THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION (AMENDMENT) BILL, A Bill for

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1 THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION (AMENDMENT) BILL, 2013 A Bill for AN ACT of Parliament to amend the Environmental Management and Co-ordination Act, 1999 ENACTED by the Parliament of Kenya, as follows:- Short title and Commencement 1. This Act may be cited as the Environmental Management and Co-ordination () Act, to section 2 of Act No 8 of Section 2 of the Environmental Management and Coordination Act herein after referred to as the Principal Act is amended- Act No.19 of 2011 (a) By deleting the expression high court and substituting therefor with the expression Environment and Land Court. (b) By deleting the word Minister and substituting therefor with the expression the Cabinet Secretary. (c) By deleting District Environment Committee and substituting therefor with the expression County Environment Committee and by deleting the word District and substituting therefor with the word County. 1

2 (d) By deleting the definition of exclusive economic zone and replacing therefor with exclusive economic zone has the meaning assigned to it by the United Nations Convention on the Law of the Sea. (e) By deleting the definition of coastal zone and replacing with Coastal zone means the geomorphologic area where the land interacts with the sea comprising terrestrial and marine areas made up of biotic and abiotic components and systems coexisting and interacting with each other and with socio-economic activities. (f) By adding a new definition of entity to mean a general term for any institution, company, corporation, partnership, government agency, university, or any other organization which is distinguished from individuals. (g) By adding, a new definition of strategic environmental assessment to read Strategic environmental assessment means a formal and systematic process, process to analyse and address the environmental effects of policies, plans and programmes and other strategic initiatives. (h) By adding after the meaning of environmental organization to mean a non government organization whose objective is to conserve the environment and natural resources and is duly registered as a community based organization, or a non-governmental organization. (i) By adding a definition of the term Land to read Land has the meaning assigned to it by Article 260 of the Constitution. (j) By deleting the definition of continental shelf and replacing with - continental shelf has the 2

3 meaning assigned to it by the United Nations Convention on the Law of the Sea. (k) By deleting the definition of natural resources and replacing with the definition provided under Article 260 of the Constitution including wildlife, water and landscapes. (l) By adding a definition of the term natural resource agreements to have the meaning assigned by Article 71 of the Constitution. (m) By adding a definition of the term indigenous knowledge to mean indigenous knowledge of communities shall include any traditional knowledge of sources, components, capabilities, practices and uses of, and processes of preparation, use and storage of plant and animal species and their genetic resources. (n) By deleting the expression permanent secretaries and substituting therefor with the expression principal secretaries. (o) By adding a definition of the word Sea to mean one of the larger bodies of salt water, less than an ocean, found on the earth's surface; a body of salt water of second rank, generally forming part of, or connecting with, an ocean or a larger sea; as, the Mediterranean Sea; the Sea of Marmora; the North Sea; the Caribbean Sea. (p) By adding a definition of the term traditional knowledge to mean such knowledge as may be socially and culturally acquired within or without the context of conventional education by Kenyans. (q) By adding a definition of the term voluntary environmental management to mean the principle of encouraging voluntary compliance in conserving the environment and which is a cost-effective and efficient method of attaining compliance with 3

4 environmental regulations and of encouraging innovative conservation practices. (r) By deleting the definition of Wetland and substituting therefor with areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres. to section 3 of Act No.8 of Section 3 of the Principal Act is amended- Article 42 of the Constitution (a) By amending Section 3(1) to read: Every person has the right to a clean and healthy environment and has a duty to safeguard and enhance the environment in accordance with the Constitution and relevant laws. (b) By amending the chapeau of section 3(3) to read If a person alleges that the right to a clean and healthy environment has been, is being or is likely to be, denied, violated, infringed or threatened, in relation to him, another person on behalf of whom he acts, a group or class of persons, members of an association or in relation to public interest, then without prejudice to any other action with respect to the same matter which is lawfully available, the person may apply to the court for redress in addition to any other legal remedies that are available in respect to the same matter and the Court may make such orders, issue such writs or give such directions as it may deem appropriate to - Access to information Article 24 and 35 of Constitution 4

5 (c) By adding a new Section 3 (6) to read: a. Every person has the right to access information relating to the implementation of this Act that is in the possession of the Authority, Lead agencies or any other person except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person. b. A person desiring such information shall apply to the Authority or a Lead Agency and may be granted access on payment of a prescribed fee. c. The right of access to information does not extend to proprietary information which shall be treated as confidential by the Authority or any lead agency. d. A request for information may be denied if: i. The request is manifestly unreasonable or formulated in too general a manner; or; ii. The request concerns material in the course of completion or concerns internal communication of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure. (d) By adding a new Section 3 (7) to read- In interpreting and implementing this Act, all persons shall be guided by inter alia the principles of voluntary environmental management, rule of law, social justice, subsidiarity, public participation, integrity, non-discrimination, 5

