32 ELR 10045 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Regulation of Pesticides in Developing Countries

Jane Dwasi is a Visiting Scholar at the Environmental Law Institute where she has focused on the constitutional and statutory protection of the environment, environmental rights of indigenous communities, and environmental advocacy tools for indigenous communities. She holds numerous law degrees from Kenya as well as the United States, including an S.J.D. and a Master of Laws from the University of Wisconsin Law School and a Diploma in Law from the Kenya School of Law. Prior to working at ELI, she was a research assistant for the National Center for Agricultural Law Research and Information in Fayetteville. Arkansas; an attorney for M/S Mereka & Co. in Nairobi. Kenya; and a research attorney for the Kenya Federation of Women Lawyers in Nairobi, Kenya.

[32 ELR 10045]

What is an appropriate regulatory response to the enormous growth of pesticide use in developing countries?¹ The question falls within the broader issue of how developing countries deal with the consequences of their application of technological packages to agricultural production. As developing countries step up efforts to improve agricultural production, there are rising concerns about the social and economic costs of their agricultural development in terms of the negative health and environmental impact that pesticides are or are likely to cause. Further, developed countries are concerned that adverse effects of pesticides may spill over to their consumers when they import and consume agricultural products on which pesticides have been applied in developing countries. It would be difficult to address the regulatory situation in all developing countries with regard to pesticides. Therefore, this Article focuses on Kenya and seeks to examine the extent to which Kenya's laws prevent, minimize, punish, or remedy consequences and actions involving pesticides. Law plays an enormously important role in protecting health and the environment from adverse consequences of pesticide technology, yet Kenya's existing laws have not provided effective protection to health and the environment from adverse impacts of pesticides.

This Article is not an attack on pesticides or pesticide use as such. What the Article calls for is a rational use of pesticides that allows for consideration of the actual and potential detriments. The Article is not intended to blame Kenya or to highlight its failure in the area of health and environmental protection. Rather, it serves as an example of the kinds of measures a developing country can take to deal with negative consequences of development. After providing a background of pesticide use in Kenya, the Article examines Kenya's laws that are intended to regulate pesticides and laws that are intended for other purposes but have relevance to pesticides. This examination demonstrates that although law would play an enormously important role in protecting health and the environment from adverse consequences of the pesticide technology, Kenya's existing laws have not provided effective protection to health and the environment from adverse impacts of pesticides. The Article also looks at the various international treaties and agreements that regulate the use of pesticides. They too are inadequate for purposes of regulating pesticides in Kenya. The Article then looks at a recently enacted law, the Environmental Management and Coordination Act, that gives hope that pesticides will be better regulated in the country. The Article concludes with a number of suggestions for the improvement of existing laws and their enforcement machinery, including legal reform and the creation of supportive tools and mechanisms. Any measures taken, however, must be suitable to the circumstances of the people of Kenya.

Pesticide Use in Kenya

As in many developing countries, agriculture is the primary economic activity in Kenya. Kenya relies on agriculture not only to feed its increasing population, but also for trade in both domestic and international markets. Currently, the population of Kenya stands at 27.8 million, up from 21.4 million in 1989 and 15.3 million in 1979.² The substantial increase in Kenya's population has increased the demand for food in a country where only 18% of the land is arable.³ Moreover, malnutrition still affects at least 25% of children, and the nutritional status of adults in rural areas and in urban centers, including its capital, Nairobi, is unsatisfactory.⁴ Kenya's hospital outpatient morbidity records show that in 1994, a total of 34,539 patients were treated for malnutrition in various hospitals throughout the country. In 1995, the number of patients treated for malnutrition was 39,977, and in 1996, it was 35,013. These figures represent 51.26% of the total numberof outpatients treated at hospitals in all the eight provinces of the country.⁵ These factors call for a constant increase in food production. Moreover, agriculture provides the basis of the economy of Kenya, a country that is endowed neither with sufficient mineral resources nor with a strong manufacturing base. Although at the moment agriculture accounts for 25% of the gross domestic product, agricultural commodities form the majority of Kenya's exports. [32 ELR 10046] In 1999, for example, agricultural products comprised 80% of exports.⁶

In its efforts to improve and increase agricultural production, Kenya has faced a number of challenges, especially pest problems, that present a major threat to agricultural production.⁷ In 1927, damage to coffee resulting from mealybug infestation was estimated at 100,000 British pounds. By 1929, the loss had gone up to 400,000 British pounds. In 1950, grain loss attributed to quelea quelea, a vicious bird, was estimated at between 600,000 and one million tons.⁸ In 1999, army worms descended on Kenya's vegetation, causing massive crop loses in many parts of the country.⁹ Furthermore, in certain European countries where Kenya's agricultural commodities are exported, some of Kenya's agricultural products were banned for fear of disease infestation.¹⁰ In addition, disease-causing vectors such as tse tse flies and mosquitoes made improvement of agricultural production almost impossible because the prevalence of these vectors and the diseases they cause made the clearing of land for expansion of agricultural acreage and the availability of farm labor difficult. Pest damage to crops and livestock in Kenya has resulted in poor yields, and severe crop failures often cause economic losses not only to farmers but also to the government.

A number of technological packages have been adopted in Kenya to alleviate some of the problems facing agricultural production in order to enhance productivity. Although farm mechanization was introduced to facilitate expansion of farm acreage and production and improved seed varieties were introduced and are constantly improved to ensure production of better quality crops, Kenya has, to a large extent, relied on chemically based pesticides to alleviate pest problems.¹¹ Since Kenya does not have sufficient industries to manufacture enough pesticides to meet local demand, the country has, over the years, imported much of its pesticides from other countries. For example, in 1999, Kenya imported pesticides worth 141 million Kenyan pounds for application, mainly in agriculture.¹²

There is no doubt that pesticide use has greatly enhanced agriculture in Kenya. It has significantly contributed to the expansion of agriculture in terms of acreage and output in terms of volume and quality of agricultural commodities. Between 1955 and 1960, the quantity of coffee produced by indigenous farmers alone increased from 750,000 to 4.607 million tons.¹³ The quantity of maize exported from Kenya between 1994 and 1997 increased from 1,685 to 263,653 tons. Similarly, the quantity of horticultural products (including fresh cut flowers, fruits, and vegetables) exported from Kenya increased from 165,481 to 304,461 tons between 1994 and 1996, and the area under sugar cane cultivation increased from 104,675 to 131,130 hectares over the same period.¹⁴

In spite of these agricultural benefits, pesticides and pesticide use pose certain dangers to human health and the environment. Animal studies, epidemiological studies, clinical studies, medical reports, health surveys, and environmental monitoring tests, studies, and surveys demonstrate that pesticides can cause death as well as chemical burns, cancer, neurological toxicity, endocrine disruption, infertility and sterility, weakening of the immune system, congenital malformations (birth defects), skin dermatitis, vision impairment, nausea, vomiting, stomach ache, and environmental contamination, among other ills.¹⁵ These kinds of harm occur due to the inherently dangerous nature of pesticides. Their occurrence is dependent on how and where pesticides are obtained, produced, used, handled, and disposed.

In developing countries like Kenya, these kinds of harm are more likely to occur due to a number of factors. There is general lack of knowledge about pesticides and pesticide dangers. Moreover, like most developing countries, Kenya has not developed sufficient industries to manufacture pesticides for domestic consumption and relies on industrialized countries for supply. This places it at the risk of importing dangerous pesticides. Studies show that pesticides whose dangers have been found to outweigh the gains in the manufacturing countries and have been banned in those countries are, nevertheless, exported to developing countries where knowledge of the dangers is nonexistent or scanty, and that such pesticides have caused severe damage in the developing countries.¹⁶ Studies also show that no government prohibits [32 ELR 10047] the export of pesticides banned in their own country.¹⁷ Further, World Health Organization (WHO) records show that although industrialized countries produce 90% of the world's pesticides, most of the three million cases of acute poisoning from pesticides and 2,000 pesticide-related—deaths that occur each year happen in developing countries because of their importation of banned pesticides and other circumstances.¹⁸

In Kenya, pesticides have caused death of farm workers, nausea, vomiting, skin rashes, swellings on the body, memory loss, dizziness, and stomach ache, just to mention a few. Kenyatta National Hospital currently handles at least 730 cases of pesticide poisoning in a year, at an estimated cost of 336 million Kenya shillings annually.¹⁹ In 1981, the same hospital treated 221 cases of pesticide poisoning, out of which 13 people died. Pesticides have also caused death of fish in Kenya's lakes, including Lake Victoria, and other forms of environmental contamination. These harms have occurred and continue to result from various human activities involving pesticides, namely importation, production, distribution, marketing, use, and disposal of pesticides and pesticide containers.

Existing Laws Affecting Pesticides in Kenya²⁰

Kenya does not have a single comprehensive statute regulating all aspects of pesticides. Besides the Pest Control Products Act (PCPA), which was intended specifically for pesticides but is not comprehensive, pesticides are affected by a number of pieces of legislation, most of which were not drafted specifically with pesticides in mind. Provisions regarding pesticides are found in the Standards Act, penal laws, some labor statutes, public health statutes, agricultural statutes, administrative statutes, and lately, the Environmental Management and Coordination Act (EMCA). These statutes are relevant because they contain provisions for protection of health and the environment from substances and phenomena that may include pesticides.

Nevertheless, the following analysis points out that pesticides remain largely unregulated. Existing statutes that are applicable to pesticides contain fragmented provisions that attempt to either regulate pesticides specifically, or attempt to protect health and the environment from harmful substances whose description include or may include pesticides.

The PCPA

Kenya passed the PCPA in 1983.²¹ According to its preamble, the PCPA was intended to regulate the manufacture, importation, distribution, and use of pest control substances. The statute creates the Pest Control Products Board (Board) and charges it with the responsibility of its implementation and administration.²² The Board is the single most important institution in charge of all matters concerning pesticides.

[] Imports of Pesticides. The PCPA provides for claborate registration requirements as well as requirements for the packaging and labeling of pesticides.²³ On their face, the importation requirements seem broad enough to allow the Board to ensure the safety of pesticides imported into the country. The Board is empowered by the PCPA to refuse to register a pest control product to allow importation and commercial uses of pesticides if the use of pesticides would lead to unacceptable risk of harm. Likewise, the Board has power to suspend or revoke registration if it is found that the information submitted by importers is false or incomplete in material particulars. Unfortunately, although the registration requirements for pesticide imports provide an opportunity for official scrutiny of these products to prevent or reduce the dangers noted, the information comes from importers whose interests may very well be focused on business success and profit margins rather than safety. Registration regulations allow the Board to take samples of intended pesticide imports and analyze them through testing, but the submission of pesticide samples is not mandatory. In addition, although submitting false information is an offense under the PCPA, there is nothing in the statute or in practice that would ensure that submitted data is authentic. Further, although the rules specify that the Board shall allow registration only if satisfied of the safety, efficacy, quality, and economic value of pesticides, information obtained during interviews disclosed that the Board hardly conducts safety tests.

In addition, it is also curious to note that although there is a clear indication of the point at which pesticides are deemed as exported from Kenya, there is no clear delineation as to when pesticides are deemed as imported into Kenya.²⁴ At the moment, there is nothing in the existing regulations to prevent the arrival of any amount of pesticide consignment into the country prior to registration. Moreover, although an import license is required for pesticides, obtaining a license under the PCPA's regulations proceeds actual entry of pesticides into the country.²⁵ There is nothing to stop movement of pesticides to any part of the country once they have been brought in. This inability to determine the kind and nature of pesticides imported into Kenya severely undermines the whole intention to regulate pesticide imports. Another significant loophole lies in the lack of continuous monitoring of pesticides once they are released into the Kenyan market. Thus, one would rightly conclude that in Kenya, pesticide imports are still largely unregulated, particularly in so far as matters of safety to human health [32 ELR 10048] and the environment are concerned, despite the existence of the PCPA.

[] Control of Pesticide Production Under the PCPA. The PCPA also makes provisions intended to control the production of pesticides, which includes the manufacture, formulation, or any process whose end result is the creation of substances intended for pest control. Basically, the regulations require manufacturing and formulation premises to be licensed.

The licensing regulations require that all premises used for manufacturing and formulation be of a suitable design, layout, and construction to ensure the health of workers and to avoid contamination of the environment.²⁶ In relation to the protection of worker health and the environment, however, the key word here is "suitable." The Act does not define what "suitable" is or give any guidance as to what a suitable design, construction, or layout would be. Neither has the Board created any standards to offer guidance in determining what would be suitable for purposes of safety in pesticide production facilities and operations. Therefore, what is suitable is left for the manufacturers and formulators themselves to decide. As a result, requirements that pesticide manufacturing must take place away from areas with high population concentration are conspicuously lacking. The Act does well to recognize that the quality of products used in a pesticide production facility ought to be within prescribed limits.²⁷ However, it has yet to prescribe limits and standards for quality.

The PCPA also recognizes workers in pesticide production facilities as a group of people in need of regulatory protection but fails to adequately provide for their safety. The Act requires employers to ensure that workers wear and use protective gear during operations, but it does not require employers to provide them.²⁸ Because Kenya, like other developing nations, is a country where necessary clothing and equipment is difficult for employees to find even if they could afford them, employers ought to be required to supply their workers with them. Likewise, providing water for washing and bathing and changing rooms are basic needs of workers in pesticide production facilities, but these are yet to be provided for.

Even if the statute had sufficient provisions for the protection of workers in pesticide production facilities, the effectiveness of such provisions would still be dependent on the Board's capability to determine whether or not they are complied with. The PCPA provides for an office of inspectors, who are empowered to take the measures provided by the statute, including taking samples and petitioning the courts for orders prohibiting continuation of production operations. In reality, however, such stringent measures are hardly resorted to. The usual practice is for the Board's inspectors to always give production managers, manufacturers, owners, or operators of production facilities ample time to remedy areas in which their facilities are out of compliance with the statutory requirements, even where noncompliance is perpetual. The result is that pesticide manufacture and formulation in Kenya are largely unregulated. Anybody can set up any kind of pesticide production operation in any part of the country and continue for a long time without the Board or its officials ever finding out or doing anything about it.

[] Environmental Protection From Manufacturing Activities Under the PCPA. A few provisions evince the PCPA's intention to safeguard the environment from pesticide harm. As described above, licensing of premises regulations require that premises used for the manufacturing and formulation of pest control products be of a suitable design, layout, and construction to ensure the health of workers and to avoid contamination of the environment. Further, registration requirements authorize the Board to deny registration of pest control substances if their use would lead to unacceptable risk of harm to the environment. However, there are no further environmental protective requirements besides these. The conclusion one rightly arrives at is that the PCPA has not sufficiently addressed health and environmental risks posed by pesticide production operations in Kenya.

[] Regulation of Pesticide Use Under the PCPA. As the preamble states, the PCPA was alsointended to regulate the use of pesticides. The statute attempts to ensure the safety of pesticide use primarily through labeling requirements. A label is required to inform pesticide users, first and foremost, of the kind and nature of the product they are dealing with. Further, a label is required to inform users of the dangers of a pest control product and toxicological information that is essential to the treatment of a person poisoned or injured by a pest control product. The labeling rules also require labels to contain information identifying any significant hazards respecting the handling, storage, display, distribution, and disposal of a product. Moreover, the Act prohibits the sale or distribution of pesticides without a pesticide label. The Act also authorizes the Board to restrict use of particular pesticides. For example, the Board may set essential conditions of use that must be shown on a label.

Despite the existence of these elaborate regulatory rules, harm still occurs from pesticide use. A closer analysis of the existing use provisions and their enforcement indicate why problems persist. First, illiteracy of many farmers and farm workers make it hard, and, in most cases, impossible, to read, interpret, and understand safety information conveyed through pesticide use regulations. Further, there are many loopholes. For example, the regulations require that where pest control products are distributed in a bulk container, labels containing the necessary information should be shown on the bulk container. But in Kenya, it is very common for pesticides to reach users in smaller portions taken from the original bulk containers. Thus, pesticides taken from the original containers, no doubt, reach farmers and other handlers without informative labels. Moreover, it is common practice for pesticide vendors to divide pesticides from their original containers into small tins or plastic and paper bags in which they are often sold without labels. Supervision and inspection of pesticide activities in the country, even by occasional visits, would provide one way of dealing with these problems. But to date, the Board has not decentralized its activities or extended its reaches to the countryside where such practices abound. In addition, although labeling regulations state that labels must contain decontamination [32 ELR 10049] and disposal instructions, inclusion of these instructions is not mandatory.²⁹

[] Regulation of Distribution of Pesticides Under the PCPA. The Act requires that distribution of pesticides be carried out in accordance with such conditions as the Board shall specify.³⁰ Board regulations essentially prohibit the distribution of pesticides without a label.³¹ The Act also prohibits distribution of pesticides in packages not approved by the Board.³² However, these requirements do not effectively regulate marketing and distribution of pesticides in a manner that would promote the safe use and handling of pesticides. In addition, distribution of pest control products must take place in accordance with conditions specified by the Board,³³ but such conditions are yet to be established.

The Standards Act

The Standards Act³⁴ is an Act of Kenya's parliament whose primary function is the promotion of standardization in commerce and industry through development of standards, quality control, certification, and metrology.³⁵ It was also intended to provide for the standardization of commodities and codes of practices; to establish a Kenya Bureau of Standards (KBS); to define its functions and provide for its management and control; and to provide for matters incidental to and connected with its mandate.³⁶ The Act is relevant to this Article insofar as it is concerned with the setting of product standards, a function that is carried out through the KBS, a member of the International Organization for Standardization (ISO). Pesticides are among the products for which the KBS must establish standards under the Act.

The trend of the KBS has been to develop specific performance-based standards for specific pesticides. For example, standards have been established for the pesticide diazinon and specify that the insecticide must have a technical grade material and emulsifiable concentrates of a particular kind. The KBS, however, has yet to address the presence of pesticides in food. The KBS has a food and agriculture department, but it has not developed Kenyan standards for pesticide residues in food. It has simply adopted the ISO standards of pesticide residues in food, but admittedly it has no capacity to test pesticide residue limits to ascertain whether or not they correspond to ISO standards. Moreover, when it comes to pesticides, the KBS defers its authority on matters of pesticide safety to the Board. Further, the KBS has focused its standard-setting functions to products sold in the domestic market. It was not until 1995 that the KBS attempted to implement a policy concerning imports.

Pursuant to the government notice, the KBS has established import inspection departments in Busia, Kisumu, Malaba, Mombasa, and at the Jomo Kenyatta International Airport in Nairobi. A significant weakness of the inspection requirements, however, is that the KBS has not established standards for pesticide imports besides the performance-based standards. Moreover, its mandate authorizes it to enforce only its own standards and not any standards established by the Board. Although in theory the KBS could conduct testing of pesticide imports at the port of entry in the course of its inspection, in actual practice, pesticide matters, including the safety of imported pesticides, are left to the Board. Further, the KBS hardly conducts any testing on pesticide imports. Thus, the functions of the KBS in terms of standard setting and inspection of imported commodities do not effectively make up for the inefficiencies of the Board's regulation of pesticide standards and imports.

The Factories and Other Places of Work Act (FOPWA)

Of Kenya's labor statutes, the Factories Act, now the FOPWA, is the one relevant for consideration of worker health and safety in relation to pesticides.³⁷ The FOPWA is intended to provide for the health, safety, and welfare of workers in factories and other places of work.³⁸

Although the FOPWA is the one Kenyan statute that has specifically recognized health problems that may result from exposure to pesticides, many of the statutory provisions are not appropriate for the prevention of pesticide harm. For example, there is no proper guidance or indication of ways in which dangerous chemical processes such as mixing and pulverizing and explosive substances could be handled to avoid accidents and harm. Morcover, § 35 recognizes dangers of fumes, which are common in pesticide production facilities, but the Act still maintains outdated safety procedures such as tying ropes and belts to a person entering a place where dangerous fumes are emitted and having someone outside of such a place hold the end of the rope as a measure against dangers of the fumes.³⁹ In addition, § 36 recognizes the occurrence of explosions, which are likely to occur in pesticide production processes, but only provides for removal of dust accumulation as a preventive measure.⁴⁰ It fails to include appropriate requirements for such measures as the installation of early warning devices to detect likely explosions before they occur. Basic necessities such as the maintenance of a safety zone around facilities producing pesticides or the careful selection of a site for erection of pesticide facilities away from areas with high population concentrations are yet to be made the subject of specific statutory requirements.

