The never ending assault by the Executive, aimed at clawing back on gains made on the independence of the Judiciary has manifested itself again in an ugly way, today. It has been confirmed by the Law Society of Kenya that a raid by officers of the Directorate of Criminal Investigations (DCI) was conducted at the Chambers of two Judges. Justices Said Chitembwe and Aggrey Muchelule were accosted and seized.
The Judges’ Chambers and their persons were searched. The search was claimed to be in pursuit of a bribe in respect to a matter handled by one of the Judges. No evidence of the claimed bribe was found. Undeterred, the DCI officers arrested the two Judges and whisked them to its Headquarters for questioning. The two Judges recorded statements and were released without charge. It will not surprise if it turns out that the Director of Public Prosecutions had not sanctioned the arrest.
It should not be lost to Kenyans that Justice Muchelule is one of the six Judges who have not been sworn-in office. The justification hitherto given by the President of the Republic of Kenya, which violates the Constitution and a final order of the High Court is that there exists information against the Judge on his integrity. No one other the President seems to know of this information.
Justice Chitembwe has been pulled into the nefarious scheme by the Executive. It is hoped that this is not because the Judge is handling the case relating to the Deputy Chief Justice, in which the DCI sought her removal before the Judicial Service Commission having failed in the attempt to charge her before the Chief Magistrates’ Court.
Today’s actions are intended to subjugate and demoralize the two Judges individually and undermine the Judiciary in general. It is time the legal fraternity: the Bench and the Bar stood up in unison to condemn the actions of the Executive. Judges should never be subjected to interference in the performance of their duties, save through constitutional channels and for just and lawful cause. The forum is the Judicial Service Commission.
The following holding of the High Court made in respect to a similar assault on the Deputy Chief Justice, in August, 2018 applies:
While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges. Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first instance. [Emphasis added]
The Law Society of Kenya deprecates the conduct of the DCI. The resolve by the Executive to undermine the independence of the Judiciary through targeted castigation and vilification of Judges should not be countenanced. It is expected that similar conduct will not be repeated, and that the Executive will give an apology on this unjustified and unwarranted conduct. If none will be forthcoming, it will be imperative that the Director of Criminal Investigations Mr George Kinoti resigns or be removed from office.
Dated and signed this 22nd day of July, 2021.
Nelson Andayi Havi, President, Law Society of Kenya
Book Review: Fostering Environmental Democracy and Biodiversity Conservation, by Dr. Kariuki Muigua
“Fostering Environmental Democracy and enhancing Biodiversity Conservation in Kenya is an imperative whose time is now,” Dr. Kariuki Muigua, PhD closing statement in his latest book, Fostering Environmental Democracy and Biodiversity Conservation.
Environmental conservation is a prerequisite for the attainment of the United Nations 2030 Agenda for Sustainable Development Goals (SDGs) as natural resources are required to improve human lives. SDGs prescribes concerted efforts of all players including, public, private as well as communities both in their attainment and environmental conservation with trade and investments playing huge role in financing development and generating resources for conservation efforts. But this is far from the prevailing reality where many international businesses have tended to disregard human rights law and sometimes have even been accused of environmental degradation.
The norm has been communities are sidelined from the economic development and investment projects and activities that are supposed to impact on them and the environment by the government actors and investors. Often, this has taken the form of failure by private and public sectors to involve the communities through public participation as provided for under the national laws and in some cases outright violation of human rights of the respective communities yielding counterproductive results in the quest for Sustainable Development.
In his latest book, Fostering Environmental Democracy and Biodiversity Conservation, (Glenhood Publishers, Nairobi, September 2021), Dr. Kariuki Muigua, PhD argues that if human rights of communities and their right to public participation in development projects as guaranteed under international law regime are not protected, then there is not only the risk of failure of the particular projects but also emergence of conflicts. The book covers the thematic issues of Environmental Democracy, Biodiversity Conservation and Human Rights that are mostly dependent on the health of the environment for their fulfillment, Social Justice, and procedural and substantive rights in matters of biodiversity conservation, among others.
In addition, Dr. Muigua discusses select natural resources that are most relevant to biodiversity conservation as well as key in achieving certain human rights. These include water resources, land and agriculture, forest resources, among others. The thread through all these is established through the theme of fostering environmental democracy and biological diversity with the author making recommendations on how to ensure human rights of communities and especially their right to public participation in development projects is guaranteed to avoid conflicts and promote environmental conservation and achieve of Sustainable Development Goals (SDGs).
