Environmental law and self-management by industries in Kenya

Journal of Environmental Law

Volumn 17, Issue 2, 2005, Pages 229-244

  Kamau, Evanson Chege ^a  

^a UNIVERSITY OF BREMEN   (Germany)

Author keywords

[No Author keywords available]

Indexed keywords

CORPORATE STRATEGY; ENVIRONMENTAL LEGISLATION; MANAGEMENT PRACTICE;

AFRICA; EAST AFRICA; EASTERN HEMISPHERE; KENYA; SUB-SAHARAN AFRICA; WORLD;

EID: 26844512577     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/envlaw/eqi018     Document Type: Article

References (95)

1. Common Law is part of Kenyan law by virtue of the Judicature Act, Cap 8, Section 3 (1).
2. 3HL 330;
3. T. Jackson, 'The Law of Kenya, An Introduction', Cases and Statutes (KLB, Nairobi, 1986, 1997) 391-2;
4. see also J.G. Nyamu, 'Environmental Law and Practice: A Big Step Forward', The Lawyer (October 2000) 17 et seq.
5. B.D. Ogolla and J.B. Ojwang in International Encyclopaedia of Environmental Law(s) [Kenya section] (Kluwer Law International, 1999) 51.
6. From the tortious acts mentioned above, nuisance, strict liability and negligence are more relevant for this study. There are a number of principal methods that the court can use to curb, remedy, challenge, or redress a tortious act. Of relevance to this study are: Damages, injunction and mandamus. Damages is the normal and most important remedy for the redress of grievances the main purpose being to compensate a person for the harm he has suffered. Tort damages perform three functions: Compensation, disgorgement and punishment. Injunction is an order of the (High) Court restraining a person from committing an illegal act or continuing to commit an illegal act, or commanding him to perform a certain act. Mandamus is an order of the High Court compelling a public authority to perform some duty which is imposed upon it by statute. The High Court could, for example, compel local authorities to carry out measures within their power in order to ensure health safety as well as general safety and well-being of the inhabitants, and also prevent and suppress nuisances.
7. B.D. Ogolla and J.B. Ojwang, op cit at 51.
8. As clearly reflected in the conservative approach by the highest judicial instances in recent decisions, an individual or a public-interest group would not qualify to institute legal proceedings in absence of direct personal damage resulting from the defendant's environmentally harmful activity: See Maathai v Kenya Times Media Trust, High Court Civil Case, Maathai v Kenya Times Media Trust No 5403 of 1989 (unreported), and Nginyo Kariuki v Kiambu County Council and the Commissioner of Lands, High Court of Kenya, Misc App No 1446 of 1994 (unreported), both as quoted in B.D. Ogolla and J.B. Ojwang, PP 146-7.
9. see also J.G. Nyamu, op cit at 17 et seq.
10. For example, Civil Case No 97 of 2001, Rodgers Muema Nzioka & Two Others (plaintiffs) v Tiomin Kenya Ltd (defendants): The plaintiffs, acting on behalf of (many) other plaintiffs-inhabitants of Kwale District sought an injunction restraining the defendants from mining titanium in Kwale District for fear of the effects it could have on the environment, the health of the inhabitants and their economic life. The court granted the injunction.
11. Mainly Dr Albert Mumma (Advocate/Senior Lecturer, University of Nairobi); O.M. Makoloo (Advocate); P.N. Kimani (Advocate); and F.M. Karume (Advocate).
12. These include cases, when damage suffered by an individual as a result of public nuisance is evidently above that suffered by others; when an act or omission directly interferes with ones freedom to enjoy his property; or when as a result of a broken duty of care, an individual suffers damage. In fact, under the rule of strict liability, it is the duty of everyone to keep anything that is likely to cause harm to others at his peril (rule in Rylands v Fletcher).
13. The major legislative instruments used to control and regulate activities which are likely to cause water or air pollution in Kenya are: Water Act Cap 372; Public Health Act Cap 242; Merchant Shipping Act Cap 389; and Factories Amendment Act 1990. Generally, these instruments have the following functions: (1) they list activities which can be termed as polluting and specific pollutants which are subject to control; (2) they specify the water bodies and aquatic life for which protection is provided; and (3) they establish mechanisms for the prevention of pollution and empower relevant authorities to establish standards, issue permits, monitor pollution, inspect pollution sources, and take remedial measures in case of pollution. Control and prevention of air pollution is carried out through the Public Health Act and the Factories Act whereas waste management is regulated by Water Act and Public Health Act.
14. Most of the information is the result of an interview conducted with a pollution control officer from Thika Municipal Council.
15. Interviewee.
