The relationship between the principle of sustainable development and the human right to a clean and healthy environment in Kenya’s legal context: An appraisal

Abstract

Kenya’s legal system is characterised by a plurality of constitutional norms that are relevant for governing the relationship between the environment and the people. Key among these are the principle of sustainable development (SD) and the human right to a clean and healthy environment (HRHE). Both norms were constitutionalised in 2010, a development that represents what scholars have termed environmental constitutionalism and sustainability constitutionalism, respectively. The constitutionalisation of the principle of SD and the HRHE is a welcome development which has the potential to fill some gaps that existed in the old constitutional arrangement. At the same time, this development is set against a backdrop of critical debates that question their effectiveness in regard to environmental protection. This article demonstrates that the two norms have developed in a manner that is responsive to the salient criticism raised against them. Moreover, courts in Kenya have construed them as complementary norms. Specifically, courts in Kenya have applied the HRHE to clarify the meaning and scope of the environmental prong of SD and construed the duty to pursue ecologically SD (a component of SD) as encompassing the obligation to protect ecological processes that support all life.