Public Participation And Environmental Jurisprudence In Kenya- Education For Sustainable Development Paradgm

PUBLIC PARTICIPATION AND ENVIRONMENTAL JURISPRUDENCE IN KENYA: EDUCATION FOR SUSTAINABLE DEVELOPMENT PARADIGM Duncan Kiboyye Okoth-Yogo1 John O. Oluoch2

ABSTRACT Public participation is today an integral part of Kenya’s legal positivism out of the accepted wisdom that the authorities in charge of environmental management will do better if they are exposed consistently to public views. In addition, the public is likely to feel better and be more positively won over to accept outcomes if they are invited to express their opinions and facts. Education is an essential tool for proffering better public participation as it not only eases the communication and understanding of its rationale but also augments the potency of indigenous knowledge, science and technology, international comity and national goals for sustainable developments. A study of the Environmental Impact Assessments, Environmental Audits, Public Interest Litigation and Public Participation as provided for under the Environmental Management and Coordination Act of Kenya (1999), conducted between 2003 and 2008, has shown that there is a profound nexus between public participation on sustainable development issues on the one hand and higher learning on the other. A further study on the contents of the schools and colleges curricular also reveal that sustainable development is not adequately reflected as a vital component of the pedagogies. Third, the laws on public participation on environmental assessments are provided as if the levels of education are immaterial in carrying out effectual appraisals. Further to the foregoing, the provision for public participation under EMCA only envisages a public response to decisions which are already made. The law is silent on public participation at the project or policy planning phases. The principle of public participation is therefore rendered deficient. It has in many cases led to post decision citizens protests and costly litigation processes. The study has shown that an educated citizen involvement at the inception of projects and policies not only promotes environmental management resourcefulness but also justice. The paper recommends legal reforms that reflect the exigency for exponential environmental education for better informed choices. This can be done by way of civic education, continuing environmental education for relevant professionals and the need to reorient curricular at all levels to include a thorough understanding of sustainable development matrix. These are considered crucial for environmental justice.

1. INTRODUCTION Public participation is one of the principles of environmental law in Kenya as embodied in the Environmental Management and Coordination Act [EMCA].3 Every member of the public has an express locus standi to sue for purposes of protection of the environment. 4 1

Duncan Kiboyye Okoth-Yogo is a Law Lecturer, Moi University’s Schools of Arts and Social Sciences, Environmental Studies and School of Natural Resources Management; Advocate of the High Court of Kenya; Law In Development consultant, Moi University Holdings LTD; Member of the Law Society of Kenya; Member of the East African Law Society; Formerly Legal Officer, Moi University 2

John Osicho Oluoch is an Administrative Officer, Corporate Planning, Office of the Deputy Vice Chancellor, Moi University; Adjunct Media Lecturer, School of Human Resources Development; Member, Public Relations of Kenya. 3

Environmental Management and Coordination, Act 8 of 1999, Laws of Kenya. Even as the High of Kenya rejected Sifuna’s assertion that the Director General Of NEMA should be a formerly qualified environmentalist, it affirmed that Locus standi is no longer restricted on environmental issues. Sifuna versus NEMA, HCCC of 2003. 4

Public participation is also one of the most basic requirements for environmental assessments which include Environmental Impact Assessments [EIA], Environmental Audits [Eau] and Strategic Environmental Assessments [SEA]. The National Environmental Management Authority [NEMA] is compelled, under EMCA, to publish an EIA report, and invite for public comments, presented by a proponent. The underlying principle herein is that it is the public who bears the brunt of environmental degradation. It is also supposed that while it is good for the social order to assign certain public affairs to special institutions, the society as a whole should preserve a right to have input in the decision making and enforcement processes5. It is only apparent that to attain the goal of environmental justice and sustainable development the active involvement and support of those people most affected by their dearth is crucial 6. Situma opines that ‘public participation makes a major contribution to sound environmental governance in the sense that besides acting as a check on the quality of the EIA process, it also promotes transparency and accountability’. 7 In addition to the foregoing, it is a positive practice to provide for an adaptable procedure where a verdict may be petitioned without necessarily resorting to the litigious and protracted judicial process.8It is presumed that the invitation to the public will attract both the lay members of the public and experts in various fields who would infuse useful intercourse for the common good of the society. That wholesome environmental management is an integral part of sustainable development can not be gainsaid.9 For reasons of intergenerational equity, health and safety, national security, advancement of science and technology, inter alia, the nexus is far-reaching. EMCA has been summed as ‘the product of a methodology for the development of environmental law, which is designed to promote public participation in the conception and formulation of the law.’10 Public participation in Kenya since the enunciation of the law is now characterized by community acting with a lot of information or propaganda, access to decision making institutions, and implementing its articulated objectives of underscoring sustainable development that balances the needs of man for prudent use of the environment. Sustainable development, as is defined under section 2 of EMCA ‘means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs by maintaining the carrying capacity of the supporting ecosystems’. This definition is basically derived from the Brundtland Commission’s

