial tool, suo motu could 'poison the system' by politicizing the court and creating rifts between the arms of the government. If the Court acts without a method to pass along to the future jurists, it threatens creating chaos. If suo motu is overused, it could alienate the legislature and the executive to the point of defiance. The court could successfully cure many of the nation’s concerns only by taking a deliberate approach to addressing the injustices in its society through a legal framework that respects the balance of power and can be expanded on by jurists to come."

The ultimate goal of suo motu jurisdiction is thus to ensure the environment is duly protected from degrading human activities. Itprimarily concentrates on the continued and effective protection and promotion of environmental justice. The doctrine is important because it establishes the concept of judicial activism in environmental protection and illuminates the fact that Courts acting on their own accord to protect the environment represents a new development in environmental issues.

The Place of Suo Motu in Protecting the Environment in Kenya

Suo Motu action in environmental matters is yet to be meaningfully recognized in Kenya. This is despite allegations from notable legal enthusiasts and environmental lawyers that Section 20 of the ELC Act captures the aspect of suo motu doctrine, thus allowing ELC to act without necessarily waiting for filing of any cases on public interest litigation so as to promote environmental justice. However, Section 20 (1) only provides for the ELC to act on its own motion, with the agreement of the parties in applying Alternative Dispute Resolution to the issues in question and not the other way round.

How can Kenya Make Suo Motu a Reality in Environmental Protection?

The Stockholm Declaration of 1972, not only turned the attention of the Kenyan government to the broader perspective of environmental protection, but also the global attention. Ever since, the right to a healthy environment has been recognized in a number of other international, regional and national instruments. For example, Article 12(2)(b) of the International Covenant on Economic and Social and Cultural Rights (ICESCR) requires state parties to improve all aspects of environmental and industrial hygiene. Also, principle 3 of the UN Declaration on Environment and Development provides that the right to development must be fulfilled so as to equitably meet development and environmental needs of the present and future generations. Principle 4 of the same Declaration provides to the effect that the environmental protection constitutes an integral part of the development process and cannot be considered in isolation from it. Additionally, Article 24 of the African Charter on Human and Peoples Rights states that all parties shall have the right to a general satisfactory environment favourable to their development. Nationally, Article 42 of the Constitution of Kenya provides that every person has the right to a clean and healthy environment which includes the right to have the environment protected for the benefit of the present and future generations and to have obligation relating to the environment fulfilled under Article 70. The question now is if suo motu action is attainable in practice in Kenya.

For any society, suo motu action through judicial activism is valuable (presuming it is the society that considers judicial activism as being something positive) because a society benefits from having an active and committed Court which takes up actions on its own accord to protect the environment. The reason is that through judicial activism based on suo motu doctrine, the Courts can not only contribute to the society in which they live, but in so doing, such involvement serves as a way of bolstering environmental justice for the benefit of the present and future generations and ensuring respect for the environment is observed. Therefore, applying the doctrine of suo motu in environmental protection is indeed progressive. Two criteria can be used to determine when to apply suo motu jurisdiction: (i) where the matter is of public importance and (ii) it should involve a fundamental human right. The use of suo motu jurisdiction in environmental matters can act as a procedural remedy against the infringement of Kenya's environmental rights. The ELC can exercise suo motu action to review environmental offences without waiting for the citizens, most of whom are poor and ignorant, to institute environmental suits. Dr. Muigua argues that environmental protection sometimes is an urgent matter that if courts were to wait for filing of suits in order to issue relevant orders, there might be nothing left to save. Hence, since some matters take weeks and months in dispensing of due to technical reasons and inordinate delays by the state functionaries, suo motu doctrinal rule makes it easier for the ELC to act as the petitioner by taking notice of environmental rights infringement.

In India, suo motu jurisdiction is limited to superior courts like the Supreme Court and the High Courts. Suo motu is exercised in furtherance of powers conferred under Article 32 and 226 of the Constitution of India. These courts have been quite innovative, indicating new methods to implement legislation and to resolve environmental disputes in India. A not comprehensive list of them would include: entertaining petitions on behalf of the affected party and inanimate objects; taking suo motu action against the polluter; expanding the sphere of litigation; expanding the meaning of the existing Constitutional provisions; applying international environmental principles to domestic environmental problems; making spot visits to assess the environmental problem at the ground level; appointing amicus curiae to speak on behalf of the environment and; encouraging petitioners and lawyers to draw attention of the Court about Environmental problems through cash award. In particular, in Re: Distribution of Essential Supplies and Services During the Pandemic; the Supreme Court of India had this to say;

“The reason for the intervention of this Court must, however be understood in a proper perspective. In a time of national crisis, such as the one which is confronting the nation today as a consequence of the pandemic, the Supreme Court cannot stand silence as a mute spectator. This Court has a Constitutional duty to protect the fundamental rights traceable to Part III of the Constitution."

This among other actions has helped Courts in India to take up actions where the general public is ignorant or poor in an effort to ameliorate the environmental situation.

Conclusion and Recommendations

Since Kenya needs a rational and logical approach to economic growth for if the growth takes place at the cost of our rich flora and fauna then it is no growth at all, the ELC is the crucial weapon to save the environment. As canvassed, Suo motu jurisdiction can be an important tool for the ELC in limiting environmental degradation. The ELC, being important player in promoting and securing the environmental conservation, can thus be useful in making suo motu jurisdiction a reality in Kenya. The ELC, with enough support and resources, can absolutely be able to form strong foundation for environmental protection in Kenya through suo motu actions.