Kenya was the first country in Africa in 2016 to promulgate a climate change law. The Climate Change Act of 2016 was a revolutionary piece of legislation that led the way to an Africa that put its people first in this race against time and heat.
Carbon markets have been lauded as the saving grace for communities that have historically been marginalized and suffered the brunt of climate change.
The heart and soul of these projects lie within the communities that have traditionally been regarded as beneficiaries of these projects. Be as it may, it is plausible to argue that communities are in fact investors in these projects. They may not be investors in the traditional sense, but they invest their time and precious indigenous knowledge, especially in the interventions and regenerative activities in nature-based solutions. It is only fitting that they witness a bountiful return on their investments. Furthermore, they should also be regarded as recipients of support and guidance, as they navigate the path to safeguard their investments and reap the rewards that truly enrich their lives.
The recent amendment to the Climate Change Act is a welcome development in this journey to achieve climate justice. The amendments are surely a welcome improvement to the Act and the carbon markets regulatory framework in Kenya. An examination of the Climate Change (Amendment) Act 2023 however reveals gaping loopholes. This may perhaps be because on the 31st August 2023 on a special sitting of the Senate, out of a possible 67 senators only 33. attended and passed the bill. They did not spend much time looking at the bill, however, much time was spent lamenting how tired they were. (See the Hansard on 31st August 2023)
Below is our analysis of the Act;
- Clause 2-Definition Section
The clause provides definitions of various terms. One of the most important terms that have been defined is “community” which means a consciously distinct and organized group of users of community land who are citizens of Kenya and share any of the following attributes—
- common ancestry;
- similar culture or unique mode of livelihood;
- socio-economic or other similar common interest;
- geographical space;
- ecological space; or
There exists a great need to organize communities to ensure that they familiarise themselves with their rights and advocate for climate action that aid to prevent top-down decisions to be made on their behalf without their input on the same. The fact that the word community has been defined in the act will prevent ‘other groups’ from masquerading as communities.
- Clause 3-Objects of the Act
The objectives of the Act would be to mainstream climate change responses into development planning, decision-making making and implementation; build resilience and enhance adaptive capacity to the impacts of climate change; formulate programs and plans to enhance the resilience and adaptive capacity of human and ecological systems to the impacts of climate change; mainstream and reinforce climate change disaster risk reduction into strategies and actions of public and private entities; mainstream intergenerational and gender equity in all aspects of climate change responses; provide incentives and obligations for private sector contribution in achieving low carbon climate resilient development.
The objectives are bulletproof. However, for surgical precision, the objects of the act should state the protection of community resources as an object.
- Clause 4-Guiding values and principles
Section 4 which was amended by removing the obligation on the Council, the Cabinet Secretary, county government, any state officer, and any state organ to be guided by the schedule on public participation.
Public participation is a cornerstone of any government. The fact that was deleted is a claw-back on our national values and principles as provided in Article 10 of the Constitution. This is the main reason why even the Public Participation Bill has never been signed to law 5 years later.
- Clause 5-Additional Obligations On The Council
Section 6 introduces a new function of the council, as guidance and policy direction on carbon markets to the national and county governments, the public, and other stakeholders.
This section shows that not much keenness was given when the bill was being drafted. This is because section 4 removes the obligation of the Council to ensure public participation, yet it provides guidance again.
- Clause 6 -Membership Of the Council
There is a need for the removal of these nominated and political appointments and for placing specific criteria for the positions. There is a need to protect the community’s data to ensure that it is not compromised for selfish gains and that community-centric and enabling principles be put in place to aid in promoting nature-based solutions.
In addition, Bill has failed to protect the communities, especially around clause 7 which provides for ⅔ gender rule. There is a need to have projects around climate change be in line with the needs of the community’s livelihood and priorities to ensure that they represent communities specifically.
- Clause 23 A-Carbon Markets
The bill has defined carbon markets in clause 2. This clause has not cushioned the challenges encountered in carbon markets.
The challenges found in carbon markets encountered in community projects include: heavy financial support to develop carbon projects, benefit-sharing agreements, structural issues, technology in nature-based projects, technical capacity, culture change, marketing, and legal trading issues to ensure that human rights are observed.
There is a need for Kenya’s carbon market to ensure that robust science and standards are used to produce integrity carbon credits.
In furtherance, there should be a carbon credit trading permit to ensure the efficacy of carbon markets. The permits should be issued through an application process which undergoes a thorough screening process.
- Clause 23 B-Trade in Carbon Markets
The clause has not succinctly covered the pertinent issue of carbon markets. The clause should have provided that a holder of a carbon credit trading permit should only engage in carbon credit trading or conduct his operations only under this Act, best industry practice, international guidelines, and any other guidelines.
Further, the bill should have provided that: a person shall not engage in carbon credit trading business in Kenya unless that person has been granted a permit.
- Clause 23 C-Participation in Carbon Markets
The clause provides that participation in carbon markets will only be as a result of
- a bilateral or multilateral trading agreement;
- trading with a private entity; or
- in a voluntary carbon market.
The clause should ideally be appreciative of the complexity that are carbon markets, both in methodology, technology used, and parties involved. Additionally, the operationalization of Article 6 of Paris Agreement should have received a stronger regulatory framework in the Act.
- Clause 23 E-Provision Of Social and Environmental Benefits
It is a commendable step that there will be benefits to the communities. One thing that should have been addressed is consent should be given by the communities. This will prevent situations where projects are awarded to cronies without consent of the communities. However, legislating for Free Prior and Informed Consent in the bill whilst simultaneously removing any reference to public participation frameworks is counter-productive.
- Clause 23 F-Share of Proceeds
The Act recognizes that the benefits are economic, social and environemtnal in nature and this is an instrumental distinction. The additional win in this amendment is the requirement of stringent community agreements when it comes to carbon projects. The clause would have been more impactful if it actually provided a framework for the oversight role to be carried out by the county and national government. Carbon offset projects are often trans-georgaphical in nature, and as currently formulated, the Act does not elaborate the collaboration design for projects that are transcounty in nature.
- Clause 23 G-Carbon Registry
The national values and principles provided in Article 10 should be the Cornerstone of this article. such as inclusiveness, transparency, and accountability.
Firstly, there should be an established distinct body that deals with carbon registry and standardization.
Second, carbon project information should be open to the public and all stakeholders and readily available upon request, in line with the constitutional right to access to infotion.
- Clause 23h-Dispute Resolution
It is a commendable step that Alternative Dispute Resolution has been taken up by the drafters of the Bill. This is because many individuals lack faith in the Court system, and this will also enable disputes to be solved quickly and efficiently.