Judicial Performance Improvement Project (Jpip)
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JUDICIAL PERFORMANCE IMPROVEMENT PROJECT (JPIP)
Environmental and Social Management Framework REPUBLIC OF KENYA l l a a n n i i g g i i r r O O
Final Report
The Judiciary
Supreme Court of Kenya, City Hall Way Prepared by: Joshua P. Oyieko P.O. BOX 30041 - 00100, Nairobi, Kenya nd [email protected] ACK Garden House, 2 Floor Wing C 1st Ngong Avenue, Off Bishops Road September 20, 2012 P.O. Box 53147, 00200 City Square Nairobi, Kenya Tel:+254 20 2732230/2732231 Cell: +254 722 213826 Email: [email protected] JUDICIAL PERFORMANCE IMPROVEMENT PROJECT (JPIP)
Environmental and Social Management Framework
Final Report
file : Water & Environment' registration number : Pan-12-081 version : 1 Republic of Kenya, the Judiciary P.O. BOX 30041 - 00100, Nairobi, Kenya
September 20, 2012
© Joshua Oyieko No part of these specifications/printed matter may be reproduced and/or published by print, photocopy, and microfilm or by any other means, without the prior written permission of Joshua Oyieko nor may they be used, without such permission, for any purposes other than that for which they were produced CONTENTS PAGE LIST OF ACRONYMS D GLOSSARY AND DEFINITIONS F EXECUTIVE SUMMARY J 1 INTRODUCTION 16 1.1 Project Overview 16 1.2 Direct Impacts on Existing Land Uses within Development Sites 17 1.3 Objective of ESMF 18 1.4 Rationale of the ESMF 18 1.5 Background and Purpose of the Project 19 1.6 . JPIP Objective 19 1.7 Project Components and Sub-Components 19 1.7.1 Component 1: Court Administration and Case Management 19 1.7.2 Component 2: Training and Staff Development: 21 1.7.3 Component 3: Court Infrastructure 22 1.7.4 Component 4: Project Management 22 1.8 Court Facility Exclusions 23 1.9 Project target area/ location 23 1.10 JPIP Co-ordination and implementation 24 1.10.1 JPIP Implementation Arrangements 24 1.10.2 Court Infrastructure Implementation Responsibilities 26 1.11 Stakeholder Identification and Consultation 27 1.12 Baseline Conditions 28 1.12.1 Project Area Location 29 1.12.2 Bio - Physical Environment 29 1.12.3 Socio-Economic Environment 29 1.12.4 Environmental and Social Safeguards 29 1.13 Approach and Methodology for Preparation of the ESMF 30 1.13.1 Site Visits 30 1.13.2 Literature Review 30 1.14 Justification of the ESMF 31 1.15 Scope of Application of the ESMF 32 1.16 ESMF Report Layout 32 2 LEGAL & POLICY FRAMEWORK 33 2.1 National Policies and Regulations 33 2.1.1 Constitution of Kenya 2010 33 2.1.2 Environment Management and Coordination Act (EMCA) No, 8 of 1999 34 2.1.3 Environment and Land Court Act of 2011 36 2.1.4 Occupational Safety and Health Act, 2007 37 2.1.5 Public Health Act (Cap 242) 38 2.1.6 Physical Planning Act (Cap 286) 39 2.1.7 The Water Resources Management Rules (2007) 39 2.1.8 The Local Government Act (Cap 265) 40 2.1.9 The National Museums Act (Cap216) 41 2.1.10 The Employment Act, 2007 41 2.2 World Bank Safeguard Policies 42
i - 2.2.1 Environmental Assessment (OP 4.01) 43 2.2.2 Involuntary Resettlement (OP 4.12) 44
2.2.3 Physical Cultural Resources (OP/BP 4.11) 45 2.4 Alignment of GoK and World Bank Policies relevant to JPIP 45 2.4.1 Environmental Administration Institutions 46 3 PROJECT PREPARATION, APPROVAL AND IMPLEMENTATION 48 3.1 Preparation and Application 48 3.2 Court Facility Appraisal and Approval 48 3.3 Disclosure of Court Facility Information 48 3.4 Annual Reports 49 3.5 Annual Reviews 49 4 ESIA PROJECT PRINCIPLES AND METHODOLOGY 50 4.1 Main ESIA Objective and Scope 50 4.1.1 Environmental Impacts 50 4.1.2 Social Impacts 51 4.2 General ESIA Approach and Methodology 51 4.2.1 Environmental Review of Court Facilities 51 4.2.2 Project Environmental Screening 51 4.2.3 Project EIA Determination 52 4.2.4 Literature Review 52 4.2.5 Field Data Collection and Assessment 52 4.2.6 Project Alternatives 53 4.2.7 Project Implementation and Approval 54 4.3 Reporting on the Project Findings and Results 54 4.3.1 Project Report 54 4.3.2 Number of Project Reports Required by NEMA and Fees 55 4.3.3 Project Report Review and Determination 55 4.3.4 Environmental Audit 56 4.4 Environmental Guidelines For Contractors 56 5 LAND ACQUISITION AND ACCESS TO RESOURCES 58 6 ENVIRONMENTAL MANAGEMENT 59 6.1 Potential Positive and Negative Environmental Impacts 59 6.1.1 Potential Positive Environmental Impacts 59 6.1.2 Potential Negative Environmental Impacts 59 6.2 Potential Positive and Negative Social Impacts 60 6.2.1 Potential Positive Social Impacts 60 6.2.2 Potential Negative Social Impacts 60 6.3 Proposed Mitigation Measures of JPIP Project Impacts 60 6.4 Environmental and Social Impact Monitoring Plan 60 6.4.1 Sound Environmental Monitoring 60 6.5 Environmental and Social Management Plan (ESMP) 61 6.6 Mitigation considerations and options 70 6.6.1 Recommended mitigation measures 70 6.6.2 Cultural Property 70
ii - 7 CAPACITY BUILDING, TRAINING AND TECHNICAL ASSISTANCE 71 7.1 Institutional Capacity Assessment 71 7.2 Training and Capacity Building 71 7.2.1 Identification of Capacity Needs 72 7.3 Capacity Building Budget and Safeguards Implementation 72 8 ESMF COORDINATION AND IMPLEMENTATION ARRANGEMENTS 74 8.1 ESMF Implementing Agencies 74 8.1.1 Judiciary 74 9 PUBLIC CONSULTATION AND DISCLOSURE 75 9.1 ESMF Disclosure 75 9.2 Public Consultation for the ESMF 75 9.3 Public Consultation During the Court Infrastructure EIA 75 9.4 Grievance Redress Mechanism 76 10 CONCLUSIONS AND RECOMMENDATIONS 81 10.1 Conclusions 81 10.2 Recommendations 81 11 REFERENCES 83
List of Tables Table 1: Infrastructure Implementation Responsibilities 27 Table 2: Safeguard Policies Triggered By JPIP Project 43 Table 3: Project Report Preparation by Consultant and Review Period by NEMA 55 Table 4: Environmental Management Plan Matrix for the Court Facility 63
List of Figures Figure 1: JPIP Project Implementation Arrangements 24 Figure 2: Environmental Impact Assessment (EIA) Review Process 57
Annexes Annex 1: ESMF Terms of Reference (ToR) Annex 2: Generic ESIA ToR Annex 3: Generic ESIA Table of Contents Annex 4: Brief Field Visit Report Annex 5: EIA Stakeholder Questionnaire Annex 6: Court Facility Screening Checklist Annex 7: World Bank Safeguard Policies Annex 8: Governing Legislation and Authority Annex 9: Environmental Guidelines for Court Construction Contractors Annex 10: EIA Process Chart
iii - LIST OF ACRONYMS
CR Chief Registrar CSO Civil Society Organizations DANIDA Danish International Development Agency DC District Commissioner DDO District Development Officer DDP District Development Plan DEO District Environment Officer DIME Development Impact Evaluation DMS Detailed Measurement Survey DO District Officer DP Displaced Persons DPCT District Project Coordination Team DSDO District Social Development Officer DRC District Resettlement Committee EA Environmental Assessment EMP Environmental Management Plan ERM Environmental Resources Management ESIA Environmental and Social Impact Assessment EMCA National Environment Management and Coordination Act ESAF Environmental and Social Assessment Framework ESMF Environment and Social Management Framework FLSTAP Financial & Legal Sector Technical Assistance Project FMR Financial Management Report GoK Government of Kenya GIZ German Agency for International Cooperation ICJ-Kenya Kenyan Section of the International Commission of Jurists ICT Information and Communications Technology IFA Integrated Fiduciary Agent IFMIS Integrated Financial Management System IFR Interim Financial Reports IT Information Technology JPIP Judicial Performance Improvement Project JPTC JPIP Technical Committee JSC Judicial Service Commission JTI Judicial Training Institute JTF Judicial Transformation Framework JTSC Judiciary Transformation Steering Committee KPA Key Result Areas M&E Monitoring and Evaluation NCAJ National Council for the Administration of Justice NCLR National Council on Law Reporting NGO Non-Governmental Organization NEMA National Environment Management Authority OP/BP Operational Policy/Bank Procedure PAPs Project Affected Populations PC Project Coordinator PMU Project Management Unit PCT Project Coordination Team
- d - PDO Project Development Objective PIT Project Implementation Team PIU Project Implementation Unit PMU Project Management Unit PRC Provincial Resettlement Committee PPDA Public Procurement and Disposal Act of 2005 PPF Project Preparation Facility RF Resettlement Framework RAP Resettlement Action Plan RIC RAP Implementation Committee ROW Right of Way RPF Resettlement Policy Framework S-ESIA Strategic Environmental Impact Assessment TA Technical Assistance TOR Terms of Reference WB World Bank
- e - GLOSSARY AND DEFINITIONS
Cumulative The total effects on the same aspect of the environment resulting impacts/effects from a number of activities or projects. Compensation The payment in kind, cash or other assets given in exchange for the acquisition of land including fixed assets, is called compensation. These include other impacts resulting from activities to rehabilitate or cushion the impacts from displacement. Developer/ The entity – person/ company/agency – proposing to Proponent/Sponsor develop/implement/install a new project/sub- project or expand an existing project under the JPIP Direct impacts An effect on the environment brought about directly by the JPIP projects. Environment Physical, biological and social components and processes that define our surroundings Encroachers Those people who move into the project area after the cut‐off date and are therefore not eligible for compensation or other rehabilitation measures provided by the project. Entitlement Range of measures comprising cash or kind compensation, relocation cost, income rehabilitation assistance, transfer assistance, income substitution, and relocation which are due to business restoration to PAPs, depending on the type and nature of their losses, to restore their social and economic base. Environmental A comprehensive analysis of the project and its effects (positive Impact Assessment and negative) on the environment and a description of the (EIA) mitigative actions that will be carried out in order to avoid or minimize these effects. Environmental The process of examining a project on a regular basis to ensure Monitoring that it is in compliance with an Environmental Management Plan (EMP) Environmental Impact Assessment (EIA) certification of approval conditions and / or environmental prescriptions. Grievance Mechanism based on policies and procedures that are Mechanism designed to ensure that the complaints or disputes about any aspect of the land acquisition, compensation, resettlement, and rehabilitation process, etc. are being addressed. This mechanism includes a procedure for filing of complaints and a process for dispute resolution within an acceptable time period. Implementation The RPF contains an implementation schedule that outlines Schedule the time frame for planning, implementation, and monitoring and evaluation of the RAPs for project areas, if applicable. Impact A positive or negative effect that a project has on an aspect of the environment Income Restoration The measures required to ensure that PAPs have the resources to at least restore, if not improve, their livelihoods. Indirect impact A positive or negative effect that a project indirectly has on an aspect of the environment. Indigenous peoples The people indigenous to an area and include ethnic minorities as defined by World Bank Operational Policy on Indigenous Peoples (OP 4.10).
- f - Involuntary Refers both to physical displacement (relocation or loss of shelter) Resettlement and to economic displacement (loss of assets or access to assets that leads to loss of income sources or means of livelihood) as a result of project‐related land acquisition. Resettlement is considered involuntary when affected individuals or communities do not have the right to refuse land acquisition that result in displacement. This occurs in cases of: (i) lawful expropriation or restrictions on land use based on eminent domain: and (ii) negotiated settlements in which the government can resort to expropriation or impose legal restrictions on land use if negotiations with the seller fail. Land Land refers to all types of agricultural and/or non-agricultural land and any structures thereon whether temporary or permanent and which may be acquired by the project. Land Acquisition Land acquisition means the possession of or alienation of land, buildings, or other assets thereon for purposes of the project. Lead Agency The agency with primary responsibility for the protection of the environment. For instance, the lead agency for environment matters in Kenya is the National Environment Management Authority (NEMA). Mitigation measures The actions identified in an EIA to negate or minimize the negative environmental impact that a project may have on the environment. Project Affected Project affected persons (PAPs) or Displaced Persons (DPs) are Persons (PAPs) or persons affected by land and other assets loss as a result of JPIP Displaced Persons Programme activities. These person(s) are affected because they (DPs) may lose, be denied, or be restricted access to economic assets; lose shelter, income sources, or means of livelihood. These persons are affected whether or not they will move to another location. Most often, the term DPs applies to those who are physically relocated. These people may have their: standard of living adversely affected, whether or not the Displaced Person will move to another location; lose right, title, interest in any houses, land (including premises, agricultural and grazing land) or any other fixed or movable assets acquired or possessed, lose access to productive assets or any means of livelihood. Project A set of planned activities designed to achieve specific objectives within a given area and time frame. Project Impacts Impacts on the people living and working in the affected areas of the project, including the surrounding and host communities are assessed as part of the overall evaluation of the project. Project Some projects make use of project implementing units (PIUs), Implementing Unit which are generally separate units within the project recipient’s (PIU) agency. The PIU is often composed of full time staff devoted to implementing the project, and have been encouraged to have separate teams with environment and social specialists who can carry out the activities, for example, as outlined in the RPF or RAP. Project Report The initial submitted document to NEMA to initiate the process that will lead to the issuance of the EIA certificate of approval. Rehabilitation Rehabilitation assistance is the provision of development
- g - Assistance assistance in addition to compensation such as livelihood support, credit facilities, training, or job opportunities, needed to assist PAPs or DPs restore their livelihoods. Replacement Cost Replacement cost refers to the amount sufficient to cover full recovery of lost assets and related transaction costs. The cost should be based on Market rate (commercial rate). Resettlement Action The RAP is a resettlement instrument (document) to be prepared Plan (RAP) when project area locations are identified. In such cases, land acquisition leads to physical displacement of persons, and/or loss of shelter, and /or loss of livelihoods and/or loss, denial or restriction of access to economic resources. RAPs are prepared by the implementing agency and contain specific and legal binding requirements to resettle and compensate the affected people before project implementation. Resettlement Resettlement assistance refers to activities that are usually Assistance provided during, and immediately after, relocation, such as moving allowances, residential housing, or rentals or other assistance to make the transition smoother for affected households. Resettlement Policy The RPF is an instrument to be used throughout the project’s Framework (RPF) implementation. The RPF sets out the objectives and principles, organizational arrangements, and funding mechanisms for any resettlement, that may be necessary during implementation. The RPF guides the preparation of Resettlement Action Plans (RAPs), as needed, for project areas. Rights and Rights and entitlements are defined for PAPs and DPs (with Entitlements the cut-off date) and cover those losing businesses, jobs, and income. These include options for land-for-land or cash compensation. Options regarding community and individual resettlement, and provisions and entitlements to be provided for each affected community or household will be determined and explained, usually in an entitlement matrix. Scoping The initial stage in an environmental assessment that determines the likely major environmental parameters that will be affected and the aspects of the project that will bring upon these effects. Screening An initial step when a project is being considered for environmental assessment. The screening is the determination of the level of assessment that will be conducted. In the case of GoK, screening will place project into one of three environmental categories (I, II or III). Significant effect An important impact on an aspect of the environment. Socio‐economic Means the census of PAHs/ PAPs of potentially affected survey people, which is prepared through a detailed field survey based on actual data collected. The census provides the basic information necessary for determining eligibility for compensation, resettlement and other measures emanating from consultations with affected communities and the local government institutions (LGIs). Stakeholder Any person or group that has an interest in the project, and the environmental effects that the project may bring about. Vulnerable means any people who might suffer disproportionately or face
- h - Persons the risk of being marginalized from the effects of resettlement i.e.; (i) female headed households with dependents; (ii) disabled household heads; (iii) poor households; (iv) landless elderly Households with no means of support; (v) households without security of tenure; and (vi) ethnic minorities.
- i - EXECUTIVE SUMMARY
Introduction
The Government of Kenya has approached the World Bank to revive the preparation of the proposed JPIP. In line with the new constitution in which the judicial reforms are anchored, th e judiciary has developed a comprehensive judicial reform strategy which takes into account earlier viable reforms and the spirit of the new constitution. This new strategy is commonly kn own as the Judiciary Transformation Framework (JTF). The JTF is going to govern the refor ms in the judiciary for the next 4 years (2012-2016). The JPIP is implementing some of the k ey activities in the JTF and is aligned with the JTF priorities. The objective of the JPIP is to s trengthen the capacity of the Judiciary to perform its services in an effective, transparent, an d accountable manner.
The JPIP is not likely to lead to any large scale acquisition of land or denial of access to usua l means of livelihood. The judiciary will only carry out construction in those areas where the J udiciary has land title. It is anticipated that there will be few, if any, human settlements or wid e scale economic activity on the land owned by the Judiciary. However, as a precautionary m easure, an RPF has been prepared to take care of any displacement or loss of livelihood.
Project Components
The overall Project has been divided into four key components namely: Court Administration and Case Management; Judicial Education and Staff Training; Court Infrastructure; and Project Management.