Although the statute has set requirements for the management of occupational diseases through measures such as medical examination of employees and investigation of occurrence of occupational diseases and illnesses, these measures require, first and foremost, knowledge of their existence in workplaces. This, in turn, requires regular supervision of industrial and agricultural workplaces throughout the country, which is currently lacking. Without workplace inspection and supervision, it would be difficult to know when, and where occupational diseases and illnesses occur.

[32 ELR 10050]

Another problem lies in the controversy surrounding the scope of the FOPWA. Its application and implementation are limited to workers, and workers form only one among several groups of people at risk of exposure to pesticides in the country. Moreover, although there have been minimal efforts on the part of the Ministry of Labor's work-place inspectors to extend the application of the statute in the course of their implementation of its provisions to protect farm workers, these efforts have met stiff opposition from employers of agricultural laborers who insist that "other places of work" do not include farms and farming operations.

Environmental Statutes

Kenya's environmental statutes are intended to regulate certain activities, substances, and/or occurrences that may either include, or involve pesticides. Because pesticides are pollutants, statutes directed at pollution may affect pesticides as such.

[] The Water Act. Kenya's Water Act is intended to regulate the conservation, control, apportionment, and use of the water resources of Kenya.⁴¹ For conservation of water and water resources, the statute makes various prohibitions and requirements. First, the statute contains a general prohibition of the discharge, conveyance, and deposit of various substances that would cause pollution of water into or near a body of water. However, the statute has not created a system of monitoring water and water resources to ascertain whether any of them is polluted, and no such system exists in practice. Rules for preservation of water still lack requirements for any specific measures in relation to human activities involving pesticides. Therefore, it is difficult to measure the benefits of these provisions in relation to actual or potential pesticide pollution.

The statute also identifies "water works" as potential sources of pollution.⁴² The rules provide that effluents from any works in which water is used in any process or for any purpose shall be returned to the body of water from which it is diverted or abstracted, or to other bodies of water in which their discharge is authorized by water boards. The degree of purity of discharges is also to be determined by the boards. The boards, however, are yet to establish degrees of water purity. Water quality standards have also not been established, nor does the Water Act expressly authorize the establishment of water quality and discharge standards.

The Act also prohibits any act or neglect that causes actual or potential pollution of any water supply used or likely to be used for human consumption, other domestic purposes, processing of food, or for any manufacturing purposes.⁴³ However, the statute provides an exemption. Any lawful method of cultivation of land or the watering of stock that, in the opinion of the responsible minister, does not conflict with the principles of good husbandry would not constitute pollution, nor would the disposal of any effluents or wastes in any area that the minister specifies.⁴⁴ The statute, however, fails to define "good husbandry."

The Water Act's permitting system provides another avenue for regulating pesticides in relation to their actual and potential effects on water. However, without regular monitoring of the quality of water bodies in the country, it is still difficult to determine where discharges of pollutants into water bodies are taking place and the extent of their impact.

The Water Act provides a basic structure for the management of water resources. However, the provisions of the Act will remain ineffectual until water pollutants, including pesticides, and their sources are identified, water quality standards are established, effluent discharge standards are set, and an effective mechanism is created to monitor water bodies.

[] The Fisheries Act. The Fisheries Act is an Act of parliament intended to provide for the development, management, exploitation, utilization, and conservation of fisheries.⁴⁵ The statute regulates fisheries as an industry; it does not regulate fish for their own sake or as part of the environment. Thus, the statute is more concerned with regulation of fisheries as a matter of directeconomic benefit than with fish conservation and management as part of conservation and management of natural resources. The attempt to protect fish under the Act, therefore, is merely incidental to its protection of commercial fishing and the fishing industry in general. The Act recognizes pollution as a potential problem to fishing but fails to specifically recognize pesticides as potential pollutants. It also fails to regulate land use and other human activities involving pesticides that result in pollution. Procedures and measures must therefore be created to prevent pollution of water that might arise from various activities involving pesticide use.

[] The Forests Act. The Forests Act, inherited from the Forests Ordinance of 1962, declares itself as an Act of parliament intended to provide for the establishment, control, and regulation of forests and forest areas in the Nairobi area and on unalienated government lands.⁴⁶ The statute does not recognize pesticides as substances whose use in preservation of forests or in other activities in or near forests may require protective regulation. It also allows the responsible minister to authorize cultivation of forest areas and manufacturing activities in such areas, but fails to make provisions for safe use of pesticides in any of the activities. Therefore, the statute is not a reliable instrument for protection of forests and forest resources from adverse impacts of pesticides.

[] The Wild Life (Conservation and Management) Act (WLCMA). Although wildlife is often perceived as having not much to do with pesticides, it does in certain respects. In Kenya, land use activities have been carried on in areas adjoining the dwelling places of wild animals, fish, and birds including game reserves, game parks, and animal sanctuaries. [32 ELR 10051] Where human activities involving pesticides are carried out in close proximity to the dwelling places of wildlife, as is the case with agriculture, contact of wildlife and wildlife habitat with pesticides do occur. This happens, for example, when birds and other forms of wildlife feed in farming areas where pesticides have been used. Wildlife exposure to pesticides also occurs when wildlife habitat such as water gets contaminated with pesticides. Therefore, agricultural and other human activities involving pesticides require strict regulation to prevent wildlife exposure to pesticides. The WLCMA is the primary statute intended to protect wildlife in the country.⁴⁷

The WLCMA contains provisions regulating human activities, which include: mining, commercial film making, flying, hunting, land use activities, settlement, and cultivation.⁴⁸ It also contains several other protective provisions that create offenses in relation to activities that may be injurious to wildlife. Although the prohibited activities may involve pesticides and pesticide harm, it does not seem that pesticide use or pesticide harm was envisaged as one of the matters requiring regulation in order to protect wildlife at the time the statute was passed.

In addition, the WLCMA does not apply to wildlife generally. Rather, it was intended to apply only to "protection areas," which, under § 15 of the Act, are national parks, national reserves, local sanctuaries, and other areas designated for the preservation of habitat and ecology. It would be helpful to incorporate proper land use practices in the agricultural areas adjoining rangelands. In the absence of such protective measures, protected areas that are in close proximity to agricultural and settlement areas are likely to be adversely impacted by farming activities that are likely to generate pesticide pollution. Increased pesticide use in the country warrants official attention to agricultural and other human activities involving pesticides, which may affect wildlife in many ways. The current wildlife conservation law, which is narrowly focused on wildlife in protected areas, ought to be expanded to confer protection to wildlife in the country in general.

[] The Merchant Shipping Act. This statute focuses on the pollution of coastal waters but limits its application to discharges of oil or oily substances from ships within the territorial waters of Kenya. It does not address problems associated with discharge of pollutants generally or with the dumping of wastes in marine waters.⁴⁹ Although the government minister responsible for environment and natural resources is now empowered to make regulations concerning protection of the marine environment as well as the regulation of the exploration and exploitation of marine resources, no such rules have been made.⁵⁰ Consequently, actual and potential pesticide pollution of coastal waters and related problems remain unaddressed.

Public Health Statutes

[] The Public Health Act (PHA). The PHA does not make any direct reference to pesticides.⁵¹ But there are relevant provisions that govern nuisance, sanitation and housing, foodstuffs, mosquitoes, public water supplies, and irrigated lands. For example, pesticides may be regulated as nuisances when they become pollutants by virtue of being present in sources of water for consumption or in the manufacture of food, thereby rendering the polluted water or processed food injurious to human health. Pesticides may also be regulated as a prohibited nuisance if discharged from production premises into any watercourse, irrigation channel, or the bed of any irrigation channel under § 118(e). Thus, pesticides and activities involving pesticides in both agriculture and production industry may be regulated as nuisances under these provisions.

The Act also regulates harmful substances in wells, tanks, and other sources of water for human consumption.⁵² Thus, these regulations may also apply to pesticides. In practice, however, pesticides and activities involving pesticides with deleterious consequences have not been considered as nuisances warranting regulation or control with respect to the preservation of public health. With regard to water for consumption, pollution control provisions of the PHA have been given little recognition and their enforcement, if any, has been weak. The problem is exacerbated by the fact that no water quality standards have been established in Kenya. Without water quality standards, it would be difficult to determine the extent of pollution. This makes it difficult to design appropriate mechanisms to deal with pollution.

The PHA's rules for the prevention and destruction of mosquitoes are also relevant insofar as they require pest control measures, including the use of pesticides to destroy mosquito larvae and to prevent the occurrence of mosquitoes.⁵³ The mosquito control provisions, however, lack any requirements for the safe handling of mosquito control substances. Nor do the existing requirements give any indication as to the likelihood of adverse effects of mosquito control measures or substances.

Other problems that render the regulation of food safety, prevention of nuisance, control of mosquitoes, and control of irrigation ineffectual include the shortage of qualified public health officers and technicians. This makes it impossible for health authorities to secure control throughout the country. Important overlaps between the mandate of public health officials under the PHA and public officials operating under the regime of the Water Act regarding their pollution control responsibilities poses more problems. Although provisions of the PHA regarding pollution should reinforce those of the Water Act, functional overlaps can result in neglect, abandonment, and delay in the performance of protective duties and responsibilities. Considering weaknesses of the public health law, it is no wonder that water supply sources in Kenya have been found by researchers to be contaminated with pesticides, and that meat and other foodstuffs in the country contain levels of pesticides that could be dangerous to human health. The conclusion is that at the moment there is nothing under the PHA or any other law [32 ELR 10052] that would prevent pesticide contamination of food or water sources in Kenya.

[] The Food, Drugs, and Chemical Substances Act (FDCSA). The FDCSA is intended to control the production and marketing of food, chemical substances, and drugs and to prevent their adulteration.⁵⁴ Chemical substances regulated under the statute are defined to include pesticides, insecticides, rodenticides, and so on.⁵⁵

Under the Act, pesticides may be declared poisonous when their presence in food exceeds the established pesticide residue limits.⁵⁶ In effect, this provision prohibits the sale of food contaminated with pesticides. Further, the Act controls food by declaring as deception any act involving the labeling, packaging, treating, processing, selling, or advertising of any food in contravention of any regulations for food. In practice, however, food labels in Kenya hardly indicate the chemical composition of food. The statute also regulates food by requiring the establishment and maintenance of standards for pesticide residue limits in food. Yet the sale of food items with the banned and restricted pesticides is exempted from the general sale prohibition under § 3 of the Act if their levels in food do not exceed those set under the FDCSA. The existence of statutory provisions allowing the presence of banned pesticides in food makes it difficult to regulate such pesticides and their sources because it indicates that the FDCSA allows the use of banned pesticides in Kenya. The statute, therefore, ought to set zero tolerance for pesticides that have been banned.

The FDCSA also regulates pesticides as a chemical substance.⁵⁷ The statute prohibits the adulteration of pesticides; requires established pesticide standards to be established and maintained; requires that "professed standards" of pesticides be maintained; prohibits disposal of pesticides in certain ways; prohibits the sale of pesticides that, when used according to manufacturer's instructions, injures health; prohibits the preparation of pesticides under unsanitary conditions; and establishes the quantities of pesticides or pesticide residues allowed in food (pesticide residue limits). As with other statutes in Kenya, however, the implementation and enforcement machinery for pesticides and other chemical substances under the FDCSA is weak.

Agriculture Statutes

Agriculture statutes are particularly relevant to this Article because agriculture is the primary subsistence and economic activity for which the need for pesticide technology exists. Some of the current agricultural statutes authorize and require the use of pest control substances. Others authorize penalties for failure to effectively control pests, which, in Kenya, cannot be achieved effectively without the use of commercial pesticides.

[] The Agriculture Act. The Agriculture Act was not specifically intended to deal with pesticides or pesticide problems.⁵⁸ However, all of the agricultural activities regulated under the Act require and actually involve the use of agricultural technology, including pesticides, for their facilitation.

First and foremost, under its provisions for guaranteed prices and marketing of agricultural produce, the statute makes requirements necessitating the use of technology, particularly pesticides. The rules allow marketing agents to penalize farmers in case they deliver crops affected by pests such as those containing "noxious weeds." The provisions for quality of crops also authorize payment of different prices for different qualities of crops, which may vary due to pest damage. The statutory authorization of monetary penalties and economic losses on account of pest damage implicitly requires the use of pesticides to prevent or reduce pest damage.

Similar rules have been made with respect to the production of specific cash crops. For example, rules made for the production of sugar require farmers growing sugar cane in settlement schemes to keep their cane free from weeds at all times. Keeping cane free from weeds often requires the use of chemical pesticides (herbicides), especially in the rainy season when the growth of weeds is prolific but farm laborers are hard to find. The Act does not go further to mention any adverse consequences of producing pest-free or nearly pest-free agricultural commodities or commodities with less pest damage. Nor does it make any provisions for safe use of pesticides in such activities.

[] The Irrigation Act. One notable provision of the Irrigation Act is that it not only expressly authorizes but also requires the control of pests and diseases in national irrigation schemes as part of good crop and animal husbandry.⁵⁹ The statute expressly authorizes the application of pest control products for the treatment of crops and livestock in order to prevent diseases and pests.⁶⁰ Yet the Irrigation Act does not recognize the possibility of any adverse impacts from pesticide use, and it lacks any provisions requiring safeguards. Needless to say, the Irrigation Act has failed to adequately address pesticide problems affecting farmers and the environment in irrigated areas in Kenya.

[] The Agricultural Produce (Export) Act. This Act regulates the grading, inspecting, preparing, and manufacturing [32 ELR 10053] of agricultural produce intended for export.⁶¹ The regulations generally prohibit the export of unsound agricultural produce. Interviews with government officials disclosed that as part of the statute's implementation, the Kenya Plant Health Inspectorate Services inspects produce intended for export to determine the presence of pesticide residues on agricultural produce. Although random analysis of food to determine the level of pesticide residues on the crops is required to be carried out on bulk consignments, no testing facilities have been established at the airport or anywhere else for this purpose because the inspectorate lacks funds. Moreover, determination of the presence of pesticide residues on crops is made only by visual checks that are carried out to identify pesticide residues. No doubt Kenya has made appreciable efforts to ensure that agricultural products intended for overseas consumers are wholesome. Once established, the proposed testing facilities would go a long way to ensure the efficiency of export inspection services.

[] The Suppression of Noxious Weeds Act. As its name states, this Act is intended to provide for the suppression of noxious weeds.⁶² There is no explicit mention of the use of agricultural chemicals in the clearing or eradication of noxious weeds, but this does not necessarily mean that chemical control of weeds is not expected or is excluded under the statute. Similarly, there is no mention of any safety or precautionary measures to be taken in the suppression of noxious weeds.

The Chief's Act

The Chief's Act, a public administration statute, deserves consideration because of its direct applicability to pest management and control.⁶³ The primary duty of chiefs and assistant chiefs is maintaining order in the area for which they are appointed.⁶⁴ In the course of their maintenance of order, chiefs may restraint people under the jurisdiction from doing certain things or require them to do certain things.⁶⁵ Similarly, orders for the safe use of pesticides could be made in the exercise of the chiefs' powers to prevent pollution.

The importance of these provisions lie in the fact that unlike members of the Pest Control Products Board who operate only in Nairobi, chiefs' offices are located in divisions throughout the country. In rural areas where a lot of agricultural activities take place, chiefs and assistant chiefs are directly in touch with all people—farmers, farm workers, and pesticide suppliers and distributors. In practice, however, powers with respect to pest control activities are hardly exercised. There is lack of recognition that pesticides are potential pollutants and human toxins warranting preventive measures. Moreover, chiefs currently lack pesticide education and training that would enable them to understand pesticide problems and why they require safe use and management. Pesticide training and education would provide chiefs with the necessary capacity to undertake their responsibilities with respect to water pollution and activities involving pesticides.

Criminal Law

The Penal Code is Kenya's main criminal statute and can also be relied on as a means of direct protection of both health and the environment from adverse effects of pesticides.⁶⁶ Under one or more of the Penal Code's provisions, activities involving pesticides that cause harm or injury to health or the environment would amount to crimes punishable under the Penal Code. As criminal offenses, the actions or omissions would be subject to the basic principles of proof under criminal law. Therefore, criminal law principles may present limitations on the use of criminal law as a mechanism for health and environmental protection.

The first of the practical difficulties with the criminal law mechanism is the requirement that any criminal case be proved beyond any reasonable doubt. Further, in most of the statutes, conduct and behavior involving pesticides that cause or are likely to cause harm to health and the environment lack the express statutory sanction (prohibition) that the Penal Code envisages. Moreover, only few statutes have express requirements for the performance of acts necessary to prevent pesticide harm and damage. Even if express statutory provisions existed, given the circumstances existing in Kenya, it would be difficult to establish a link between a proscribed conduct or failure to carry out a legal duty and the resulting harm (such as water pollution) because of the general lack of knowledge about adverse pesticide effects. To make matters more complicated, criminal law requires the presence of mens rea to make one culpable for any conduct or behavior. In Kenya, it would not be easy to hold one criminally responsible for pesticide pollution when the majority of people involved in activities causing such pollution are unaware of the phenomenon's occurrence.

It would be proper to conclude that in its current state, criminal sanctions under the Penal Code do not efficiently serve the cause of health and environmental protection. Nevertheless, criminal law remains an important mechanism for redress in cases of health and environmental harm. This is mainly because the people at the highest risk of harm from pesticide technology, either directly or indirectly through environmental damage, are also the ones who would hardly have the financial resources to seek redress through the civil liability process.

Common Law

Kenya, which is a commonwealth country, formally received English common law during colonial days by virtue of the Judicature Act.⁶⁷ In Kenya, common law is particularly relevant in cases and instances that have not been specifically provided for in any legislation. Under the regime of common law, which is the residual law governing the legal process in Kenya, disputes on justiciable questions such as those involving claims for relief in respect of harm suffered can be resolved by the courts even in the absence of applicable legislation.⁶⁸

Negligence is one of the common-law doctrines regarding acts, conduct, and activities causing harm that courts [32 ELR 10054] would apply in personal injury claims and, therefore, is relevant to pesticide control. However, there are several difficulties with the applicability of common-law negligence as a legal mechanism for protection. First, the four elements of negligence that must be proved makes it hard for an ordinary person to bring a claim under negligence. Second, proving a causal link between the conduct of the defendant and the plaintiff's actual or imminent personal injury is difficult, particularly in Kenya, where the lack of knowledge about the dangers of pesticides makes it impossible for people to link their injuries to their activities involving pesticides and to their employers' failure to provide protective clothing and equipment. Third, in every case where injunctive relief is sought, courts have wide discretionary powers. In exercising discretion on whether or not to grant an injunctive relief, judges in Kenya are free to take into account various matters such as the utility of the defendant's conduct, i.e., the benefit of the complained of activity to the community or the public. Such considerations are likely to militate against the grant of injunctive relief to forestall activities involving pesticides that cause harm and injury to health and the environment. This is more so because pesticide harm results from beneficial economic activities.

The doctrine of strict liability also may be available in cases of personal injury and property damage resulting from pesticides. However, certain limitations render the doctrine, by itself, an unreliable mechanism for redressing adverse impacts of pesticides arising in such situations. For example, it is an accepted principle that the strict liability rule applies where abnormally dangerous activities are involved.⁶⁹ Proving that economic activities involving pesticides such as the treatment of crops is abnormally dangerous for purposes of strict liability under existing circumstances in Kenya would be difficult. The requirement that a plaintiff must bring an action within the statute of limitations poses yet another obstacle to the doctrine of strict liability in cases of pesticide injury. This is because pesticide harms do not always manifest themselves until many years after exposure.