6 transparency, equitable sharing of resources, accountability and the principles of public service. a) By adding a new section 3(8) to read: every person shall cooperate with state organs to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. b) By adding a new section 3(9) to read- This Act shall be interpreted in a manner that (i) promotes its purposes, values and principles; (ii) permits the development of the law; and (iii) contributes to sustainable development. to section 4 of Act No 8 of Section 4 of the Principal Act is amended- a) By adding a new Section 4 (1) (B) to read as follows A Vice-Chairperson elected by members of the Council. b) By amending Section 4 (1) (g) to read as follows: the Director-General of the Authority; c) By amending Section 4(1) (h) to read such number of other members, not exceeding one third of the Council s membership, as may from time, be co-opted by the Minister to members of the Council. d) By adding a new Section 4 (1) (i) to read as follows: A person appointed by the Cabinet Secretary in consultation with the Council who shall be Secretary. e) By adding a new sub- section 4(3) to read, appointment under paragraphs (c), (d), (e), (f) and (h) of subsection (1) shall be at different times so 6

7 that the respective expiry dates of their terms of office shall fall at different times. f) By adding a new section 4(6) to read as follows: all appointments made under this section shall be in compliance with the provisions of the Constitution on matters of representation. 5. Section 6 is amended as follows- a) By inserting a new section 6(A) to read - i.there shall be an independent secretariat of the Council. ii. The Secretariat shall be based in Nairobi at the Ministry for the time being in charge of Environment. The secretariat shall provide support to the Council to enable the Council discharge its mandate under the Act. iii. The Secretariat shall comprise of- a. A secretary appointed by the Cabinet Secretary upon recommendation of the Council. b. Any other officers as may from time to time be determined by the Cabinet Secretary. iv. The Secretariat shall co-ordinate all the work of the Council under the guidance of the Council. It shall undertake the following among other things:- a. Provide appropriate background briefing to the Council; b. Prepare reports and disseminating any information deemed relevant to the Council; c. Liaise with research institutions, academia and other stakeholder in order to gather the relevant information necessary for informing the Council; d. Prepare a programme of meetings taking into consideration the issues 7

8 received by the Council and result based management. e. Provide administrative support to the Council. b) By inserting a new sub-section 2 (B) to read The Council may establish sectoral working groups or committees for the better carrying out of its functions. c) By amending sub-section 2 to read The Chairperson shall preside at every meeting at which he is present, but in his absence, the Vice-Chairperson shall preside, and in his absence, the members present shall elect on of their number who shall, with respect to that meeting and the business transacted thereat have all powers of the Chairperson. to section 8 of Act No 8.of Section 8 is amended by creating a new section 8(2) to read as follows: The Authority shall operate at the national level and within counties in accordance with established governance structures. to section 9 of Act No.8 of Section 9(2) is amended- (a) In sub paragraph (m) by the deleting the words occurring after public awareness and substituting therefor with the words public participation; (b) By adding a new sub paragraph (r) to read In consultation with the relevant lead agencies, issue guidelines and prescribe measures to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya; (c) In sub paragraph (n) by inserting the word develop at the beginning of the sub paragraph and inserting the word pollution after degradation; 8

9 (d) In sub paragraph (o) by deleting render and substituting with give and the sub paragraph to end after the word protection ; (e) By deleting subparagraph (p) and substituting therefor with the following- prepare and issue after every four years, a state of the environment report in Kenya and in this regard the Authority may direct any lead agency to prepare and submit a sector report on the environment within a specified time frame. (f) By adding a new sub paragraph(s) to read- encourage voluntary environmental conservation practices and natural resource conservancies, easements, leases, payments for ecosystem services and other such instruments and in this regard, develop guidelines. (g) Section 9 (3) is amended by deleting the words every annual report on the state of the environment prepared under subsection 2(p) before the National Assembly and replacing with before the National Assembly the state of environment report prepared under subsection 2(p). to section 10 of Act No 8 of Section 10 is amended (a) In paragraph 1(c) by deleting the word president and inserting Cabinet Secretary from amongst three persons selected by the Board through a competitive recruitment process. (b) By deleting paragraph 1(d). (c) By amending paragraph 1(e) to read six members, not being public officers, appointed by the Cabinet Secretary. (d) By including a new paragraph 1(g) to read the Attorney General or his representative. (e) By including a new paragraph 1(h) to read the principal secretary in charge of finance or his representative. 9