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Okidi C.O & Kameri Mbote Patricia [2001] Environmental Law in Kenya: The Making of a Framework. Nairobi: United Nations Environmental Program [UNEP]& African Center for Technology Studies ACTS. . p. 104 6 MaGraw Daniel & Owen Lynch. [2006]. One Species, One Planet: Justice and Sustainable Development. In The World Bank Law Review:. Law Equity and Development Volume 2. MAritinus NIjhoff Publishers. p. 463 7 Situma F.D.P. EIA, Evolution, Legal and Institutional Aspects, Published in Tole Mwakio, [ed] Environmental Impact assessment in Kenya: Theory and Practice. [ Academy Science publishers for Moi University’s School of environmental Studies, 1997] p.2 8 Okidi& Kameri-Mbote Op.cit, p. 104 9 Yogo Kiboyye [2008] Outlines of Environmental Law in Kenya. Nairobi: Micropaq Publishers. 10 Okidi C.O & Kameri Mbote Patricia [2001] Environmental Law in Kenya: The Making of a Framework. Nairobi: United Nations Environmental Program [UNEP]& African Center for Technology Studies ACTS..

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proviso.11 It is vital for the squaring off significant objectives like human rights, promotion of socially and environmentally sustainable economic growth and protection and wise use of the natural environment, which sometimes are engendered in such a way that they appear to be opposed.12 It is essential for a conventional exposé of development to encompass a socio-economic constituent hinged on materialism and its advancement and as balanced against unassailable health, education, and housing and employment indicators.13 Further it is significant that values such as human rights, political freedom, enfranchisement and democracy are embodied. Exemplification of a cultural identity, self worth to people and the ‘full life paradigm concerned with the ultimate meaning of life and history as expressed in history and beliefs’ are significant on the same vein. 14 Consequently, choices in the management and use of environmental resources are necessary for a people to augment the socio-economic and political aspects of development.15A 1999 OECD report also stressed that If the primary goals of environmentally sustainable development are freedom from poverty, secure livelihood, good health, and quality of life, then socially responsible development has to deal with such needs as food, basic housing, access to good water, health care, sanitation, education, energy in the form of fuel, transport, etc.16 The conception of sustainable development was also elucidated by the Rio Declaration on Environment and Development.17 It enunciates the global agenda on sustainable development by listing 18 principles of sustainability which are herein encapsulated. First, a healthy environment is a sacrosanct part of the human civilization and development effort which should adhere to the tenet of intergenerational equity. Secondly, international amity should be a hallmark of sustainable development. Thirdly, public interests and participation is an integral part of the development debates and processes. Fourth, the persons who utilize the environment but end up causing pollutions and other environmental hazards should pay for the restoration of the environment, and indemnify those who are injured by their activities. Fifth, empirical understanding of phenomena alone is not enough premises on which debates and process on environment and sustainable development can be founded. They should be augmented by the precautionary principle.18

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World Commission on Environment and Development. 1987. Our Common Future. Oxford: Oxford University Press. p. 3: ‘Sustainable development refers to development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.” 12 Magraw Daniel and Lynch Owen. 2006. One Species, One Planet. Environmental Justice and Sustainable Development. In the World Bank Legal Review: Law, Equity and Development. Washington DC, USA: World BAnk. Martinus Nijhoff Publishers P. 442 13 Goulet D. [1990]. Development Ethics and Ecological Wisdom. In Engel J.R. and Engel J.G. eds. Ethics of Environemnt and Development: Global Challenge, International Response. Tucson. University of Arizona Press. 14 Ibid. 15 Ojwang J.B. & Juma Calestous. [1996]. Towards Ecological Jurisprudence. In Land we trust: Environemnt, Private Property and Constitutional Change/Calestous Juma and J.B.Ojwang, eds. Nairobi, Kenya: Initiative Publishers: London UK: Zed Books.] p. 310 16 OECD [1999]. OECD Seminar Social and Environmental Interface Proceedings. ENV/EPOC/gep/ [99] 13 [Sept. 2224, 1999], http://www.olis.oecd.org/olis.1999doc.nsf/LinkTo.env-epoc-gep[99]13 17 1992 UN Conference on Environment and Development. 18 Yogo Kiboyye [2008]. Outlines of Environmental Law. Nairobi: Micropaq Publishers.

