Présentations & compte-rendus

1st Climate Law Seminar on "The Kenyan Climate Change Act Nr. 11 of 2016: Leading Africa on the way to COP 23?"

de Marie Stella Tchuente, Prof. Dr. Oliver C. Ruppel
During the Seminar, the historical development of the law and policy surrounding climate change was addressed as well as emerging issues in this new area of the law.

On Friday 29th September 2017 Strathmore Law School and the Konrad Adenauer Stiftung Climate Policy and Energy Security Programme for sub-Saharan Africa (CLESAP) hosted a joint workshop on the new Kenyan Climate Change Act. This workshop brought together a group of experts representing various stakeholders which included the academic field, the legal profession (Advocates and Magistrates), civil society and international organizations. The workshop was important in that the historical development of the law and policy surrounding climate change was addressed as well as emerging issues in this new area of the law. The discussion panel was comprised of Professor Oliver Ruppel (KAS), Alexander Juras (UN Environment), Professor Patricia Kameri-Mbote (University of Nairobi, Law School) and Ms. Joan Onyango (Law Reform Commission of Kenya) who represented Joash Ndache who was unable to attend the workshop.

In his opening, Professor Ruppel gave a descriptive background on the growth and development of law and policy with respect to climate change. During his presentation he made reference to landmark international conventions and agreements and litigation efforts, which showed the rapid development of this new area of the law. He emphasized provisions of the Paris Agreement, which was adopted in 2015. It is now crucial, that national legal mechanisms need to give effect to international climate obligations, where the Kenyan Climate Change Act 2016 as being the first of its kind in Africa can contribute to more responsibility and accountability of states and other stakeholders including the citizenry.

Alexander Juras, who is the Chief of the Civil Society Unit in the United Nations Environment Programme elaborated in his intervention on the role of non-state actors in combating climate change, especially emphasizing the three ideal levels of engagement of non-state actors, which include agenda setting, decision-making/shaping and implementation. He provided an overview on latest developments at the United Nations Environment Assembly (UNEA), which is the highest-level UN decision-making body on the environment.

Professor Patricia Kameri-Mbote gave a presentation which focused on gender and climate change. During her presentation she highlighted the benefits of the Paris Agreement 2015 as well as explaining that in certain instances it can be argued that climate change in fact exacerbates inequality. She urged the audience to consider the role of both genders in tackling climate change, with particular emphasis on the African continent as well as indicating that the Climate Change Act 2016 was a great first step in encouraging protection of the environment in Kenya.

Ms. Joan Onyango who was representing the Kenya Law Reform Commission outlined in her presentation the salient points captured by the Kenyan Climate Change Act 2016. She mentioned the Act’s main objectives to seek to achieve low carbon development. The Act also obliges the State to formulate a National Climate Change Action Plan . Secondly, the piece of legislation establishes the National Climate Change Council . The members of this Council are to include the President (who is the Chair), the Vice-President (who is the Vice-Chair), the Cabinet Secretaries for the National Treasury, economic planning, energy, the Chairperson of the Council of Governors, a representative of the private sector, a representative of the civil society, a representative of the marginalized community and a representative from academia . This provision sparked debate in the audience with suggestions from members of the legal profession that there should be a designated Cabinet Secretary for Climate Change. There was a further suggestion that any legal instrument should be preceded by a Policy instead of an Act of Parliament coming before the formulation of a Policy.

In addition, the panelists all pointed out that climate change is about rights and responsibilities. As such the new Act permits the State to impose obligations on the public sector and the private sector . Moreover, it was pointed out that Climate Change, under the Act, should be incorporated into various disciplines and subjects of the national education curricula ‘at all levels’ . In conclusion, the workshop proved to be very productive albeit controversial debates emerged. What transpired is the utmost significance of domestic legislation to give effect to international agreements. With particular emphasis on the Kenyan Climate Change Act 2016 emerging trends and challenges have been highlighted, reflecting legal and political dynamics pertinent to climate change in Africa and the potential for more effective implementation in other national jurisdictions of the continent.