Resource Management Policies & Regulations
REPORT FOR CONSULTANCY ON A TECHNICAL REVIEW OF ENVIRONMENT AND NATURAL RESOURCE MANAGEMENT POLICIES AND REGULATIONS
ProPWD-NRM Project: The project seeks to address the lack of inclusion and meaningful involvement of Persons with Disabilities (PWD) in the governance and management of environment and natural resources. The action seeks to take advantage of the new devolved system to make environment and natural resource management a development priority in the newly established county governments. The action seeks to establish a framework of engagement and inclusion of PWDs in environment; and natural resource management and governance and to build capacity of community institutions and DPOs at the county level to undertake advocacy; engage in public campaigns. The project will contribute to the formulation of the proposed national environment policy; proposed water policy, revision of the Water Act; review of EMCA and revision of guidelines on environment impact assessment and development of 4 county specific ENRM plans and strategies policies that will be developed once the county governments are operational.
a) International Conventions and Treaties
International conventions and treaties offer guidance on the participation of persons with disabilities in governance processes on the countries they live in. Treaties and conventions ratified by Kenya form part of the law under the Constitution as per Article 2(5). This section highlights various conventions and treaties relating to the participation and inclusion of persons with disabilities in decision making processes, state policies and programmes. The treaties and conventions set the background for this analysis that proposes greater and targeted inclusion of persons with disabilities in the natural resource management sector in Kenya.
International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities
The preamble of the Convention on the Rights of Persons with disabilities provides that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them. Article 3(c) provides for full and effective participation and inclusion of persons with disabilities in society. Article 4 goes further to mandate States Parties to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities
3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations
African Charter on Human and Peoples’ Rights
Article 13 of the African [Banjul] Charter on Human and Peoples’ Rights indicates that every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. Further, every citizen shall have the right of equal access to the public service of his country and every individual shall have the right of access to public property and services in strict equality of all persons before the law.
International Covenant on Civil and Political Rights
Article 25 of the International Covenant on Civil and Political Rights mandates that every citizen shall have the right and the opportunity, without any of the distinctions and without unreasonable restrictions:(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; and (c) To have access, on general terms of equality, to public service in his country.
Draft Principles On Human Rights And The Environment
Principle 18 of the above principles posit that all persons have the right to active, free, and meaningful participation in planning and decision-making activities and processes that may have an impact on the environment and development. This includes the right to a prior assessment of the environmental, developmental and human rights consequences of proposed actions.
b) Constitution of Kenya, 2010
From the outset, Article 10 of the Constitution sets out inclusivenessas one of the national values and principles of governance be upheld in Kenya. Further, Article 27 states that every person is equal before the law and has the right to equal protection and equal benefit of the law. The State is not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Article 54 goes further to require the State to ensure the progressive implementation of the principle that at least five per cent of the members of the public in elective and appointive bodies are persons with disabilities. This provision is mirrored by Section 13 of the Person with Disabilities Act that mandates the National Council for Persons with Disabilities to endeavour to secure the reservation of five per cent of all casual, emergency and contractual positions in employment in the public and private sectors for persons with disabilities.
Regarding Environmental rights, Article 42 guarantees every person the right to a clean and healthy environment, including the right: (a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated under Article 69; and (b) to have obligations relating to the environment fulfilled under Article 70. Article 69 on its part outlines the obligations of the State in respect of the environment. Amongst these is the obligation to encourage public participation in the management, protection and conservation of the environment. Indeed subsection (2) thereof places a legal duty on every person to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. For PWDs to be able to fulfil this duty, then the State must put in place measures that facilitate such participation by PWDs including amendment to existing laws to provide for the same.
Article 72 provides that Parliament shall enact legislation to give full effect to the provisions of the part dealing with environment. Such legislation should ensure inclusion of PWDs in the management, conservation and protection of natural resources and the environment thus ensuring full compliance with the foregoing provisions.
Public Participation Opportunities
Persons with disabilities can take advantage of opportunities provided for by the Constitution and related legislation to participate in the policy and legislative making processes at the National and County Government levels. Article 1 emphasizes that all sovereign power belongs to the people, Article 10 on national values and principles of governance sets democracy and participation of the people as national values and principles. Further Articles 54, 55, 56 and 57 participation of the youth, minorities, persons with disabilities and marginalized groups and older members of society in governance and all other spheres of life. Article 69 mandates public participation in the management, protection and conservation of the environment while Articles 118 and 196 provide for public access and participation in legislative process at the national and county levels. Article 119 provides for the right to petition Parliament. This includes the right to petition Parliament on matters within its authority, including enacting, amending or repealing any legislation.
