the environmental management and co ......management and co-ordination act, 1999 enacted by the...

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THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION (AMENDMENT) BILL, 2013

A Bill for

AN ACT of Parliament to amend the Environmental Management and Co-ordination Act, 1999

ENACTED by the Parliament of Kenya, as follows:-

Short title and

Commencement 1. This Act may be cited as the Environmental

Management and Co-ordination (Amendment) Act, 2013.

Amendment

to section 2 of Act

No 8 of 1999. 2. Section 2 of the Environmental Management and Co-

ordination Act herein after referred to as the ―Principal Act‖ is amended-

Act No.19 of 2011

(a) By deleting the expression ‗‗high court‘‘ and substituting therefor with the expression

‗‗Environment and Land Court‘‘.

(b) By deleting the word ‗‗Minister‘‘ and substituting

therefor with the expression ‗the Cabinet

Secretary‘.

(c) By deleting ‗‗District Environment Committee‘‘ and

substituting therefor with the expression ‗‗County Environment Committee‘‘ and by deleting the word

‗District‘ and substituting therefor with the word

‗County‘.

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(d) By deleting the definition of exclusive economic

zone and replacing therefor with ‗‗exclusive

economic zone‘‘ has the meaning assigned to it by

the United Nations Convention on the Law of the

Sea.

(e) By deleting the definition of coastal zone and

replacing with ‗‗Coastal zone‖ means the geomorphologic area where the land interacts

with the sea comprising terrestrial and marine

areas made up of biotic and abiotic components

and systems coexisting and interacting with each other and with socio-economic activities.

(f) By adding a new definition of ―entity‖ to mean a general term for any institution, company,

corporation, partnership, government agency, university, or any other organization which is

distinguished from individuals.

(g) By adding, a new definition of strategic environmental assessment to read ―Strategic

environmental assessment‖ means a formal and

systematic process, process to analyse and address the environmental effects of policies,

plans and programmes and other strategic

initiatives.

(h) By adding after the meaning of ―environmental

organization‖ to mean a non government organization whose objective is to conserve the

environment and natural resources and is duly

registered as a community based organization, or

a non-governmental organization.

(i) By adding a definition of the term ―Land‖ to read

―Land has the meaning assigned to it by Article

260 of the Constitution.

(j) By deleting the definition of continental shelf and

replacing with - ―continental shelf‖ has the

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meaning assigned to it by the United Nations

Convention on the Law of the Sea.

(k) By deleting the definition of ―natural resources‖

and replacing with the definition provided under

Article 260 of the Constitution including wildlife,

water and landscapes.

(l) By adding a definition of the term ―natural resource agreements‖ to have the meaning

assigned by Article 71 of the Constitution.

(m) By adding a definition of the term ―indigenous

knowledge‖ to mean ―indigenous knowledge of

communities shall include any traditional knowledge of sources, components, capabilities, practices and uses of, and processes of

preparation, use and storage of plant and animal species and their genetic resources‖.

(n) By deleting the expression ―permanent secretaries‖ and substituting therefor with the expression‖ principal secretaries‖.

(o) By adding a definition of the word ―Sea‖ to mean one of the larger bodies of salt water, less than an ocean, found on the earth's surface; a body of salt

water of second rank, generally forming part of,

or connecting with, an ocean or a larger sea; as, the Mediterranean Sea; the Sea of Marmora; the

North Sea; the Caribbean Sea.

(p) By adding a definition of the term ―traditional

knowledge‖ to mean such knowledge as may be

socially and culturally acquired within or without the context of conventional education by Kenyans.

(q) By adding a definition of the term ‗voluntary environmental management‘ to mean the principle

of encouraging voluntary compliance in conserving

the environment and which is a cost-effective and

efficient method of attaining compliance with

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environmental regulations and of encouraging

innovative conservation practices.

(r) By deleting the definition of ―Wetland‖ and

substituting therefor with ――areas of marsh, fen,

peatland or water, whether natural or artificial,

permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas

of marine water the depth of which at low tide

does not exceed six metres‖.

Amendment

to section 3

of Act No.8 of 1999. 3. Section 3 of the Principal Act is amended-

Article 42 of the Constitution

(a) By amending Section 3(1) to read: Every person has the right to a clean and healthy environment

and has a duty to safeguard and enhance the environment in accordance with the Constitution

and relevant laws.

(b) By amending the chapeau of section 3(3) to read–

If a person alleges that the right to a clean and healthy environment has been, is being or is

likely to be, denied, violated, infringed or threatened, in relation to him, another person on

behalf of whom he acts, a group or class of

persons, members of an association or in relation

to public interest, then without prejudice to any

other action with respect to the same matter

which is lawfully available, the person may apply

to the court for redress in addition to any other legal remedies that are available in respect to the

same matter and the Court may make such

orders, issue such writs or give such directions as it may deem appropriate to -

Access to information

Article 24 and 35 of Constitution

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(c) By adding a new Section 3 (6) to read:

a. Every person has the right to access

information relating to the implementation

of this Act that is in the possession of the

Authority, Lead agencies or any other person except where the release of the

information is likely to prejudice the security

or sovereignty of the State or interfere with the right to the privacy of any other person.

b. A person desiring such information shall apply to the Authority or a Lead Agency and

may be granted access on payment of a

prescribed fee.

c. The right of access to information does not extend to proprietary information which

shall be treated as confidential by the Authority or any lead agency.

d. A request for information may be denied if:

i. The request is manifestly unreasonable or formulated in too

general a manner; or;

ii. The request concerns material in the

course of completion or concerns

internal communication of public

authorities where such an exemption

is provided for in national law or customary practice, taking into

account the public interest served by

disclosure.