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From the foregoing, it is discernible that sustainable development must generally have three components: environment, society, and economy. That these three operate in a profound trinity is irrefutable. A healthy, prosperous society is built on a healthy environment to provide food and resources, safe drinking water and clean air for its citizens. The sustainability paradigm goes on to reject the contention that casualties in the environmental and social realms are inevitable and acceptable consequences of economic development. Thus, the paper considers sustainability to be a paradigm for thinking about a future in which environmental, societal and economic considerations are balanced in the pursuit of development and improved quality of life. The nexus between environmental assessments and education is best exemplified in the global movement of Education for Sustainable Development [ESD]. From the time sustainable development was first endorsed at the UN General Assembly in 1987, the parallel concept of education and communication to support sustainable development has also been explored. From 1987 to 1992, the concept of sustainable development matured as committees discussed, negotiated, and wrote the 40 chapters of Agenda 21. Initial thoughts concerning ESD were captured in Chapter 36 of Agenda 21, “Promoting Education, Public Awareness, and Training.” As the concept of sustainable development was discussed and formulated, it became apparent that higher education and effective communication is of great essence to its enunciation. In Kenya, ESD is still being shaped by those within and outside the education community. The concepts and content of ESD in these cases are still more of fodder for academic symposia and workshops or developed by ministries, such as those of environment and health, and then given to educators to grapple with. Conceptual development independent of educator input is a problem recognized by international bodies as well as the educators themselves. Years of resource management has shown that a public that is knowledgeable about resource-management decisions can help achieve program goals. In contrast, an uninformed public can undermine resource-management programs. The most absurd scenario is how politicians are always swaying the public, especially the illiterate and the semi-literate, towards the populist agenda to the detriment of sustainable development. If Kenya hopes to identify sustainability goals and work toward them, focus must be on skills, values, and perspectives that encourage and support public participation in environmental litigation, environmental assessments and community decision making. To achieve this, basic education must be reoriented to address sustainability and, expanded to include critical-thinking skills, skills to organize and interpret data and information, skills to formulate questions, and the ability to analyze issues that confront communities. Command and control mechanisms are in themselves not sufficient. An appropriately reoriented basic education includes more principles, skills, perspectives, and values related to sustainability than are currently available. Hence, it is more of a question of appropriateness and relevance than of just mere quantity of education. ESD encompasses a vision that integrates environment, economy, and society. Reorienting education also requires teaching and learning knowledge, skills, perspectives, and values that will guide and motivate people to pursue sustainable livelihoods, to participate in a democratic society, and to live in a sustainable manner.

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Further to the foregoing, traditional ecological knowledge must of necessity be an inclusion in the reorientation. Indigenous traditions often carry with them the values and practices that embody sustainable resource use. Sustainable development also requires a population that is aware of the goals of a sustainable society and has the knowledge and skills to contribute to those goals. The need for an informed voting citizenry becomes ever more important with the need to accentuate deeper democratic principles. An informed voting citizenry, which lends support to enlightened policies and government initiatives, can help governments enact sustainable measures. Citizens also need to be knowledgeable consumers who can see beyond the “green wash” (i.e., public-relations efforts that highlight the activities of corporations that are more environmentally responsible while ignoring or hiding the major activities that are not). In today's world, people are surrounded by media (e.g., television, radio, newspapers, and magazines) and advertisements (e.g., bill boards, banners, World Wide Web sites, and logos on clothing). As a result, people must become media literate and able to analyze the messages of corporate advertisers. PUBLIC PARTICIPATION AND EDUCATION FOR SUSTAINABLE DEVELOPMENT Despite the fact that most of the public policy and laws on sustainable development have been in existence in Kenya for over a century, their broad systems and interactions remain complex and their understanding compounded by periodic paradigm shifts. It is on this note that the imbedding of public participation and the extension of the locus standi to include the entire publics ought to be perceived. Further to the foregoing section 59 provides for compulsory public participation in all the Environmental Impact Assessments. In a judicial review case of Peter Bogonko versus NEMA where the plaintiff had failed to involve the public in an EIA report and was subsequently denied a licence by NEMA to build a Petrol Station, NEMA’s decision was upheld by the High Court.19 It is in this light the quest for education for sustainable development, and Kagia’s statement that, ‘never before today has the economic fate of nations depended so heavily on acquisition of education,’20 be seen. Public participation is a multi faceted subject matter of environmental law and it is an integral part of EMCA. First and foremost, we have seen that section 3[5] of EMCA provides that the courts shall be guided by the principles of Public participation, among others in reaching decision. Secondly, the public as a whole now has a locus standi, under section 3 of EMCA to sue for any environmental wrong, even if they themselves are not directly affected. Third, Public participation, encompassing advertisements and public hearings, is unmistakably stipulated under the provisions for environmental impact assessments. Open participation that gives outsiders a role in the assessments by obliging the agency to record and to respond to comments is also provided for.21 While the perceptions from the congenial points of view by novices does not necessarily rule, the 19

Peter Bogonko Versus NEMA, [2006] e KLR [Misc Application No 1535 of 2005.

