Upholding Environmental Justice: The Significance of Constitutional Petition 43 of 2019 in Kenya's Environmental Prosecution Landscape

In the landmark case of Odando & Another v. National Environment Management Authority (NEMA) & Others (Constitutional Petition 43 of 2019), the Environment and Land Court addressed critical issues concerning environmental degradation in Kenya, particularly focusing on the pollution of the Nairobi and Athi Rivers and the air pollution emanating from the Dandora dumpsite. This case has set a precedent in enforcing environmental rights and the application of the precautionary principle in Kenya's legal framework.

Key Issues Raised in Court:

1. Violation of the Right to a Clean and Healthy Environment: The petitioners argued that the respondents, including NEMA and Nairobi Metropolitan Services (NMS), failed to uphold Article 42 of the Constitution, which guarantees every person the right to a clean and healthy environment. The court acknowledged that the pollution of the Nairobi and Athi Rivers, along with the air pollution from the Dandora dumpsite, posed significant health risks to residents, particularly those in informal settlements like Korogocho and Mukuru.

2. Application of the Precautionary Principle: The court emphasized the importance of the precautionary principle, as outlined in Section 2 of the Environmental Management and Coordination Act (EMCA) and Principle 15 of the Rio Declaration. This principle mandates that lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation when there are threats of serious or irreversible damage. The court held that the respondents had a duty to anticipate, prevent, and address the causes of environmental degradation proactively.

3. State's Duty to Prevent Environmental Harm: The judgment underscored the state's obligation under Article 69 of the Constitution to eliminate activities that endanger the environment. The court found that the respondents had not taken sufficient measures to prevent pollution, thereby failing in their constitutional and statutory duties.

4. Structural Interdicts and Mandated Actions: The court issued structural interdicts, directing the respondents to take specific actions within set timelines. These included identifying hazardous materials and processes, prescribing measures for waste management, ensuring environmentally sound waste disposal, and decommissioning the Dandora dumpsite within six months.

   
   

Relevance in Today's Environmental Prosecution Atmosphere:

This case has significant implications for environmental governance in Kenya:

• Enhanced Accountability: The judgment reinforces that environmental authorities can be held accountable for failing to prevent pollution, setting a precedent for future litigation.

• Proactive Environmental Management: By emphasizing the precautionary principle, the case promotes a shift from reactive to proactive environmental management, encouraging authorities to take preventive measures even in the absence of complete scientific evidence

• Empowerment of Citizens: The successful petition demonstrates the power of public interest litigation in enforcing environmental rights, empowering citizens and civil society organizations to hold authorities accountable.

• Policy and Legislative Reforms: The case highlights the need for robust environmental policies and effective implementation mechanisms, potentially influencing legislative reforms and policy development.

In conclusion, Constitutional Petition 43 of 2019 serves as a pivotal case in Kenya's environmental jurisprudence, emphasizing environmental rights enforcement and the precautionary principle's application. It underscores the judiciary's role in upholding environmental justice and sets a foundation for future environmental litigation and policy reforms in Kenya.