Quite a number of Kenyans have flown to Glasgow for COP26 (the 26th conference of parties to the UN Framework Convention on Climate Change).
It seems appropriate to ask, “What does the Constitution say about climate change?”
You won’t find that phrase in the Constitution. But it does say, “Every person has the right to a clean and healthy environment, which includes the right—to have the environment protected for the benefit of present and future generations”.
And the state must “eliminate processes and activities that are likely to endanger the environment.”
ENVIRONMENT AND CLIMATE CHANGE
Literally, the environment is what surrounds us — the air, water and even the soil. Air, and to a considerable extent water, we have come to realise, is not parcelled out into Kenya’s air, Uganda’s air, Europe’s air, etc.
If we focus on the atmosphere (“the envelope of gases surrounding the earth”), we realise that air affects us all. Global climate change is caused by the increase in the atmosphere of certain gases, particularly carbon dioxide and methane, which trap the heat of the sun causing overall global temperatures to rise (“greenhouse gases”).
Why is this not “clean and healthy”?
The consequences include some places being too hot to live in, or too hot for agriculture. Water is becoming an ever-increasing problem – with consequences for human and animals. Disease patterns will change, including malaria and other mosquito borne diseases spreading to places they have not been before.
And it is not just a question of hotter weather but of erratic weather, including storms and floods. South Sudan has been experiencing its worst floods for 60 years – attributed to climate change. Yet northern Kenya is experiencing droughts in which animals are dying – attributed also to climate change.
The constitutional duty to “eliminate processes and activities that are likely to endanger the environment” means the government must work to protect the environment not just from fumes and substance we usually think of as polluting, but also from greenhouse gases.
DO WE CONTRIBUTE TO CLIMATE CHANGE?
“But Africa has caused hardly any of the greenhouse gasses” is a common statement. And it is true.
I venture to suggest, however, that many of the leaders who are involved in decision making, negotiating internationally, and implementing decisions nationally have high individual carbon footprints.
Golf-playing, gas-guzzler driving, nyama choma eating, jet-setting and London-house-owning, they would rival Europeans and North Americans in terms of their climate change impacts – mitigated only by the fact that we don’t have to heat or cool our homes to the same extent, and that our main source of electricity is low carbon.
We have had – or contemplated – some greenhouse gas initiatives of our own. Think about Mui coal or the proposed Lamu coal fired power plant (supposedly with strong support from some elite interests).
Think about deforestation, and our failure to get close so far to the Constitution’s’ target of 10 per cent tree cover overall – back to where we were in 1963. Deforestation not only increases CO2 concentrations but also increases soil erosion and run-off, contributing to swollen lakes.
And our government has been keen to benefit from our supposed oil reserves. Indeed at the heart of our dispute with Somalia over sea boundaries was the belief that the disputed segment of the Indian Ocean may hold oil – and we did not want to lose out to the Somalis. But arguably, both we and the Somalis should leave it in the ground.
The world recognises that climate change is already happening and that Africa – though contributing little to it – suffers among the most, and that whatever measures are taken in the near future further negative impacts are inevitable.
The impacts on livestock keeping communities, changes in crops that can be grown (including tea and coffee), increased human-wildlife conflicts, more forest fires, changed disease patterns – like malaria and dengue where they have not been before – and disastrous flooding in Mombasa are among the anticipated impacts.
The idea that countries that have most contributed to climate change should be giving major assistance to those countries that have hardly contributed to, but are suffering from, is very prominent in the various treaties – as it is in the COP 26 meeting.
Our Constitution, of course, cannot be enforced against other countries and people. It says that such treaties are part of the law of Kenya. The UNFCCC commits Kenya to “take precautionary measures to anticipate, prevent or minimize the causes of climate change.” And it also accepts as a principle that it should “mitigate its adverse effects”.
The Constitution recognises everyone’s rights to health, housing, education, food and water. And the negative impacts of climate change will mostly affect one of more of these rights. So the state has the obligation to protect us against those violations, and to promote those rights – and if necessary fulfil them, as by actually providing food to the starving.
We can link the commitments that the so-called developed countries adopted in these treaties to our government’s obligations under the Constitution.
The first include taking the lead in reducing greenhouse emissions, and providing finance for developing countries. Kenyans can argue the Constitution requires our government to do what it can to push the developed countries to reduce their own emissions, and to contribute to the costs that Kenyan incurs.
If Kenya freely enters into a treaty, it owes it to the nation both to fulfil its obligations and to push for the intended benefits under that treaty.
And making agreements and promises is just the beginning. Like the Constitution itself, the challenge is implementation, the avoidance of self-interest and corruption, especially if it comes to matters of large amounts of money.
HUMAN RIGHTS AS A FRAMEWORK
Everything the state does is to be within a framework formed by Chapter Four – the Bill of Rights. In other words, it is not just the rights to environment, health, food water and so on that are relevant.
What the state does to reduce the country’s contribution to climate change, and to mitigate the effects of climate change (or of avoiding contributing to climate change) must comply with the Bill of Rights.
Very obvious is Article 27 on equality. Measures must not discriminate on any grounds, including gender and ethnicity. Other factors prohibited as bases for discrimination would surely include county of origin or residence and lifestyle. Indeed, some special recognition is given to lifestyles when they may be connected to a community being marginalised (for example pastoralists and hunter-gatherer communities).
The Constitution has, as a repeated theme, the importance of public participation in public decision making. And courts have treated it as a right. It is an aspect of the sovereignty of the people: Our democracy is not supposed to be a matter of blindly handing over our fates to a lot of elected politicians for five years at a time.
In fact, following international trends, the Constitution, the state must “encourage public participation in the management, protection and conservation of the environment.”
Especially important is Chapter Five, recognising community land and the importance of land to communities. For example forest dwelling communities (so often harassed and evicted) are not just victims but actually experienced custodians of the forests and a resource for countering climate change and adapting to its inevitabilities.
The responsibilities of counties in agriculture particularly, as well as health and public works, mean that counties have an important role in mitigating the impacts of climate change.
And indeed various counties have recognised this and prepared policies. Five (Garissa, Isiolo, Kitui, Makueni and Wajir) have special County Climate Change Funds to enable investment in dealing with climate change risks.
Kenya has drafted many documents on climate change – policies, laws, strategies. President Uhuru Kenyatta has eloquently pleaded Africa’s case in Glasgow.
The Constitution demands that the eloquence and the documents lead to real action on government’s part – more than just “blah, blah blah”, as Swedish environmental activist Greta Thunberg put it.
By Jill Cottrell Ghai
Katiba Institute Director
This article was first published by the Star Newspaper COP26: State obliged to protect Kenyans against climate change (the-star.co.ke)