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Kagia Ruth. 2006. Securing the Future through Education. Vinay Bhargavara, eds. Global Issues for Global Citizens. An Introduction to Key Development Challenges. Washington DC, USA. The World Bank. p. 187. 21

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Act guarantee support to those whose well thought-out views are thrown out-of-the-way, disregarded or denigrated by a supercilious establishment. Short of the exceptional set of circumstances where the general public’s opinion is held to be controlling, NEMA is not likely to be stretched out in support of greater public notice, consultations and deliberation requirements. It is a twin tenet that the authority, and the lead agencies, will do better if they are exposed consistently to public views and the public will feel better and be more susceptible to accept outcomes if they are invited to expound their standpoints. Public participation under EMCA is a domestication of the Principle 10 of the Rio Declaration on Environment and Development signed by more than 100 heads of State worldwide, in Rio de Janeiro in 1992. It stipulates that: "Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided". The notion of public participation has been enunciated in the EIA convention and developed further in the Convention on Access to information, Public participation in Decision-making and access to justice in Environmental matters which was signed in Aarhus, Denmark in June 24 1998.22The two conventions provide for the right of the public to take part in EIA procedures even in Trans-boundary contexts and assert the importance of the effective coordination of the notification procedures. Public Participation, Public Interest Litigation and Environmental Justice The courts do function to ensure that the public bodies exercise their powers within the statutory or the constitutional limits. Section 3 of EMCA provides that any person can move the high court on any contentious issue as long as such an issue is not frivolous or vexatious. Such powers are also contained in the section 3 Civil Procedure Act that stipulates the inherent powers of the court. Further, the Law Reform Act provides for the judicial review23 procedures that the public can use to question administrative agencies on environmental issues. It is provided therein that:In any case in which the High Court of England is, by virtue of the query provisions of section 7 of the Administration of Justice 22

Ebbeson Jonas, Innovative Elements and Expected Effectiveness of the 1991 EIA Convention: [a paper Published in the Environmental Impact Assessment Review: volume 19 Number 1, 1999] p. 48 23 Order LIII of the Civil Procedure Rules provides for the procedure of judicial review wherein any powers of a governmental authority or any other can be subject. Under the rule 1, an application for an order of the mandamus, prohibition or certiorari can be made with leave of the court following an ex parte application to a judge in the chambers.

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[miscellaneous Provisions] Act, 1938 of the United Kingdom, is empowered to make an order of mandamus24, prohibition25 or certiorari26, the High Court [read the High Court of Kenya] shall have the power to make a like order The coming into force of EMCA was a major shift from the case of Wangari Maathai case. The Kenya Times Media Trust had sought to build a skyscraper at the Uhuru Park in Nairobi. The park happens to be one of the every few planted area of the City, providing the ever vital carbon sink, aesthetically important recreational center, among other positive things, in a polluted concrete jungle of a city. When Prof Maathai went to the High Court of Kenya to get a permanent injunction to stop the company, it was held that she does not have a locus standi. Section 3 of EMCA now provides for locus standi to the general public. Nothing exemplifies the power of the public, under the EMCA’s dispensation, to enforce environmental justice through the courts as the case of Sam Odera and other versus National Environmental Authority and Another.27 This was an appeal against an order by the High Court obtained by Sam Odera and others, in respect of the tenants in a block of apartments Known as “Dhanjay Apartments” located at Valley Road in Nairobi had obtained orders against E.M. Communications LTD from installing a Base Tranreceiver Station [BTS]on the roof of their apartment, stating that such a move would pose a health risk to them. When NEMA did not heed to their concerns that the company failed to provide information on health and safety impact on human beings owing to radiation levels, environmental impacts and other issues of concern to the tenants during their EIA, they moved to the High Court Under Certiorari. NEMA then Ordered EM to remove their equipment from the apartments within Seven Days. The company then aggrieved by this filed an appeal and further sought a stay of execution of the High Courts Orders. During the Hearing of the Application, the Court of Appeal held that the status quo should be maintained until final determination of the case maintaining that the loss the company was likely to suffer was compensable monetarily as opposed to health implications that were said to be posed by the project.28

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An order of mandamus is an order of the high court, which compels a public authority to perform some duty, which is imposed upon it by statute. The order only applies to the performance of a duty, which is mandatory and it has no application in the performance of a power, which is discretionary. 25 Prohibition is addressed to those subordinate courts, tribunals, officials or any adjudicating body who assume powers that does not belong to them. It forbids them from commencing on proceedings in a case before them when the power to deal with the matter does not belong to that body; hence it is lacking or exceeding its jurisdiction. 26

Certiorari refers to an order of the High Court to a subordinate court tribunal or authority requiring it to produce a certified record of a particular case tried therein, and to send the record to the high court for review. Once the record goes to the high Court, it is examined and if the decision is found to be inappropriate then it is quashed. This order does not lie to correct the course, practice or procedure of a tribunal. 27 Republic Versus National Environmental Authority and Another , ex parte, Sam Odera and Others [2007], eKLR, Court of Appeal at Nairobi, March 16, 2007 28 Kosgei Timon, [2007] Case Diary. [In the Law Report Section, Daily Nation Monday April 23, 2007]. P 14