(d) By adding a new Section 3 (7) to read- In

interpreting and implementing this Act, all persons shall be guided by inter alia the principles of

voluntary environmental management, rule of

law, social justice, subsidiarity, public participation, integrity, non-discrimination,

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transparency, equitable sharing of resources, accountability and the principles of public service.

a) By adding a new section 3(8) to read: every

person shall cooperate with state organs to

protect and conserve the environment and ensure ecologically sustainable development and use of

natural resources.

b) By adding a new section 3(9) to read-

This Act shall be interpreted in a manner

that— (i) promotes its purposes, values and

principles;

(ii) permits the development of the law; and

(iii) contributes to sustainable development.

Amendment to section 4

of Act No 8 of 1999

4. Section 4 of the Principal Act is amended-

a) By adding a new Section 4 (1) (B) to read as follows ―A Vice-Chairperson elected by members

of the Council.

b) By amending Section 4 (1) (g) to read as follows: ―the Director-General of the Authority;‖

c) By amending Section 4(1) (h) to read ―such

number of other members, not exceeding one third

of the Council‘s membership, as may from time, be co-opted by the Minister to members of the Council.

d) By adding a new Section 4 (1) (i) to read as

follows: A person appointed by the Cabinet Secretary in consultation with the Council who shall be Secretary.

e) By adding a new subsection 4(3) to read,‖ appointment under paragraphs (c), (d), (e), (f) and

(h) of subsection (1) shall be at different times so

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that the respective expiry dates of their terms of office shall fall at different times.

f) By adding a new section 4(6) to read as follows:

―all appointments made under this section shall be

in compliance with the provisions of the Constitution on matters of representation.‖

5. Section 6 is amended as follows-

a) By inserting a new section 6(A) to read -

i.There shall be an independent secretariat of

the Council.

ii. The Secretariat shall be based in Nairobi at the Ministry for the time being in charge of

Environment. The secretariat shall provide

support to the Council to enable the Council discharge its mandate under the Act.

iii. The Secretariat shall comprise of-

a. A secretary appointed by the Cabinet Secretary upon recommendation of the

Council.

b. Any other officers as may from time to time be determined by the Cabinet Secretary.

iv. The Secretariat shall co-ordinate all the

work of the Council under the guidance of the Council. It shall undertake the following

among other things:-

a. Provide appropriate background

briefing to the Council;

b. Prepare reports and disseminating any

information deemed relevant to the

Council;

c. Liaise with research institutions, academia and other stakeholder in

order to gather the relevant

information necessary for informing the Council;

d. Prepare a programme of meetings

taking into consideration the issues

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received by the Council and result

based management. e. Provide administrative support to the

Council.

b) By inserting a new sub-section 2 (B) to read

―The Council may establish sectoral working

groups or committees for the better carrying out of its functions‖.

c) By amending sub-section 2 to read ― The

Chairperson shall preside at every meeting at which he is present, but in his absence,

the Vice-Chairperson shall preside, and in

his absence, the members present shall elect on of their number who shall, with

respect to that meeting and the business

transacted thereat have all powers of the Chairperson.

Amendment

to section 8 of

Act No 8.of 1999. 6. Section 8 is amended by creating a new section 8(2)

to read as follows: The Authority shall operate at the

national level and within counties in accordance with established governance structures.

Amendment

to section 9 of

Act No.8 of 1999. 7. Section 9(2) is amended-

(a) In sub paragraph (m) by the deleting the words

occurring after public awareness and substituting therefor with the words public participation;

(b) By adding a new sub paragraph (r) to read ―In

consultation with the relevant lead agencies, issue guidelines and prescribe measures to

achieve and maintain a tree cover of at least

ten per cent of the land area of Kenya; (c) In sub paragraph (n) by inserting the word

―develop‖ at the beginning of the sub paragraph

and inserting the word ―pollution‖ after degradation;

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(d) In sub paragraph (o) by deleting ―render‖ and

substituting with ―give‖ and the sub paragraph to end after the word ―protection‖;

(e) By deleting subparagraph (p) and substituting

therefor with the following- ‗‘prepare and issue

after every four years, a state of the environment

report in Kenya and in this regard the Authority

may direct any lead agency to prepare and

submit a sector report on the environment within a specified time frame.‘‘

(f) By adding a new sub paragraph(s) to read- ‗

encourage voluntary environmental conservation practices and natural resource conservancies,

easements, leases, payments for ecosystem

services and other such instruments and in this regard, develop guidelines.

(g) Section 9 (3) is amended by deleting the words

―every annual report on the state of the environment prepared under subsection 2(p)

before the National Assembly‖ and replacing with ― before the National Assembly the state of

environment report prepared under subsection 2(p)‖.

Amendment

to section 10 of

Act No 8 of 1999. 8. Section 10 is amended

(a) In paragraph 1(c) by deleting the word president

and inserting ―Cabinet Secretary from amongst

three persons selected by the Board through a competitive recruitment process.‖

(b) By deleting paragraph 1(d).

(c) By amending paragraph 1(e) to read ―six members, not being public officers, appointed by the Cabinet Secretary‖.

(d) By including a new paragraph 1(g) to read ―the Attorney General or his representative‖.

(e) By including a new paragraph 1(h) to read ―the principal secretary in charge of finance or his representative.

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(c) By adding a new sub-section (2) to read ―where

the office of the Director General falls vacant, the Board may, pending the appointment of a

substantive Director General, appoint a person to

act in that capacity PROVIDED that such

appointment shall not exceed a period of six months.

Amendment

to section 12 of

Act No 8 of 1999. 9. Section 12 is deleted and substituted therefor

(a) By adding a new section 12 (1) to read; The

Authority may, after giving reasonable notice of

its intention to do so, direct any Lead Agency to perform, within such time and in such manner as it shall specify, any of the duties imposed upon

the lead agency by or under this Act or any other written law, in the field of the environment.

(b) By adding a new section 12 (2) to read; Without prejudice to the foregoing, where a lead agency

fails to comply with the Authority‘s directive

issued under sub-section (1) above, the Authority

may itself perform or cause to be performed the task in question, and any expense incurred shall

be a civil debt immediately recoverable by the Authority from the Lead agency.

(c) By adding a new section 12(3) to read; any

person who fails to comply with sub-section (1) above shall be guilty of an offence.

