The fight for a non-toxic environment in Kenya: how Owino-Uhuru villagers secured their right to a healthy environment in court
photo by Norbert Allan
Casebook Info
A group of Petitioners filed a constitutional petition claiming that a metal refinery, one of the respondents, had contaminated their village and community. The lead Petitioner, a minor suing through their mother and family friend, brought the case alongside other residents of Owino-Uhuru Village. The Petitioners alleged that the battery recycling plant’s toxic pollution had led to illnesses and deaths in their village and surrounding areas, violating multiple human rights, notably their right to a healthy environment (R2HE).
Their case centered on the claim that both the metal refinery and the Kenyan government had failed in their duty to uphold the Bill of Rights, the constitutionally guaranteed R2HE, and their commitments to international agreements such as the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the African Charter on Human and People’s Rights (ACHPR). In a significant victory for the Owino Uhuru residents, the Land and Environment Court in Mombasa ruled in their favor. The decision garnered international attention and praise, including acknowledgment from the Office of the United States High Commissioner for Human Rights as a “positive milestone for environmental justice.”
Year Filed
2016 petition No. 1 (2019 submission)
Year of Most Recent Ruling
2020
Year of Final Ruling
2020
Jurisdiction
Kenya
Court Name
Environment and Land Court at Mombasa
Plaintiff(s)
KM, 8 other individual petitioners, & Center for Justice and Governance and Environmental Action
Ruling On
Merits
Respondent(s)
Attorney General & 7 other respondents
In 2016, residents of Owino-Uhuru took legal action, alleging that Penguin Paper and Book, as the 8th respondent, had leased land to Metal Refinery (EPZ) Limited, the 7th respondent, resulting in the construction of a lead acid batteries recycling factory. The factory, operational since 2007, lacked proper wastewater management infrastructure and emitted hazardous fumes from its industrial chimneys. Subsequent environmental violations led to the closure of the facility by the National Environmental Management Authority in 2013.
The contamination caused severe health issues and over 20 deaths in Owino-Uhuru Village. Initially reporting their plight to the Parliamentary Committee on Health, the Petitioners received recommendations but no compensation or remediation. Unsatisfied, they turned to the Environment and Land Court at Mombasa, arguing that private entities directly caused harm, while the Kenyan government, by licensing and approving these activities, violated their duty to respect the Bill of Rights.
As a monist state, Kenya integrates international and regional laws into its domestic legal system. The Petitioners argued that their rights to health, water, life, and a healthy environment were violated both domestically and under international agreements. They also alleged a deliberate concealment of the impacts of lead exposure. Consequently, they sought recourse under Article 70 of the Kenyan Constitution, which grants individuals the right to access courts for redress when their R2HE is threatened, violated, or likely to be infringed upon. The Petitioners demanded compensation for health and life losses, environmental damage assessments, remediation efforts, the implementation of refinery best practices, and additional regulations governing hazardous materials production.
In its evaluation, the Court drew upon international treaties like the Rio Declaration and the Declaration of Human Rights, delineating the obligations of both state and private actors. The Court concluded that the government and private respondents failed in their obligation to prevent environmental harm, take necessary precautions, and uphold the Petitioners’ R2HE, as mandated by domestic and international law.
Acknowledging the substantial evidence linking the Petitioners’ injuries to pollution, unchallenged by the respondents, the Court granted a majority of the protection, restoration, compliance mechanisms, and reparations sought by the Petitioners. These included a declaration affirming the Petitioners’ R2HE and other associated rights. Moreover, the Court held the respondents financially accountable for compensation, apportioning responsibility based on their respective contribution to the harm. The awarded sum totaled 1.3 billion Kenyan shillings or 13 million USD, alongside an order mandating the cleanup of soil, water, and waste contamination within a four-month period.
The court noted that the petitioners had provided sufficient evidence to prove the link between their injuries and the pollution, which the respondents did not refute. The court granted most of the protection, restoration, compliance mechanisms, and reparations requested by the petitioners. The petitioners were entitled to the declaration of their R2HE, among other rights. Furthermore, the court held the respondents financially responsible for compensation based on their respective share of responsibility for the harm caused. The award amounted to 1.3 billion Kenyan shillings, or 13 million USD, and the respondents were ordered to clean-up the soil, water, and waste contamination within four months.
Monism
Kenya automatically incorporates international agreements and conventions that it ratifies as domestic law. This means the obligations and rights enumerated within those agreements become enforceable and actionable in domestic courts.
Article 70 of the Kenyan Constitution
Kenyan’s whose R2HE is under threat, or is likely to be threatened can gain access to the court system for redress.
1.3 billion Kenyan shillings / 13 million USD
The damages awarded to the Petitioners in addition to orders for the respondents to clean up the soil, water, and waste contamination.
Plaintiff Strategies & Court Good Practices
Using an established domestic body of law
Article 42 of the Kenyan Constitution guarantees R2HE. Furthermore, Article 70 of the Constitution opens the Kenyan courts to persons who allege that their R2HE has, or is likely to be, breached, denied, violated, or infringed. The Environment Management and Coordination Act provides similar access to the Environment and Land Court for violations of R2HE. Employing this legal framework, the Petitioners presented their case before the Mombasa Environment and Land Court.
Multiple Articles in the Kenyan Constitution guarantee environmental protections concerning human health and life of present and future generations. The Petitioners alleged that the respondents had violated Article 42’s explicit guarantee of R2HE and the derivative mandates enumerated in Article 69. Under the Kenyan Constitution, R2HE requires that the state protect and utilize the environment to benefit Kenya’s people through environmental impact assessments, legislation, and equitable benefits-sharing. The Court agreed, holding that the respondents had violated Article 42 of the Constitution, and read the precautionary principle of environmental protection into Article 69, mirroring Article 15 of the international Rio Declaration.