In addition to strict liability and negligence, there is both private and public nuisance under common law. Since the law of private nuisance is concerned about protection of proprietary interest in land, ownership of a proprietary interest in land is a prerequisite to the maintenance of a private nuisance action.⁷⁰ Thus, unless one owns an interest in property that is affected by an act damaging to the environment, one cannot bring a court action under private nuisance. Moreover, for an action in private nuisance to be maintained, the invasion of the claimant's use and enjoyment of land must be intentional and unreasonable.⁷¹ Determining unreasonableness is a matter for the courts to decide, and they must take into account the circumstances of each case. Determining reasonableness in the circumstances of each case also means that the same result cannot be guaranteed in two cases.⁷² Without consistency, it may not be easy to provide guidance on matters of environmental protection.

There also are various limitations to the doctrine of public nuisance as an avenue for redress in cases of environmental damage. In Kenya, one of the significant obstacles to utilizing public nuisance doctrine as an effective litigation remedy against environmental degradation has been the requirement of standing. Courts in Kenya have maintained that any plaintiff must have a direct personal interest in the subject matter of a suit that gives them the right to sue. A number of Kenyan cases illustrate how the requirement of locus standi has been challenging to environmental protection efforts. The cases also illustrate the limitations of judicial remedies as health and environmental safeguards. The case of Maathai v. Kenya Times Media Trust⁷³ is illustrative. In the case, the plaintiff, a member of a nongovernmental afforestation organization, sought a court order to stop the planned construction of a 60-story building on a popular recreational park in the center of Nairobi City. Plaintiff's case was that the construction, if it went ahead, would damage the amenity and destroy its environmental aesthetics. The High Court held that she lacked locus standi since none of her personal rights were affected by the planned construction. The court's position was that for her to sustain the case, she had to establish an injury over and above that occasioned to the members of the public and that so long as nothing more than an injury to the public at large was alleged, the only person who could bring proceedings on behalf of the public was the Attorney General. In Kenya, it is unusual for the Attorney General to file a suit on behalf of members of the public, particularly where environmental matters are concerned. The Attorney General is viewed as a representative of the government and it is very unlikely that he would take a position that seems contrary to that of the government, especially where the government is involved in some of the complained of activities.

Another case is that of Kariuki v. Kiambu County Council.⁷⁴ The court's ruling in this case underscores the importance of making clear and express provisions regarding environmental protection and safeguards in a statute. The plaintiff sought to have the respondents restrained from subdividing a public forest for use in new economic activities, which would have involved building constructions. The High Court held that because Kenya's lawmaking body, parliament, had not enacted any law making it illegal to subdivide any forest land under the ownership of any local authority, the plaintiff lacked standing. The judge considered that complaints about environmental protection of the kind desired by the plaintiff required express authorization by parliament.

Apart from the legal technicalities, there are problems attendant to the judicial process in Kenya that makes reliance on common law an inefficient mechanism of protection. Obviously, successful application of common law presupposes the existence of an enlightened people, which is not the case with many people at the risk of pesticide exposure. The people at the risk of exposure are also the ones who usually lack resources to pay court costs. Therefore, it is no wonder that although pesticide injuries are common, very few cases have been filed for redress.

[32 ELR 10055]

International Regulatory Measures for Pesticides

Kenya, as with other developing nations, has obligations under international treaties, conventions, and other agreements that are intended to address pesticide problems, especially exports and imports of banned, restricted, and never-registered pesticides from developed to developing countries. Nevertheless, efforts so far made by the international community with regard to pesticides lack force and influence, which makes effective Kenyan law in this area all the more necessary.

The Food and Agriculture Organization (FAO) and the International Code of Conduct on the Distribution and Use of Pesticides (the Code)

Realizing the difficulties associated with pesticides, particularly their importation and use in developing countries, the FAO, through its Panel of Experts on Pesticide Specifications, Regulation Requirements, and Application Standards and in collaboration with other United Nations (U.N.) agencies and international organizations, developed the Code.⁷⁵ Some of the problems the FAO identified were the export of banned pesticides to developing countries and the presence of residues of banned and restricted pesticides in agricultural commodities that countries import from others.

The FAO reckons that governments of exporting countries are not in a position to judge the suitability, efficacy, safety, or fate of banned and restricted pesticides under conditions in the countries where they are ultimately used. It maintains that such judgment must be made by a responsible authority in the importing country and notes that making such a judgment requires consultation between government and industry, knowledge of scientific evaluation of the pesticides that have been made, and a detailed knowledge of conditions in the country of proposed use. The FAO understands that requisite knowledge and consultation are lacking in developing countries, particularly those that do not yet have pesticide regulatory procedures. Public pressure to ban or restrict some pesticides in developing countries, particularly those that have been banned or restricted in the country of manufacture, has also been acknowledged by the FAO. The FAO notes that this requires an understanding of important issues involved with pesticides and that the nature, properties, and effects of pesticides are diverse such that they require comprehensive consideration. Therefore, the FAO Code is intended to provide some basic guidance on these issues. It provides guidance on such matters as testing of pesticides,⁷⁶ measures to reduce health hazards of pesticides,⁷⁷ regulatory and technical requirements including registration and other matters,⁷⁸ distribution and trade,⁷⁹ and labeling, packaging, storage, and disposal.⁸⁰

With regard to the export and import of banned and restricted pesticides, the FAO introduced a procedure on information exchange between exporting and importing member countries. An important aspect of this procedure is the requirement that developing countries importing banned and restrictedpesticides make an informed decision on whether or not to allow such pesticides in their territories and to give prior consent to import. Necessary information pertains to matters such as whether or not a particular pesticide has been banned or restricted in a FAO member country. In this respect, the government of any country that takes action to ban or severely restrict the use or handling of any pesticide in order to protect health and the environment is required to notify the FAO of the action it has taken as soon as possible. In turn, the FAO notifies national authorities designated to handle pesticide matters under the procedure for such action.⁸¹ Notification of control action is intended to give competent authorities in other countries an opportunity to assess the risks associated with banned or restricted pesticides in order to make timely and informed decisions as to the importation and use of the pesticides, taking into account local, public health, economic, environmental, and administrative conditions.⁸²

Within the information exchange procedure, the FAO attempts to enable governments participating in the procedure to give "prior informed consent" (PIC) to imports of pesticides that have been banned or severely restricted in the exporting country. Before export of a pesticide banned or restricted in the country of export occurs, the exporting country is required to inform the designated national authority in the importing country of the intended export. The PIC procedure prohibits the export of a pesticide to a country that has notified the exporter through the FAO that it has banned or restricted the use of that pesticide unless information supplied by the importing country for future acceptability of the pesticide allows for it. In that case, the FAO must be given information as to future acceptability of the banned or restricted pesticide. The FAO makes such information available to intending exporters.

Although the Code is intended to outline standards of conduct for those engaged in the distribution and use of pesticides including governments and industry, one of the notable weaknesses is that it is voluntary.⁸³ FAO members adopted the Code during an FAO conference in 1985 by way of a resolution; however, its members have the option to decide whether or not to participate in the procedure. Those not participating have no obligation to provide any information regarding import or export of banned and restricted pesticides. Moreover, the FAO has no way to ensure that participating members comply with these procedures. Therefore, banned, severely restricted, and unregistered pesticides can still be exported to Kenya without any information as to their health and environmental risks. Moreover, Kenya does not participate in the FAO's information exchange procedure.

[32 ELR 10056]

Even if developing countries like Kenya were to participate in the FAO's procedure, this would not rule out the necessity of effective pesticide legislation because the FAO acknowledges the overall responsibility of governments to regulate the distribution and use of pesticides in their countries.⁸⁴ Moreover, the Code is designed to be used within the context of national law as a basis whereby government authorities, pesticide manufacturers, those engaged in trade, and any citizens concerned may judge whether their proposed actions and the actions of others constitute acceptable practices.⁸⁵ Internal pesticide regulatory procedures designating appropriate authority to handle information as envisaged under the information exchange process can only be created by law. In sum, the FAO's pesticide regulatory procedure requires countries to create effective pesticide legislation and Kenya, like other developing countries, has yet to do so.

London Guidelines for the Exchange of Information on Chemicals in International Trade

In its effort to enhance chemical safety, the United Nations Environment Program (UNEP) has undertaken a number of measures to help identify hazards of chemicals and pesticides, to improve awareness of such hazards, and to help improve the management of pesticides.⁸⁶ In the area of pesticides in international trade, these activities led to the UNEP Governing Council's adoption of the London Guidelines in 1987. The London Guidelines are addressed to governments and are intended to assist countries in the process of increasing chemical safety through the exchange of information⁸⁷ and through a PIC procedure for pesticides in international trade.⁸⁸ Information exchange basically involves submission of information by states regarding any actions taken by their governments to ban or restrict pesticides to the International Register of Potentially Toxic Chemicals, which is managed under the London Guidelines. Along with this information, participating countries are required to indicate whether or not they wish to receive any imports of the chemicals they have banned or severely restricted. If imports of the chemicals are allowed on specified conditions, this must be stated.⁸⁹ This information would then be transmitted by UNEP to other countries that have adopted the London Guidelines, along with an alert list of chemicals that 10 or more countries have banned or severely restricted and a technical guidance document comprising UNEP's recommendations regarding those chemicals. It was hoped that this would give countries information and a basis on which to make their own assessment of risks associated with the banned or severely restricted chemicals and to transmit information regarding the status of other countries with regard to these chemicals to their industry. They would also be able to make timely and informed decisions on the chemicals, taking their local circumstances into consideration.⁹⁰ One notable aspect of the information exchange system under the London Guidelines is that it allows countries to participate in information exchange without similarly participating in the London Guidelines' PIC procedure.⁹¹

The PIC procedure established by the London Guidelines was founded on the principle that an export of a chemical that is banned or severely restricted because of human health or environmental concerns should not proceed without formal agreement of the importing country where such agreement exists, or contrary to the decision of a relevant authority in the importing country.⁹² The London Guidelines required that exporting countries send information to importing countries that an export will occur, or is occurring. Further, the London Guidelines recommended that this information be sent to importers when the first export following control action occurs.⁹³ If an importing country fails to declare its decision of a particular chemical, the status quo regarding its importation continues.

Although the London Guidelines would have had a bearing on some of the problems associated with exports of banned pesticides to developing countries, they fail to effectively address these problems for a variety of reasons. First, the London Guidelines were purely guidelines that countries have the option to adopt or to participate in the procedures they recommended. Voluntary participation of countries would not, and has not, ensured any protection of the kind necessary for health and the environment resulting from exports of banned, never-registered, severely restricted, and obsolete pesticides. Moreover, the London Guidelines were only intended to operate at the international trade level and were never intended to address situations of risk in specific countries. In addition, introductions to the London Guidelines explicitly acknowledge that the London Guidelines were not prepared specifically to address the situation of developing countries.⁹⁴ Further, a country has to be participating in the London Guidelines to receive important information such as those regarding intended exports of banned pesticides. Kenya does not participate in these London Guidelines. It was these weaknesses that created the [32 ELR 10057] need to come up with a binding international instrument to regulate international trade in chemicals, which the Rotterdam Convention attempts to accomplish.

Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention)

The Basel Convention is another international effort to protect health and the environment from harm resulting from hazardous wastes, which properly should include some pesticides.⁹⁵ It is a global agreement, which as of April 2000, had been ratified by 135 Member countries and the European Union. It is intended to address problems and challenges posed by hazardous wastes at the international level. In the late 1980s, a tightening of environmental regulations in industrialized countries led to a dramatic rise in the cost of hazardous waste disposal. Searching for cheaper ways to get rid of the wastes, developed world industries and traders in toxic wastes began shipping hazardous wastes to developing countrics and to Eastern Europe. When this activity was revealed, international outrage led to the convening of a diplomatic conference in Geneva, Switzerland, and the drafting and adoption of the Basel Convention under the auspices of UNEP.⁹⁶

The Basel Convention attempts to create some measure of control of international trade in hazardous wastes. It does so by obliging its members, inter alia: to notify the Basel Convention Secretariat of any action to prohibit the importation of hazardous wastes; to prohibit the export of hazardous wastes to parties that have prohibited the import of such wastes; to reduce the generation of hazardous wastes as much as possible; to ensure availability of adequate disposal facilities; to adopt environmentally sound management of hazardous wastes; and to consider that transboundary movement of hazardous wastes contrary to the Basel Convention is illegal and criminal.⁹⁷

Reports and studies indicate that hazardous wastes, whose exports to developing countries created international outrage, include banned and expired pesticides shipped to unsuspecting developing countries.⁹⁸ Therefore, the Basel Convention would have been expected to address exports of banned, restricted, and expired pesticides to developing countries as part of hazardous wastes. The Basel Convention does include pesticides, but not pesticides per se, and not banned, restricted, or expired pesticides as such. What it includes in its definition of hazardous wastes in relation to pesticides would be only pesticide wastes, that is, wastes accruing in the pesticide production process.⁹⁹ Even this inclusion does not make the matter so simple because for such substances to be regarded as hazardous wastes, they must also not be intended for some use in the importing country. They must be intended or required to be disposed of.¹⁰⁰ Therefore, pesticides intended for use in a developing country would not be regarded under the Basel Convention as hazardous wastes, even if the export to a developing country was intended to rid manufacturers in the country of origin of banned or obsolete pesticide stocks.

The Basel Convention allows ratifying countries to apply legislation to classify or define other wastes that are not included as hazardous wastes.¹⁰¹ However, any such classifications must conform to the Basel Convention's definition of "waste" in order to be brought under its regulatory scheme. Therefore, if, for instance, Kenya considered exports of banned pesticides to its territory illegal, it would, nevertheless, not be permitted to regard such pesticides as hazardous wastes under the Basel Convention unless it could show that exports of such pesticides to its territory were intended for disposal.

The conclusion one would rightly draw from the Basel Convention's regulatory mechanisms is that it was not intended to deal with pesticide problems affecting developing countries, some of which this Article has identified and discussed. Therefore, developing countries like Kenya, which is not a signatory to the Basel Convention and does not participate in its regulatory procedures, are not missing any benefits of measures created under the Basel Convention. Even if Kenya was a member and banned or restricted pesticides were classified as hazardous wastes, the country's government would still be obliged to create effective pesticide laws within which Basel Convention procedures could be implemented.

Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa (Bamako Convention)

The Bamako Convention was created by African states as a result of their displeasure with the permissive structure of the Basel Convention.¹⁰² As noted above, the Basel Convention had been intended to control movement of hazardous wastes to developing countries but failed to address the problem effectively. Representatives from 51 African nations who met at Bamako in Mali on January 29, 1991, accepted the Bamako Convention and opened it for ratification.

The objective of the Bamako Convention is first and foremost to ban the importation of hazardous wastes into their territories.¹⁰³ The Bamako Convention obliges African [32 ELR 10058] countries that are parties to it to take legal, administrative, and other measures within their areas of jurisdiction to prohibit the import of all hazardous wastes into Africa.¹⁰⁴ Any such imports are deemed illegal and the acts involved criminal.¹⁰⁵ If such imports occur or if importation of hazardous wastes is carried out pursuant to consent, but the disposal of imported hazardous wastes cannot be conducted under the terms of any agreement or in an environmentally safe manner, the Bamako Convention requires that the imports be exported back to the country of origin.¹⁰⁶

Unlike the Basel Convention, the Bamako Convention attempts to specifically regulate international trade in pesticides. It does so by banning the importation of "hazardous substances which have been banned, canceled, or refused registration by governmental regulatory action, or voluntarily withdrawn from registration in the country of manufacture for human health or environmental reasons."¹⁰⁷ Under the Bamako Convention, such substances are considered hazardous wastes, regardless of their intended uses in the importing country. Further, the Bamako Convention contains a classification of other wastes that are considered hazardous. These include wastes from the production, formulation, and use of biocides. Wastes that are none of these but are defined as or considered to be hazardous wastes by the domestic legislation of the party exporting, importing, or country of transit are also hazardous wastes.¹⁰⁸

The mechanisms for exercising the ban on importation of banned and unregistered pesticides include an information exchange procedure whereby Members are obliged to inform the Bamako Secretariat of any import of hazardous wastes. The Secretariat, in turn, informs the rest of the African governments in order for them to consider appropriate measures to deal with it.¹⁰⁹ Parties are to ensure that those involved in the management of hazardous wastes, in this case, pesticides, take necessary steps to prevent pollution.

One of the steps suggested as a measure to prevent importation of banned and nonregistered pesticides and to manage the transboundary movement of hazardous wastes is the establishment of competent authorities in Member countries. The authorities are to act as focal points for information exchange between the Bamako Secretariat and Member countries.¹¹⁰ These offices must notify the Secretariat of any movement of hazardous wastes.¹¹¹ Each African country that has ratified the Bamako Convention has also been required to establish a dump watch and to inform the Secretariat and Member governments of any occurrence of hazardous waste dumping.¹¹²

The Bamako Convention, which came into effect on April 28, 1999, has been lauded for taking the first bold step to regulate international trade in pesticides and other hazardous wastes.¹¹³ It is important that the Bamako Convention recognizes that the most effective way of protecting human health and the environment from dangers posed by hazardous wastes is the reduction of their generation to a minimum in terms of quantity and hazard potential.¹¹⁴ However, without going into the various areas for which the regulatory mechanisms of the Bamako Convention would not efficiently deal with the problems associated with the importation of banned, restricted, and unregistered pesticides,¹¹⁵ it is crucial for purposes of this Article that Kenya has not ratified it. Therefore, Kenyans at risk of harm from exposure to pesticides would not rely on the Bamako Convention as a basis for their protection. Similarly, they cannot rely on the provisions of the Bamako Convention to press for such measures as environmentally sound management of hazardous wastes, though the Bamako Convention calls for this.¹¹⁶ Enforcement of the Bamako Convention has been largely left to parties who agree to enforce it through their national legal systems.¹¹⁷ Thus, even if Kenya had ratified the Bamako Convention, it would still be required to create effective domestic regulatory mechanisms for pesticides.

Rotterdam Convention on the [PIC] Procedure for Certain Hazardous Chemicals and Pesticides in International Trade

Prior to the Rotterdam Convention's adoption on September 10, 1998, PIC existed in a number of international documents intended to offer guidance on the conduct of parties engaged in international trade in pesticides and other industrial chemicals such as those created under the FAO. Until the Rotterdam Convention, also known as the PIC Convention, the PIC procedure in the existing international instruments had been intended to operate as voluntary measures, meaning that parties who had agreed to the creation and adoption of the instruments also left it up to themselves to decide whether or not they would be bound by and follow the PIC procedures.

In view of rising concerns for the protection of human health and the environment from impacts resulting from [32 ELR 10059] toxic chemicals and as a result of the failure of the voluntary PIC procedures to address these problems, the Executive Director of UNEP and the Director-General of the FAO jointly initiated intergovernmental negotiations for an international legally binding instrument for the application of the PIC procedure. The procedure was directed at certain hazardous chemicals and pesticides in international trade. At the fifth session, the Intergovernmental Negotiating Committee for an International Legally Binding Instrument agreed on the text of a Convention on the [PIC] Procedure for certain pesticides and chemicals in international trade. Subsequently, a diplomatic conference was convened to adopt and sign a Convention on [PIC] for Certain Hazardous Chemicals and Pesticides in International Trade. The conference, which was attended by more than 100 countries, approved the intended PIC procedure and adopted the Rotterdam Convention. The Rotterdam Convention was then opened for signature and ratification and it was further agreed that it would come into force 90 days after ratification by its 50th Member.¹¹⁸

The Rotterdam Convention attempts to regulate international trade in certain pesticides as well as certain industrial and consumer chemicals that have been banned or severely restricted for health or environmental reasons by governments participating in the Rotterdam Convention. For purposes of this discussion, the PIC procedure is the primary tool the Rotterdam Convention intends to use in its regulation of international trade in pesticides by setting out requirements for Member countries involved in international trade in pesticides to comply with.