Out of the four components of the JPIP, only the Court Infrastructure component is likely to generate environmental and social impacts that will require environmental and social safeguards. This component is intended to (i) address geographical and physical access to justice through the construction of new courts, the refurbishment of existing ones, and the establishment of mobile courts; and (ii) address obstacles to access resulting from lack of knowledge of laws and procedures amongst vulnerable groups through supporting identification of groups that face difficulties and implementing a strategy of services to enhance their access to justice. This component aims to overcome obstacles Kenyans face in obtaining access to justice, including access to courts. Under this component, the Judiciary shall rehabilitate some courts and construct new courts in 3 regions in Kenya. The Bank funding will support the proposed construction of 10 courts ( 8 High Courts and 2 Magistrates Courts) rehabilitation of 20 magistrates courts and supply of 20-30 temporary courts/demountables.
The ESMF framework focuses on the proposed rehabilitation of existing courts and construction of new courts and strengthening institutional capacity of the Judiciary.
Guiding Principles
The guiding principles of the JPIP include among others guaranteeing environmental and social risk management practices, which must conform to Kenyan environmental laws and the highest standards of environmental and social safeguards. The JPIP intends to address key challenges in the Court Infrastructure component.
- j - In order to comply with the requirements of the Environmental Management and Coordination Act (EMCA) 1999 and the World Bank’s Safeguards Policies, the Government of Kenya (GoK) through the Judiciary, has prepared an Environmental and Social Management Framework (ESMF). The ESMF is an instrument, through which the environmental and social impacts of the project area (courts) will be assessed, evaluated and appropriate mitigation and monitoring measures incorporated within the project area.
The Purpose of this ESMF
The Court Infrastructure component of the JPIP will entail the rehabilitation of existing court i nfrastructure and the construction of new courts. Problems of access to courts are compoun ded by their physical distance for many Kenyans, such that physical difficulties and travel cos ts alone prohibit access to the formal justice system.
The court houses and associated facilities (also referred to as project area) that are proposed to be rehabilitated or new ones to be constructed are likely to generate environmen tal and social impacts that require mitigation. Since the location and design of the eventual project areas cannot be determined at project appraisal, the appropriate instrument to be use d to determine the likely impacts at this stage is an Environmental and Social Management F ramework (ESMF). An ESMF is an environmental safeguard instrument used by the World B ank for a project with multiple small scale investments whose location and type are not well d efined at project appraisal. The overall objective of this ESMF is to guide the implementing in stitution to address all environmental and social issues from preparation through review and approval, to implementation.
An ESMF is required for this project because although the nature and activities of the proposed JPIP are well understood, the details of the various court facilities are not confirmed and therefore a detailed ESIA cannot be prepared. The ESMF then sets out mitigation, monitoring and institutional measures to be taken during design, implementation and operation of these activities to eliminate adverse environmental and social impacts, offset them , or reduce them to acceptable levels. The aims of the ESMF are:
(i) To provide as much information as possible on environmental and social impacts at the current state of project preparation; (ii) To inform project planning and design process by comparing potential impacts of alternative sites, configurations, and construction techniques under consideration; (iii) To describe procedures for subsequent assessment of impacts and development of appropriate impact management instruments when the details of the project become available.
The ESMF explains how environmental and social issues will be integrated into the impleme ntation of the overall Court Infrastructure component and the project areas. It provides guida nce and a series of tools to be used by the Kenya Judiciary and others involved in design, co nstruction and operation, to ensure that environmental and social concerns are taken into ac count and appropriately mitigated, managed and monitored at each stage in the developmen t of new and upgrading of existing court infrastructure facilities.
The Bank funding portion will support the proposed development of 8 High Courts, 2 Magistr ates Courts selected for proposed construction and 20 Magistrate Courts that have been sel ected for rehabilitation. It will also finance buying of demountables (temporary structures). So me of these will comprise extensions and new buildings on existing Judiciary sites and others will involve development of new sites.
- k - The specific objectives of this ESMF are:
To establish clear procedures and methodologies for the environmental and social planning, review, approval and implementation of court facilities to be financed under the Project; To specify appropriate roles and responsibilities and outline the necessary reporting procedures, for managing and monitoring environmental and social concerns related to court facilities; To determine the training, capacity building and technical assistance needed to successfully implement the provisions of the ESMF; To establish the project funding required to implement the ESMF requirements; To provide practical resources for implementing the ESMF.
ESMF Implementation Arrangement
The Judiciary will act as the overall Implementing Agency for the JPIP, with assistance from Project Coordinator in the Project Management Unit (PMU). The Project Coordinator will be responsible for the day to day coordination of the project and will be assisted by a social and environmental safeguards specialist.
JPIP Steering Committee will be responsible for (a) providing strategic and policy guidance for Project implementation; (b) review and approve annual work plans for the Project; and (c) review project financial reports.
JPIP Technical Committee (JPTC) led by a technical specialist will oversee the technical aspects and quality control of the implementation of the project activities.
Project Management Unit (PMU) and Project Coordinator (PC) will be responsible for promoting effective implementation, oversight and coordination of the project.
The JPTC will oversee the implementation of the ESMF under the courts infrastructure component with inputs from JTSC and the PC with assistance from the social and environmental specialist. At the initial stages of the JPIP, Consultants will work under the PC and in collaboration with the JPTC to implement the ESMF requirements.
Environmental and Social Management Requirements
Projects that are financed by the World Bank are guided by environmental and social safeguards policies and procedures to prevent and mitigate potential impact or harm to the biophysical and social environment during project development. The Court Infrastructure component of the JPIP which entails rehabilitation of existing courts and construction of new courts is likely to trigger the following four World Bank policies: (a) Environmental Assessment - OP/BP 4.01; (b) Involuntary Resettlement OP/BP 4.12; and (c) Physical Cultural Resources – OP/BP 4.11
Environmental and Social Safeguard Screening Procedures
The World Bank uses the following three categories to signal the appropriate level of Environmental Assessment required for any given project:
- l - Category A: A full Environmental Assessment (EA) for Category A projects, which are likely to have adverse environmental impacts that are significant (based on the type, location sensitivity, and scale of the project and the nature and magnitude of its potential environmental impacts
Category B: EA is required, but its scope corresponds to the limited environmental impacts of the project. A project is classified as Category B if the potential impact on the environment are typically site specific, reversible in nature, less adverse and for which mitigatory measures can be designed more readily.
Category C: No EA is required. A project is classified as Category C if it is likely to have minimal or no adverse environmental impacts.
According to the World Bank’s safeguard policy on Environmental Assessment as mentioned above, the proposed JPIP Infrastructure Programme has been classified as a Category B project with the potential for adverse impacts on human populations or environmentally important areas which are site-specific, mostly reversible, and in most cases capable of reasonable straightforward mitigation. The assessment of Category B projects requires examination of the project's potential negative and positive environmental and social impacts and identification of measures needed to prevent, minimise, mitigate, or compensate for adverse impacts and improve environmental performance.
This ESMF provides a baseline environmental assessment, assesses positive and negative environmental and social impacts of the project through screening tools, and recommends mitigation measures to limit negative impacts. The screening and review process will determine whether a particular court facility will trigger a safeguard policy, and what mitigation measures need to be put in place. The screening and review process will also ensure that court facilities that may have potentially significant impacts are subjected to more detailed study and the need for site specific EIA and/or EMP.
Environmental and Social Impacts
The potential negative environmental and social impacts arising from the courts rehabilitation and construction activities are likely to include loss of vegetation, soil erosion and siltation, soil and groundwater pollution, air pollution, public health impacts such as noise, dust, and loss of livelihoods. These impacts must be fully identified, appropriate mitigatiion measures clearly defined and associated cost incorporated into the project's overall budget. This ESMF has been designed to address potential impacts at the planning, deign, implementation and operation stages of the courts facilities (rehabilitation and construction of new courts).
Potential Environmental and Social Impacts and EMP associated with the courts infratructure are elaborated in Table 4 of this ESMF Report on Page 48.
Court Facility Screening and development of Environmental and Social Management Plans (ESMPs)
This ESMF serves as a guide for the preparation of court facility safeguards documents such as: Environmental and Social Impact Assessment (ESIA),
- m - Resettlement Action Plan, Environmental and Social Management Plans (ESMPs), which are appropriate for this type of project.
Projects that fall in the category listed in the Second Schedule of the Environmental Management and Co-ordination Act (EMCA), 1999 require to undergo EIA evaluation. The proposed rehabilitation of existing court structures and construction of new ones fall in the category listed under item 1. General – (a) an activity out of character with its surrounding and (b) any structure of a scale not in keeping with its surrounding and are therefore required to undergo Environmental Impact Assessment (EIA).
The screening will determine compliance with both Government of Kenya (GoK) and World Bank Safeguard Policies and statutes, following which ToRs for follow-up EIA and Resettlement Action Plan (RAP) studies will be developed.
Each court facility EIA study will be guided by the Environmental (Impact Assessment and Audit) Regulations 2003, EMCA 1999 and World Bank OP/BP 4.01 while the scale of RAP study will depend on whether screening has allocated a category for the court facility in line with the RPF. Screening and EIA study will yield an Environmental Management Plan (EMP) for each court facility. The EMP will be reviewed and approved by the Judiciary for submission to NEMA. Upon approval by NEMA, the EMP will guide resolution of all potential environmental and social impacts likely to be generated by each of the court facilities.
Reporting and Performance Review Requirements
Once the court structures have been rehabilitated or constructed, annual or regular Environmental Audits (EA) will be carried out by hired Consultants and EA reports prepared and forwarded to The Judiciary and NEMA for review. The EAs will compare the current EMP performance against the previous ones (EIA and subsequent EAs) to gauge the project performance in implementing the EMPs. NEMA shall provide Improvement Orders to be addressed during the succeeding period before the next EA.
Capacity Building and Training The management of environmental and social impacts of projects is not a core competence typically required of The Judiciary staff or of others expected to have key roles in implementation of the JPIP Infrastructure Programme. However, in order to be able to effectively implement the Environmental and Social Management Framework, adequate capacity enhancement will be required within the Judiciary.
The Judiciary will therefore make use of qualified environmental and social experts to support the Court Infrastructure Programme where issues at particular sites require expert guidance. The advice of a Social Development specialist will be obtained if significant resettlement issues arise at any site or where there are social issues associated with vulnerable groups.
The capacity building exercise will mostly be in the form of training seminars/workshops and short courses for project staff to be able to successfully implement environmental and social aspects of the courts infrastructure development.
The proposed training modules shall cover:
- n - a) World Bank safeguards policies and NEMA environmental regulations, specifically covering ESMF/ RPF; b) Court Facility Screening Checklist; c) Terms of Reference for ESIAs; d) Environmental and Social Clauses in Contractors’ contract and bidding documents.
The ESMF Report is structured as follows:
Glossary of Terminologies List of Acronyms Executive Summary Chapter 1 – Introduction Chapter 2 – Legal and Policy Framework Chapter 3 – Project Preparation, Approval and Implementation Chapter 4 – ESIA Project Principles and Methodology Chapter 5 – Access to Resources Chapter 6 – Environmental Management Chapter 7 – Capacity Building, Training and Technical Assistance Chapter 8 – ESMF Coordination and Implementation Arrangements Chapter 9 – Public Consultation and Disclosure Chapter 10 – Conclusions and Recommendations Chapter 11 – References
- o - 1 INTRODUCTION
1.1 Project Overview
The Government of Kenya has approached the World Bank to revive the preparation of th e proposed JPIP. In line with the new constitution in which the judicial reforms are anchore d, the judiciary has developed a comprehensive judicial reform strategy which takes into a ccount earlier viable reforms and the spirit of the new constitution. This new strategy is co mmonly known as the Judiciary Transformation Framework (JTF). The JTF is going to gov ern the reforms in the judiciary for the next 4 years (2012-2016). The JPIP is implementin g some of the key activities in the JTF and is as aligned with the JTF priorities. The objecti ve of the JPIP is to strengthen the capacity of the Judiciary to deliver its services in an effe ctive, transparent, and accountable manner. The JPIP is not likely to lead to any large scale acquisition of land or denial of access to us ual means of livelihood. The Judiciary will only carry out the construction of court facilities i n those areas where the Judiciary has land title. It is anticipated that there will be few, if an y, human settlements or wide scale economic activity on the land owned by the Judiciary. However, as a precautionary measure, an RPF has been prepared to take care of any displacement or loss of livelihood. The overall project has been divided into four key components namely: Court Administration and Case Management; Judicial Education and Staff Training; Court Infrastructure; and Project Management.
The proposed rehabilitation of existing courts and the construction of new Magistrates and High Courts and associated facilities is intended to promote “Access to Justice” The court infrastructure development will involve the following activities:
Site Selection and Acquisition; Court Design; Application and Acquisition Local Area Permits and Licenses for Construction; Clearing of vegetation at the site area to pave way for court construction; Soil Excavation Activities; Temporary Storage of Excavated Materials; Transportation of Excavated Materials away from site and Building Materials to site; Court Construction Activities’ Court Operation Activities; Court Operation Monitoring and Evaluation;
The Programme is identified as having the potential for a wide range of different types of environmental and social impacts depending on the circumstances and plans at each court development location. These activities will trigger sections of the Environmental Management and Coordination Act (EMCA 1999) and Environmental (Impact and Audit) Regulations, 2003 and also World Bank Environmental Assessment Operational Policy (OP.4.01). The project impacts are associated with Category B projects under the World Bank level of environmental assessment. Since the specific court facilities to be rehabilitated and sites for new construction are not known yet, the appropriate instrument for addressing environmental and social safeguards at this stage is the Environmental and
16 Social Management Framework (ESMF). An indicative list for courts to be constructed and rehabilitated is attached.
1.2 Direct Impacts on Existing Land Uses within Development Sites
The JPIP is not likely to lead to any large scale acquisition of land or denial of access to usual means of livelihood. The judiciary will only carry out construction of court facilities in those areas where The Judiciary has land title. It is anticipated that there will be few, if any, human settlements or wide scale economic activity on the land owned by The Judiciary. However, as a precautionary measure, an RPF has been prepared to take care of any displacement or loss of livelihood.
The only impacts that are likely to occur will be environmental. These will largely be generated during the construction of new court buildings or the rehabilitation of existing courts. The impacts will arise from the removal of existing vegetation, soil erosion in excavated areas and spillage of oils and fuels from vehicles and machinery used at the construction sites. The construction activities are also likely to generate excessive dust, elevated noise levels from trucks and machinery and pollution of soil, surface and groundwater by released fuels and oils.
Impacts on Community Welfare
Kenya’s Judiciary faces significant challenges in achieving effective access to justice for the population due to geographical and physical barriers. The proposed Court Infrastructure component of the JPIP will offer significant benefits to social welfare through improvement of access to court facilities and significant reduction in travel time and cost to access courts. The JPIP is prioritizing locations for investment, and provide guidance on the design and operation of new court facilities to facilitate effective access.
Sewage Disposal and Solid Waste Management
The management of sewage and solid waste from court facilities is identified as an issue at existing courts requiring attention in the siting, design, construction and operation of new courts and rehabilitation of existing ones. The Environmental and Social Management Framework identifies measures to be incorporated into the design and operation of new courts to ensure appropriate sewage and solid waste management at all court sites.
Water Resources
Construction activities have the potential to impact local water supply if located near surface or groundwater bodies that act as water supply sources. Earthworks and other soil excavation activities may increase sediment deposition in local water bodies and accidental spillage of fuels, oils, lubricants from vehicles and equipment on site may cause contamination. Increased water abstraction during construction may also impact on local water supplies. The Environmental and Social Management Framework identifies measures that should be taken into consideration during construction to manage these impacts. External stakeholder views have been sought and taken into account in the assessment and the Judiciary should continue to keep people informed during the planning and implementation period of the programme.
17 A programme of awareness raising should also be undertaken to ensure that Judiciary staff and staff from other government departments (Ministry of Lands, Ministry of Public Works and NEMA) involved in the court infrastructure development are aware of the requirements of the Environmental and Social Management and Resettlement Policy Frameworks. They should also ensure that provisions of the frameworks are met during planning, construction and operation of the new court facilities.
1.3 Objective of ESMF
Early appraisal has indicated that the Court Infrastructure component of the JPIP which entails rehabilitation of existing courts and construction of new courts is likely to trigger the following three World Bank policies: (a) Environmental Assessment - OP/BP 4.01; (b) Involuntary Resettlement – OP/BP 4.12; and (c) Physical Cultural Resources – OP/BP 4.11. The project has been identified as a Category B project under the World Bank environmental assessment level requiring environmental and social impact assessment and identification of mitigation measures.
The objective of the ESMF is to establish guidelines and procedures to deal with the environmental and social impacts associated with the implementation of this project. The specific objectives are as follows;
Assess the compatibility of the Government of Kenya (GoK) Policies and World Bank Safeguard Policies; identify the gaps, and develop mechanism for addressing these gaps. Outline the process for identifying potential adverse environmental and social impacts due to construction and rehabilitation of court facilities; Provide guidelines for preparing the environmental and social mitigation plans to address the adverse impacts; Describe the implementation and institutional arrangements for managing environmental and social impacts; Provide a framework for the integration of social and environmental aspects at all stages of the project planning, design, execution and operation of various sub- components. Ensure positive social and environmental impacts of project areas and avoid/minimize and manage any potential adverse impacts.
1.4 Rationale of the ESMF
The Kenya Environmental Management and Coordination Act (EMCA) 1999, Second Schedule provides the list of categories of projects for which ESIA is mandatory. Each of the proposed new court facilities are required to undergo EIA evaluation since they trigger sections of this Act. They fall in categories listed in the Second Schedule of EMCA under item 1. General – (a) an activity out of character with its surrounding and (b) any structure of a scale not in keeping with its surrounding and (c) major changes in land use.
In accordance with the World Bank’s safeguard policy on Environmental Assessment, the Court Infrastructure component has been classified as a Category B project with the potential for adverse impacts on human populations or environmentally important areas which are site-specific, mostly reversible, and in most cases capable of reasonable straightforward mitigation. The assessment of Category B projects requires examination of the project's potential negative and positive environmental and social impacts and
18 identification of mitigation measures needed to prevent, minimize, or compensate for adverse impacts and improve environmental performance.
