Integrated Natural Resources and

Environmental Management for Sustainable

Development in Kenya

Kariuki Muigua
Integrated Natural Resources and Environmental Management for Sustainable Development in Kenya

Integrated Natural Resources and Environmental Management for

Sustainable Development in Kenya

Kariuki Muigua*
Abstract

Natural Resources and the environment in general are central to both the anthropocentric and
ecocentric approaches to sustainable development agenda. These resources are considered to be
the most important source of livelihood for the human beings. However, most of these resources
are finite in nature and must therefore be managed in a sustainable manner to guarantee the
wellbeing of the current as well as future generations. As such, there are various approaches
that are acceptable within the international environmental legal and institutional frameworks for
the achievement of these goals. This paper examines these approaches within the context of
Kenya and argues that none of these approaches can fully achieve the sustainable development
goals if adopted on its own and thus makes a case for an integrated approach based on the
positive aspects of each approach.

1. Introduction
Natural resources law represents a major and perhaps one of the most important regulatory
regimes in most countries.1 One of the crucial issues addressed by natural resources law is how
to avoid harm and serious damage to resources.2 Therefore, policymakers have a variety of
approaches available when legislating to enable holistic protection and management of the
environment and natural resources.3 These approaches include command and control, market-
based approaches, incentives (taxation and subsidies) amongst others. Community based natural
resource management (CBNRM) and traditional resource management institutions have also
been used with some success in Kenya.4 Ecosystem-based approaches such as integrated water
resources management (IWRM) or River basin management, integrated coastal zone
*
PhD in Law (Nrb), FCIArb (Chartered Arbitrator), LL. B (Hons) Nrb, LL.M (Environmental Law) Nrb; Dip. In
Law (KSL); FCPS (K); Dip. In Arbitration (UK); MKIM; Mediator; Consultant: Lead expert EIA/EA NEMA; BSI
ISO/IEC 27001:2005 ISMS Lead Auditor/ Implementer; Advocate of the High Court of Kenya; Senior Lecturer at
the University of Nairobi, School of Law [January, 2019].
1
Hutter, B.M, ‘Socio-Legal Perspectives on Environmental Law: An Overview’ in Hutter B.M. (ed), A Reader in
Environmental Law, (Oxford University Press, 1999) 3, p.4.
2
Gunningham, N. & Sinclair, D., ‘Designing Smart Regulation,’ in Bridget M. Hutter (ed), A Reader in
Environmental Law (Oxford University Press, 1999), p.305.
3
Ibid, p.305.
4
See generally, Measham, T.G. & Lumbasi, J., “Success factors for Community Based Natural Resource
Management (CBNRM): lessons from Kenya and Australia.” Environmental Management, Vol. 52 (3), 2013, pp.
649-659.

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Integrated Natural Resources and Environmental Management for Sustainable Development in Kenya

management (ICZM) and integrated management of land and other resources are other
approaches to NRM.5 This paper discusses these approaches, assesses their role in sustainable
development, and proposes reforms on how to improve natural resource management in light of
the provisions of the Constitution.
Notably, the relationship between development and environment is central to the
sustainable development concept.6 Sustainable development aims to improve the quality of life
in a comprehensive manner, including economic prosperity, social equity and environmental
protection, by integrating all these aspects in a harmonious manner to enhance the
intergenerational well-being.7 At the United Nations Sustainable Development Summit on 25
September 2015, world leaders adopted the 2030 Agenda for Sustainable Development, which
includes a set of 17 Sustainable Development Goals (SDGs) to end poverty, fight inequality and
injustice, and tackle climate change by the year 2030.8 The 2030 Agenda for Sustainable
Development9 is a plan of action for people, planet and prosperity. It also seeks to strengthen
universal peace in larger freedom and was formulated in recognition that eradicating poverty in
all its forms and dimensions, including extreme poverty, is the greatest global challenge and an
indispensable requirement for sustainable development.10
While various groups define sustainability differently, where some restrict it to
environmental sustainability and others include broader issues affecting human life, the most
common one sees sustainability as the requirement to maintain the capacity to provide non-
declining well-being over time.11

5
See Feeney, C. & Gustafson, P., “Integrating Catchment and Coastal Management-A Survey of Local and
International Best Practice,” Prepared by Organisation for Auckland Regional Council, Auckland Regional Council
Technical Report 2009/092, 2010.
6
‘Theories of Economic Development,’ p. 14. Available at
www.springer.com/cda/content/document/cda_downloaddocument/9789812872470-c2.pdf?SGWID=0-0-45-
1483317-p177033406 [Accessed on 29/12/2018].
7
See generally, Chambers, R., Sustainable Livelihoods, Environment and Development: Putting Poor Rural People
First, IDS Discussion Paper 240, Brighton: IDS, 1987. Available at
https://opendocs.ids.ac.uk/opendocs/bitstream/handle/123456789/875/rc279.pdf?sequence=1&isAllowed=y
[Accessed on 29/12/2018].
8
United Nations Development Programme, ‘Sustainable Development Goals (SDGs),’ available at
http://www.undp.org/content/undp/en/home/mdgoverview/post-2015-development agenda.html
[Accessed on 30/12/2018].
9
Transforming our world: the 2030 Agenda for Sustainable Development, Resolution adopted by the General
Assembly on 25 September 2015, [without reference to a Main Committee (A/70/L.1)], Seventieth session, Agenda
items 15 and 116, 21 October 2015.
10
Ibid, Preamble.
11
Neumayer, E., ‘Sustainability and Well-being Indicators,’ Research Paper No. 2004/XX, (UNU World Institute
for Development Economics Research (UNU-WIDER), March 2004, p.1. Available at

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It is therefore, in recognition of the central role of the environment in human wellbeing that
this paper explores the various approaches aimed at facilitating effective environmental
governance that balances the foregoing aspects. The basis of this is that while development in all
its dimensions is necessary, it should not be carried out at the expense of the environment. It also
recognises that some approaches work better than others in achieving some goals hence the need
to examine all of them.
These approaches are to be applied as complementary tools in natural resource
management. They are not mutually exclusive as they overlap with one another in their
application.12 Command and control and market-based mechanisms can be used in a synergetic
manner such that while broader environmental objectives are set by public authorities, the
methods of achieving those objectives are determined by the business fraternity.13 Some argue
14
that while market-based mechanisms are seen to extend the freedom to the market players, in
command and control mechanisms, the benefits are said to flow to the consumers due to
government intervention. Further, the government will always play its role of granting rights,
imposing responsibilities, and extend, restrict, or eliminate privileges, while the market
conservatives argue that once there is efficient market then the free play of the market forces will
allocate resources to their highest valued uses and governments should therefore stay away.15

2. Command and Control Approaches

This approach is based on standards or regulations. It is one of the most common
approaches to environmental governance in many countries. This is true because natural
resources management has direct consequences for human wellbeing, social justice and creates

http://www.lse.ac.uk/geographyAndEnvironment/whosWho/profiles/neumayer/pdf/SustainabilitywellbeingArt..pdf
[Accessed on 30/12/2018].
12
Blanco, E. & Razzaque, J., Globalisation and Natural Resources Law: Challenges, Key Issues and Perspectives,
(Edward Elgar Publishing Limited, 2011), p. 106; See also Miller, B. W. & Morisette, J. T., “Integrating research
tools to support the management of social-ecological systems under climate change,” Ecology and Society, Vol. 19,
No. 3, 2014, Art. 41.
13
Hanks, J.P., “Self-Regulation and Co-Regulation-Cost-effective Policy Options for Industrial Sustainable
Development,” in “Industries and Enforcement of Environmental Law in Africa-Industry Experts Review
Environmental Practice,” (UNEP/UNDP Joint Project on Environmental Law and Institutions in Africa), pp.48-58.
14
Swaney, J.A., “Market versus Command and Control Environmental Policies,” Journal of Economic Issues, Vol.
26, No. 2, Jun., 1992, pp. 623-633, p. 624.
15
Ibid.