Under the County Governments Act, citizens have a right to petition County Governments, while Section 22 of the Urban Areas and Cities Act establishes a Citizen Fora that is to deliberate and make proposals for proposed issues for inclusion in county policies and county legislation and proposed national policies and national legislation. In any case Article 174 (c) posits that one of the objects of devolution is “to … enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them”
At both the National Assembly and County Assembly levels, persons with disabilities can engage in discussions on draft legislation, when the proposed legislation is at the Committee stage, while it is being debated on the floor of the House or before it is assented to by either the President or the Governor respectively.
Key Considerations in public participation:
- Public participation as a right rather than a privilege
- Defining minimum in public participation
- Determining activities requiring public participation (under Article 118)
- Defining the public (stakeholders, concerned persons, civil society, interested persons, diaspora)
- Determining appropriate entry point for public participation
- Informing the public of the opportunity for participation
- Providing the (objective) information needed for public participation
- Determining suitable media/ forums/methods for public participation
- Public participation in design of public participation
- Reasonable timeframes for public participation
- Resource implications of facilitating public participation
- Quantitative vs. qualitative public participation
- Making public participation influence decision making (vetting of nominees, Bills)
- Ethical questions in public participation
- Feedback to the public on impact of their participation
- Consequences of lack of public participation
Access to Information
Article 35 of the Constitution provides that every citizen has the right to information held by the State and information held by another person and required in the exercise or protection of any right and fundamental freedom. Persons with Disabilities have the right to access information on natural resource management. This information may range from data set that impacts on exercise of their fundamental freedoms and rights, participation in governance in the natural resource management sector and seeking effective remedies for any negative impact occasioned by poor natural resource management. All legislation relating to natural resource management should provide for easy means to access information.
People with disabilities (PWD) have the right to be equal members of society. This is often not the case. People with disabilities are among the most marginalised groups and experience discrimination in society.World Health Organization (WHO) estimates that 10% of the population has a disability. The Kenya National Survey for Persons with Disabilities (KNSPWD) undertaken in 2008 noted that 4.6% of Kenyans experience some form of disability;this translates to approximately 1.8 million people. A complex web of rights-based issues, including gender inequality and associated myths and cultural beliefs leads to the exclusion of people with disability within political, social and economic life as well as within the disability movement itself.
The UN Convention on the Rights of Persons with Disabilities (UNCRPWD), of which Kenya is a signatory sets out key recommendations to governments and civil society to promote equal access to rights and services for PWD. Government policies recognise disability as a barrier to reducing poverty and exclusion. In Kenya,the Persons with Disability Act created the National Council of Person with Disabilities (NCPWD) in 2004.
The KNSPWD (2008) revealed that 4.6% of Kenyans experience some form of disability; more disabled persons reside in rural than in urban areas; 18 % of PWDs are likely to be affected by environmental factors on a daily basis and 3% on a weekly basis;65% of PWDs regard the environment as a major problem in their daily lives.The Constitution of Kenya (2010) article 69 states that the state shall ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources. Also it seeks to ensure the equitable sharing of the accruing benefits; access to information and encourage public participation in the management, protection and conservation of the environment.
The Baseline survey/research in 15 counties, 2013, commission by VSO Jitolee with support from Act! revealed that PWDs in Kenya are faced with a myriad of challenges with regards to involvement and participation in the management of ENRM. A number of policies and Acts have been formulated and enacted to promote the participation and involvement of PWDs in development initiatives. However ENRM policies such as EMCA 1999, draft water Act 2012, draft Environment Policy, draft Water Policy and Environmental Impact Assessment Guidelines are either silent or weak in engagement of PWDs.
This calls for concerted efforts by different interlocutors to address the plight of PWDs and to facilitate their engagement in meaningful development activities. Considering the exclusion of person with disabilities in the governance and management of environment and natural resources, VSO Jitolee and partners proposes for real inclusion and participation of person with disabilities in environment and natural resource management.