10. Section 14 is amended by deleting the word President

and substituting it with the following ―the Cabinet Secretary in consultation with the Salaries and

Remuneration Commission‖.

11. Section 23 is amended

(a) In paragraph (2), by deleting ―four‖ and replacing it with ―three‖ and deleting the words

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―(Corporations) or to an Auditor appointed under

this section,‖

(b) By deleting paragraph (3) and substituting

therefor with the following ―the annual accounts

of the Authority shall be prepared, audited and

reported in accordance with the provisions of Articles 226 and 229 of the Constitution and

other enabling legislation‖.

Amendment to Section

24 of Act 8 of 1999 12. Section 24 is amended

(a) By deleting sub-paragraph 2(a)

(b) By deleting the words ―shall be vested in the Authority and, subject to this Act‖ in the

first line of paragraph (3)

(c) By adding a new sub-section (4) to read ―The Trust Fund shall be administered in the

manner provided under a Trust Deed, and for purposes of this Act, the Trust Deed shall

be deemed to constitute Rules and Regulations that govern the operations and functions of the Fund.

Amendment

to section 29

of Act No.8 of 1999. 13. Section 29 of the Principal Act is repealed and a new section inserted to read as follows:

29. (1) The Governor shall by notice in the

Gazette, appoint a County Environment Committee of the County.

(2) Every County Environment Committee shall

consist of—

(a) The member of the county executive committee in charge of environmental matters

who shall be the Chairman;

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(b) An officer of the Authority whose area of

jurisdiction falls wholly or partly within the county;

(c) A Secretary who shall be appointed by the

Governor

(d) One representative each of the Ministries

responsible for the matters specified in the First Schedule at the county level;

(e) two representatives of farmers or

pastoralists within the county to be appointed by

the Governor;

(f) two representatives of the business

community operating within the concerned county appointed by the Governor;

(g) two representatives of the non-governmental organisations engaged in

environmental management programmes within the county appointed by the Governor in

consultation with the National Council of Non-Governmental Organisations; and

(h) a representative of every regional

development authority whose area of jurisdiction falls wholly or partially within the county.

29(2) Appointments made under this section shall

be done after due consultation with relevant and

duly constituted organizations that are representative of the nominees in the County.

29(3) Other than appointees under subsection

29(2) (a) (b) and (c) members of the County

environment committees shall hold office for a

period of three years and shall be eligible for re-appointment for a further term.

14. Section 31(1) is amended by deleting the words ―

a committee of the Authority to be known as‖

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Amendment

to section 37 of

Act no.8 of 1999. 15. Section 37 of the Principal Act is repealed and a

new section inserted to read as follows:

37(1) The Authority shall, after every five years,

and in consultation with the relevant

stakeholders, prepare and publish a national

environment action plan.

37(2)The Cabinet Secretary shall lay every

National Environment Action Plan prepared under subsection (1) before the National Assembly as

soon as reasonably practicable after its

publication and the National Assembly shall within 21 days of receipt of the Plan consider and

take appropriate action.

16. Section 39 is repealed.

17. Section 40 of the Principal Act is repealed and a new section inserted to read as follows:

40(1) ―Every County Environment Committee

shall within one year from the effective date of this section and every five years thereafter,

prepare a County environment action plan in

respect of the for consideration and adoption by the County Assembly.

40(2) Every County Environment Committee, in its preparation of a county environment plan, and

before submitting such plan shall take into

consideration every other county environment action plan already adopted with a view to

achieving consistency among such plans.

40(3) The Governor shall submit every County

Environment Action Plan prepared under

subsection (1) to the Authority for incorporation

into the national environment action plan proposed under section 37.

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40(4) The Authority shall consider every County

environment Action Plan and either recommend incorporation of such Plan into the national

environment action plan or specify changes needed in the Plan.

40(5) The Cabinet Secretary shall, on the

recommendation of the Authority, issue guidelines

and prescribe measures for the preparation of environmental action plans.

18. Section 41 is amended to read ―Every county

environment action plan prepared under section 40 respectively shall contain provisions dealing

with matters contained in section 38 (a), (b), (c),

(d), (e), (f), (g), (h), (i), and (j) in relation to their respective county.‖

19. The Principal Act is amended by inserting two new

sections 41A and 41 B just before section 42 to read as follows:

41 A(1)The Authority shall monitor compliance

with National and County environmental action

plans and may take any steps or make any inquiries it deems fit in order to determine if the Plans are being complied with.

41 A (2) If as a result of any steps taken or

inquiry made under paragraph (1) it is of the opinion that an Plan is not substantially being

complied with, the Authority shall serve a written

notice to the organ concerned, calling on it to take

such specified steps as the Authority considers

necessary to remedy the failure of compliance.

41 A (3)Within 30 days of the receipt of a notice

contemplated in subsection (2), the organ must respond to the notice in writing setting out any—

(i) objections to the notice;

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(ii) steps that will be taken to remedy failures of compliance: or

(iii) other information that the organ of state considers relevant to the notice.

41 A (4) After considering the representations

from the organ and any other relevant information,

the Authority must within 30 days of receiving a

response referred to in paragraph (a) issue a final notice—

(i) confirming, amending or canceling the notice referred to in subsection (2)(b):

(ii) specify steps and a time period within which steps must be taken to remedy the failure of compliance.

41 A (5) The Authority shall keep a record of all environmental action plans and such Plans must be available for inspection by the public.

41 B (1) The purpose of environmental action plans is to

(a) co-ordinate and harmonise the environmental policies, plans, programmes

and decisions, in order to:

i.minimize the duplication of procedures

and functions; and promote consistency

in the exercise of functions that may affect the environment;

ii.secure the protection of the environment across the country as a whole; and

prevent unreasonable actions by counties

in respect of the environment that are

prejudicial to the economic or health interests of other counties or the country

as a whole

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20. Section 42 is amended-

(a) In paragraph (1)

i) By deleting the word ―Director General‖ and replacing with ―Authority‖ and inserting the word ―sea‖ after the word ‗lake‘.

ii) By adding a new sub-paragraph (h) to read

―any other matter prescribed by the Cabinet Secretary on the advice of the Authority‖.

