The High Court has delivered a significant victory for Kenyans and businesses, ruling against an amendment that granted the Environment, Climate Change, and Forestry Cabinet Secretary the power to appoint members of the powerful National Environment Tribunal (NET).
Justice Chacha Mwita declared that the amendments to the Environment Management and Coordination Act (EMCA), which gave the Cabinet Secretary authority to appoint tribunal members, are unconstitutional.
NET is a specialised judicial body, established under Section 125 of the Environmental Management and Co-ordination Act (EMCA) of 1999. Its primary function is to adjudicate disputes arising from decisions made by the National Environment Management Authority (NEMA), particularly concerning the issuance, denial, or revocation of Environmental Impact Assessment (EIA) licenses.
NET provides a platform for individuals and entities aggrieved by NEMA's decisions to seek redress.
The tribunal is made up of the chairperson nominated by the Judicial Service Commission (JSC) and should be qualified for appointment as a judge of the Environment and Land Court, an advocate of the High Court of Kenya nominated by the Law Society of Kenya, and a lawyer with professional qualifications in environmental law appointed by the Cabinet Secretary (CS).
Three persons with demonstrated competence in environmental matters were appointed by the CS.
However, in 2017, Parliament approved amendments aimed at having the chairperson and vice-chairperson elected from among the tribunal members, removing the JSC's role in appointing the chairperson.
Additionally, the amendments sought to lift automatic stay orders on projects under appeal at NET, allowing such projects to proceed despite ongoing legal challenges.
These changes were perceived by some as efforts to reduce judicial oversight over significant projects, including the Lamu Coal Power Plant and the Standard Gauge Railway extension.
In response, Katiba Institute, alongside other civil society organisations, challenged these amendments in court. They argued that the proposed changes undermined the independence and impartiality of NET by increasing executive influence over tribunal appointments and limiting judicial checks on environmental matters.
Justice Mwita ruled that the amendments to the Act were “without reasonable and meaningful public participation.”
“Amendments to statutes contravening court orders are unconstitutional, null, and void,” ruled Justice Mwita.
The judge also ruled that the amendments to the EMCA that sought to remove the remedy of automatic stay upon filing appeals to the National Environment Tribunal are unconstitutional, null, and void.