16. Section 202 (1) states that, a local authority, in exercise of the powers conferred by section 201 (1), shall not make any by-law thereunder, if such by-law could be made under any written law other than the Act. Subsection (3) further states that, 'nothing in this Act contained shall be deemed to empower a local authority to make by-laws overriding or derogating from the provisions of any other written law for the time being in force in Kenya'.
17. According to section 204(4), no by-law made under the Act 'shall have the force of law until it has been approved, whether with or without alteration, by the Minister...'.
18. Section 205 (2): 'every by-law shall have the full force of law within the area to which it applies...'.
19. See also Legal Notice 22/1984.
20. Section 202(3).
21. Section 203(1).
22. Section 203(2).
23. According to the interviewee, the public is given the opportunity to make personal comments (section 203(3) says that, any objection to the proposed by-laws is lodged in writing). The council also holds regular meetings with industrialists and other concerned groups, e.g. Community Based Organisations (CBOs), which are NGOs, whereby these groups consult one another on measures to enhance and guarantee clean air, clean water and a good waste management system. Unfortunately, the council never holds seminars to reach that part of the community which does not participate in the activities of CBOs, or cannot afford or even read newspapers or which is deep rooted in ignorance.
24. Interviewee.
25. Ibid.
26. The council has, severally, taken factories to court for non-compliance especially on issues concerning effluent treatment for discharging raw-waste-water into rivers. Through court actions (orders), the factories were forced to put up effluent treatment plants (ETPs). For example, through Statutory Notice No. 87 of 24.4.1984, the municipal council of Thika wrote to Bhupco Textile Mills Ltd, a weaving industry, accusing the company of violating the provisions of Section 119 of the PHA Cap 242 of the laws of Kenya and the regulations and by-laws of the municipal council of Thika through nuisance within the meaning of section 118 of the Act at plot 4953/1073, section L.I.A. of Thika municipality, arising from: (1) discharging toxic effluent into the council's sewer, (2) dirty conditions of internal wall surfaces; and (3) inadequate, inefficient smoke extractor fans in the dying factory. The company was given 28 days to comply by ceasing to discharge untreated effluent, repainting the walls of its underground waste storage tank, and providing adequate and sufficient smoke extract or fans. This kind of action has been very successful.
27. For further reading see P.T. Muchlinski, Multinational Enterprises and the Lam (Blackwell, 1999);
28. G. Teubner (ed), Global Law without a State (Dartmouth, 1997);
29. G. Winter (ed), 'Die Umweltverantwortung multinationaler Unternehmen. Selbststeuerung and Recht bei Auslandsdirektinvestitionen', Nomos Verlagsgesselschaft, Baden-Baden (2005).
30. The information underneath is the result of an interview conducted at the factory's premises in Ruiru with a Henkel administrator.
31. The former is an independent company owned by a Mr Henkel, a former employee of Henkel (K) Ltd who is a German citizen; and who, according to the administrator, named the company by his name. Therefore, it has no connection with the German subsidiary, Henkel. At the moment, its other branches are found in Uganda and Tanzania thus the mark EA (East Africa). On the contrary, Henkel (K) Ltd is a subsidiary (company of the German Henkel and operates in Kenya-as indicated by the letter K-by licence.
32. This information is taken from the industry's price catalogue.
33. Algicides are used in the control of algae in swimming pools.
34. For the effects of (copper sulphate) algicides on the environment, see WHO, Guidelines for Drinking-Water Quality, 2nd edn, Addendum to Vol 2. Health criteria and other supporting information (Geneva, 1988) 31-46.
35. During the round tour, the administrator pointed at a specific ground surface which, according to him, had lost the surface cover years back due to residual waste dumped thereon.
36. Interviewee.
37. Ibid.
38. The information underneath is the result of an interview conducted at the premises of BEA (EA) Ltd with the company's production manager.
39. See Licence Agreement: Beiersdorf AG and Beiersdorf (EA) Ltd dated 1992, cl 7: Manner of Production.
40. Interviewee.
41. See supra; also infra, n 39.
42. Interviewee.
43. Licence Agreement between BDF and BEA, Preamble and cl. 6 (b) by analogy;
44. ibid,