Development of court structures has the potential to cause displacement of existing land uses triggering Operational Policy 4.12: Involuntary Resettlement. This requires the preparation of a Resettlement Policy Framework setting out how resettlement will be managed where it is required at particular locations.
1.5 Background and Purpose of the Project
Kenya’s Judiciary core mandate consists of administering justice, developing and implementing judicial policies and compiling and disseminating case law and other legal information for effective administration of justice. However, over the last two decades public confidence in its ability to carry out these functions has waned and various reports have attributed its ineffectiveness to its failure to deliver timely justice as a result of the significant backlog of cases arising from inefficient and ineffective case flow management systems.
The Judiciary has also been perceived as lacking intellectual rigor because of its failure to write judgments which take into account the social context and influence of the Kenyan jurisprudence. Its court administration functions have been highly centralized (a remnant of the colonial legacy) and particularly weak with regard to budget management, performance evaluation and monitoring, financial management, procurement and carrying out other core operations. It has also had poor terms of service for its judicial officers, lacked systematic and adequate judicial training and has had deficient physical infrastructure.
1.6 JPIP Objective
The project development objective is to strengthen the capacity of the judiciary to provide its services in the project areas, in a more effective, transparent and accountable manner. The project has been divided into four key components, one of which is “Court Infrastructure”. The aim of this component is to overcome obstacles Kenyans face in obtaining access to justice, including access to courts. A key part of this component is the improvement of court facilities and court infrastructure which will be limited to selected project areas.
1.7 Project Components and Sub-Components
1.7.1 Component 1: Court Administration and Case Management
This component seeks to strengthen court administration and case management, and in particular the capacity issues related to management, performance, efficiency and transparency. Court administration has been a particularly weak area in The Judiciary since judicial officers were also performing administrative functions. It was not until 2010 with the passing of the new Constitution when court administration work was finally separated from the judicial functions. A cadre of court administrators is now responsible for the administrative functions of the courts while the role of the judges, who were previously involved in administrative functions and participated on administrative committees, is limited to judicial functions.
19 The Court Administration Sub-Component will entail: a) Conducting an organizational review of the judiciary, while taking into account the new management structures, directorates and committees. b) Supporting the change management process in The Judiciary, as well as building on the GIZ-financed work on developing a performance appraisal system, through technical assistance and training. c) Strengthening the general capacities of the Judicial Service Commission in fulfilling its constitutional purpose by providing technical assistance in a range of areas including preparation of on-going programs pursuant to the JSC strategic planning addition to technical assistance, training, equipment/logistic support. d) Strengthening the new Directorates and the Chief Registrar's (CR) Office in their functions, including in budgeting, planning, etc., based on a needs plan prepared by the respective offices, through TA, training and equipment support. This support would also cover initiatives, led by the CR’s office, for better court stations management, including procedural reforms, automated systems for managing deployments to court stations and the allocation of cases within stations and the development of better services, etc. e) Supporting the establishment of modern data collection and use in decision making, including the design, implementation, and publishing of user surveys (disaggregated and gender relevant); production of judiciary annual reports; and M&E system evaluations through TA, training and hard/software support. f) Supporting the work of the National Council on the Administration of Justice to advance the momentum of facilitating national dialogue and commitment to procedural reform that directly impacts on court workloads. g) Facilitating third party participatory monitoring and accountability structures, including strengthening the Court Users Committees in critical policy development work, implementation of improvement plans, training, meetings logistics and other capacity building needs, and strengthening processes for feedback and grievance at all levels, including the use of judiciary dialogue cards. h) Development of an anticorruption policy and strategy.
Sub-component 1.1: Case Management. This sub-component seeks to improve the transparency and delivery of some critical judicial services to the public, including getting better public participation. Key activities include: a) Supplying and installing an Integrated Court Management IT system. This will also entail establishing case tracking and management processes to speed trials and reduce backlogs, initiatives that will include automating and rationalizing procedures via a pilot court program, the beneficial results of which are to be rolled out to all major court stations over the course of the project. b) Carrying out an assessment of, and establishing, a court-annexed mediation program as a means of offering genuine alternative dispute resolution system options in trial courts; c) Automating recording of court proceedings (currently a manual process), and automating and digitizing records management systems in court registries. d) Reducing the backlog of cases, through a range of interventions including supporting the National Council of Law Reporting of Kenya in its case and law reporting function and innovation in its system e) Developing more specific litigants charters that outline the service delivery of different court types & levels, such as for the children's courts. f) Supporting the judiciary to advance emerging innovations and initiatives that improve
20 services to the public, such as access to information on judicial processes and decisions (e.g. improving court translation services, developing legal glossaries and other public information using non-legal language, rolling out of help desks/information boards to other courts), preparing for small claims/petty sessions; establishing help desks, courts implementation, clarifying the role of community paralegals, assessing gender obstacles to justice, establishing a structured public complaints mechanisms, etc. g) Understanding the incentives in support of the status quo and developing tools and mechanisms to mould these. Anticipated Court types
1.7.2 Component 2: Training and Staff Development:
This component will focus on strengthening: (i) the knowledge, skills and capacities of judicial staff, including judges, magistrates, paralegals, and court administrators, and (ii) the capacity of the Judicial Training Institute (JTI) to deliver on its mandate.
Specifically this component will assist in:
a) Conducting and updating previous assessments of the training needs of the different categories of personnel within The Judiciary, e. g. magistrates, judges, paralegal staff, court administrators, researchers, and other non-judicial staff; b) Developing and implementing a relevant training program, including curricula/training materials that in addition to the substantive and procedural aspects of law, also addresses the induction of magistrates and judges, as well as topical issues, for example on social accountability, social contexts, gender, integrity, and ethics, among others; c) Strengthening the technical capacity for research, interpretation and analysis by judges and magistrates by designing and implementing a program for court administrative managers, judicial clerks, registry personnel and staff retained to undertake research or to assist the general public; d) Reviewing the modalities of conducting judicial training, including the option of outsourcing training services or developing partnerships with universities and law schools, and via new media, such as by the development of accredited online learning programs; e) Strengthening the general capacities of the JTI in fulfilling its mandate by providing TA for a range of areas, e.g. in assessing JTI's performance and helping it develop a plan that strengthens its operational and management capacity, including mechanisms that regularly assess its effectiveness; f) Supporting the implementation of key activities in the JTI’s strategic plan, such as setting up and resourcing a research resource center; introducing video conferencing capacity, equipping a library (including in up-country stations) with the necessary books, furniture, and IT needs while linking it to other local, regional and international libraries; and reinforcing processes by which training programs can be offered steadily and consistently throughout each court year, among other priorities; g) Providing other capacity building support for the JTI such as training for its staff, office equipment, and some operating costs financing for logistical support; h) Decentralizing training to the regions to enable officers who cannot travel to Nairobi to obtain training. i) Study tours and conferences.
21 1.7.3 Component 3: Court Infrastructure
The funding provided by the Bank for proposed new court construction and existing court renovation is intended to help accelerate the overall construction and renovation program being funded by the GoK. This component will focus on developing the necessary infrastructure for The Judiciary to hold trials and provide access to courts by providing the physical space necessary. It will help to address a multitude of infrastructure related issues in the country, including the shortage of courts; building deterioration and structural problems affecting functionality, health, and safety; inadequate security, particularly internal building circulation for judges, public, and defendants in remand; lack of public amenities, such as handicapped accessibility and restrooms, great distances and travel times to courts for many citizens, etc.
In summary, this component will:
a) Develop standard court design and standards for court maintenance. b) Develop capacity to manage court properties. c) Support the rehabilitation of selected courts and construction of some High Court and Magistrates courts stations. d) Support demountable buildings and mobile courts where necessary. e) Carry out assessments for safeguards compliance. f) Support the Chief Registrar’s office with construction professionals to help manage and supervise the construction and renovation program. g) Engage civil society groups to conduct third party monitoring of design, procurement and implementation.
The Bank funding portion will support proposed construction of 8 High Courts, 2 Magistrates Courts selected for proposed construction and 20-30 Magistrate Courts that have been selected for rehabilitation and buying demountables (temporary structures)..
Demountables are to be used for those courts that need to operate during construction of new buildings or refurbishment, or in locations where courts may temporarily sit. Demountables may be used as courtrooms, office space, and public waiting areas or for services, such as for toilets or records storage.
1.7.4 Component 4: Project Management
The primary objective of this component is to help the Judiciary manage and coordinate project activities, including the financial and procurement functions. Specifically the component will:
a) Support a Project Management Unit (PMU), including professionals, office equipment, operating costs (e.g. website, print materials, etc.) and training for the unit’s staff. b) Provide the services of an Integrated Fiduciary Agent responsible for the financial management and procurement functions of the project, as well as training/transfer of these skills to Judiciary staff. c) Design and implement a public engagement communication strategy and work plan, including regular review of its effectiveness for continued improvement. d) Provide technical assistance in a range of areas including for the project’s financial audits; the Results Framework’s M&E arrangements, surveys and evaluations (in close collaboration with the judiciary staff/component 1); technical support for the
22 judiciary, and other arising needs during project implementation. e) Provide training and meeting facilitation funds to help strengthen capacity building, communication, and consultations within the judiciary and with relevant stakeholders. This would, for example, support semi-annual M&E workshops with PMU, Judiciary staff (in Nairobi and other participating court stations, including the Directorates) and interested stakeholders (including lawyer’s associations, the media and NGOs). It would also help to carry out any necessary workshops, trainings and study tours for participating stakeholders and partners, among other arising needs. f) Support participation in relevant social initiatives that are financed by other development partners and/or by the Government, for example, the courts' outreach activities, including open days with score cards, legal awareness campaigns, etc. and g) Produce quarterly IFR/FMRs, annual work plans, annual procurement plans, annual progress reports, a mid-term report and a completion report, while ensuring the judiciary is kept regularly updated and able to address or adjust implementation requirements as needed based on timely monitoring, reporting and coordination by the PMU. h) Support the collection of data to facilitate, in conjunction with the Bank’s DIME program, an impact evaluation of select operational alternatives.
1.8 Court Facility Exclusions
Court infrastructure development activities that are Ineligible for World Bank funding include: Court infrastructure development that would negatively impact cultural property; Skills development on environmental and social management not related to courts infrastructure; Land acquisition for construction of courts facilities; Any form of physical resettlement during the development of courts facilities.
1.9 Project target area/ location
The Judiciary has identified a number of factors as key to prioritization of locations including the distance to the nearest court for people requiring access to justice, the distance between courts, the catchments of police stations and the availability of prison and remand facilities, the workload of existing and potential courts in terms of cases filed, pending and decided from an area, requests from local areas, and availability of personnel, funds, land and existing buildings.
The existing courts which are selected for rehabilitation and the new courts that shall be constructed are located in towns or urban centers. The Bank funding portion will support development of 8 High Courts, 2 Magistrates Courts selected for proposed construction and 20 Magistrate Courts that have been selected for rehabilitation and buying demountables (temporary structures). The locations have varied physiological, ecological and socio-economic settings that will induce unique and diverse environmental and socio- economic impacts during JPIP implementation.
23 1.10 JPIP Co-ordination and implementation
1.10.1 JPIP Implementation Arrangements
The coordination of the project will be implemented by a Project Management Unit (PMU) which will liaise and obtain work programs from the various departments/directorates benefiting from the project.
The PMU will be assisted by an Integrated Fiduciary Agent responsible for the procurement and financial management aspects of the project for the first two years of project implementation. The overall policy guidance will be carried out by a Project Steering Committee and the technical and quality assurance of the project by the JPIP Technical Committee. A table outlining the implementation arrangements and the role of each institution are indicated in Figure 1 below:
PROPOSED JUDICIAL PERFORMANCE IMPROVEMENT PROJECT INSTITUTIONAL AND IMPLEMENTATION ARRANGEMENTS
JPIP Steering Committee (Chaired by CJ, comprising of Directors of the Directorates, Head of the Judiciary Transformation Framework Secretariat, judges from High Court, Court of Appeal, Chief Registrar, representative from the Law Society of Kenya
JPIP TECHNICAL COMMITTEE (Consist of relevant Directors of JPIP Implementing Directorates). Rep NCAJ, Executive Director NCLR, KMJA, KWJA
Project Management Unit Project Coordinator, M&E Integrated Fiduciary Agent ( Proc Division) Administrative Staff; Procurement, Safeguards, Independent Fiduciary Agent (FM Division) Construction
Figure 1: JPIP Project Implementation Arrangements
2. A JPIP Steering Committee established during appraisal will be responsible for policy guidance on all judicial reforms on the project. It will be responsible for overseeing project i mplementation and making decisions on significant implementation or policy issues. The JPIP Steering Committee will be chaired by the Chief Justice and comprise the President o f the Court of Appeal, Principal Judge of the High Court, Chief Registrar, 1 representative fr om the Directorates, 1 Registrar, Chairman of the Kenya Magistrates and Judges’ Associat ion, Kenya Women Judges’ Association, 2 non-judicial staff, representative of the Law Society, Chief of Staff and Head of the Judiciary Transformation Secretariat.
24 The JPIP Steering Committee will meet at least quarterly to review quarterly and annual pr ogress reports and annual work programs, and will ensure coordination and synergies of th e project with the other programs in the justice sector. providing strategic and policy directi on on matters relating to the judicial reforms and project support to the JPIP Technical Committee. The JPIP Steering Committee will also be responsible for resolving any constr aints that may hamper project implementation and which would require interventions with o ther justice sector institutions; and approving the work plans.
3. A JPIP Technical Committee also to be established during appraisal will be responsible for technical oversight of the JPIP. It will be led by an officer or technical speci alist in the justice sector appointed by the Chief Justice and comprising all the Directors of t he Directorates, Director of the JTI, Executive Director of the National Council of Law Reporting Head of the Judiciary Transformation Secretariat, the JPIP Project Coordinator any other official designated by the CJ. The JPIP Technical Team will be responsible for th e quality assurance of all the technical aspects of the project.
4. Project Management Unit: The day to day coordination of the project will be carried out by a Project Management Unit to be set up by effectiveness and will comprise a project management team consisting of a Project Coordinator, and technical staff comprising of an M&E Specialist, Procurement Officer, Safeguards Specialist, Court Construction expert, IT Specialist and any other technical specialist needed for effective project implementation. T he PMU under the guidance of the PC will be responsible for: (a) assessing and prioritizing project proposals prepared by the Directorates and Judicial Training Institute; (b) undertaki ng quality control for terms of reference once a project proposal has been approved by the JPIP Steering Committee; (c) overseeing project implementation activities; and (d) proposi ng any necessary adjustments and amendments to implementation methods.
5. The Project Coordinator will have qualifications and experience and terms of referen ce satisfactory to the Association. The PC will be responsible for: (a) the overall coordinatio n of and reporting on the project, (b) consolidating the Directorates reports and submitting t hem to their IFA; (c) preparing the project implementation plan; and (d) preparing and sub mitting project reports to the JPIP Technical Committee and JPIP Steering Committee; (e) convening meetings with the JPIP Steering Committee on a quarterly basis; and with the J PIP Technical Committee on a monthly basis; (f) ensuring that adequate coordination exist s with the Directorates, JPIP Tech Committee and JPIP Steering Committee as required; (g) ensuring all safeguard policies are adhered to; and (h) keeping and maintaining all proj ect records, reports and information.
6. Integrated Fiduciary Agent- The Integrated Fiduciary Agent (IFA) to be recruited by effectiveness will be responsible for the overall procurement and financial management of t he project, on behalf of the judiciary for the first two years of project implementation. Specif ic activities of the IFA will consist of:
a) Inviting bids according to World Bank procedures; b) Selecting consultants according to World Bank procedures; c) Preparing project contractual documents; d) Preparing bidding documents and or request for proposals as appropriate; e) Conducting evaluation of bids and or proposals; f) Undertaking contract negotiations; g) Facilitating issuance of letters of awards; h) Liaising with the PC and Tender Evaluation Committee on contract award approvals; the contract award will be made after approval by a Judiciary Tender Committee,
25 selected by the Chief Justice on annual basis responsible for evaluating the bids submitted for various project activities. i) Transferring its fiduciary skills to the Directorates which will be responsible for procurement and financial management using the judiciary resources.
7. Training Institute and Directorates. Some of the Directorates and the Judicial Traini ng Institute will sit on the JPIP Technical Team. The Directorates participating in the project will consist of the Directorate of Supply and Chain Management and Directorate of Finance (both will receive capacity building on procurement in preparation for taking over the respo nsibility for procurement once the IFA services end); Directorate of ICT which jointly with t he Chief Registrar will be responsible for the extensive IT strategy and plan, Directorate of Performance Management which will be responsible for the performance management asp ects of the project; Directorate of Human Resources responsible for the human resources aspects of the projects, Directorate of Public Outreach which will work closely with the proj ect management to implement the public outreach aspects of the project including preparin g and implementing a communication strategy. Other Directorates implementing activities t hat fit within the objectives of the project, will also be implemented. In addition, the Judicial Training Institute will also be responsible for implementation of the training component of th e project.
1.10.2 Court Infrastructure Implementation Responsibilities
The overall responsibility for implementation of JPIP lies with the Judiciary of Kenya, with ongoing support from the World Bank. Within the Judiciary, the Offices of the Chief Justice and the Registrar will be responsible for coordination of implementation. The current plan is that a Project Steering Committee chaired by the Chief Justice, and comprising a presiding Judge, the Court of Appeals, three High Court Judges, the Acting Registrar of the High Court, the Law Society of Kenya and two Magistrates will be established to provide overall policy guidance to the Project.
A Project Management Unit (PMU) comprising technical staff from the Judiciary, experts from other agencies and external Consultants, will manage the Project components and provide day-to-day operational oversight. The PMU will be based at the Registrar’s office and be supported by Component Leaders responsible for each individual Project component.
The Infrastructure Programme will be led by the Judiciary’s Project Management Unit under the oversight of the Project Steering Committee but will also involve a number of other agencies in planning and implementation of individual court projects: the Ministry of Lands, the Ministry of Public Works, NEMA, the Provincial Administrations of central government and local authorities.