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From a further research which has been conducted on the public interest litigation which has become a common phenomenon in Kenya since the liberalization of locus standi, nearly 100% of the cases have been spearheaded by persons holding at least a first University degree. Wangari Mathaai case, which sought to stop the defendant from building a skyscraper at the Nairobi’s Uhuru Park, Such litigations have been ivory tower undertakings. When there was a great conflict between tourist establishments at the Watamu bay and the Kenya Wildlife Services at the Watamu Marine reserve in 2005,29 it took the synthesis of the Dons from Moi University’s School of Environmental Studies 30 to bring sanity to the understanding of shoreline movement, the symbiosis between economic development and protection of marine biodiversity, all integral to communicating the understanding of sustainable development. Public Participation and Environmental Assessments. Environmental Assessment procedures are crucial to sustainable development as they are useful in developing comprehensive understanding of the plausible consequences of proposed actions in order to incorporate environmental considerations into a decision or a decision making process. They enable the making of informed choices. Whether a project, program, plan or policy is sound or not, environmental-wise, when to mitigate the problems rather than make alternative arrangements or basically to abandon a propose action because it can not pass the test of the cost-benefit analysis is crucial for public concord. Environmental assessments take cognizance of the merits of such planed actions on an economic, aesthetic or otherwise desirable basis.’31 The enactment of EMCA, especially the provisions for Environmental Impact Assessment under its section 2 and 58, the provisions for Strategic Environmental Assessments provided for under Section 41 of the Environmental [Impact Assessment and Audit] Regulations of 2003, shows how much Kenya recognize sustainable development. The provision of section 17 [2] of the regulations expands the stipulations of section 59 of the Act, which provides for public participation in EIAs, by outlining a two prong procedure to be used when seeking the views of the public. First is the publisitizing the project, and its anticipated effects through posters, mass media and electronic media. Second is the Mandatory three public meetings, which must be 29

This was exemplified by the case of High Court of Kenya, Civil Case Number 93 of 2004 at Mombasa, Pierre Lorporte Ltd versus Kenya Wildlife Services: Crystal Bay Resort, owned by the plaintiff herein is located in Watamu, south of Malindi, is situated a few meters from the shoreline. It had been allocated the Plot Number 810, containing by measurement one decimal two nine [1.129], on the 1 st of October 1995. The dimensions, abuttals and the boundaries were clearly delineated and Land Survey Plan Number 198515 deposited in the Survey Records Office at Nairobi. The conflict arose because in Watamu Bay the oscillating shoreline behavior has resulted in the Ocean eating into the beach properties hence creating conflicts with the Kenya Wildlife Services that runs the Watamu Marine National Reserve. This has raised a legal lacuna in as far as the interpretation of both the section 7 of the Wildlife [Conservation and Management] [Amendment] Chapter 376 and the Survey Regulations made under the Survey of Kenya Act, Chapter 299 of the Laws of Kenya are concerned. Under the later, it is provided that ‘where unalienated Government land fronting on the sea coast is being surveyed for alienation, a strip of land not less than 60 meters in width shall normally be reserved above high-water mark for government purposes.’ Because of the shoreline changes, the area covered by the plaintiff would seem to be within the 60m of the high Water mark, which is part of the marine reserve. 30

Munyao T.M. Simityu G., Mwasi S., Yogo K. [2005]. A Due Diligence Environmental Audit Pursuant to Pierre Loporte Ltd versus Kenya Wildlife Services: In the High Court of Kenya at Mombassa civil suit no 93 of 2004: A Technical Report. 31

Jain Ravi, Urban L.V., Stacey G.S. & Balbach Harold [2001] Environmental Assessment. McGraw-Hill.

