ABSTRACT
The Kenyan Constitution, 2010 expressly guarantees a legally binding right to a clean and healthy environment. Significantly, the Constitution recognises the concept of unenumerated rights. The right to development guaranteed under the African Charter on Human and Peoples’ Rights, thus forms the gamut of rights guaranteed in the Constitution. Even then, the right to development and the environment often represents competing ideals. Even though there have been judicial pronouncements at the regional level, the proper contours of how these rights interact remain contested. These contestations play out at the national level where rights are implemented.
The seductive narrative “Africa rising” has been a defining feature of discussions on transformation and change in Africa and Kenya in particular. The narrative is synonymous with infrastructural development in major cities and the exploration and export of natural resources. However, research has questioned the transformative aspect of the narrative and pointed to a glaring disconnect. Poverty levels in Kenya remain high, while environmental injustice has ensued occasioned by land degradation and pollution due to exploration and destruction of the environment by construction projects. This chapter specifically explores the implementation of the right to development and the right to a clean and healthy environment in the context of large infrastructural projects and demonstrates that these rights can be harmonised. The chapter employs the doctrinal research method and analyses two judicial decisions on the contention between development and environmental justice in Kenya. It then distils how the Kenya Environment and Land Court and the National Environmental Tribunal have deployed the constitutional principle of sustainable development and human rights principles to resolve these competing ideals. Kenya has a progressive bill of rights and specialised environmental courts and thus offers valuable lessons on domestic operationalisation of the concept of sustainable development and other human rights principles.