45. The essence of TQM lies in the following: (1) The company avoids the use of substandard raw materials which would require dealing with problems at a later date. In other words, any chemical which is harmful to the environment and public health is avoided right from the beginning. Hydroquinon (hq), a chemical used in the production of skin lightening creams is a good example. According to the interviewee, BEA received instructions from the HO approximately five years back, that no formulation with hq was allowed; hq had been banned in Europe even earlier than that. Meanwhile, the Kenyan government is only now campaigning against the use of hq in production - some industries continue to use it; (2) Constant monitoring of the effluents. This is done to see whether they contain any heavy metals. The samples are also submitted to Germany for analysis. In fact, the samples of waste water are submitted to Germany for analysis before discharge into the sewage system. In the words of the interviewee, It is the HO that is more serious on us than the government.' Put in direct quotation he said, 'I am more afraid of the head office than the government.' However, the company keeps an eye open for any government legislation in this area. The company is trying, for example, to analyse the new EMCA to see whether it could be acting in any way contrary to the Act even before its de facto implementation; (3) Considering the option to invest in future in an effluent treatment plant (ETP) for complete treatment to such a level that the effluent will be, beyond any reasonable doubts, free of any harm and fit to be discharged into the sewage system just like in Europe'. The company even intends to go beyond that by purifying the water and also trying to reuse it. Therefore, the consideration here goes beyond treatment for harmless discharge to a wider perspective of water conservation which could be the highest way of avoiding water pollution; (4) Top maintenance of machines which brings the area of exhaust under control. The interviewee, however, admitted that the company still has to comply with European standards in this area. There are two machines which can potentially discharge smoke into the air, a boiler and a generator. However, the company has managed to keep the smoke level so low that one cannot visibly perceive it; (5) Application of preventive maintenance. Previously, the company was applying hard-dock, i.e. stopping the operation if a problem occurred, e.g. if much smoke was being emitted and calling a specialist to carry out repair work. Now, BEA has entered into a contract with a company called boiler consultants which does servicing work every two months - controlling the filters, rings, bearings, burners, jet valves etc - whether there is smoke or not and then recommends what needs to be done in case of a problem, e.g. changing of filters. That way the production is not interrupted and in the process consequential benefits to the environment are realised.
46. Interviewee.
47. Ibid.
48. Ibid.
49. Interviewee.
50. Licence Agreement: BDF and BEA, supra, n 34.
51. Interviewee.
52. According to the interviewee, his company could easily violate national law if not for its obligation toward the parent company to act in compliance with the quality management system.
53. Interviewee.
54. See Licence Agreement: BDF and BEA, supra.
55. See EMCA, No 8, 1999, sections 58-67.
56. Interviewee.
57. Ibid.
58. Ibid.
59. Ibid;
60. see also Environmental Protection Guidelines in: BDF Environmental Protection/Occupational Safety Annual Report 1999, p 13.
61. Ibid.
62. Most of the information was extracted from a 16th October, 2000 DN press report: 'ACFC Inaugurates Hi-tech Effluent Cleaning Facility'. Incorporated in 1978, the factory started its operations in 1980. The firm has a 56% shareholding by the government through two parastatal bodies - the Agricultural Development Corporation (ADC) and the Industrial and Commercial Development Corporation (ICDC) - each holding 28% of total share capital. The rest of the shares (44%) are held by International Investment Corporation (IIC), a division of Mehta Group International.
63. DN, supra, n 55 at 34. The factory has an installed capacity of 18 million litres of alcohol and 1,300 tons of active dry yeast (ADY) annually. Other products include neutral spirit (NS), methylated spirit (KMS), industrial methylated spirit (IMS) and fodder yeast (FY).
64. Distillery effluent is an exceedingly difficult effluent to handle mainly because of its very high chemical oxyen demand (COD) and biological oxygen demand (BOD), both indicators of its pollution load.
65. See DN, 16 October 2000, p 31.
66. Ibid at 35: In February 1991, ACFC was charged for environmental pollution.
67. 1€=approx KSh 108(stand: December 2004).
68. See DN, supra, n 55 at 33. Osienala, an environmental oriented local NGO in the lake region, and SIDA, a Swedish Organisation, has shown interest in this area.
69. DN, ibid.
70. See DN of 15 September and 10 October 2000 (the Ministers of Natural Resources and Industry were in full support of the Tiomin Inc project in disregard of warnings by the environment and wildlife experts).
