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Climate change
The Climate Change Act 2016 obligates the National Climate Change Council, Section 6, to set targets for the regulation and monitoring of GHG emissions. Section 13 of this Act further requires that the National Climate Change Action Plan be prepared to provide measures and mechanisms to monitor trends and assess GHG emissions. Section 15 also requires that all state departments as well as national government public entities report on the sectoral GHG emissions to be included in the national inventory.
The National Environmental Management Authority has the power, under Section 17, to regulate, enforce, and monitor compliance with GHG emissions levels for the National Climate Change Council. Failure to comply could result in a fine up to 1,000,000 Kenyan shillings or five years imprisonment for officers of the entity.
The Climate Change Act also offers incentives to encourage and put into place measures for the elimination or minimization of climate change. This includes the reduction of GHG emission and the use renewable energy.
The NCCAP 2018–2022 provides detailed guidelines for GHG emissions. According to the NCCAP, actions in the six mitigation sectors set out in the UNFCCC – agriculture, energy, forestry, industry, transport and waste – are expected to lead to lower emissions than in the projected baseline and help to meet Kenya’s mitigation NDC to abate GHG emissions by 30 per cent by 2030 relative to the business-as-usual scenario.
The NCCAP requires that the National Treasury and Planning department (among other lead agencies) identify policy and fiscal incentives (such as tax incentives and reduced energy tariffs and public-private partnerships) to promote the adoption of climate-friendly technologies by December 2020. The NCCAP deadline of 30 December 2020 has not been met. However, the National Treasury continues to develop a National Policy Framework for Green Fiscal Incentives. The policy will be developed by an inter-ministerial taskforce consisting of officers from ministries, departments, agencies (MDAs), development partners and specialised technical agencies, with support from consultants.29The National Treasury is responsible to develop climate finance regulations and strategy. The National Climate Change Fund is also vested within the department. In its strategic plan 2018/19–2022/23, the National Treasury recognises climate finance action through sectoral policy development as one of its key result areas.30
The Central Bank of Kenya (CBK), in October 2021, issued a guidance document on Climate-related Risk Management. It is meant to be used by institutions licensed under the Banking Act Cap 488, on climate-related financial hazards. The guidance includes a governance approach that integrates climate risk considerations into the management, business decisions, and activities of the institutions. The guidance provides a risk-based approach that will help institutions to effectively manage climate-related financial risk. CBK will be submitting quarterly reports from the quarter ending September 2022 to banks that have developed internal reporting structures and implemented plans.31
The NCCAP expects that the public sector will play a role with regard to the planning, implementation, and monitoring of climate change interventions. This includes a focus on increasing adaptive capacity and enhancing the ability to withstand shocks. The private sector is also expected take steps to reduce GHG emissions through business operations.
It is still too early to judge whether Kenya has achieved its climate action targets. The NCCAP stipulates that most timelines will expire by 2023 or 2020.
Section 91 of Energy Act creates a renewable energy Feed in Tariff (FIT) system. It has the goals of catalyzing the generation of electricity from renewable energy sources and reducing GHG emission by reducing reliance on nonrenewable energy resources. The Ministry of Energy created the FIT policy in 2008 as a guideline for government’s commitments to encourage the generation and use of clean energy through preferential tariffs.
In Kenya, there has been very little litigation in the climate action area. However, citizens are now more empowered to take action to enforce their environmental rights. Recent examples include Save Lamu & 5 others v. National Environmental Management Authority (NEMA) & another [2019]eKLR is a community-based group representing the interests and welfare Lamu residents. They challenged the issuance a licence for an EIA permit for a proposed 1,050MW coal fired power plant in Lamu. Lamu is a proclaimed World Heritage Site. One of the grounds was that the project was likely be to contribute to climate changes and was inconsistent with Kenya’s low-carbon development commitments. The tribunal applied the precautionary principle and noted that the tribunal had not considered the provisions of the Climate Change Act 2016. This was significant even though it would have no effect. The license was cancelled and a new EIA study was ordered.
However, it is uncertain if the project will go ahead given recent developments, where financiers pulled out due to concerted lobbying efforts to stop the project over environmental issues.32
Finally, Kenya announced at the COP26 climate meeting in Glasgow that it would work with African countries to increase resources for climate change mitigation programmes.33Kenya also announced a bold plan to plant another two billion trees and to establish a US$5billion Tree Growing Fund to support reforestation efforts.
President Uhuru Kenyatta spoke at the COP26 and stated that extreme weather events such as floods and droughts are causing losses of three to five per cent of Kenya’s GDP annually. He stated that Kenya and other nations must take bold mitigation and adaptation steps to avoid the inevitable climate crisis.34Kenya recognizes that climate finance is crucial to the delivery of these measures, and that Africa’s unique needs and circumstances must be considered.