Table 1 below defines roles and responsibilities of various parties during JPIP Court Infrastructure project implementation.
Table 1: Infrastructure Implementation Responsibilities
26 Nr Project Phase Activity/Role Responsibility 1. Selection of Decide on court development priorities and The Judiciary Development Locations Sites in accordance with criteria defined and agreed with the World Bank Land Surveyor 2. Project Screening Project Environmental and Social Impact Judiciary Screening Environmental & Social Consultant 3. Detailed Site Selection Application to Ministry of Lands Judiciary and acquisition of Land Land Acquisition, Compensation or Ministry of Lands/ & Title Resettlement of displaced persons Commissioner of Lands 4. Design Managing the design of the courts Ministry of Public Works
Development/Preparation of detailed design Architectural Consultant and bills of quantities Quantity Surveyor 5. EIA Licensing Environmental and Social Impact Assessment Judiciary/Appointed of each court facility and Preparation of ESIA Environmental & Social Report to be submitted to NEMA for ESIA Specialist and NEMA Licensing Resettlement Action Plan (RAP) for WB Safeguards compulsory acquisition of land, loss of Environmental & Social livelihood, displacement of persons and Specialist familiar with WB compensation Safeguards 6. Procurement Carry out on behalf of the Judiciary, Procurement Consultant preparation and implementation of all The Procurement Agency procurement operations under the JPIP. The (PA)/ Procurement PIU shall be established and staffed with a Specialist/Judiciary Procurement Specialist to assist in the procurement process of the PA 7. Construction Court refurbishment and construction of new Appointed Contractor courts Ministry of Public Works
Local Authority 8. Operations Operations and management of court facilities Judiciary to ensure compliance with Environmental and Social Requirements 9. Monitoring & Evaluation Routine Monitoring and Evaluation of court Judiciary’s PMU facilities and Operations against Environmental and Social Management Plan (ESMP) World Bank Occasional reviews of regular audits of the court facility to assess compliance Environmental & Social Specialist/NEMA
1.11 Stakeholder Identification and Consultation Consultations shall be preceded by a systematic stakeholder analysis, which would: (a) Identify the individual or stakeholder groups relevant to the project and to environmental issues; (b) Identify the key issues around which consultation will be needed; (c) Understand the decision making process; (d) Determine the necessary level of consultation; (e) Define communication methodology to ensure all parties are accommodated and can be meaningfully consulted;
27 (f) Include expert opinion and inputs; (g) Determine the nature and scope of consultation with each type of stakeholders; and (h) Determine the tools to be used in contacting and consulting each type of stakeholder group.
A systematic consultation plan with attendant schedules should be prepared for subsequent stages of project preparation as well as implementation and operation, as required. Consultation with the stakeholders shall be used to improve the plan and design of the project rather than merely having project information dissemination sessions. The consultants shall carry out consultations with experts, NGOs, concerned Government agencies and other stakeholders to:
(a) Collect baseline information; (b) Inform stakeholders about the proposed project; (c) Obtain a better understanding of the potential impacts; (d) Allow for a wider discussion/consultation on environmental and social issues in order to improve on the proposed mitigation measures; (e) Provide information to the host communities so that appropriate steps can be taken individually or collectively to assist in putting in place appropriate mitigation measures (f) Identify any issues/concerns related to the project that requires attention during project implementation. (g) Appreciate the perspectives/concerns of the stakeholders; (h) Secure their active involvement during subsequent stages of the project; (i) Identify local concerns/problems in order to address them in the ESIA Study Report; (j) Provide some form of quality control to the environmental and social impact assessment process through acceptance by members of the public and other stakeholders.
1.12 Baseline Conditions
Assess the baseline conditions of the court sites and describe relevant physical, biological, hydrological and socio-economic conditions, including any changes anticipated before the construction of new court buildings or rehabilitation of existing ones commence.
Since the proposed project will involve the construction of new court buildings or rehabilitation of existing ones, baseline studies on the court site physiography, bio-physical environment, which include studies pertaining to topography, flora/fauna, soils, geology, plants and animals should be carried out. Sampling and frequency of any specific components should justify the reliability of the baseline studies and associated impact predictions. The existing court facilities to be rehabilitated and the new court facilities to be constructed are distributed in sites which will be selected in various regions in Kenya. The location of the court facilities have diverse bio-physical, environmental and socio-economic conditions. It is expected that each of the court sites will register different environmental and socio-economic impacts during project implementation hence idividual court site environmental evaluation is necessary.
1.12.1 Project Area Location
The court sites will mainly be located at District Headquarters mainly at the urban/town centers. Details of the precise location of each court facility should be collected and
28 recorded in the Environmental Site Project Reports for each court site and the exact location recorded by giving site coordinates.
1.12.2 Bio - Physical Environment
The bio-physical environment of each court site should be evaluated and reported elaborating on the existing physical features that are likely to affect by the construction activities. The bio-physical environment to be evaluated will include natural vegetation, water (surface and groundwater, drainage); and land form including topography, soils and geology, air and climate. The potential areas of the bio-physical environment that will be affected by the proposed constructions of the court facilities should be pointed out.
1.12.3 Socio-Economic Environment
The Socio-economic environment of each court site should be evaluated and reported. The aspects to be looked into shall include population distribution elaborating on age and gender distribution, education, health issues and economic activities practiced in the area. Potential vulnerability of any group within the project site should be identified and reported providing appropriate mitigations. The socio-economic environment likely to affected by the project shall be elaborated here.
1.12.4 Environmental and Social Safeguards
In regard to safeguards, the JPIP PMU will bring on board an experienced environmental and social safeguard specialist registered with NEMA and/or rely on a list of safeguard specialists, with experience in World Bank financed operations.
Prior to construction of proposed new court structures, Environmental Impact Assessment of each of the project areas shall be carried out by the NEMA registered Expert following EMCA and the Environmental (Impact Assessment and Audit) Regulations 2003. The Expert shall also be familiar with World Bank financed projects. The EIA Report shall be prepared by the expert and submitted to NEMA for EIA Licensing before construction activities can commence. The EIS Process shall entail the following:
Court Facility EIA Screening Court Facility EIA Evaluation (Field Investigations, Stakeholder Consultation) Preparation of Court Facility EIA Report containing - Court Facility Positive and Negative Impacts - Stakeholder Consultation - Court Facility Alternatives - Court Facility Mitigation Measures - Court Facility Environmental Management Plan (EMP) - Court Facility Monitoring Plan Submission of Court Facility EIA Report to NEMA for EIA Licensing Issuance of Court Facility EIA Licence by NEMA Court Facility Construction
1.13 Approach and Methodology for Preparation of the ESMF
29 The ESMF Study was carried out through making site visits of selected locations where proposed court facilities are to be constructed, literature review of JPIP project documents, relevant Kenyan Legislative requirements and World Bank Safeguard Policies and discussions with relevant stakeholders.
1.13.1 Site Visits
The team carried out visits to Bomet Court in Bomet County, Tawa Court in Makueni County and Kajiado Court in Kajiado County.
In Bomet Court discussions were held with the Resident Magistrate and Executive Officer. In Tawa Court discussions were held with the Assistant Executive Officer. In Kajiado Court, discussions were held with the Principal Magistrate and the Chief Executive Officer.
Details of the field visit are provided in Annex 4 and a table on an indicative list of areas where courts will be constructed or courts to be rehabilitated is attached.
1.13.2 Literature Review
Baseline information and literature material related to the proposed activities of rehabilitation and construction of new courts were undertaken to help in gaining further and deeper understanding of the proposed project. A desk review of the Kenyan legal framework and policies was also conducted in order to identify the relevant legislations and policy documents that should be considered during project implementation. Relevant World Bank Safeguard policies triggered by the project were also looked into. Among the documents reviewed in order to appreciate and understand the project include the following:
The JPIP Project Documents
The JPIP Project Formulation Document The ERM Reports of 2009 on JPIP namely: - Strategic Environmental and Social Impact Assessment (S-ESIA) – Assessment Report - Volume 1 - Strategic Environmental and Social Impact Assessment (S-ESIA) – Environmental and Social Management Framework for Court Development - Volume 2 - Strategic Environmental and Social Impact Assessment (S-ESIA) – Resettlement Policy Framework - Volume 3
World Bank Documents
World Bank Project documentation for JPIP World Bank Safeguards Policies World Bank Group Environmental, Health, and Safety Guidelines IFC Performance Standards World Bank Environmental Assessment Sourcebook – Volume I Policies, Procedures and Cross-Sectoral Issues - WTP 139 World Bank Environmental Assessment Sourcebook – Volume II Sectoral Guidelines - WTP 140
30 Government of Kenya Documents
Environmental Management and Coordination Act (EMCA) 1999 Environmental (Impact Assessment and Audit) Regulations 2003 The Environment and Land Court Act, 2011 Occupational Safety and Health Act, 2007 Public Health Act (Cap 242) Physical Planning Act (Cap 286) The Water Resources Management Rules (2007) The Local Government Act (Cap 265) The National Museums Act (Cap216) The Employment Act, 2007
World Bank Safeguard Policies Likely to be triggered by JPIP
Environmental Assessment (OP/BP 4.01) Physical Cultural Resources (OP/BP 4.11) Involuntary Resettlement (OP/BP 4.12)
1.14 Justification of the ESMF
The first Phase of the JPIP shall involve the proposed rehabilitation and construction of 8 High Courts, 2 Magistrates Courts selected for proposed construction and 20 Magistrate Courts that have been identified as possible candidates for rehabilitation and buying demountables (temporary structures). The local legislation requires that before an activity like the construction of a new court facility, an EIA is carried out on each facility and EIA Report prepared for NEMA evaluation and then an EIA License is issued before construction can commence.
Secondly, the precise environmental and social impacts and final decisions concerning the proposed court sites are not fully known at this time of appraisal. In addition, the national environmental legislation does not require the screening of small-scale investments for potential adverse environmental and social impacts. Therefore the potential social and environmental impacts of the project activities cannot be identified and mitigation measures determined in the context of a traditional EIA, for the specific project areas. Once the full scope of the project activities are known and once the screening process has determined that a separate EIA report is required, the EIA report shall be prepared on the basis of the respective national EIA procedures, taking into account the Bank's safeguard policies.
Thus, this ESMF provides mechanisms for ensuring that potential environmental and social impacts of the JPIP activities are identified, assessed and mitigated as appropriate when the environmental and social impact assessment is carried out for each site. This ESMF will therefore provide guidelines for the execution of Environmental and Social Impact Assessment of each new court site and development of Mitigation Measures and Environmental Management Plan. The ESMF is in line with the World Bank Operational Policies for environmental management of projects where specific details are not yet known at the time of appraisal.
31 1.15 Scope of Application of the ESMF
This ESMF shall be applied during the implementation of the JPIP, particularly during the rehabilitation of existing courts and construction of new ones. The ESMF is to provide a screening process for potential environmental and social impacts of the proposed project areas and to recommend generic environmental management and monitoring plans for addressing potential negative impacts.
The ESMF will be applied during: Court Facility Screening; Court Facility Environmental and Social Impact Assessment; Implementation of Resettlement Action Plan Rehabilitation and Construction Activities of the New Courts under the JPIP; Project Operation Phase; and During Project Decommissioning and Site Restoration.
1.16 ESMF Report Layout
The ESMF Report is structured as follows:
Glossary of Terminologies List of Acronyms Executive Summary Chapter 1 – Introduction Chapter 2 – Legal and Policy Framework Chapter 3 – Project Preparation, Approval and Implementation Chapter 4 – ESIA Project Principles and Methodology Chapter 5 –Access to Resources Chapter 6 – Environmental Management Chapter 7 – Capacity Building, Training and Technical Assistance Chapter 8 – ESMF Coordination and Implementation Arrangements Chapter 9 – Public Consultation and Disclosure Chapter 10 – Conclusions and Recommendations Chapter 11 – References
32 2 LEGAL & POLICY FRAMEWORK
This Chapter of the ESMF elaborates on the relevant local institutional and legal as well as policy framework that has significant bearing on the JPIP. The World Bank Safeguard Operational Policies that are relevant or are triggered by the JPIP have also been evaluated and International laws and conventions that have relevance to the implementation of this project have also been highlighted.
The Strategic Environmental and Social Impact Assessment (S-ESIA) for the Proposed Judicial Performance Improvement Project (JPIP) carried out by ERM in 2009, indicated that whereas the overall JPIP is not subject to the provisions of the Kenyan Environmental (Impact Assessment and Audit) Regulations 2003 (EIA Regulations) JPIP is subject to the requirements of World Bank Operational Procedure OP4.01 Environmental Assessment.
The individual court developments will however, be subject to the EIA Regulations where each court site shall be required to undergo Environmental and Social Impact Assessment and the resultant ESIA Report submitted to NEMA for Approval and EIA Licensing prior to construction.
2.1 National Policies and Regulations
In Kenya there are various sector specific legal instruments that cover environmental and social issues such as public health; soil erosion; protected areas; endangered species; water rights and water quality; air quality, noise and vibration; cultural, historical, scientific and archaeological sites; land use; resettlement; etc.
However, the main piece of legislation governing environmental management in Kenya is the Environmental Management and Co-ordination Act (EMCA) of 1999 and the Environmental (Impact Assessment and Audit) Regulations, 2003. The main objective the Act is to provide for the establishment of an appropriate legal and institutional framework of the management of the environment in Kenya. EMCA provided for the establishment of a National Environment Management Authority (NEMA), which became operational in July 2002. NEMA has the statutory mandate to coordinate all environmental activities. The Act makes environmental impact assessment mandatory for activities specified in its Second Schedule, including the rehabilitation and construction of building structures like the proposed courts.
2.1.1 Constitution of Kenya 2010
Section 42 of the Bill of Rights of the Kenyan Constitution provides that ‘every Kenyan has the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures’. Under Chapter 5 (land and Environment), Part 1 is devoted to land. It requires that land be used and managed in ‘a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles;
(i) Equitable access to land (ii) Security of land rights (iii) Sustainable and productive management of land resources (iv) Transparent and cost effective administration of land (v) Sound conservation and protection of ecologically sensitive areas
33 Part 2 of Chapter 5 of the constitution is dedicated to Environment and Natural Resources. Section 69 in Part 2 provides that the state shall;
(i) Ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits (ii) Work to achieve and maintain tree cover of at least ten per cent of the land area of Kenya (iii) Encourage public participation in the management of, protection and conservation of the environment (iv) Protect genetic resources and biological diversity (v) Establish systems of environmental impact assessment, environmental audit and monitoring of the environment (vi) Eliminate processes and activities that are likely to endanger the environment (vii) Utilize the environment and natural resources for the benefit of the people of Kenya
Further, Section 70 states that if a person alleges that a right to a clean and healthy environment recognized and protected under Section 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress. The project areas should ensure compliance with the constitution in so far as equitable sharing of the resources, between the stakeholders. Further, the project should ensure the sustainability of livelihoods and biological resources within the project areas are protected. Any development proposals should also be cognizant of the increased powers under the Constitution given to communities and individuals to enforce their rights through legal redress.
2.1.2 Environment Management and Coordination Act (EMCA) No, 8 of 1999
This is an Act of Parliament providing for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith and incidental thereto. This Act is divided into 13 Parts, covering main areas of environmental concern as follows: Preliminary (I); General principles (II); Administration (III); Environmental planning (IV); Protection and Conservation of the Environment (V), Environmental impact assessments (EIA), audits and monitoring (VI); Environmental audit and monitoring (VII); Environmental quality standards (VIII); Environmental Restoration orders, Environmental Easements (IX); Inspection, analysis and records (X); Inspection Analysis and Records (XI); International Treaties, Conventions and Agreements (XII) National Environment Tribunal (XIII); Environmental Offences (XIV).
The Environmental (Impact Assessment and Audit) Regulations, 2003
The Environmental (Impact Assessment and Audit) Regulations, 2003, provide the basis for procedures for carrying out Environmental Impact Assessments (EIAs) and Environmental Audits. The Environmental (Impact Assessment and Audit) Regulations 2003 state in Regulation 3 that “the Regulations should apply to all policies, plans, programmes, projects and activities specified in Part III and V of the Regulations’’ basically lists the guidelines of undertaking, submission and approval of the ESIA Report a key requirement outlined in this ESMF.
The regulations provide guidelines for preparing an EIA Project Report under Part II and EIA Study Report IV with details of the reports contents.
34 The regulations also provide the process for public disclosure procedure for the EIA Reports and issuance of the EIA License. The regulations also provide procedures for Environmental Audit and Monitoring under Part V.
Environmental Management and Co-ordination (Waste Management) Regulations 2006
These are described in Legal Notice No. 121 of the Kenya Gazette Supplement No. 69 of September 2006. These Regulations apply to all categories of waste as provided in the Regulations. The waste regulations elaborate on the handling, storage, segregation, transportation and disposal requirements. The waste categories include:
Solid Waste Industrial wastes; Hazardous and toxic wastes; Pesticides and toxic substances; Biomedical wastes; Radio-active substances.
The JPIP will have to abide by these regulations in dealing with waste management especially the provisions of Solid, Industrial, Hazardous and Toxic wastes which may be generated during the construction and operation activities of the court structures and associated facilities.
Environmental Management and Coordination, (Water Quality) Regulations 2006
These are described in Legal Notice No. 120 of the Kenya Gazette Supplement No. 68 of September 2006. These Regulations apply to drinking water, water used for agricultural purposes, water used for recreational purposes, water used for fisheries and wildlife and water used for any other purposes. This includes the following:
Protection of sources of water for domestic use; Water for industrial use and effluent discharge; Water for agricultural use.
These Regulations outline: a) Quality standards for sources of domestic water; b) Quality monitoring for sources of domestic water; c) Standards for effluent discharge into the environment; d) Monitoring guide for discharge into the environment; e) Standards for effluent discharge into public sewers; f) Monitoring for discharge of treated effluent into the environment.
To fulfill the requirements of this regulations the JPIP will have to ensure no oils, fuels and other pollutants are released during construction and operation of the sites and undertake carry out monitoring of both domestic water and wastewater and ensure compliance with the acceptable discharge standards.