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preceded by a prior notice of at least one week, with the affected parties for purposes of receiving their comments and also to explain the environmental consequences of the project. A qualified coordinator has to be appointed to receive and record the comments. It is also an opportunity through which those who are to be affected by the project may convey valuable information on local ideals and customs, which may not be possible to analyze empirically. Public participation is premised on the fact that every project, plan, program or policy, however desirable would have an impact on the environment, whether negative or positive. This requires high level of understanding of the interactions between extraction of resources and /or the development of other projects, and sustainable development, especially the issue of costs benefits analysis. During the Environmental Impact Assessment of the Tiomin’s Titanium mining project at the south coast of Kenya, one of the issues in the original plan that was considered negative was that building a port at Shimoni.32 Despite the lack of scientific certainty, it was considered imprudent to endanger the life of the marine biodiversity which the local community survives on. Another issue that required urgent application of the precautionary principle was the danger of radioactivity which titanium mining is well known for. Radiation, with potentials for causing human health problems is associated with minerals zircon and monazite which are present naturally in deposits together with titanium oxide. They contain radio active thorium and uranium in varying proportions. According the late Abuodha, Western Australia mineral sand deposits usually contain up to 10% heavy mineral of which 1-3% is monazite. These in turn contain 5-7%radio active thorium and 0-0.3% Uranium. ‘Grain count analyses of heavy mineral concentrates from the coast of Kenya show an average heavy mineral concentration of 20% of which 1-9is Zircon and 1-2 is monazite.33 As a precautionary measure, dust control is the most important objective in radiation safety as the most significant potential radiation problem is inhaled thorium in mineral sand dust. This had to be succinctly provided for in the EIA. It should be noted that Tiomin had wanted to go a head with this project before conducting an EIA until the High Court in Mombasa compelled them to comply with the requirements of EIA as provided under section 58 of EMCA.34 A study of the education system in Kenya shows that as much as public participation is enshrined in our legal system especially in as far as environment and sustainable development is concerned, this is not marched by content of our school education and public awareness campaigns. An analysis of the primary school curriculum reveals that only a mere 20% is dedicated to sustainable development. At the secondary school level, this is further reduced to 16%. At the College level, it is even further reduced to 12%. From the fifty rural provincial administration barazas35 studied between 2003 and 2005, 32

Coastal and Environmental Services of South Africa [2000] Environmental Impact Assessment for Tiomin Kenya LTD. Proposed Mining Project at he Kwale District in Kenya 33 Abuodha J.O.Z. [2002] Environmental Impact Assessment of the Proposed Titanium Mining Project In Kwale District, Kenya. A lecture at the Moi University’s School of Environmental Studies During the 2002 EIA Seminar. 34 Rogers Muema Nzioka and Others versus Tiomin Kenya LTD, HCCC No. 97 of 2001, Mombasa: See also Sifuna Nixon [2007] 35 Baraza is a Kiswahili word for public meetings held under the auspices of the public administration authorities. The Word has gained acceptance in Kenya’s Official and common parlance.

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it is revealed that 53% of the content is dedicated to sustainable development issues. The percentages are lesser in the urban scenario which stands at 47%. However, the average educational level of those who attend such baraza is form two level of education. Further to the foregoing, 31% of the policy influencing debates on sustainable development is spearheaded by Non-Governmental Organizations [NGO] staff that holds an average of an undergraduate degree. 19 % of the influence come from academic research and discussions while 1% come from the local Community Based Organizations [CBO], headed by people who on the average are educated up to form four. 49% are influenced by the Industries. Further when the primarily University trained Nongovernmental Organizations experts have challenged an EIA, this in 98% of the 25 cases studied led to consideration and implementation of mitigation measures after controversial court or tribunal battles or running protests. However when they are consulted right at the project planning stage, the level of controversy is brought down to under 10% of the cases studied. This is better illustrated by the Pierre Loporte case,36whereby the KWS was engrossed with a tourist establishment at the Watamu, for having encroached into the Watamu Marine Park. A due diligence environmental audit conducted by experts from Moi University easily placed all the issues in proper perspective. The higher percentage influence from the industry is an absurdity as this tilts the balance of contention between communitarian values and free enterprise in favour of the latter. Free enterprise, if not checked can be a danger to sustainable development if their profit motives are unchecked to the detriment of communitarian interests. DISCUSSIONS In Kenya, the current level of basic education is still relatively low that it severely hinders the ability to examine or comprehend the debates on the cost-benefit analyses, let alone the possible mitigation measures and other resource use options. These are quite crucial to the efficacy of public participation. It is unfortunate that when education levels are low, economies are often limited to primary resource extraction and subsistence agriculture. While this in itself might be good for sustainable environmental practices, the ability to withstand pressure from big environmental users from the big operators is limited. The contents of the Kenyan schools and colleges curricula reveal that sustainable development is not adequately reflected as a vital component of the pedagogies. The laws on public participation on environmental assessments are provided as if the levels of education are immaterial in carrying out effectual appraisals. To achieve environmental justice under the circumstances, it is imperative that the law should provide for a thorough environmental civic education, further to the advancement of an educational policy that supports the inculcation of holistic sustainable development into the curricula. 36

Pierre Loporte Ltd versus Kenya Wildlife Services: In the High Court of Kenya at Mombassa Civil Suit No. 93 of 2004.