The Rotterdam Convention attempts to create a system for the management of pesticides in international trade by placing the responsibility of management squarely on governments. The primary tool to accomplish regulation is a procedure that tries to ensure that trade in pesticides between nations takes place with the knowledge and consent of the states involved in a procedure of PIC. Preliminary to the operation of the PIC system, the Rotterdam Convention requires parties to inform other party Members through the Rotterdam Convention's Secretariat of any actions taken by their governments to ban or severely restrict pesticides.¹¹⁹ The Rotterdam Convention requires every party that has taken such an action to notify the Secretariat of any action in writing as soon as possible, and in any event, no later than 90 days from the date the action is taken.¹²⁰ Notifications of final regulatory action are to be submitted to the Secretariat upon entry of the Rotterdam Convention into force.¹²¹

The importance of submitting information is that it enables the Rotterdam Convention's Secretariat to disseminate the information to other Rotterdam Convention parties, thereby putting them on notice as to the restrictions and prohibitions on particular pesticides by other Members. Notification of the Secretariat of such regulatory action is also the first step in including pesticides under Annex III, which contains a list of pesticides that are subject to the PIC procedure. Pesticides that have been restricted or banned and on which notification of such regulatory action has been forwarded to the Secretariat may be subjected to the PIC procedure established under the Rotterdam Convention after going through a review process.¹²² Notification of final regulatory action serves another important purpose; it sets the basis on which the rest of the PIC procedure operates. It is notable that the Rotterdam Convention could not require countries to submit to others such important information unless and until it takes effect.

With regard to actual exportation and importation of pesticides in international trade, the Rotterdam Convention lays responsibilities on both importers and exporters. For importers, the Rotterdam Convention requires a notification to the Secretariat of their final regulatory actions. Further, importers are required to make timely decisions with respect to the imports of chemicals they have banned or restricted, as well as those already subjected to the Rotterdam Convention's PIC procedure,¹²³ and to inform the Secretariat of such decisions.¹²⁴ For instance, if a party prohibits the import of a pesticide, it informs the Secretariat of its prohibition in the form of a response of no consent to import¹²⁵ and the Secretariat in turn informs other parties. If it allows importation, a response in the form of consent to import is required.¹²⁶ A response in the form of consent subject to specified conditions is also allowed where a country allows [32 ELR 10060] import of banned or restricted pesticides on some conditions or restrictions.¹²⁷ For purposes of this Article, it is important to note that the Rotterdam Convention requires that such decisions on imports be made on the basis of legislative or administrative measures. In this respect, every importing state that is a party to the Rotterdam Convention is required to implement appropriate legislative or administrative measures where such measure do not yet exist.¹²⁸ Therefore, if Kenya was a ratifying party to the Rotterdam Convention, which it is not, and the convention came into effect, the existence of the convention and its operation would not exonerate the country from creating and implementing effective laws to regulate importation of pesticides. The existence of the Rotterdam Convention in fact makes it incumbent upon ratifying Members to have such laws.

On the part of pesticide exporters, the Rotterdam Convention requires the creation and implementation of legislative or administrative measures to communicate responses of importers received from the Secretariat to those concerned, including their manufacturers, exporting firms, and other interested businesses within their jurisdiction.¹²⁹ Responses may be in the form of consent to import, no consent to import, or consent to import subject to specified conditions. Exporting countries are prohibited from exporting chemicals listed in Annex III of the Rotterdam Convention to importers who have failed to furnish the required response.

It is noteworthy that chemicals listed under Annex III, which are subject to PIC procedure, include dinoseb and dinoseb salts, dieldrin, 2,4,5-T, lindane, mercury compounds, methyl-parathion, captafol, and parathion. These have been banned in other countries but are neither banned nor restricted in Kenya. In such a situation, the Rotterdam Convention requires exporters to seek explicit consent of the importer, say Kenya, to import a specific pesticide before any of such pesticides are exported to their territory.¹³⁰ Further, pesticide exports from countries that have banned or severely restricted them are required to be accompanied by export notification to the importing country.¹³¹ The export notification includes information on such matters as expected date of export, name of the banned or severely restricted chemical, information on precautionary measures to reduce exposure to and emission of the chemical, and a safety data sheet.¹³² Apart from the PIC procedure, the Rotterdam Convention has also attempted to create an information exchange procedure, which would benefit developing countries.¹³³ Countries with developed systems are required to share scientific, economic, and publicly available legal information on their domestic regulatory actions that are relevant to the objectives of the convention.

If the Rotterdam Convention takes effect and is effectively implemented, it might go a long way to provide developing countries like Kenya with some measure of redress to the problems associated with exports of banned and restricted pesticides. The Rotterdam Convention makes sound provisions that should deal with such problems considerably, more so because it intends to deal with cases of noncompliance with its regulatory provisions. However, as with most international instruments on chemicals, the Rotterdam Convention requires domestic regulations for its implementation. Effective regulatory mechanisms that would implement the requirements of the Rotterdam Convention, particularly on matters such as risk assessment, are still lacking in Kenya. Moreover, although Kenya was represented at the fifth session of the Intergovernmental Negotiating Committee and signed the conference, signifying its acceptance of the Rotterdam Convention's adoption, it has not ratified it and, therefore, may not deem itself bound to implement the convention's regulatory provisions. Even if Kenya were to ratify the Rotterdam Convention and it came into effect, it would not address many of the pesticide problems of concern in this Article since it was only intended to address banned and restricted pesticides in international trade. Another serious drawback to the Rotterdam Convention's regulatory provisions is the fact that the convention has not entered into force and it is hard to predict when it will acquire enough ratification to bring it into effect. In the meantime, Kenya ought to seriously consider creating effective regulatory mechanisms to address problems associated with the importation of banned, restricted, and never-registered pesticides.

Codex Alimentarious Commission

An attempt to regulate pesticides at the international level has been made by governments under the United Nations in connection with the presence of pesticide residues in food. To make this possible, the FAO and the WHO created the Codex Alimentarious Commission in 1962.¹³⁴ The commission is the international body responsible for the execution of the joint FAO/WHO Food Standards Programme. The FAO/WHO Food Standards Programme, which was also created in 1962, aims at protecting the health of consumers and facilitating international trade in foods.¹³⁵ The traditional means adopted by the commission to manage pesticide risks has been the establishment of maximum residue limits (MRLs) of pesticides in food products.¹³⁶ Recommendations of pesticide MRLs are made on the basis of supervised trials so that the residue data obtained reflects registered or approved usage of a pesticide in accordance with good agricultural practices.¹³⁷

To facilitate the establishment of pesticide residue limits, an evaluation of toxicological and related data on pesticides is conducted from timeto time jointly by representatives of both the FAO and the WHO in order to estimate, where possible, [32 ELR 10061] acceptable daily intake of pesticides. This forms the basis of the pesticide residue limits established for different foods. The MRLs are established only where there is supportive evidence concerning the safety to humans of the resulting residues as determined by the joint FAO/WHO Meeting on Pesticide Residues.¹³⁸

Once MRLs are established, the standards are presented in a uniform manner in a code, the Codex Alimentarious Commission.¹³⁹ The Codex Alimentarious Commission is a lengthy code covering all aspects of food production and contains indications of set limits of various pesticides in different types of food, expressing the quantity of pesticides in relation to food in milligrams per kilogram of food.¹⁴⁰ The established standards are sent to Ministries of Agriculture, Ministries of Foreign Affairs, or other appropriate bodies of FAO Member countries, and to Ministries of Health of Member countries of the WHO for their acceptance. The standards, however, are merely guidelines or recommendations that are subject to acceptance in accordance with legal and administrative procedures of FAO and WHO Member countries.¹⁴¹

One of the problems with the pesticide residue limits established by the commission is that there has been no universal acceptance of the established residue limits. Therefore, the established limits do not conform to those established by different countries. Perhaps this is because setting pesticide residue limits in food requires an assessment of the dietary and food consumption patterns of specific populations. This means that exports of food from a country relying on the commission to set limits of pesticides in food could be rejected by a country whose limits are lower than those of the commission.

The commission's standards for acceptable daily intake of pesticides on food has also been criticized for being too low. For instance, acceptable levels of daily intake of pesticides in the commission have been found as ranging from 2 to 50 times the levels acceptable to the U.S. Environmental Protection Agency and the Food and Drugs Administration.¹⁴² In addition, the commission's standard-setting process has been criticized for being dominated by industry, leading to the establishment of weak standards.¹⁴³

Further, some claim that the commission has been more concerned with encouraging international trade in food products than with the health and safety of pesticides.¹⁴⁴ Although these criticisms may be dismissed as mere claims requiring conclusive proof, they should raise concern about pesticide standards established by the commission, particularly for countries like Kenya that do not set their own standards and instead rely on those established by the commission. Another important point that should encourage Kenya to establish its own appropriate standards for pesticide residue limits in food is that safe standards should be based on the daily intake of pesticides in food in that country. The daily intake of pesticides in food can properly be established only after studying domestic patterns of consumption and nutrition.¹⁴⁵

Negotiations for an International Convention on Persistent Organic Pollutants (POPs)

POPs are chemical substances, including pesticides, that persist in the environment, bioaccumulate through the food web, and pose a risk of causing adverse effects to human health and the environment.¹⁴⁶ Recognizing the dangers of POPs and the need to protect human health and the environment from their adverse effects, UNEP's Governing Council thought it necessary to create an international legally binding instrument to govern these chemicals.¹⁴⁷ This was in keeping with UNEP's commitment to safe management of chemicals and its recognition of the emphasis on the precautionary principle under Agenda 21 of the Rio Declaration on the environment and development.¹⁴⁸

At its 19th session held in February 1987, UNEP's Governing Council requested the executive director to prepare and convene an international negotiating committee with a mandate to prepare an international legally binding instrument to implement agreed international action regarding POPs. Such action would begin with the already identified 12 POPs. At the session, UNEP's Governing Council concluded that international action was required to reduce the risks to human health and the environment arising from releases of the 12 specified POPs. They decided that since POPs include pesticides, industrial chemicals, and unintentionally produced byproducts and contaminants, different approaches would be necessary for each of these different categories of POPs.¹⁴⁹

The intended convention attempts to adopt mechanisms involving measures that would reduce the emission and discharge of the POPs, and where appropriate, climinate their production and remaining uses. International action would include different approaches for the different categories of the POPs, adoption of a transition period in which proposed action on the POPs would be implemented, careful management of existing stocks of POPs, elimination of POPs where possible, and training to enforce and monitor their use. For [32 ELR 10062] pesticides, it was also recommended that governments take action to phase out their production and use of POPs and to destroy their existing obsolete stocks. So far, an international agreement on POPs has not been reached, but the foregoing discussion shows that important efforts have been made toward achieving its goal.

An important conclusion to be drawn from the above discussion is that although appreciable efforts have been made at the international level to regulate pesticides, these efforts fall short of preventing or mitigating domestic problems arising from pesticide use. An important factor is that Kenya has yet to bound itself to implement any of the requirements and recommendations of the various instruments. Even if it had, all of the instruments require the creation of effective laws for their implementation. This emphasizes the need for legal reform in relation to pesticides in order to bring them under effective governmental control for the sake of good health and a sound environment.

International Financial Institutions and Pesticide Regulation

The World Bank's policy on pest management illustrates international financial institutions' efforts to protect health and the environment from adverse impacts of pesticides.¹⁵⁰ The World Bank's policy is to promote effective and environmentally sound pest management practices. As with other policies of the bank, this policy only applies to agricultural development projects involving World Bank support.¹⁵¹ World Bank-supported agricultural projects to which the policy on pest management applies include: projects involving the import of pesticides in which bank lending is involved; bank lending involving the financing of pesticides, such as those for the control of human disease vectors; and bank lending in the agricultural sector, i.e., lending for an agricultural development project, whether or not the financing of pesticides is involved.

In furtherance of its pest management policy, the World Bank has identified and included pesticide use as one of the issues to be addressed, either at the environmental assessment level or the environmental analysis stage.¹⁵² Atthe project identification stage, the World Bank determines whether an agricultural project has any pest management aspects to be examined. If it does, the World Bank goes further to determine the kind of examination necessary for the project's pest management aspects. While some agricultural projects require environmental analysis, projects involving the manufacture, transportation, and use of pesticides require environmental assessment. Environmental assessment requires a borrower to examine the potential environmental impacts of pesticide use in a project and to come up with a mitigation plan in which the World Bank would require a proposal of measures to avoid, reduce, or compensate for negative consequences.¹⁵³ Conditions of pesticide use in a proposed agricultural project, as well as the applicable governmental regulation with respect to the protection of human health and the environment, must be evaluated.¹⁵⁴ Pest management must also be examined to determine whether it is consistent with the World Bank's preferred approach—the Integrated Pest Management (IPM) system. Where pest management problems are anticipated, the bank requires a mitigation plan involving pesticide screening. The World Bank may also require a borrower to implement a pest management program based on IPM measures.¹⁵⁵ In appropriate cases, such as those in which World Bank lending involves financing significant procurement of pesticides, the bank may make financing pesticides contingent upon the development and implementation of IPM programs.¹⁵⁶ Although the World Bank's policy on pesticide management offers useful guidelines on measures to protect health and the environment and may lead to the overall strengthening of a country's capacity to address pest and pesticide problems, one of the limiting factors is that the policy does not apply where World Bank lending is not involved. And many agricultural activities in Kenya involving pesticides operate without any lending from the World Bank.

The EMCA, 2000

In January 2000, Kenya's parliament made a dramatic leap in the legal arena and passed the EMCA to provide a comprehensive legal framework for the management of the environment and related matters, including health.¹⁵⁷ Before the enactment of the EMCA, the environmental legal terrain in the country was encumbered by a variety of deficiencies and inefficiencies, much of which have been highlighted in the foregoing discussions. Even Kenya's position with regard to international instruments on the environmentwas not clear. For the first time, Kenya has, through the EMCA, clarified its stance on international efforts to manage and conserve the environment by stating that the country will make efforts to participate in conventions, treaties, and agreements on the environment.¹⁵⁸

As already pointed out, to a large extent, the deficiencies inherent in the sectoral statutes have made the laws less efficient in regulating human behavior, conduct, and activities in relation to pesticides. This has allowed pesticide harm and injury to continue. The main pesticide statute, the PCPA, attempts to regulate various activities involving pesticides but makes very weak and highly limited provisions for safety. Existing provisions have not been effectively enforced and it has failed to confer reasonable measures of [32 ELR 10063] protection to health and the environment. Similarly, Kenya's sectoral environmental and health laws have failed to clearly address pesticides as a class of chemical substances likely to occasion harm and injury. Likewise, environmental and agricultural statutes in one way or another authorize and require the use of pest control substances without any recognition of the likelihood of their adverse effects. The FOPWA is the only statute that specifically recognizes pesticides as a class of chemical substances likely to cause various ailments and goes further to require specific precautionary measures. Yet this statute applies specifically to workers, who form only one of the several groups of people that are at risk from pesticide exposure and leaves out the rest of the population from its protective provisions.

Penal law specifically declares certain environmental acts and omissions that may result in harm and injury to both health and the environment offenses. However, it would be difficult to place harmful activities involving pesticides such as uses in agriculture within the ambit of these express statutory environmental offenses. Besides, sectoral statutes also lack basic principles and doctrines of environmental management that are necessary to guide efforts and measures to safeguard health and the environment from harmful human activities. Common law could make up for the deficiencies in the various statutes but it too has its own set of legal technicalities, including the requirement for locus standi, that have made it ineffective as an avenue for redressing pesticide problems. To an appreciable extent, the EMCA makes up for the deficiencies in these other laws.

First and foremost, the statute accords every Kenyan the right to a clean and healthy environment and creates a duty for every Kenyan to safeguard and enhance the environment.¹⁵⁹ It includes both the natural and the built environment. It goes further to authorize any person whose environmental right is or is likely to be infringed to petition the High Court for redress. Forms of redress that the High Court is authorized to provide include preventing or stopping acts and omissions that are deleterious to the environment; compelling public officers to take measures to stop or prevent acts and omissions deleterious to the environment; requiring ongoing activities to be subjected to environmental audit¹⁶⁰; compelling a person responsible for environmental degradation to restore the degraded environment as far as practicable toits immediate condition prior to any damage; and awarding compensation to any victim of pollution.¹⁶¹

In addition, the statute deals with the issue of locus standi in relation to suits intended to safeguard the right to a clean and healthy environment. The statute provides that in cases where the environmental rights provided for are violated, one may bring an action even where one cannot show that the defendant's act or omission has caused or is likely to cause any personal loss or injury.¹⁶² This is a complete departure from the position that Kenyan courts have maintained over the years as highlighted by the High Court's rulings in cases noted earlier. As noted earlier in Maathai, the plaintiff's application to the High Court to stop the construction of a 60-story building on a popular recreational park in the center of Nairobi City was dismissed on the basis that she lacked locus standi because none of her personal rights had been affected by the planned construction. In view of the EMCA's provision for broad locus standi, the position in Maathai does not seem to be tenable anymore. Most importantly, the statute directs courts in determining suits to enforce environmental rights to be guided by sound environmental management principles including: the principles of public participation in the development of policies, plans, and processes for the management of the environment; principles of intergenerational and intragenerational equity; the polluter-pays principle; and the precautionary principle.¹⁶³ These are the principles governing environmental management that Kenya did not officially recognize for many years.

The statute also establishes various institutions for its administration. Among various bodies, committees, and agencies, it provides for the establishment of a National Environment Management Authority (NEMA) and vests various powers and responsibilities in it¹⁶⁴; a National Environment Council¹⁶⁵; a National Environment Action Plan Committee and Provincial and District Environment Committees¹⁶⁶; a Public Complaints Committee¹⁶⁷; a Technical Advisory Committee on Environmental Impact Assessment (EIA) to give advice on EIAs and related reports¹⁶⁸; and a Standards [32 ELR 10064] and Enforcement Review Committee (SERC).¹⁶⁹ The EMCA further establishes various mechanisms for environmental management including environmental planning¹⁷⁰; EIAs for activities such as aerial spraying, major changes in land use, and agricultural activities¹⁷¹; environmental audits and monitoring¹⁷²; environmental quality standards¹⁷³; environmental restoration¹⁷⁴; environmental casements¹⁷⁵; protection and conservation of specific environments¹⁷⁶; inspection, recordkeeping, and analysis¹⁷⁷; environmental offenses¹⁷⁸; and participation in international environmental treaties, conventions, and agreements.¹⁷⁹ Agricultural activities for which EIAs are now required include large-scale agriculture, use of pesticides, introduction of new crops and animals, irrigation, waste disposal, and processing and manufacturing in industries including chemical works.¹⁸⁰

EMCA and the Regulation of Pesticides

Under the new law, Kenyans now have "statutory locus standi" to bring suits to compel not only individuals and companies but also government officials to take action to prevent harm or likely harm to the environment. This authorization can be extended to apply to harm or likely harm from pesticides and related activities.¹⁸¹

Apart from regulation through court action, pesticides may also be regulated under the general requirements for the establishment of environmental quality standards.¹⁸² The statute requires the establishment of standards for pesticides as well as toxic substances and wastes.¹⁸³ The statute requires the SERC to prepare draft standards for pesticides that are to be submitted to NEMA for adoption.¹⁸⁴ The statute authorizes the establishment of standards with respect to various aspects of pesticides. Standards are required to be developed for the concentration of pesticide residues in raw agricultural commodities, processed foods, and animal feed.¹⁸⁵ The task of establishing pesticide standards is to be performed by SERC in consultation with relevant lead agencies.¹⁸⁶ In the case of pesticides, lead agencies would include the Pest Control Products Board and, presumably, the Kenya Bureau of Standards. The process of developing standards of pesticide residues in agricultural products has not yet been stipulated. One would assume that SERC will be able to consider such matters as consumption and nutritional habits of the local people in establishing acceptable pesticide residue limits. Hopefully, it will also take into consideration food quality standards of countries importing Kenya's agricultural products.

Further, the SERC is required to develop standards for the regulation of importation, exportation, manufacture, storage, distribution, sale, use, packaging, transportation, disposal, and advertisement of pesticides.¹⁸⁷ These too must be submitted to NEMA for adoption. Once again, it is hoped that proper health and safety standards for pesticides will be developed. In addition, the SERC has the responsibility of developing draft standards for procedures for the registration of pesticides and measures to ensure their proper labeling and packaging.¹⁸⁸ Local testing of samples of pesticides is not provided for but it is hoped that these will form part of any new pesticide registration system. Regulations are now to be developed prescribing the content of applications for registration of pesticides and any conditions for registration. The statute also directs the SERC to constantly review the use and efficacy of pesticides and to submit any findings to NEMA.

