Kenya
The laws of Kenya establish a right to sanitation and water. Kenya voted to abstain from U.N. General Assembly Resolution 64/292 (2010) recognizing a right to safe and clean drinking water and sanitation as a human right. Kenya voted in favor of U.N. General Assembly Resolution 72/178 (2017) reaffirming the human rights to safe drinking water and sanitation. John Kiyonga Munyes, the Minister of Water and Irrigation, signed the eThekwini Declaration in 2008. In the 2019 GLAAS Report, Kenya accurately reports that its Constitution establishes both a human right to sanitation and a human right to drinking water.
Equity and non-discrimination
The Constitution establishes rights to equal protection and non-discrimination. Every person is considered equal before the law and has the right to equal protection and equal benefit of the law. The Constitution prohibits direct and indirect discrimination against persons on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, race, age, disability, religion, conscience, belief, culture, dress, language, or birth. Persons are also prohibited from discriminating directly or indirectly against other persons on the same grounds. The Constitution further requires the State to play an active role in giving effect to these rights by adopting legislation that creates affirmative action programs and promotes the representation of women, persons with disabilities, youth, ethnic and other minorities and marginalized communities in Parliament and ensures the diversity of the county is reflected in its assembly and executive committee. Environmental and health laws and policies only develop on these protections in a limited way.
Access to information is critical to advancing equity and non-discrimination. The Environmental Management and Coordination Act gives every person a right to access any information related to the implementation of the Act upon payment of a prescribed fee.
Responsibility for each stage of the Sanitation Value Chain
The State is required to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources. The Cabinet Secretary for environmental matters is responsible for determining the policies and priorities for environmental protection and recommending measures for monitoring and controlling water pollution. The National Environment Management Authority is responsible for advising the Government on legislative and other measures for the management of the environment and drafting the National Environmental Action Plan. The Water Resources Authority is responsible for designing and enforcing standards, procedures, and regulations for the management and use of water resources and receiving and issuing water permit applications. The Water Resources Authority also establishes water quality standards for water resources. The Cabinet Secretary for matters related to water must formulate a Water Services Strategy. However, it is the county governments required to establish water service providers responsible for providing water services and developing the infrastructure necessary to provide water services. County governments are expected to plan for environmental sanitation services and to secure the financial resources necessary to develop sanitation services in rural and urban communities. Counties are also expected to adopt the legislation and bylaws necessary to ensure the provision of safe and adequate environmental sanitation services. The Water Services Regulatory Boards, at the county-level, are responsible for prescribing national standards for the provision of water services and asset development and regulating and enforcing license conditions and compliance with standards. The Board reviews applications and awards licenses to water service providers as well as maintains a registry of licensed water service providers. Local authorities are responsible for taking all necessary and reasonable practicable measures for maintaining its district at all times in clean and sanitary conditions, for preventing or remedying any nuisance or condition liable to be injurious or dangerous to health, and for taking all necessary and reasonable practicable measures for preventing any pollution dangerous to health of any supply of water, for purifying any supply which has become polluted, and for taking measures against any person polluting any supply or stream so as to be a nuisance or danger to health.
Law should prevent contamination by fecal waste
Persons have a constitutional right to a clean and healthy environment. Persons are prohibited from releasing any wastes in such a way that causes pollution to the environment or ill health to any person, from creating a nuisance, and from directly or indirectly causing water pollution. All discharges must comply with the regulations and standards issued under the Environmental Management and Coordination and Water Acts.
Environmental impact assessment licenses are required for most activities that are likely to have an adverse effect on the environment. The discharge of effluent without a license is prohibited. Owners and operators of sewerage systems are specifically prohibited from discharging effluents without an effluent discharge license. The National Environmental Management Authority is responsible for issuing environmental impact assessment licenses and effluent discharge licenses as well as for maintaining a registry of all issued effluent discharge licenses. Licenses are also required for discharging trade effluent into a sewerage system. The Authority also monitors compliance with effluent discharge limits, methods and procedures. The Regulatory Board issues licenses to Water Service Boards for the creation of infrastructure and networks for the safe disposal of wastewater or effluent.
Policies recognize the need to ensure universal access to improved sanitation and to rehabilitate and upgrade sanitation and sewerage systems in order to reduce pollution. Several approaches are identified to accelerate progress including making appropriate technology choices for water management and pollution control, fostering private sector participation and investment, strengthening governance and human resource capacity, establishing an enabling legal and regulatory environment for sanitation at the national and county levels, and establishing effective monitoring frameworks to ensure accountability in policy implementation.
Enforcement power
If a person alleges that a right to a clean and healthy environment is being or is likely to be denied, violated, infringed, or threatened, the person may apply to a court, such as the Environment and Land Court, for redress. The can make any order to prevent or stop any act or omission that is harmful to the environment, to require a public officer to take steps to prevent the act or omission, or to provide compensation for any victim whose right to a clean and healthy environment has been violated. Any person can bring such a claim; they do not have to have personally experienced the violation. A National Environment Department is also established as a committee of the National Environmental Management Authority which is responsible for investigating any allegations or complaints against any person or the Authority with respect to the condition of the environment. A National Environmental Tribunal hears appeals regarding the granting of licenses and permits. Appeals from the Tribunal are heard by the Environment and Land Court.
The Regulatory Board can inquire into any complaint made to it or on the basis of information received by a county government and is generally responsible for enforcement. The Board can impose a special regulatory regime, such as enhanced monitoring and reporting, on any water services provider if it finds failures. The county government is responsible for monitoring and enforcing regulations applicable to water service providers; however, if they fail to act, the Regulatory Board can step in to enforce the regulations.
