REVIEW OF THE CLIMATE CHANGE ACT, 2016

By Ian Njathi (LL.B., LLM)

1. The Climate Change Act of 2016 was enacted to provide for a regulatory framework that catered for an enhanced response to climate change in addition to establishing mechanisms and measures to achieve low carbon climate development.

Goals and Objectives of the Act

2. In order to achieve its primary goals and objectives, the provisions of the Act were enacted to be applied in all sectors of the economy by the national and county governments so as to, firstly, mainstream climate change responses into development planning, decision making and implementation as well as reinforcing climate change disaster risk reduction into strategies and actions for both public and private entities.

3. Secondly, the Act was enacted to build resilience and enhance an adaptive capacity as to the impacts of climate change through the formulation of programmes and plans that primarily focus on achieving enhanced resilience and adaptive capacity of human and ecological systems to the impacts of climate change.

4. Thirdly, the Act was to provide incentives and obligations for the private sector to contribute in achieving low carbon climate resilient development as well as to promote low carbon emitting technologies, improve efficiency and reduce emissions intensity by facilitating approaches and development of technologies that support low carbon, and climate resilient development.

5. Fourthly, the provisions of the Act were enacted to facilitate capacity development for public participation in climate change responses through awareness creation, consultation, representation and access to information in addition to mainstreaming intergenerational and gender equity in all aspects of climate change responses and mainstreaming the principle of sustainable development into the planning and decision making on climate change response.

6. Furthermore, the provisions were established to mobilize and transparently manage public and other financial resources for climate change response as well as to provide for mechanisms and facilitate climate change research and development, training and capacity building.

7. Finally, the provisions of the Act were to integrate climate change into the exercise of power and functions of all levels of governance, and to enhance cooperative climate change governance between the national government and county governments.

Guiding principles and values

8. The Act follows a set of guiding values and principles in the enactment, application and implementation of climate change policies and discharge of functions by the relevant government agencies.

9. The guiding values and principles include; national values and principles of governance set out in Article 10 as well as the principles of public service provided under Article 232 of the Constitution of Kenya.

10. Additionally, the Act is guided by Article 42 and 69 of the Constitution which provides for the right to a clean and healthy environment including the right to have the environment protected for the benefit of present and future generations through legislative and other measures as well as the states obligation to ensure that the environment is well conserved, protected, managed and the natural resources sustainably and adequately utilized.

11. Furthermore, the Climate Change Act should ensure the promotion of sustainable development in an ever-changing climatic conditions occasioned by global warming among other climate change impacts that continue to affect the country.

12. The implementation of the Act should also ensure equity and social inclusion in allocation of effort, costs and benefits to cater for special needs, vulnerabilities, capabilities, disparities and responsibilities in order to promote the principle equitable fairness and justice.

13. Moreover, the Climate Change Act should ensure that there is integrity and transparency in every process touching on addressing climate change and in so doing should promote public participation and consultation with the relevant stake holders.

Institutional Framework

i) National Climate Change Council

14. The Act establishes an unincorporated body, the National Climate Change Council which is chaired by the President of the Republic of Kenya and also comprises of the Deputy President, the Cabinet Secretary in charge of the environment and climate change affairs and the Directorate, serving as the secretariat, established under the Act.

15. This is in addition to Cabinet Secretaries in charge of national treasury and economic planning, chairman of the Council of Governors and presidential appointees such as a representative of the private sector, representative of marginalized community and a representative of civil society.

16. The Council is tasked with the responsibility of providing an overarching national climate change coordination mechanism by ensuring that the legislative and policy making functions of the national and county governments remain mainstream and that the advice given to those bodies ensure that the measures proposed to counter climate change are geared towards positive climate change response and attaining low carbon, climate change resilient development.

17. Additionally, the council is responsible for approving a national gender and inter-generational responsive public education awareness strategy and implementation programme in addition to providing policy direction on research and training on climate change including on the collation and dissemination of information relating to climate change to the national and county governments, the public and other stakeholders.