(b) In paragraph (2) by inserting ―an area of the‖ before ―coastal zone‖.

24 In paragraph (3) by replacing ―river banks‖ and ―lake shores‖ with ―river basins‖ and ―lake basins‖.


By adding a new paragraph (2) to read ―The Authority shall in consultation with the relevant

lead agencies and stakeholders, issue guidelines and prescribe measures for co-management of

critical habitats within or around a lake shore, wetland, forest or coastal zone. Such measures

shall factor the interests of the local communities resident therein‖.


In paragraph (4) by deleting the word ―Director General and replacing it with the word ―Authority‖.

Amendment

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to section48 of

Act no 8 of 1999. 23. Section 48 is amended-.

(a) By inserting a new Section 48(2): The

Authority shall not take any action, in respect of any forest land or mountain area,

which is prejudicial to the sustainable

traditional interests of local communities

which customarily utilize such forests for

sustainable purposes.

(b) By adding a new section 48(3) to read:

Where a forested area is declared to be a

protected area under section 54(1), the Cabinet Secretary may cause to be

ascertained, any community, government or

individual interests in the land and forests and provide incentives to promote

community conservation.

(c) By adding a new section 48(4) to read: A person who contravenes any conservation

measure prescribed by the Authority, or fails

to comply with a lawful conservation directive issued by the Authority or its Environment Committee at the Counties shall be guilty of an offence.

Amendment

to section 50 of

Act no 8 of 1999. 24. The Principal Act is amended by inserting a new section

49A just before section 50 to read as follows:

The Cabinet Secretary shall, on the recommendation

of the Authority, make regulations for the elimination

of processes and activities that are likely to endanger

the environment. Such activities and processes shall include harvesting of sand, tree harvesting, mining,

use of agricultural chemicals, agricultural land use

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activities, and transportation of chemical substances,

construction and demolition of building structures, underground water abstraction, disposal of human remains and genetically modified organism.

Amendment

to Section 52 of

Act no 8 of 1999. 25. The chappeau of section 52 is amended to read: The

Authority shall in consultation with the relevant lead

agencies and in accordance with the Convention on

Biological Diversity and related global and regional

instruments prescribe measures for the conservation of biological resources in particular-

Amendment

to section 53 of

Act no 8 of 1999.

Article 69 of the Constitution


(a) by adding a new Section 53(3) to read as follows – The Authority shall, in consultation

with relevant lead agencies and stakeholders issue guidelines for the recognition, protection

and enhancement of indigenous knowledge and associated practices in the conservation of the environment and natural resources;

(b) by adding a new Section 53(4) to read as

follows - the Authority shall, in consultation

with the Attorney General, relevant lead agencies and stakeholders, initiate legislative

measures for recognition and protection of

ownership of indigenous seeds & plant varieties, their genetic & diverse characteristics and their use by communities in Kenya;

(c) By adding a new Section 53(5) to read as

follows –The Authority shall, in consultation with relevant Lead Agencies and stakeholders,

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develop guidelines for the protection of

indigenous knowledge of biodiversity and genetic resources of communities;

(d) By amending Section 53 (2) (a) to read:

appropriate arrangements for access to biological resources, genetic resources and ecological services

of Kenya by non-citizens including the issue of

licences and fees to be paid for that access.

27. Amend section 54(1) by adding the word ‗forests‘ to the cluster of areas to be protected.


(a) In paragraph (2) by:

i. deleting the phrase ‗ as soon as

practicable upon the commencement of this Act‘.

ii. deleting the first occurrence of the word

―prepare‖ and replacing with the word ―conduct‖ and by deleting the second

occurrence of the word ‗prepare‘.

(b) In paragraph (3) replace ‗not exceeding every 2 years‘ with ‗not exceeding every 4 years‘.

(c) By deleting paragraph (5).

(d) By inserting paragraph (8) to read ―Where any polluting or hazardous

substances are discharged,

released or in any other way

escape into the Coastal Zone any

person responsible for

management of the polluting or

hazardous substances shall be

liable-

(i) for any resultant damage;

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(ii) for the cost of any measures reasonably taken after the release

or escape for the purpose of

preventing, reversing or

minimising any damage caused

by such discharge, release or

escape; and for any damage

caused by any measures so

taken.

a) By inserting a new paragraph (9) to

read ―Where there arises a grave

and imminent threat or danger of damage of discharge, release or

escape of polluting or hazardous

substances into the Coastal Zone, any person responsible for

management of the polluting or hazardous substances shall be

liable –

(i) for the cost of any measures reasonably taken for the purpose

of preventing, minimising or controlling any such damage; and

(ii) for any damage caused by any measures so taken.

29. The Principal Act is amended by adding a new section 56(A) to read,‖ The Authority shall in consultation

with relevant lead agencies, issue guidelines and

prescribe measures on climate change‖.

Amendment

to sections 57 and 58 of

Act No 8 of 1999.

30. The Title of Part VI of the Principal Act is amended to

read ―Integrated Impact Assessments.‖

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31. The Principal Act is amended by inserting a new section 58 A to read as follows:

(i) The Cabinet Secretary on the recommendation

of the Authority shall issue guidelines,

regulations and prescribe measures for integrated environmental assessments for policies, programmes, plans and processes.

(ii) The measures referred to under (1) shall

include measures, regulations and guidelines on-

a) Strategic Environmental Assessments;

b) Environmental Impact Assessments;

c) Health Impact Assessments;

d) Social-economic Impact Assessments;

e) Cultural Impact Assessments.

32. The Principal Act is amended by the inclusion of a new section 58 B (1) (a) to read as follows-

‗All Policies, Plans and Programmes for implementation shall be subject to Strategic Environmental Assessment.