71. Previously, pollution was attributed to industries and hence associated with production and, therefore, was seen as being a matter of concern only to big cities. As decentralisation of industries started taking place, bringing more and more industries to smaller towns, local communities outside large cities started having personal experiences through, for example, visible damage resulting from the activities of those industries.
72. Cosmetic products, namely skin-lightening ones, containing hydroquinone, a particularly dangerous chemical, are still on the market. It is only now that companies like BEA are taking the initiative of informing the public about the danger of purchasing such products.
73. Soil erosion is not the focus of this article, but nevertheless serves as a good example. Due to extensive and indiscriminate deforestation in search for farming land, the soil in many parts of the country has been left without a ground cover. People did not undertake or understand measures to prevent soil degradation and erosion until they started suffering infertility resulting to poor harvests, loss of much soil etc. and gradually shortage of rains.
74. Recently in my home town of Githunguri, a private developer who wanted to build a petrol station was allocated a plot belonging to the municipal council - which is public property where garbage from the town was formerly collected. The garbage was then transferred and dumped besides a river whose water many locals depend upon. The locals have in turn refused to buy petrol from that petrol station but not because of the garbage but because of the corrupt act of the municipal council which allocated public property to an individual.
75. Tiomin Resources Inc. for example, has been struggling and hoping to get the final court ruling allowing it to go ahead with mining of titanium in the Kenyan region of Taita, Kwale District after the local communities resisted its presence due to its alleged exploitative attitude towards displaced individuals/families and the possible environmental degradation. Until the clash occurred, none of the NGOs had found out that Tiomin Resources Inc. had not met the requirement of handing in an EIAR to the responsible authorities but instead 'took a short-cut' by striking a special arrangement with the Kenya government. See Nation Correspondents, 'Titanium Deal Draws Protests', DN of 14 August 2000; Nation Team, 'Bribery Claims Over Titanium', DN of 18 August 2000;
76. T.M. Kombo, 'Stop Irresponsible Mining on Tropical Coast', Urgent Action 26/2000 http://www.manitese.it/boycott.
77. Supra.
78. Information by a Kenyan citizen - whose names remain anonymous - and confirmed by a TMC Pollution Control Officer.
79. TMC file, Letter by an anonymous resident dated 18 August 1999.
80. Section 3 (1).
81. HCCC No 5403 of 1989, op cit, n 5.
82. The MSA focuses on the pollution of coastal waters. The statute, however, limits itself to discharges of oil or oily mixtures from ships within 100 miles of the Kenyan coast. The wider issue of discharge of other pollutants, or the dumping of wastes in marine waters is, therefore, not addressed.77
83. Section 83 (1).
84. 'Lead Agency' means any government ministry, department, parastatal, state corporation or local authority, in which any law vests functions of control or management of any element of the environment or natural resource.
85. Environmental Management in Kenya, A Guide to the Environmental Management and Coordination Act 1999, prepared and edited by G.M. Wamukoya and F.D.P. Situma.
86. By November 2001, the Director General had not been appointed and NEMA had no offices, see D. Walubengo, Biological Diversity and Forests: A Report on Civil Society Review of the Implementation of Agenda 21 in Kenya (Kenya NGO Summit 2002 Forum 2001) 32.
87. R.N. Nyikuri, 'Reducing Pollution Along Nairobi River', Final Year Civil Engineering Project, Department of Civil Engineering (University of Nairobi, 1994);
88. F.A.O. Otieno, 'Assessment of Pollution Status of Nairobi River': An Overview. Proceedings of Seminar on Water Health and the Environment (Nairobi, 1991a) 169-74;
89. FA.O. Otieno, 'Chief Sources of Water Pollution in Kenya', 10 Journal of the Institute of Management 3 (1991b) 42-6.
90. F.A.O. Otieno (1991b), ibid;
91. F.A.O. Otieno, 'Role of Industries in Sustaining Water Quality', Proceedings of 21st WEDC Conference in Kampala, Uganda (1995).
92. This approach of tax rebates has been tried with success in some countries: See F.A.O. Otieno, op cit;
93. F.A.O. Otieno, (1991b), supra; UNIDO, Project TF/KEN/92/F10: 'Development of Environmentally Sound Tanning Technology and Pollution Control', www.unido.org/Data/Project.cfm?c=6823.
94. Out of KSh 100 million cost of the ACFC ETP, KSh 30 million went towards payment of direct taxes (VAT & duty).
95. For further reading (rules for ensuring sustainability) see A.A. Goldsmith, 'Promoting the Sustainability of Development Institutions: A Framework for Strategy', 20 World Development 3 (1992) 369-83.