10 (c) By adding a new sub-section (2) to read where the office of the Director General falls vacant, the Board may, pending the appointment of a substantive Director General, appoint a person to act in that capacity PROVIDED that such appointment shall not exceed a period of six months. to section 12 of Act No 8 of Section 12 is deleted and substituted therefor (a) By adding a new section 12 (1) to read; The Authority may, after giving reasonable notice of its intention to do so, direct any Lead Agency to perform, within such time and in such manner as it shall specify, any of the duties imposed upon the lead agency by or under this Act or any other written law, in the field of the environment. (b) By adding a new section 12 (2) to read; Without prejudice to the foregoing, where a lead agency fails to comply with the Authority s directive issued under sub-section (1) above, the Authority may itself perform or cause to be performed the task in question, and any expense incurred shall be a civil debt immediately recoverable by the Authority from the Lead agency. (c) By adding a new section 12(3) to read; any person who fails to comply with sub-section (1) above shall be guilty of an offence. 10. Section 14 is amended by deleting the word President and substituting it with the following the Cabinet Secretary in consultation with the Salaries and Remuneration Commission. 11. Section 23 is amended (a) In paragraph (2), by deleting four and replacing it with three and deleting the words 10

11 (Corporations) or to an Auditor appointed under this section, (b) By deleting paragraph (3) and substituting therefor with the following the annual accounts of the Authority shall be prepared, audited and reported in accordance with the provisions of Articles 226 and 229 of the Constitution and other enabling legislation. to Section 24 of Act 8 of Section 24 is amended (a) By deleting sub-paragraph 2(a) (b) By deleting the words shall be vested in the Authority and, subject to this Act in the first line of paragraph (3) (c) By adding a new sub-section (4) to read The Trust Fund shall be administered in the manner provided under a Trust Deed, and for purposes of this Act, the Trust Deed shall be deemed to constitute Rules and Regulations that govern the operations and functions of the Fund. to section 29 of Act No.8 of Section 29 of the Principal Act is repealed and a new section inserted to read as follows: 29. (1) The Governor shall by notice in the Gazette, appoint a County Environment Committee of the County. (2) Every County Environment Committee shall consist of (a) The member of the county executive committee in charge of environmental matters who shall be the Chairman; 11

12 (b) An officer of the Authority whose area of jurisdiction falls wholly or partly within the county; (c) A Secretary who shall be appointed by the Governor (d) One representative each of the Ministries responsible for the matters specified in the First Schedule at the county level; (e) two representatives of farmers or pastoralists within the county to be appointed by the Governor; (f) two representatives of the business community operating within the concerned county appointed by the Governor; (g) two representatives of the nongovernmental organisations engaged in environmental management programmes within the county appointed by the Governor in consultation with the National Council of Non- Governmental Organisations; and (h) a representative of every regional development authority whose area of jurisdiction falls wholly or partially within the county. 29(2) Appointments made under this section shall be done after due consultation with relevant and duly constituted organizations that are representative of the nominees in the County. 29(3) Other than appointees under subsection 29(2) (a) (b) and (c) members of the County environment committees shall hold office for a period of three years and shall be eligible for reappointment for a further term. 14. Section 31(1) is amended by deleting the words a committee of the Authority to be known as 12

13 to section 37 of Act no.8 of Section 37 of the Principal Act is repealed and a new section inserted to read as follows: 37(1) The Authority shall, after every five years, and in consultation with the relevant stakeholders, prepare and publish a national environment action plan. 37(2)The Cabinet Secretary shall lay every National Environment Action Plan prepared under subsection (1) before the National Assembly as soon as reasonably practicable after its publication and the National Assembly shall within 21 days of receipt of the Plan consider and take appropriate action. 16. Section 39 is repealed. 17. Section 40 of the Principal Act is repealed and a new section inserted to read as follows: 40(1) Every County Environment Committee shall within one year from the effective date of this section and every five years thereafter, prepare a County environment action plan in respect of the for consideration and adoption by the County Assembly. 40(2) Every County Environment Committee, in its preparation of a county environment plan, and before submitting such plan shall take into consideration every other county environment action plan already adopted with a view to achieving consistency among such plans. 40(3) The Governor shall submit every County Environment Action Plan prepared under subsection (1) to the Authority for incorporation into the national environment action plan proposed under section

14 40(4) The Authority shall consider every County environment Action Plan and either recommend incorporation of such Plan into the national environment action plan or specify changes needed in the Plan. 40(5) The Cabinet Secretary shall, on the recommendation of the Authority, issue guidelines and prescribe measures for the preparation of environmental action plans. 18. Section 41 is amended to read Every county environment action plan prepared under section 40 respectively shall contain provisions dealing with matters contained in section 38 (a), (b), (c), (d), (e), (f), (g), (h), (i), and (j) in relation to their respective county. 19. The Principal Act is amended by inserting two new sections 41A and 41 B just before section 42 to read as follows: 41 A(1)The Authority shall monitor compliance with National and County environmental action plans and may take any steps or make any inquiries it deems fit in order to determine if the Plans are being complied with. 41 A (2) If as a result of any steps taken or inquiry made under paragraph (1) it is of the opinion that an Plan is not substantially being complied with, the Authority shall serve a written notice to the organ concerned, calling on it to take such specified steps as the Authority considers necessary to remedy the failure of compliance. 41 A (3)Within 30 days of the receipt of a notice contemplated in subsection (2), the organ must respond to the notice in writing setting out any (i) objections to the notice; 14