It is VSO-Jitolee’s hope that the suggested alterations to the ENRM policies and legislations be included to ensure that the right to participation and access to information by the persons with disabilities is protected by our government. The team that comprises VSO Jitolee and partners are willing to engage further on these suggestions in appreciation of the consultative process that you have embraced in developing this important piece of legislation.
Kenya’s Natural Resource Management Laws
Having set out the overarching principles in the inclusion of persons with disabilities is natural governance; this analysis envisages participation of persons with disabilities in the areas of:
- Formulation of policy and law;
- Right to be represented in Government agencies
- Rights of notification or access to information;
- Rights to seek review of decisions;
- Rights to force a Government agency to take action; and
- The ability to bring court proceedings to prevent contravention of the rights to participation.
Kenya’s Natural Resource Management Laws spans the fields of agriculture, livestock, fisheries, environment and natural resources, water management, regional development, land use, management and tenure, energy and electricity, mining and tourism among others. While this analysis is limited largely to the Environment Management and Coordination laws and policy and water management, persons with disabilities ought to be included in governance of all other natural resources management processes.
Participants to the workshop were requested to answer the questions outlined in Appendix I below. The participants identified broad areas that provide challenge to persons with disabilities engaging in the management of natural resources. They highlighted existing strategies that may be applied to ensure full participation in governance and also indicated what reforms they wish to see.
Existing challenges discussed included open exclusion of persons with disabilities in governance initiatives, lack of awareness and information, cultural limitations and biases towards persons with disabilities, diverse nature of different persons living with different disabilities, legal and policy barriers and lack of mainstreaming disability issues in the day to day running of government. These challenges may however be overcome using existing structures. Self-help groups, non-governmental organisations, Constituency Development Fund Committees, inclusion in natural resource management institutions were identified as some of the options to mainstreaming disability matters in natural resource management initiatives.
Proposed reform initiatives included having integrative and inclusive structures in schools so that children with disability can be integrated in public schools, training institutions i.e. school curricula should include sign-language and Braille as part of the curriculum. Revision and modification of all infrastructure in public and private institutions. Enact and ensure implementation of policies and laws that cater for PWDs to the lowest level i.e. village level. Suppress cultural beliefs that marginalize PWDs. Ensure that land resource distribution even in family set-ups does not discriminate against PWDs.Enforce affirmative action, for instance for a five-year time period, to ensure representation of PWDs in all structures. Ensure that measures towards inclusion and integration of PWDs are practical and well-applicable at all levels, e.g. inclusive education should be tested and implemented on the basis of practical results attained through e.g. model schools in localities of different physical, social and cultural characteristics. There was emphasis on having the National and County Governments having at least 5% of persons working within their structures.
Memoranda on Various Laws
a) The Environment Management and Coordination Act (EMCA 1999)
The National Environment Council as established under Section 4, the National Environment Management Authority as established under Section 7 and the NEMA management board should have provisions for inclusion of persons with disabilities in the environment management and coordination.
Under Section 9, the National Environment Management Authority should have the function of advising National and County Governments on the impact natural resource management has on persons with disabilities
Provincial and District Environment Management Committees as currently established by Section 29 should have representation of persons with disabilities. EMCA should however be amended to be inline with the devolution structure. The Provincial and District Environment Management Committees should be restructured to be County Environment Management Committees.
Under Section 37 regarding the establishment of the National Environment Action Committee, there should be representation of persons with disabilities.
Section 38 on the National Environment Action Plan and State of Environment Report should set guidelines on how natural resource management in Kenya has an impact on the rights and fundamental freedoms of persons with disabilities. This would mainly be in the areas of mobility, utilisation and access to natural resources.
Part VI on Environmental Impact Assessment ought to provide that impact assessments should also include information on how proposed projects would impact on persons with disabilities
Part VII on Environmental Audit and Monitoring ought to monitor activities likely to negatively impact on the mobility, utilization and access to natural resources by persons with disabilities.
Part VIII on Environmental Quality Standards ought to have provision requiring standards that do not aggravate disabilities or cause disability in the populace. For example environment quality should ensure that there is mitigation to disabilities that may be aggravated or caused by the environment including but not restricted to blindness and deafness. This means that the Standards and Enforcement Review Committee established under Section 70 should undertake studies on environmental quality standards and their ramifications on disability.
