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Climate change
The Climate Change Act 2016 mandates the National Climate Change Council to set targets for the regulation of GHG emissions (Section 6). Section 13 of the Act further requires the NCCAP to prescribe measures and mechanisms to review levels and trends of GHG emissions. Section 15 further imposes an obligation on all state departments and national government public entities to report on sectoral GHG emissions for the national inventory.
NEMA is empowered, pursuant to Section 17, to regulate, enforce and monitor compliance on levels of GHG emissions on behalf of the National Climate Change Council. Failure to comply may incur a fine of up to 1 million Kenyan shillings and five years’ imprisonment for officers of an entity.
The Climate Change Act also provides for incentives to those who encourage and put in place measures for the elimination of climate change, including the reduction of GHG emissions and the use of renewable energy.
The NCCAP 2018–2022 provides detailed guidelines for GHG emissions. According to the NCCAP, actions in the six mitigation sectors set out in the UNFCCC – agriculture, energy, forestry, industry, transport and waste – are expected to lead to lower emissions than in the projected baseline and help to meet Kenya’s mitigation NDC to abate GHG emissions by 30 per cent by 2030 relative to the business-as-usual scenario.
As part of the priority enabling actions, the NCCAP required the National Treasury and Planning Department, among other lead agencies, to identify policy and fiscal incentives (such as tax incentives, reduced energy tariffs, low interest loans and public-private partnerships) that promote the uptake of climate-friendly technology by 30 December 2020. Although the 30 December 2020 deadline contemplated in the NCCAP was not met, the National Treasury is continuing the process of developing a National Policy Framework on Green Fiscal Incentives. An inter-ministerial taskforce with officers drawn from ministries, departments and agencies, development partners and specialised technical agencies and supported by consultants is expected to develop the policy.45 The National Treasury is responsible for developing climate finance strategy and regulations, and the National Climate Change Fund is also vested in the department. In its Strategic Plan 2018/19 – 2022/23, the National Treasury recognises climate finance action through sectoral policy development as one of its key result areas.46
In October 2021, the Central Bank of Kenya (CBK) issued its Guidance on Climate-Related Risk Management, which is meant to guide institutions licensed under the Banking Act, Cap 488 on climate-related financial risks. The guidance incorporates a governance approach that aims to integrate climate risk considerations in the management, business decisions and activities of the institutions. A risk-based approach under the Guidance will also assist the institutions to effectively entrench climate-related financial risks in their risk management frameworks. Consequently, banks are expected to develop internal reporting structures and implementation plans and, ultimately, submit quarterly reports to CBK from the quarter ending 30 September 2022.47
The NCCAP expects the public sector to play a role in the planning, implementation and monitoring of climate change interventions, with an emphasis on enhancing adaptive capacity and improving the ability to withstand climate shocks. The private sector is also expected to take measures towards reducing GHG emissions from business operations.
It remains too early to assess whether the Kenyan government has delivered on its current targets on climate action. Most of the timelines contemplated under the NCCAP were set to lapse at the end of 2020 or in 2023.
Section 91 of the Energy Act establishes a renewable energy feed-in-tariff (FIT) system with the objectives of catalysing the generation of electricity through renewable energy sources and reducing GHG emissions by lessening reliance on non-renewable energy resources, among other objectives. The FIT policy was developed by the Ministry of Energy in 2008 as a guideline on the government’s commitment to incentivise the generation and use of renewable energy through preferential tariffs.
There has been limited litigation in the area of climate action in Kenya. However, citizens are becoming more empowered to take up action to enforce their environmental rights. A recent notable case is Save Lamu & 5 others v. National Environmental Management Authority (NEMA) & another [2019] eKLR, where a community-based organisation representing the interests and welfare of Lamu residents challenged the issuance of an EIA licence for a proposed 1,050MW coal-fired power plant in Lamu, a proclaimed World Heritage Site. One of the grounds of the challenge was that the project was likely to contribute to climate change and was inconsistent with Kenya’s low carbon development commitments. The Tribunal, in applying the precautionary principle, noted that ‘the omission to consider the provisions of the Climate Change Act 2016 was significant even though its eventual effect would be unknown’. The licence was consequently cancelled and a fresh EIA study ordered.
However, given recent developments where financiers have pulled out owing to concerted lobbying efforts against the project over environmental concerns, it is unclear whether the project will be developed.48
In October 2022, in Seifert & another v. National Environment Management Authority & another [2022] eKLR, the National Environment Tribunal emphasised the importance of public participation and the value of an EIA in undertaking projects that have an impact on the public. In this case, the tribunal cancelled an EIA licence that was wrongly issued for lack of public participation.49
Finally, during the 26th UN Climate Change Conference of the Parties (COP26) in Glasgow, Scotland, Kenya announced its plan to work with African countries that form the ‘Giants Club’ conservation group (a group of African nations consisting of Kenya, Uganda, Gabon, Rwanda, Botswana and Mozambique) to raise resources for investment in the continent’s climate change mitigation programmes.50 Kenya also announced an ambitious plan to plant an additional 2 billion trees and to set up a US$5 billion tree growing fund towards reforestation measures.
In his address at COP26, President Uhuru Kenyatta said that extreme weather events as a result of climate change, including floods and droughts, lead to losses of between three and five per cent of Kenya’s GDP annually. He further stated that there is, consequently, an urgent need for Kenya and all nations to implement bold mitigation and adaptation measures to avert the inevitable climate crisis.51 Kenya recognises that climate finance is key to delivering these measures and that the special needs and circumstances of Africa must be considered in the debate.
More recently, the President of Kenya, HE Hon Dr William Samoei Ruto, pledged US$4.2 billion to boost agricultural production to enhance food security in the country. In addition, he committed to putting 3 million acres of land under irrigation to reduce the over-reliance on rain for agricultural production.52
The current administration has also made robust commitments at COP27 in Egypt to, among other things, spearhead the convening of a continental summit focusing on climate action in 2023 under the Committee of African Heads of State and Government on Climate Change and to increase the national tree cover from the current 12.13 per cent to 30 per cent in the next 10 years at an estimated cost of US$5 billion.53
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