15 (ii) steps that will be taken to remedy failures of compliance: or (iii) other information that the organ of state considers relevant to the notice. 41 A (4) After considering the representations from the organ and any other relevant information, the Authority must within 30 days of receiving a response referred to in paragraph (a) issue a final notice (i) confirming, amending or canceling the notice referred to in subsection (2)(b): (ii) specify steps and a time period within which steps must be taken to remedy the failure of compliance. 41 A (5) The Authority shall keep a record of all environmental action plans and such Plans must be available for inspection by the public. 41 B (1) The purpose of environmental action plans is to (a) co-ordinate and harmonise the environmental policies, plans, programmes and decisions, in order to: i.minimize the duplication of procedures and functions; and promote consistency in the exercise of functions that may affect the environment; ii.secure the protection of the environment across the country as a whole; and prevent unreasonable actions by counties in respect of the environment that are prejudicial to the economic or health interests of other counties or the country as a whole 15

16 20. Section 42 is amended- (a) In paragraph (1) i) By deleting the word Director General and replacing with Authority and inserting the word sea after the word lake. ii) By adding a new sub-paragraph (h) to read any other matter prescribed by the Cabinet Secretary on the advice of the Authority. (b) In paragraph (2) by inserting an area of the before coastal zone. 24 In paragraph (3) by replacing river banks and lake shores with river basins and lake basins. 21. Section 43 is amended By adding a new paragraph (2) to read The Authority shall in consultation with the relevant lead agencies and stakeholders, issue guidelines and prescribe measures for co-management of critical habitats within or around a lake shore, wetland, forest or coastal zone. Such measures shall factor the interests of the local communities resident therein. 22. Section 45 is amended- In paragraph (4) by deleting the word Director General and replacing it with the word Authority. 16

17 to section48 of Act no 8 of Section 48 is amended-. (a) By inserting a new Section 48(2): The Authority shall not take any action, in respect of any forest land or mountain area, which is prejudicial to the sustainable traditional interests of local communities which customarily utilize such forests for sustainable purposes. (b) By adding a new section 48(3) to read: Where a forested area is declared to be a protected area under section 54(1), the Cabinet Secretary may cause to be ascertained, any community, government or individual interests in the land and forests and provide incentives to promote community conservation. (c) By adding a new section 48(4) to read: A person who contravenes any conservation measure prescribed by the Authority, or fails to comply with a lawful conservation directive issued by the Authority or its Environment Committee at the Counties shall be guilty of an offence. to section 50 of Act no 8 of The Principal Act is amended by inserting a new section 49A just before section 50 to read as follows: The Cabinet Secretary shall, on the recommendation of the Authority, make regulations for the elimination of processes and activities that are likely to endanger the environment. Such activities and processes shall include harvesting of sand, tree harvesting, mining, use of agricultural chemicals, agricultural land use 17

18 activities, and transportation of chemical substances, construction and demolition of building structures, underground water abstraction, disposal of human remains and genetically modified organism. to Section 52 of Act no 8 of The chappeau of section 52 is amended to read: The Authority shall in consultation with the relevant lead agencies and in accordance with the Convention on Biological Diversity and related global and regional instruments prescribe measures for the conservation of biological resources in particular- to section 53 of Act no 8 of Article 69 of the Constitution 26. Section 53 is amended- (a) by adding a new Section 53(3) to read as follows The Authority shall, in consultation with relevant lead agencies and stakeholders issue guidelines for the recognition, protection and enhancement of indigenous knowledge and associated practices in the conservation of the environment and natural resources; (b) by adding a new Section 53(4) to read as follows - the Authority shall, in consultation with the Attorney General, relevant lead agencies and stakeholders, initiate legislative measures for recognition and protection of ownership of indigenous seeds & plant varieties, their genetic & diverse characteristics and their use by communities in Kenya; (c) By adding a new Section 53(5) to read as follows The Authority shall, in consultation with relevant Lead Agencies and stakeholders, 18