Content and Discussion
Chapter One of the book entails general introduction of the key concepts explored in the book, namely, Human Rights, Environmental Democracy and Biodiversity Conservation. While the chapter adopts a holistic approach, in the context of Kenya, in introducing the linkages between Environmental Democracy and biodiversity conservation and highlighting some of the challenges affecting the environment with a bias on biodiversity conservation. It also discusses the place of Environmental Democracy as a tool for promoting active and meaningful participation of communities in the conservation efforts and calls for balance between ecocentric and anthropocentric approaches in biodiversity conservation.
Chapter Two is a general overview of the diverse approaches to Biodiversity Conservation as outlined in the Convention on Biological Diversity. It discusses the important role of biodiversity in ensuring that the sustainable development agenda is achieved for the sake of current and future generations and how the concept of sustainable development is key in striking a balance between using ecosystem services to improve human lives and the need to ensure that the environment can comfortably replenish itself, that is, based on the ecocentric approaches to conservation against the anthropocentric approaches only. The conclusion is that the choice of management approach for each ecosystem should depend on its biodiversity composition.
Chapter Three discusses regulatory framework on Environmental Democracy and Biodiversity Conservation using Kenya as a case study. It highlights some of the main instruments under the international regulatory framework on conservation of biodiversity, both international and domestic, in the context of Kenya. It shows that biodiversity is covered by both strictly environmental legal instruments and more general legal instruments, especially in light of human rights and Environmental Democracy. It sets the stage for the next chapters which discuss how countries, including Kenya, can foster Environmental Democracy and biodiversity conservation, towards achieving the global sustainable development goals.
Chapter Four engages on the role of Biodiversity Conservation in achieving Sustainable Development Goals (SDGs). Biodiversity and ecosystems feature prominently across many Sustainable Development Goals (SDGs) and associated targets as they contribute directly to human well-being and development priorities. Biodiversity is an essential for sustainable development and human well-being as it underpins the provision of food, fibre and water; it mitigates and provides resilience to climate change; it supports human health, and provides jobs in agriculture, fisheries, forestry and many other sectors. Dr. Muigua makes the case that without effective measures to conserve biodiversity and use its components in a sustainable manner, the 2030 Agenda for Sustainable Development are unachievable.
Chapter Five explores the nexus between Biodiversity Conservation and Water Resources Management given that water and wetlands are fundamental to life, livelihood, food security and sustainable development as an important factor of production in the agricultural sector. Chapter Six deals with sustainable land use and agricultural resources management for Biodiversity Conservation and makes some recommendations in respect of the same. He argues achieving conservation should be balanced with ensuring that communities exploit natural resources sustainably to meet their basic needs and also improve their lives. Chapter Seven tackles the ways communities can be effectively included in forest resources management through fostered Environmental Democracy for biodiversity conservation and human rights protection and promotion.
Chapter Eight discusses Gender Perspectives in Biodiversity Conservation and affirms the place of women in biodiversity conservation as part of their contribution towards realization of the 2030 Agenda on sustainable development goals. According to Dr. Muigua, there is a need for efforts towards biodiversity conservation to ensure active and meaningful inclusion of all people, both men and women, as access to these resources affects men and women in different ways. Chapter Nine addresses the place of cleaner and affordable energy sources for all as a tool for Biodiversity Conservation. The chapter explores how Kenya can fast-track its efforts towards achieving sustainable and affordable energy for all its people in line with the United Nations 2030 Agenda for Sustainable Development Goals (SDGs) Goal 7.
Chapter Ten highlights some of the contemporary issues that arise from biological diversity debates and are likely to affect how countries respond to the conservation of biodiversity responsibilities as envisaged under the international, regional and national environmental regulatory frameworks. These include issues touching on environmental, social, political and economic spheres of development. Dr. Muigua demonstrates that biodiversity conservation should not be treated as an independent issue but a complex one that involves various actions spanning across sectors as justification for his call for adoption of integrated approaches to management of various environmental and biodiversity resources.