Environmental inspections as under Section 117 should be trained on disability issues relating to the environment.
b) Environmental Management and Coordination (Amendment) Bill, 2012
Persons with disabilities should use Article 35 of the Constitution to access information relating to natural resource management held by the State. This is reflected by the proposed amendment to Section 3 of EMCA to provide for procedures for access to information.
The proposed amendment to Section 4 of EMCA ought to include ‘a representative appointed by National Council of Persons with Disabilities’.
It is important to note that the EMCA (Amendment) Bill proposes amendment to the principal Act to reflect the devolution structure under the Constitution of Kenya, 2010.
c) Proposed National Environment Policy (Revised Draft 8, August 2012)
The proposed policy has provision for environmental quality and health. It delves into issues relating to air quality, water and sanitation, waste management, radiation and noise all which may aggravate disability or cause disability among the populace. On implementation of strategies and actions, the policy should propose mainstreaming of issues relating to persons with disabilities. Further, public participation ought to purposely have policy statements on inclusion of persons with disabilities in all policy, legislative and decision-making processes. These anomalies should be addressed.
d) Proposed National Water Policy
Disability provisions should be included in the management of Water Sector Institutions and safeguarding of water. Overall, water service provisions ought to bear in mind pro-persons with disabilities access to water.
Proposal to include the following under the policy objective and policy statements:
‘Ensure equitable access of water by persons with disabilities’
‘Ensure representation and participation by persons with disabilities in management of Water Sector Institutions’
Draft Water Bill, 2012
The Bill proposes transition from the current Water Act. The Bill proposes to establish the following institutions:
- Water Resources Regulatory Authority (Clause 5)
- Basin Water Resource Boards (Clause 7)
- Water Resources Users Association (Clause 8)
- National Water Storage Authority (Clause 9)
- Water Works Development Board (Clause 18)
- Water Services Regulatory Commission (Clause 19)
- Water Sector Trust Fund (Clause 31)
- Water Tribunal (Clause 39)
While proposed to carryout diverse functions relating to water resource management, the powers and function of the above institutions have no overt provision for inclusion of persons with disabilities. Further, the proposed Bill does not give due regard to the unique needs of persons with disabilities in the management, conservation and access to water.
f) Environmental Impact Assessment and Audit Guidelines (EIA/EA).
Part III on environmental impact assessment study should include provision for persons undertaking the study to inquire into whether there are persons with disabilities living in the area and provide analysis into how proposed projects will impact their rights.
An examination of the Constitution of Kenya, international laws and guidelines, legislation relating to natural resource management plus input from the public forum indicate the rationale for the consultants proposals. While not every institution that deals with natural resource management will have representation from persons with disabilities, it is a step forward to highlight the challenges faced by persons with disabilities in the sectors. The Constitution and relevant legislation proposes wide public participation rights and the right to access information. Once comprehensively implemented, the above proposals will go a long way to mainstreaming matters relating to persons with disabilities in the natural resource management sectors.
DISCUSSION QUESTIONS-VSO JITOLEE CONSULTATIVE FORUM
(a) How effective are the existing national as well as sectoral laws and institutions in ensuring that persons with disabilities are included and fully participate in the management and governance of environmental and natural resources in Kenya?
(b) What are the shortcomings of such laws that hinder the inclusion and participation of PWDs in the management of environmental and natural resources in Kenya?
(c) What reform measures need to be undertaken to ensure that these laws facilitate and ensure inclusion of Persons with Disabilities (PWDS) in the management of environmental and natural resources?
(a) How efficacious are the existing national as well as sectoral policies in ensuring that persons with disabilities are included and fully participate in the management and governance of environmental and natural resources in Kenya?
(b) What are the limitations with such policies thus hindering the inclusion and participation of PWDs in the management of environmental and natural resources in Kenya?
(c) What reform measures to the policies need to be undertaken to ensure inclusion of Persons with Disabilities (PWDS) in the management of environmental and natural resources?
(a) What are the existing national and sectoral strategic measures (short-term and long-term) relating to environment and natural resource management and what is their impact on the inclusion of Persons with Disabilities in the management and conservation of the environmental and natural resources in Kenya?
(b) What are the limitations with such strategies in ensuring inclusion of Persons with Disabilities in the management and conservation of the environmental and natural resources in Kenya?
(c) What reform measures can be undertaken to these strategies to make them more responsive to the needs and rights of Persons with Disabilities (PWDS) at national and County levels?