Harnessing the transformative potential of the constitutional human right to a clean and healthy environment in the context of corporate environmental damage in Kenya: a critical perspective

Abstract

Corporate environmental damage in Kenya manifests as a complex mix of humanitarian and ecological harms superimposed over serious environmental governance challenges. The existing legal framework is neither a sufficient deterrent to prevent the occurrence of harm, nor does it offer optimal remedies whenever harm occurs. The limitations inherent in law are primarily because laws are designed to reflect an economic rationality that prioritizes economic growth and profit maximization above all else. Even in cases where a causal relationship between such a rationality and the design of law cannot be ascertained, the limitations of law ultimately inure to the benefit of corporate perpetrators of harm. As a result, the law facilitates the externalization of the costs of environmental damage to the advantage of corporate perpetrators. The constitutional human right to a clean and healthy environment stands as law's response to this problem. Drawing on insights from critical theories of human rights, this article argues that the right can be an effective instrument against corporate environmental damage if it is construed in a manner that prioritizes maximum protection of the well-being of humans and ecosystems. Constructing the right in this way assumes that the new norm is itself a reflection of a new rationality, constituted by a set of values different from those that have played a predominant role in shaping legal and institutional responses to environmental damage so far. These values should guide courts, administrators and legislators in the exercise of their respective environmental protection duties.