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conflicting individual interests in democratic institutions.16 Command and control approach has
several different meanings. It means that natural resources protection systems rely on laws,
regulations and penalties.17 Regulation traditionally refers to the use of law to constrain and
organize economic activity. It directs attention to state intervention through law, and typically
involves regulation through public agencies charged with the implementation of the law. 18 In
Kenya, the main agency charged with the implementation of natural resources laws is the
National Environment Management Authority (NEMA). Sectoral laws create a multiplicity of
agencies dealing with sector specific issues.19
The command and control mechanism therefore involves the ‘command’ of the law and the
legal authority of the State. Typically, it entails regulatory law, backed by criminal sanctions.20 It
is based on potential coercion rather than voluntary goodwill and on penalties rather than
positive incentives.21 The command and control mechanism is what has predominantly informed
the development of Kenya’s natural resources protection regime.22
In command and control, government agencies try to control exploitation and conservation
of natural resources by issuing detailed regulations and permits.23 This mechanism presupposes
the government’s ability to identify environmental problems and set rational priorities, develop
regulations that provide technologically workable and politically viable solutions and enforce
those regulations effectively. It is the state or international institution that establishes both the
regulatory parameters and the conditions and instruments that are to be used.24

16
Blanco, E. & Razzaque, J, Globalisation and Natural Resources Law: Challenges, Key Issues and Perspectives,
op cit.
17
Davies J.C. & Mazurek, J., Pollution Control in the United States: Evaluating the System (Resources for the
Future, 1998), p. 15.
18
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ op. cit, pp. 3 & 4.
19
See for example, the Kenya Wildlife Service (Established under the Wildlife Conservation and Management Act,
2013, No. 47 of 2013); Kenya Forest Service (under Forests Conservation and Management Act, 2016); and the
various agencies under the Water Act, 2016.
20
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ op. cit,, pp.3 & 5.
21
Davies J.C. & Mazurek, J., Pollution Control in the United States: Evaluating the System, op. cit, p.15.
22
Ochieng’, B.O., ‘Institutional Arrangements for Environmental Management in Kenya,’ in Okidi C.O., et al,
Environmental Governance in Kenya: Implementing the Framework Law, (East African Educational Publishers Ltd,
2008), p.200.
23
Babich, A., ‘Understanding the New Era in Environmental Law’ in Blumm, M.C. (ed), Environmental Law
(Dartmouth Publishing Company Limited, 1992), p. 364.
24
Ibid.

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At its core is the centralization of authority for natural resource management in the public
authorities with little delegation of responsibilities to other authorities or communities and
limited participation of local communities.25

2.1 Effectiveness of Command and Control Mechanisms

One reason that makes command and control mechanisms effective is its criminalization
aspect in regulation.26 It creates a kind of social control over the use of natural resources.
Through command and control mechanisms, new categories of criminal law and criminal
behaviour have been created.27 Entities which would have escaped with criminal behaviour are
now put on their guard. An example is the culpability of corporations. 28 Under the penal law in
Kenya, when a body corporate commits an offence it is its managers who are held culpable 29 but
under environmental law, culpability is assigned to the body corporate in its capacity as such,
together with its managers.30 This is important in ensuring compliance of large industries which
are often responsible for pollution which may negatively impact natural resources.
Under command and control approaches, criminal law is used as a preventative tool by use
of punitive sanction.31 This is because from an economic perspective, criminal sanctions when
effectively enforced raise the cost of certain conduct and therefore encourages compliance with
laws.32 Where the criminal penalty is greater than the benefits that would have obtained from
continuing with the pollution activity, the corporation will prefer to comply with the law. In
addition to fines, EMCA proposes other penalties such as forfeiture of items used as well as
cancellation of licenses and permits.33 Corporations will fear shutting down due to cancelled
permits and losing their assets as these will directly impact their profits.

25
Ochieng, B.O, ‘Institutional Arrangements for Environmental Management in Kenya,’ op. cit, p.200; cf. Ribot,
J.C., ‘Democratic Decentralization of Natural Resources: Institutionalizing Popular Participation,’ World Resources
Institute, 2002.
26
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ op. cit, pp. 3 & 5; cf. Ashworth,
A., ‘Conceptions of Over criminalization,’ Ohio State Journal of Criminal Law, Vol. 5, 2008. pp. 407-425.
27
See Bethell, E., ‘Environmental Regulation: Effective or Defective? Assessing Whether Criminal Sanctions
Provide Adequate Protection of the Environment,’ Plymouth Law Review, 2009, p.1.
28
Ibid.
29
S. 23, Penal Code (Cap 63), Laws of Kenya.
30
S. 145(1), Act No. 8 of 1999.
31
Mbote, P.K. ‘The Use of Criminal Law in Enforcing Environmental Law’ in Okidi, C.O., et al, Environmental
Governance in Kenya: Implementing the Framework Law (East African Educational Publishers Ltd, 2008) 110,
p.112.
32
Ibid, p. 110.
33
S.146, Act No. 8 of 1999.

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Another reason that makes command and control effective is that, environmental laws are
regarded as protective of public good.34 Most environmental problems, pollution among them,
must be solved by government action to avoid the tragedy of the commons.35 Activities of
relatively powerful groups are regulated in favour of a less powerful majority. 36 Indeed, it has
been observed elsewhere that public nuisance, because of pollutants being discharged by big
factories to the detriment of the poorer sections, is a challenge to the social justice component of
the rule of law.37 This is so simply because without the imposition of governmental restraints,
firms and individuals could pollute with utter contempt.38

2.2 Criticisms against the Command and Control Approach

Despite command and control being an effective tool, it has many critics. One recurring
criticism is that regulatory agencies are under the threat of “regulatory capture” by the regulated
population, if they identify too closely with their interests and hence may become lax in their
enforcement of the law. Regulatory capture is also evident in the apparent imbalance between the
capacities of the regulatory agencies and the regulated industries. This means that at times the
business enterprises, may enjoy some advantages over the public regulator as they have more
money, specialized staff, greater capacity to fight the regulator on both the technical and legal
grounds and more information on the environmental problem, its extent and possible
technological remedies.39

34
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ op cit, pp. 3 & 11.
35
Krier, J.E. ‘The Pollution Problem and Legal Institutions: A Conceptual Overview’ in Michael C. Blumm (ed),
Environmental Law (Dartmouth Publishing Company Limited, 1992) 181, p.181; See also Hardin, G. ‘The Tragedy
of the Commons,’ Science, New Series, Vol. 162, No. 3859 (Dec. 13, 1968), pp. 1243-1248, p. 1245.
36
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ op. cit, pp. 3 & 11.
37
Municipal Council, Ratlam v Shri Vardhichand & ors, 29 July, 1980, Supreme Court of India, 1980 AIR 1622,
1981 SCR (1) 97, p. 12.
38
Krier, J.E., op cit, p.181; See also generally Stewart, K. ‘Avoiding the Tragedy of the Commons: Greening
Governance through the Market or the Public Domain?’
Available at http://www.yorku.ca/drache/talks/pdf/apd_stewartfin.pdf, [Accessed on 30/12/2018]..
39
Hutter, B.M. “A Reader in Environmental Law”, (Oxford University Press, 1999); See also Stallworthy, M,
Understanding: Environmental Law (Sweet & Maxwell, 1st ed., 2008), pp. 79-81; See also Laura Tlaiye, L. &
Biller, D, ‘Successful Environmental Institutions: Lessons from Colombia and Curitiba, Brazil,’ LATEN
Dissemination Note, No.12, December, 1994, p. 5.