19 develop guidelines for the protection of indigenous knowledge of biodiversity and genetic resources of communities; (d) By amending Section 53 (2) (a) to read: appropriate arrangements for access to biological resources, genetic resources and ecological services of Kenya by non-citizens including the issue of licences and fees to be paid for that access. 27. Amend section 54(1) by adding the word forests to the cluster of areas to be protected. 28. Section 55 is amended (a) In paragraph (2) by: i. deleting the phrase as soon as practicable upon the commencement of this Act. ii. deleting the first occurrence of the word prepare and replacing with the word conduct and by deleting the second occurrence of the word prepare. (b) In paragraph (3) replace not exceeding every 2 years with not exceeding every 4 years. (c) By deleting paragraph (5). (d) By inserting paragraph (8) to read Where any polluting or hazardous substances are discharged, released or in any other way escape into the Coastal Zone any person responsible for management of the polluting or hazardous substances shall be liable- (i) for any resultant damage; 19

20 (ii) for the cost of any measures reasonably taken after the release or escape for the purpose of preventing, reversing or minimising any damage caused by such discharge, release or escape; and for any damage caused by any measures so taken. a) By inserting a new paragraph (9) to read Where there arises a grave and imminent threat or danger of damage of discharge, release or escape of polluting or hazardous substances into the Coastal Zone, any person responsible for management of the polluting or hazardous substances shall be liable (i) for the cost of any measures reasonably taken for the purpose of preventing, minimising or controlling any such damage; and (ii) for any damage caused by any measures so taken. 29. The Principal Act is amended by adding a new section 56(A) to read, The Authority shall in consultation with relevant lead agencies, issue guidelines and prescribe measures on climate change. to sections 57 and 58 of Act No 8 of The Title of Part VI of the Principal Act is amended to read Integrated Impact Assessments. 20

21 31. The Principal Act is amended by inserting a new section 58 A to read as follows: (i) The Cabinet Secretary on the recommendation of the Authority shall issue guidelines, regulations and prescribe measures for integrated environmental assessments for policies, programmes, plans and processes. (ii) The measures referred to under (1) shall include measures, regulations and guidelines on- a) Strategic Environmental Assessments; b) Environmental Impact Assessments; c) Health Impact Assessments; d) Social-economic Impact Assessments; e) Cultural Impact Assessments. 32. The Principal Act is amended by the inclusion of a new section 58 B (1) (a) to read as follows- All Policies, Plans and Programmes for implementation shall be subject to Strategic Environmental Assessment. (a) For avoidance of doubt the plans, programmes and policies are those that are; (i) subject to preparation and/or adoption by an authority at regional, national, county or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament, Government or if regional, by agreements between the governments or regional authorities, as the case may be. (ii) determined by the Authority as likely to have significant effects on the environment. 21

22 (b) All entities shall undertake or cause to be undertaken the preparation of strategic environmental assessments at their own expense and shall submit such assessments to the Authority for approval. (c) The Authority shall, with in consultation with Lead Agencies and relevant stakeholders prescribe rules and guidelines in respect of Strategic Environmental Assessments. 33. Section 58 is amended as follows: (a) By deleting Section 58(2) and substituting with a new Section 58(2) (a) (b) and (c). The new Section 58(2) (a) shall provide as follows: The proponent of any project specified in category I of the second schedule to the Act shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority. The new section 58(2) (b) shall provide as follows: The proponent of any project specified in category II of the second schedule to the Act shall submit a project report to the Authority prior to being issued with any licence by the Authority. The new Section 58(2) (c) shall provide as follows: The proponent of any project specified in category III of the second schedule to the Act shall submit a project brief to the Authority 22

23 prior to being issued with any licence by the Authority. (b) By repealing Section 58(6) and replacing thereof with a new section 58(6) to read as follows: The Cabinet Secretary shall, in consultation with the Attorney General and the Authority, develop rules for the establishment, operationalization and management of an independent body, to be responsible for the regulation of the practice of Integrated Environmental Impact Assessments, Environmental Impact Assessments and Environmental Audits. (c) By adding a new section 58(10) to read: Where the Authority is minded to approve or reject a project on the basis of a project report alone, the Authority shall: (i) Cause to be published in the Kenya gazette and proposed area of the project and on a board erected at the project site, a summary description of the project, proposed location and its intention to approve it without a full EIA; (ii) Indicate a place where details of the project may be inspected; (iii) Allow the public a period not exceeding thirty days within which to submit written comments for the Authority s consideration; and (iv) Give reasons for its approval or rejection of a project. 23

24 to section 59 of Act No8 of The chapeau of section 59(1) is amended to read: Upon receipt of an environmental impact assessment study report from any proponent under section 58(2), the Authority shall cause to be published in the Gazette, in at least two newspapers circulating in the area or proposed area of the project and over the radio, a notice which shall state. to section 64 of Act No 8 of Section 64 is amended by adding a new section 64 (3) to read as follows: Where the Authority has directed that a fresh environmental impact assessment be carried out or that new information is necessary from the project proponent, any environmental impact assessment licence that has been issued may be cancelled, revoked or suspended by the Authority. to section 67 of Act No 8 of (a) Section 67(1) is amended to read; The Authority may, after the issuance of an environmental impact assessment licence, suspend any environmental impact assessment licence, for such time not exceeding twenty four months where the licensee contravenes the provision of the licence. (b) By adding a new section 67(2) to read The Authority may cancel or revoke an environmental impact assessment licence. to section 68 of Act No 8 of Section 68 is amended- (a) By amending Section 68 (1) to read: The Authority shall cause to be carried out, within a prescribed period, environmental audits of activities likely to have significant effect on the environment. 24