18. The Council is in charge of providing guidance on review, amendment and harmonization of sectoral laws and policies that are related or impact on climate change in order to achieve the objectives laid down under the Climate Change Act of 2016.

19. Additionally, they are required to administer the Climate Change Fund established under the Act for the purpose of achieving the objectives of the Act in order to promote low carbon emitting technologies, improve efficiency and reduce emissions intensity by facilitating approaches and development of technologies that support low carbon, climate resilient development and set the targets for the regulation of greenhouse gas emissions.

ii) Cabinet Secretary Climate Change Response Function

20. The Cabinet Secretary in charge of environment plays an active role in exercising control and providing guidance over climate change governance and implementation of the Act and as such some of the functions of the Cabinet Secretary with regards to promoting climate change governance include, formulating and periodically reviewing the climate change policy, strategy and the National Climate Change Action Plan and submitting them to the Council for approval.

21. Secondly, the Cabinet Secretary coordinates negotiations on climate change related issues in consultation with the Cabinet Secretary responsible for foreign affairs and is also in charge of formulating a national gender and intergenerational responsive public education and awareness strategy on climate change and implementation programme.

22. The Cabinet Secretary also provides, through the Directorate, technical assistance on climate change actions and responses to county governments based on mutual agreement and needs cited by the county governments.

23. Further to this, the Cabinet Secretary reports biannually to Parliament on the status of implementation of international and national obligations in response to climate change and progress towards attainment of low carbon climate resilient development.

iii) Climate Change Directorate

24. The Climate Change Directorate is established under the Climate Change Act and is the lead agency of the government on national climate change plans and actions to deliver operational coordination.

25. Additionally, they are mandated to assist the Cabinet Secretary in the discharge of his/her duties and functions.

26. The Directorate is led by a Director of Climate change who is appointed on a competitive basis by the Public Service Commission and is responsible for the performance of liabilities and functions including advising the Cabinet Secretary on matters relating to legislation, policy, co-ordination, regulation and monitoring climate change governance.

27. The Directorate performs a variety of functions geared towards ensuring proper climate change governance, monitoring and low carbon emitting development and technologies.

28. For instance, the directorate is tasked with providing analytical support on climate change to the various sector ministries, agencies and county governments as well as establishing and managing a national registry for appropriate mitigation actions by public and private entities.

29. The Directorate also serves as the national knowledge and information management centre for collating, verifying, refining, and disseminating knowledge and information on climate change in addition to collaborating with other agencies at the national and county government levels to identify low carbon development strategies and coordinate related measurement, reporting and verification of climate change data.

30. The Directorate with other agencies at the national and county government level also collaborate to develop strategies and coordinate actions for building resilience to climate change and enhancing adaptive capacity; optimize the country’s opportunities to mobilize climate finance.

31. The Directorate also performs a coordination function where they are required to coordinate adherence to the county’s international obligations including associated reporting requirements and the implementation of the gender and inter-generational climate change education, consultation and learning at the national and county government levels.

32. Furthermore, the Directorate is required to provide, on instruction of the Cabinet Secretary, technical assistance based on needs identified by county governments.

Climate Change Measures and Actions

33. The Cabinet Secretary in charge of the environment is tasked, after conducting public participation, to formulate a National Climate Change Action Plan which shall then be presented to the Council for approval.

34. In preparing the Action Plan, the Cabinet Secretary is informed by scientific knowledge about climate change, technology and technological innovations relevant to climate change, economic circumstances, particularly those that are likely to impact the economy, the competitiveness of particular sectors of the economy, small and medium-size enterprises, employment opportunities and the socio-economic well-being of any segment or part of the population

35. Additionally, the Cabinet Secretary is informed by the fiscal circumstances, especially those with a likelihood of impacting strategies and policies on the marginalised and disadvantaged communities as well as social circumstances such as those likely to impact strategies and policies on biodiversity and ecosystem services.