35 Environmental Management and Coordination, Conservation of Biological Diversity (BD) Regulations 2006
These regulations are described in Legal Notice No. 160 of the Kenya Gazette Supplement No. 84 of December 2006. These Regulations apply to conservation of biodiversity which includes Conservation of threatened species, Inventory and monitoring of BD and protection of environmentally significant areas, access to genetic resources, benefit sharing and offences and penalties.
Section 4 emphasizes that activities which can impact the natural resources should only be carried after carrying out EIA and getting an EIA License, threatened resources should be protected and access to genetic resources should be authorized.
Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009.
These regulations prohibit making or causing any loud, unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose, health or safety of others and the environment. It also prohibits the Contractor from excessive vibrations which annoy, disturb, injure or endanger the comfort, repose, health or safety of others and the environment or excessive vibrations which exceed 0.5 centimetres per second beyond any source property boundary or 30 metres from any moving source. Under the regulation the Contractor will be required to undertake daily monitoring of the noise levels within the Project area during construction period to maintain compliance.
Environmental Management and Coordination (Air Quality) Regulations, 2008.
The regulations stipulates that no person shall act in a way that directly or indirectly causes, or may cause immediate or subsequent air pollution, in a manner that exceeds the levels set out in the Second Schedule to these regulations. It further says that no person shall cause emission of priority air pollutants prescribed in the First Schedule to exceed the ambient air quality levels prescribed in the Second Schedule. Further, No person shall cause the Ambient Air Quality levels specified in the Second Schedule of these Regulations to be exceeded or allow particulate emissions into the atmosphere from any source not listed under the Sixth Schedule of these Regulations in excess of those stipulated under the seventh Schedule. Under these regulations, the contractor shall be expected to use well maintained vehicles and machines with low emissions. The practice of sprinkling water at the construction site will be encouraged to reduce dust emission.
2.1.3 Environment and Land Court Act of 2011
Section 3. (1) The principal objective of this Act (Environment and Land Court Act, 2011) is to enable the Court to facilitate the just, expeditious, proportionate and accessible resolution of disputes governed by this Act.
Section13. (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Section 162 (2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Section 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes:
36 (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land. (3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Sections 42, 69 and 70 of the Constitution.
2.1.4 Occupational Safety and Health Act, 2007
This is an Act of Parliament which provides for the safety, health and welfare of all workers and all persons lawfully present at workplaces. It also provides for the establishment of the National Council for Occupational Safety and Health and for connected purposes. It applies to all workplaces where any person is at work, whether temporarily or permanently and therefore will apply to the project both during construction and operation phases.
The Act: Secures the safety, health and welfare of persons at work; and Secures the safety of workers through provision of appropriate PPE Protects persons other than persons at work against safety and health arising out of, or in connection with the activities of persons at work. Provides for site Occupational Health and Safety inspection by an occupational safety and health officer. Provide for cleanliness requirement at work place Under Sections 47, 48, 49, 50, 51, and 52 requires for cleanliness, control on overcrowding, ventilation, adequate lighting drainage of floors and sanitary convenience at work places respectively. This is intended to reduce health risks Under Section 91 requires provision of adequate supply of wholesome drinking water at suitable points conveniently accessible to all persons employed. Stipulates issuance of permit to work and prohibits the engagement of persons below 18 years of age.
The Occupational Safety and Health Act (OSHA) 2007 repealed the Factories and Other Places of Work Act. Anything done under the provisions of the Factories and Other Places of Work Act including subsidiary legislation issued before the commencement of the OSHA 2007 shall be deemed to have been done under the provisions of this Act.
The Factories and Other Places of Work Act had over the years passed several subsidiary rules and regulations for effective implementation of the Act. All shall, as long as it is not inconsistent with OSHA 2007 remain in force until repealed or revoked by subsidiary legislation under the provisions of OSHA 2007 and shall for all purposes be deemed to have been made under this Act. These regulations include: The Factories (Wood Working Machinery) Rules 1959; The Factories (Eye Protection) Rules 1978; The Factories (Electric Power) (Special) Rules 1978; The Factories (Building Operations and Works of Engineering Construction) Rules1984;
37 The Factories and Other Places of Work (Health & Safety Committees) Rules 2004; The Factories and Other Places of Work (Medical Examination) Rules 2005; The Factories and Other Places of Work (Noise Prevention and Control) Rules 2005; The Factories and Other Places of Work (Fire Risk Reduction) Rules 2007;
The Factories and Other Places of Work (Hazardous Substances) Rules 2007.
The scope of OSHA 2007 has been expanded to cover all workplaces including offices, schools, academic institutions and plantations. The Act establishes codes of practices to be approved and issued by the Director, Directorate of Occupational Health and Safety (DOHS) for practical guidance of the various provisions of the Act.
Other parameters within the Act relevant to the project include: 1) Duties of employers, owners or occupiers of workplace; 2) Establishment of safety and health committees; 3) Carry out annual safety and health audit of workplaces; 4) Safety and Health obligations for persons who may come to premises and are not employees of that particular workplace; 5) Reporting of any accident, dangerous occurrence or occupational poisoning caused in the workplace to the area Occupational Health and Safety Office. These incidents should be entered in the General Register. In case of a fatal accident information to the area Safety and Health Office should be within 24 hours and a written notice to the same within 7 days; 6) Duties of self-employed persons; 7) Duties of employed persons; 8) The administration of the Act is the responsibility of a Director and other appointed and gazetted officials (Occupational Health and Safety Officers); 9) The registration of all workplaces by the Director Directorate of Occupational Health and Safety (DOHS) forming the basis of his work statistics; and 10) Machinery safety to include: - Safe use of machinery, plant and equipment; - Prime makers and transmission machines; - The maintenance, construction of fencing safeguards; -The statutory requirements of various machines, plants and equipment (hoists and lifts, chains and ropes, cranes, steam receivers and containers, air receivers, cylinders for compressed liquefied and dissolved gases and refrigeration plants).
2.1.5 Public Health Act (Cap 242)
The Public Health Act prohibits causing of nuisance and regulates activities detrimental to human health. The owner(s) of the premises responsible for environmental nuisances such as noise and emissions, at levels that can affect human health, are liable to prosecution under this act. An environmental nuisance is defined in the act as one that causes danger, discomfort or annoyance to the local inhabitants or which is hazardous to human health. This Act controls the activities of the project with regard to human health and ensures that the health of the surrounding community is not jeopardized by the activities of the project such as water development.
The Public Health Act provides for the protection of human health through prevention and guarding against introduction of infectious diseases into Kenya from outside, to promote public health and the prevention, limitation or suppression of infectious, communicable or
38 preventable diseases within Kenya, to advice and direct local authorities in regard to matters affecting the public health to promote or carry out researches and investigations in connection with the prevention or treatment of human diseases. This Act provides the impetus for a healthy environment and gives regulations to waste management, pollution and human health.
The rehabilitation and construction of court facilities have the potential to cause public nuisance through accumulation of waste/refuse during construction and operation phases.
2.1.6 Physical Planning Act (Cap 286)
Part V of this Act provides for control of development. This Act provides for the preparation and implementation of physical development plans for connected purposes. It establishes the responsibility for the physical planning at various levels of Government in order to remove uncertainty regarding the responsibility for regional planning. A key provision of the Act is the requirement for Environmental Impact Assessment (EIA).
This legislation is relevant to the implementation and siting of sewerage plants in pilot urban centres as identified in the project document. Section 30. (1) Requires that No person shall carry out development within the area of a local authority without a development permission granted by the local authority. It provides for a hierarchy of plans in which guidelines are laid down for the future physical development of areas referred to in a specific plan. The intention is that the three-tier order plans, the national development plan, regional development plan, and the local physical development plan should concentrate on broad policy issues. The Act calls for public participation in the preparation of plans and requires that in preparation of plans proper consideration be given to the potential for socio-economic development needs of the population, the existing planning and future transport needs, the physical factors which may influence orderly development in general and urbanization in particular, and the possible influence of future development upon natural environment.
Before development of each court facility (construction of individual courts) under JPIP the Judiciary shall be required to submit application to the Local Authority for approval.
2.1.7 The Water Resources Management Rules (2007)
These Rules are described in Legal Notice Number 171 of the Kenya Gazette Supplementary Number 52 of 2007. They apply to all water resources and water bodies in Kenya, including all lakes, water courses, streams and rivers, whether perennial or seasonal, aquifers, and shall include coastal channels leading to territorial waters. The Water resources Management Rules empower Water Resources Management Authority (WRMA) to impose management controls on land use falling under riparian land. The rules also elaborate on the following: Conservation of riparian land and catchment areas; Catchment management strategies; Protected areas and ground water conservation areas; Establishment and protection of reserve water; Miscellaneous provisions which include provisions on:
Part IX: Conservation of Riparian and Catchment Areas of the Rules, Section 116(5) states “Unless otherwise determined by a water resources inspector, the riparian land
39 adjacent to the ocean is defined as a minimum of two metres vertical height or thirty metres horizontal distance from the high watermark, whichever is less”. Section 118 (1) of the Rules state “No person shall undertake the activities listed in the Sixth Schedule on riparian land unless authorized by the Authority in consultation with other relevant stakeholders”.
Part A of the Sixth Schedule: Protection and Conservation of Riparian and Catchment Areas of the Rules provide activities proscribed on riparian land as: 2) Clearing of indigenous trees or vegetation; 3) Building of permanent structures; 4) Disposal of any form of waste within the riparian land; 5) Excavation of soil or development of quarries; 6) Planting of exotic species that may have adverse effect to the water resource; 7) Or any other activity that in the opinion of the Authority and other relevant stakeholders may degrade the watercourse.
The construction and operation of the court buildings (rehabilitation and construction of court facilities) have the potential to impact water resources. Each of the court facilities will be subjected to EIA to ensure protection of water resources both surface and groundwater. The EIA will also address waste (solid and liquid) generation and disposal to conform to waste disposal standards and the environment as provided for in the NEMA guidelines.
2.1.8 The Local Government Act (Cap 265)
Section 144 states that every municipal council, county council or town council may, subject to any other written law relating thereto, prohibit and control the development and use of land and buildings in the interest of the proper and orderly development of its area. Section 144(1) states that A local authority may, for the purpose of any of its functions under this or any other written law, by agreement acquire, whether by way of purchase, lease, exchange or gift, any land, whether situate within or without the area of the local authority, notwithstanding that the land is not immediately required for that purpose; and where land is so acquired notwithstanding that it is not immediately quired for the purpose for which it was acquired, it may, until so required, be held and used for the purpose of any other functions of the local authority.
The Local Authority under Section 147 (d) control the cutting of timber and the destruction of trees and shrubs, to prohibit the wasteful destruction of trees and shrubs, and to require the planting of trees
Section 162 (a) states that Local Authority has authority to compel occupiers or, in the case of vacant premises, owners, to keep their premises free from offensive or unwholesome matter. (g) Subject to any written law relating thereto, the local authority has the power to control or prohibit the subdivision or cutting up of land or the subdivision of existing building lots into smaller areas; to provide that no transfer of any such sub division of land shall be registered in any land titles registry unless and until a certificate under the hand of the clerk of the local authority, or such other person as the local authority may appoint for the purpose, has been produced to the registration officer, who shall register the same against the title to such land at the cost of the applicant for such subdivision, to the effect that the local authority has approved of such subdivision, and
40 to prevent the withdrawal, cancellation or alteration, except with the consent of the local authority, of any sub divisional plan which has been approved by the local authority.
Section 165 (6) states that a local authority may cancel a business permit where, upon receipt of a written report from an inspector appointed under this act or any other written law, it finds that the business or trade to which it relates endanger the health or safety of the persons residing in the neighbourhood.
Under the Second Schedule Part I—Obligatory Orders Section 47 The consideration of all plans which in virtue of any building by-law in force in the Council’s area require approval or disapproval by the Council shall stand referred without motions or debate to the (Towns Planning) Committee and it shall be the duty of that committee to consider them accordingly and to meet so often as will ensure exercising the said power within the period prescribed by law.
The Local Authority Act shall require the approval of JPIP project plans (individual court buildings), environmental conservation through planting of trees and appropriate putting together of waste for collection and disposal by the authority.
2.1.9 The National Museums Act (Cap216)
This Act provides for control, management and development of national museums and the identification, protection, conservation and transmission of the cultural and natural heritage of Kenya. Under Section 30. Where a person discovers a monument or object of archaeological or palaeontological interest, the person shall, within seven days, give notice thereof, indicating the precise site and circumstances of the discovery, to the National Museums, and in the case of an object, shall deliver the object to the National Museums or to the District Commissioner to keep it for any particular purpose or for any particular purpose or for any particular period.
Under Section 31 Subjects to section 27, no person shall move a monument or object of archaeological or palaeontogical interest from the place where it has been discovered otherwise than in such manner and to such place as may be allowed by an exploration license, or by written permit from the Minister after consultation with the National Museums. The Act by notice in the Gazette, prohibit or restrict access thereto or any development thereof, or the use thereof for agriculture or livestock, or activity thereon of protected areas.
Where the JPIP encounters or discovers a monument or object of archaeological or palaeontological interest during land acquisition or construction of the courts, the Judiciary shall be required to comply with this Act by reporting such findings to the museums of Kenya
2.1.10 The Employment Act, 2007
This Act declares and defines the fundamental rights of employees; minimum terms and conditions of employment; to provide basic conditions of employment of employees; and to regulate the employment of children, among other rights. Key sections of the Act elaborate on the employment relationship; protection of wages; rights and duties in employment; termination and dismissal and protection of children from child labour, among others. This
41 Act will guide the management of workers, especially during the construction and operation of the JPIP Project (individual court facilities). While the EMCA supersedes all other environmental legislation, numerous other laws and regulations in addition to those described above influence the various aspects and activities of the Project.
During rehabilitation and construction of court facilities, the Act shall govern the job opportunities to be generated by the JPIP where local persons should be given priority and
Under Section 53 (1) notwithstanding any provision of any written Law, no person shall employ a child in any activity which constitutes worst form of child labour. Under-age children shall not be engaged.
2.2 World Bank Safeguard Policies
The World Bank Safeguard Policies are a set of instruments to ensure that the Bank supported lending operations minimize any adverse impacts on local people, their livelihoods, culture and the environment. There are ten (10) Safeguard Policies as outlined in Annex 7
World Bank Safeguards Likely To Be Triggered By JPIP The JPIP has the following four key components namely: Court Administration and Case Management; Judicial Education and Training; Court Infrastructure; and Project Management.
The Access to Justice (Court Infrastructure) will largely entail the following activities: Support the Chief Registrar’s office with construction professionals to help manage and supervise the construction and renovation program.
The proposed court infrastructure component of the JPIP has been classified as a Category B project under the World Bank environmental assessment level. It has the potential for adverse impacts on human populations or environmentally important areas which are site-specific, mostly reversible, and in most cases capable of reasonable straightforward mitigation. The Bank funding portion will support the construction of 6 New High Courts, 2 New Magistrate Courts, buying demountables (temporary structures) and rehabilitation of 30 Courts (High Courts and Magistrate Courts). The locations of the Court Buildings will include Urban Centres and Towns across Kenya. Some of the site locations are yet to be confirmed.
The Court Infrastructure component of the JPIP are for now expected to trigger three World Bank Safeguard Policies as shown in Table 2 below. These are a) OP/BP 4.01 (Environmental Assessment), b) OP/BP 4.12 (Involuntary Resettlement, and c) OP/BP 4.11 (Physical Cultural Resources). The safeguards instruments prepared for any project will address the requirements of any applicable policies.
Table 2: Safeguard Policies Triggered By JPIP Project
42 Nr Safeguard Policies Triggered by the JPIP Project (For Now) Yes No 1. Environmental Assessment (OP/BP 4.01) ♦ 2. Physical Cultural Resources (OP/BP 4.11) ♦ 3. Involuntary Resettlement (OP/BP 4.12) ♦ 4. Natural Habitats (OP/BP 4.04) ♦ 5. Forests (OP/BP 4.36) ♦ 6. Projects in Disputed Areas (OP 7.60) ♦ 7. Projects in International Waters (OP 7.50) ♦ 8. Safety of Dams (OP/BP 4.37) ♦ 9. Projects in International Waters (OP 7.50) ♦ 10. Pest Management (OP 4.09) ♦ 2.2.1 Environmental Assessment (OP 4.01)
The objective of Environmental Assessment is to ensure that project areas are environmentally sound and sustainable, and that decision-making is improved through appropriate analysis of actions and mitigation of their likely environmental impacts. This policy is triggered if a project is likely to have potential adverse environmental risks and impacts in its area of influence. This policy requires Environmental Assessment (EA) of projects proposed for Bank financing. The EA is a process whose breadth, depth, and type of analysis will depend on the nature, scale, and potential environmental impact of the proposed Court Infrastructure component of the JPIP. The EA process takes into account the natural environment (air, water, and land); human health and safety; social aspects (involuntary resettlement, indigenous peoples, and cultural property) and trans boundary and global environmental aspects. The environmental and social impacts under JPIP will come from the proposed courts rehabilitation and construction activities. However, since the exact project location and details of the court structures will not be identified before bank appraisal of the project, the EA process calls for the preparation of an Environmental and Social Management Framework (ESMF). OP 4.01 is triggered in the case of the court infrastructure development, since the project activities will involve civil works during the rehabilitation/refurbishment of existing courts as well as the construction of new courts. The exact locations and impacts of these project areas have not yet been determined, though the potential project impacts fall in category B and can therefore be mitigated.
This report which will establish a mechanism to determine and assess future potential environmental and social impacts during implementation of court infrastructure development activities and then set out mitigation and monitoring measures to be undertaken during operations of these activities, to eliminate adverse environmental and social impacts, offset them, or reduce them to a minimum and look into the potential effects of construction activities on the host environment.
