The Constitutional Petition as a Mechanism for Promoting Sustainable Development

The Rio Conference on Environment and Development marked an important milestone in the development of international and national environmental law on environmental management and sustainable development generally. In Kenya too this and other international events quickened the momentum towards the development of an framework environmental law environment, which was passed in 1999 and came into effect in January 2000. The enactment of a framework environmental law notwithstanding, poor implementation and enforcement of environmental and natural resource laws on account of capacity limitations among enforcement agencies meant that the advancement of sustainable development continued to be elusive. This state of affairs led to a re- examination of the options available to the public and non-government actors to take action to protect the environment from degradation. Court action, the obvious option, continued to be dogged by stringent procedural requirements, questions about locus and financial hurdles related to the cost of litigation. The adoption of anew Constitution in Kenya in 2010 has dramatically changed the prospects of court action by non-government actors and individuals as a mechanism for environmental conservation. The Constitution of Kenya 2010m has introduced the mechanism of a constitutional petition which may be filed by any member of the public. Constitutional petitions may be filed at no cost, costs may not be awarded against the petitioner and procedural hurdles have been eliminated in that the petition may be filed without any restrictions as to form. Among the fundamental human rights which may be protected through the constitutional petition, is the right to environment. Already, after only 18 months the country is witnessing a dramatic growth in the number of constitutional petitions being filed. This paper will examine the constitutional petition as a mechanism for promoting sustainable development. The discussion will be undertaken in the context of the principles of environmental law as enshrined in the Rio declaration on Environment and Development. It will argue that court action by private individuals and non-state actors through the constitutional petition provides a credible supplement to action by public authorities to implement the statutory provisions of the framework environmental law in particular given the limitations on technical and financial capacity of the public authorities