Human rights and environmental protection are closely linked, hence the guarantee and right to a clean environment. However, this crucial right has majorly been overlooked. Majority of human rights organizations have focused more on individual and group rights, such as rights of indigenous people, children’s rights, disability rights, education rights with less emphasis on environmental rights. Consequently, this has led to the negative effects of environmental degradation, ecosystems decline, water shortages, fisheries depletion, natural disasters due to deforestation, unsafe management and disposal of dangerous waste products.
Article 42 of the Constitution of Kenya 2010 provides for the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations through various measures and obligations relating to the environment.
The state as the duty bearer of this right invokes Article 69 that provides for the obligations in respect to the environment.
The state shall guarantee sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya; protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities; encourage public participation in the management, protection and conservation of the environment.
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Further, Article 70 obligates the state to enforce environmental rights by judicial means. This means if a person alleges that a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.
Fundamental freedoms are basic rights and freedoms inherent to all human beings, whatever the nationality, place of residence, sex, ethnic origin, colour, religion, language, or any other status. Human beings are all equally entitled to human rights without discrimination.
These rights are all interrelated, interdependent and indivisible. They can never be taken away, although they can sometimes be restricted, say, if a person breaks the law, infringes on the right of another person, or in the interest of national security.
These basic rights are based on values like dignity, fairness, equality, respect and independence. But human rights are not just abstract concepts – they are defined and protected by law. In Kenya human rights are protected by Chapter Four of the Constitution of Kenya 2010.
The state as the duty bearer of all rights through the relevant authorities is committed to make sure that the people enjoy the right to a clean environment for present and future generations and to protect human rights against abuse by establishing appropriate policies, legislation, regulations and adjudications.
In partnership with stakeholders such as UNEP, the UN Office of the High Commissioner for Human Rights, and other relevant environmental organizations have joined efforts to identify, promote good practices relating to the use of human rights obligations and commitments to inform, support and strengthen environmental policy making, especially in the areas of environmental protection and management.
When people say they have a “right” to something, they are often making a claim that someone else has a duty to do or refrain from doing something. However, they also have a duty as right holders hence the relationship between right claims and duties.
Therefore right holders have a duty under Article 69 (2) to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.
It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights without isolating one form of right from the rest.
Ms Wasonga is a Legal/Communication Officer at KFS and a Gender and Human Rights crusader