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Command and control approaches also suffer from a lack of resource capacity in terms of
staffing of the agencies, which leads to inability to carry out their mandates.40 Lead agencies
such as Kenya Wildlife Service and the National Environmental Management Authority lack
enough officials to monitor and check on activities likely to harm the environment. Poor
enforcement of standards on the part of national Environment Management Authority (NEMA)
can partly be said to be the reason for increased pollution in the country. For example, lead
agencies’ inspectors have the discretion to decide what constitutes an offence and whether to
refer a case for prosecution or not. Their interpretation of the law becomes quite important as it
constitutes the bridge between the government’s decision to intervene and protect the
environment and the impact of the intervention upon both the environment and the regulated.41
In such scenarios, incentive-based mechanisms become more useful.
Another challenge in relation to enforcement is the fact that command and control
mechanisms employ a deterrent/sanction model. In this model, a penal style of enforcement
accords prosecution an important role as its main objective is to prohibit certain activities. It is
also accusatory and geared towards catching law breakers.42 The penalties for violating standards
tend to be too low and enforcement tends to be weak; that standards tend to be less cost-effective
and the fact that to be effective, standards must be revised frequently which is not the case since
in practice legislation tends not to keep up with the change.43
Command and control mechanism has further been criticized as being effective only in
achieving short-term economic gains as against long-term benefits due to its oversimplified
perception of problems and solutions for control of the same.44 It is argued that the command and
control approach, implicitly assumes that the particular problem in question is well-bounded,
clearly defined, relatively simple, and generally linear with respect to cause and effect. 45 Where

40
See Amechi, E.P., “Poverty, Socio-Political Factors and Degradation of the Environment in Sub-Saharan Africa:
The Need for a Holistic Approach to the Protection of the Environment and Realisation of the Right to
Environment,” 5/2 Law, Environment and Development Journal, 2009, pp. 119-120.
41
Ibid.
42
Swaney, J.A., “Market versus Command and Control Environmental Policies,” Journal of Economic Issues, Vol.
26, No. 2, Jun., 1992, pp. 623-633, p. 624.
43
Sourced from http://www.unescap.org/drpad/vc/orientation/M5_10.htm,[Accessed on 31/12/2018]; See also
Bethell, E. ‘Environmental Regulation: Effective or Defective? Assessing Whether Criminal Sanctions Provide
Adequate Protection of the Environment,’ op cit.
44
Holling C. S. & Meffe, G.K. “Command and Control and the Pathology of Natural Resource Management,”
Conservation Biology, Vol. 10, No. 2 (Apr., 1996), pp. 328-337, p. 329.
45
Ibid; See also generally Sposito, V.A & Faggian, R., ‘Systemic Regional Development-A Systems Thinking
Approach,’ Informationen zur Raumentwicklung Heft, January, 2013. Available at

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Integrated Natural Resources and Environmental Management for Sustainable Development in Kenya

it is applied to complex real situations, it may not achieve the desired and predictable outcome
thus risking severe ecological, social, and economic repercussions.46 Instead of pursuing short-
term benefit through command and control, there should be effective natural resource
management that promotes long-term system viability based on an understanding of the key
processes that structure and drive ecosystems, and on acceptance of both the natural ranges of
ecosystem variation and the constraints of that variation for long-term success and
sustainability.47 Some economists and legal scholars have argued that command and control
mechanisms are beset by excessive bureaucratic centralization and rigidity, which lead to delays
and wastage of time.48 A command and control approach relies on centralizing authority for
environmental management in the hands of public institutions with little if any delegation of
responsibilities to communities.49 This leaves little room for participation of local communities.50
In this way, a command and control approach may ignore local and other traditional knowledge
relevant in natural resources management, which could be more cost effective and less time
consuming.51
The use of criminal law and criminal sanctions to control regulatory behaviour also poses a
challenge. Criminal law typically regulates situations and activities which are potentially
harmful. In other words, actual harm need not have been caused for an offence to have been
committed. Even when harm has been caused, the source of an offence may be difficult to detect
because of the complex technical nature of the activities subject to control.52 EMCA provides
that the court may issue an environmental restoration order against any person who has harmed,
is harming or is reasonably likely to harm the environment.53 It, therefore, seeks to regulate a
situation where harm has not yet actually occurred.

http://www.researchgate.net/publication/268180957_Systemic_Regional_Development__A_Systems_Thinking_Ap
proach [Accessed on 31/12/2018]
46
Ibid.
47
Ibid, p. 335; See also generally Simon A. Black, S. A., et al, “Using Better Management Thinking to Improve
Conservation Effectiveness,” ISRN Biodiversity, vol.2013, 2013.
48
Mintz, J.A., ‘Economic Reform of Environmental Protection: A Brief Commend on a Recent Debate’ in Michael
C. Blumm (ed), Environmental Law (Dartmouth Publishing Company Limited, 1992) 343, p. 345.
49
Ochieng’, B.O., ‘Institutional Arrangements for Environmental Management in Kenya,’ op. cit, p. 200.
50
Ibid.
51
See generally, Berkes, F., ‘Alternatives to Conventional Management: Lessons from Small-Scale Fisheries,’
Environments, Vol. 31, No.1, 2003.
52
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ op. cit, pp.3 & 6
53
S. 111(1), Act No. 8 of 1999.

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Further, evaluating environmental harm is difficult because of geographical and

chronological factors.54 To determine the need for regulation, the government agency assesses
the risk of each activity, which procedure is slow and resource intensive.55 Industry, also
constantly adds new risks and pollutants to the thousands already existing.56 EMCA, for example
has legislated on standards for water quality among others.57 It only identifies poisons, toxic
substances58 and effluent59 as water pollutants. However, there are many sources of water
pollution which NEMA is yet to identify and legislate upon. Once risks are assessed, regulators
face the difficulty of setting an acceptable level of risk as this involves balancing environmental
considerations against economic costs of risk reduction.60
Command and control mechanisms also have undesirable impacts where they seek to
regulate activities that are crucial to the economic growth of a country. 61 For example, one of the
flagship projects under Vision 2030 is the development and creation of at least five small and
medium enterprise industrial parks.62 This focus immediately raises important questions
concerning the general effects and implications of natural resources conservation legislation.
How useful will the law be as a regulatory tool, particularly when it is attempting to control
activities which may be regarded as central to the economy?63 It may fail in this quest depending
on what government is seeking to achieve at any particular time.
Finally, one of the major weaknesses of command and control mechanisms is that they are
not self-enforcing. The law fails to provide incentives for members of the regulated community

54
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ op cit, pp.3 & 7; See also
generally, Koomey, J. |& Krause, F., ‘Introduction to Environmental Externality Costs,’ available at
http://enduse.lbl.gov/Info/Externalities.pdf[Accessed on 31/12/2018].
55
Babich, A., ‘Understanding the New Era in Environmental Law,’ op cit p.367; See also, Eskeland, G. S. &
Jimenez, E., “Policy Instruments for Pollution Control in Developing Countries,” The World Bank Research
Observer, vol. 7(2) (July 1992), pp. 145-169.
56
Ibid, p. 367.
57
S. 71, EMCA.
58
S. 72(1).
59
S. 73.
60
Babich, A., ‘Understanding the New Era in Environmental Law,’ op. cit, p. 370.
61
See generally, ‘Regulation.’ Available at http://www.treasury.govt.nz/publications/briefings/1990/big90-11.pdf
[Accessed on 31/12/2018]; See also Coglianese, C., ‘Measuring Regulatory Performance: Evaluating the Impact of
Regulation and Regulatory Policy,’ OECD Expert Paper No. 1, August 2012.
Available at http://www.oecd.org/gov/regulatory-policy/1_coglianese%20web.pdf [Accessed on 31/12/2018].
62
Republic of Kenya, Kenya Vision 2030 Popular Version, (Government of Kenya, 2007) p.14.
63
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ op cit, pp. 3 & 6.