The SERC also bears the responsibility of making recommendations of measures for the monitoring of effects of pesticides on the environment, the establishment and maintenance of standards laboratories for pesticides and toxic substances, and the establishment of enforcement procedures [32 ELR 10065] and regulations for storage, packaging, and transportation of pesticides.¹⁸⁹ It should be remembered that there already exist requirements for these matters under the PCPA. It is not quite clear whether or not regulations existing under the prior statute will be abandoned.¹⁹⁰ The SERC's other responsibilities with regard to pesticides require constant collection of data from industries on the production, use, and health effects of pesticides¹⁹¹; keeping up-to-date records and reports necessary for the proper regulation of pesticides¹⁹²; and doing all other things that appear necessary for the monitoring and control of pesticides. There is no mention of monitoring of health effects of pesticides. One can only hope that when these provisions are implemented, it will be found necessary to devise ways of monitoring health effects of pesticides, particularly among agricultural workers and workers in pesticide manufacturing facilities.

The new law now requires intending importers, manufacturers, and processors of new pesticides as well as those wishing to reprocess existing pesticides for "a significantly new use" to apply to NEMA for the registration of the pesticide or chemical substance to be used for its processing (and reprocessing) prior to importation, manufacture, processing, or reprocessing.¹⁹³ Data relating to health and environmental effects of the pesticides may be required.¹⁹⁴ Pesticides that were being manufactured, imported, or processed prior to coming into effect of the EMCA are required to be registered (re-registered) within one year of the Act's effective date. One of the matters the Act has yet to address is the creation of clear regulations for proper use and disposal of pesticides. In the absence of such regulations or guidelines, the PCPA, which has various loopholes, will continue to apply in this area.

In addition to the various requirements, the statute has created criminal offenses in relation to various acts, behavior, conduct, and actions involving pesticides. Statutory offenses in relation to pesticides include: detaching, altering, or destroying any labeling on a pesticide¹⁹⁵; changing the composition of a pesticide contrary to the provisions of the Act¹⁹⁶; using or disposing pesticides into the environment in contravention of the Act¹⁹⁷; distributing, mislabeling,¹⁹⁸ selling, importing, delivering for importation, or receiving any unregistered pesticides to any person¹⁹⁹; discharging pesticides into land, water, air, and aquatic environments²⁰⁰; and polluting the environment with pesticides.²⁰¹ These offenses are punishable by fine, imprisonment, or both.²⁰²

There would be little doubt that provisions of the EMCA are fairly elaborate and detailed and it would be reasonable to expect measures created under the statute to substantially address pesticides and pesticide matters in relation to health and the environment. However, it is still too early to predict the results of any efforts to implement the statute with regard to pesticide pollution.

Suggested Measures

Despite the existence of many health, labor, environmental, and agricultural laws, safety of pesticides and pesticide use has not been ensured in Kenya. The laws discussed above reflect poor draftsmanship, include numerous omissions of matters regarding pesticides that should have been specifically provided for, lack clarity of language, and fail to express clear governmental policy objectives.

What then can Kenya and other developing nations do to ameliorate pesticide problems? First and foremost, it should be emphasized that the regulation of pesticides in Kenya necessarily involves a balancing of two important yet potentially conflicting, societal goals, namely, agricultural production on one hand, and good health and environmental quality on the other. In this respect, the principle of sustainable development provides a useful guide. Productive economic activities ought to be undertaken in a way that does not undermine the very basis of continuation of these activities. Needless to say, the Kenyan government needs to make certain trade offs between agricultural activities and the good health of its people and environment. This trade off must find basis in law.

Second, scholars have suggested that one of the primary factors that make law effective is getting the draft right.²⁰³ The government must adopt a clear policy objective aimed at preserving and managing its environment and the good health of its citizens. This has finally been achieved by its articulation in the EMCA, which accords every person in Kenya the entitlement to a clean and healthy environment. Getting the draft right includes drafting statutes in such a way that the objectives they are intended to achieve are clearly communicated. A statute intended to regulate pesticides should clearly state its objectives. Among other things, the primary objective should be to prevent unacceptable consequences of pesticides to health and the environment. Many of the environmental, agricultural, and health statutes this Article has examined fail to clearly state such an objective. Again, it was not until the year 2000 that the EMCA finally declared the entitlement of every person in Kenya to a clean and healthy environment. Although the statute includes pesticides as one of the substances it intends [32 ELR 10066] to regulate, a clear statutory objective of pesticide control for the purpose of preventing unacceptable high levels of social and economic deficits is still necessary. Further, getting the draft right involves clearly defining duties and responsibilities and identifying responsible parties in a clear language that can be easily read and understood.²⁰⁴ For Kenya, this requirement is significant because the majority of the population lacks the capacity to construe technical legal language.

Getting the draft right also requires making provisions that sufficiently address the matters of concern that a statute seeks to deal with. This latter requirement has not been met with regard to pesticides. Matters of pesticides that should be of concern to regulators and be directly addressed and dealt with, such as failure of employers to provide protective clothing and equipment, improper disposal of pesticides and containers, and construction of pesticide production facilities in close proximity to areas with high population concentration, have not been specifically and sufficiently dealt with in any statute. Conduct and behavior in relation to which protection is provided also ought to be clearly indicated. These could be stated in provisions specifically prohibiting certain conduct, behavior, acts, and activities involving pesticides which should be made offenses when committed or engaged in. Requirements could also be made for specific people to perform specific acts and things in relation to pesticides that would assure protection from harmful consequences.

In addition, an integrated approach to the management of pesticides would allow a useful mix of control actions and possibilities for the management of pesticides in particular and the environment as a whole. This, in turn, would allow for the drawing of expertise and experience from the interrelated disciplines of law, economics, politics, medicine, toxicology, education, and agronomy. At this point, such an approach would not be new to Kenya because the EMCA has created bodies and organs for its administration and implementation and requires them to be composed of members from various disciplines, including law and law enforcement, agriculture, finance, research and technology, health, industry, labor, and the public universities. Assuming an integrated approach is taken, a range of regulatory approaches under which many kinds of health and environmental regulations could be created would be available to Kenya for implementing controls. What follows is a discussion on the various regulatory approaches available to Kenya and other developing nations. Additional legal reforms that should take place in Kenya, as well as basic principles for successful lawmaking, are also addressed.

Regulatory Approaches

In Kenya, liability rules exist under tort law. Command-and-control rules exist in many statutes. Market-based or economic incentives are applicable (although not yet implemented) under Kenya's legal system, and regulation by the setting of standards has been provided for in many of the statutes considered in this Article and strongly emphasized in the new environmental statute, the EMCA. In theory, Kenya's legal system allows the operation of a mix of all of these tools.²⁰⁵

[] Liability Rules. Applicability of liability rules under tort law in Kenya has been discussed in previous sections of this Article. It has been noted that these rules have been adopted but their operation has been cumbersome because of the legal technicalities and requirements like the ones regarding locus standi, as well as discretionary rules requiring considerations of matters such as reasonableness of conduct and activity. Under Kenya's legal system, and in relation to pesticides, it is possible to stipulate legal rules under existing pesticide laws, or new pesticide laws for liability, and this Article suggests the application of strict liability in relation to certain acts, behavior, and conduct that results in pesticide harm. For example, in relation to pollution, careless dumping of pesticides and pesticide containers in sources of water for domestic uses should be made an offense so that if someone suffers from such acts and petitions the court for relief, matters such as the utility of the defendant's conduct would not be a bar to their claims.²⁰⁶ In the absence of strict liability, courts would have to engage in a balancing of the pesticide's benefits and detriments, which would require judges and magistrates to possess a substantial amount of pesticide knowledge. Further, liability rules would have a deterrent effect on would-be offenders. This presupposes knowledge of the rules.

[] Command-and-Control Rules. Under this approach, regulation intervenes directly into people's behavior, acts, conduct, activities, and processes causing or likely to cause harm. It does this by requiring certain things to be done or by prohibiting the doing of certain things. The command-and-control approach exists in many if not all of Kenya's statutes examined in this Article, but the statutes have not directed command and control at many of the activities, conduct, and behavior involving pesticides that result in harm. With regard to pesticides, using both prohibition and requisition as instruments of control could achieve safe pesticide use practices controlling behavior and conduct in relation to pesticides. For example, the use of certain pesticides in particular areas or the use of dangerous application equipment could be prohibited. The rules could also require the performance of certain acts and things that would ensure safety in relation to pesticides.

Zoning can be another instrument under the command-and-control type of regulation. It indicates what parts of cities, towns, and other areas where specific activities can or cannot take place. Zoning can help ensure that pesticide production facilities will not be established in close proximity to areas with high population concentration or in close proximity to domestic sources of water supply. It can also help to avoid establishing pesticide production facilities on vulnerable areas or environments where production activities are likely to have highly deleterious effects.²⁰⁷ In agriculture, [32 ELR 10067] zoning could apply to areas where the use of certain pesticides may be prohibited because of soil types or high likelihood of water pollution, or to areas where the cultivation of certain crops require intensive use of pesticides. Although property laws in Kenya allow both the use and abuse of freeholds, under the EMCA such regulations can now, at least in theory, be made under provisions for environmental easements.

[] Economic Instruments. Economic or market-based instruments are another tool for regulation that can prevent the performance of deleterious activities or lead to the performance of actions that prevent the occurrence of harm from economic activities undertaken.²⁰⁸ This kind of tool operates both by way of self-regulation of industry and by governmental intervention through the use of economic incentives. In Kenya, an aspect of self-regulation is already taking place in horticulture.²⁰⁹ In the flower industry where governmental control is almost nonexistent, marketing arrangements for fresh cut flowers and other horticultural products, which primarily attract overseas buyers, operate in such a way that the industry must meet the overseas markets' high quality standards for produce. This has compelled a few companies and individuals engaged in flower cultivation to take positive measures regarding the use of agrochemicals that they might not have taken in the absence of strict overseas requirements.²¹⁰

Governmental involvement with economic instruments would provide business with incentives that eventually lead to positive results. For example, taxes may be applied to certain environmentally damaging economic activities to induce, say manufacturers, to adopt safer production methods, or to come up with safe products. Over time, taxes levied on production facilities might also induce them to find and adopt production equipment and processes that reduce the amount of toxic substances produced, and/or lead to their safe disposal. In the area of pesticides, economic incentives might lead to the abandonment of manufacture and formulation of highly dangerous pesticides and their replacement with safer ones. It might also lead to the adoption of safe pesticide use practices in agriculture. So far, the Kenyan government has not created any incentives in agriculture or industry that would result in the safe use of agricultural technology or prevent the adverse impact of technology. But one of the advantages Kenya has is that its legal system allows for the creation of market-based incentives. Therefore, this is an area that lawmakers should carefully consider as a possible avenue for redressing some of the health and environmental problems affecting the country, particularly those resulting from pesticides.

Legal Reforms

[] Improvement of Command-and-Control Mechanisms. Command and control is a tool of legal regulation well established in Kenya's legal system because it was the primary instrument of control introduced and applied by the British colonial administrators. Although some scholars have criticized this mechanism as being coercive, in Kenya, it remains an important form of regulation because of the social, economic, as well as political factors in the country.²¹¹ Many people in Kenya, including agricultural workers, manufacturers, doctors, and even government officials lack sufficient knowledge about pesticides. Moreover, if people generally do not understand dangers associated with pesticides, they cannot be expected to appreciate the dangers and to take appropriate protective and preventive measures out of their own free will. This makes command-and-control regulations highly desirable to specifically prohibit and require the performance of acts and things necessary to prevent harm. Although this Article takes the position that the best regulatory approach for Kenya is to effectively apply a mix of all of the regulatory tools where appropriate, the following suggestions will be made for an improved command-and-control approach.

Under a comprehensive pesticide statute, a code designed in furtherance of the existing PCPA or the EMCA, or a new pesticide statute, specific rules should be stipulated to prohibit activities, conduct, and behavior in relation to pesticides that result in harm. For example, use of pesticides that have been banned in Kenya or in their countries of origin should be specifically prohibited if Kenya deems it expedient to do so after a careful consideration of their benefits as well as their potential and actual risks. A list of banned pesticides should be included under prohibitive rules for ease of reference of pesticide users and other handlers. Regulations ought to contain specific requirements for notification of banned and restricted pesticides. At the moment, a number of pesticides have been banned yet the banning has not been effectively communicated as a regulatory step. Regulations should make it easy for people to be able to ascertain the kinds of pesticides they are not allowed to use in order to be on the lookout for illegal pesticide activities.

Rules should also prohibit the use of certain kinds of pesticides in certain areas depending on the level of risk of contamination or pollution they pose. For example, atrazine, a herbicide, has been found to pose a high risk of contamination of water because of its inherent characteristics such as high water solubility and high percolation rate.²¹² Because of these properties, if atrazine is used in an area with highly porous soil, particularly in wet conditions, and under certain geographical conditions, it is likely to cause surface and groundwater contamination. Similarly, dumping of untreated pesticide wastes in municipal sewage systems without properly treating it first should be prohibited. Field research interviews disclosed that many pesticide production facilities dump untreated pesticide wastes and unwanted [32 ELR 10068] pesticides in city sewage systems. Such practices should be made offenses punishable by specific sanctions.

Likewise, rules should stipulate specific requirements necessary to help avoid or reduce pesticide harm. For example, rules should require the observance of "rest" periods for pesticide applicators, particularly those involved in regular pesticide application activities to allow a reduction of pesticide levels in their blood. This would reduce or stall cholinesterase inhibition and other adverse health impacts of pesticides. Similarly, there ought to be set requirements for re-entry intervals for specific pesticides depending on their persistence and degradability to prevent immediate entry of farmers into pesticide treated areas. Along with this, pre-harvest intervals should be established for various pesticides on agricultural commodities to prevent harvesting crops that contain high levels of pesticide residues.

EMCA § 94 requires measures to ensure proper labeling and packaging of pesticides to be designed and submitted to NEMA.²¹³ Under these provisions, specific labeling requirements should be made. For example, it should be required that pesticide labels be designed in such a way as to attract attention. The kinds of protective equipment to be used during pesticide application need to be mentioned on pesticide labels, as do some of the pesticides' adverse impacts if precaution is not taken. Requiring that pesticides be sold only if they would not cause adverse effects when used according to the label may be hard to meet, but this kind of requirement may cause pesticide distributors to adopt safe practices that they would hand down to end users. Labels should also indicate specific uses of pesticides unless they are broad-spectrum, in which case the broad-spectrum nature should be noted. There should be indications of any animals, plants, or any other forms of life on which certain kinds of pesticides should not be used due to such factors as vulnerability.

Attention also needs to be paid to the possibility of making requirements for owners, managers, and operators of pesticide production facilities, as well as employers of farm workers, forestry workers, and other employees whose duties involve handling of pesticides to provide protective clothing and equipment. Specific guidance should be given on matters concerning protective clothing and equipment, including an indication of what they are. Such things as respirators, gloves, waterproof boots, goggles, and waterproof overalls, which are necessary for protection, should be clearly indicated. It should also be clearly stated that improper application equipment like leaking back sprayers, plant leaves, and tins must not be used. These kinds of requirements are important in view of field research findings that even fairly educated employers of farm laborers do not believe in the seriousness of the consequences of pesticide exposure and do not understand the importance of providing protective clothing and equipment to their workers. One of the interviewees called such provisions "a luxury." Further, specific requirements should oblige pesticide applicators and handlers to wear prescribed protective clothing.

Laws should require the collection of data or information about pesticide wastes generated by pesticide producers, and gradually, extend this requirement to other pesticide users, particularly large-scale farmers. This would provide information on obsolete, expired pesticides as well as pesticide residues and would provide a basis for designing efficient methods of disposal. At the moment, there is no express statutory provision requiring safe disposal or prescribing safe methods and manner of disposal. The PCPA only makes peripheral references to disposal of pesticides and pesticide containers under its labeling requirements.²¹⁴ Although the Board is authorized to require instructions regarding the disposal of empty packages, decontamination procedures, and procedures to alleviate disposal hazards to be indicated on labels, these are not mandatory requirements. The lack of safe disposal for pesticides should be a matter of concern, more so in view of the existence of more than 100 illegal pesticide manufacturing operations in many parts of the country. The government should be equally concerned about its large stocks of obsolete pesticides, some of which were said to have been kept since colonial days. It should be recalled that the government imports pesticides for emergency operations. Besides such imports, it is officially under agreement with the Japanese government for yearly pesticide donations. The benefits of the existing pesticide donation agreement to Kenya's agriculture ought to be carefully evaluated.

The necessity of immediate washing of pesticides on the bodies of workers in cases of leaks, spills, and similar occurrences has been noted. Requirements should be made for employers to provide washing facilities at or near the place where pesticide application activities take place. In case of intended aerial spraying, the law should require prior warning through newspapers, television, and radio. Information to be provided ought to specify such matters as likely health hazards and precautionary measures to be taken, the location where spraying is to take place, areas likely to be affected, the time of application, and what to do in case of exposure.

Regulations should require surveillance of negative effects of pesticides as part of environmental audit and monitoring.²¹⁵ Environmental audits of activities that are likely to have significant adverse effects are to be carried out under the authority and direction of NEMA.²¹⁶ Surveillance of negative effects of pesticides should be extended to include a determination of the extent of adverse health impact on employees working with pesticides. Particular attention needs to be paid to those working on large-scale agricultural activities in which large quantities of pesticides are intensively used, notably the flower farms. Pesticide effects on workers in pesticide manufacturing facilities should be similarly monitored. Ways and means ought to be devised for engaging a team of toxicologists, doctors, occupational health specialists, and qualified people from other related fields to conduct this kind of health survey periodically or on a regular basis. This would allow an accurate assessment [32 ELR 10069] of the extent of adverse pesticide impact on health at various levels of production or use, and the information would be helpful in designing appropriate and cost-effective measures of control. Provisions for the establishment of analytical laboratories have been made under the EMCA to support these kinds of monitoring.²¹⁷ Enhancing the capacity of government chemists to perform necessary laboratory testing may be one way of fulfilling the laboratory requirement.

In relation to food, and as a way of minimizing potential health hazards, once proper food quality standards are established with respect to pesticide residue levels, there should be a further requirement for continuous monitoring of agricultural products to ensure that residue levels are within acceptable limits.

The establishment of poison treatment centers in hospitals throughout the country should be required by law, along with requirements for training of health personnel manning these hospitals to enable them to recognize cases of pesticide poisoning and ailments in order to be able to prescribe proper treatment for them.

Registration of pesticides is another area that deserves improvement. An important purpose of pesticide registration is to ensure that they do not cause unacceptably high levels of health and environmental damage. For this reason, analysis of pesticides intended to be used in the country is necessary to ascertain their nature and any hazards that would result from their use. Weaknesses in the current pesticide registration system have been noted. Along with applications for registration, responsible governmental authorities should require submission of samples of pesticides intended to be imported for sale as well as those for use in manufacture and formulation. This would enable authorities to test or analyze the pesticide to determine the active ingredients and their toxicity where comprehensive testing to identify other characteristics cannot be accomplished. In addition, NEMA, thebody now having authority to deal with matters of pesticide registration, should collaborate with the Board and other governmental agencies and officials including customs officials to procure samples of pesticides for testing before they are imported or released from the port of entry into the country. In view of climatic, environmental, social, economic, and other factors between the country of origin of most pesticides and Kenya, local testing is necessary to enable regulators to properly ascertain the safety of pesticides, taking local circumstances into account. It is understandable that necessary testing would be expensive in terms of financial and human resources. However, some kind of testing locally is necessary even if it is only to verify the validity of the submitted data and information and to prevent fraud. Once pesticides are allowed to circulate through the existing marketing and distribution systems in the country, there ought to be some way to continually monitor the pesticide market to ensure compliance with safety requirements.