(a) For avoidance of doubt the plans, programmes

and policies are those that are;

(i) subject to preparation and/or adoption by

an authority at regional, national, county

or local level or which are prepared by an authority for adoption, through a

legislative procedure by Parliament,

Government or if regional, by agreements

between the governments or regional

authorities, as the case may be.

(ii) determined by the Authority as likely to have significant effects on the

environment.

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(b) All entities shall undertake or cause to be

undertaken the preparation of strategic environmental assessments at their own

expense and shall submit such assessments to

the Authority for approval.

(c) The Authority shall, with in consultation with

Lead Agencies and relevant stakeholders

prescribe rules and guidelines in respect of

Strategic Environmental Assessments.

33. Section 58 is amended as follows:

(a) By deleting Section 58(2) and substituting

with a new Section 58(2) (a) (b) and (c).

The new Section 58(2) (a) shall provide as follows:

The proponent of any project specified in category I of the second schedule to the Act

shall undertake a full environmental impact assessment study and submit an

environmental impact assessment study

report to the Authority prior to being issued with any licence by the Authority.

The new section 58(2) (b) shall provide as follows:

‗The proponent of any project specified in

category II of the second schedule to the Act

shall submit a project report to the Authority prior to being issued with any licence by the Authority‘.

The new Section 58(2) (c) shall provide as follows:

‗The proponent of any project specified in category III of the second schedule to the Act

shall submit a project brief to the Authority

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prior to being issued with any licence by the Authority‘.

(b) By repealing Section 58(6) and replacing

thereof with a new section 58(6) to read as

follows:

The Cabinet Secretary shall, in consultation

with the Attorney General and the Authority, develop rules for the establishment,

operationalization and management of an

independent body, to be responsible for the

regulation of the practice of Integrated Environmental Impact Assessments,

Environmental Impact Assessments and Environmental Audits.

(c) By adding a new section 58(10) to read:

Where the Authority is minded to approve or reject a project on the basis of a project

report alone, the Authority shall:

(i) Cause to be published in the Kenya gazette and proposed area of the project

and on a board erected at the project

site, a summary description of the project, proposed location and its

intention to approve it without a full EIA;

(ii) Indicate a place where details of the project may be inspected;

(iii) Allow the public a period not exceeding thirty days within which to submit

written comments for the Authority‘s

consideration; and

(iv) Give reasons for its approval or rejection

of a project.

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Amendment

to section 59 of

Act No8 of 1999. 34. The chapeau of section 59(1) is amended to

read: Upon receipt of an environmental impact

assessment study report from any proponent

under section 58(2), the Authority shall cause to be published in the Gazette, in at least two

newspapers circulating in the area or proposed

area of the project and over the radio, a notice which shall state ….

Amendment

to section 64 of

Act No 8 of 1999. 35. Section 64 is amended by adding a new section 64 (3) to read as follows: Where the

Authority has directed that a fresh environmental

impact assessment be carried out or that new information is necessary from the project proponent, any environmental impact assessment

licence that has been issued may be cancelled, revoked or suspended by the Authority.

Amendment

to section 67 of

Act No 8 of 1999. 36. (a) Section 67(1) is amended to read; The

Authority may, after the issuance of an environmental impact assessment licence, suspend any environmental impact assessment licence, for such time not exceeding twenty four months where

the licensee contravenes the provision of the

licence.

(b) By adding a new section 67(2) to read – ―The Authority may cancel or revoke an

environmental impact assessment licence‖.

Amendment

to section 68 of

Act No 8 of 1999. 37. Section 68 is amended- (a) By amending Section 68 (1) to read: The

Authority shall cause to be carried out,

within a prescribed period, environmental audits of activities likely to have significant

effect on the environment.

25

(b) By adding a new Section 68(1) (a) to read:

An environmental audit report shall be submitted to the Authority, in the prescribed

form, giving the prescribed information, and

accompanied by a prescribed fee as may be

determined and published by the Authority.

Section 68(1) of the Principal Act is amended by providing as follows:

The Authority or its designated agents shall

be responsible for the carrying out

environmental audit or control audit of all

activities that are likely to have significant effects on the environment.

(c) Section 68(3) of the Principal Act has been

amended by the deletion of the words make annual reports to the Authority and

the inclusion of the word annual after the word accurate in the 4th sentence.

38. The Principal Act is amended by the inclusion of a new section to read ―Every lead agency shall

establish an environmental unit to implement the provisions of this Act.

39. Section 74 is amended by deleting the word Local Authority and replacing it with the word ―entities.‖

40. Section 75 is amended by deleting the Local Authority and replacing it with the word ―entities‖.


0f Act 8 of 1999 41. Section 112 is amended-

By adding a new section 112(6) which states as

follows- That the principle of voluntary environment management shall be used to

encourage land owners to grant an easement on

their land and to encourage environmental conservation as a competitive land use option.


26

(a) In sub-paragraph 3(g) by inserting the

words ―or his designate‖ after the word ― Director -General‖

(b) In subparagraph 3(i) delete ―three months‖

and replace with ―fourteen days‖ from

receipt of documents

(c) By adding a new sub paragraph 4 to read-

―The Authority may, on such terms and

conditions as it deems fit, appoint or receive such number of police officers as may be

necessary to assist in arrest of offenders of

environmental crimes.


Of Act 8 of 1999 43. Section 118 of the Principal Act is amended by

In sub-paragraph (1) by deleting the words

‗Attorney General‘ wherever it occurs In sub-paragraph (2), by deleting the words ―Attorney General‖ wherever it occurs and

substitution thereto with the words ― Director of Public Prosecutions.‖

44. Section 119 is amended by deleting words ―on the advice of the Standards Enforcement Review

Committee‖ in sub-paragraph (3).

