Kenya’s Environment and Land Court recently awarded the inhabitants of Owino-Uhuru village in Mombasa, damages worth 1.3 billion Kenyan Shillings and further directed that 700 million be dedicated towards an environmental clean-up exercise. This case illustrates how human rights can be used to protect the environment as well as the rights of communities affected by unscrupulous business and State practices.
In KM & 9 others v Attorney General & 7 others, the petitioners argued that one of the Respondents, a metal refinery company, set up a lead-acid battery recycling factory which produced toxic waste that seeped into the village. According to the petition, this caused its residents to fall ill and resulted in the death of 20 people. The petitioners argued that the Company’s actions were licensed and sanctioned by the State, in violation of Kenya’s Bill of Rights as well as its international obligations. In particular, that it violated the right to a clean and healthy environment guaranteed under Article 42 of the Kenyan Constitution and Article 12(2)(b) of the ICESCR, the right to the highest attainable standard of health, and the right to clean and safe water under Article 43(1)(a) and (d) of the Constitution and Article 12 (1) and (2)(a) of the ICESCR.
Another argument was that the government had failed to involve the community in a public participation exercise during the conceptualisation and implementation of the metal refinery company project. Further, the petitioners argued that the government had denied them access to information concerning the anticipated effects of exposure to lead as well as precautionary measures that ought to be taken. This failure was in contravention of Article 35(1)(a), (b) and (3) of the Constitution which stipulates that everyone has the right to access information held by the State or other party that is required for the exercise of a fundamental freedom.
The government argued that the metal refinery company was solely liable under the polluter pays principle enshrined in principle 6 of the Rio Declaration on Environment and Development. Further, it argued that the petitioners were contributorily negligent as they endangered their lives by continuing to work and live in the polluted environment despite the negative effects. It also argued that this was a case of negligence and not a constitutional matter. Further, any damage suffered was personal, and damages could not be awarded in a representative capacity since every victim had to prove their suffering.
The government also argued that the petitioners had failed to show causation. It argued that no evidence was tendered showing the levels of lead before the metal refinery’s occupation of the area. The difficulty in showing causation was exacerbated by the fact that the area was zoned as industrial and had multiple sources of lead pollution.
Finding for the petitioners, the court held that the government’s reliance on principle 6 was selective and in contravention of the Rio Declaration since the State equally had a responsibility to ensure that her citizens enjoy the right to a clean and healthy environment. The government was therefore responsible for any human rights violations resulting from its acts of omission or commission.
As for contributory negligence, the court found this argument escapist since neither Article 42 of the Constitution nor principle 6 of the Stockholm Declaration allowed for areas to be polluted with abandon. They instead required the State to protect the environment and direct that the polluter clean it regardless of whether it was a residential or industrial environment. This was also prescribed under principle 2 of the 1972 Stockholm Declaration, which fosters intra and inter-generational equity. Further, the court held that the State was under an obligation to compensate the petitioners if they were to leave the area. The court also found that the damages suffered by the petitioners were personal and environmental. Thus, the petitioners were justified in bringing the suit in their personal capacity and as a community. In response to the causation argument, the court held that the burden to demonstrate that the metal refinery factory had led to the increase in lead lay with the State – not the Petitioners.
This case demonstrates that human rights and human right principles can be used to protect the environment and individual rights.