Operational Policy 4.01 further requires that the ESMF report must be disclosed as a separate and stand-alone document by the Judiciary and the World Bank as a condition for bank appraisal. The disclosure shall be in Kenya where it can be accessed by the general public and local communities and at the InfoShop of the World Bank and the date for disclosure shall precede the date for appraisal of the program. The policy further calls for the JPIP as a whole to be environmentally screened to determine the extent and type of the EA process. The World Bank system assigns a project to one of three project environmental assessment risk categories, as defined below:
Category “A” Projects
43 An EIA is always required for projects that are in this category. Impacts are expected to be ‘adverse, sensitive, irreversible and diverse with attributes such as pollutant discharges large enough to cause degradation of air, water, or soil; large-scale physical disturbance of the site or surroundings; extraction, consumption or conversion of substantial amounts of forests and other natural resources; measurable modification of hydrological cycles; use of hazardous materials in more than incidental quantities; and involuntary displacement of people and other significant social disturbances.
Category “B” Projects Although an EIA is not always required, some environmental analysis is necessary. Category B projects have impacts that are ‘less significant, not as sensitive, numerous, major or diverse. Few, if any, impacts are irreversible, and remedial measures can be more easily designed.’ Typical projects include rehabilitation, maintenance, or upgrades, rather than new construction.
Category “C” Projects No EIA or other analysis is required. Category C projects result in negligible or minimal direct disturbance of the physical environment. Typical projects include education, family planning, health, and human resource development.
The proposed courts rehabilitation and construction of new courts activities have been identified as falling in Category B project with the potential for adverse impacts on human populations or environmentally important areas which are site-specific, mostly reversible, and in most cases capable of reasonable straightforward mitigation. The project sites will undergo environmental and social impact assessment and develop mitigation measures or EMPs. The Category B project impacts are reversible and can be effectively mitigated. The borrower is responsible for preparing a report, normally an Environmental Impact Assessment (EIA) Report.
Therefore, this ESMF sets out to establish the EA process to be undertaken for implementation on the individual court buildings since the Kenya Government will also require EIA done under the EMCA and the Environmental (Impact and Audit) Regulations, 2003 and subsequent preparation of EIA Project Reports for NEMA approval and issuance of EIA Licenses prior to construction.
2.2.2 Involuntary Resettlement (OP 4.12)
The objective of this policy is to avoid or minimize displacement, through exploring all viable alternative project designs, to avoid resettlement. This policy is triggered in situations involving involuntary taking of land and involuntary restrictions of access to resources, loss of source of livelihood/income and loss of assets. The policy aims at avoiding involuntary resettlement to the extent feasible, or to minimize and mitigate its adverse social and economic impacts. This policy covers direct economic and social impacts that both result from Bank-assisted investment projects.
A separate Resettlement Policy Framework (RPF) has been prepared that establishes standards and procedures for the preparation of Resettlement Action Plans (RAPs), as required.
44 2.2.3 Physical Cultural Resources (OP/BP 4.11)
The objective of this policy is to avoid or mitigate adverse impacts of development projects on physical cultural resources. “Physical cultural resources” may be defined as movable or immovable objects, sites, structures, groups of structures, natural features and landscapes that have archaeological, paleontological, historical, architectural, religious, aesthetic, or other cultural significance. Physical cultural resources may be located in urban or rural settings, and may be above ground, underground, or underwater. The cultural interest may be at the local, provincial or national level.
This policy applies to all projects requiring a Category A or B Environmental Assessment under OP 4.01.
2.3 Alignment of GoK and World Bank Policies relevant to JPIP
Both the World Bank safeguards policies and Government of Kenya Environmental Law (EMCA) are generally aligned in principle and objective:
Both require Environmental Assessment before project design and implementation (which also includes an assessment of social impacts). Both require public disclosure of EIA reports and stakeholder consultation during preparation. While OP 4.01 of World Bank stipulates different scales of EIA for different category of projects, Kenya’s EMCA requires EIA for all sizes of projects, which require to be scoped as applicable. Where EMCA requires Strategic Environmental Assessments, OP 4.01 requires that an Environmental Assessment be conducted depending on the project category while an ESMF should be prepared for municipal projects. EMCA is supreme but recognizes other sectoral laws while WB has safeguards for specific interests. The Bank requires that stakeholder consultations be undertaken during planning, implementation and operation phases of the project which is equivalent to the EMCA requirements. Additionally, statutory annual environmental audits are required by EMCA or regularly depending on project scope and impact. The National provisions for the management of resettlement related issues are required by NEMA as a condition of approving ESIA Studies for projects where displacement of persons is envisaged and therefore at par with the World Bank WB OP 4.12 (Resettlement Policy).
In Kenya, it is a mandatory requirement under EMCA 1999 for all development projects (Schedule Two) to be preceded by an ESIA study. Thus, under the Laws of Kenya, environmental assessment is fully mainstreamed in all development process consistent with World Bank safeguard policies on EA. The project areas (new court sites) under the JPIP will require to undergo Environmental Assessment where project approval and issuance of NEMA ESIA Licence can be done at ESIA Project Report stage. In Kenya where projects are listed under Second Schedule of EMCA and adverse impacts are expected including displacement of persons, Full ESIA Study Reports are required.
The process of ESIA Project Report and ESIA Study Report is as follows:
45 Carry out Site Environmental and Social Impact Assessment Prepare an EIA Project Report Have NEMA review the EIA Project Report (NEMA releases EIA Project Report Licence) NEMA requests for an EIA Study Terms of Reference (ToR) for Full EIA Study NEMA Approves EIA Study ToR Carry out an EIA Study including wide Public Consultation Prepare an EIA Study Report for NEMA review and approval NEMA releases EIA Study Licence with conditions of project implementation
Further, in order to fully insure against triggers to WB safeguard policies, individual sites will be screened against each policy as part of the EIA Study.
2.4 Environmental Administration Institutions
The EIA process in Kenya is regulated under the Environmental Management and Coordination Act (EMCA) passed in 1999. The EMCA requires the proponent of any project or programme to be carried out in Kenya to undertake a systematic examination to determine whether or not the activity will have any adverse impacts on the environment. The act stipulates, inter alia, that: EIAs must be carried out in accordance with the Environmental (Impact Assessment and Audit) Regulations, 2003; Projects that are subject to the Regulations must undergo EIA evaluation and an EIA Report approved for issuance of an EIA Licence by the National Environmental Management Authority (NEMA) prior to project development; Environmental Audits must be undertaken during project operation to check the impacts of the development and plan any further environmental mitigation;
The District and Provincial Environment Committees (DEC and PEC) comprising representatives of national government, local authorities, non-governmental organizations and the community are established as independent tribunals (independent of NEMA). At present the Regulations are applied only to projects. Procedures and guidance are being developed for programmes but as noted above the regulations will not apply to the JPIP Infrastructure Programme. They will apply to individual court sites within the programme. The District and Provincial Environment Committees is comprised of the following members:
District Environment Committee (a) The District Commissioner of the district who shall be the chairman;
(b) The District Environment Officer of the district who shall be the secretary;
(c) One representative each of the Ministries for the time being responsible for the matters specified in the First Schedule at the district level;
(d) A representative of every local authority whose area of jurisdiction falls wholly or partially within the district;
(e) Four representatives of farmers, women, youth and pastoralists within the district, the be appointed by the Minister;
46 (f) Two representatives of the business community in the district to be appointed by the Minister
(g) Two representatives of the non-governmental organisations engaged in environmental management programmes, operating in the district, to be appointed by the Minister in consultation with the National Council of Non-Governmental Organisation; and (h) Two representatives of the community-based organisations engaged in environmental programmes operating in the district, to be appointed by the Minister.
Provincial Environment Committee
(a) The Provincial Commissioner of the Province who shall be the Chairman; (b) The Provincial Director of Environment of the Province who shall be the Secretary; (c) One representative each of the Ministries responsible for the matters specified in the First Schedule at the provincial level; (d) A representative of every local authority whose area of jurisdiction falls wholly or partly within the province; (e) Two representatives of farmers or pastoralists within the province to be appointed by the Minister; (f) Two representatives of the business community operating within the concerned Province appointed by the Minister; (g) Two representatives of the non-governmental organisations engaged in environmental management programmes within the province appointed by the Minister in consultation with the National Council of Non-Governmental Organisations; and (h) A representative of every regional development authority whose area of jurisdiction falls wholly or partially within the province
The functions of the DEC and PEC are:
(a) Be responsible for the proper management of the environment within the province or di strict in respect of which they are appointed. (b) Perform such additional functions as are prescribed by the EMCA Act or as may, from time to time, be assigned by the Minister by notice in the Gazette.
47 3 PROJECT PREPARATION, APPROVAL AND IMPLEMENTATION
3.1 Preparation and Application
The JPIP Project preparation has been done and application made.
The Judiciary has identified a number of factors as key to prioritization of locations including the distance to the nearest court for people requiring access to justice, the distance between courts, the catchments of police stations and the availability of prison and remand facilities, the workload of existing and potential courts in terms of cases filed, pending and decided from an area, requests from local areas, and availability of personnel, funds, land and existing buildings.
3.2 Court Facility Appraisal and Approval
Using the above factors, the Judiciary has identified the Court Infrastructure project and appraisal carried out. It has been identified that the Court Infrastructure component of the JPIP Programme has been identified as a Category B project under the World Bank’s safeguard policies. As a result the Programme requires an environmental assessment (OP 4.01) and Involuntary Resettlement (OP 4.12). The Project also has the potential to trigger another World Bank Operational Policies namely Physical Cultural Resources (OP 4.11). The impacts are noted to be reversible and can be mitigated.
Environmental Assessment (OP4.01) requires the submission of an EA report with inter alia, the following sections: 1. Policy, Legal and Administrative Framework; 2. Project Description; 3. Baseline Data 4. Environmental Impacts; 5. Project alternatives; 6. An Environmental Management Plan (EMP).
The implementation of the court facility environmental assessments is yet to be done however since they are under Category B; the impacts have been determined to be reversible. The EIA will identify the individual project impacts and generate mitigation measures and an EMP.
3.3 Disclosure of Court Facility Information
The disclosure of court facility information will be done immediately environmental assessments EA are carried out and impacts identified for the development of EMP. An EIA Report will be prepared for each individual court facility. Where it is noted that resettlement is inevitable, a resettlement action plan study will be carried out following the RPF and a RAP Report prepared. These two reports will be made available for public review at the local level (District Environment Office) or the Local Administration (DC or DO’s Office). Copies of the Reports will be forwarded to the World Bank for disclosure.
48 3.4 Annual Reports
Annual Environmental Performance Reports will be prepared and forwarded to the Headquarters. The parameters to be monitored and reported upon, will be generated for the court facility EMP where comparison will be done and emerging environmental challenges recorded for follow up. It is noted that sometimes projects generate new impacts which were not anticipated during the preparation of EMP and Monitoring Plan.
The annual reports will assist the Judiciary to carry out timely interventions and put in place mitigation measures to address issues that that emerge.
The Annual Reports shall contain the following: Facility Transactions/Operations A list of environmental and social issues emerging from project operations The method of collecting the information for Annual Report
It is noted that NEMA sometimes may require an annual environmental audit carried out at the facility internally or by an independent consultant. Findings of this Audit
3.5 Annual Reviews
The Judiciary will carry out reviews by implementing the following: Evaluation of compliance of each court facility to the EMP by using a checklist of parameters Recording new and emerging environmental issues Recording factors contributing the observed issues
49 4 . ESIA PROJECT PRINCIPLES AND METHODOLOGY
Environmental impact assessment (EIA) is a systematic analysis of projects, policies, plans or programmes to determine potential environmental impacts, the significance of such impacts and to propose measures to mitigate the negative ones.
Under the Court Infrastructure component of the JPIP Programme, significant project impacts are only expected to occur during court facility construction phase. It is therefore important that there is strong emphasis on environmental management during the rehabilitation or construction phase of each of the court facilities. The Contractor is therefore required to have well spelt out procedures and guidelines that will govern the process project implementation. Refer to Annex 9 for Environmental Guidelines for Contractors.
4.1 Main ESIA Objective and Scope
The overall objective of EIA is to ensure that environmental concerns are integrated in all development activities in order to contribute to sustainable development.
The specific objectives are: a) To identify potential environmental impacts of proposed project, policies, plans and programmes; b) To assess the significance of these impacts; c) To assess the relative importance of the impacts of alternative plans, designs and sites; d) To propose mitigation measures for the significant negative impacts of the project on the environment; e) To generate baseline data for monitoring and evaluation of how well the mitigation measures are being implemented during the project cycle; f) To present information on the impact of alternatives; and g) To present results of the EIA in such a way that they can guide informed decision- making.
The ESIA will cover the following aspects: Rehabilitation of existing courts Site selection for the new courts Site preparation for construction Excavation activities Construction activities
The above activities will generate environmental and social impacts that require to be assessed through ESIA.
4.1.1 Environmental Impacts
The project impacts affecting the biological and physical environment shall be elaborated under environmental impacts. These shall cover the following aspects: Solid and liquid waste; Visual intrusion from site construction activities;
50 Air Pollution from dust and Smoke from vehicles and machinery; Noise and Vibration from vehicles and machinery; Traffic and Public Safety from trucks; Increased water Demand; and Soil and Land Degradation (Soil Erosion).
4.1.2 Social Impacts
The project impacts affecting the local population and their livelihoods shall be elaborated under social impacts. These shall cover the following aspects:
Loss of access to resources; Loss of employment; Loss of structures; Occupational risks for workers and neighbours; Impacts on Human Health; and Ponding Risks resulting spread of malaria form increased breeding of mosquitoes.
4.2 General ESIA Approach and Methodology
The proposed new courts that will be constructed in various regions in Kenya will need to undergo environmental and social impact assessment and preparation of an ESIA Project Report for submission to NEMA for approval and issuance of EIA License before any construction activities can commence.
4.2.1 Environmental Review of Court Facilities
The Environmental Management and Coordination Act (EMCA) which is the Act that governs environmental management in Kenya requires that all projects be subjected to a review and screening process in order to determine whether a full scale EIA is necessary or not.
Each court facility and activities will need to be reviewed independently for potential environmental and social impacts.
4.2.2 Project Environmental Screening
Screening of court facilities will commence right at the project inception phase as soon as the specific project details are known including nature and scope, proposed location and area among other parameters. Screening is expected to happen concurrently with the project specific feasibility studies so that any potential impacts identified through screening are immediately incorporated into the feasibility study hence ensuring that environmentally sound designs of each court facility occurs right at the project design phase.
The Court Infrastructure component falls under Category B project under the World Bank Policy on Environmental Assessment (OP 4.01), hence requiring Environmental Assessment.
NEMA is the institution designated to make a decision on whether a full scale EIA is necessary for a proposed project or otherwise. To make this determination, a project
51 report must be submitted to NEMA in order to make a determination and this is part of the screening process.
4.2.3 Project EIA Determination
The project/screening report will be prepared by the environmental and social specialists and submitted to the Judiciary JPIP Project officers to review before submission to NEMA for approval. Once a site has been selected for court development and design has been prepared the next step will be to seek an EIA License.
All new developments which fall within the definition set out in the Environmental (Impact Assessment and Audit) Regulations 2003 must obtain an EIA License from the National Environmental Management Authority (NEMA) before construction can commence.
According to the Second Schedule of the regulations, court developments fall under the regulations since they are: • out of character with their surroundings • of a scale not in keeping with their surroundings • a major change in land use
It is expected that an EIA License will be required for all court developments on new sites and for major extensions or additions to existing courts and the Judiciary will proceed on the basis that EIA will be required in all these cases. In this case the courts designers (either the Ministry of Public Works or Design Consultants) will be required to follow the EIA procedure set down in the Regulations. Refer to Annex 10 for EIA Process Chart.
4.2.4 Literature Review
The Environmental Consultant in consultation with the Judiciary is required to review previous study materials including any Feasibility Study and Design Reports and other literature elaborating on the proposed project including the geography, water resources, plant and animal (wildlife) resources and other information of the court site areas. Satellite Imagery Data also offers valuable information of the project area which can be used to identify features before embarking on the field investigation. This sets good platform of identifying gaps in the available information and data required for successful implementation of the ESIA Study.
4.2.5 Field Data Collection and Assessment
Collection of Baseline Data on Existing Environmental Conditions
As part of the ESIA Study, the Consultant Collects proposed court site baseline data on existing environment during fieldwork. Baseline data is considered important for future reference when monitoring effects of the project on people and the environment and also when seeking to carry out restoration of the environment.
It is during the baseline data collection that the study identifies the different features including human settlements, exotic plants and animals that will potentially be affected by the proposed project with a view of putting in place appropriate mitigation measures to eliminate or minimize any impacts.
Baseline data to be collected shall cover the following aspects:
52 Use of the satellite imagery data and topographic maps to confirm the features earlier deduced from interpretation of the images. Establishment of existing human settlements (including farmland, ranches, formal and informal settlements within the neighbourhood of the court sites). Evaluation of soil type to assess vulnerability to pollution and erosion effects during project implementation. Collection of baseline data on air, surface and groundwater quality. Evaluation of the topography (hill, valleys, plains etc.). Use of GPS to accurately collect coordinates of important features and locations for plotting on maps. Filling in of ESIA survey matrix charts and taking of photographs. Evaluation of the soils, geology/hydrogeology. Evaluation of existing river hydrology and wetlands. Establishment of chance finds physical cultural resources. Determination of existing agricultural areas (small scale and large farm lands) within the project area. Determination of the present socio-economic issues related to benefits and losses as a result of the project.
Collection of Baseline Data on Communities & Resources likely to be affected The Consultant shall collect all the data and information related to communities that will be affected and also other resources that may be interfered with during project implementation (construction and operation). The information and data to be collected will include the following:
Collection of statistical data on human settlements and businesses that shall be affected by the project. Magnitude of the effect. Categorize the type and extent of loss of assets and displacement. Affected infrastructure and social services. Occupational safety and health concerns during project development (construction and operation) for workers, the affected families and persons visiting the site.