Amendment

to section 124 of

Act No 8 of 1999. 45. Section 124 is amended-

(a) By amending Section 124(1) to read: Where Kenya is a party to an international treaty,

convention or agreement, concerning the

management of the environment, the Authority in consultation with relevant lead

agencies, National Environment Council and

the Office of the Attorney General shall:- (i) Develop rules and regulations with

regard to the implementation of the

provisions of such treaty,

convention or agreement in Kenya or for enabling Kenya to perform

27

her obligations or exercise her rights under such treaty;

(ii) By deleting Section 124 (2);

(iii) By adding the following provisions in

Section124 on agreements relating

to environmental resources to become Section 124A:

124A(1) The Cabinet Secretary shall, within

six months from the effective date of

this section, in consultation with the

Authority and Lead Agencies, develop legislation requiring certain

transactions involving environmental

resources to be subjected to Parliament for ratification.

124A (2) The acreage, quantity, quality, value, location and dimensions of

natural resources whose agreements require Parliamentary approval shall be specified in an Act of Parliament.

124A (3) Transactions requiring Parliament‘s

ratification as required in 124(1)

shall include: the grant of a right or concession by or on behalf of any person, including a local community, a county and the national

government, to another person, for

the exploitation of: wildlife resources and habitats, resources of gazetted

forests, biodiversity resources, water resources, communal land, trust

land, in the case of a foreign national

or company and land of more than three hectares.

124A (4) The Cabinet Secretary may, by

notice in the Gazette, specify

additional environmental resources

whose transactions require Parliament‘s ratification.

28

124A (5) The Cabinet Secretary shall, in

consultation with the Authority, the Attorney General‘s Office and Lead

Agencies, develop and issue, by

notice in the Gazette, rules of

procedure for Parliament‘s approval

of environment-related transactions specified under this section.

124 (6) Any agreements concluded before

the promulgation of the Constitution

and the coming into force of this Act, be reviewed within a period of two years.

Amendment

to section 125 of

Act No.8 of 1999. 46. Section 125 is amended-

(a) By amending Section 125(1) (a) to read: a Chairperson nominated by the Judicial

Service Commission, who shall be a person duly trained, educated and qualified in

environmental law and eligible to be appointed as a judge of a superior court.

(b) By adding Section 125 (1) (e) ;A panel of members with demonstrated environmental

competence in the subject matter of

environmental issues including but not

limited to land, energy, mining, water,

forestry, wildlife and maritime affairs.

(c) By adding a new Section 125 (5) to read as

follows: ―The members of the Tribunal shall

in their first meeting elect from amongst

themselves a person who shall have the

training and qualifications in the field of law

to be the Vice Chair to the Tribunal.

(d) By adding a new Section 125(6) to read: In the absence of the Chairperson, the Vice

Chairperson shall serve as Acting

29

Chairperson for the duration of absence of

the Chairperson and the Acting Chairperson shall perform such functions and exercise

such powers as if that person were the

Chairperson.

(e) In the absence of both the Chairperson and the vice Chairperson, the members of the

Tribunal may nominate from among

themselves a person to act as the

Chairperson which person shall have the training and qualifications in the field of law

and such person while acting as the

Chairperson shall perform such functions and exercise such powers as if that person

were the Chair.

(f) The Chairperson may designate the Vice

Chair and two other members to constitute a separate sitting of the tribunal.

Amendment

to section 126 of

Act No 8 of 1999. 47. Section 126 is amended by adding a new section

126(6) to read: Any person who is a party to proceedings before the Tribunal may appear in person or be represented by an Advocate before the Tribunal.

Amendment

to section 127 of

Act No 8 of 1999. 48. Section 127 is amended-

(a) By changing the last paragraph to read:

―Commits an offence under this Act‖ as a sentence on it own.

(b) by adding a new Section 127(3) to read: It

shall be an offence for any person to engage in acts or make omissions amounting to

contempt of the Tribunal and the Tribunal may

30

punish such person for contempt in accordance with the provisions of this Act.

Amendment

to section 128 of

Act No.8 of 1999. 49. Section 128 is amended by changing Section 128(1)

(a) to read: Subject to clause 51(e), the quorum

for hearing or determining any cause or matter before the Tribunal under this Act shall

be three members.

Amendment

to section 129 of

Act No.8 of 1999. 50. Section 129 is amended-

(a) By adding the following to section 129(1)(a); ―the grant of a licence‖ at the beginning of the

sentence. Any person who is aggrieved by: the grant of a licence or permit or a refusal to

grant a licence or permit or the transfer of a licence or permit under this Act or regulations

made there under.

(b) By amending Section 129 (2) to read: Unless

otherwise expressly provided for in this Act, where this Act empowers the Director General,

the Authority, Committees of the Authority or

its agents to make decisions, such decisions

including decisions on matters specified in

sub-section (1) above, may be subject to an

appeal to the Tribunal in accordance with such

procedures as may be established by the Tribunal for that purpose.

(c) By adding to Section 129(3) (c) the following;

make such other order, including orders to

enhance the principles of sustainable development, and an order for costs, as it may

deem just.

31

(d) By amending section 129(4) to read: Upon

any appeal to the Tribunal under this section, any matter or activity which is the subject of

an appeal before the Tribunal shall stop until

the appeal is heard and finally determined.

51. The Principal Act is amended by adding a new

section 134 A to read ―there shall be such other staff of the tribunal as may be necessary for the

proper and expedient performance of its functions‖.

Amendment

to section 134 of

Act No.8 of 1999. 52. Section 134 is amended -

(a) By adding a new sub-section 134 (1) to read: The remuneration and allowances referred to

in subsection (1) together with any other expenses incurred by the Tribunal in the

execution of its functions under this Act shall be paid out of monies voted by Parliament for that purpose.

(b) By adding a new Sub-section 134 (2); Remunerations and allowances shall not be

varied adversely to the detriment of Tribunal members during their term of office.

Amendment

to section 136 of

Act No.8 of 1999. 53. Section 136 of the Principal Act is repealed and a

new section entitled as ‗enforcement of orders of the Tribunal‘ created to read-

The orders of the Tribunal shall be enforced

through the office of the Registrar of the Environment and Land Court and in the manner

32

provided for executing the decrees of the Environment and Land Court.

