Asian and African Judges Talk Climate Change and the Rule of Law

Ahead of the Asian Development Bank’s Third Asian Judges Symposium on Environment we met with special guest to the symposium Hon. Lady Justice Mary Muthoni Gitumbi of the Environment and Land Court of Kenya to talk about what motivated her to become a judge and what environmental rule of law means to Kenya’s sustainable development. The Symposium, on the theme ‘Law, Policy and Climate Change’ is co-hosted by the Supreme Court of the Philippines and UN Environment Asia Pacific.

1) When did you know you wanted to study law and did you ever think you would someday become a judge?
Growing up as a young girl, I had no idea what I wanted to be when I grew up. By nature though, I am very rules oriented and meticulous. It turns out that this works well for a legal career! After High School, we were required to select what we wished to study at the university. I chose medicine as my first choice and law as my second choice. It so happened that I did not get medicine and was instead offered an opportunity to study law. At the time I was disappointed but just one semester into my legal studies, I was hooked! I found out that law fitted very well with my aspirations, character and nature. To this day, I thank God every day that I did not get selected to study medicine.

Initially I never thought that I would become a judge. It wasn’t until 10 plus years of legal practice in various capacities, that it became apparent that becoming a Judge was a natural career progression for me. I find it quite exciting as I deal with disputes and my rulings and judgments actually directly impact people's lives and rights.

2) How have you seen the environment change in Kenya since you were a girl and how in the course of your work do you see these changes affecting people's lives, including their health, businesses, land and property?
The environment in Kenya has changed tremendously since I was a girl. Where there were open green spaces and forests, there is now residential housing, businesses and concrete jungles. Land has become a much sought after resource with everyone wanting to construct a flat, a business, a private school, etc. Gigiri, where I grew up, is a prime example of this. It was once a coffee plantation but now we have residential and offices. My view is that though the country must develop, we also need to ensure that we leave portions of our land for parks, forests, and green areas which people can access and enjoy.

3) How important is environmental rule of law to Kenya's sustainable development objectives and why?
We need to ensure that development of Kenya is a sustainable one. This means as the country develops we need to preserve our environment and natural resources - not just for ourselves but also for generations to come. This is why environmental rule of law is critical to ensure that citizens observe sustainable development by holding themselves, policy makers and organisations accountable for their actions and help all parties understand the impact their actions on the environment.

4) You were nominated to participate in the exciting Asian Judges Symposium on Environment. What are you hoping to learn from the Asian judges you will be collaborating with, and what lessons do you think they could learn from Kenya's development and implementation of environmental rule of law?
It would be quite interesting to learn from the Asian Judges the nature of cases they have heard and determined regarding the preservation of the environment, particularly those related to climate change. Kenya is one of the few countries in the world with a specialized court dealing with Environment and Land cases. I am sure the Asian Judges would be interested in finding out what our experience in this specialized court has been.

5) What challenges does the judiciary face in implementing the rule of law to protect the environment in Kenya and in Africa?
The Kenyan Judiciary, and especially our Environment and Land Court, faces some challenges in implementing the rule of law to protect our environment. The real challenge lies in the fact that with environmental cases, it is difficult to pinpoint who is responsible for degrading the environment and the best measures to take to mitigate the damage. Furthermore, few environment cases make their way to our specialized court. Since the inception of the Environment and Land Court in Kenya, I can say that most of the cases we hear are cases involving land rights – more specifically title, occupation and use of land. Furthermore, in Kenya, we have the National Environment Management Authority (NEMA) under which the National Environment Tribunal (NET) operates. Most of the decisions on development of land and its impact on the environment are taken by the Director of NEMA and any challenges to those decisions are handled by NET. However, the specialized court is only four years old so we cannot jump to any conclusions for now. It is good that the specialized court is there and I believe as more people learn of its existence, we are bound to see more environment cases coming before us for determination.

6) If you could choose one change or measure that would make the prosecution of people and organisations committing environmental crimes more effective what would it be?
That is easy. To make the prosecution of people and organisations committing environmental crimes more effective, in addition to the prescribed penal consequences, I would require them to plant trees!

About the Asian Judges Symposium on Environment
The Asian Judges Symposium on Environment brings together senior judges, legal professionals, experts on climate change, and other participants to focus on the core theme and to explore the role that the “Rule of Law” can play in responding to climate change.

For more information see http://www.asianjudges.org/

For further information please contact satwant.kaur [at] unep.org , niamh.brannigan [at] unep.org