36. Moreover, the Cabinet Secretary is guided by international law and policy relating to climate change and indigenous knowledge related to climate change adaptation and mitigation.

i) The National Climate Change Action Plan

37. The National Climate Change Action Plan prescribes measures and mechanisms to guide the country towards the achievement of low carbon, climate resilient, sustainable development as well as set out actions for mainstreaming climate change responses into sector functions.

38. The Action Plan also provides for mechanisms and plans for adaptation to climate change and mitigation against climate change as well as to specifically identify all actions required as enablers to climate change response.

39. Additionally, the Action Plan provides for strategies to mainstream climate change disaster risk reduction actions in development programmes and sets out a structure for public awareness and engagement in climate change response and disaster reduction.in addition to reviewing and determining mechanisms for climate change knowledge management and access to information.

40. Furthermore, the Action Plan serves to identify strategic areas of national infrastructure requiring climate proofing as well outlining effective proposals to enhance energy conservation, efficiency and use of renewable energy in industrial, commercial, transport, domestic and other uses.

41. Moreover, the National Climate Change Action Plan makes suggestions on how to strengthen approaches to climate change research and development training and technology transfer and how best to review and recommend duties of public and private bodies on climate change.

42. In addition to this, the Action Plan also reviews levels and trends of greenhouse gas emissions and identifies outputs, overall budget estimates and timeframes to realize expected results on combating climate change.

43. The National Climate Change Action Plan is binding on the Cabinet Secretary, all public bodies, and any person or entity engaged in climate change governance and administration.

44. A Notice should be published in the Gazette notifying the public on the approval of the Action Plan and the Directorate is required to review the implementation of the Action Plan biennially and report to the Council. Furthermore, the Cabinet Secretary is mandated to review and update the Action Plan every five years.

ii) Government Climate Change Policies

45. The government may come up with policies and action plans tackling climate change and such policies should be tabled in Parliament in the shortest time possible by the Council in consultation with the Cabinet Secretary.

46. The Policy presented to Parliament should set out the objectives of the policy in relation to adaptation and mitigation against climate change, the proposals for meeting those objectives, the arrangements for involving stakeholders and engaging the public in the course of meeting the objectives, the period within which the proposals and policies will be implemented and measures for addressing the risks identified in the policies.

iii) Duties Relating to Climate Change

Public sector duties

47. The Council upon the recommendation of Cabinet Secretary and in consultation with relevant Cabinet Secretaries in other fields and the County Governments, may impose duties related to climate change on any public entity who are in turn required to act in a manner that is best suited to achieve the implementation of the provisions of the Act and the National Climate Change Action Plan.

48. It is imperative that duties imposed on government agencies and state departments be preceded by public awareness drives and public consultations. Some of the duties that may be imposed on state departments and national government public entities include the integration of the climate change action plan into sectoral strategies, action plans and other implementation projections for the assigned policy and legislative functions.

49. Secondly, they are required to report on sectoral greenhouse gas emissions for the national inventory as well as to regularly monitor and review the performance of the integrated climate change measures through sectoral mandates.

50. Additionally, the public sector is called upon to designate a unit with adequate staff and financial resources and appoint a senior officer as head of the unit to coordinate the mainstreaming of the climate change action plan and other climate change statutory functions and mandates into sectoral strategies for implementation.

51. Further to this, the public entities are required to put in place and implement mechanisms for sustainability in performance of sectoral mandates in addition to reporting annually to the Council on the status and progress of performance and implementation of all assigned climate change duties and functions.

52. The State Department is mandated to undertake investigations within 30 days where it receives evaluation reports from statutory public bodies, which in its view, indicate unsatisfactory performance. Following this, the State Department will report the findings to the Council.

53. Additionally, the Council is tasked with publishing publicly and submitting the evaluation report on performance of climate change duties by public entities to the National Assembly for review, discussion and debate within three months at the end of every financial year.