Refer to Annex 2 for Generic ESIA ToR, Annex 3 for Generic EIA Table of Contents and Annex 5 for Stakeholder EIA Questionnaire which can be used for the court site Environmental Assessment and preparation of Project Report. Refer to Annex 9 for the Environmental Guidelines for Contractors who shall be constructing the court buildings. The Environmental Guidelines for Contractors is supposed to ensure that the Contractor puts in place appropriate mitigation measures to address environmental and social impacts, collects and reports on environmental issues that arise during the construction of the court structures.
4.2.6 Project Alternatives
The Consultant should carry out the ESIA Study based on the developed construction design. Where the Consultant identifies sensitive receptors or pertinent need to vary the project, viable alternatives shall be considered and evaluated without creating significant changes to the project objectives. The alternatives to be considered include:
53 Taking no action to construct or rehabilitate the courts Alternative to the proposed sites Alternative to proposed designs Analysis of technology & materials (e.g. use of asbestos roofing to be discontinued) Alternative methods of construction including costs and reliability
4.2.7 Project Implementation and Approval
The World Bank carries out an appraisal to determine if all relevant information has been provided and whether it is adequate. The implementing agency (Judiciary) is responsible for the implementation of an Environmental Impact Assessment (EIA) of the proposed project according to applicable national laws, local planning and approval/permitting procedures, and World Bank policies.
In case of environmental safeguards for projects that fall under category B, the establishment of an Environmental Management Plan (EMP) is required to describe expected adverse environmental impacts of the project activity and to formulate adequate mitigation measures. The EIA Process that is followed during project implementation in Kenya is elaborated in the EIA Process Chart given under Annex 10.
4.3 Reporting on the Project Findings and Results
The ESIA Study results shall be presented in either ESIA Project Report or ESIA Study Report depending on project classification by NEMA after screening.
4.3.1 Project Report
The details that shall be contained in the Project Report are as follows:
(a) Name of the proponent, PIN number, address and contact person. (b) Title of the project. (c) Objectives and scope of the project. (d) Nature of the project. (e) Location of the proposed project, including the physical area that may be affected by the project’s activities. (f) Types of activities that will be undertaken during the project construction, operation and decommissioning phases. (g) Design(s) of the project. (h) Materials to be used, products and by-products, including waste to be generated by the project and the method(s) of their disposal. (i) Potential environmental impacts of the project. (j) Mitigation measures to be taken during and after implementation of the project. (k) An action plan for the prevention and management of foreseeable accidents during the project cycle. (l) A health and safety plan for workers, and neighboring communities. (m) Economic and social benefits to the local community and the nation in general. (n) Project budget. (o) Views of the public about the project, indicating representativeness of the potentially affected people. (p) An environmental management plan (EMP) for the entire project cycle.
54 4.3.2 Number of Project Reports Required by NEMA and Fees
On completing the preparation of the Project Report by an EIA Consultant registered by NEMA, ten copies of the report shall be submitted to NEMA together with NEMA fee. The NEMA fee paid on submission of the reports is 0.025 of the project development cost or a minimum of KShs 10,000/= and a maximum of KShs 1,000,000/= whichever is higher. The project cost must be certified by a registered Quantity Surveyor.
4.3.3 Project Report Review and Determination
Within 30 days of receipt of the Project Report, NEMA will consider the Project Report and any comments submitted, including the recommendation of the District Environmental Committee and make a decision on whether or not to grant an EIA Licence. The decision is to be communicated within 45 days. If a licence is granted a further fee of 0.025% of the the development value of the works is payable. Conditions may be attached to the licence including requirements regarding environmental mitigation measures and for Environmental Audit during construction and beyond. If NEMA finds that the project will have a significant impact on the environment and the Project Report does not identify sufficient mitigation NEMA will require a further full EIA study to be undertaken. Refer to Table 3 on Project Report Preparation by Consultant and Review Period by NEMA and Figure 2 Environmental Impact Assessment (EIA) Review Process below.
This is not expected to occur with the proposed court developments provided the guidance set out in this Environmental and Social Management Framework is followed. Therefore, further guidance on completion of a full EIA is not provided here. If full EIA is required the Judiciary will follow the procedure set out in the Environmental (Impact Assessment and Audit) Regulations 2003 and associated guidelines NEMA may also elect to refuse an EIA licence at this stage. In the event of refusal or a request for full EIA the Judiciary may choose to appeal the decision. Table 3: Project Report Preparation by Consultant and Review Period by NEMA
Step Action Actor Time Period One Project Report Preparation by Environmental Environmental 1 – 2 Weeks Consultant Consultant Two Submission of PR to NEMA. NEMA receives Environmental 1 Day PR, issues a receipt and acknowledgement Consultant Three NEMA mails PR to Lead Agencies NEMA 7 Days assuming all requirements are fulfilled Four Lead agencies review PR and issue Lead Agencies 21 days (minimum) after comments receipt of PR from NEMA Five Review of PR by NEMA NEMA 30 days after receipt of PR. Six Communication of findings from NEMA 45 days after receipt of PR. NEMA review 4.3.4 Environmental Audit
If the Licence conditions so require, the Judiciary may be expected to undertake one or more self audits to check compliance with legislation, confirm the findings of the assessment, and identify any actions required to address unpredicted impacts. Audits may be required during construction and possibly in the longer term. self audits must be undertaken by an Environmental Auditor registered with NEMA and must be in
55 accordance with the requirements of the Regulations and the associated guidelines (see reference above). Alternatively NEMA may commission a control audit with the same objectives. The EMP for each court facility shall be used to carry out subsequent environmental audits as may be required by NEMA.
4.4 Environmental Guidelines for Contractors
Majority of the environmental and social impacts associated with the implementation of the Court Infrastructure component of the JPIP Programme will be generated during the rehabilitation of existing courts and construction of new court buildings. It is, therefore crucial that the Contractor is guided to prepare and put in place an Environmental Management Guidelines to address the possible impacts that will arise from the construction activities of the Project.
A generic Environmental Guideline for Contractors has been provided in Annex 9 of this ESMF and the Contractor is therefore expected to implement them. The adherence to the environmental guidelines by the contractor will ensure that adverse environmental and social impacts associated with the construction activities of the individual courts are avoided and where this is not possible, appropriate mitigation measures are put in place. This will enhance environmental protection and social acceptance of the project.
56 Figure 2: Environmental Impact Assessment (EIA) Review Process
57 5 ACCESS TO RESOURCES
The World Bank’s policy on involuntary resettlement (OP 4.12) applies to among other things impact on assets, negative impact on livelihood and/or any changes in access to resources due to a project, irrespective of whether or not affected persons must move to another location. This includes restricted use of resources in a park or protected area by people living inside or outside of it thus affecting their livelihoods. The Bank describes all these processes and outcomes as “involuntary resettlement,” or simply resettlement, even when people are not forced to move. Resettlement is involuntary if affected people do not have the option to retain the livelihood situation that they have before project start. The Bank’s policy requires a Resettlement Action Plan (RAP) for any project that involuntarily displaces people from land or productive resources, and the displacement results in: Relocation, the loss of shelter, the loss of assets or access to assets important to production; The loss of income sources or means of livelihood; or The loss of access to locations that provide higher incomes or lower expenditures to businesses or persons.
A RAP must also be prepared if assets are impacted, livelihoods are negatively impacted and/or people are restricted from use of natural resources, even if there is no physical relocation.
An RPF document has been prepared for the court infrastructure component of the JPIP to guide all issues related to displacement, resettlement and compensation.
58 6 ENVIRONMENTAL MANAGEMENT
6.1 Potential Positive and Negative Environmental Impacts
The implementation of the court infrastructure component of the JPIP shall generate both positive and negative impacts. The details of these impacts shall become clearer during the implementation of the court facility environmental and social impact assessment.
A review of the reports carried out by ERM in 2009 and during the field visits to Bomet Law Courts, Tawa Law Courts and Kajiado Law Courts carried out in July 2012, it is noted that in some locations the Judiciary has its own land where the Magistrate Courts re operating. In other locations, the courts are accommodated within the District Administration compounds. Instances of small businesses being present within the law court compounds have also been noted. Encroachment into the lands belonging to the Judiciary by other agencies was also observed. Refer to Annex 4 as observed during the field visit.
The rehabilitation of existing courts will be carried out on the court buildings situated on land that belongs to the Judiciary. On the other hand proposed new courts will either be constructed on land belonging to the Judiciary where there are existing court structures while others will be constructed on newly acquired land or land that is yet to be identified/acquired.
The upgrading of existing courts and construction of new courts at selected sites presents both positive and negative environmental and social impacts.
6.1.1 Potential Positive Environmental Impacts
The potential positive environmental impacts of the court infrastructure component of the JPIP include: Easy access to courts (courts located near the people). Reduced travel time and cost for litigants to reach courts and faster dispensation of court cases. Improved ergonomics for court staff and litigants.
6.1.2 Potential Negative Environmental Impacts
Potential negative environmental impacts of the court infrastructure component include:
Potential creation of visual intrusion at each of the court sites; Generation of solid and liquid waste at the court construction or rehabilitation sites; Potential air pollution from generated dust and smoke during construction; Potential generation of noise and vibration from trucks and machinery; Water pollution from released oils and other wastes during construction; Soil degradation and erosion arising from excavation activities during construction; Potential disturbance to habitats for animals and cutting down of trees and other vegetation; Potential impacts on marine and fresh water organisms; and Potential impact on wetlands and sensitive sites.
59 6.2 Potential Positive and Negative Social Impacts
The project has the potential to impact on the local community and the occupants of the land area where the new court facilities shall be constructed.
6.2.1 Potential Positive Social Impacts
The potential positive impacts of the court infrastructure component include: Speedy dispensation of Justice; Separation of holding cells for litigants; Improve social perception of the Judiciary.
6.2.2 Potential Negative Social Impacts
The potential negative impacts of the courts infrastructure component of the JPIP include: Displacement of persons Loss of structures and property Impacts on recreation and public facilities Potential enhancement of safety risks Potential interference with cultural and heritage sites Potential impact on human health and public safety Potential creation of labor conflicts
6.3 Proposed Mitigation Measures of JPIP Project Impacts
The mitigation measures that should be implemented during the rehabilitation of existing courts or construction of new ones are provided in Table 4 on Page 48 of this ESMF Report.
6.4 Environmental and Social Impact Monitoring Plan
Environmental monitoring is an important integral part of the environmental and social management process. It rationally completes the process that begins with: Establishing the environmental baseline condition Carrying out the environmental impact assessment Implementation of mitigation measures and finally Monitoring the success of those measures
An environmental monitoring plan has to be developed during the preparation of the Project Report for each court facility.
6.4.1 Sound Environmental Monitoring
Environmental monitoring is envisioned as an important process in project management. The monitoring programme will reveal changes and trends brought about by the presence and operations of the project. Such information will be useful in the formulation of sustainable project management and operation strategies.
60 The basic activities for a sound-monitoring programme for each facility should at least include the following parameters:
Collection and analysis of relevant environmental data of the site including: Site activities that have a bearing on environmental and social impacts; Maintenance status of drainage & sewerage facilities; Evaluation of the type and quantity of solid waste generated; Evaluation of the type and quantity of liquid waste generated; Evaluation of noise and other effects emanating from the site; Evaluation of the type of energy used and its effect to the immediate environment; The amount of water consumed and how the waste water is efficiently handled and disposed of; Seasonal variation of the presence of disease vectors (mosquitoes); and Data on existence of physical cultural resources (chance finds) Identification of unexpected environmental impacts.
Formulation of counter-measures to mitigate against the unexpected negative impacts and comparing them with actual impacts as identified during the audit.
The monitoring plan should contain the following: Environmental Impact Aspect Source of impact Magnitude of impact Parameter to be monitored Frequency of monitoring Responsibility (by who)
6.5 Environmental and Social Management Plan (ESMP)
The activities to take place during rehabilitation of existing courts and construction or new court facilities will include the following: Site identification; Preparation of court design drawings for approval by the relevant local authorities; Commissioning of an EIA Study for the proposed construction in line with NEMA requirements; EIA Study and preparation of an EIA Project Reports for submission to NEMA; Site excavation activities; Site preparation and construction activities that involve transportation of materials, construction of court buildings; Installation of court accessory fittings; Construction site clearance; Courts operation activities.
To ensure minimal environmental impact is experienced during the above activities, the EMP given in Table 4 on Page 48 should be applied on each new court facility.
It is important to integrate in the environmental impact assessment process, an environment management plan that includes the monitoring of the progress of mitigation measures being implemented while also monitoring the project for any new negative impacts that were not earlier considered or anticipated.
61 The table elaborates on the potential environmental and social impacts that are likely to occur during the construction of each court facility and the mitigation measures that can be applied to eliminate or reduce the impacts. The table also gives monitoring indicators, stage of the project when the impact is expected, how to verify success of the mitigation and the responsible persons.
62 Table 4: Environmental Management Plan Matrix for the Court Facility
Item Item/Activity Environmental Mitigation Measures/Actions Responsibility Implementation Monitoring Project Stage Verification Estimated and Social Impact Criteria Indicator Cost (KShs) 1. Site Selection Impact on Sensitive Avoid Sensitive Sites (e.g. Judiciary Site Selection Selected sites Project Sites devoid of Cost of Site sites wetlands) Criteria Preparation Large Trees. Visit by Project Engineer Cutting Down of Judiciary and Avoid with site with vegetation Vegetation Uninhabited sites Project Displacement of Sites for construction of new Engineer Persons and Loss courts not occupied No Wetlands of Income 2. Court Design Blending Design and construction Project Engineer/ Construction Buildings During Structures Cost of court Structure with the natural materials conforming to Local Contractor management Plan blending with Construction Conforms with design by Visual Impact Environment Authority and Ministry of environment and Operation project design Architect Project Architect Public Works building codes. Materials to be used on the EMP finished structure blend with Judiciary the natural environment. 3. Soil Soil erosion, Systematic & careful soil Project Engineer/ Site Construction Stable soil at During Evidence of stable 100,000/= per Excavation siltation, flooding excavation without raising Contractor Management Plan project site Construction soil at site court site dust and creating unpleasant collapse of heaps of soils. area Landscaped excavated areas, Rehabilitate degraded disturbed areas and chance finds of environment EMP physical cultural Loose soil compaction Presence of Drainage Lines resources (PCRs) Landscape disturbed areas to improve on visual intrusion Construction of proper storm Presence of grass water drainage lines. Plant soil binding plants/grass Engage the GoK authority responsible for preserving PCRs
63 Item Item/Activity Environmental Mitigation Measures/Actions Responsibility Implementation Monitoring Project Stage Verification Estimated and Social Impact Criteria Indicator Cost (KShs) 4. Standing Ponding risks, Ensure proper construction of Project Engineer/ Construction Compliance During Presence of 200,000/= per Water and groundwater and drainage and sewerage lines. Contractor Management Plan with design Construction functional Sewage court site Sewage facility river contamination Construct appropriate septic and operation /Drainage line/ during Waste Judiciary operation tanks and soak pits EMP records Soak pit or Septic Construction Tanks 10,000/= per court site per month during operation
5. Impact on Accidents and Use of Personal Protective Project Engineer/ Site Safety Plan Surveillance During Safety records 100,000/= per Human Occupational Risks Equipment (PPE) Contractor on safety construction court site Training on use of machinery. Enforcement of Safety compliance During Emergency response Safety Rules plans/procedures. Construction Provision of First Aid EMP Facilities 6. Workers Public health risks Promotion of sanitation at the Project Engineer/ Site Health Plan Number of During Records of sick 50,000/= per health and to workers during site Contractor sick persons construction persons court site per construction and Provision of sanitary facilities potential Promotion of and operation month operation of site Provision & use of mosquito Judiciary spread of nets. regular health HIV/Aids Regular HIV Aids awareness training among campaigns among workers employees Provision of first aid facilities
64 Item Item/Activity Environmental Mitigation Measures/Actions Responsibility Implementation Monitoring Project Stage Verification Estimated and Social Impact Criteria Indicator Cost (KShs) 7. Water Increased water Piped water from main line Project Engineer/ Site Operation Daily During Daily check on 500,000/= per Provision demand Sinking of boreholes Contractor Management Plan Construction piped water court site for Water Abstraction from Judiciary Operational piped water and Operation nearby rivers borehole and
2,000,000/= per court site for Borehole Water provision per court site
8. Soils, surface Soils, surface and Provide garbage/refuse bins for Project Engineer/ Waste Presence of During Daily checks by 800,000/= per and groundwater temporary storage of solid Contractor Management Plan solid waste Construction contractor during court site wastes Oil Spill construction during groundwater pollution from on site and Operation Secure fuel storage tanks/sites Management Plan Construction at the site solid/liquid waste Vehicles & Machinery cleaning Regular checks by and 20,000/= and oils from &servicing to be done off site. Vehicle Presence of Judiciary officers per court site machinery and Avail receptacles for temporary /Machinery oil stains on during operation per month Maintenance Plan during vehicles storage of oily wastes and soil and water fuels Regular Audits by Construction bodies Construction workers should be Construction Judiciary/Consulta provided with toilet facilities management Plan nt
65 Item Item/Activity Environmental Mitigation Measures/Actions Responsibility Implementation Monitoring Project Stage Verification Estimated and Social Impact Criteria Indicator Cost (KShs) 9. Noise Excessive Noise Construction is done during Project Engineer/ Construction Review of During Internal/self check 50,000/= per Generation Generation day light Contractor Management Plan vehicle Construction court site per machinery Low noise emission Maintenance Recorded noise month machinery and vehicles to be Vehicle and Plan levels exceeding used Machinery Execution 85 dBA for a Use serviceable equipment Maintenance Plan continuous 8 Recorded with low noise emission hours exposure operators to avoid raving complaints engines Workers provided with ear protection 10. Ambient Air Air Pollution (dust, Prohibit idling of vehicles; Project Engineer/ Vehicle and Review of During Internal/self-check 150,000/= per fuel emission) Spray water during Contractor Machinery vehicle & Construction court site construction Maintenance Plan machinery Regular maintenance of equipment; Regular sprinkling Maintenance Presence of Provision of dust masks for of water to Plan excessive smoke workers. suppress dust Execution emission Use of serviceable vehicles and machinery Purchase fuel Use of quality fuel and from recognized lubricants suppliers 11. Solid Waste Solid Waste Provision receptacles for Project Engineer/ Construction Number of During (Daily/Weekly) 30,000/= per Pollution collection of solid waste Contractor Management Plan solid waste Construction check by court site per bins and Operation Contractor and month Appropriate transportation Judiciary Waste Judiciary and disposal of solid waste at Management Plan Waste dump sites approved by the Disposal Local Authority/District records Environment Office
U Pollution of soil, Provide containers (drums) Project Engineer/ Construction Presence of During Used Oil Disposal 20,000/= per
66 Item Item/Activity Environmental Mitigation Measures/Actions Responsibility Implementation Monitoring Project Stage Verification Estimated and Social Impact Criteria Indicator Cost (KShs) surface and for Contractor Management Plan Used Oil Construction Records court site per groundwater temporary storage of used oil Drums on site and Operation month from machinery and vehicles. Judiciary Waste Dispose generated waste oil Management Plan through an approved agent S Alteration of site Rehabilitation/restoration of site Project Engineer/ Construction Implementatio During Self-check by 100,000/= per landscape landscape Contractor Management n of Construction Contractor. court site Plan. Compliance with Site Maintenance Construction / Maintenance and and Rehabilitation Maintenance Rehabilitation Management Plan Plan Plan P Physical Avoid occupied sites Project Engineer Resettlement Records of Project Pre- Records of PAPs Site Selection Displacement of Selection & Construction of Policy Framework PAPs Implementatio Resettlement and Cost Judiciary Persons court buildings to be done at (RPF) n Stage Compensation unoccupied sites Implementatio Assistance Resettlement n of RAP RAP Implemented Action Plan (RAP) No displacement of persons
P Loss of Property Acceptable Compensation for Project Engineer/ Resettlement Implementatio During Pre- Evidence of Cost of Site and Structures loss of permanent structures Contractor Policy Framework n of RPF and construction compensation Selection Assistance to relocate other (RPF) RAP properties. Judiciary Construction of court Resettlement No Loss of buildings on unoccupied Land Action Plan (RAP) property Cultural, Destruction of Carry out identification of Project Engineer/ Site information Records of During Pre- Evidence of Cost of Site heritage and cultural, heritage cultural heritage resources. Contractor and Site Selection cultural sites construction Records and Selection Archaeologic In case of chance finds and Surveys and archeological samples al sites consult GoK authority Judiciary sites responsible for physical cultural resources; do not touch or move PCRs until
67 Item Item/Activity Environmental Mitigation Measures/Actions Responsibility Implementation Monitoring Project Stage Verification Estimated and Social Impact Criteria Indicator Cost (KShs) advised by the appropriate cultural authorities Machine and Workers and Use only road worthy vehicles Project Engineer/ Machine and Vehicle and During Machine and 100,000/= per vehicles general public and trucks Contractor Vehicle Machine Construction Vehicle court site Only experienced drivers maintenance safety Service Performance should be employed schedule Use well maintained records records machines Labour Unrest of local Provide Jobs for locals Project Engineer/ Job allocation Satisfaction of During List of Workers Cost of Issues population and job Have Training Plans for Contractor criteria (skilled & Job allocation Construction containing engaging Workers unskilled), redundancy Contractors by Locals, Contractors Local Labour workers & Locals few Workers and and Training complaints by Locals locals
EIA License EIA License for Development of court site EIA consultant court site EIA Project Pre- Submission of 10 300,000/= court sites EMP and Monitoring Plan registered by Environmental Report in Construction EIA Project -700,000/= NEMA Assessment & preparation of EIA Compliance Reports to NEMA per court site Project Report with EMCA 1999 and NEMA Fee of NEMA NEMA EIA 0.05% of Regulations License for court each court site facility. Project Cost or a minimum of KShs 10,000/= and a maximum of KShs 1,000,000/= (NB. Project Cost to be
68 Item Item/Activity Environmental Mitigation Measures/Actions Responsibility Implementation Monitoring Project Stage Verification Estimated and Social Impact Criteria Indicator Cost (KShs) Certified by a Registered QS)
69 6.6 Mitigation considerations and options
All moderate to major adverse impacts are considered for mitigation. Specific measures have been suggested in this regard where practicable. With regard to negligible or minor impacts where the project activity is not expected to cause any significant impact appropriate mitigation measures have been recommended to improve the environmental and social performance of the Project. The mitigation options considered may include project modification, provision of alternatives, project timing, pollution control, compensations and relocation assistance. In cases where the effectiveness of the mitigation is uncertain monitoring programs are introduced.