Amendment to

section 137 of

Act 8 of 1999 54. Section 137 of the Principal Act is amended-

(a) By adding a new subsection (1) to delete the

sentencing provided and replacing with ‗ not

less than one (1) year and or a fine of not

less than two million‘.

A

(b) By adding a new section 137(2) to read as

follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of

the Principal Act or Regulations made thereunder shall be paid into the revenues of

the Authority and the other half shall be paid into the general revenues of Kenya.


(a) By deleting the reference to section 58 of the Act so as to generally refer to the Act.

(b) By adding a new subsection (1) to delete the


less thanone year (1) year and a fine of not

less than two million‘.

(c) By adding a new section 138(2) to read as

follows: One half of all fines imposed and

recovered by a competent court in respect of the contravention of any of the provisions of

the Principal Act or Regulations made there-

under shall be paid into the revenues of the Authority and the other half shall be paid into

the general revenues of Kenya.

33



sentencing provided and replacing with ‗ not less than one (1) year and a fine of not less

than two million‘.



recovered by a competent court in respect of

the contravention of any of the provisions of the Principal Act or Regulations made there-

under shall be paid into the revenues of the

Authority and the other half shall be paid into the general revenues of Kenya.


(a) By adding a new subsection (1) to delete the sentencing provided and replacing with ‗not

less than one (1) year and a fine of not less than two million‘.

(b) By adding a new section 140(2) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of

the Principal Act or Regulations made

thereunder shall be paid into the revenues of the Authority and the other half shall be paid

into the general revenues of Kenya.


(a) By adding a new paragraph (h) to read ―Any

person who releases or causes to be released into the coastal zone any polluting or

hazardous substances contrary to the

provisions of this Act shall be guilty of an offence and liable upon conviction to a fine of

not less than two million shillings or to

imprisonment for a period not less than one

year or to both such fine and imprisonment.‖

34

(b) By adding a new paragraph (i) to read ―In

addition to any sentence that the Court may impose upon a polluter under subsection (a)

of this Section, the Court may direct that

person to:-

(i) pay the full cost of cleaning up the

polluted environment and of

removing the pollution;

(ii) clean up the polluted environment and remove the effects of pollution

to the satisfaction of the

Authority.‖

(c) By adding a new paragraph (j) to read

―Without prejudice to the provisions of subsections (a)

and (b) of this paragraph, the court may direct the polluter to meet the cost of the

pollution to any third parties through adequate compensation, restoration or restitution‖.

(d) By amending subsection (1) to delete the



(e) By adding a new section 141(2) to read as follows: One half of all fines imposed and

recovered by a competent court in respect of the contravention of any of the provisions of


under shall be paid into the revenues of the Authority and the other half shall be paid into





less than one (1) year and a fine of not less

than two million‘.

35


follows: One half of all fines imposed and recovered by a competent court in respect of

the contravention of any of the provisions of



Authority and the other half shall be paid into



(a) By amending the marginal note to the section

to include‘ orders of the Tribunal‘.

(b) By adding a new section 143(1) to read ;

Failure by a lead agency to comply with a

directive of the Authority issued under section 12 of the Principal Act shall constitute an offence.

(c) By adding a new section 143(2) to read- It

shall be an offence to defy any such orders as shall

be issued by the Tribunal.

(d) By adding a new subsection (3) to delete the



(e) By adding a new section 143(3) to read as

follows: One half of all fines imposed and recovered by a competent court in respect of






61. Section 144 of the Principal Act is amended:-

(a) By deleting the phrase ‘who commits an

offence

against‘ and replacing with the word ‗contravenes‘.

(b) By adding a new subsection (1) to delete the

36



(c) By adding a new sub section (2) to read as


recovered by a competent court in respect of






(d) By renumbering the section 144 to read

section 146 and by renumbering section 146 to read section 144.

62. Section 146 of the Principal Act is amended by

renumbering the section to read section 144 and by renumbering section 144 to read section 146.

63. The Principal Act is amended:-

(a) By inserting Section 147 A (1) to read- ―Subject to section 147, a County may, on

the recommendation of the Authority and

upon consultation with the relevant lead

agencies and stakeholders, make legislation in respect of all such matters as are

necessary or desirable that are required or

permitted by this Act and more particularly and without prejudice to the foregoing:-

i. For controlling any of the things which it is empowered by or under this Act

to do, establish, maintain or carry on;

and ii. For controlling or regulating any of the

things which and any of the persons

whom, it is empowered by or under this Act to control or regulate; and

iii. For prohibiting or preventing by

prohibition any of the things which it

is empowered by or under this Act to prohibit; and

37

iv. For requiring or compelling the doing

of any of the things which it is empowered by or under this Act to

require or compel.

(b) By inserting Section 147 A (2) to read

―Nothing in this Act shall be deemed to empower a county to make legislation

overriding or derogating from the provisions

of this Act including regulations made under

this Act.

Amendment

to section 148 of

Act No.8 of 1999. 64. Section 148 is amended so as to read as follows-

Section 148: Any written law by National and

County governments relating to the management of the environment shall have effect, subject to

modifications as may be necessary to give effect to this Act, and where the provisions of any such

law conflict with any provisions of this Act, the provisions of this Act shall prevail.

38

Second Schedule

CATEGORY I.

Projects requiring submission of an Environmental Impact Assessment Study report

1. Changes in Land Use including

a) Major changes in land use.

b) Large scale resettlement schemes.

2. Urban Development Including

a) Designation of new townships.

b) Establishment of industrial estates c) Establishment of new housing developments exceeding 30

housing units.

d) Establishment or expansion of recreational areas in National

Parks, National reserves, Forest and nature reserves and any areas designated as environmentally sensitive.

e) Shopping centres and complexes.

3. Transportation

a) All paved roads. b) Construction of new roads in environmentally sensitive areas.

c) Railway lines.

d) Airports and airfields. e) Oil and gas pipeline.

f) Water transport.

g) Construction of tunnels.