25 (b) By adding a new Section 68(1) (a) to read: An environmental audit report shall be submitted to the Authority, in the prescribed form, giving the prescribed information, and accompanied by a prescribed fee as may be determined and published by the Authority. Section 68(1) of the Principal Act is amended by providing as follows: The Authority or its designated agents shall be responsible for the carrying out environmental audit or control audit of all activities that are likely to have significant effects on the environment. (c) Section 68(3) of the Principal Act has been amended by the deletion of the words make annual reports to the Authority and the inclusion of the word annual after the word accurate in the 4 th sentence. 38. The Principal Act is amended by the inclusion of a new section to read Every lead agency shall establish an environmental unit to implement the provisions of this Act. 39. Section 74 is amended by deleting the word Local Authority and replacing it with the word entities. 40. Section 75 is amended by deleting the Local Authority and replacing it with the word entities. to section 112 0f Act 8 of Section 112 is amended- By adding a new section 112(6) which states as follows- That the principle of voluntary environment management shall be used to encourage land owners to grant an easement on their land and to encourage environmental conservation as a competitive land use option. 42. Section 117 is amended 25

26 (a) (b) In sub-paragraph 3(g) by inserting the words or his designate after the word Director -General In subparagraph 3(i) delete three months and replace with fourteen days from receipt of documents (c) By adding a new sub paragraph 4 to read- The Authority may, on such terms and conditions as it deems fit, appoint or receive such number of police officers as may be necessary to assist in arrest of offenders of environmental crimes. to section 118 Of Act 8 of Section 118 of the Principal Act is amended by In sub-paragraph (1) by deleting the words Attorney General wherever it occurs In sub-paragraph (2), by deleting the words Attorney General wherever it occurs and substitution thereto with the words Director of Public Prosecutions. 44. Section 119 is amended by deleting words on the advice of the Standards Enforcement Review Committee in sub-paragraph (3). to section 124 of Act No 8 of Section 124 is amended- (a) By amending Section 124(1) to read: Where Kenya is a party to an international treaty, convention or agreement, concerning the management of the environment, the Authority in consultation with relevant lead agencies, National Environment Council and the Office of the Attorney General shall:- (i) Develop rules and regulations with regard to the implementation of the provisions of such treaty, convention or agreement in Kenya or for enabling Kenya to perform 26

27 her obligations or exercise her rights under such treaty; (ii) By deleting Section 124 (2); (iii) By adding the following provisions in Section124 on agreements relating to environmental resources to become Section 124A: 124A(1) The Cabinet Secretary shall, within six months from the effective date of this section, in consultation with the Authority and Lead Agencies, develop legislation requiring certain transactions involving environmental resources to be subjected to Parliament for ratification. 124A (2) The acreage, quantity, quality, value, location and dimensions of natural resources whose agreements require Parliamentary approval shall be specified in an Act of Parliament. 124A (3) Transactions requiring Parliament s ratification as required in 124(1) shall include: the grant of a right or concession by or on behalf of any person, including a local community, a county and the national government, to another person, for the exploitation of: wildlife resources and habitats, resources of gazetted forests, biodiversity resources, water resources, communal land, trust land, in the case of a foreign national or company and land of more than three hectares. 124A (4) The Cabinet Secretary may, by notice in the Gazette, specify additional environmental resources whose transactions require Parliament s ratification. 27

28 124A (5) The Cabinet Secretary shall, in consultation with the Authority, the Attorney General s Office and Lead Agencies, develop and issue, by notice in the Gazette, rules of procedure for Parliament s approval of environment-related transactions specified under this section. 124 (6) Any agreements concluded before the promulgation of the Constitution and the coming into force of this Act, be reviewed within a period of two years. to section 125 of Act No.8 of Section 125 is amended- (a) By amending Section 125(1) (a) to read: a Chairperson nominated by the Judicial Service Commission, who shall be a person duly trained, educated and qualified in environmental law and eligible to be appointed as a judge of a superior court. (b) By adding Section 125 (1) (e) ;A panel of members with demonstrated environmental competence in the subject matter of environmental issues including but not limited to land, energy, mining, water, forestry, wildlife and maritime affairs. (c) By adding a new Section 125 (5) to read as follows: The members of the Tribunal shall in their first meeting elect from amongst themselves a person who shall have the training and qualifications in the field of law to be the Vice Chair to the Tribunal. (d) By adding a new Section 125(6) to read: In the absence of the Chairperson, the Vice Chairperson shall serve as Acting 28

