Should recalcitrant county officials pay for environmental restoration from their own pockets?

Judging from a recent case decided by Kenyan judge Dalmas Ohungo, working in the environment and land court can be a truly soul-destroying job. Virtually two years after the court delivered a judgment against a local county government for violating the right to a clean and healthy environment of the people in its area, the local authorities have done absolutely nothing to fix the situation – and they have consistently ignored the court’s orders.

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While the rest of the world struggles with how to protect the environment and ward off worsening climate change, Kenya’s Nakuru county government is sitting back and doing nothing to clean up its act.

In February 2018 Judge Dalmas Ohungo of the environment and land court declared that the municipal council of Nakuru, along with the county government, had violated the rights of the people in the area to a clean and healthy environment. This violation had been effected in the way they operated the local Gioto waste disposal site. They had no licence to operate and the dump site threatened the health of residents.

The court ordered that the local authority had to apply for a waste disposal site licence within 30 days. The National Environment Management Authority (Nema) was then to consider the application and make a decision within 45 days. If the local authority disobeyed the court order and did nothing about it, Nema was to take up the matter and return to the court.

As the court appeared to anticipate, the local authorities did nothing at all about the order and so Nema went back to court. The matter was postponed four times so that the authorities could file a replying affidavit, but in the end no such document was ever filed.

Next, by agreement, the county secretary was ordered to attend court and report on what had been done to carry out the court’s order. On the due date, the official did not attend. It was reported that he was travelling outside the country. Judge Ohungo noted that no explanation was given to the court as to why he was travelling ‘while being fully aware of the summons … issued with the consent of his advocates.’

The county authorities had not applied for the waste disposal site licence almost two years after the orders were made. ‘No explanation has been offered as to the failure to apply, despite being given several opportunities and reminders to do so. One can only conclude that there is no willingness to obey this court’s orders and to take the simple step of applying for a waste disposal site licence so that Gioto is regulated by law.’

Obviously irritated by this inaction, the judge commented further that the local authorities 'do not have the luxury of choosing what to do with this court’s orders. There is only one acceptable course of action: obedience and compliance.’

The court had found in its earlier judgment that the dumpsite was being run in a way that violated the right to a clean and healthy environment. Instead of immediately ordering that the site be closed, the court decided to give the local authority a chance to comply. ‘Yet now we are faced with a situation where the (local authority) has not only failed to comply but is also unwilling to demonstrate efforts towards future compliance. We can no longer wait in uncertainty. Compliance with the orders and the law must now be immediate.’

Since there had been no effort to acquire a licence, the court ordered that all dumping or disposing of any waste, refuse or solid matter by the local authorities was to stop immediately. In addition, an environmental restoration order was issued requiring the county government to restore the dumpsite to ‘such a condition as shall be certified by Nema, upon inspection, as being safe to human health.’

The legal costs of the action were also to be paid by the county government, in other words, by the taxpayers.

It may appear a small issue involving a part of the world that few outside Kenya will know. But it is not insignificant at all: it shows the kind of struggle that local people must often wage to keep their environment safe and healthy. And the disrespect shown by many local authorities for the courts, the law, the people and the environment.

As the severe results of environmental degradation becoming increasingly clear, the question is whether the authorities that thumb their noses at the courts and the law, should not be subject to more individualised punishment, with recalcitrant officials made to pay for the cost of restoration or the legal costs of the action – or both – out of their own pockets.