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to police themselves and one another.64 Under the command and control system, the regulated
community’s sole responsibility is to comply with government edicts. 65 If a statute or regulation
does not forbid a particular practice, people may engage in that practice with impunity. Thus, the
risk that environmental hazards have escaped scientific scrutiny and regulatory control is borne
by the public.66

2.3 Application of Command and Control in Kenya

For a long period of time, environmental governance in Kenya has been informed by the
command and control approach. For instance, Part IX of the Environmental Management and
Coordination Act67 provides for environmental restoration orders, environmental conservation
orders and environmental easements.68 EMCA also criminalizes activities that contribute to the
degradation of the environment and prescribes penalties for any non-compliance or violation of
the laws. Such provisions either spell out orders or provide for disincentives under the law to
discourage violation. However, very low penalties and lack of synchronization of penalties in
sectoral laws with EMCA has led to a general failure of the command and control mechanism in
protecting natural resources in Kenya. Further, EMCA provides for the appointment of
environmental inspectors to assist in enforcement of the provisions of the Act.69 Some sectoral
laws in Kenya have gone as far as para-militarizing enforcement agencies in an attempt to
enhance command and control. Kenya Wildlife Service, for example, is established as a
‘uniformed and disciplined’ service under the Wildlife Conservation and Management Act,
201370 while Kenya Forest Service provides for ‘uniformed and disciplined’ enforcement
officers. Both Services are authorized to use fire arms to ensure compliance with the
conservation standards provided for under the law.

64
Babich, A., ‘Understanding the New Era in Environmental Law,’ op. cit, p.375; See ‘Chapter xv. Regulatory And
Economic Instruments For Solid Waste Management,’ UNEP Division of Technology, Industry and Economics
(DTIE), Available at http://www.unep.org/ietc/Portals/136/SWM-Vol1-Part4.pdf [Accessed on 31/12/2018].
65
Ibid; See also Aalders, M.V.C. & Ton Wilthagen, T., ‘Moving beyond command-and-control: reflexivity in the
regulation of occupational safety and health and the environment,’ UvA-DARE, the institutional repository of the
University of Amsterdam (UvA), 1997. Available at http://dare.uva.nl/document/2/27432 [Accessed on 31/12/2018].
66
Ibid; cf. Wang, A., “The Role of Law in Environmental Protection in China: Recent Developments,” Vermont
Journal of Environmental Law, Vol.8, 2006, pp.195-223.
67
No. 8 of 1999, Laws of Kenya.
68
Ss. 108-115, No. 8 of 1999.
69
Ibid, S. 117.
70
No. 47 of 2013, Laws of Kenya.

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EMCA and the other sectoral laws, use tools such as licensing, registration and certificates
to control access to and use of natural resources. Such licenses and certificates come with
conditions which have to be met or there will be risk of withdrawal of the license among other
penalties.
The effectiveness of this approach was however exemplified in the case of Waweru v
Republic,71 where the Court reiterated the position of Section 3 of Environment (Management
and Conservation) Act 1999 (EMCA) which requires that courts take into account certain
universal principles when determining environment cases, including but not limited to:
Sustainable development; Precautionary principle; Polluter pays; and Public trust (not spelt out
in EMCA).72 Regarding public trust, the Court stated that the essence of the public trust is that
the state, as trustee, is under a fiduciary duty to deal with the trust property, being the common
natural resources, in a manner that is in the interests of the general public.73 The Court also stated
that environmental crimes under the Water Act, Public Health Act and EMCA cover the entire
range of liability including strict liability and absolute liability and ought to be severely punished
because the challenge of the restoration of the environment has to be tackled from all sides and
by every man and woman. Courts thus play an important and indispensable role in achieving
sustainable development which means conflicts must be dealt with effectively.
Article 22(1) of the constitution provides that every person has the right to institute court
proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied,
violated or infringed, or is threatened. This includes the right to clean and healthy environment
as envisaged under Article 43 thereof. The role of Courts in environmental matters is further
reinforced by the constitutionally recognised Environment and Land Court established under the
Environment and Land Court Act, 201174 which Act was enacted to give effect to Article
162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating

71
(2007) AHRLR 149 (KeHC 2006).
72
Ibid, para. 25.
73
Ibid, para. 31. The Court relied on the broad duty as contemplated in the Pakistani case of General Secretary West
Pakistan Salt Miners Labour Union v The Director of Industries and Mineral Development 1994 s CMR 2061,
where residents who were concerned that salt mining in their area would result in the contamination of the local
watercourse, reservoir and pipeline. The residents petitioned the Supreme Court of Pakistan to enforce their right to
have clean and unpolluted water and filed their claim as a human rights case under Art.184(1) of the Pakistan
Constitution. The Supreme Court held that as Art. 9 of the Constitution provided that ‘no person shall be deprived of
life or liberty save in accordance with the law’ the word ‘life’ should be given expansive definition, the right to have
unpolluted water was a right to life itself.
74
No. 19 of 2011, Laws of Kenya. See S. 4.

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to the environment and the use and occupation of, and title to, land, and to make provision for its
jurisdiction functions and powers, and for connected purposes.75 Further, in exercise of its
jurisdiction under Article 162(2) (b) of the Constitution, the Court has power to hear and
determine disputes, relating to environmental planning and protection, climate issues, land use
planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural
resources; relating to compulsory acquisition of land; relating to land administration and
management; relating to public, private and community land and contracts, choses in action or
other instruments granting any enforceable interests inland; and any other dispute relating to
environment and land.76 The Court is also empowered to hear and determine applications for
redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom
relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.77
The Court may make any order and grant any relief as the Court deems fit and just, including,
interim or permanent preservation orders including injunctions; prerogative orders; award of
damages; compensation; specific performance; restitution; declaration; or costs.78
This affirms the role of the state and courts in command and control approach in
environmental matters.

3. Market-Based Approaches
Market-based approaches employ market-based instruments, which are defined as
regulations that encourage behavior through market signals rather than through explicit
directives regarding environmental matters.79 Lack of a price on environmental goods has been
cited as a major reason for their overuse, depletion and unsustainable management. 80 Due to this
reason, command and control approach to environmental management has at times been seen as

75
No. 19 of 2011, Preamble.
76
Ibid, S. 13(2).
77
Ibid, S. 13(3).
78
Ibid, S. 13(7).
79
Stavins, R.N., ‘Experience With Market-Based Environmental Policy Instruments.’ The Handbook of
environmental Economics, 2001, p 1. Available at
http://www.hks.harvard.edu/fs/rstavins/Papers/Handbook_Chapter_on_MBI.pdf[Accessed on 31/12/2018].
80
See ‘Protecting the Environment and Economic Growth: Trade-Off Or Growth-Enhancing Structural
Adjustment?’ p.2.
Available at http://ec.europa.eu/economy_finance/publications/publication7726_en.pdf[Accessed on 31/12/2018];
See also Rosegrant, M.W., et al, ‘Water policy for efficient agricultural diversification: market-based Approaches,’
Food Policy, 1995, Vol. 20, No. 3, pp. 203-223.

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the most appropriate tool for environmental management for its interventionist approach, to
dictate what people should do with respect to environmental management.81

3.1 Application of Market-Based Approaches

The National Environment Action Plan under EMCA, attempts to incorporate the market-
based approaches in environmental management by way of providing for appropriate legal and
fiscal incentives that may be used to encourage the business community to incorporate
environmental requirements into their planning and operational processes.82

4. Incentives
Proponents of market-based approaches seem to suggest that government should replace
command and control mechanisms with a system that creates incentives to enhance protection of
natural resources in a more efficient manner.83As such, natural resources laws should be
modified to incorporate incentives.84 The fundamental changes necessary to prevent wholesale
destruction of the environment will occur only if people have powerful incentives to rethink and
reform their behaviour towards the environment.85As an attempt to move away from command
and control, there should be a shift from coercive to cooperative regulation, where persuasion
instead of punishment and rewards (incentives) as against punishment, are preferred. 86 It is
argued that practices of environmental responsibility by citizens and businesses may make good
business sense by reducing harmful impacts of industry before the introduction of restrictive

81
See ‘Chapter 4: Regulatory and Non-Regulatory Approaches to Pollution Control,’ Guidelines for Preparing
Economic Analyses, December 2010, pp. 4.2-4.3.
Available at http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0568-04.pdf/$file/EE-0568-04.pdf[Accessed on
31/12/2018].
82
S. 38(c), No. 8 of 1999.
83
Babich, A., ‘Understanding the New Era in Environmental Law,’ op cit, p.375; See also Porto, M. & Lobato, F.,
‘Mechanisms of Water Management: Command & Control and Social Mechanisms,’ Parte 1 de 2. Available at
http://socinfo.eclac.org/samtac/noticias/documentosdetrabajo/7/23397/InBr01605.pdf [Accessed on 31/12/2018].
84
Mintz, J.A., ‘Economic Reform of Environmental Protection: A Brief Commend on a Recent Debate,’ op cit, p.
345.
85
Babich, A., ‘Understanding the New Era in Environmental Law,’ op cit, p. 361; See also Bhat, S., Natural
Resources Conservation Law (SAGE, Publications India, 2010).
86
Braithwaite, J., “Rewards and Regulation,” Journal of Law and Society, Vol. 29, No. 1, New Directions in
Regulatory Theory (Mar., 2002), pp. 12-26, p. 13.