Penalties
Persons who discharge pollutants in violation of water pollution control standards or contravenes any environmental standard are guilty of an offense and can be fined and/or imprisoned. They can also be required to pay remediation costs. Effluent discharge licenses may also be cancelled by the National Environmental Management Authority for contraventions of the Act, regulations issued under the Act, or conditions in a license.
The National Environmental Management Authority may appoint environmental inspectors responsible for monitoring compliance with the environmental standards and conducting environmental audits. Environmental inspectors can institute criminal proceedings against any person. Persons who hinder or obstruct an environmental inspector in the fulfillment of their responsibilities can be fined and/or imprisoned. Furthermore, failure to comply with an environmental restoration order, an environmental conservation order, or order of the Tribunal can be fined and/or imprisoned.
The Water Resources Authority can cancel or revise a permit if the permit holder contravenes the conditions of the permit. The Regulatory Board can revoke the licenses of water service providers for obtaining the license through fraud, for ceasing to meet the licensing criteria, for failing to provider the services they were licensed to provide, for becoming insolvent, or for failing to comply with any license conditions. Offenses committed under the Water Act can be penalized with fines and/or imprisonment.
Roadmap to sanitation laws
The Constitution, Environmental Management and Coordination Act, Water Act and regulations adopted under those Act govern sanitation. Policies, such as the Kenya Environmental Sanitation and Hygiene Policy (KESHP) 2016-2030, provide limited insight into the norms and standards governing the provision of sanitation services.
Governance, generally
The territory of Kenya is divided into 47 counties. All sovereign powers belong to the people of Kenya. The sovereign power of the people is exercised at the national and county levels. Sovereign power is delegated to the following state organs: Parliament and legislative assemblies in the country governments, the national executive and the executive structures in the county governments, and the Judiciary and independent tribunals. The National Government has exclusive authority over several issues, including foreign affairs, consumer protection, national public works, housing policy, general principles of land planning, protection of the environment and natural resources, disaster management, capacity building, and public investment. The functions and powers of the County Governments include agriculture, county health services, control of air pollution and other public nuisances, county planning and development, county public works and services, including water and sanitation services and storm water management systems, and disaster management. Any function or power not assigned by the Constitution to a county is a function or power of the national government.
The legislative authority of the Republic is derived from the people and is vested in and exercised by Parliament. Only Parliament has the power to make laws except as granted by the Constitution and by legislation. The National Assembly represents the people of the constituencies and special interests in the National Assembly. The National Assembly is responsible for enacting legislation with respect to determining the allocation of national revenue between the levels of government, appropriating funds for expenditure by the national government and other national State organs, and exercising oversight over national revenue and its expenditure. The Senate represents the counties and represents the interests of the counties and their governments. The Senate considers, debates, and approves Bills concerning the counties as prescribed in the Constitution. Bills concerning county government include a Bill which contains provisions that affect the functions and powers of county governments, a Bill relating to the election of members of a county assembly or a county executive and a Bill affecting the finances of county governments. Parliament shall exercise its legislative power through Bills passed by Parliament and approved by the President.
The executive authority derives from the people of Kenya. The national executive comprises the President, the Deputy President, and the rest of the Cabinet. The President is the Head of State and Government. The President may nominate and appoint with the approval of the National Assembly Cabinet Secretaries and Principal Secretaries. The Cabinet consists of the President, the Deputy President, the Attorney General and no fewer than 14 and no more than 21 Cabinet Secretaries. Cabinet Secretaries cannot be a Member of Parliament. Any decision by the Cabinet must be in writing.
Judicial authority is derived from the people.
The Judiciary shall only be subject to the Constitution and the law. The Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff. The superior courts are the Supreme Court, the Court of Appeal, and the High Court. The subordinate courts are the Magistrate courts, the Kadhis courts, the Courts Martial and any other court or local tribunal as may be established by Parliament.
Each county must have a county government consisting of county assembly and a county executive. Each county shall decentralize its functions to the extent that it is efficient and practicable. The executive authority is vested in a county executive committee composed of a county governor, deputy county governor, and members appointed by the county governor from persons who are not members of the assembly. Appointments must be approved by the assembly. A county executive committee is responsible for implementing county legislation, implementing national legislation within the county, managing and coordinating the functions of the county administration and its departments, and performing any other duties granted by the Constitution or legislation. A county executive committee may prepare legislation for consideration by the county assembly. The legislative authority is vested in the county assembly who is allowed to make laws that are necessary for the effective performance of its functions and exercise of its powers.
Lawmaking, policy making processes
Any Bill can originate in the National Assembly. Any Bill not concerning county governments is considered only in the National Assembly. Any Bill concerning county governments may originate in the National Assembly or the Senate. The President must within 14 days upon receipt of a Bill approve the Bill or refer the Bill back to Parliament. Parliament may either amend the Bill in light of the President’s recommendations or approve the Bill without amendment. A bill passed by Parliament and assented to by the President must be published in the Gazette within seven days. When a Bill concerning a county government is passed by one House of Parliament, the Speak of that House must refer the Bill to the Speaker of the other House. In the event that one of the Houses rejects the Bill or amends the Bill, the Constitution creates a process for review, reconsideration, and mediation. If both Houses pass the Bill in the same form, the Speaker of the House where the Bill originated must refer the Bill to the President for assent within seven (7) days.