29 Chairperson for the duration of absence of the Chairperson and the Acting Chairperson shall perform such functions and exercise such powers as if that person were the Chairperson. (e) (f) In the absence of both the Chairperson and the vice Chairperson, the members of the Tribunal may nominate from among themselves a person to act as the Chairperson which person shall have the training and qualifications in the field of law and such person while acting as the Chairperson shall perform such functions and exercise such powers as if that person were the Chair. The Chairperson may designate the Vice Chair and two other members to constitute a separate sitting of the tribunal. to section 126 of Act No 8 of Section 126 is amended by adding a new section 126(6) to read: Any person who is a party to proceedings before the Tribunal may appear in person or be represented by an Advocate before the Tribunal. to section 127 of Act No 8 of Section 127 is amended- (a) By changing the last paragraph to read: Commits an offence under this Act as a sentence on it own. (b) by adding a new Section 127(3) to read: It shall be an offence for any person to engage in acts or make omissions amounting to contempt of the Tribunal and the Tribunal may 29

30 punish such person for contempt in accordance with the provisions of this Act. to section 128 of Act No.8 of Section 128 is amended by changing Section 128(1) (a) to read: Subject to clause 51(e), the quorum for hearing or determining any cause or matter before the Tribunal under this Act shall be three members. to section 129 of Act No.8 of Section 129 is amended- (a) By adding the following to section 129(1)(a); the grant of a licence at the beginning of the sentence. Any person who is aggrieved by: the grant of a licence or permit or a refusal to grant a licence or permit or the transfer of a licence or permit under this Act or regulations made there under. (b) By amending Section 129 (2) to read: Unless otherwise expressly provided for in this Act, where this Act empowers the Director General, the Authority, Committees of the Authority or its agents to make decisions, such decisions including decisions on matters specified in sub-section (1) above, may be subject to an appeal to the Tribunal in accordance with such procedures as may be established by the Tribunal for that purpose. (c) By adding to Section 129(3) (c) the following; make such other order, including orders to enhance the principles of sustainable development, and an order for costs, as it may deem just. 30

31 (d) By amending section 129(4) to read: Upon any appeal to the Tribunal under this section, any matter or activity which is the subject of an appeal before the Tribunal shall stop until the appeal is heard and finally determined. 51. The Principal Act is amended by adding a new section 134 A to read there shall be such other staff of the tribunal as may be necessary for the proper and expedient performance of its functions. to section 134 of Act No.8 of Section 134 is amended - (a) By adding a new sub-section 134 (1) to read: The remuneration and allowances referred to in subsection (1) together with any other expenses incurred by the Tribunal in the execution of its functions under this Act shall be paid out of monies voted by Parliament for that purpose. (b) By adding a new Sub-section 134 (2); Remunerations and allowances shall not be varied adversely to the detriment of Tribunal members during their term of office. to section 136 of Act No.8 of Section 136 of the Principal Act is repealed and a new section entitled as enforcement of orders of the Tribunal created to read- The orders of the Tribunal shall be enforced through the office of the Registrar of the Environment and Land Court and in the manner 31

32 provided for executing the decrees of the Environment and Land Court. to section 137 of Act 8 of Section 137 of the Principal Act is amended- (a) By adding a new subsection (1) to delete the sentencing provided and replacing with not less than one (1) year and or a fine of not less than two million. A (b) By adding a new section 137(2) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of the Principal Act or Regulations made thereunder shall be paid into the revenues of the Authority and the other half shall be paid into the general revenues of Kenya. 55. Section 138 of the Principal Act is amended- (a) By deleting the reference to section 58 of the Act so as to generally refer to the Act. (b) By adding a new subsection (1) to delete the sentencing provided and replacing with not less thanone year (1) year and a fine of not less than two million. (c) By adding a new section 138(2) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of the Principal Act or Regulations made thereunder shall be paid into the revenues of the Authority and the other half shall be paid into the general revenues of Kenya. 32

33 56. Section 139 of the Principal Act is amended- (a) By adding a new subsection (1) to delete the sentencing provided and replacing with not less than one (1) year and a fine of not less than two million. (b) By adding a new section 139(2) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of the Principal Act or Regulations made thereunder shall be paid into the revenues of the Authority and the other half shall be paid into the general revenues of Kenya. 57. Section 140 of the Principal Act is amended- (a) By adding a new subsection (1) to delete the sentencing provided and replacing with not less than one (1) year and a fine of not less than two million. (b) By adding a new section 140(2) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of the Principal Act or Regulations made thereunder shall be paid into the revenues of the Authority and the other half shall be paid into the general revenues of Kenya. 58. Section 141 of the Principal Act is amended- (a) By adding a new paragraph (h) to read Any person who releases or causes to be released into the coastal zone any polluting or hazardous substances contrary to the provisions of this Act shall be guilty of an offence and liable upon conviction to a fine of not less than two million shillings or to imprisonment for a period not less than one year or to both such fine and imprisonment. 33

