Envtl law in region scattered in diverse laws
until recently
Even though framework laws have been put in place, scattered & uncoordinated
regimes very much the norm
Countries in the region very quick to sign and ratify MEAS
Normative context for envtl management
now there thro Framework environmental Laws
The capacity to implement most of these laws only now being created (institutional
& individual)
Procedure to take envtl claims thro law enforcement
institutions sticky
Right to life & a healthy environment
State sovereignty
Right to development
Sustainable development
Common concern
Obligation not to cause environmental harm
Intergenerational & intra-generational equity
Duty to assess (EIA)
Polluter pays
Public participation in envtldec.making
Principle of subsidiarity
Our Framework envtl laws (EMCA
& NEMA) have most of these principles
Precautionary principle:
“uncertainty regarding serious potential environmental harm is not
a valid ground for refraining from preventive measures”
enables action whose -ve impacts are not yet known in science with the req’t
that preventive measures be put in place to mitigate such -ve
impacts.
Court rendition in Leatch .v.
National Parks and Wildlife Service and Shoalhaven
City Council
…the precautionary principle is a statement of common sense…It is directed
towards the prevention of serious or irreversible harm … in situations
of scientific uncertainty…where uncertainty or ignorance exists …makers
should be cautious.”
Ambit of the precautionary principle is wide and can range from over-precautionary
to recklessly permissive
The laws implementing the precautionary principle are biosafety
laws, trade laws, standards laws, environmental laws etc
Public participation in envtldecmaking
Procedural rights: right to information & access to such informn
& justice
EIA – ex ante activity at planning stage
of a project to gather information about potential impact of the proposed
activity on the envt & use of information in
dec-making
Biosafety essentially an EIA
activity
Risk assessment - defined as the identification of potential
environmental adverse effects or hazards, and determining, when a hazard
is identified, the probability of it occurring.
Provisions in the three East African countries deposited
in:
Constitutions
Framework environmental laws
Sectoral
laws on environmental resources
Physical planning laws
Constitutions:
Positive obligation to ensure envt
is wholesome
Right of access to high court for all legal prsns
Overall, there are general solid constitutional bases
for environmental rights, public participation and access to justice in
the three East African countries.
Enforcement greatly circumscribed by legislation that
unduly interferes with these rights (Official secrets Act & structural
limitations to accessing information)
Framework Environmental Laws
Uganda and Kenya have comprehensive framework legislations
providing for National Environment Management Authority (NEMA)
as the principal Government institution responsible for the implementation
of all policies relating to the environment.
Uganda’s NEMA already operational
& Kenya’s getting there
These provide for PP during the conception, design,
formulation and implementation of projects through the EIA
process.
Uganda and Tanzania have detailed EIA
guidelines which make provision for PP but Kenya is yet to promulgate
these.
Right of all to a clean & healthy envt
and locus standi to enforce right
Included in Constitutions and Framework envtl
laws
Duty of all to protect envt
EIA
provisions with procedural safeguards and remedies for flouting these
Section 53 provides basis for biosafety
measures necessary to regulate biotechnology
Polluter
pays
Carrots & Sticks Vs Command & Control (Art 11)
DT - provision of technical/ technological & financial
assistance
What is the role of institutions & law/lawyers/judicial
functionaries in the development of a L & R system
for biotechnology?
Are the laws/legal institutions in & of themselves
capable of ensuring delivery by such system?
What are the peculiarities of a liability & redress
legal regime in biosafety?
Are laws in and of themselves the prime driver of liability
& redress systems?
Is absence of specific laws on liability for biotech activities
indicative of absence of redress?
Answers to these questions critical to discourse on liability & redress
in biotechnology field
Biotechnology/biosafety information/science &
specialised knowledge intensive like EIA
Actors in EIA like in biotechnology can be unbalanced
in terms of capacity
Weak/ineffective laws
Constitutional weaknesses
Absence of positive constitutional requirement that information
be availed.
Legislation relating to national security
Sedition.
Tanzania Newspapers Act.
Official Secrets Act.
Restricted/limited access to information
Public access to records is limited/restricted.
“Authorized officers” - gatekeepers
Obligation not to divulge information even when obtained lawfully
(Official Secrets Act).
Publication in inaccessible media and languages.
Dearth of human and technical resources
Lack of qualified humanpower
Insufficienttechnicalresources.
Most environmental agencies underfunded.
Politicisation of EIA issues
High-handedness of state functionaries
Environment-Development interface
Absence of/ inadequate Public Interest Lawyering
EIA
legal requirements technical and require a specialized cadre of lawyers
especially in East Africa where the language of the law and court is other
than that spoken by most people.
Limitations to public interest litigation:
Few public interest lawyers
Lack of adequate skills and training
for lawyers and judges
Costs of litigation prohibitive and danger of paying
damages once you lose the case
Lack of clarity on the issue of procedures.
Biosafety about risk assessment and management
Efficacy of framework of biosafety laws &
institutions dealing with liability and redress dependent on the capacity
of countries to put in place mechanisms for risk assessment and management.
Rudiments of a L&R system exists in Kenyan
environmental & other laws
It should be refined to cover LMOS
The Biosafety Regulations already
intimate what issues one should look for
Risk identification, risk-source characterisation, exposure assessment
and risk estimation.
General objectives of a liability
regime will be to protect human health and the environment from TBM
of LMOs
Need to build capacity of difft
individual & institutional actors esp regulators,
law enforcement agencies & public (lessons from EIA
& Bomas)
Lopsidedness & lack of information fuels mistrust
Need to work on appropriate legal procedure for handling envtl
actions and biosafety particularly
Procedural issues: access to information, public participation
and access to justice
Balance this with proprietary nature of technology
Different interests need to be considered and protected
AIA –
activities not illegal per se
Compulsory insurance for actors as an organized way of
managing risks and to ensure that if and when damage occurs, it is not brought
against people of straw
Legal justifications to be availed to defendants where
they adhered to all conditions laid out by NBC
Establishment of a national fund:
NBC allows activities and may be read to be in line
of causation
Fund establishment necessary given the limitation of actions; damage
may only become apparent after long periods.
Funds could be sourced from imposition of tax on biotechnology
activities and the setting of the cash aside
Also need to balance against interests
of technology development for food security
