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PUBLIC PARTICIPATION IN EIA/EA PROCESSES.

PUBLIC PARTICIPATION IN EIA/EA PROCESSES. CICILIA GITHAIGA SENIOR LEGAL OFFICER, NEMA. PUBLIC PARTICIPATION AND WHAT IT ENTAILS.

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PUBLIC PARTICIPATION IN EIA/EA PROCESSES.

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  1. PUBLIC PARTICIPATION IN EIA/EA PROCESSES. CICILIA GITHAIGA SENIOR LEGAL OFFICER, NEMA

  2. PUBLIC PARTICIPATION AND WHAT IT ENTAILS • It is now well-established that public participation in decision-making is essential for local level development in general, and in the management of natural resources, in particular  • Public participation is premised on the right of those who may be affected to have a say in the determination of their environmental future.

  3. Public partication cont’ • The legal empowerment of individuals and public participation is an essential condition of a good environmental law and practice. • Public participation may ultimately be provided for through at least three legal machineries;

  4. Public partication cont’ • First, such a right may be entrenched in the national constitutions, often as part of the Bill of Rights. • The second mechanism may be in the public participation in the Environmental Impact Assessment (EIA) processed. • Thirdly, it may operate through direct locus standi for the public in environmental causes

  5. Legal requirements Constitution of Kenya, 2010 • Refers to a right to a clean and healthy environment, • Impose a duty on the state to prevent environmental harm, • Emphasizes the protection of the environment or natural resources.

  6. Constitution of Kenya, 2010 • The following provisions denotes mandatory requirements in respect to public participation • Article 42. Every person has the right to a clean and healthy environment, (a) to have the environment protected for the benefit of present and future generations through legislative and other measures,particularly those in Article 69.

  7. Constitution of Kenya, 2010 • Article 35, Right to access information Access to information safeguards the right for every person to obtain information on environment in custody of a public authority without need for justification or proof of citizenship. Importantly, what counts as "environmental information" is widely defined to afford the right of access to information the widest construction.

  8. Constitution of Kenya, 2010 Article 69 on the obligations of the state in respect to the environment • encourages public participation in the management, protection and conservation of the environment. • establishes systems of environmental impact assessment, environmental audit and monitoring of the environment.

  9. Constitution of Kenya, 2010 Article 118. (1) Parliament shall— (a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and facilitate public participation and involvement in the legislative and other business of Parliament and its committees. Example would be Art. 71 of the CoK on grant of concessions.

  10. Constitution of Kenya, 2010 Article 48. Right to access to Justice • The right of access to justice guarantees that every person has access to an independent and impartial court. • It also implies an opportunity to receive a fair and just trial when that individual’s liberty is at stake.

  11. Constitution of Kenya, 2010 Article 50. Right to a fair hearing. • The right to a fair hearing provides that every person has a right to have any dispute that can be resolved by any application of the law decided in a fair and public hearing before a court, or if appropriate, another independent and impartial tribunal or body.

  12. EMCA, NO. 8 of 1999 • EMCA creates an overhead and all embracing agency for the management of the environment. • Previously, sectoral legislation existed often leading to regulatory competition. • It provides for public participation in environmental matters. • EMCA establishes the following institutions, NEMA, NET, PCC, NEC and SERC all of which allow the public to participate.

  13. EMCA cont’ • NEMA is under a duty to undertake programmes intended to enhance environmental education and public awareness about environment. • The practice of EIA as provided for in the Act enhances environmental democracy. It engages the public in vetting projects that impact on the environment.

  14. EMCA cont’ • The requirement for publication of EIA study reports/advertisement allows the public for participation in reviewing an envisaged public project. • The EIA regulations require the authority to invite the public to make oral or written comments on the report.

  15. MEAs Rio declaration • The Rio Declaration makes provisions for public participation in Principles 10, 20,21 and 22. Of these provisions, Principle 10 is broad and all-encompassing. • The other three are specific to the promotion of participation by women, youth and indigenous people respectively, as agents of sustainable development.

  16. MEAs THE AARHUS CONVENTION It is an international agreement that lays down an elaborate set of basic rules to promote public involvement in environmental matters and improve enforcement of environmental law.

  17. THE AARHUS CONVENTION • It grants the public access to environmental information, provides for participation in environmental decision-making, and allows the public to seek judicial redress when environmental laws are infringed.

  18. Convention on Biological Diversity • Articles 14(1)(a) encourages public participation in environmental impact assessment of proposed projects that are likely to have significant adverse effects on biological diversity. It implores the promotion of exchange of publicly available information.

  19. THE EIA PROCESS. • EIA/EA Regulations are anchored under Section 147 of the Environmental Management and Co-ordination Act (EMCA). • The EIA Regulations are said to apply to all policies, plans, programmes; project sand activities specified in Part IV, Part V and the Second Schedule of EMCA.

  20. THE EIA PROCESS contd… • Under the Regulations, proponents are prevented from implementing a project (a) likely to have a negative environmental impact; or (b) for which an environmental impact assessment is required under EMCA or these Regulations, unless an environmental impact assessment has been concluded and approved.

  21. THE EIA PROCESS contd… • Application for an EIA license. • Submission of the project report to Lead Agencies and the County Environment Committees. • Reg 17. During the process of conducting an environmental impact assessment study under these Regulations, the proponent shall in consultation with the Authority, seek the views of persons who may be affected by the project.

  22. THE EIA PROCESS contd… • Submission of an EIA report. • Invitation of comments from lead agencies. • Submission/invitation of comments from the public. • Public Hearing • Decision of the Authority.

  23. THE EIA PROCESS contd… • License. • Cancellation of an EIA license. SERC, NET, ELC, High Court • Access to Information. CoK. • Environmental Audit and Monitoring. • Inspections. • petition by the public to carry out and audit.

  24. END I THANK YOU

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