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Further to the foregoing, the provision for public participation under EMCA only envisages a public response to decisions which are already made. The law is silent on public participation at the project or policy planning phases. The principle of public participation is therefore rendered deficient. It has in many cases led to post decision citizens protests and costly litigation processes. The study has shown that an educated citizen involvement at the inception of projects and policies not only promotes efficient economic basis and environmental management resourcefulness but also justice. The first priority of ESD as outlined in Chapter 36 of Agenda 21 is the promotion of basic education. The content and years of basic education differ greatly around the world from country to country. In Kenya (one could say) as in some other countries, for instance, primary school is considered basic education. In others eight or 12 years is mandatory. In many countries, basic education focuses on reading, writing, and ciphering. Pupils learn to read the newspaper, write letters, figure accounts, and develop skills necessary to fulfill their expected roles in their households and community. Training which is stressed in Chapter 36 of the Agenda 21 is also a key component of ESD. Kenya needs a literate and environmentally aware citizenry and work force to help guide nations in implementing their sustainability plans. All sectors - including business, industry, higher education, governments, nongovernmental organizations (NGOs), and community organizations – are encouraged to train their leaders in environmental management and to provide training to their workers. Training is distinct from education in that training is often specific to a particular job or class of jobs. Training teaches workers how to use equipment safely, be more efficient, and comply with regulations (e.g., environmental, health, or safety). For instance, a training program might teach workers to avoid changing the waste stream without notifying their supervisor. Further, if an employee is involved in a non-routine activity, such as cleaning a new piece of equipment, she or he is instructed not to dispose of the cleaning solvent by pouring it down a storm sewer drain that leads to the river. Some training, such as training women to use solar cookers rather than cooking on open, wood-fueled fires, involves tremendous change in social dynamics and practices. In this case, women must not only learn the mechanics of solar cookers, but they must also change daily routines of meal preparation to cook while the sun is high in the sky, rather than in the evening. Training informs people of accepted practices and procedures and gives them skills to perform specific tasks. In contrast, education is a socially transforming process that gives people knowledge, skills, perspectives, and values through which they can participate in and contribute to their own well-being and that of their community and nation. The relationship between education and sustainable environmental management is complex. Generally, higher educational levels are key to a nation's ability to develop and achieve sustainability targets as it makes the communications of the needs for better approaches much easier. Education can also improve sustainable agricultural

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productivity, enhance the status of women, reduce population growth rates, enhance biodiversity protection, and generally raise the standard of living. Other than the requirements for effective environmental assessments, literacy and numeracy allow farmers to adapt to new resource extraction methods, cope with risks, and respond to market signals. Literacy also helps farmers internalize eco-friendly practices, mix and apply chemicals (e.g., fertilizers and pesticides) according to manufacturers’ directions, thereby reducing the risks to the environment and human health and generally to inculcate efficiency. A basic education also helps farmers gain title to their land and apply for credit at banks and other lending institutions with more than residual effects on environmental management. Effects of education on sustainable environmental management in Kenya are greatest when the proportion of females educated to threshold level equals that of males. Finally, a subtle combination of higher education, research, and life-long learning is necessary for a nation to shift to information or knowledge-based economy, which is fueled less by imported technology and more by local innovation and creativity.37 CONCLUSION Public participation in Environmental management is integral to national sustainability vista and can be enhanced or limited by the level of education attained by the nation's citizens. Active and effective citizen participation in public issues is vital to any endeavor to diminish the dichotomy between socio-economics and environmental themes. Public participation in decisions not only about policies, plans, programs and projects related to environmental management but also development matrix in its entirety is central to realizing enduring answers. There is no longer any doubt that there is a profound nexus between a dynamic role from the population, and modern and effective democratic governance. It should no longer be the case that those who are governed act only to elect and then, whatever the outcome, are governed without their existing opportunities to interact with their representatives. It is time to add the idea of participation to the concept of representative democracy. Participation transforms the democratic system, energizing it, by creating a permanent connection between the governed and those who govern. 38 The major brunt of public participation’s effectiveness is founded on results which evolve from more reasoned decisions and higher consensus. This leads to enhanced perception and appreciation of inherent societal challenges and gives room for collaborative endeavors in effecting effective mitigation measures and other possible decisions. Such procedure promotes transparency, hence minimizing or eradicating dishonesty, and spells out responsibilities and smoothen the progression to the use of sanctions. 37

UNESCO. 1997. Educating for a Sustainable Future: A Transdisciplinary Vision for Concerted Action. EPD97/Conf.401/CLD.1. 38 FARN [2006].From Public Participation and Sustainable Development. On-Line Module developed by with the cooperation of IISD (Canada); The REC (Hungary) and SEI (Sweden), within the framework of the Sustainable Development Communications Network.