[] Improvement of Regulations for Pesticide Production Operations. Pesticide production processes carry a high likelihood of accidental fires, explosions, leaks, and spills, which would release large quantities of toxic chemicals into the environment. In view of the grave dangers that pesticide production pose, mandatory guidelines should be developed for the pesticide manufacturing sector that point out dangers that are likely to occur in these processes and stipulate preventive measures. Depending on the level of operation and the extent of threat of occurrence of these dangers, regulations should require implementation of guidelines, or, at least, a careful consideration of them. Upon consideration, there should be a requirement for every facility to prepare a report or statement indicating any planned follow-up action to be implemented, and if not, reasons for not implementing suggested measures. The following matters are crucial and should be included in production guidelines.

First, the government should strictly regulate the site where production facilities are located through law. Law ought to mandate that location sites be carefully chosen, taking into account various factors including the proximity of the location to areas with high population concentration, water bodies, and topographical factors. In selecting location sites for production facilities, investors should be directed to refer to special zoning regulations for pesticide manufacturing facilities. No such regulations exist at the moment but hopefully, some zoning requirements will, in time, be created along the lines proposed earlier in this study. In the absence of zoning regulations, investors should be directed to consider human population as a crucial factor to take into account when choosing a site to locate their production facilities. They should be advised and/or directed to locate production facilities well away from areas with high population concentration. Care should be taken to select areas which do not pose the dangers of long-distance pollution by pesticide dusts, odor, gases, and vapor that might drift toward settled areas if industries were located, for instance, on the windward side of populated areas. Exercising care in selection of sites for dangerous operations becomes a crucial matter particularly because in Kenya, as in the rest of Africa, cities and towns that may have started with very small populations are constantly growing, such that if a plant was located just outside of a city or town, in a few years, it may become engulfed in population settlements.

Planning, designing, and construction of pesticide production facilities should be regulated in a way that allows qualified pesticide facility inspectors to be informed of the matters and materials involved to be able to ascertain whether the planning, designing, and construction would conform to safety requirements. Among other things, the possibility of including safety equipment such as air scrubbers to prevent or reduce air pollution from likely pesticide dusts should be considered. The nature of processes involved in pesticide production as well as the characteristics of substances used suggest that even if a pesticide production plant were reasonably controlled by proper engineering techniques and good plant management, accidental fires, explosions, and leaks may still occur. For this reason, appropriate technical and plant management techniques should include requirements for the installation of early warning devices and the regular inspection of all equipment and materials used in production. Following inspection, periodic reports should be prepared and submitted to a governmental body established to oversee pesticide production activities.

In the absence of specific regulations in these areas, crucial matters of site selection would be left to the will of investors who are likely to give more consideration to profits than to risks. Even if investors possessed knowledge of the risks involved, these crucial matters would still be dependent on their unreliable willingness to incur any extra costs of proper location and other safety measures. A U.N. report [32 ELR 10070] underscores the necessity of the proposed regulations. Investigations of transnational company investments in developing countries by a U.N. official are said to have revealed that:

Even those companies that say they will maintain the same standards as in the developed world find it difficult to resist the temptation to take a short-cut. Even if they have a good design for their plant however, there's no good infrastructure in the underdeveloped countries. Even if they put it away from population centers, who will check and control that the people don't come in around it? Who will check the standards of construction? Most underdeveloped countries do not have the expertise to do these things.²¹⁸

The statement makes it clear that developing countries need to create and maintain effective regulatory measures especially for pesticide production activities.

A report on the activities of Union Carbide, the American company that played a major role in the operation of the disastrous pesticide plant prepared after the Bhopal chemical accident, confirms that multinational companies will abandon safety practices when they locate in developing countries due to lax regulation. A former Union Carbide chairman admitted that the Union Carbide subsidiary plant in India had violated company standards and operated in a way that could not be tolerated in the United States.²¹⁹ It has been rightly noted that:

This admission was a tacit acknowledgment that there is indeed a "double standard" between the operations of TNCs in First and Third World countries . . . . To Anderson and Union Carbide, the admission serves two further purposes. One is to bolster their legal strategy, which would apportion the major share of the blame onto the Indian government for its failure to effectively regulate the Bhopal plant and for allowing people to live nearby.²²⁰

These findings make it plain that the government should not entrust industry management to independently come up with measures out of concerns with safety and welfare of workers and the general population. The findings also make it clear that although the objective of attracting foreign investment is a relevant factor, it does not absolve developing country governments of their responsibility to protect the health of their people and their environment. Because of the new requirements for EIAs for chemical works and processing plants under the EMCA, the possibility of creating necessary regulatory controls for production facilities, which this Article proposes, has been increased. EIAs should look at manufacturing processes' impact on health and the ecosystem in general. This would help policymakers arrive at a proper estimate of the level of benefit accruing from these development activities.

So far, a lot of emphasis seems to have been placed on economic criteria to evaluate new development projects. In this kind of measurement of benefits, the environment and public health receives only superficial concern, if at all. Given the wide discretionary powers granted the executive in matters of industrial development, the desire to attract investment and increase productivity in order to steer the country toward perceived economic growth may overshadow environmental and health considerations. However, the actual level of economic development attained can be properly determined only after taking the negative impacts of development activities into consideration.

Worker safety and hygiene in production facilities is another matter that should be subject to strict regulation. A safe and healthy workforce would contribute more to the profitability of an enterprise and the economic development of a country as a whole. Yet industry can hardly take measures that would hurt their profit margins even where it makes sense to do so, as the case of Ciba-Geigy shows. The company is reported to have authorized a study on health effects of chlordimeform. After finding that the pesticide causes cancer, the company kept this information in their company files and continued to subject their workers to chlordimeform during its manufacture.²²¹ This study suggests that strict regulations ought to be created to ensure that the responsibility of worker safety is shared between the government, industry management, and workers themselves. Regular training and education of workers on health and safety issues as well as close supervision may help to ensure that they adopt and apply safe working methods and practices. One of the things that ensuring the safety of workers in a pesticide production facility requires is regular monitoring of the blood of employees to determine the presence and levels of toxic substances. This enables appropriate action to be taken in a timely manner. Therefore, this kind of testing ought to be mandated by law. Similarly, emergency procedures should form part of worker training. A well-informed personnel is better able to readily take necessary precautions to protect themselves, their coworkers, and their environment than one that is not.

Guiding Principles for Lawmakers

[] The Extent to Which the Public Supports the Law. As mentioned in various parts of this Article, laws are intended to govern the lives of people in a nation—their practices, behavior, activities, and conduct in order to bring about desired changes, and to accomplish set objectives. Unless the public supports the laws by taking heed to legal provisions in one way or another, law remains dead. One cannot properly consider public support of law without first addressing the question of whether or not the public knows the law, the objectives the laws intend to accomplish, what they require people to do, what they require people to refrain from doing, the officials concerned with enforcement of the laws, and the penalties for noncompliance with regulatory provisions. Is the public in Kenya aware of the laws that are intended to govern their lives in relation to pesticides?

In Kenya, the English legal principle, ignorantia juris non excusat, that is, ignorance of the law is no excuse, was inherited from the British. The extent to which this legal principle has been applied in Kenya is not clear. What is clear is that given the circumstances of the people of Kenya, it would be unrealistic to expect the ordinary mwanainchi, the "common man," to go out of their way to find out what [32 ELR 10071] the laws are, be they laws that govern the production of their daily bread or those that are intended for environmental management. Unfortunately, the ordinary mwanainchi happens to be the one at the highest risk of threat of the kinds of pesticide harm that have been discussed in this Article. The ordinary mwanainchi, the production and agricultural workers, also happen to be the one at the center of economic activities involving pesticides, which result in harm. Yet the people lack pertinent information about the dangerous nature of pesticides, the dangers associated with pesticide use, the necessity of protective clothing, the obligation on employers to provide these protective equipment, the necessity of safe disposal of pesticides and containers, the laws making requirements for pesticides and pesticide use, and many other matters that they need to know.

The testimony of a Costa Rican worker during one of the congressional hearings on the effects of pesticides from the United States on workers in developing countries underscores the importance of providing people, particularly production and agricultural workers, with pertinent information about pesticides. During the hearings, the worker, who had become permanently sterile due to his exposure to pesticides stated that they had been advised by employers to wear masks and rubber boots while spraying, but nobody told them why. Nobody told them that handling pesticides without the required protective clothing and equipment was harmful. Therefore, a lot of the workers did not follow the advice and preferred to enjoy the comfort of working without cumbersome clothing and equipment.²²² The point is that laws requiring workers to wear protective clothing and employers to provide them, as well as laws making various other requirements and prohibitions in relation to pesticides, ought to convey pertinent information including the dangers of exposure to pesticides in clear and understandable language. The public cannot be expected to act to avoid risks without knowing what the risks are and what they are expected to do to prevent them.

It should be remembered that in the African tradition, law, that is, traditional or cultural law that governed people's lives, had no written source of reference. People acquired knowledge of these laws from family members, clan elders, and peers. The expectation is still much the same in many parts of Kenya and this makes it important that ways and means be found for communicating legislation and legislative requirements affecting crucial aspects of life to the people. One of the ways to accomplish this would be to train legal regulators themselves to be very well conversant with the laws and the matters the laws are concerned with to be able to pass their knowledge to the governed. Organizing awareness campaigns would be another way of disseminating information.

There is little doubt that accomplishing the task of disseminating information, not only about regulations for pesticides but also matters such as dangers associate with pesticide use, would entail an element of infringement of some people's interests. For example, pesticide manufacturers and distributors whose livelihood is dependent on pesticide trade would not be happy to hear negative things said about pesticides, even if they are true. Farmers whose livelihoods depend on agricultural production would similarly not be happy with information advising against certain pesticide use practices that might affect their production, particularly where the farmers themselves do not stand to suffer adverse impacts of pesticides. In these circumstances, it is necessary for parliament to create a freedom of information law to provide a basis for the sharing and dissemination of pertinent information about pesticides without fear of repercussions. Although emphasis has been placed on making the common man aware of the existence of pesticide legislation, it should be noted that matters concerning pesticide production and agricultural activities from which harm results involve both small- and large-scale local farmers and pesticide manufacturers as well as multinational companies and organizations involved in the business of importing, manufacturing, and formulating pesticides, and in actual large-scale production of cash crops. Field research for this Article found that a lot more pesticides are used in the large-scale production of cash crops than in small-scale family farms. In many parts of the country where crops are grown basically for subsistence, pesticides are used at a very minimal scale, if at all.

Another significant aspect of garnering people's support for the law requires involving people in the lawmaking process itself. Absence of effective public participation in the lawmaking process is one of the factors that increase the gap between legislators and the governed. Bills tabled in parliament should be widely publicized through the media to make people aware of the government's intention to pass law. Opportunity should be accorded people wishing to express their views about intended laws. Similarly, the government should make ways to consult with people with special expertise in areas where law is intended to be created for their support and advice.

Once the people are made aware of the existence of pesticide laws, people should be made aware of the benefits of pesticide regulations so that legislation is supported. Through support, even at the grass-roots level and by initiatives tailored to suit the circumstances in Kenya, people should be empowered to take individual as well as collective action to implement measures intended to provide protection from pesticide harm.

[] Effective Law Enforcement. Proper legal drafting requires an indication of the ways and means by which law is to be enforced. Ways and means of enforcement are matters that can profoundly affect the outcome of law. Without effective and suitable mechanisms for enforcement, sound legal provisions do not achieve much as many of the Kenyan statutes studied show. Ways and means of enforcing law include civil litigation, liability rules, command-and-control regulation, and economic incentives. Whatever ways and means of enforcement are chosen, they must be suitable to the circumstances of the people.

The propriety of application of liability rules, economic incentives, and command-and-control rules have been discussed. It suffices to add that command-and-control regulation, which seems more appropriate for the control of pesticides, requires the investigative capacity to establish that deleterious health and environmental effects are likely to occur. Further, it requires the capacity to impose sanctions on violators of prohibitory and mandatory provisions of the law. These necessitate the establishment of effective regulatory [32 ELR 10072] governmental agencies capable of undertaking the necessary tasks. Under the EMCA, NEMA and the National Environmental Council (NEC), are among the public agencies that are now charged with the responsibility of managing and conserving the environment. Available information indicates that NEMA is in the process of being formed.²²³ Implementation of preventive legislation, however, would be very costly, and, therefore, a reasonable period of time is needed before positive changes can be seen.

Monitoring and evaluating the effect of law would be helpful to show whether law is serving the purposes for which it was intended and to pinpoint any areas that require improvements and/or further reform. Assessment of compliance with the law is an effective tool to evaluate the effectiveness of regulation. Guidelines issued by the European Commission to its legal drafters are instructive. Better lawmaking was one of the objectives of the commission's guidelines:

Better law-making. That is the key slogan of this policy . . . . The aim is to ensure that legislative texts are of the proper quality and consistency, that the drafting process is open, planned and coordinated[,] and that monitoring and valuation are more thorough.²²⁴

Litigation also provides a means of enforcement. First, litigation places more responsibility on the courts to apply existing laws for the protection of health and the environment. Before the EMCA was passed, civil litigation provided very limited measures in the area of health and the environment often because no statutory enactment recognized the capacity of anyone other than an injured person to sue for health injury and environmental damage. Only the Attorney General could bring an action on behalf of a sufficient number of members of the public or an affected community. The issue of standing also has been a great hindrance to civil suits in matters of health and the environment. The EMCA has now expanded the scope of civil litigation by extending legal capacity to sue to any member of the public as a way of assuring the peoples' entitlement to a clean and a healthy environment.

Even with this expanded scope for civil suits, not much environmental litigation can be expected as a means of protecting health and the environment because of the nature of the existing legal system in Kenya. Under Kenya's legal system, a losing party in a civil action has to pay the opposing party's costs and court costs. Therefore, until the court system in Kenya waives the requirement of court costs on a losing party, litigation will remain an unattractive option for fear of economic loses.²²⁵ Other devices for environmental management that have now been specifically provided for under the EMCA include EIAs and environmental planning.

[] Creating Supportive Tools for Regulation. Apart from legal machinery, a number of mechanisms, such as education, awareness campaigns, workshops, training, research, strengthening of extension services, and development of codes of practice need to be implemented to support the regulation of pesticides. In Kenya, some kind of environmental training is necessary. Seminars and workshops should be held to provide information to those involved with the enforcement of protective and preventive laws. This kind of training is also necessary for judges and magistrates, field extension workers, environmental inspectors, the police, doctors, and other responsible public officials.

Scientific research is necessary to support advancement in agriculture. Through scientific research, particularly in the area of pests and pesticides, it would be possible to find suitable cost-effective and safer ways of managing pests. The possibility of developing a variety of pesticides from pyrethrum should be explored, as well as the possibility of adopting integrated pest management methods by small-and large-scale farmers. On matters concerning health effects of pesticides, risk assessment should be undertaken. Regulation ought to be backed by sound science and more local scientific evidence.

Pesticide education should form part of the environmental education provided for under the EMCA.²²⁶ Farmers should be educated onmatters concerning pesticides at the grass-roots level. Information should be provided on the dangers of pesticides, the necessity of protection from exposure, the kinds of necessary protective gear where they can be obtained, and safe disposal methods. Agricultural extension services is an area that deserves careful consideration particularly in view of the important role of agriculture to Kenya's economy. Field extension officers can play a crucial role in helping to regulate use of new agricultural technology to prevent unacceptable consequences. Agricultural extension officers also would be able to disseminate the necessary information to farmers. Although a department of field extension services exists within the Ministry of Agriculture, there are hardly any agricultural extension officers in the field. This may be because the government has not had enough money to fund field extension services throughout the country, which would be understandable given the country's current economic situation. In terms of creating pesticide awareness, pesticide education could be introduced in schools through seminars and other arrangements. Pesticide education could also be provided to farmers and farm workers through organized field days and other appropriate fora.²²⁷

[] The Constitutional Framework in Which Laws Are [32 ELR 10073] Made. In many countries, legislation on any matter has to be made within the context of the existing constitutional machinery. The nature of lawmaking itself is largely determined by the constitutional arrangements applicable to a particular country.²²⁸ The constitution becomes relevant in lawmaking and determines the applicability and effectiveness of law for a variety of reasons. First, constitutional arrangements, which differ between countries, create organs of the state that are responsible for the creation and enforcement of law. In the United Kingdom, for example, the party with a majority forms the government and passes its own legislation.²²⁹ Kenya, whose legal system is based on that of the United Kingdom, has departed from this parliamentary system and allows the introduction of bills by nonruling party members. Bills can be introduced even by members of the public.²³⁰ Secondly, the constitution determines matters that can be the subject of legislation.²³¹ In the area of health and the environment, for instance, laws could not be passed granting or guaranteeing the right to a healthy environment as was done under the EMCA if "grandfather" provisions did not exist in the constitution containing norms relating to rights and duties as between the state and individuals touching on matters of health or life.²³² Third, constitutions determine how laws can be enforced.

In the past, it was necessary for a person who petitioned the High Court for redress to specify the constitutional provision for the right violated and the manner in which the provision was infringed before the High Court could have jurisdiction to entertain a complaint.²³³ The right to a healthy environment, which implies the right to health, is now explicitly provided for under the EMCA. This shows that the Kenya Constitution lends itself to the creation of such rights and does not need to be amended before specific rights relating to health and the environment can be granted every Kenyan. Conceivably, those whose suffer violations of the rights can now sue under the EMCA, if not under the Kenya Constitution. There is therefore no constitutional hindrance to the creation of statutory provisions like the ones suggested to support measures to safeguard the rights already explicitly recognized. Other developing nations, however, may not be so lucky.

[] The Political ClimateWithin Which Laws Are Made. Politics is the art or science of guiding or influencing governmental policy. It is the art or science concerned with winning and holding control over a government and includes political affairs of business, actions, practices, and policies.²³⁴ From the definition alone, it is understandable that the political climate of a country would influence the operation of law and determine its success or failure. Politics affect the creation of law as well as its implementation. If there is a lot of opposition to the passage of a particular law because of vested interests of lawmakers and similar factors, a bill can be defeated in parliament.²³⁵ If there is lack of interest in a particular law, not much attention may be paid to it by parliamentarians, with the result that the drafting requirements may not be well accomplished. Passage of the EMCA is an indication of a political climate in favor of a positive change on environmental management, conservation, and related matters, including health. By the time the statute was passed, the political discourse in the country seems to have come to terms with emerging global concerns for the environment.²³⁶ This is one political hurdle the legal regime has finally been able to overcome.

Politics also affect implementation of law because government officials have to be elected or appointed to head and manage governmental agencies and institutions charged with implementation of law. Appointing government officials is a political process that can also be affected by the political realities of a country. Nepotism and corruption are some of the realities that may hinder the appointment of competent personnel to manage law implementing agencies. Corruption is, yet again, another political reality that may affect the implementation of law when factors other than legal requirements influence implementation of prohibitions, requisitions, and legal sanctions. In Kenya, corruption has been a major hindrance to progress in the social, legal, and economic spheres of life.²³⁷ Even properly drafted law could fail on account of these political factors. Therefore, the capacity, experience, and qualifications of politicians to conduct the functions of governmental institutions should be the guiding factors in appointment rather [32 ELR 10074] than considerations of matters such as political affiliation or ethnicity.

Conclusion

In an effort to determine the extent of legal protections conferred to health and the environment from adverse impacts of pesticides in developing countries, this Article has examined and analyzed Kenya's laws that directly or indirectly concern the regulation of pesticides. The Article finds that these laws are not effective in preventing, reducing, or eliminating pesticide injury and harm. Further, the Article has found that cases of pesticide injury and harm to health and the environment, which have been occurring in Kenya since colonial days, are rising. The laws have not recognized certain problems and dangers of pesticides such as those related to production. Certain dangerous pesticide acquisition, handling, and use practices have also been ignored. Lack of control of advertising for pesticides is a case in point. Similarly, certain areas of health and the environment actually or potentially threatened by pesticide harm have not been provided for at all. Even those areas recognized as requiring specific controls by law are not effectively provided for as indicated by major loopholes in the labeling requirements. In sum, existing laws regarding pesticides are weak. This weakness arises not only from the failure to recognize and make specific provisions regulating hazardous conduct, behavior, and practices involving pesticides and incorporating specific safety principles, rules, guidelines, and procedures, but also from the lack of effective enforcement of existing provisions.

