Posted on: September 18, 2008 Posted by: Diane Swarts Comments: 0

Kenya. Disquiet has been expressed in certain quarters, especially among the government and private developers, that development should not be subjected to the many challenges and legal requirements especially issues such as the environment, as is the practice today.

Polluters Must Pay

In Kenya, practically every project is subject to approval by the National Environmental Management Authority (Nema) in accordance with the provisions of the Environmental law.

Such a position is, no doubt, absurd owing to the fact such projects are still subject to other planning and regulatory laws. The problem of unplanned development is the nightmare that Nairobi city is and the situation seems to grow worse every year.

The projected costs of just reclaiming and cleaning the waste that flows through the City in the name of Nairobi River is mind boggling, the sum is estimated in billions of shillings.

It is my sincere hope that this burden shall not be passed on to Kenyan taxpayers. The environmental law, as provided in Act No 8 of 1999, adopts the fundamental principle of environmental law of ‘the polluter pays’.

Social Costs

The polluter pays principle requires that polluters of natural resources should bear the full environmental and social costs of their activities.

This principle seeks to internalize environmental problems by ensuring that the full costs of resource utilization are reflected in the ultimate market price for the products.

The polluters of Nairobi River comprise institutions well known to the environmental body; for instance, those who empty raw sewer and industries that empty sludge into the river.

It therefore goes without saying that environmental concerns and analysis of any project is of paramount importance, a necessary evil. Even though it has, to an extent, in some cases, delayed the commencement of some projects, this is premised on the principle of prevention.

All in all, despite the right to commence a court action being vested in any person apprehensive that the environment is likely to be harmed, leading to the environmental impact study; it does not mean that all projects have to be opposed just for the sake of it.

In conclusion, the cost of reclaiming Nairobi River must be borne by those who are polluting it. It is time Nema struck a blow against those who pollute the River with impunity, my fear is that all of us may end up being on the wrong.

Wetang’ula is an advocate of the Kenyan High Court.

By Emmanuel Wetang’ula
Source: Business Daily Africa

18 September 2008:

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