2.0 REVIEW EXISTING STANDARDS AND GUIDELINES

As already stated, the Kenya Government appreciates and is concerned about environmental pollution is articulated in several policy documents. For instance, in the National Environment Action Plan Report of 1994, the Government states that various human activities have led to increased instances of air pollution, liquid and solid wastes. In order to manage these cases, the government recommends a number of legislative and administrative measures. Some of these include the enactment of comprehensive legislation
on control and management of gaseous emissions, review and updating the water standards' regulations as provided under the Public Health Act (Chapter 272) and the Water Act (Cap 372), formulating policies on gaseous emissions, review and enforce legislation to deter water pollution and encourage waste water recycling.

The issues of environmental management and environmental standards have been addressed by various international inter-governmental and non-governmental organisations in so far as these fall within their statutory
mandates. For instance, from its very beginning the International Labour Organisation (ILO) has dealt with the issue of occupational hazards, primarily in order to attempt to eliminate the most dangerous situations and the most
serious risks in the working environment. The preparation of international standards for the protection of workers' health has been the principal objective of the ILO's safety and health activities. The ILO has always operated on the principle of the importance of the working environment in which most of the world's population spend the greater part of their lives, cannot be overlooked in any consideration of the total human environment.

The ILO standards are universal in nature, that is, they are applicable to and capable of attainment by countries with very different social and economic structures and at all stages of industrial development. To attain this objective, standards are made flexible rather than rigid, but must be at the same time meaningful targets for social development. This flexibility is brought about by consideration of the constitutional directive that in framing a convention or recommendation of general application, the ILO Conference must have due regard to those countries in which climatic conditions, the imperfect developments of industrial organisation or other special circumstances make the industrial conditions substantially different and
must suggest the modifications, if any, which it considers may be required to meet the case of such countries (Article19(3) of the ILO Constitution).

Of particular relevance is the Working Environment (Air pollution, Noise and Vibration) Convention adopted by the ILO General Conference held in June 1977 at Geneva (Convention No. 148). Article one (1) of the Convention makes it applicable "to all branches of economic activity" although paragraph two excludes "particular branches of economic activity in respect of which special problems of a substantial nature arise". The term "all branches of
economic activity" has been defined as a comprehensive expression covering all fields, in which members of the economically active population are gainfully employed in the public as well as the private sector (ILO, 1982).

Article 4 of the Convention lays down a general framework for the regulation of matters concerning occupational hazards in the working environment. Paragraph 1 provides that national laws or regulations must be taken for the
prevention and control of, and protection against, occupational hazards in the working environment due to air pollution; noise and vibration. Article 8(1) provides that the competent authority of a state party to the Convention must establish criteria for determining the hazards of exposure to air pollution; noise and vibration in the working environment and where appropriate, must specify exposure limits on the basis of these criteria. Under paragraph 3, the criteria and exposure limits must be established, supplemented and revised regularly in the light of current and national and international knowledge and data. This knowledge and data may be provided through research by competent inter-governmental or non- governmental international institutions or standards adopted at the national level by developed countries which set examples widely followed by other countries.

With respect to air pollution, the ILO has publicised the Occupational Exposure Limits for Airborne Toxic Substances (ILO, 1980a) which provides a review of the present approach to the problem of exposure limits to noxious substances in the working environment and presents the limits prescribed or recommended in a number of countries. The publication gives specific and
detailed explanations with respect to toxic substances, particulate matter and carcinogens.The ILO has also issued the Code of Practice on Occupational Exposure to Air-borne Substances Harmful to Health (ILO, 1980b) which sets objectives to be attained in successive stages in different countries and enterprises according to local circumstances and possibilities. Chapter 3 of the code has detailed provisions on the establishment and application of exposure limits for harmful airborne substances.

The World Health Organisation (WHO) has not only been interested but involved in the control of environmental factors that adversely affect health, such as chemicals and their effects, and other pollutants on air, water, and soil quality standards. Setting environmental guidelines and standards has been one of its main activities, given that the health of the environment has a direct effect on the health of the people.

At the national level, in Kenya, there are several pieces of legislation and statements of policy related to the sectors of the environment covered in this report. The principal legislation that deals with water quality is the Water Act(Chapter 372). The other legislative instruments are the Public Health Act (Chapter 389) and the Penal Code(Chapter 63).