34 (b) By adding a new paragraph (i) to read In addition to any sentence that the Court may impose upon a polluter under subsection (a) of this Section, the Court may direct that person to:- (i) pay the full cost of cleaning up the polluted environment and of removing the pollution; (ii) clean up the polluted environment and remove the effects of pollution to the satisfaction of the Authority. (c) By adding a new paragraph (j) to read Without prejudice to the provisions of subsections (a) and (b) of this paragraph, the court may direct the polluter to meet the cost of the pollution to any third parties through adequate compensation, restoration or restitution. (d) By amending subsection (1) to delete the sentencing provided and replacing with not less than one (1) year and a fine of not less than two million. (e) By adding a new section 141(2) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of the Principal Act or Regulations made thereunder shall be paid into the revenues of the Authority and the other half shall be paid into the general revenues of Kenya. 59. Section 142 of the Principal Act is amended- (a) By adding a new subsection (1) to delete the sentencing provided and replacing with not less than one (1) year and a fine of not less than two million. 34

35 (b) By adding a new section 142(2) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of the Principal Act or Regulations made thereunder shall be paid into the revenues of the Authority and the other half shall be paid into the general revenues of Kenya. 60. Section 143 of the Principal Act is amended- (a) By amending the marginal note to the section to include orders of the Tribunal. (b) By adding a new section 143(1) to read ; Failure by a lead agency to comply with a directive of the Authority issued under section 12 of the Principal Act shall constitute an offence. (c) By adding a new section 143(2) to read- It shall be an offence to defy any such orders as shall be issued by the Tribunal. (d) By adding a new subsection (3) to delete the sentencing provided and replacing with not less than one (1) year and a fine of not less than two million. (e) By adding a new section 143(3) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of the Principal Act or Regulations made thereunder shall be paid into the revenues of the Authority and the other half shall be paid into the general revenues of Kenya. 61. Section 144 of the Principal Act is amended:- (a) By deleting the phrase who commits an offence against and replacing with the word contravenes. (b) By adding a new subsection (1) to delete the 35

36 sentencing provided and replacing with not less than one (1) year and a fine of not less than two million. (c) By adding a new sub section (2) to read as follows: One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of the Principal Act or Regulations made thereunder shall be paid into the revenues of the Authority and the other half shall be paid into the general revenues of Kenya. (d) By renumbering the section 144 to read section 146 and by renumbering section 146 to read section Section 146 of the Principal Act is amended by renumbering the section to read section 144 and by renumbering section 144 to read section The Principal Act is amended:- (a) By inserting Section 147 A (1) to read- Subject to section 147, a County may, on the recommendation of the Authority and upon consultation with the relevant lead agencies and stakeholders, make legislation in respect of all such matters as are necessary or desirable that are required or permitted by this Act and more particularly and without prejudice to the foregoing:- i. For controlling any of the things which it is empowered by or under this Act to do, establish, maintain or carry on; and ii. For controlling or regulating any of the things which and any of the persons whom, it is empowered by or under this Act to control or regulate; and iii. For prohibiting or preventing by prohibition any of the things which it is empowered by or under this Act to prohibit; and 36

37 iv. For requiring or compelling the doing of any of the things which it is empowered by or under this Act to require or compel. (b) By inserting Section 147 A (2) to read Nothing in this Act shall be deemed to empower a county to make legislation overriding or derogating from the provisions of this Act including regulations made under this Act. to section 148 of Act No.8 of Section 148 is amended so as to read as follows- Section 148: Any written law by National and County governments relating to the management of the environment shall have effect, subject to modifications as may be necessary to give effect to this Act, and where the provisions of any such law conflict with any provisions of this Act, the provisions of this Act shall prevail. 37

38 Second Schedule CATEGORY I. Projects requiring submission of an Environmental Impact Assessment Study report 1. Changes in Land Use including a) Major changes in land use. b) Large scale resettlement schemes. 2. Urban Development Including a) Designation of new townships. b) Establishment of industrial estates c) Establishment of new housing developments exceeding 30 housing units. d) Establishment or expansion of recreational areas in National Parks, National reserves, Forest and nature reserves and any areas designated as environmentally sensitive. e) Shopping centres and complexes. 3. Transportation a) All paved roads. b) Construction of new roads in environmentally sensitive areas. c) Railway lines. d) Airports and airfields. e) Oil and gas pipeline. f) Water transport. g) Construction of tunnels. 4. Dams, Rivers and water resources including:- 38

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