Using an established international body of law to support R2HE
In their legal arguments, the Petitioners frequently referenced international law to bolster their claims. According to Article 2(5) of the Kenyan Constitution, international law and ratified agreements are assimilated into domestic law.. They pointed to Article 12(2)(b) of the ICESR and Article 12 of the ACHPR as fundamental in upholding R2HE. Additionally, the Petitioners invoked principle 16 of the Rio Declaration, emphasizing the polluter pays principle, asserting that the refinery’s owners bear responsibility for compensating the harm caused to the Petitioners’ health and environment.
While attributing responsibility to the refinery, the Petitioners stressed that the government holds accountability for safeguarding its citizens from health and environmental hazards through robust regulations and precautionary measures. To reinforce their arguments, the Petitioners referenced cases from various jurisdictions, including decisions from the African Commission on Human and Peoples’ Rights, the European Court of Justice, and India, seeking to augment the strength of their claims.
The Court responded to the invocation of international law and reiterated its integration into domestic legislation. It held the respondents accountable under the polluter pays principle, underscoring that the state cannot evade its responsibility. Citing Article 13 of the Rio Declaration, which emphasizes the creation of laws to safeguard constitutionally guaranteed R2HE and compensate those affected by environmental harm, the Court ruled against the Ministry of Environment, Water and Natural Resources, the Ministry of Health, and the National Environment Management Authority. It found them in violation of the Petitioners’ R2HE under both the ICESCR and ACHPR.
Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations
Though the refinery emitted pollution and contaminated the surrounding environment, the Petitioners argued that the state and its agencies had a positive obligation to implement effective environmental regulations, take precautions, and further the progressive realization of Kenyans’ R2HE. This duty encompasses regular environmental impact assessments, ongoing monitoring, taking preventive measures to avert harm, and rectifying any resultant damages. Citing Articles 42 and 69 of the Constitution alongside international commitments like the ICESCR and Rio Declaration, the Petitioners asserted that both the actions and inaction of state agencies infringed upon their fundamental rights and violated these responsibilities. The Court concurred, affirming that ensuring R2HE fell squarely within the responsibility of the state respondents.
Reinforcing the status of the R2HE as a fundamental and independent human right
The Kenyan Constitution delineates the right to a healthy environment, Article 42, from the right to health, life, and clean water, protected by Article 43. Therefore, the Petitioners succinctly approach R2HE as distinct from health, sanitation, and water. They also referred to parallel international obligations that detail R2HE as distinct from, but related to, other fundamental rights.While the Court affirmed R2HE’s distinctiveness, it invoked the human rights principle of indivisibility. This principle underscores the interdependence among rights, highlighting the interconnectedness of life, dignity, and economic and social rights with R2HE. Ultimately, the Court emphasized the equality of all constitutional rights, recognizing their collective significance.
Take Aways
The success of the Petitioners in the Environmental and Land Court underscored the protective role of human rights and principles, not only for individuals but also for the environment. Kenya’s status as a monist state facilitated the integration of international instruments, effectively reinforcing domestic rights and obligations. Moreover, the horizontal application of human rights, rooted in Kenya’s Constitution, empowered the Petitioners to claim that private entities had caused them harm through their activities. With respondents spanning state and private actors, the case exemplifies both the vertical and horizontal application of human rights.
The case garnered global attention from human rights organizations and the United Nations due to the substantial monetary award and remediation obligations imposed on the respondents. Although the violations of R2HE occurred despite the comprehensive and extensive list of human rights granted by Kenyan and international law, the case demonstrated how Petitioners can effectively construct their arguments using rights-based language and reasoning.
Terms
Strategy
Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations
Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy
Reinforcing the status of the R2HE as a fundamental and independent human right
Recognizing R2HE as a standalone human right – that is, a human right that does not depend on or emerge from any other human right or source, but which exists independently and self-sufficiently. Recognition of R2HE as a fundamental and independent human right can be accomplished, for example, by invoking the UN Resolutions on R2HE.
Strategy
Using an established domestic body of law
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Strategy
Using an established international body of law to support R2HE
Relying on well-established international treaties, norms and principles in making arguments advancing and protecting R2HE. Commonly cited international bodies of law include UN Reports, jurisprudence from international and/or regional courts, General Comments by UN bodies, Declarations and more.
Principle
Indivisibility Principle
This principle recognizes the interconnectedness and interdependence of all human rights. It asserts that civil, political, economic, social and cultural rights are all equally important and interconnected, forming an indivisible and interrelated system of human rights. This principle emphasizes that no right should take precedence over another and that they are all essential for the dignity, well-being and full development of individuals and societies.
Principle
Monism
In the context of international law, monism refers to the perspective that international law and domestic law form a single, unified legal system. Under monism, international law is automatically incorporated into a country's legal framework upon ratification or acceptance without requiring any transformation or specific legislative action.
Principle
Polluter Pays Principle
This environmental law principle provides that it is the entities that pollute – whether it be land, air, water or food – who bear the costs associated with the prevention, control and cleanup of pollution, rather than passing those costs on to society, the environment or future generations.
Principle
Precautionary Principle
This environmental law principle provides that, where there exists a risk of serious and/or irreversible harm, scientific uncertainty about the extent of the harm or about the exact consequences of a particular action or process does not justify failing to implement measures to combat associated risks of environmental degradation or destruction. In other words, in the face of scientific uncertainty, authorities should still take measures to address environmental threats.