The Water Act and the Water (General) Rules (Legal Notice 374 of 1964) subject the discharge of effluent, trade wastes or solid wastes into or near a water body, to strict controls. Firstly, Section 160(2) of the Act imposes a general prohibition regarding such discharges into or near a body of water. Secondly, Rule 72 of the Water (General) Rules provides that any discharge of effluent into a body of water must conform to a degree of purity that satisfies the Water Apportionment Board. The effluent to be discharged must not contain any matter which might be poisonous or injurious to public health, to livestock or to crops. Any person whose effluent does not comply with this rule is guilty of an offence. The Act does, however, empower the relevant institutions to establish water quality and discharge standards.

The Public Health Act defines nuisances on land and premises and empowers public health authorities to deal with such conditions. Such nuisances include noxious matter or waste-water being discharged into water-courses thereby polluting water sources and supplies meant for domestic purposes or human consumption (Sections 115and 118) The Public Health Act is primarily concerned with domestic water supplies and sources of water used for human consumption, although its regime may be extended to cover rivers, streams, lakes and underground water since these are the basic sources of water for the majority of Kenya's population.

The Merchant Shipping Act focuses on the pollution of coastal and marine waters. The statute does, however, limit itself to discharges of oils from ships within 100 miles of the Kenyan coast. The wider, and perhaps more significant, issue of discharge of other pollutants or the dumping of waste in marine waters is not therefore, addressed by the Act.

The existing water legislation does not, however, make any provision for the establishment and enforcement of specific water quality standards and discharge guidelines. The legislation merely refers to discharges that are likely to cause pollution or those which may be harmful, injurious or poisonous. Neither the Water Act nor the Public Health Act defines the terms "pollution", "effluent", and "waste", notwithstanding the fact that these are used regularly in the provisions

Section 191 of the Penal Code criminalises the voluntary corruption or fouling of water of any public spring or reservoir "so as to render it less fit for the purpose for which it is ordinarily used", without provision of any yard- stick for measuring such corruption or fouling. Currently, the Government uses the discharge guidelines that have been adapted from the British Royal Commission Standards on the Prevention of River Pollution, and the WHO Guidelines although these have not, however, been published as the official guidelines.

In 1990, the coverage of the Factories Act, which regulates safety, health, and welfare conditions within the factory working environment, was extended so as to cover the issue of the impact of industrial production on the general
environment. This was done by the Factories (Amendment) Act, 1990 (Act No. 31 of 1990). Section 17 of the 1990 Act, amending Section 51 of the principle Act, now requires that dust, fumes or impurities shall not be emitted into the atmosphere without first undergoing appropriate treatment to prevent air pollution or other ill-effect to life and property Section 192 of the Penal Code criminalises voluntary conduct that vitiates the atmosphere in any place, "so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public highway". There is no specification of quantities of, for instance, particulate matter that may trigger liability under the law.

Kenya being an agricultural country, the quality of its soils is critical to its economic growth. The soils are the foundation of all agricultural activities. There exist several pieces of legislation related to soil and the maintenance of
its quality. Of these, the Agriculture Act (Chapter 318), the Land Planning Act (Chapter 303), and the Fertilizers and Animal Foodstuffs Act (Chapter 345), are of direct relevance.

The main objectives of the Agriculture Act are to promote and sustain agricultural production, provide for the conservation of the soil and its fertility and stimulate the development of agricultural land in accordance with accepted practices of good land management and husbandry

The Land Planning Act establishes the legal and institutional framework for land-use planning and zoning in the country. It provides for both the elaboration of land-use plans and development controls. The Act establishes two institutions for land-use planning purposes, namely, an "interim planning authority" and the Central Authority.

The Fertilizers and Animal Foodstuffs Act regulates the importation, manufacture and sale of agricultural fertilizers and animal foodstuffs and substances of animal origin intended for the manufacture of such fertilizers and foodstuffs.

The Pest Control Products Act (Chapter 346) also has provisions whose effect is to prevent soil pollution. The Act regulates the importation, exportation, manufacture, distribution and use of products used for the control of pests and of the organic function of plants and animals.