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Be they as they may, high illiteracy rates and unskilled workforces is a harbinger for limited development options. For the most part, the nations that generally have inadequate development options are forced to operate at the extractive levels with lower options for efficient environmental management. An educated workforce is central to moving beyond an extractive and subsistence economy.39 Further, good community-based decisions usually with direct influence on environmental assessment based public participation - which will affect social, economic, and environmental well-being - also depend on educated citizens. Development options, especially “greener” development options, expand as education increases. For example, a community with an abundance of skilled labor and technically trained people can persuade a corporation to follow a policy of biodiversity offsets. Citizens can also act to protect their communities by analyzing reports and data that address community issues and helping shape a community response. For example, citizens in an American village who were concerned about water pollution reported in a nearby watershed started monitoring the water quality of local streams. Based on their data and information, they fought against the development of a new golf-course, which would have used large amounts of fertilizer and herbicide in maintenance of the grounds. The same cannot be equated to the environmental “fights” of the Yala swamp, Sondu – Miriu hydro power project resistance, or the Tiomin project at Kwale. These resistances largely appear to be politically inspired than intellectually motivated, if at all. Although at the inception of the EIA procedures, a common view in many jurisdictions was that the involvement of the individuals and the non-governmental organizations in environmental decision–making was but an obstructing element. Currently the active involvement of the citizens is seen as an integral part of the compelling and enduring environmentalism. Under the Rio de Janeiro declaration of the Environment and Development, environmental issues are best handled with the participation of all the concerned citizens. At the national level, each individual shall have appropriate access to information concerning the environment that is in the government domain, including information on hazardous wastes and activities in their communities. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.40 As much EMCA has come along way in improving on the environmental justice environmental injustice increases as the putsch to provide for greater populations, more agriculture and industrialization among other things, increases.41 Environmental Assessments and other management tools have done a lot to establish legal sanity but little to diminish the multifaceted cumulative and disproportionately large environmental 39

Liebenthal Andres[2005] Extractive Industries and Sustainable Development: An Evaluation of World Bank Group Experiences. Washington: The International Bank for Reconstruction and Development/The World Bank. P. 7 40 1992 Declaration on Environment and Development, 13 June, UN doc. A/CONF.151/26/Rev.1 [1992]; 31 ILM [1992], p 876, principle 10 41 Yogo Kiboyye [2007]. Linking the Precautionary Principle to Environmental Justice: A Kenyan Perspective. A Paper Presented During the Moi University 3rd Annual Conference, MTL, Moi University, August, 2007.

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burdens on the poor.42 From exposure to toxics and other environmental hazards in the sprawling slums in the urban settlements, exposure to toxics on the job, bearing the brunt of the collective waste production, the poor are most affected.43 Secondly, the poor are most likely to suffer lack of proper health care, basic amenities and access to environmental benefits partly due to generally lower levels of education. there are four major thrusts that can initially pave the way for developing and formulating an effective legal policy and framework pertaining to public participation. Practically and principally, there is a need to improve basic education, reorient existing education to address sustainable development, develop public understanding and awareness, and lastly emphasize civic education before major decisions on sustainable development are made. Lastly,

0o0o0o0o0000o0o0o0o0o0 BIBLIOGRPHY Abuodha J.O.Z. 2002. Environmental Impact Assessment of the Proposed Titanium Mining Project In Kwale District, Kenya. A lecture at the Moi University’s School of Environmental Studies During the 2002 EIA Seminar. AGENDA 21 The United Nations Programme of Action From Rio. Beierle, Thomas C., and Jerry Cayford. 2002. Democracy in Practice: Public Participation in Environmental Decisions. Washington, DC: Resources for the Future. Bernard, AK 2000. Education for All 2000 Assessment, Thematic Studies: Education for All and Children who are Excluded. World Education Forum. Berry James & Dennison Mark [2000], The Environmental law Compliance Handbook. McGraw]. Coastal and Environmental Services of South Africa. 2000. Environmental Impact Assessment for Tiomin Kenya LTD. Proposed Mining Project at he Kwale District in Kenya Development." Forum for Applied Research and Public Policy. Vol 14, n 4; pp 25 - 28. Ebbeson Jonas, [1999]. Innovative Elements and Expected Effectiveness of the 1991 EIA Convention: [a paper Published in the Environmental Impact Assessment Review: volume 19 Number 1, 1999]. FARN. 2006. .From Public Participation and Sustainable Development. On-Line Module developed by with the cooperation of IISD (Canada); The REC (Hungary) and 42

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Peter Kinuthia MWaniki & 2 others Versusu Peter Njuguna Gichecha & 3 Others [2006] e KLR Civil Case No. 313 of 2003 Peter Bogonko Versus NEMA, [2006] e KLR [Misc Application No 1535 of 2005. Lawrence Nginyo Kariuki Versus County Council of Kiambu and Another, High Court Misc. Application No. 1446 of 1994, Nairobi. Unreported Nixon Sifuna versus NEMA, HCCC of 2003 at Eldoret. Pierre Loporte Ltd versus Kenya Wildlife Services: In the High Court of Kenya at Mombassa Civil Suit No. 93 of 2004. Unreported Republic Versus National Environmental Authority and Another , ex parte, Sam Odera and Others [2007], eKLR, Court of Appeal at Nairobi, March 16, 2007 Rogers Muema Nzioka and Others versus Tiomin Kenya LTD, HCCC No. 97 of 2001, Mombasa: eKLR Wangari Maathai versus Kenya Times Media Trust, Nairobi HCCC No. of 1989. Unreported.

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