Recommendations and Conclusion
Chapter Eleven is a case study of how to fostering environmental democracy and biological diversity in Kenya and offers recommendations on how countries can achieve sustainable development agenda through promoting Environmental Democracy and enhancing biodiversity conservation. Some of the proposed recommendations include enhancing environmental education in School Curricula for environmental awareness and environmental ethics, adopting Rights-Based approaches to Biological Diversity Conservation, ensuring effective pest control and promoting conservation of biodiversity for securing food and nutrition security as well as enhancing the place of Indigenous Knowledge in Biodiversity Conservation for increased public participation as resource persons.
Chapter Twelve offers a reflective conclusion to the book and way forward with Dr. Muigua making a strong case for the mainstreaming biodiversity for business as well as community and public participation through environmental democracy in achieving biodiversity conservation. In his own words, “It is imperative that all stakeholders join hands in conservation of biodiversity. Environmental Democracy can be used as a tool for promoting the active participation of all parties and especially communities whose livelihoods directly depend on the sustainable management of these resources…. Fostering Environmental Democracy and enhancing Biodiversity Conservation in Kenya is an imperative whose time is now.”
How Dr. Kariuki Muigua is a Top Environmental Law Scholar in Africa
As a specialist in environmental law and natural resources conflicts/disputes resolution, Dr. Kariuki Muigua is highly esteemed by many in the field as a scholar, academic, author, dispute resolution expert, mentor and consultant.
Dr. Kariuki Muigua is one of the most distinguished environmental law scholars in Africa and one of the foremost experts in Environmental justice and dispute resolution in world. Having specialized in environmental law and natural resources conflicts/disputes resolution, he is highly esteemed by many in the field as a scholar, academic, author, dispute resolution expert, mentor and consultant. He has supervised and examined at least 3 PhD students on environmental and natural resources law in the last 5 years and more than a dozen Masters students.
At the same time, in the last decade, Dr. Muigua has joined a handful of scholars who have dominated research in the areas of Environmental and Natural Resources Law, Environmental Law Governance, Human Rights and Constitutionalism, Environmental Justice and Conflict Resolution. He has written extensively exploring the nexus between environmental law and human rights, Land and natural resource rights, economic law and policy of governments with regard to environmental law and economics. His research in environmental law and conflict management has received more than five hundred (500) scholarly citations in the last five (5) years.
As an author in Environmental Law, Dr. Muigua has authored at least four (4) books in the area. In particular, he is the co-author of the book “Natural Resources and Environmental Justice in Kenya” (2015) and author of Nurturing Our Environment for Sustainable Development (2016) and Securing Our Destiny through Effective Management of the Environment (2020). His recent book, Achieving Sustainable Development, Peace and Environmental Security (2021) has been hailed as “a must read for students, teaching fraternity, members of the bar and the bench, legislators, policy makers, environmentalists and the public in general.”
In addition, Dr. Muigua has contributed at least seven (7) chapters in published books on environmental law and dispute resolution in environmental governance. In addition, he has published more than two dozen articles in peer-reviewed local, regional and international journals on environmental law, environmental justice, natural resources management, sustainable development and environmental conflicts/disputes resolution. Dr. Muigua is also the founding editor of the Journal of Conflict Management and Sustainable Development now in its seventh volume after six (6) years of publication.
Dr. Muigua has also collaborated extensively with various environmental advocacy groups in Kenya and regionally. He advocates the setting up of effective policy, legislative and institutional frameworks for the resolution of environmental conflicts. He is an ardent commentator and contributor to debates on sustainable development goals and has worked closely with many stakeholders in the areas of environmental access to Justice. He has also made learned presentations on environmental law to various interest groups and organizations in his capacity as an authority in the area.
Dr. Kariuki Muigua is also an Environmental Consultant, an Accomplished mediator and a Chartered arbitrator who has resolved numerous disputes touching on natural resources and extractives industry. He works with professionals in the environmental field especially in the areas of Environmental Resources and their management through Environmental Impact Assessment (EIA), Strategic Environmental Assessment (SEA), Mediation and Public Participation. He served as a Member of the National Environment Tribunal, the lead statutory adjudication body for environmental disputes in Kenya, from 2017 as Nominee of the Law Society of Kenya.
Dr. Muigua completed his PhD in Law Thesis a decade ago at the University of Nairobi researching on “Resolving Environmental Conflicts in Kenya through Mediation” focusing on the areas of Public Participation, Mediation and Environmental Democracy. His Masters Dissertation was titled “The Resolution of Natural Resource Conflicts in Kenya through Arbitration and Mediation.” He has received widespread training and experience in both international environmental law and alternative dispute resolution and conflict management over the years.