54. The National Assembly will then provide recommendations and proposed actions to the Council, Cabinet Secretary, Directorate, State Department and/or Statutory public entity within six months of receipt of the evaluation report.

Private Sector duties

55. The Council in consultation with the Cabinet Secretary and other relevant State Departments, may impose climate change obligations on private entities including those constituted under the Public Benefit Organisations Act of 2013(deals with volunteers and volunteering entities). In so doing, the Council will make regulations governing the nature and procedure of monitoring performance including authority to monitor and evaluate compliance of private entities.

56. The Council in exercising its powers may by notice in the Gazette, require a private entity subjected to a climate change obligation to prepare reports on the status of its performance of the climate change duties and prescribe the period for reporting.

57. Additionally, the Council may require that the private entity that has failed to satisfactorily perform its climate change obligation to prepare a report within a specified time on the actions it has taken, is taking or intends to take in order to honour its climate change obligations.

Monitoring and Compliance

58. The National Environmental Management Authority (NEMA) plays a critical role in ensuring that the provisions set out in the Climate Change Act are adhered to and implemented and as such monitors the compliance of each and every sectors performance of obligations.

59. NEMA on behalf of the Council, is tasked with monitoring, investigating and reporting on whether public and private entities are in compliance with the assigned climate change duties in addition to regulating, enforcing and monitoring compliance on levels of greenhouse gas emissions as set by the Council under the Climate Change Act.

60. The Act grants NEMA the powers necessary to monitor and investigate, including the power to enter the premise of any private entity and make an enquiry. Furthermore, NEMA may, at a reasonable hour and for the purpose of monitoring and conducting investigations, enter any private land or premise to make an inspection.

61. The Authority is required to report to the Council on the performance of functions under this Act annually, following this the Council will include the report as part of the main report tabled at the National Assembly.

Offences under monitoring compliance

62. The Act makes provision for offences relating to obstruction of NEMA from performing its mandate. The offences include, where a person fails to give or refuses to give access to the Authority or its authorised staff who has requested access to any land; hinders the execution by the Authority of the duties under the Act or any other law; fails or refuses to give information that the person may lawfully be required to give to the Authority or gives false or misleading information to the Authority.

63. Where a person commits any of the above named offences, they are liable upon conviction to a fine not exceeding one million shillings or to imprisonment not exceeding five years or both.

iv) Climate Change Strategies

64. The Council on recommendation of the Cabinet Secretary is required to identify priority areas and actions geared towards disaster risk and climate change reduction strategies and additionally advise the president to call for the incorporation of the priority strategies and actions to the functions and budget of national and county government bodies and agencies.

65. Furthermore, the Council is tasked with developing a specific public safety component for disaster risk reduction for incorporation by all levels of government to prevent climate change induced disasters and manage emergency responses.
County Government’s Role in Addressing Climate Change

66. County governments play a crucial role in addressing climate change issue at the devolved level. It is for this reason that the Act recognises the important role it plays and as such calls for mainstreaming the climate change action s into county government functions.

67. The Act provides that county governments are obligated, in the performance of their functions, to integrate and mainstream climate change actions, interventions and duties set out in the Act and National Climate Change Action Plan into various sectors of its jurisdiction.

68. Secondly, county governments are required, in the development, updating and approval of their various County Integrated Development Plans and the County Sectoral Plans mainstream the implementation of the National Climate Change Action Plan, taking into account national and county priorities.

69. Further to mainstreaming climate change actions into county government functions, County Governors are tasked with designating a County Executive Committee Member to coordinate climate change affairs.

70. Additionally, county governments may enact legislation that further defines implementation of its obligations under the Climate Change Act or any other climate change functions relevant to the county.

71. Furthermore, county governments, through the designated County Executive Committee Member, must submit a report on progress of implementation of climate change actions to the County Assembly for review and debate, and a copy of the report forwarded to the Directorate for information purposes at the end of every financial year.

