Analyzing the Kenyan legal framework’s responsivity to issues of climate change and climate adaption
By George Njogu
As the world grapples with the increasingly dire consequences of climate change, nations are compelled to take urgent action and implement comprehensive strategies to mitigate its effects. Nestled in the heart of East Africa, Kenya finds itself standing at the forefront of this global battle against a changing climate.[i] In a country where breathtaking landscapes intertwine with vibrant communities, the pressing question arises: How does Kenya, with its rich biodiversity and diverse ecosystems, harness the power of the law to confront this existential challenge?
The united nation Framework Convention on Climate Change (UNFCC) defines climate change as a modification in the climate that can be directly or indirectly linked to human activities. These activities alter the composition of the Earth's atmosphere and go beyond the natural variations in climate observed over similar timeframes.[ii]In the National Climate Change Action Plan of Kenya, climate change is defined as a modification in the climatic system resulting from notable shifts in the levels of greenhouse gases due to human activities. This human-induced alteration is in addition to the natural climate variations observed over an extensive period.[iii] The two definitions imply that climate change is significantly brought about by human activity.
Kenya's climatic conditions are largely influenced by global, regional and localized climatic conditions,[iv] rather than their own activities. The effects however are felt within. Since 1961, African Countries have witnessed 33% reduction in agricultural productivity due to climate change.[v] Adaptation is therefore crucial to the survival of Kenya's citizens.
Adaptation according to the climate change act 2016 refers to the process of adjusting in either natural or human systems in response to real or anticipated climatic stimuli or their impacts. This process aims to reduce or mitigate potential harm caused by these stimuli while also capitalizing on any advantageous opportunities that may arise.[vi] Questions then arise of how the legal system has adapted to deal with climate change and how it fosters adaptation to climate change in other sectors of the Government.
Kenya's legal action
The constitution of Kenya 2010 is acclaimed as being one with a great vision. This is however not the case for the topic at hand. The well written document falls short of mentioning anything on the state of the climate. This, despite the fact that the contemplation of the topic is highly crucial to the survival of Kenyan citizens. The constitution however provides for ways of making laws,[vii] providing one of the greatest avenues in tackling the issue.
In 2016, Kenya enacted the Climate Change Act. This is the country's main legislation on climate action. The Act is guided by articles 42 and 69 of the constitution which provide for the right to a clean healthy environment,[viii] including the right to have the environment protected[ix] for the benefit of present and future generations through legislative and other measures as well as the states obligation to ensure that the environment is well preserved and natural resources are adequately utilized. The Act is to be applied for the development, management and regulation of mechanisms to enhance climate change resilience.[x] It places duties upon the national and county governments for mainstream climate action.[xi]
The Climate Change Act 2016 had various objectives as set out in section three one being that it was enacted to be applied in all sectors of the economy by the national and county governments so as to mainstream climate change responses into development planning, decision making and implementation.[xii] It was enacted to increase adaptive capacity and resilience.[xiii]It was also aimed at providing incentives and obligations for the private sector to contribute in achieving low carbon emitting technologies.[xiv] The Act was enacted to facilitate capacity development for public participation in climate change responses via awareness action. It was also enacted so that its provisions may integrate climate change into the exercise of powers and functions of all levels of governance.[xv] The Act's incentives are commendable.
The legislature enacted the Energy Act. Section 91 of the Act establishes a renewable energy Feed-In-Tariff system that aims at catalyzing the generation of electricity via renewable energy sources and minimizing the emission of greenhouse gasses by licensing reliance on non-renewable energy resources.[xvi] The Feed-In-Tariff policy was developed as a guideline on the government's commitment, to act as stimulant of the generation and use of renewable energy through preferential tariffs.[xvii]
In 2010, the Kenyan Government introduced the National Climate Change Response Strategy (NCCRS) followed by the National Climate Change Action Plan (NCCAP 2013-2017) in 2013. The action plan emphasizes that adaptation is the primary focus for the country due to the detrimental socio-economic consequences resulting from climate change and the escalating vulnerabilities faced by various sectors. It unequivocally acknowledges that achieving sustainable development becomes challenging in the face of a changing climate that imposes adverse economic, social, and environmental effects.[xviii] As a component of key facilitative measures, the National Climate Change Action Plan (NCCAP) mandates various lead agencies, including the National Treasury and Planning department, to identify policy and financial encouragements. These incentives aim to stimulate the adoption of climate-friendly technologies. Examples of such incentives include tax benefits, reduced energy tariffs, low-interest loans, and the promotion of public-private partnerships. The National Treasury holds the responsibility of formulating climate finance strategies and regulations, while also overseeing the National Climate Change Fund, which is administered by the department.
The two Acts as mentioned above show the legal system's adaptation towards the climate crisis. This cannot be ignored but it leaves a great room for improvement. Climate being inconsistent and inconstant makes finding a constant solution by the legal system, a task that is well beyond their competence. So, the attempt to make laws is a response that is worth great applaud, but there's a lot more that needs to be done.
[i] Kenya National Adaptation Plan: 2015-2030, Government of Kenya, July 2016.
[ii]'[iii] Government of Kenya (2018). National Climate Change Action Plan (Kenya):2018-2022.Nairobi: Ministry of Environment and Forestry.
[iv] John Obiero, Japheth Onyando 'Climate' Paolo Paron and Daniel Ochieng (eds) Kenya: A Natural Outlook, Elsevier,2011.
[v] "Welcome to the future" President Ruto makes opening remarks at the Africa Climate Summit, NTV Kenya, 4 September 2023, 14:48 to 14:50-[vi] Climate Change Act ,2016.
[vii]Constitution of Kenya (2010), Article 95(3).
[viii]Constitution of Kenya (2010) Article 42.
[ix]Constitution of Kenya (2010) Article 69(2).
[x]Climate Change Act ,2016(NO.11 of 2016) ECOLEX,2016-[xi] [xii] [xiii]Review of The Climate Change Act 2016, Ian Njathi, March 4 2022, Tharuma Trevisan Advocates.
[xiv]Review of The Climate Change Act 2016, Ian Njathi, March 4 2022, Tharuma Trevisan Advocates.
[xv] Review of The Climate Change Act 2016, Ian Njathi, March 4 2022, Tharuma Trevisan Advocates.
[xvi] 'Highlight of Kenya's Energy Act 2019' Rodl & Partner, 2019-[xvii] 'Highlight of Kenya's Energy Act 2019' Rodl & Partner, 2019-[xviii] Kenya National Adoption Plan:2015-2030, Government of Kenya, July 2016.