Dr. Muigua teaches environmental law at the University of Nairobi Faculty School of Law, Centre for Advanced Studies in Environmental Law and Policy (CASELAP) and the Wangari Maathai Institute for Peace and Environmental Studies in the University of Nairobi. He has also facilitated seminars on Environmental Conflicts and ADR, Environment and Conflict Prevention and Environmental Impact Assessment and Environmental Audit among others. He has written several consultancy reports on environment and natural resources management whose recommendations are in application in Kenya and beyond.
Besides being an environmental law scholar and practitioner, Dr. Kariuki Muigua is the Managing Partner of Kariuki Muigua & Company Advocates and is highly esteemed as a Senior Advocate of more than 30 years standing in Kenya. Dr. Muigua is also a Chartered Arbitrator, Fellow of Chartered Institute of Arbitrators, Fellow Institute of Certified Secretaries of Kenya and Member of the Kenya Institute of Management of Kenya. He has been ranked by the prestigious Chambers and Partners Directory as one of the top-ten Arbitrators in Kenya for the last three years.
How Dr. Kariuki Muigua has Contributed to Growth of ADR in Africa
The contribution of Dr. Kariuki Muigua to the alternative dispute resolution (ADR) sector has taken many shapes and forms including as a practitioner, leader, policy maker, scholar, author, trainer, mentor and trailblazer among others.
In the last two decades, Dr. Kariuki Muigua has made immense contribution to mainstreaming of alternative dispute resolution (ADR) and especially arbitration as way of resolving disputes in Kenya, East Africa and across Africa. Starting in 2002 when Dr. Muigua took the Special Member Course leading to membership to the Chartered Institute of Arbitrators (MCIArb), Dr. Muigua one of the staunchest advocates of ADR in Africa in addition to becoming the foremost intellectual voice shaping ADR practitioners and scholars of the future. The contribution of Dr. Kariuki Muigua to the alternative dispute resolution (ADR) sector has taken many shapes and forms including as a practitioner, leader, policy maker, scholar, author, trainer, mentor and trailblazer among others.
Dr. Muigua is a leading Alternative Dispute Resolution (ADR) practitioner in Kenya, Africa and the world at large who has been recognized nationally and globally by peers. The world leading peer-reviewed lawyers’ directory, Chambers and Partners, rates Dr. Kariuki Muigua as one of the best alternative dispute resolution experts in the country. It describes as ‘a highly respected arbitrator and mediator with a sterling background in commercial and constitutional cases, as well as matters relating to the environment and natural resources.’ The most recent ranking adds: “Kariuki Muigua of Kariuki Muigua & Co is held in high regard by market commentators for his role in the Kenyan arbitration sphere. He possesses stellar experience in commercial and constitutional disputes, as well as environmental matters and those relating to the extractive industries. In addition to being “a big noise in the arbitration association,” he is widely recognized for his academic work.”
As an ADR Practitioner, has served in many panels as an arbitrator appointed by the Chartered Institute of Arbitrators (CIArb)-Kenya, the Law Society of Kenya (LSK), the Nairobi Centre for International Arbitration (NCIA), the London Court Of International Arbitration (LCIA) and the International Court of Arbitration under the auspices of the International Chamber of Commerce (ICC) on several occasions as a sole arbitrator and a member of arbitral tribunals in arbitrations involving commercial disputes. He has vast experience and expertise in adjudication and has sat as both as a panel member and a chairperson in various adjudication Boards both locally and internationally. He is also an accomplished mediator and has successfully presided over numerous matters both as a private mediator and a court appointed mediator under the Court-Annexed Mediation program in Kenya.
Dr Muigua was elected (unopposed) to the Chartered Institute of Arbitrators (CIArb) Board of Trustees as the Regional Trustee for Africa, for the term beginning 1 January 2019. Previously, he served as the Branch Chairman of CIArb-Kenya from 2012 to 2015. He also served CIArb as Member and past Chairperson of the Sub-committee on Information Technology (IT), CIArb and as Member of the Legal Committee Chartered Institute of Arbitrators (CIArb) – Kenya chapter. He is a Fellow of Chartered Institute of Arbitrators (CIArb)-Kenya chapter. He is also a member of the London Court of International Arbitration (LCIA), Chartered Institute of Arbitrators (UK) and Kenya Branch. He is also a Member of Kigali International Arbitration Centre (KIAC) and Nairobi Centre for International Arbitration (NCIA). For his contributions, he was awarded Chartered Institute of Arbitrators Chairman’s Medal with a citation for exemplary service in December, 2015.
