Courts take lead in protection of the environment

Rainfall has become irregular and unpredictable. In Nairobi, it has been cool since January while northern Kenya experiences frequent droughts and when it rains, the residents have to contend with severe floods.

These and many more are examples of global warming and apart from big industries, individual Kenyans have played a part in destroying the environment.

Luckily though, there are efforts by companies and government agencies to mitigate the effects of climate change and possibly reverse bad weather conditions.

Courts too, have risen to the occasion and judges are issuing orders aimed at checking the habits that contribute to the destruction of the environment.

In two recent decisions, Justice Kosy Bor of the Environment and Land Court has put the government on the spot and issued directives aimed at coming up with measures that reverse the bad habits that destroy the environment.

Last year, the judge directed the government to come up with a policy for the provision of toilets and other sanitation facilities along the major highways.

This was after the court was told of how apart from destroying the environment, travellers are forced to respond to the call of nature in the full glare of their children, relatives and other commuters, which is humiliating and degrading.

“The national transport policy should incorporate toilets and other sanitation on road stops on the national and international trunk roads. The policy should take into account the need to have toilets and other sanitation facilities maintained properly by the county governments once constructed,” she said.

Justice Bor directed Transport Cabinet secretary James Macharia to constitute and chair a working group, which will include representatives from the Council of Governors, Kenya National Highways Authority, Kenya Rural Roads Authority and Kenya Urban Roads Authority.

The judge said the working group should formulate the policy for the provision of toilets and other sanitation facilities on the road network to give effect to the right to a clean and healthy environment on the roads.

Lawyer Adrian Kamotho said Article 42 of the Constitution entitles every citizen to a clean and healthy environment and reasonable standards of sanitation.

He said in public places where there are toilets, citizens are charged and those who cannot afford to pay are turned away.

Mr Kamotho said because of the lack of proper sanitary facilities, motorists and commuters urinate, defecate and excrete human waste on the streets and road reserves as well as adjacent bushes or open spaces.

He said the government has made no efforts in providing critical sanitary amenities to the users of public roads as a result, subjecting them to immense biological and physiological torture when faced with a call of nature, while travelling.

And last month, the judge was at it again, directing the government and the Nairobi Metropolitan Services (NMS) to close down the Dandora dumpsite by February next year.

The judge also directed the National Environment Management Authority, NMS and Environment and Water and Sanitation ministers as well as six county governments, which Nairobi River traverses through, to undertake an urgent clean-up of the river.

The clean-up, she directed, should start at the source in Kiambu to Sabaki River in Malindi.

“Nema will take the lead role on the development of an environmental action plan for the cleaning up of the Nairobi and Athi River,” she said adding that a report should be filed in court every four months showing the water quality.

The judge said the samples of water should be taken from a minimum of 12 different points on the Nairobi and Athi river courses.

The late Environment minister John Michuki led efforts to clean up the Nairobi River. Although he achieved some success, the river is once again murky, especially downstream from wastewater, raw sewage and industrial waste.

Dandora dumpsite covers more than 30 acres. Residents of Korogocho, Baba Dogo, Mathare and Dandora eke out a living from scavenging the solid waste but expose themselves to health hazards. It filled up as early as 2001, but the efforts to shut it down have not been successful.

“The Nairobi Metropolitan Services is directed to take steps to decommission the Dandora dumpsite and relocate it to another site within six months of the date of this judgment,” said the judge.

Justice Bor said after shutting down the dumpsite, the NMS should embark on the rehabilitation of the dumpsite.

“In the intervening period, the NMS will take all practical steps to ensure that the waste in the Dandora dumpsite is managed in a manner which protects human health and the environment against adverse effects from the waste,” she said, adding that the NMS must ensure that there is no burning of plastic or other waste at the dumpsite.

The judge noted that Section 3 of the Environment Management and Coordination Act mandates the Environment Court to make orders, issue such writs or give directions it may deem appropriate to prevent, stop or discontinue any act harmful to the environment.

“The court may also compel a public officer to take measures to prevent or discontinue any act or omission deleterious to the environment or compel the persons responsible for the environmental degradation to restore the environment to the position it was in before the damage, and to provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of the act of pollution,” she said.

She also noted that the law stipulates that a person bringing a suit regarding the entitlement to a clean and healthy environment does not need to show that the defendant’s act or omission caused him personal injury or loss.

Justice Bor said in establishing the new landfill for the safe disposal of waste from Nairobi, the NMS would in conjunction with the Nema, make a concerted effort aimed at waste reduction, the separation of biodegradable and organic waste and prioritise the implementation of recycling strategies.

“One cannot tell with certainty the number of people who have been affected by the pollution from the Dandora dumpsite and the Nairobi River,” said the judge.

She made the judgment in a case filed by residents of Korogocho, who argued that they have the right to a clean environment.

“Rather than presume that water and air pollution do not cause the diseases the petitioners alluded to, the State should err towards protecting the environment and public health,” said Justice Bor.

The residents through their officials Isaiah Luyara Odando and Wilson Yatta said Nairobi River was a recipient of improperly treated or untreated effluent. The polluted water and raw sewage, they said, are used for irrigation downstream, which exposes consumers of food products to health hazards. They accused NMS and Nema of violating their rights and sought orders to compel the authorities to adopt measures to stop pollution of the Nairobi and Athi rivers and permanent restoration of the rivers.

The residents called for a shutdown of polluters and industries that discharge waste to the river, to treat the waste before disposing of it into the rivers.

They had also sought an order for the removal of 4,000 illegal structures encroaching on the riparian land and build embankments and barriers to allow the river to flow free from contamination.

Justice Bor said within 30 days, the Nema and NMS should identify materials and processes that are dangerous to the environment and human health in relation to the people living in Nairobi and more specifically, Korogocho, Mukuru and areas surrounding the Dandora dumpsite.

The residents had also sued county governments of Nairobi, Machakos, Kiambu, Kilifi, Makueni and Tana River.

They complained that the Dandora dumpsite is filled with smoke from the burning of plastic waste, which releases toxic and carcinogenic gases into the atmosphere increasing the risk of respiratory diseases for people living in Korogocho, Kariobangi and Lucky Summer.

They cited an investigative report by Nation on the pollution of the rivers from Ondiri springs in Kikuyu to Sabaki in Malindi.

Mr Luyara testified that the report showed how the river carries unacceptable toxic levels of lead, copper, cyanide and ammonia, which has caused the upsurge of cancer and respiratory diseases.