This Article has made suggestions for various ways, means, and measures that might help improve pesticide legislation in order to make them reliable instruments for health and environmental protection. In any effort, circumstances of the people of Kenya ought to be taken into consideration. During interviews, one of the senior labor officers in charge of the Occupational Safety and Health Division stated that it is better for Kenya to continue using the pesticide in order to save lives at 15 years of age, than to try to prevent its long-term effects, which, according to him, are experienced at a much later age. The officer commented that at age 70, he will have finished his business on earth and does not see why any efforts should be made to take care of life at 70, and not at 15. Moreover, he noted, many Kenyans do not reach that age. The official's statement may not hold much water, but it emphasizes the need to take into account the peculiar circumstances of each country when considering pesticide issues, particularly in relation to health and the environment.

General protection of health and the environment has finally been incorporated in the new environmental statute as an objective to be achieved through environmental management and conservation. It is hoped that this will provide a basis for measures of protection against pesticide harm. Institutions are yet to be created for the effective and efficient implementation of laws regulating pesticides. Supportive mechanisms including pesticide education, training, and research are necessary for a successful implementation of pesticide laws. Making necessary legal reforms, creating implementing institutions, and actual implementation of laws and supportive mechanisms would involve a lot of expense, and the cost of regulation may increase the cost of pesticides as well as food. Kenya is a country that has experienced funding difficulty with many of its development programs, and the current economic situation makes funding even more difficult. However, better regulation would improve health and environmental conditions in the country. It would also help to maintain a good name for Kenya in the international market for its agricultural products, which is already threatened by stories about careless use of pesticides in the country.

It is hoped that the matters highlighted in this Article will make is possible for the Kenya government and other developing nations to appreciate pesticide problems as a matter requiring immediate and careful attention. The question as to how much regulation developing countries will devote to pesticides is a matter for their governments to decide.

1. The International Monetary Fund (IMF) in its statistical studies breaks the world down into three groups: industrial countries, developing countries, and countries in transition. This Article uses the IMF's classification according to which there are 132 developing countries including the whole of Africa. See IMF, SURVEY BY THE STAFF OF THE INTERNATIONAL MONETARY FUND, WORLD ECONOMIC OUTLOOK 156 (1996).

2. CENTRAL BUREAU OF STATISTICS, MINISTRY OF FINANCE AND PLANNING, REPUBLIC OF KENYA, ECONOMIC SURVEY 9 (2000).

3. Population Reference Bureau, Kenya's Record Population Growth: A Dilemma of Development, POPULATION BULL., 1980, at 5.

4. See TUBAIJUKA ANNA KAJUMULA, SWEDISH UNIVERSITY OF AGRICULTURAL SCIENCES, KENYA: A STUDY OF THE AGRICULTURAL SECTOR 17 (1981).

5. CENTRAL BUREAU OF STATISTICS, MINISTRY OF FINANCE AND PLANNING, REPUBLIC OF KENYA, STATISTICAL ABSTRACT 225-31 (1998).

6. CENTRAL BUREAU OF STATISTICS, supra note 2, at 102.

7. Other agricultural problems include limited arable land, insufficient farm mechanization, and severe climatic changes with prolonged periods of either drought or floods.

8. John W. De Grazio & Stephen A. Shumake. Controlling Quelea Damage to Small Grains in Africa With Methiocab, in CONFERENCE ON ALTERNATIVE STRATEGIES FOR DESERT DEVELOPMENT AND MANAGEMENT, SACRAMENTO, CALIFORNIA, MAY 31 - JUNE 10, 1997, at 2.

9. See Nation Team, Gov't Admits Portend Disaster, DAILY NATION, May 20, 1999, at 1.

10. WINSTONE L. CONE & J.F. LIPSCOMB, THE HISTORY OF KENYA AGRICULTURE 71 (1972).

11. Apart from agriculture, there are many other uses of pesticides. Of particular importance are pesticides for the control of insect pests that act as vectors of human diseases, such as dichlorodiphenyltrichloroethane (DDT). DDT has been widely used for the control of malaria and yellow fever, in some instances, under programs arranged by the World Health Organization, and the carbamate insecticide, Baygon, which has also been used for the control of malaria as well as vectors for Chagas disease (South American trypanosomiasis). See K.H. Buchel. Introduction, in CHEMISTRY OF PESTICIDES 1 (K.H. Buchel ed., 1983).

12. CENTRAL BUREAU OF STATISTICS, supra note 2, at 107. One Kenya pound is equivalent to 20 Kenya shillings, and 141 million Kenya pounds is 288 million Kenya shillings, which, at the time of this writing, is equivalent to U.S. $ 40 million.

13. R.M.A. van Zwanenberg. The Economic Response of Kenya Africans to European Settlement: 1903-1939, in POLITICS AND NATION-ALISM IN COLONIAL KENYA 55 (Bethwell A. Ogot ed., 1972).

14. See CENTRAL BUREAU OF STATISTICS, MINISTRY OF PLANNING & NATIONAL DEVELOPMENT, REPUBLIC OF KENYA, ECONOMIC SURVEY 197 (1999). See also id. at 118.

15. See PESTICIDE PROFILES: TOXICITY, ENVIRONMENTAL IMPACT, AND FATE 14, 464, 560 (Michael A. Kamrin ed., 1997); Circle of Poisoning: Impact of U.S. Pesticides on Third World Workers, 1991: Hearings Before the Senate Comm. on Agriculture. Nutrition, and Forestry, 102d Cong. 1 (1991) (statement of Sen. Patrick J. Leahy noting that farm workers who had been applying pesticides on banana plantations in Costa Rica had become irreversibly sterile and could not have children) [hereinafter Circle of Poisoning: Impact of U.S. Pesticides on Third World Workers]; THE EFFECTS OF PESTICIDES ON THE ENVIRONMENT (Scott R. Baker & Chris F. Wilkinson eds., 1990); BARBARA DINHAM, THE PESTICIDE HAZARD: A GLOBAL HEALTH AND ENVIRONMENTAL AUDIT 49 (1993); WAYLAND J. HAYES JR., TOXICOLOGY OF PESTICIDES (1975); FUMIO MATSUMURA, TOXICOLOGY OF INSECTICIDES (1975); RUTH NORIS ET AL., PILLS, PESTICIDES, AND PROFITS: THE INTERNATIONAL TRADE IN TOXIC SUBSTANCES 14 (1982) (documents the case of a tribesman who poured lindane in Lake Volta to catch fish. The toxic pesticide did not only kill fish but also poisoned animals that drank the water); and DAVID WEIR & MARK SCHAPIRO, CIRCLE OF POISONING: PESTICIDES AND PEOPLEIN A HUNGRY WORLD 11 (1981).

16. Circle of Poisoning: Impact of U.S. Pesticides on Third World Workers, supra note 15.

17. DINHAM, supra note 15, at 11.

18. Id. at 2.

19. M.A. Mwanthi & V.N. Kimani, Agrochemicals: A Potential Health Hazard Among Kenya's Small-Scale Farmers, in IMPACT OF PESTICIDE USE ON HEALTH IN DEVELOPING COUNTRIES, PROCEEDINGS OF A SYMPOSIUM HELD IN OTTAWA, CANADA, SEPT. 17-20, 1990, at 108 (G. Forget et al. eds., 1990).

20. For an in-depth analysis of the various statutes and laws discussed in this section, see Appendix at http://www.elr.info/NewsAnalysis/articles/vol32/32.10045-app.htm.

21. PCPA, ch. 346, § 16 (1983) (revised ed. 1985). It provides: "Notwithstanding the Treaty for East African Cooperation Act, the Control of Pesticides Act of the Community shall cease to have the force of law in Kenya."

22. Under the PCPA, the Board is the single most important institution in charge of enforcement of the provisions regulating export, import, manufacture, distribution, use, and disposal of pesticides and pesticide containers. The Board is created under § 5 of the Act.

23. PCPA § 4(1).

24. Id. Rule 3(2) of the Pest Control Products (Exportation and Importation) Regulations.

25. Id. Rule 2.

26. Id. Rule 5(a) of the Pest Control Products (Licensing of Premises) Regulations.

27. Id. Rule 6(b).

28. Id. Rule 6(a)(i).

29. Id. Rule 3(2)(j) of the Pest Control Products (Labeling. Advertising. and Packaging) Regulations.

30. Id. Rule 11.

31. Id. Rule 3.

32. Id. Rule 12.

33. See id. Rule 11.

34. The Standards Act. ch. 496 (1977) (revised ed. 1981).

35. See KENYA BUREAU OF STANDARDS. INFORMATION BOOKLET, QUALITY INSPECTION OF IMPORTS (on file with author).

36. The Standards Act, pmbl.

37. The Factories Act. ch. 514 (1962) (revised ed. 1972); the Factories (Amendment) Act (FOPWA), No. 1 of 1990.

38. FOPWA, pmbl.

39. The Factories Act. ch. 514, § 35(b)(i) & (ii).

40. Id. § 36(1).

41. The Water Act. ch. 372 (1962) (revised ed. 1967).

42. Rule 72, the Water (General) Rules.

43. The Water Act, § 158(1).

44. Id. § 158(1)(I) & (iii).

45. The Fisheries Act, ch. 378 (revised ed. 1991), reproduced in 4 UNEP/UNDP JOINT PROJECT ON ENVIRONMENTAL LAWS AND INSTITUTIONS IN AFRICA. COMPENDIUM OF ENVIRONMENTAL LAWS OF AFRICAN COUNTRIES: SECTORAL ENVIRONMENTAL LAWS AND REGULATIONS 77-150 (1996).

46. The Forests Act, ch. 385, reproduced in 5 UNEP/UNDP JOINT PROJECT ON ENVIRONMENTAL LAW AND INSTITUTIONS IN AFRICA, COMPENDIUM OF ENVIRONMENTAL LAWS OF AFRICAN COUNTRIES: SECTORAL ENVIRONMENTAL LAWS AND REGULATIONS 116-44 (1998).

47. WLCMA, ch. 376 (1977) (revised ed. 1985).

48. Id. §§ 10, 11, 12, 22, 63, & 13 respectively.

49. It should be borne in mind that the regime of the Water Act includes marine waters. The Water Act generally provides for the conservation, control, apportionment, and use of water resources of Kenya. They are not limited to any specific bodies of water and, therefore, they apply to coastal waters as well.

50. The Maritime Zones Act, ch. 371, § 9.

51. PHA, ch. 242, (1977) (revised ed. 1986).

52. See id. § 126(iii).

53. Id. § 142.

54. FDCSA, ch. 254 (1980) (revised ed. 1992).

55. Id. § 2.

56. See id. Rule 50, the Food, Drugs, and Chemical Substances (Food Labeling, Additives, and Standards) Regulations.

57. Under § 2 of the Act, "chemical substances" mean a germicide, an antiseptic, a disinfectant, a pesticide, an insecticide, a rodenticide, a vermicide, a detergent, and any other substance or mixture of substances that the minister may, after consultation, declare to be a chemical substance.

58. The Agriculture Act. ch. 318 (1980) (revised ed. 1986).

59. Irrigation Act, ch. 347, reproduced in 7 UNEP/UNDP JOINT PROJECT ON ENVIRONMENTAL LAW AND INSTITUTIONS IN AFRICA, COMPENDIUM OF ENVIRONMENTAL LAWS OF AFRICAN COUNTRIES: SECTORAL ENVIRONMENTAL LAWS AND REGULATIONS 120-32 (1998). See § 27(b) and Rule 13 of the Subsidiary Legislation made under the Act [hereinafter Subsidiary Legislation].

60. Rule 8(F) and Rule 13 of the Subsidiary Legislation. In addition to pesticide use for the control of crop and animal diseases, pesticides may be used for purposes of malaria control to eradicate mosquitoes in irrigation canals under the Malaria Prevention Act (Malaria Prevention Act, ch. 246, reproduced in 8 UNEP/UNDP JOINT PROJECT ON ENVIRONMENTAL LAW AND INSTITUTIONS IN AFRICA, COMPENDIUM OF ENVIRONMENTAL LAWS OF AFRICAN COUNTRIES: SECTORAL ENVIRONMENTAL LAWS AND REGULATIONS 266-68 (1998)). The Act authorizes public health officials to take measures to suppress the existence or propagation of mosquitoes in irrigation canals.

61. Agricultural Produce (Export) Act, ch. 319 (1962) (revised ed. 1979).

62. The Suppression of Noxious Weeds Act, ch. 325 (1962) (revised ed. 1983).

63. The Chief's Act, ch. 128 (1988) (revised ed. 1998).

64. Id. § 7.

65. Id. § 10.

66. Penal Code, ch. 63.

67. The Judicature Act, ch. 8, § 3 (1968).

68. See Bondi D. Ogolla & J.B. Ojwang, Kenya, in 2 INTERNATIONAL ENCYCLOPEDIA OF LAWS: ENVIRONMENTAL LAW 139 (R. Blanpain ed., 1996).

69. PETER S. MENELL ET AL., ENVIRONMENTAL LAW AND POLICY 164 (1994).

70. Id. at 166.

71. See id. See also SIMON BALL & STUART BELL, ENVIRONMENTAL LAW: THE LAW AND POLICY RELATING TO THE PROTECTION OF THE ENVIRONMENT 143 (2d ed. 1994).

72. See id.

73. Nairobi High Court Civil Case No. 5403 of 1989 (unreported).

74. Nairobi High Court Miscellaneous Application No. 1446 of 1994 (unreported).

75. Food and Agriculture Organization of the United Nations, International Code of Conduct on the Distribution and Use of Pesticides (1985) (amended to include Prior Informed Consent in Article 9 as adopted by the 25th Session of the FAO Conference in November 1989), at http://www.fao.org/ag/agp/agpp/pesticid/code/pm_code.htm (last visited Oct. 31, 2001).

76. Id. art. 4.

77. Id. art. 5.

78. Id. art. 6.

79. Id. art. 8.

80. Id. art. 10.

81. Id. art. 9.1.

82. Id. art. 9.2. Information required should include at least the identity of the chemical common name, distinguishing name, and chemical name, and a summary of the control action taken and of the reasons for it. If control action bans or restricts certain uses but allows others, such information should be included. The rules also require an indication of any additional information that is available as well as the names and addresses of the contact persons or offices in the country to which a request for further information can be addressed.

83. Id. art. 1.1 (contains objectives of the Code).

84. Id. art. 3.1.

85. Id. art. 1.6. After all, the Code of Conduct serves as a point of reference mainly to countries that do not yet have pesticide control procedures. See id. at preface.

86. See J. FOKLKE & L. LANDERS, EUROPEAN ENVIRONMENTAL RESEARCH GROUP, UNEP'S ROLE IN ENVIRONMENTAL EXPOSURE AND RISK ASSESSMENT OF PESTICIDES—AN EVALUATION OF INTERNATIONAL ORGANIZATIONS WORK AND THE NEEDS OF DEVELOPING COUNTRIES, INCLUDING THE FEASIBILITY OF ENVIRONMENTAL HAZARD CLASSIFICATION AND LABELING 3 (UNEP Report No. 93003/02) (1994) (copy on file with author).

87. For a complete text of the amended London Guidelines, see UNEP, LONDON GUIDELINES FOR THE EXCHANGE OF INFORMATION ON CHEMICALS IN INTERNATIONAL TRADE (May 25, 1989), available at http://www.chem.unep.ch/pic/longuien.htm (last visited Nov. 1, 2001) [hereinafter LONDON GUIDELINES]. Under the information exchange procedure, specific information regards scientific, technical, economic, and legal information on chemicals. Id.

88. The original guidelines did not contain a PIC procedure. PIC was added to the guidelines in 1989.

89. LONDON GUIDELINES, pt. II, para. 7.2(a).

90. See id. pt. II, para. 6. To facilitate the exchange of this kind of information, it was recommended that participating governments designate specific national authorities to act as point of contact.

91. Id. pt. II, para. 7.1(a).

92. FOKLKE & LANDERS, supra note 86, at 3. The PIC procedure under the London Guidelines was later extended to apply to pesticides that, although not banned or severely restricted, are known to cause health or environmental problems, particularly in developing countries. The PIC guidelines were developed on the basis of common elements and principles derived from relevant existing bilateral, regional, and global instruments and national regulations, drawing upon experience already gained through their preparation and implementation. See LONDON GUIDELINES, Introduction, para. 1.

93. See LONDON GUIDELINES, pt. II, para. 8.

94. See id. Introduction, para. 8.

95. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, pmbl., reproduced in W. PATRICIA BIRNE & ALAN BOYLE, BASIC DOCUMENTS ON INTERNATIONAL LAW 322-44 (1995), and ELR STAT. 50308 [hereinafter Basel Convention].

96. During its first decade (1989-1999), the Basel Convention was principally devoted to setting up a framework for controlling the movement of hazardous waste across international frontiers. In its second decade, the convention will focus on ways to reduce the production of hazardous wastes.

97. Basel Convention, art. 4(1)-(3).

98. See WEIR & SCHAPIRO, supra note 15, at 3, 7, 8. See also DAVID BULL, A GROWING PROBLEM: PESTICIDES AND THE THIRD WORLD'S POOR 4, 5 (1982); and CENTER FOR INVESTIGATIVE REPORTING & BILL MOYERS, GLOBAL DUMPING GROUND: THE INTERNATIONAL TRAFFIC IN HAZARDOUS WASTE 36, 37, 39 (1990).

99. "Hazardous wastes" are, first, wastes that fall under categories contained in Annex I to the Basel Convention. See Basel Convention, art. 1. In Annex I. wastes from the production, formulation, and use of biocides may be hazardous wastes.

100. "Wastes" are defined under Article 2 as substances of objects that are disposed of, are intended to be disposed of, or are required to be disposed of by the provisions of national law.

101. Id. art. 1(1)(b).

102. Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa (Bamako Convention), Jan. 30, 1991 [hereinafter Bamako Convention].

103. Id. art. 4.

104. Id.

105. Id.

106. Id. art. 8. Movement of hazardous wastes to a convention member without its consent is considered illegal traffic. So are movements pursuant to falsified consent, misrepresentation, fraud, and those that result in deliberate disposal of wastes in contravention of the Bamako Convention. See id. art. 9.

107. Id. art. 2(d).

108. Id.art. 2(b). Similarly, parties to the Bamako Convention are required to take measures to ban incineration and dumping of hazardous wastes into their internal waters, waterways, territorial seas, exclusive economic zones, and continental shelf. Id. art. 4(2). States must not export wastes to countries that have prohibited them or those that do not have facilities for disposing of them in an environmentally safe manner. Id. art. 4(h)(1).

109. Id. art. 4(1)(a) & (b).

110. Id. art. 5.

111. Id. art. 6.

112. Id.

113. It has been rightly suggested that the Bamako Convention finds legal justification for its bold step in the precautionary principle, a principle of international law that favors preventive regulatory action for environmental protection even in the absence of conclusive scientific proof that a given substance of activity harms the environment. See Margo Brett Baender. Pesticides and Precaution: The Bamako Convention as a Model for an International Convention on Pesticides Regulation, 24 N.Y.U. J. INT'L L. & POL'Y 578 (1991).

114. See Bamako Convention, pmbl.

115. For instance, the Bamako Convention has not created an enforcement agency. Further, although monitoring of compliance is crucial to any regulatory measures, the convention has failed to establish a body to monitor compliance with its provisions. Although the Bamako Convention Secretariat assists state parties to identify cases of illegal traffic and disseminates information regarding such violations, its primary function is administrative. It lacks inspection as well and investigative powers, which, in cases of hazardous waste movement, are crucial.