Integration, Reporting and Enforcement of Climate Change

72. The Act provides that NEMA is responsible for integrating climate change risk and vulnerability assessment in all forms of assessment such as Environmental Impact Assessments and Audits.

73. It is for this reason that the Authority should work with the relevant agencies for technical advice in order to ensure that climate change impacts are addressed and mitigation efforts provided for.

74. Educating the public on climate change is a crucial strategy in addressing climate change concerns and patterns. It is for this reason that the Kenya Institute of Curriculum Development have been tasked with the responsibility of integrating climate change into various disciplines and subjects of the national educational curricula at all levels following the advice of the Council. The same applies to all public agencies tasked with regulating and running university education and tertiary institutions

75. The Cabinet Secretary in charge of climate change is responsible for making the guidelines and regulations for reporting and verification of climate change actions. This is with a view to ensuring that appropriate measures are taken to combat climate change and that both public and private entities obligated to perform climate change actions carry out their intended functions.

76. Enforcement of climate change action is necessary in order to ensure that the requisite measures are applied in addressing issues brought about by climate change. It is for this reason that any person (complainant) may, pursuant to Article

70 of the Constitution, apply to the Environment and Land Court alleging that another party has acted in a manner that has or is likely to adversely affect efforts towards mitigation and adaptation to the effects of climate change.

77. Following this, the Court may make an order or give directions that it considers appropriate to prevent, stop or discontinue an act or omission that is harmful to the environment; compel a public officer to take measures to prevent or discontinue an act or omission that is harmful to the environment; or provide compensation to a victim of a violation relating to climate change duties.

78. In such a scenario the complainant does not have to have incurred any loss or suffered any injury to bring the matter to the courts attention.

Public Participation

79. Public participation is an important aspect in dealing with climate change issues. It allows for individual views on measures to be taken that are effective and efficient in combating climate change and ensuring low carbon development in the country. Furthermore, it is a tenet provided for under the Constitution of Kenya 2010.

80. The Climate Change Act provides for public participation whereby it states that public entities at each government level must at all times when preparing strategies, laws and policies regarding climate change, undertake public awareness drives and conduct public consultations. Additionally, the Act calls for the public consultations to be held in such a manner that the publics views make an impact in decision making.

81. The Council and Directorate are mandated to publish and publicize any important information and as such any person may request any information from the Council or Directorate by addressing the Secretary of the Council or Directorate. However, the information sought may be subject to a prescribed fee in instances where the Council or Directorate have incurred a cost in obtaining the information or subject to confidentiality requirements of the Council or Directorate.

82. The Act in line with provisions of Article 35 of the Constitution with regards to public participation gives the Council or Directorate the power to decline divulging information where it is of the view that the request is unreasonable, the information requested is at a deliberative stage within the Council or Directorate, the prescribed fee has not been paid or the applicant fails to satisfy any confidentiality requirements of the Council or Directorate.

Climate Change Fund

83. Addressing the issues brought about by climate change and mitigating the impacts cost money and it is for this reason that the Climate Change Act established the Climate Change Fund (CCF). The CCF which is vested in the National treasury is the financing mechanism for priority climate change actions and interventions approved by the Council.

84. The source of funds for the CCF includes monies appropriated from the Consolidated Fund by an Act of Parliament, monies received by the Fund in the form of donations, endowments, grants and gifts and monies paid under any Act payable to the Fund.

85. The CCF is administered by the Council and the Principal Secretary in charge of climate change.

86. The function of the Council administering the fund will be responsible for determining the composition of the Fund, setting strategic directions for applications of the CCF as well as approving request for funds and making fund allocation decisions.

87. They will also be responsible for defining the eligibility criteria for the CCF to finance climate change actions and enhance achievement of low carbon climate resilient development as well as setting out procedures for disbursement, recovery and repayment of loans including interest and ensuring that there is gender and intergenerational equity in access to monies from the Fund.