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legislation.87 EMCA provides for tax incentives, fiscal incentives, customs and excise waivers
and tax rebates.88
Incentives are forms of rewards extended to the business players as a way of encouraging
them to adopt measures that help in preserving the environment while discarding or avoiding
those that contribute to the degradation of the environment. They may take several forms which
range from tax/fiscal to exclusion from the effects of certain policy measures which would
otherwise harm businesses.89
EMCA provides that taxes and other fiscal incentives, disincentives or fees may be
proposed to government to induce or promote the proper management of the environment and
natural resources or the prevention or abatement of environmental degradation.90 Such taxes,
fiscal incentives, disincentives or fees may include customs and excise waiver in respect of
imported capital goods which prevent or substantially reduce environmental degradation caused
by an undertaking.91 They also include tax rebates to industries or establishments that install
plants, equipment and machinery for pollution control, recycling of wastes, water harvesting and
conservation, prevention of floods and for using alternative energy sources as substitutes for
hydrocarbons.92 Section 57 (1) also covers tax disincentives to deter bad environmental behavior
that leads to depletion of environmental resources or that cause pollution.93 Finally, it covers user
fees aimed at ensuring that those using environmental resources pay proper value for the
utilization of those resources.94 It can thus be surmised that fiscal incentives can play a critical
role in ensuring that natural resources are sustainably exploited, utilized, managed and conserved
as required by the Constitution.95

87
Forsyth, T., “Environmental Responsibility and Business Regulation: The Case of Sustainable Tourism,” The
Geographical Journal, Vol. 163(3), Nov., 1997, pp. 270-280, p. 271.
88
S. 57.
89
See ‘The Cost Effectiveness and Environmental Effects of Incentive Systems: The U. S. Experience with
Economic Incentives for Protecting the Environment,’ 2001,
available at http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0216B-04.pdf/$file/EE-0216B-04.pdf[Accessed on
31/12/2018].
90
S. 57 (1),EMCA.
91
Ibid, S. 57 (2) (a).
92
EMCA, S. 57 (2) (b).
93
Ibid, S. 57 (2) (c).
94
Ibid, S. 57 (2) (d).
95
Art. 69 (1) (a) of the Constitution.

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4.1 Effectiveness of Incentive Based Mechanisms

Natural resources laws, like any social rules require a higher degree of voluntary
compliance for their success.96 Incentives achieve the same aggregate level of natural resources
protection as command and control approaches but they allocate the burden of this protection
more efficiently among industry.97 EMCA provides that the National Environment Action Plan
should recommend appropriate legal and fiscal incentives that may be used to encourage the
business community to incorporate environmental requirements into their planning and
operational process.98 This will lay the burden of environmental protection on businesses as
opposed to the Government. Voluntary compliance in the United States of America (USA) has
reduced environmental harm below what it would otherwise be.99
Incentives have a number of advantages for the private sector. They encourage flexibility
in pollution control technologies used and motivate industries to devise new products or
production technologies to reduce environmental harm.100 This drives industries towards cost-
effective solutions and also towards more research and development in search of cheaper and
better damage abatement techniques.101 People, therefore, have a choice either to opt out of
burdensome regulation or to develop environmental control technology.102 EMCA provides that
NEMA should promote the use of renewable sources of energy by creating incentives for the
promotion of renewable sources of energy.103 This will drive industries to use cost-effective
clean energy.
Government agencies also benefit since incentives can be used to provide the Government
with new sources of revenue.104 The cost of incentives is also much lower than command and
control costs. For example, it has been estimated that abatement costs of sulphur dioxide (SO2)
emissions in USA through a tradable permits system has saved about USD 1 billion a year in

96
Clarence, D. J & Mazurek, J., Pollution Control in the United States: Evaluating the System, (Resources for the
Future, 1998) p.15.
97
André, F., ‘Firms and the Environment: Ethics or Incentives?’ in Dăianu, D. & Vranceanu, R. (eds), Ethical
Boundaries of Capitalism: Corporate Social Responsibility Series (Ashgate Publishing Ltd., 2005), p.209.
98
S. 38(c).
99
Clarence D. J & Mazurek, J., Pollution Control in the United States: Evaluating the System, op cit, p.15.
100
Mintz, J.A., ‘Economic Reform of Environmental Protection: A Brief Commend on a Recent Debate’ in Michael
C. Blumm (ed), Environmental Law (Dartmouth Publishing Company Limited, 1992) p.343-346.
101
André, F., ‘Firms and the Environment: Ethics or Incentives?’ op cit, p.209.
102
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview’ in Hutter, B.M., (ed), A Reader
in Environmental Law, (Oxford University Press, 1999), p.3, p.22.
103
S. 49(b).
104
Mintz, J.A., ‘Economic Reform of Environmental Protection: A Brief Commend on a Recent Debate’ in Blumm,
M.C., (ed), Environmental Law (Dartmouth Publishing Company Limited, 1992), p.343, p.346.

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compliance costs.105 The fact that costs are borne by industry alleviates the financial burdens on
government.106 Law enforcement costs are significantly reduced as is the government wage bill
because fewer law enforcement officers are required.

4.2 Critique of Incentive Based Mechanisms

One of the shortcomings of incentives, and a reason they are not widely used as an
environmental protection method, is that they do not fit every problem.107 For example, Kenya
cannot have blanket incentives to protect water resources countrywide. The pollution problem
and nature of pollutants for Nairobi River are very different from those in Lake Victoria. When
concerns are with respect to local environmental problems, it is the level emitted by individual
firms that must be controlled.108 In this case, a conventional command and control approach such
as uniform standards may be the preferred policy.109
Another shortcoming is that there may be bureaucratic obstacles to the successful use of
incentives including the difficulties of the economic calculations involved.110 For example, there
may be no precise measures for the emissions involved because there may be no reliable
technology available to undertake the measurement.111 EMCA tries to side-step this difficulty by
making it the responsibility of the Minister responsible for finance to propose incentives.112
Another reason why incentives are not widely used is that environmentalists view the
pollution problem more as a moral failing of corporate and political leaders, rather than a by-
product of society that can be reduced in an efficient way by use of incentives.113 Ethics comes to

105
André F., ‘Firms and the Environment: Ethics or Incentives?’ in Dăianu, D. & Vranceanu, R. (eds), op. cit,
p.210.
106
Hutter, B.M., ‘Socio-Legal Perspectives on Environmental Law: An Overview’ in Hutter, B.M., (ed), op. cit, p.
23.
107
André F., ‘Firms and the Environment: Ethics or Incentives?’ in Dăianu, D. & Vranceanu, R. (eds), op. cit, p.210.
108
Ibid, p.210.
109
Ibid, p.210; See also ‘Why Regulatory Governance Matters,’ CRC Policy Brief, No. 2, 2004, p. 3.
110
Hutter, B.M. ‘Socio-Legal Perspectives on Environmental Law: An Overview,’ in Hutter, B.M., (ed), op cit, p.
23.
111
Ibid, p.23.
112
S. 57(1).
113
André F., ‘Firms and the Environment: Ethics or Incentives?’ in Dăianu, D. & Vranceanu, R. (eds), op cit p.210;
See also Stavins, R.N. & Whitehead, B.W., "The Greening of America's Taxes: Pollution Charges and
Environmental Protection," CSIA Discussion Paper 92-03, (Kennedy School of Government, Harvard University,
March, 1992).