116. Id. art. 4(h).

117. Id. arts. 4.1, 4.4(a).

118. See Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. Sept. 11, 1998, art. 26, in Rotterdam Convention Concerning Hazardous Chemicals and Pesticides in International Trade, 2000: Hearings on Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, With Annexes Before the Senate, 106th Cong. 15 (2000) (statement of William J. Clinton, President). Also available on the PIC Rotterdam Convention website at http://www.pic.int/finale.htm#convention text e (last visited Nov. 20, 2001).

119. This is known as a final regulatory action. A final regulatory action is defined under Article 2 of the Rotterdam Convention as, "an action taken by a party, that does not require subsequent regulatory action by that party, the purpose of which is to ban or severely restrict a chemical."

120. The notification is required to contain specific information on the chemical properties and uses of a pesticide, including its common name, chemical name according to internationally recognized nomenclature, hazard classification where subject to classification requirements, toxicological properties, a summary of the final regulatory action, date of entry into force of the action, and an indication on whether the action was taken on the basis of a risk or hazard evaluation, and if so, information on such evaluation. Several other matters are required to be indicated. See id. Annex I.

121. Id. art. 5(2). Parties that have submitted notifications under the London Guidelines and FAO's Code of Conduct are exempted from this requirement because their earlier notifications under these instruments are adopted with the adoption of the instruments' PIC system.

122. The procedure is described under Article 5 of the Rotterdam Convention. Article 5(5) states that where the Secretariat has received at least two notifications regarding a particular chemical from two PIC regions, it forwards it to the convention's Chemicals Review Committee. The committee reviews the information received, taking into account such matters as whether or not the final regulatory action was taken to protect health and the environment, with a view to determining whether the chemical should be subjected to the PIC procedure, and accordingly listed under Annex III. See id. Annex III, para. a. In addition, developing countries may propose inclusion of any pesticide formulations that are severely hazardous and which have, under conditions of use in their territories, caused problems. Such formulations also go through the chemicals review process. See id. Annex III and art. 6.

123. The Rotterdam Convention's PIC procedure is an amendment of the PIC procedure that has been existing under both the London Guidelines and FAO's Code of Conduct. Pesticides under the existing PIC procedures in these prior instruments have been adopted by the Rotterdam Convention and listed under its Annex III. The convention's PIC procedure is tentatively referred to as "interim PIC" until the convention itself comes into effect.

124. Id. art. 10(2).

125. Id. art. 10(4)(2).

126. Id. art. 10(4)(I).

127. Id. art. 10(4)(iii).

128. Id. art. 10(1).

129. See id. art. 11(1).

130. For the purpose of conveying information or lack of consent to import or export, the Rotterdam Convention requires parties to create designated national authorities. See id. art. 4.

131. Id. art. 12(1).

132. See id. Annex V and art. 13(4).

133. Id. art. 14.

134. 1 JOINT FAO/WHO FOOD STANDARDS PROGRAMME, CODEX ALIMENTARIOUS COMMISSION, FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS AND WORLD HEALTH ORGANIZATION, CODEX ALIMENTARIOUS: GENERAL REQUIREMENTS iii (preface) (1992) [hereinafter CODEX ALIMENTARIOUS VOL. 1].

135. Id.

136. 2 JOINT FAO/WHO FOOD STANDARDS PROGRAMME, CODEX ALIMENTARIOUS COMMISSION, FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS AND WORLD HEALTH ORGANIZATION, CODEX ALIMENTARIOUS: GENERAL REQUIREMENTS 1 (1993) [hereinafter CODEX ALIMENTARIOUS VOL. 2].

137. Id. Such practices vary from country to country due to different local pest control requirements and other matters.

138. Id. at 3. This implies that Codex MRLs represent residue levels that are toxicologically acceptable. Another type of Codex maximum limits is the extraneous residue limit, which covers residues arising from environmental contamination, or uses of pesticides other than agricultural uses. It is mainly based on residue data obtained from national food control or monitoring activities. Id.

139. Codex Alimentarious are Latin words meaning food law. See CODEX ALIMENTARIOUS VOL. 1, supra note 134, at iii (preface).

140. See, e.g., CODEX ALIMENTARIOUS VOL. 2, supra note 136, at 11.

141. CODEX ALIMENTARIOUS VOL. 1, supra note 134, at 3, 4.

142. See Baender, supra note 113.

143. See Lewis Rosan, Public Participation in International Pesticide Regulation: When the Codex Commission Decides, Who Listens?, 12 VA. ENVTL. L.J. 329 (1993).

144. See id.

145. During interviews, some officials expressed concern about the propriety of Kenya's reliance on the residue limits established by the commission many years ago, which Kenya adopted and included in its statutes. Even some of the commission's standards have been revised over the years and pesticide limits adjusted but Kenya has not made efforts to update its records.

146. There is evidence that these substances can travel over long distances from the source of their emission. In cases of exposure, they may be taken up in the fatty tissues where they bioaccumulate and biomagnify as they move up the food chain over time. Food consumption is one of the significant pathways.

147. Persistent organic pollutants are polychlorinated biphenyls, dioxins, furans, aldrin, dieldrin. DDT, endrin, chlordane, hexachlorobenzene, mirex, toxaphene, and heptachlor.

148. United Nations, Agenda 21, the Rio Declaration on Environment and Development, June 3, 1992, available at http://www.un.org/documents/ga/confl51/aconfl5126-lannex1.htm.

149. See UNEP, Development of an International Legally Binding Instrument, at http://irptc.unep.ch/pops/newlayout/negotiations.htm (last visited Nov. 1, 2001).

150. Pest management policies of the World Bank apply to the International Development Association. The International Finance Corporation also has a policy on pest management, which is similar in some ways to that of the World Bank.

151. THE WORLD BANK OPERATIONAL MANUAL, OPERATIONAL DIRECTIVE 4.03: AGRICULTURAL PEST MANAGEMENT 1 (1992).

152. Environmental assessment of an agricultural project involves screening the project at its identification stage, id. at 2.

153. Id.

154. Id.

155. IPM has been defined in the World Banks' policy on pesticide management as the farmer's best mix of control tactics, taking into account yields, profits, and safety. The World Bank has adopted three basic principles in IPM measures. These include: (1) managing pests to keep them below economically damaging levels rather than seeking to eradicate them; (2) relying, to the extent possible, on non-chemical measures to keep pest populations low; and (3) selecting and applying pesticides, when they have to be used, in a way that minimizes adverse effects on beneficial organisms, humans, and the environment. Id. at 2.

156. Id. at 3.

157. EMCA (No. 8 of 1999). The Act commenced operation on January 14, 2000.

158. Id. pt. XI, § 124.

159. Id. §§ 3(3), (4), (5). The statute defines the environment to include the physical factors of the surroundings of human beings including land, water, atmosphere, climate, sound, odor, taste, the biological factors of animals and plants, and the social factors of aesthetics. See id. § 3. The entitlement to a clean and healthy environment includes access by any person in Kenya to the various public elements or segments of the environment for recreational, educational, health, spiritual, and cultural purposes.

160. Environmental audit is defined as the systematic, documented, periodic, and objective evaluation of how well environmental organization, management, and equipment are performing in conserving or preserving the environment. Id. § 2.

161. Pollution is defined to include pesticide pollution because its definition includes any direct or indirect alteration of the physical, chemical, or biological properties of any part of the environment by discharging or depositing wastes in a way that affects beneficial uses, or creating conditions that are hazardous to public health, safety, welfare, or to animals, birds, wildlife, fish, aquatic life, or to plants. See id.

162. Id. § 3(4).

163. Id. § 3(5).

164. NEMA is the principal instrument of government in the implementation of all policies relating to the environment whose primary responsibility is to exercise general supervision and coordination over all matters relating to the environment. See id. §§ 7, 8, 9.

165. The National Environment Council (NEC) is to be composed of, among others, the Minister for Environment, representatives of public universities in Kenya, representatives of research institutions, representatives of nongovernmental organizations (NGOs), and permanent secretaries in the ministries responsible for health and environmental matters. The NEC is responsible for the establishment of national goals, objectives, and priorities for environmental protection, as well as promotion of cooperation among public departments, local authorities, NGOs, and other parties engaged in environmental protection programs. See id. §§ 4, 5.

166. The function of the National Environment Action Plan Committee is to prepare a national environment action plan for consideration and adoption by Kenya's National Assembly. Any such plan is to be revised or developed every five years. The function of the Provincial and District Environment Committees is to be responsible for the proper management of the environment within the province or district in respect of which they are appointed. See id. §§ 29, 30, 37.

167. Its functions are, among other things, to investigate allegations or complaints against any person or NEMA. See id. §§ 31 & 32.

168. Id. § 61.

169. The duties of the SERC are, inter alia, to advise NEMA on how to establish criteria and procedures for the measurement of water quality for all the waters of Kenya and for different uses. (See § 71). In addition to the bodies and organs listed above, the statute recognizes the functions of lead agencies, that is, governmental ministries, departments, parastatals, state corporations, and local authorities in which any law vests functions of control management of any element of the environment or natural resources.

For the cost of its implementation and administration, the EMCA establishes a general fund into which shall be paid moneys or assets as may accrue to or be vested in NEMA in the course of the exercise of its powers and the performance of its functions under the Act. The Act provides for grants of moneys to be provided by Kenya's parliament for the expenditures incurred in the performance of functions and exercise of powers under it. It also provides that money from any other sources may be provided for, donated through, or lent to NEMA. Powers to administer all funds intended for the Act is vested in NEMA. The statute also provides for the establishment of a National Environment Trust Fund, which is to consist of sums of moneys as may be received in the form of donations, endowments, grants, and gifts. NEMA is required to designate some money out of its funds to the trust fund. The establishment of a National Environment Restoration Fund is also provided for.

170. These are covered under Part IV of the Act, which basically provides for the establishment of national, provincial, and district environmental action plan committees.

171. This is covered under Part VI. It is defined as a systematic examination conducted to determine whether or not a program, activity, or project will have any adverse impact on the environment.

172. This is covered under Part VII, §§ 68 & 69 of the statute. Environmental audit is defined as the systematic, documented, periodic, and objective evaluation of how well environmental organization, management, and equipment are performing in conserving or preserving the environment. Environmental monitoring is the continuous or periodic determination of actual and potential effects of any activity or phenomenon on the environment whether short or long term.

173. These are covered under part VIII of the statute. Standards are to be established for water, air, pesticides, hazardous wastes, and other substances and things.

174. Under Part IX, environmental restoration orders are to be issued by the National Environment Authority to any person as it deems necessary.

175. The primary effect of an environmental easement would be to impose one or more obligations in respect of the use of land for the carrying out of conservation activities on such land for its conservation or improvement as deemed necessary by the courts. Matters regarding environmental easements are covered under EMCA § 112.

176. Under EMCA pt. V, §§ 42-57, the statute makes requirements for the protection and conservation of rivers, lakes, wetlands, hill tops, hill sides and mountain areas, re-forestation and afforestation, biological diversity, forests, biological resources, genetic resources, environmentally significant areas, coastal zone, the ozone layer, and traditional interests.

177. These are dealt with under EMCA pt. X, §§ 117-123.

178. Environmental offenses are set out under EMCA pt. XIII, §§ 137-146. There are offenses relating to environmental impact assessments (EIAs), inspection, records, environmental standards, hazardous waste materials and similar substances, pollution, environmental restoration orders, and easements.

179. EMCA pt. XI, § 124.

180. See the Second Schedule to the Act.

181. See EMCA § 3(1)(5).

182. Id. §§ 70-107.

183. Id. § 94. See also id. § 86.

184. Id. § 70.

185. See id. § 94.

186. See id. §§ 2, 11 & 12.

187. Id. § 94(b).

188. Id. § 94(c) & (d).

189. Id. § 94(c), (f), (g) & (h).

190. With regard to existing environmental statutes, the EMCA states:

Any written law, in force immediately before the coming into force of this Act, relating to the management of the environment shall have effect subject to modifications as may be necessary to give effect to this Act, and where the provisions of any such law conflict with provisions of this Act, the provisions of this Act shall prevail.

Id. § 148.

191. Id. § 94(i).

192. Id. § 94(j).

193. Id. § 95(1).

194. Id. § 95(2).

195. Id. § 98(1)(a).

196. Id. § 98(1)(b).

197. Id. § 98(1)(c).

198. Id. § 141(b).

199. Id. § 98(2).

200. Id. § 142(1)(a).

201. Under EMCA § 142(b), any person who pollutes the environment contrary to the provisions of the Act commits an offense and is liable to the prescribed penalties. Pollution is defined to include discharging chemicals into the environment, and the definition of chemicals includes pesticides. See also id. § 2.

202. The statute provides for a fine of not more than one million shillings and/or imprisonment for a term of not more than two years. See id. § 98(3).

203. See REED DICKERSON, THE FUNDAMENTALS OF LEGAL DRAFTING 1-28 (2d ed. 1986). See also WILLIAM WILSON, MAKING ENVIRONMENTAL LAW WORK — AN ANGLO AMERICAN COMPARISON 1 (1999).

204. See DICKERSON, supra note 203, at 28.

205. For statutory authorization of fiscal incentives, see EMCA § 57. It is recognized that given the circumstances of the majority of Kenyans, use of economic incentives might have its own limitations. For example, it would be difficult to apply it to farmers to lead them to adopt safe use practices with pesticides.

206. The wording of EMCA § 3 suggests that if strict liability were made applicable to such acts, anybody could file suit in respect of harm, either to health or the environment regardless of whether or not the person filing suit has standing.

207. Zoning regulations allow for a consideration of conditions that may be crucial for the prevention of occurrence of negative effects.

208. For a more detailed analysis of the operation of economic and market-based incentives for environmental management, see, e.g., ECONOMIC INSTRUMENTS FOR ENVIRONMENTAL MANAGEMENT: A WORLDWIDE COMPENDIUM OF CASE STUDIES (Jennifer Rietberg-McCracken & Hussein Abaza eds., 2000).

209. Horticulture is included under Kenya's definition of agriculture. See Agriculture Act, ch. 318, § 2 (1980) (revised ed. 1986).

210. In the past, European buyers of Kenya's horticultural products have rejected Kenya's flowers on grounds that they contained either pesticides that have been banned in their countries or high levels of pesticide residues. See Phillip Ngunjiri, Environment: Stemming the Flow of Dangerous Chemicals, INTERPRESS SERV., Sept. 24, 1996.

211. See, e.g., Bondi D. Ogolla, Environmental Law in Africa: Status and Trends, INT'L BUS. LAW. 412, 414 (1995).

212. See Michael G. Faure & Jurgen G.J. Lefevere, An Analysis of Alternative Legal Instruments for the Regulation of Pesticides in REGULATING CHEMICAL ACCUMULATION IN THE ENVIRONMENT. THE INTEGRATION OF TECHNOLOGY AND ECONOMICS IN ENVIRONMENTAL POLICY-MAKING 253 (Timothy Swanson & Marco Vighi eds., 1998).

213. EMCA § 94(d).

214. Rule 3(2)(j) of the Pest Control Products (Labeling, Advertising, and Packaging) Regulations. It enumerates matters to be indicated on a pesticide label. These merely require an indication of information identifying any significant hazards respecting pest control products.

215. These are now authorized and required under Part VII of the EMCA.

216. For this purpose, an environmental inspector appointed under the Act may enter any land or premises to determine how far the activities carried out on the land or premises conform with statements made in an EIA issued in respect of the land or premises, EMCA § 68.

217. In this respect, EMCA § 119 authorizes the director-general to designate such number of laboratories as he may consider necessary as analytical or reference laboratories.

218. DAVID WEIR, THE BHOPAL SYNDROM: PESTICIDE MANUFACTURERS AND THE THIRD WORLD 31 (1986).

219. Id. at 19.

220. Id.

221. Pesticide Action Network Releases Study Documenting That Chlordimeform, A Widely Used Pesticide, Causes Cancer, PR NEWSWIRE, Jan. 21, 1987.

222. See Statement of Mal Demar Loaiza, Circle of Poisoning: Impact of U.S. Pesticides on Third World Workers, supra note 15, at 55.

223. Personal communication with the Attorney General.

224. General Guidelines for Legislative Policy, Memorandum From the President, European Commission. See also RESOLUTION BY THE EUROPEAN COUNCIL OF MINISTERS, COUNCIL RESOLUTION OF OCT. 7, 1997, ON THE DRAFTING, IMPLEMENTATION, AND ENFORCEMENT OF COMMUNITY ENVIRONMENTAL LAW 2 (1997). O.J.C. 321/1. The commission's memorandum emphasized the involvement of outsiders in the lawmaking process under the heading: "Wide External Consultations." In Kenya, one of the ways to achieve this is by publicizing works of various task forces on law reform in the public media to inform the public of what is going on and to seek their participation. Perhaps it would help to form a group of independent national experts on various legal subjects.

225. What Kenyans have gained in law may be lost on the path to justice unless further measures are taken to expand the scope of civil litigation.

226. EMCA § 9(m).

227. Codes of practice are necessary particularly where extensive activities involving various public agencies like NEMA, the National Environment Action Plan Committee, and the Public Complaints Committee will be concerned. Among other things, guidelines would help public officials to clearly understand their responsibilities, set work ethics, provide them reference on authorized actions on matters concerning their responsibilities. These would go a long way to prevent such ills as excessive use and abuse of official power. For information on the committees, see EMCA §§ 7, 31, 37, 38.

228. See J.B. Ojwang, The Constitutional Basis for Environmental Management, in IN LAND WE TRUST: ENVIRONMENT, PRIVATE PROPERTY, AND CONSTITUTIONAL CHANGE 51-57 (Calestous Juma & J.B. Ojwang eds., 1996). See also WILSON supra note 203, at 9.

229. WILSON, supra note 203, at 9.

230. For example, an equality bill was tabled in Kenya's parliament in October 2000 by a member of the opposition party. The bill is said to have originated from the Kenya Federation of Women Lawyers. See Muslim Women Reject Bill, DAILY NATION (Oct. 6, 2000), available at http://www.nationaudio.com/News/DailyNation/06102000/News79.htm.

231. In this respect, one of the questions is whether a constitution lends itself to the creation of particular laws, such as laws for environmental protection. See Ojwang, supra note 228, at 41, 56, 58. This Article takes the position that the passage of the EMCA is a confirmation that Kenya's Constitution allows for the creation of laws for the protection of peoples' rights to a healthy environment and it does not need to be amended for such environmental laws to be created or revised.

232. See Ojwang, supra note 228, at 54.

233. In the case of Kenneth Njondo Stanley Matiba v. The Attorney General (High Court Miscellaneous Civil Application No. 666 of 1990 (unreported)), the High Court in Nairobi interpreted § 84 of the Kenya Constitution, which confers on it the power to grant victims of violations of fundamental rights such remedies as certiorari, mandamus, prohibition, and habeas corpus. The Court stated that an applicant to the Court seeking such remedies for violations of any of the rights conferred by the Kenya Constitution, such as the right to life, must: state the violations of any of the provisions of §§ 70 to 83 (dealing with rights and responsibilities of individuals) before the Court could have the jurisdiction to entertain a complaint: describe how the provision was infringed; and also seek other forms of redress before turning to § 84. The Court held that it lacked jurisdiction to determine the case because the applicant did not identify the provision of the Kenya Constitution that had been breached and, accordingly, the application was dismissed.

234. WEBSTER'S COLLEGIATE DICTIONARY 883 (1978).

235. At the time the bill that was finally passed as the Pest Substances Control Act was being debated in parliament, it was apparent that those who had been involved in the illegal trade of pesticides and importation of fake pesticides into the country included some members of parliament at that time or their agents. In the course of the debates, members of parliament made references many times to "powerful politicians" involved in the trade. However, the politician in question seemed to have been too powerful to be named.

236. Confirming that opportunities existed in Kenya for integration of environmental concerns into legal reform, it was rightly indicated that at that time (1996), the political discourse in Kenya had not come to terms with emerging global concerns. See Ojwang, supra note 228, at 56.

237. See THE ANATOMY OF CORRUPTION IN KENYA: LEGAL, POLITICAL, AND SOCIO-ECONOMIC PERSPECTIVES (Kivutha Kibwana et al. eds., 1996).

32 ELR 10045 | Environmental Law Reporter | copyright © 2002 | All rights reserved