Daniel Otunge: Declare Nairobi River a Legal Entity to Secure Its Future
In 2017, New Zealand bestowed legal personhood upon the Whanganui River. Act of Parliament Since then, the river's circumstances have gotten better.
As Kenya, under President William Ruto’s leadership, tackles the challenge of cleaning up and safeguarding the Nairobi River, it could prove beneficial to draw inspiration from New Zealand’s approach.
In order to accomplish this, Parliament needs to enact legislation that grants the Nairobi River the status of a legal entity. Through this legislation, the Nairobi River would acquire a distinct legal status akin to that of a registered corporation or trust. Endowing the river with legal personhood would enable it to initiate lawsuits and defend itself against intruders and contaminators. As a result, the river can ensure its own protection effectively.
What significance does having legal personality hold for a natural resource such as the Nairobi River? Initially, legislation characterizes a legal person as an entity—whether human or not—that possesses legal rights and is bound by responsibilities. Consequently, this act would grant the Nairobi River all the rights, powers, duties, and liabilities associated with being a legal person.
Nevertheless, because the River lacks human qualities and cannot function autonomously, the legislation establishing the Nairobi River as a legal entity must outline the composition of its supervisory board. This board ought to consist of distinguished individuals, conservation experts, and representatives from the United Nations Environment Programme.
The board must bear the serious duty of safeguarding the river's well-being.
Similar to a corporation, the Nairobi River, via its Governing Board, will have the ability to possess assets, enter into agreements, remit taxes on earnings, employ personnel, and initiate or respond to legal actions in court.
The river has the authority to grant permits for recreational activities on its waterfront properties, impose charges for boats carrying merchandise and individuals, and collect fees for specific kinds of trade, rituals, or athletic events conducted within its channels and coastal areas.
That way, the government will not only recoup its investment in cleaning up the river (e.g., the Sh50 billion promised by President Ruto recently) but also enjoy accruing taxes for prosperity.
Furthermore, the marine life along with the residents of Nairobi and its surrounding areas will benefit from an exceptional clean and wholesome environment, as guaranteed under Article 42 of Kenya’s Constitution 2010.
The concept of environmental legal personhood as a method for protecting nature has been debated within scholarly communities since the 1970s. Should Trees Have Standing? American law professor Christopher D. Stone contended that environmental rights ought to be distinguished separately from those of humans.
Stone’s research had a significant impact on numerous academics such as James Morris and Jacinta Ruru, who authored Giving Voice to Rivers , argues that waterways should be granted legal personhood despite the 1972 Stockholm Conference emphasizing that "protecting human beings" remains the main objective. environmental laws .
The transition from safeguarding nature for human welfare (an anthropocentric approach) to conserving nature for its own sake (an eco-centric perspective) can be observed in various nations such as New Zealand, Ecuador, Bolivia, Panama, Bangladesh, India, Spain, and the United States.
For instance, Ecuador was the first nation to proclaim in its constitution that nature has the status of a legal person. Articles 10 and 71-74 of the Constitution acknowledge the inherent rights of ecosystems. allow people to request action on behalf of ecosystems, and mandate the government to address breaches of nature's rights. Including "the right to exist, persist, maintain, and regenerate its essential life cycles, structure, functions, and evolutionary processes."
The nations mentioned previously serve as excellent illustrations of how environmental regulations ought to concentrate on safeguarding nature for nature’s own sake, rather than solely for humanity’s advantage.
Kenya can draw lessons from these instances as it struggles with finding ways to preserve its invaluable natural assets, like the Nairobi River, in an sustainable manner.
No sum of money allocated for clean-up efforts can ensure the long-term survival of the Nairobi River without legal measures in place to shield it from human harm before it becomes too late.