THE PLACE OF CLIMATE CHANGE LITIGATION IN KENYA

 

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In the global fight against climate change, a new weapon has emerged; the courts. This article argues that despite Kenya having legal mechanisms to promote climate change litigation it has not been used effectively.

There is a need to raise awareness on the role that courts play in the fight against climate change in three ways; advancing policy changes, holding polluters liable and advancing climate change. Kenya can learn from other countries such as  the Netherlands and the USA in utilizing the courts for a better tomorrow.

Climate Change Litigation is defined by the 2020 Global Climate Litigation Report on Status Review as cases that raise significant legal or factual questions about mitigating, adapting to, or studying climate change science.Recently, there has been an increase in number of cases world wide around climate change according to the report by Global Trends in Climate Litigation Report. According to the report , most of the cases have been brought against the government by corporations, non governmental organizations and individuals.

 In Kenya, the concept of climate litigation is new and only a few cases have been filed in this regard. There is a need to understand the role of climate change litigation in mitigating and adoption in climate change and its role in enhancing sustainable development.

Article 42 of the Constitution of Kenya 2010 provides for the right to a clean and healthy environment. The justification for climate change litigation in Kenya is provided under article 70 of the Constitution. It states that  if a person alleges that a right to a clean and healthy environment recognized and protected under article 42, the person may apply to court for redress in addition to any other legal remedies that are available in respect to the same matter and that he does not have to demonstrate that any person has incurred loss or suffered injury.

The Climate Change Act 2016 provides for the role of courts in Kenya to hear matters concerning climate change. Section 23 of the Act provides that , ‘a person may pursuant to Article 70 of the Constitution apply to the Environmental and land Court alleging that person has acted in a manner that has or is likely to adversely affect efforts towards mitigation and adaptation to the effects of climate change.’

Section 3 (3) of Environment Management and Coordination Act provides for the same. The Environment and Land Court (ELC) has the  power to hear and determine disputes relating to climate issues according to the ELC Act.

From the above, it is clear that Kenyans have the locus standi to bring any climate related issue to the court. It is important to examine how other countries have used climate change litigation as a tool for climate change mitigation.

 

The first way is by holding polluters accountable. The Global Climate Change Litigation Report 2023 Status Review reported claims that address corporate liability and responsibility for climate harms and claims that address the failures to adapt to the effects of climate change as some of the major cases on climate change litigation.

 

The principle of polluters pays is the justification for holding polluters accountable for the emissions which are a major cause of climate change. The polluters pay principle is a  sustainable development principle that holds those who contribute emissions responsible for the cost of managing and mitigating it.

In  Milieudefensie et al. v. Royal Dutch Shell plc,  Milieudefensie sued Royal Dutch Shell, alleging its fossil fuel activities violated Dutch law and demanded Shell align its emissions with Paris Agreement targets. The court ruled in favor of the petitioners, ordering Shell to cut emissions by 45% by 2030.The case gained international attention as it was one of the first instances where a corporation was sued for its contribution to climate change under human rights and environmental laws. 

The second way is by driving policy change. Jurisprudence emanating from climate litigation influences policy makers to codify and legislate some of the courts decisions to policy. Litigation also involves interpreting some of the existing legislation.As such, a court’s interpretation can influence how laws can be implemented and understood  consequently leading to policy changes.

The case of Urgenda Foundation v State of Netherlands visualizes how climate litigation can drive policy change. The Urgenda Foundation, a Dutch environmental group, along with 900 Dutch citizens brought a claim to their district court against the government. They argued that the government's failure to adapt to climate change violated their human rights.

The case gained international importance as it was the first decision that  ordered a state to meet its obligations derived from international climate agreements. To achieve the declarations as ordered by the court, the Dutch government made significant changes in their climate policies. The government announced a series of policy measures aimed at accelerating the reduction of greenhouse gas emissions.

Lastly, climate change litigation has been used to advance climate justice.It entails taking actions at national, regional and international levels to mitigate and adapt to climate change while upholding human rights within legislative and judicial frameworks.Climate litigation is growing in significance for guiding the climate movement and promoting climate justice by drawing greater focus to climate concerns.

In Juliana v. United States a group of young people brought against the federal government in the United States. The plaintiffs, whose ages ranged from 8 to 19 at the time of filing, contended that their constitutional rights to life, liberty, and property as well as the public trust doctrine were violated by government actions and policies that supported the extraction of fossil fuels and greenhouse gas emissions, which in turn caused climate change. The case has galvanized youth activism and engagement on climate issues, empowering young people to demand climate action from their governments and institutions. By amplifying the voices of young plaintiffs and spotlighting the urgency of climate action, Juliana v. United States has helped to mobilize broader public support for climate justice initiatives and policies.

 In conclusion, the burgeoning field of climate change litigation in Kenya holds the potential to drive accountability, promote climate justice and fuel policy change. By leveraging the legal system to address climate related injustices we can pave the way towards a more resilient, equitable and sustainable future for Kenya and beyond.

 By Florence Nyambura