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the forefront of the debate rather than incentives. They worry that increased flexibility in
pollution control advocated by incentives would lower the level of environmental protection.114

5. Community-Based Natural Resource Management (CBNRM)

CBNRM is informed by the view that sustainable management of natural resources is most
likely where local communities are able to manage and derive benefits from natural resources.
They are characterized by a commitment to involve community members and local institutions in
management of natural resources, devolution of power and authority to the grass roots, a desire
to reconcile the objectives of socio-economic development and environmental conservation, the
tendency to defend and legitimize local and indigenous property rights and a desire to include
traditional values in modern management of natural resources.115 It is a response to the
challenges of a decentralized management system which occasions natural resources
degradation. It is also a modern attempt to revive traditional mechanisms for the conservation of
natural resources.116 Giving local communities the rights to manage, use or own resources,
creates incentives for them to collectively invest in natural resources management.117

5.1 Legal Framework on Community Based Natural Resources Management in

Kenya
National values and principles of governance such as sharing and devolution of power;
democracy and participation of the people and sustainable development provide a basis for
CBNRM.118 The Constitution provides that the State shall protect and enhance indigenous
knowledge of biodiversity of the communities.119 The State is also obliged to encourage public
participation in the management, protection and conservation of the environment.120 In settling
land disputes, communities are encouraged to apply recognized local community initiatives

114
Ibid, p.210.
115
Nelson F. & Agrawal, A., “Patronage or Participation? Community-based Natural Resource Management Reform
in Sub-Saharan Africa,” Journal of Development and Change, vol. 39, No.4, 2008, pp.557-585; See also Kellert,
S.R., et al, “Community Natural Resource Management: Promise, Rhetoric and Reality,” Society and Natural
Resources: An International Journal, Vol.13 (8), p.706.
116
Ibid.
117
Ibid, p.558.
118
Art.10 of Constitution.
119
Ibid, Art. 69(1) (c).
120
Ibid, Art. (1) (d).

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consistent with the Constitution.121 This will enhance community involvement in natural
resource management. All these provisions encourage in one way or the other the participation of
local communities in the management, use or ownership of natural resources.
Land is also classified as private, public or community. Community land is land that is
lawfully held, managed or used by specific communities as community forests, grazing areas or
shrines.122 This is also reflected in the Community Land Act 2016123 which was enacted to give
effect to Article 63 of the Constitution by providing for; first, the recognition, protection and
registration of community land rights; second, the management and administration of community
land; and third, the role of county governments in relation to unregistered community land and
related matters.124
This classification is important as it will encourage land management by communities. It
also defines community land as land that is ancestral land and one that is occupied by hunter and
gatherer communities.125 In this context, the Ogiek and the Endorois communities in Kenya are
the main reference point. The reason for this is that they are forest dwellers and there has been an
issue as to whether they should manage the forests in which they live in or it should be left to
state institutions such as the Kenya Forestry Service. The Ogiek are a forest dwelling people who
live in the Mau forest in Nakuru. The Endorois, on the other hand, live near the Lake Bogoria
reserve. The claim of the two communities has been tenure rights within the forest and wildlife
protected areas. The issue has been a subject of litigation at the African Commission on Human
and Peoples Rights.126 It can, therefore, be argued that the two communities have their rightful
place in the forests according to the Constitution and since they manage the forests, they are part
of the community-based organizations that manage natural resources.

121
Ibid, Art.60 (1) (g) and Art.67 (2) (f).
122
Constitution of Kenya, Art.63(d).
123
Community Land Act, No. 27 of 2016, Laws of Kenya.
124
Preamble, Community Land Act 2016.
125
Constitution of Kenya, Art.63(d).
126
276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on
behalf of Endorois Welfare Council v Kenya; Application No. 006/2012 – African Commission on Human and
Peoples’ Rights v. The Republic of Kenya (The Ogiek case arose from Communication No. 381/09 – Centre for
Minority Rights Development – Kenya and Minority Rights Group International (on behalf of the Ogiek Community
of the Mau Forest) v Kenya, which was before the African Commission on Human and Peoples’ Rights (the
Commission), and later referred to the Court.)

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In that regard, the Constitution provides for community forests. 127 The protection of
community land and by extension forests is guaranteed in the Constitution in the sense that all
unregistered land should be held in trust by the county governments on behalf of the
communities.128 It is also provided that community land should not be disposed of or otherwise
used in a manner that contravenes the rights of the members of that particular community.129
There is also a paradigm shift towards the use of incentives to encourage participation in
wildlife management in Kenya.130 If private land owners and communities are given incentives
to keep wildlife on their land, then they will perceive wildlife as an economic good and protect
the wildlife in the same manner they protect their private property. This is important because
command and control approaches to wildlife management have failed to curb loss of wildlife.
Economic incentives such as tax exemptions and waiver of stamp duties on land relating to
wildlife will go a long way into encouraging Kenyans to conserve wildlife as an alternative land
use method.
In forests management, the Forest Conservation and Management Act, 2016131 creates the
Forest Conservation Committee (FCC) as a key avenue in decision making and is comprised of
community forest associations and local authorities.132 The Act recognizes the need to strengthen
community-based institutions where the public can be more involved in the conservation of
forests. The key aspect in the Act and the Policy is the emphasis on the involvement of
stakeholders through participatory mechanisms in the management and conservation of
forests.133 Forests laws seek to enhance environmental governance by incorporating participatory
and collaborative management of forests through involvement of communities not only as
interested groups but as key stakeholders.134 This motivates communities to invest in sustainable

127
Kibugi, R. Governing Land Use in Kenya: From Sectoral Fragmentation to Sustainable Integration of Law and
Policy. Thesis submitted to the Faculty of Graduate and Postdoctoral Studies in partial fulfillment for the Doctors of
Laws (LL.D) degree, University of Ottawa (2011), p. 443.
128
Art.63(3) of the Constitution.
129
Ibid, Art.63 (4).
130
One of the objectives of the National Wildlife Conservation and Management Policy, 2012 is to promote
partnerships, incentives and benefit sharing to enhance wildlife conservation and management. The Policy further
proposes that the Government should provide economic incentives to induce or promote sustainable wildlife
conservation and management; See also the Wildlife Conservation and Management Act, 2013, No. 47 of 2013, s.5.
131
Forest Conservation and Management Act, No. 34 of 2016, Laws of Kenya.
132
Ibid, sec. 20.
133
Ibid, s. 48 & 49.
134
Situma, F.D., Forestry Law and the Environment in Okidi, C. O, et al, Environmental Governance in Kenya:
Implementing the Framework Law (East African Education Publishers, Nairobi 2008), p.250; See also S. 48 & 49 of
the Forest Conservation and Management Act, 2016.

