Charles Lukeyen Nabori, et al. v. Attorney General, et al.

The petitioners were pastoralists and communal landowners in the Baringo District in Rift Valley Province, Kenya. The petitioners alleged that the respondents (the Attorney-General, the Minister for Environmental and Natural Resources, the National Environment Management Authority, and the County Council of Baringo) were liable for violating their rights to life (under Section 71 of the Constitution of Kenya), protection of property (under Section 75 of the Constitution), and freedom of movement (under Section 81 of the Constitution).

Around 1982, the Government of Kenya authorized the introduction of the weed prosopis juliflora (prosopis) by the Minister for Environmental and Natural Resources and the Food and Agricultural Organization (FAO) in order to curb desertification and to provide fuel wood, fodder, and timber for construction. The local people and their leaders were not consulted in this decision. Prosopis turned out to be highly invasive and spread quickly in Baringo, causing adverse environmental and socioeconomic effects for the area. For example, the unabated spread of prosopis contributed to massive poverty in the area by destroying pasture lands and causing death of livestock. Its thorns also led to health problems, including amputations, and displaced residents from their homes. Prosopis shrubs also caused road and footpath blockages and punctured machinery and vehicle tires.

The petitioners alleged that the respondents should be held liable for the losses and damages associated with prosopis because the respondents were negligent in allowing the weed to be introduced, in failing to take measures to stop the spread, and in failing to compensate affected parties.

The petitioners further alleged that the National Environment Management Authority should also be held liable for failing to fulfill its statutory duties under the Environmental Management and Coordination Act – namely, for failing to carry out an environmental impact assessment, for failing to research and monitor the impact of prosopis, and for failing to take action or to advise the Government to take action to address the ensuing problems.

The petitioners originally filed a suit against the State in 2006, but the suit was withdrawn after a preliminary objection was raised. The petitioners then filed for constitutional reference, in the present case.

Three judges gave separate opinions. The majority of the Court held that the government’s introduction of prosopis compromised the petitioners’ right to life and its adverse effects jeopardized their right to live a dignified life. The majority further held that the fundamental right to life under section 70 of the Constitution included the right to a clean and healthy environment, free from pollution that was detrimental to human health, wealth, and/or socio-economic well-being. Section 70 granted inalienable rights that were not limited to those rights set forth in sections 71-83 of the Constitution; rather the right to life under section 70 of the Constitution meant the right to live with human dignity up to the end of one’s natural life.

The majority also determined that the State’s failure to take steps towards the eradication of prosopis amounted to a breach of the petitioners’ rights to property. The majority noted that the right to property as enshrined in section 70 included more than the right to protection of property from compulsory acquisition by the government for a public purpose; rather, such compulsory acquisition was only one of the ways in which the right to property could be breached. The majority found that the land was held in trust for the benefit of the petitioners and so, according to section 115 of the Constitution (relating to county council’s holding trust land vested in it for the benefit of the land’s residents), the petitioners had interest in and rights to the land under African Customary Law. The majority further noted that the spread of prosopis had affected the petitioners’ right to enjoy their ancestral land, made their homes uninhabitable, and prevented them from sustaining their livelihood on the land. By failing to take action against the harmful effects of prosopis—the government had prepared neither any policy nor financial plan to confront the menace--the State had breached the petitioners’ right to property.

One dissenting judge would have dismissed the petition. The dissenting judge argued that the petition, although within the jurisdiction of a constitutional court, amounted to an abuse of process because it was a misjoinder to include the National Environment Management Authority and the County Council of Baringo to the petition. The dissenting judge further argued that the right to life under Section 71 had not been breached because the petitioners did not show that any person had lost or been intentionally deprived of his or her life. Although prosopis thorns had been shown to cause health problems, the dissenting judge noted that this was true of thorns from any other plant as well. The dissenting judge argued that Section 75 of the Constitution (guaranteeing protection of property) had not been engaged because the petitioners did not argue that State had compulsorily acquired their land, nor did they indicate precisely whose land and how much land had been acquired. Thus, the dissenting judge would not have held the State liable for the losses and damages caused by prosopis because it had been introduced with good intentions, and its harmful effects were only realized twenty years after its introduction, making the damages too remote to hold the Government and Ministry accountable. Moreover, the dissenting judge would not have held the National Environment Management Authority liable because the Environmental Management and Coordination Act did not come into force until 1999, over a decade after prosopis was introduced.

“The principle of polluter must pay is upheld whereby the government of Kenya is held accountable of its actions made twenty years earlier or more knowingly or not. There is a duty of care and accountability by the Government of Kenya to be taken. The government made a mistake in introducing a noxious plant. Though their intentions may have been good the results which has been negative must be remedied by the government of Kenya.” Ang’awa J, page 66.

“I shall not like the Constitution to represent a mere body or skeleton without a soul or spirit of its own. I do not expect its makers had aforesaid vision, or that picture for our Constitution. I shall in conclusion adopt the school of interpretation of the Constitution being a living tree with roots whose branches are expanding in natural surroundings. I do agree it must have natural and robust roots to ensure the growth of its branches, stems, flowers and fruits. I thus reject the vehement urge from the Respondents to give a literal meaning to rights enumerated in section 70 of the Constitution.” Rawal J, page 74.

“I may add here that even though in our Constitution the words ‘human rights’ is not found, its chapter V, if acted upon in its true letter and spirit, is a complete charter of human rights. That includes section 70 which is the basis, or better, the soul and heart of the fundamental rights. In my considered opinion, Sections 71 to 83 are not the definitions or interpretations of the basic human rights capitulated in section 70 as the learned Defence Counsel would like us to see.

I get strength in so stating from the very words of section 84(1) which mentions infringement of rights granted in sections 70 to 83. If what the learned counsel are contending is true than nothing would be easier for the makers of the Constitution not to include section 70 amongst other sections. This fact strongly shows that section 70 grants rights which are inalienable and they are not included or interpreted in any of the sections from 71 to 83. That section has, in my considered view, a place of its own and cannot be diluted or limited or interpreted by any other sections of the Constitution.” Rawal J, page 75.