In policy-making, Dr. Kariuki Muigua is currently a member of the National Steering Committee for Formulation of the Alternative Dispute Resolution Policy representing the Academia since 2020. The team is providing guidance and overseeing the process for formulation of a national policy and institutional framework on Alternative Dispute Resolution (ADR) in Kenya. He has also served as Member of the Meditation Accreditation Committee Panel of Mediators Accredited for Commercial Mediation under the Judiciary of Kenya. Recently, he led negotiations that achieved partnership with Chartered Institute of Arbitrators UK on GPR 625 (International Commercial Arbitration) for University of Nairobi LLM students to achieve membership status without further tests, 2020 to 2023.
On ADR Scholarship, Dr. Muigua is the author of the leading textbook on Arbitration in Kenya, namely, Settling Disputes through Arbitration in Kenya, now in its third edition (2017), Alternative Dispute Resolution and Access to Justice in Kenya (2015) and Resolving Conflicts through Mediation in Kenya (2013). He has been cited hundreds of times as an ADR Scholar, contributed at least 3 chapters of published books, authored dozens of peer-reviewed articles in the areas of arbitration and alternative dispute resolution and presented over two dozen papers on ADR in diverse fora. Dr. Muigua has also facilitated numerous trainings, workshops and conferences on ADR. He has supervised and supervised at least two (2) completed PhD thesis on ADR, Dozens of Masters Thesis and is supervising three (3) PhDs in the area as a lecturer and mentor in ADR practice and scholarship. Dr. Muigua is a lecturer in International Commercial Arbitration at the University of Naiorbi and tutor, trainer and assessor at the Chartered Institute of Arbitrators (Kenya Branch).
Dr. Kariuki Muigua is a Chartered Arbitrator (since January 2015) and Fellow of the Chartered Institute of Arbitrators (since October 2010) and Member of the Chartered Institute of Arbitrators (since 2002). He holds a Diploma in Arbitration (2012) and became Accredited as a Mediator by the Mediation Training Institute in 2015. He is also a renowned consultant on ADR Law and Practice and has authored reports whose recommendations had far reaching impact on the sector. As a professional who strives to attain excellence in the legal and ADR arenas, Dr. Muigua has gone out of his way to put ADR in the frontline as one of the leading modes of dispute resolution in Kenya, Africa and at global stage. Dr. Muigua is a holder of a Ph. D in law from the University of Nairobi and has widespread training and experience in both international and national commercial arbitration and mediation. Currently, he served as the chairperson, Department of Private Law of the University of Nairobi School of Law 2020-2021.
Why Wakili Joel Mbaluka is the Best and the Next Machakos Senator
EALA MP Mbugua Receives UDA Nomination Certificate for Starehe MP
Chaos in Wiper as Kiema Appeals Claiming Malombe is Not a Wiper Member
Wakili Sigei’s Role During UDA NDC Confirmed Him as Next Bomet Senator
Wakili Charles Mwalimu Break Record by Hosting DP Ruto Twice in a Month
Speaker Wahome Ndegwa Unveiled as CCK Nyandarua Governor Candidate
News9 months ago
Why Wakili Edward Muriu is the Gatanga MP in Waiting for 2022
Counties10 months ago
Marianne Wanza: Ngilu’s Officer Who Asked Advocate for Ksh. 600,000 Kickback
News10 months ago
Rigathi Arrest: Ten (10) Things You Need to Know
Counties10 months ago
Why Kiema Kilonzo is Tipped to Win Kitui Governor Race in 2022
Counties9 months ago
Why Senator Susan Kihika has No Competition for Nakuru Governor in 2022
Counties10 months ago
Lawyer Mutuse Mwengi Tipped to Win Kibwezi West MP Next Year
Business9 months ago
How Dr. Kariuki Muigua is a Top Environmental Law Scholar in Africa
Counties10 months ago
What Next for Charismatic Uasin Gichu Speaker Hon David Kiplagat?