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forestry management. Participation of communities in forests management is informed by the

fact that exclusion of local communities in management and conservation of natural resources
tends to escalate degradation rather than conservation.135 The sense of ownership by
communities facilitates gainful benefits to the local communities as well as encouraging
community eco-governance.136
The Water Act, 2016 establishes the basin water resources committees137 to encourage
public participation in water resources management. They are to advise the Water Resources
Authority on conservation of water resources, on use and apportionment of water resources and
on the grant, adjustment, cancellation or variation of any permit to use water resources. 138 The
basin area water resources management strategy is required to encourage and facilitate the
establishment and operation of Water Resources Users Associations (WRUAs) as fora for
conflict resolution and co-operative management of water resources in catchment areas.139 The
role of basin water resources committees and WRUAs in involving water users in decision-
making has been critiqued. It has been said that the role of basin water resources committees is
merely to advice WRMA, which is not obliged to take the advice. Doubts have also emerged as
to how they are funded. In relation to WRUAs, it is said that in the absence of effective
regulation of their relationship with WRMA, the latter may ignore the resolutions and decisions
of the former.140 The National Water Policy 1999 and the Water Act 2002, provided for a new
institutional set-up for water resources management and water services provision at national and
basin level. For participation of users/consumers and their empowerment, the Water Resources
Users Associations (WRUAs) and Water Consumer Groups (WCGs) were established. In
addition, Water Services Boards (WSBs) were established to promote asset development. The
National Water Policy of 2012 (NWP 2012) was to build on the achievements of the sector
reforms commenced with the Water Act 2002 and based on the sector principles lined out in the

135
See Vyamana, V.G., et al, ‘Participatory Forest Management in the Eastern Arc Mountain area of Tanzania: Who
is benefiting?’ Available at
http://iasc2008.glos.ac.uk/conference%20papers/papers/V/Vyamana_134501.pdf [Accessed on 31/12/2018].
136
‘Eco-social sustainability in the Murray-Darling Basin,’ Case study: regional sustainability efforts in the Murray-
Darling Basin, (Hawke Research Institute, University of South Australia, 2010).
Available at http://w3.unisa.edu.au/hawkeinstitute/research/ecosocial/eco-case-study.asp#top [Accessed on
31/12/2018].
137
Ss. 25-27 of the Water Act, 2016.
138
Ibid,S. 27.
139
Water Act, 2016, S. 29.
140
Akech M., “Governing Water and Sanitation in Kenya,” in Okidi, C.O., et al, (eds) Environmental Governance in
Kenya: Implementing the Framework Law, (EAEPL, 2008), p.324.

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National Water Policy, 1999.141 It was designed to facilitate compliance and alignment of the
National Water Policy with the Constitution of Kenya 2010 and the Vision 2030. This Policy
aims to ensure that these institutions carry out their mandates in line with the Constitution of
Kenya, 2010. The Water Act 2016142 which has since repealed the Water Act 2002 was enacted
to provide for the regulation, management and development of water resources, water and
sewerage services; and for other connected purposes. The Water Act 2016 provides that every
person has the right to access water resources, whose administration is the function of the
national government as stipulated in the Fourth Schedule to the Constitution.143
Section 29(l) of the Water Act 2016 provides that Water Resource Users Associations may
be established as associations of water resource users at the sub-basin level in accordance with
Regulations prescribed by the Authority. A Water Resource Users Association should be a
community based association for collaborative management of water resources and resolution of
conflicts concerning the use of water resources.144
Section 25 also tasks the Cabinet Secretary to establish a Basin Water Resources
Committee for each respective basin area which shall be responsible for the management of the
water resources within a respective basin area. A basin water resources committee should consist
of- not less than four and not more than seven members appointed by the Authority in
consultation with the Cabinet Secretary; and a representative of each county government whose
area falls within the basin appointed by the appointing authority after approval by the county
assembly.145
The persons appointed to the Basin Water Resources Committee must be residents of the
respective basin area and should include- a representative of a ministry responsible for matters
relating to water resources; a representative of farmers or pastoralists within the basin area
concerned; a representative of a public benefits organisation engaged in water resources
management programmes within the basin area concerned; and a representative of the business
community operating within the basin area concerned.146 The powers and functions of the Basin
Water Resources Committee shall be: to advise the Authority and county governments, at the
141
National Water Policy of 1999 (NWP 1999) also referred to as Sessional Paper No. 1 on National Policy on
Water Resources Management and Development, (Government Printer, Nairobi).
142
Water Act, No.43 of 2016, laws of Kenya.
143
S. 9, No.43 of 2016, Laws of Kenya.
144
Ibid, S. 29(2).
145
Water Act 2016, S. 26(1).
146
Ibid, S.26(3).

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respective regional office, concerning- conservation, use and apportionment of water resources;
the grant, adjustment, cancellation or variation of any permit; protection of water resources and
increasing the availability of water; annual reporting to the users of its services and the public on
water issues and their performance within the basin area; collection of data, analyzing and
managing the information system on water resources; review of the basin area water resources
management strategy; facilitation of the establishment and operations of water resource user
associations; flood mitigation activities; information sharing between the basin area and the
Authority; the equitable water sharing within the basin area through water allocation plans; and
any other matter related to the proper management of water resources.147
Cultural and social principles applied traditionally by communities are also recognized
under EMCA in so far as they are not inconsistent and repugnant to justice and morality or any
other written law.148 The Community-based norms and practices often referred to as ‘living
customary law,’ have endured in spite of efforts by both colonial and independent African
governments to redefine citizen’s relationship to water through state laws and
149
policies. Encouraging community participation in natural resources management is also an
effective channel for their empowerment which is important for realisation of SDG Goal 1 on
ending extreme poverty in all forms by 2030 by improving their livelihoods as well as SDG Goal
2 on ending hunger, achieving food security and improved nutrition and promoting sustainable
agriculture, among others.

6. Persuasion as an Approach to Natural Resources Management

Persuasion is used where the command and control and market-based approaches are not
working well or there is inadequate political support in their application.150 It aims at information
production and dissemination. The rationale behind policies on persuasion is to change people’s
behaviour ‘…by forcing them to think about the harm they are causing and by publicizing that
harm.’151 Information-based instruments, as they are at times called, act as economic
instruments. They include measures taken to enhance awareness on environmental issues such as
147
Water Act 2016, S. 27.
148
S. 5(b) of the Environmental Management and Co-ordination Act, 1999.
149
Hellum, A., et al, ‘The Human Right to Water and Sanitation in a Legal Pluralist Landscape: Perspectives of
Southern and Eastern African Women,’ in Hellum A., et al (eds), Water is Life: Women’s Human Rights in National
and Local Water Governance in Southern and Eastern Africa, (Weaver Press, Harare, 2015), p. 7.
150
Hunter D, et al, International Environmental Law and Policy (Foundation Press, 4th Edition, 2011), pp.113-114.
151
Ibid, p. 113.

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Integrated Natural Resources and Environmental Management for Sustainable Development in Kenya

naming and shaming of polluters, environmental awards, technical assistance programmes, eco-
labelling, eco-auditing, advertising, performance reporting, group empowerment programmes
and small business incentive schemes.152 Some information-based instruments such as eco-
labeling and eco-auditing are designed to capitalize on the perception that many consumers take
into account environmental considerations when buying products and services.153 The functions
of NEMA include the carrying out of programmes intended to enhance environmental education
and public awareness about the need for sound environmental management as well as enlisting
public support and encouraging the efforts made by other entities in that regard.154

7. Ecosystem-Based approaches
An ecosystem approach is a strategy for the integrated management of land, water and
living resources that promotes conservation and sustainable use in an equitable way.155 It is
premised on appropriate scientific methodologies focused on levels of biological organization
encompassing essential processed functions and interactions among organisms and their
environment. It recognizes human beings and their cultural identities as integral components of
ecosystems.156 Integrated Water Resource Management (IWRM) and Integrated Coastal Zones
Management (ICZM) are good examples of ecosystem-based approaches to natural resource
management and are discussed hereunder. SDG Goal 15 seeks to protect, restore and promote
sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and
halt and reverse land degradation and halt biodiversity loss. These approaches may therefore help
in achieving this goal.

7.1 Integrated Water Resources Management (IWRM)

IWRM is a cross-sectoral holistic approach to water management in response to the
growing competing demands for finite freshwater supplies that aims at ensuring the coordinated

152
Ibid. See also Hutter, B.M. “A Reader in Environmental Law,” op.cit.
153
Sustainable Cities for the Third Millenium: The Odyssey of Urban Excellence, ‘Chapter 2: For a New Balance
among Nature, Humans and Artefacts in Cities. Mega, V.P. 2010. p. 33; See also generally Gerald J. & Dorothy R.
F., ‘Ecolabels And The Greening Of The Food Market,’ in Proceedings of a Conference Boston, Massachusetts
November 7-9, 2002, Lockeretz, W., (ed.), 2003. Available at
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELDEV3101478 [Accessed on 31/12/2018].
154
S. 9 (2) (m) of EMCA.
155
Convention on Biological Diversity, available at www.cbd.int/ecosystem/, [Accessed on 31/12/2018].
156
Ibid.