88. The Council will also be in charge of setting out procedures, criteria and eligibility for funding research institutions, private, public, civil society research, development and investment ventures that enhance low carbon climate resilient development.

89. Furthermore, the Council is tasked with setting out other procedures and requirements for effective and transparent administration of the CCF including tracking and accounting for climate change finance and monitoring and evaluation procedures through regulations which shall be subjected to public participation and approval by the National Assembly.

90. The Principle Secretary also plays a crucial role in the administration of the CCF. They are responsible for providing mechanisms for daily operations of the Fund, processing financing applications from eligible applicants for approval by the Council, ensuring quality assurance in execution of the mandate of the Fund, undertaking resource mobilization for various sources and providing technical assistance to the private sector, civil society and public entities.

91. The CCF will have various applications among them will be, providing grants for climate change research and innovation, in the fields of industrial research, technological research, policy formulation, scientific research and academic research.

92. The CCF will also be used to provide grants and loans to business, industry, civil society, academia and other stakeholders for development of innovative actions that benefit climate change responses in Kenya. Additionally, the Fund will be crucial in the finance, through grants and loans of the implementation of climate change adaptation and mitigation actions as well as providing technical assistance to county governments.

Incentives for the promotion of climate change initiatives

93. In a bid to ensure that all sectors, be it public or private sectors, contribute to climate change reduction actions and measures, the Cabinet Secretary in charge of climate change, upon consultation with the Cabinet Secretary in charge of finance, may grant to any person incentives for the advancement of the elimination of and mitigation against climate change and the effects of climate change.

94. In order to qualify for the grant, the person must be one who encourages and puts in place measures for the elimination and/or mitigation of climate change including reduction of greenhouse emissions and use of renewable energy.

95. The person qualifying for the grant may also be involved in the conduct of accredited training in programmes that are aimed at eliminating climate change.

96. In order to properly administer the incentives, the Cabinet Secretary may establish regulations setting out the nature of the incentives, the conditions for the grant and the withdrawal of such incentives and as such must take into account international standards and best practice for awarding such incentives.

Offences and Penalties

97. The Act provides for various offences and penalties relating to climate change actions. For instance where a person without lawful excuse ignores or fails to obey any instruction issued by any member, officer or agent of the Council in exercise of their powers or their legal functions, commits an offence and is liable, on conviction, to a fine not exceeding ten million shillings or to imprisonment for a period not exceeding five years, or to both.

98. Additionally, the Act makes it an offence for any person who wilfully obstructs any member of the Council or officer or agent of the Council in the discharge of their lawful duties, misrepresents or knowingly submits false or misleading information preventing any member, officer or agent of the Council in exercising their powers or their legal functions, commits an offence and is liable, on conviction, to a fine not exceeding ten million shillings or to imprisonment for a period not exceeding five years, or to both.

99. The offences and penalties provided under the Act also applies to body corporates and partnerships where the directors or partners had prior knowledge of the commission of the offence and did not exercise due diligence, efficiency and economy to ensure compliance with the Act.

Conclusion

100. The Act is guided by a well laid out and thought out goals and objectives and follows proper guidelines and as such offers a good foundation for addressing climate change impacts and provides a roadmap for ensuring that Kenya as a country achieves low carbon and climate change resilient development.

101. Additionally, the Act outlines the various roles and duties of specialized bodies in ensuring that the effects and impacts of climate change are addressed and mitigation measures are in place.

102. Furthermore, the Act provides for a Climate Change Fund which will go a long way in providing the much needed resources to address climate change issues.

103. The strategies that have been put in place to address climate change also play a great role as they show the level of commitment that the government has in addressing climate change and more importantly implement some of the key tenets provided in the Constitution of Kenya such as upholding the citizens right to a clean and healthy environment, promoting public participation and protecting and conserving the environment not just for the current generation but also future generations.