Justice Chacha Mwita has declared amendments to the Environmental Management and Coordination Act (EMCA) unconstitutional, striking down provisions that granted the Cabinet Secretary authority to appoint members of the National Environment Tribunal (NET). His ruling reaffirmed the need for independent judicial oversight in environmental governance.
Established under Section 125 of the EMCA, NET serves as a specialized judicial body that adjudicates disputes stemming from decisions made by the National Environment Management Authority (NEMA). Its primary function includes reviewing NEMA’s actions related to the issuance, denial, or revocation of Environmental Impact Assessment (EIA) licenses. The tribunal provides individuals and organizations affected by these decisions a legal avenue to seek redress.
Traditionally, the tribunal consists of a chairperson nominated by the Judicial Service Commission (JSC), who must be qualified to serve as a judge of the Environment and Land Court. Additionally, the Law Society of Kenya nominates an advocate of the High Court, while the Cabinet Secretary appoints a legal expert specializing in environmental law. Three other members with expertise in environmental matters are also appointed by the Cabinet Secretary.
However, in 2017, Parliament introduced amendments that significantly altered this structure. One major change involved removing the JSC’s role in appointing the chairperson and instead allowing tribunal members to elect the chairperson and vice-chairperson from among themselves. Another contentious amendment sought to eliminate the automatic suspension of projects under appeal at NET, effectively allowing disputed developments to proceed despite ongoing legal challenges.
Critics argued that these amendments weakened the tribunal’s independence and tilted environmental dispute resolution in favor of government-backed projects. Concerns were raised that such changes could undermine judicial oversight, particularly in cases involving large-scale infrastructure projects such as the Lamu Coal Power Plant and the Standard Gauge Railway extension.
Civil society organizations, led by the Katiba Institute, challenged these amendments in court, contending that they eroded the impartiality of NET and increased executive influence over its operations. They further argued that the removal of automatic stay orders would diminish environmental protections by allowing contested projects to continue despite pending legal appeals.
Justice Mwita ruled in favor of the petitioners, stating that the amendments violated constitutional principles by being enacted without adequate public participation. He further declared that any legislative changes contradicting court rulings are unconstitutional, null, and void.
By annulling these amendments, the court has reaffirmed the importance of judicial independence and the role of public engagement in shaping environmental laws.