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Integrated Natural Resources and Environmental Management for Sustainable Development in Kenya

development of water, land and related resources to optimise economic and social welfare
without compromising the sustainability of environmental systems.157 It is, therefore, a
systematic process for the sustainable development, allocation and monitoring of water resource
use in the context of social, economic and environmental objectives.158 It highlights the
interdependence of natural and social systems and provides a practical framework for such
integration on a watershed basis.159 It differs from the sectoral approach to natural resources
management which leads to uncoordinated water resource development and management,
resulting in conflict, waste and unsustainable systems.160
The concept of integrated water resources management, promotes the river basin as the
logical geographical unit for its practical realization, because the river basin offers many
advantages for strategic planning even at higher levels of government.161 River basin
management is also in line with the policy of decentralizing water resources management. This is
informed by the fact that it is local organisations and communities who have better knowledge of
the water resources and socio-economic situation and are the most affected by decisions taken on
how to manage the resource. This is also because centralized government agencies may have
difficulties in allocating and regulating water in a river basin as they are unaware of local
interests and priorities of the people. However, the central government provides the rules and
establishes the requisite framework for water management in a river basin.162 River basin
management, thus provides, the platform for the involvement and participation of the
marginalised groups, including women in the decision-making processes regarding water
resources.163
IWRM has been applied in the management of Tana River Basin and Mara River Basins in
a process where interventions such as policy, laws, regulations, programs, plans are put in place

157
Global Water Partnership, "Integrated Water Resources Management", Global Water Partnership Technical
Advisory Committee, Background Paper no.4, 2000.
158
See generally, The Training Manual on Integrated Water Resources Management for River Basin Organisations,
(Cap-Net & UNDP, 2008).
159
Roy, D. et al., “Ecosystem Approaches in Integrated Water Resources Management (IWRM): A Review of
Transboundary River Basins,” (International Institute for Sustainable Development (IISD), 2011), p.10.
160
See generally The Training Manual on Integrated Water Resources Management for River Basin Organisations,
op.cit.
161
Ibid.
162
Ibid.
163
Earle, A. & Bazilli, S., “A gendered critique of transboundary water management,” Feminist Review, Vol.103,
2013, pp. 99-119. p. 99; See also Chikozho, C., “Stakeholder Participatory Processes and Dialogue Platforms in the
Mazowe River Catchment, Zimbabwe,” African Studies Quarterly, Vol. 10, Issues 2 & 3, Fall 2008, pp. 27-44, p.
38.

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in order to attain the highest possible flow of benefits over time without causing environmental
degradation.164
IWRM approach can go a long way in realisation of SDG Goal 6 which seeks to ensure
availability and sustainable management of water and sanitation for all.

7.2 Integrated Coastal Zone Management

There are a myriad of challenges in the management of coastal zones. The Kenyan coastal
zone is faced by problems of poor planning and uncoordinated coastal development as a result of
a sectoral approach in planning and management; poor waste management; declining water
quality; destruction and loss of coastal and marine habitats as a result of over-exploitation, poor
land use practices, encroachment and unplanned and unregulated human settlements and urban
development, amongst others.165
Consequently, section 55 (2) of EMCA empowers NEMA in consultation with the relevant
lead agencies to conduct a survey of the coastal zone and prepare an integrated national coastal
zone management plan based on the report of such survey. The “Integrated coastal zone
management” (ICZM) involves comprehensive assessment, setting of objectives, planning and
management of coastal ecosystems and resources, while taking into account traditional, cultural
and historical perspectives and conflicting interests and uses, all within the limits set by natural
dynamics.166 ICZM is also defined as a dynamic process for the sustainable management and use
of coastal zones, taking into account at the same time the fragility of coastal ecosystems and
landscapes, the diversity of activities and uses, their interactions, the maritime orientation of
certain activities and uses and their impact on both the marine and land parts.167
It is, thus, a continuous and evolutionary process for achieving sustainable development in
the management of coastal and marine environment, covering the full cycle of information

164
See Water Resources Management Authority, Integrated Water Resources Management and Water Efficiency
Plan For Kenya, (Government Printer, Nairobi, 2009); See also
Lake Victoria Basin Commission, Mara River Basin-Wide Water Allocation Plan, March, 2013.
165
Integrated Coastal Zone Management Action Plan for Kenya 2011-2015, (NEMA), pp.8-9. Available at
http://www.nema.go.ke/index.php?option=com_phocadownload&view=category&download=315:iczm-national-
plan-of-action&id=67:strategies&Itemid=567, [Accessed on 31/12/2018].
166
Ibid, p. 10.
167
Art. 2(f), the Protocol on Integrated Coastal Zone Management (Protocol to the Mediterranean Convention for
the Protection of the Marine Environment and the Coastal Region of the Mediterranean, done at Barcelona on 16
February, 1976, as amended on 10 June 1995).

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Integrated Natural Resources and Environmental Management for Sustainable Development in Kenya

collection, planning, decision-making, management and monitoring of implementation.168 It is a

process by which interventions in form of policies, laws, regulations, programs and plans are
devised and implemented to change the way people use and interact with coastal ecosystems and
their resources in order to attain the highest possible flow of benefits over time without
preventing future generations from enjoying similar benefits.169
The objectives of integrated coastal zone management as outlined in the Convention for the
Protection of the Marine Environment and the Coastal Region of the Mediterranean
(Mediterranean Convention) are to inter alia: facilitate, through the rational planning of
activities, the sustainable development of coastal zones by ensuring that the environment and
landscapes are taken into account in harmony with economic, social and cultural development;
preserve coastal zones for the benefit of current and future generations; and to ensure the
sustainable use of natural resources, particularly with regard to water use.170
The Integrated Coastal Zone Management (ICZM) Policy 2014171 is a good example of
Kenya’s efforts in adopting this approach to maximize on the benefits accruing from its coastal
and marine resources while ensuring environmental conservation for sustainability. This Policy
should be fully implemented in order to maximize on the sustainable exploitation coastal
resources in Kenya.
The Integrated Coastal Zone Management approach to coastal and marine resources
management is hailed as part of the best practices in natural resources management and
conservation and indeed, it features prominently in the international legal instruments on natural
resources management and conservation.172
SDG Goal 14 calls for conservation and sustainable use of the oceans, seas and marine
resources for sustainable development. Adoption of ICZM approach is arguably one of the ways
that can help achieve this goal.

168
Integrated Coastal Zone Management Action Plan for Kenya 2011-2015, (NEMA), op. cit.
169
Ibid.
170
Mediterranean Convention, Art. 5.
171
Sessional Paper No. 13 of 2014, Republic of Kenya.
172
See Muigua, K., Kariuki, F., Wamukoya, D., Natural Resources and Environmental Justice in Kenya, Glenwood
Publishers, Nairobi – 2015, Chapt. 12.

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Integrated Natural Resources and Environmental Management for Sustainable Development in Kenya

8. Conclusion
The quest for sustainability and sustainable development requires integrating economic,
social, cultural, political, and ecological factors.173 As indicated above, the various management
mechanisms have relevance in the management of natural resources in the Kenyan context. If
effectively applied, the result would be the realisation of environmental justice and sustainable
use of resources. In addition, a hybrid approach which harnesses the positive attributes of each
perspective, while minimizing the negative aspects of each, is also suggested as the most
appropriate approach going forward. The achievement of environmental justice for all is
important in line with SDG Goal 16 which seeks to promote peaceful and inclusive societies for
sustainable development, provide access to justice for all and build effective, accountable and
inclusive institutions at all levels. All the approaches discussed this paper have a place in
sustainability debate. An integrated approach to natural resources and environmental
management is the way to go in order to attain sustainable development.

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