4. Dams, Rivers and water resources including:-

39

a) Any project located within a distance prescribed by a written law

from a wetland, ocean, sea, lake, river, dam, stream, spring or any other water body.

b) Storage dams, barrages and piers.

c) River diversions and water transfer between catchments.

d) Large scale flood control schemes.

e) Drilling for the purpose of utilizing ground water resources

including geothermal energy.

5. Aerial Spraying

6. Mining including quarrying and open cast extraction of:-

a) Precious metals.

b) Gemstones. c) Metalliferous ores.

d) Coal.

e) Phosphates. f) Limestone and dolomite.

g) Large scale commercial stone and slate. h) Commercial large scale harvesting of aggregate, sand, gravel,

soil and clay. i) Exploration for the production of petroleum in any form. j) Extracting alluvial gold with use of mercury.

k) Geothermal energy exploration and production.

7. Forestry related activities

a) Timber harvesting.

b) Clearance of forest areas.

c) Reforestation/aforestation with alien species. d) Introduction of alien species.

e) Excisions of gazetted forest for whatever purposes.

f) Any projects located within forest reserves such as construction of dams or other control structures that flood large areas of

relatively un degraded areas.

8. Agriculture including

a) Large scale agriculture.

b) Introduction of new pesticides. c) Pest control programs (large scale).

d) Widespread introduction of new crops and animals.

e) Widespread introduction of fertilizers.

f) Irrigated agriculture exceeding 50 ha.

40

g) Major developments in biotechnology including the introduction

and testing of genetically modified organisms

9. Processing and Manufacturing Industries including:-

a) Mineral processing, reduction of ores and minerals.

b) Smelting and refining of ores and minerals. c) Foundries.

d) Large scale brick and earth ware manufacture.

e) Cement works and lime processing. f) Glass works.

g) Explosive plants.

h) Fertilizer manufacture or processing.

i) Oil refineries and petrochemical works. j) Large scale tanning and dressing of hides and skins.

k) Large scale abattoirs (more than 15 animals/day) and meat

processing plants. l) Large scale brewing and malting. m) Bulk grain processing and storage

n) Large scale fish processing plants. o) Pulp and paper mills.

p) Large scale food processing plants. q) Plants for manufacture of assembly of motor vehicles.

r) Plants for the construction and repair of aircrafts or railway equipment.

s) Plants for the manufacture of tanks, reservoirs and sheet

metals containers.

t) Plants for the manufacture of coal brickets. u) Plants for the manufacturing of batteries. v) Chemical works and processing plants.

w) Plants for the manufacture or assembly of motor vehicles.

10. Electrical Infrastructure including:-

a) Electricity generation stations.

b) Electrical transmission lines above 66 KVA. c) Electrical sub stations.

d) Pumped storage schemes.

e) Telecommunications masts.

11. Management of hydrocarbons

Bulk storage of natural gas, petroleum and any combustible and

41

explosive fuels.

12. Waste Disposal including:-

a) Sites for solid waste disposal.

b) Sites for toxic, hazardous and dangerous wastes.

c) Waste water treatment plants. d) Sewage treatment plants.

e) Works involving major atmospheric emissions. e) Installations for disposal of industrial wastes.

f) Works emitting offensive odours.

13. Natural Conservation Areas:-

a) Establishment of Protected areas, buffer zones, and wilderness Areas.

b) Commercial exploitation of natural fauna and flora. c) Introduction of alien species of flora and fauna into ecosystems.

d) Actions likely to affect endangered species of flora and fauna. e) Wetlands reclamation and or any projects likely to affect

wetlands. f) Projects located in indigenous forests including those outside of gazetted forests.

g) Projects that affect any areas designated as environmentally sensitive areas

14. Nuclear reactors and nuclear plants

15. Marine Areas

a) Mineral exploitation of resources in the marine areas.

b) Reclamation of marine areas.

42

CATEGORY II PROJECTS

Projects requiring submission of a project report

a) An activity out of character with its surroundings.

b) Any structure of a scale not in keeping with its surroundings.

c) Residential houses in zoned areas (bungalows, masionettes, flats) of not more than 30 units in less than eight (8) acres or as prescribed

from time to time.

d) Commercial buildings in zoned areas (of not more than 10 stories).

e) Small scale community water projects, boreholes and water pans f) Cottage industries.

g) Designated Jua Kali sites other than for metal works and garages.

h) Car and bus parks. i) Recreational facilities in areas not designated as environmentally

sensitive.

j) Expansion of existing facilities for same use especially the socially uplifting projects such as schools and dispensaries where the

expansion is less than 50% of existing capacity. k) Cattle dip.

l) Sand harvesting, quarrying, brick making, clay/soil harvesting. m) Slaughter houses handling not more than 15 animals a day and located more than 100 meters away from riparian land.

n) Construction of churches and mosques.

o) Rehabilitation of all minor roads not more than 9 meters wide. p) Power transmission lines of less than 66 KVA.

q) Schools and rural health centres.

r) Minor flood control schemes.

s) Irrigated agriculture of less than 50 hectares.

t) Mini Hydropower projects. u) Small scale fisheries and aquaculture.

v) Works relating to improvement of petroleum facilities.

43

CATEGORY III

Projects requiring a project brief.

Education

Educational facilities (small-scale).

Teaching facilities and equipment.

Scholarships and conferences.

Teaching staff and resource personnel.

Audio-visual productions.

Training.

Health

Medical clinics (small scale).

Medical supplies and equipment.

Medical staff and community health workers.

Training.

Nutrition .

Housing

Individual homesteads and houses in the rural and peri urban centres.

Population

Family Planning.

Production Sector

Trade (except trade in tropical hardwoods, endangered species, hazardous materials).

Food Aid

44

Food Aid.

Financial Assistance

Programme assistance.

Non-project/special country support.

Emergency Operations

Emergency assistance.

Assistance to refugees, returnees and displaced persons.

Technical Assistance

Studies, including evaluations.

Technical assistance for project implementation.

Technical assistance for policy formulation.

Works supervision.

Institution building at the government/local level.

the environmental management and co ......management and co-ordination act, 1999 enacted by the...

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