Abstract
States around the world are progressively protecting environmental rights. The Constitution of Kenya 2010 provides for environmental rights under Articles 42, 69 and 70. However, this study argues that there is need to reconceptualise the right to a clean and healthy environment as established under Article 42, as the right is geared towards human utility rather than intrinsic environmental protection. Thus, the right is shrouded with anthropocentric concerns which may be construed as insufficient in the protection of natural resources, ecosystems and other non-human species for their ecological and intrinsic value. Accordingly, the study examines the right to a clean and healthy environment as envisaged in the Constitution of Kenya 2010 and, from that context, assesses the efficacy of anthropocentric environmental rights in environmental conservation highlighting the potential challenges faced in their implementation. As a way forward, the study recommends bicentric environmental rights as an alternative to anthropocentric environmental rights. The study realises its objectives through the use of case law and literature review.
Highlights
A constitutional environmental right contains provisions aimed at protecting and conserving the environment while ensuring that people within a State have a right to an environment that is clean and healthy.[1]
This study argues that there is need to reconceptualise the right to a clean and healthy environment as established under Article 42, as the right is geared towards human utility rather than intrinsic environmental protection.the right is shrouded with anthropocentric concerns which may be construed as insufficient in the protection of natural resources, ecosystems and other non-human species for their ecological and intrinsic value.the study examines the right to a clean and healthy environment as envisaged in the Constitution of Kenya 2010 and, from that context, assesses the efficacy of anthropocentric environmental rights in environmental conservation highlighting the potential challenges faced in their implementation
It is improbable or quite unlikely to have a constitutional environmental provision that is non-anthropocentric in nature, as it would be like trying to enforce a human right that according to Joshua Bruckerhoff is, ‘by its very definition, not connected to a human concern’
Summary
A constitutional environmental right contains provisions aimed at protecting and conserving the environment while ensuring that people within a State have a right to an environment that is clean and healthy.[1] Constitutional. The first one is anthropocentrism, which is a human-centred approach towards environmental conservation and protection.[19] Anthropocentrism has Electricity Transmission Co. Ltd v De Samaline Incorporation Ltd (2010), where the judge stated that: ‘the right to a clean and healthy environment must be regarded as a purely medical matter. Article 162(2) requires parliament to establish a court with an equivalent status as the High Court to hear and determine disputes relating to the environment and land. 39 This led to the enactment of the Environment and Land Court Act which established the Environment and Land Court which hears and determines environmental and land matters.[40]
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