By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- The Constitution further strengthens environmental protection through Article 69, which outlines specific state obligations. These include ensuring sustainable exploitation of natural resources, achieving and maintaining tree cover of at least ten percent of the land area, and protecting indigenous knowledge related to biodiversity.
- The case of Friends of Lake Turkana Trust v Attorney General & 2 others (2014) demonstrated the practical application of these provisions, with the court affirming the state’s duty to protect water resources from potential harm caused by development projects. This decision highlighted the judiciary’s role in upholding constitutional environmental rights.
- Media freedom has played a pivotal role in advancing environmental awareness and accountability in Kenya. Investigative journalism has exposed illegal logging, wildlife poaching, and industrial pollution, leading to public outcry and government action.
“Freedom of expression is the matrix, the indispensable condition of nearly every other form of freedom,” asserted Justice Benjamin N. Cardozo, a sentiment that resonates deeply with Kenya’s constitutional journey. The Kenyan Constitution of 2010 marked a significant milestone in the nation’s legal framework, enshrining both freedom of the media and the right to a clean and healthy environment as fundamental rights. This comprehensive document not only recognized these rights but also provided mechanisms for their protection and enforcement. The interplay between media freedom and environmental rights has proven crucial in Kenya’s democratic development, fostering transparency, accountability, and sustainable practices.
Article 34 of the Kenyan Constitution explicitly guarantees freedom of the media, prohibiting state interference and censorship. This provision has been instrumental in shaping the media landscape, allowing for diverse voices and perspectives to emerge. The case of Nation Media Group v Attorney General (2016) further cemented this right, with the court ruling against government attempts to restrict media coverage of sensitive political events. Similarly, Article 35 enshrines the right to access information, complementing media freedom by ensuring journalists and citizens can obtain crucial data for informed discourse. These constitutional safeguards have empowered the media to act as a watchdog, exposing corruption and environmental malpractices.
The right to a clean and healthy environment, enshrined in Article 42, represents a progressive step in Kenya’s constitutional framework. This provision recognizes the intrinsic link between environmental well-being and human rights, obligating the state to protect and conserve the environment for present and future generations. The landmark case of Peter K. Waweru v Republic (2006) affirmed this right, with the court emphasizing the government’s duty to prevent environmental degradation. This ruling set a precedent for subsequent environmental litigation, providing a legal basis for citizens and organizations to challenge actions detrimental to the environment.
The Constitution further strengthens environmental protection through Article 69, which outlines specific state obligations. These include ensuring sustainable exploitation of natural resources, achieving and maintaining tree cover of at least ten percent of the land area, and protecting indigenous knowledge related to biodiversity. The case of Friends of Lake Turkana Trust v Attorney General & 2 others (2014) demonstrated the practical application of these provisions, with the court affirming the state’s duty to protect water resources from potential harm caused by development projects. This decision highlighted the judiciary’s role in upholding constitutional environmental rights.
Media freedom has played a pivotal role in advancing environmental awareness and accountability in Kenya. Investigative journalism has exposed illegal logging, wildlife poaching, and industrial pollution, leading to public outcry and government action. The Constitution’s protection of whistleblowers, as stipulated in Article 33(2), has further encouraged the disclosure of environmental violations. The case of Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 others (2017) underscored the importance of this protection, safeguarding the rights of individuals who reveal information in the public interest.
The intersection of media freedom and environmental rights is particularly evident in the realm of public participation. Article 10(2) of the Constitution establishes public participation as a national value and principle of governance. This provision has been instrumental in ensuring that communities affected by environmental decisions have a voice. The media’s role in facilitating this participation was highlighted in the case of Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others (2015), where the court emphasized the need for adequate public consultation in resource extraction projects.
Environmental litigation in Kenya has been significantly bolstered by constitutional provisions. Article 70 grants individuals the right to seek redress for environmental harm, removing previous barriers to standing in environmental cases. This has led to an increase in public interest litigation, as seen in the case of Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another (2019), where community organizations successfully challenged the environmental impact assessment of a proposed coal power plant. The court’s decision in this case underscored the importance of considering long-term environmental impacts in development projects.
The Constitution’s recognition of international law as part of Kenyan law, as stipulated in Article 2(6), has further strengthened environmental protection. This provision has allowed Kenyan courts to draw upon international environmental principles and treaties in their judgments. The case of African Centre for Rights and Governance (ACRAG) & 3 others v Municipal Council of Naivasha (2017) exemplifies this approach, with the court referencing international environmental standards in its ruling on waste management practices. This integration of international norms has elevated Kenya’s environmental jurisprudence to global standards.
Media freedom has also been instrumental in promoting environmental education and awareness. Article 11 of the Constitution recognizes culture as the foundation of the nation, including traditional knowledge systems that often encompass sustainable environmental practices. The media’s role in disseminating this knowledge, as well as scientific information on environmental issues, has been crucial in fostering a culture of environmental stewardship. The case of Joseph Letuya & 21 others v Attorney General & 5 others (2014) highlighted the importance of preserving indigenous environmental knowledge, with the court recognizing the rights of forest-dwelling communities to their ancestral lands and traditional practices.
The constitutional framework for media freedom and environmental rights in Kenya has faced challenges, particularly in implementation. Despite strong legal protections, journalists investigating environmental issues have sometimes faced intimidation and harassment. The case of Standard Group Limited v Attorney General & 4 others (2013) addressed these concerns, with the court reaffirming the media’s constitutional protections and the state’s obligation to ensure a safe working environment for journalists. Similarly, environmental rights have sometimes clashed with development interests, requiring careful judicial balancing.
The digital age has brought new dimensions to both media freedom and environmental advocacy in Kenya. Article 33 of the Constitution, which guarantees freedom of expression, has been interpreted to include digital communication platforms. This has expanded the avenues for environmental reporting and activism, as seen in the widespread use of social media to mobilize support for conservation efforts. However, it has also raised new legal questions, as exemplified by the case of Bloggers Association of Kenya (BAKE) v Attorney General & 3 others (2018), which challenged regulations that could potentially restrict online freedom of expression.
In conclusion, Kenya’s constitutional provisions on media freedom and the right to a clean and healthy environment have created a robust framework for advancing these fundamental rights. The synergy between these two areas has fostered a more informed, engaged, and environmentally conscious society. As Kenya continues to navigate the complexities of sustainable development, the role of the media in environmental advocacy remains crucial. The ongoing interpretation and application of these constitutional rights by the judiciary will undoubtedly shape the future of environmental governance and media freedom in the country, setting precedents that may influence legal frameworks across Africa and beyond.
The writer is a legal researcher