6.6.1 Recommended mitigation measures
The mitigation measures or guidelines have been designed in order to avoid, minimize and reduce negative environmental and social impacts at the project level. The mitigation measures are presented in the following tables in a descriptive format
6.6.2 Cultural Property
The Bank supports the preservation of cultural properties which includes sites with archaeological, paleontological, historical, religious or unique natural values. It seeks to avoid impacts on such sites.
During the identification of court sites the Judiciary and Environmental Consultant will consult with the local people and local administration regarding the presence of cultural property. If a monument or object of archaeological or palaeontological interest is found, the Project should within seven days, notify the National Museum, indicating the precise site and circumstances of the discovery. In the case of an object, the object should be delivered to the National Museums or to the District Commissioner for safe keeping. Section 31 of the National Museum Act which governs the preservation of cultural resources, prohibits movement of any asset that is archaeological or paleontological interest from the place where it has been discovered unless authorized by an exploration license, or by written permit from the Minister after consultation with the National Museum. The construction workers will be advised of this policy and legal requirement.
70 7 CAPACITY BUILDING, TRAINING AND TECHNICAL ASSISTANCE
The main institutions to implement the Court Infrastructure component of the JPIP program should ensure sound management of the environmental and social aspects. These include: Judiciary Environmental Consultants Government line ministries and Implementation Departments and Agencies Government Regulatory Agencies Private Sector NEMA World Bank
The technical capacity and capability of the institutions that will be implementing the ESMF for The Judiciary will require bolstering in order to ensure effective implementation of the Environmental and Social Management Framework (ESMF).
7.1 Institutional Capacity Assessment
Management of environmental and social impacts is not a core competence required of The Judiciary staff or of others expected to have key roles in implementation of the court infrastructure component. The Judiciary will therefore make use of qualified environmental and social experts to support the infrastructure component where issues at particular sites require expert guidance. The advice of a Social Development Specialist should be obtained if the need for resettlement arises at any site or where there are issues associated with vulnerable groups. It will also be important to appoint a senior member of staff (the Chief Economist who will act as ESMF Supervisor) to oversee environmental and social management of the Programme and this member of staff will be given training through either a series of intensive training courses provided under the auspices of the Institute of Environmental Management and Assessment or a distance learning course in Environmental Management (such as the Institute of Environmental Management and Assessment Associate Membership Course).
In addition a programme of further capacity building will be undertaken to ensure that all parties understand the specific requirements of the Environmental and Social Management Framework (ESMF) and the Resettlement Policy Framework (RPF) which have been developed as part of this study.
7.2 Training and Capacity Building
The JPIP Programme has a training component to be implemented by the JTI (Judicial Training Institute). This is to be carried out in the mainstream of the Judiciary to improve their performance and enhance skills.
Capacity building will be required to be able to effectively execute aspects of the ESMF in the short term (during the courts infrastructure development) and in the long term (Monitoring and Evaluation of the Environmental Aspects of the JPIP). Consultants will come on board for a short period during project execution but transfer of some skills to the Judiciary Project Implementation team (JPTC and PC) is important for the continued implementation of the programme.
71 7.2.1 Identification of Capacity Needs
The first step in pursuing capacity building will be to identify the capacity needs for each aspect. Capacity building should be viewed as more than training. It is human resource development and includes the process of equipping individuals with the understanding, skills and access to information, knowledge and training that enables them to perform effectively. It also involves organizational development, elaboration of relevant management structures, processes and procedures not only within the organization but also the management of relationships between the different organizations and sectors (public, private and community). Capacity building requirements will mostly be in the form of training workshops.
Training will focus on:
Stakeholder engagement, consultation and partnerships; EIA laws, relevant environmental policies; Development of mitigation measures and Environmental Management Plans Thorough review of Country EIA procedures, Environmental Management policies & guidelines and WB safeguards as well as their implementation and enforcement. The group will also be trained on use and application of ESMF tools (Screening checklists, EA), their review, implementation and enforcement. Participants will be trained on environmental reporting, monitoring and follow-up of ESMF Significant emphasis will be placed on understanding EIA procedures, Environmental Management policies & guidelines, WB safeguards, implementation and enforcement Reporting, monitoring and follow-up of ESMF
In order to reduce costs, minimize duplication of efforts and integrate existing technical expertise, officers with relevant knowledge and experience in particular fields should be used to train the others. As an example the District Environment Officers can be used to train on requirements of the EMCA and associated guidelines and regulations.
The training and capacity building exercises should be taken into consideration during the development, the integration and fulfilment of the requirements of World Bank social and environmental policies and guidelines, as well as those on Environmental Protection (including relevant policies, regulations and guidelines). Where institutional capacity in terms of availability of human resource is inadequate, the project should engrain support for this through hiring of qualified staff to provide the necessary expertise. Inadequacy in institutional infrastructure, facility resources and equipment should be addressed through an initial needs assessment. The priority list should ensure that key requirements to successful implementation of the ESMF are addressed in order of their strategic importance. Training directly linked to the implementation of the ESMF should be undertaken first and followed with regular interval trainings on aspects influencing success of the ESMF. It is important to note that under the JPIP Programme, the courts infrastructure implementation will invoke some long term monitoring to assess the environmental performance of the EMP.
7.3 Capacity Building Budget & Safeguards Implementation
The Judiciary will recruit an Environmental and Social Safeguards Specialist (ESSS) to work in the Project Management Unit and oversee the environmental and social issues which emerge during project implementation. The consultants to support the ESSS will be
72 recruited on as needed basis. The capacity building budget for the ESSS will be part of the overall training for the judiciary and will be assigned on as needed basis. A budget in the amount of $ 1million has been set aside for the Project Implementation Unit to implement the ESMF, RPF, finance outreach and information dissemination costs and capacity building. The budget will also finance any relevant training.
73 ESMF Coordination and Implementation Arrangements
The precise scope of the Court Infrastructure component activities at the selected locations (court sites) is not fully known at this time of appraising the JPIP project. Therefore the potential social and environmental impacts of the construction activities cannot be identified and mitigation measures determined for the specific project areas (court sites). This ESMF provides generic impacts and mitigation measures associated with the rehabilitation, construction and operation of court facilities. Specific project area activities, their impacts and mitigation measures will be identified once environmental and social impact assessment (ESIA) is carried out for each individual court site.
7.4 ESMF Implementing Agencies
The JPIP ESMF shall be implemented by the following agencies:
Judiciary through the Project Management Unit (PMU) and Project Coordinator (PC), JPIP Technical Committee (JPTC) and Judiciary Transformation Steering Committee (JTSC) Consultants
7.4.1 Judiciary
Judiciary Transformation Steering Committee (JTSC) will be responsible for (a) providing strategic and policy guidance for Project implementation; (b) review and approve annual work plans for the Project; and (c) review project financial reports.
JPIP Technical Committee (JPTC) led by a technical specialist will oversee the technical aspects and quality control of the implementation of the project activities.
Project Management Unit (PMU) and Project Coordinator (PC) will be responsible for promoting effective implementation, oversight and coordination of the project.
Consultants Consultants registered by NEMA shall provide support for court facility environmental assessments and EIA Project Report preparation for submission to NEMA for issuance of EIA License.
74 8 PUBLIC CONSULTATION AND DISCLOSURE
8.1 ESMF Disclosure
The World Bank policies require that environmental assessment reports for projects are made available to project affected persons, groups, local NGOs, and the public at large. Public disclosure of ESIA documents or environmental reports is also a requirement of the Kenya ESIA procedures. However, there is no limitation as to the extent and scope of disclosure. The Judiciary in collaboration with the line agencies and NEMA will make available copies of the ESMF in selected public places as required by law for information and comments. Public notice in the media should be served for that purpose. The notification should be done through newspaper or radio announcement or both. The notification should provide:
A brief description of the Project; A list of venues where the ESMF report is on display and available for viewing; Duration of the display period; and Contact information for comments.
The summary of the documents will be further translated into local languages to afford easy dissemination. In view of the national character of the court infratructure projects, Kiswahili will be used in addition to English. The NEMA will assist to select display venues upon consultation with the Judiciary.
8.2 Public Consultation for the ESMF
Preparation of the ESMF required public consultation and stakeholder engagement as a means of gathering information on public concerns, issues, perception, fears and suggestions with regard to the JPIP Programme. The Consultant carried out field visits to Bomet Law Courts in Bomet County, Tawa Law Courts in Makueni County and Kajiado Law Courts in Kajiado County to hold discussions and obtain views, concerns, perceptions, reactions and experiences in relation to the proposed JPIP and how the programme will impact on the administration of justice. The persons consulted showed alot of support for the project due to the long distances people have to walk to seek justice and secondly the huge backlog of cases that will significantly reduce. The persons consulted were from the Magistrate Courts. The main environmental issues raised during the consultations included: (a) water scarcity and potential exacerbation of the situation by the construction and rehabilitation work; (b) noise during construction; and (c) lack of sewerage systems and the existing poor sanitary conditions which could be made worst by the construction workers. A brief report is provided in Annex 4.
8.3 Public Consultation During the Court Infrastructure EIA
Implementation of the court site environmental and social environmental assessment require that public consultation and stakeholder engagement is carried out as a means of gathering information on public concerns, issues, perception, fears and suggestions on the courts infrastructure.
The consultations should be carried out through the following avenues: Public consultation meetings Key informant interviews EIA Questionnairre interviews
75 8.4 Grievance Redress Mechanism
8.4.1 Objectives of Grievance Redress
A key element of the resettlement process will be the development and implementation of a grievance mechanism. The PAPs must be consulted in the development of a grievance redress mechanism for a project area RAP which will be acceptable to them. Grievance procedures are required to ensure that PAPs are able to lodge complaints or concerns, without cost, and with the assurance of a timely and satisfactory resolution of the issue. The procedures ensure that the entitlements for compensation, resettlement or both are effectively delivered to the intended beneficiaries. At the time that the individual RAPs are approved and individual compensation contracts are signed, affected individuals and households will have been informed of the process for expressing dissatisfaction and how to seek redress. The grievance procedure will be simple and will be administered as far as possible, at local levels to facilitate access by PAPs. All grievances concerning non‐fulfillment of contracts, levels of compensation, or seizure of assets without compensation shall be addressed through the Local Leader. All attempts shall be made to settle grievances amicably. Those seeking redress and wishing to state grievances will do so by notifying their appointed Local Leaders. It has to be noted that in the local communities, people take time to decide to complain when aggrieved. Therefore, the grievance procedures will ensure that the PAPs are adequately informed of the procedure, before their assets are taken. The grievance redress mechanisms is designed with the objective of solving disputes at the earliest possible time, which will be in the interest of all parties concerned and therefore, it implicitly discourages referring such matters to a Tribunal for resolution. Compensation and resettlement plans (contracts) will be binding under statute, and will recognize that customary law is the law that governs land administration and tenure in the rural/village areas. This is the law that inhabitants living in these areas, are used to and understand. Grievances may arise from members of communities including PAPs who are dissatisfied with: ‐ (i) The eligibility criteria (ii) Community planning measures, or (iii) Actual implementation.
A sample Grievance Redress form is provided in Annex 5 of this report.
8.4.1 Grievance Procedures
Grievance procedures do not replace existing legal process. The grievance procedures seek to resolve issues quickly in order to expedite the receipt of entitlements, without resulting to expensive and time‐consuming legal actions. The grievance procedures will be simple and will be administered as far as possible at the sub‐project level by Resettlement and Compensation Committees. The procedures will be implemented within a clear time schedule which should be adhered to. If grievance procedures fail to provide an agreed result, complainants can still seek legal redress.
The overall process of grievance is as follows:‐
76 During the initial stages of the valuation process, the affected persons will be given copies of grievance procedures as a guide on how to handle grievances. The process will start with registration of the grievances to be addressed for reference and to enable progress updates of the cases. The project will use local mechanism, which include resettlement committees, peers and local leaders in the affected community. These will ensure equity across cases, eliminate nuisance claims and satisfy legitimate claimants impartially. The response time will depend on the issue to be addressed but it should be addressed with efficiency being mindful of the overall project time frame. Compensation will be paid to PAPs, only after a written consent of the PAPs and for couples both husband and wife will give their consent.
1.1 Timeliness of the process
Grievance redress procedures may be invoked at any time, depending on the complaint. No person or community from whom land or other productive assets are to be taken will be required to surrender those assets until any complaints he/she has about the method or value of the assets or proposed measures are satisfactorily resolved. If the verdict rendered by the Grievance Redress Committee is not acceptable, the aggrieved party can take recourse following the provisions of the Law. The applicable legal route will start with the local community leadership as it exists now or as defined under the new Constitution. Kenya’s judicial authority and legal system is set out in Chapter Ten of the new Constitution.
The nature of grievance and consequently the manner in which it will be addressed will depend on the specific community and the impact on the PAPs.
1.2 The Grievance process 1.3 The procedure for managing grievances should be as follows:
a) Registration of grievances: The affected person should file his/her grievance, relating to any issues associated with the resettlement process or compensation. The written grievance signed and dated by the aggrieved person, will be submitted to the Project Area Resettlement and Compensation Committee by the appointed Local Leader. All objections shall be made in writing, in the language that the PAPs understands and are familiar with, to the Local Leader. Channeling complaints through the Local Leader is aimed at addressing the problem of distance and cost the PAP may have to face. The Local Leaders shall maintain records of grievances and complaints, including minutes of discussions, recommendations and resolutions made.
b) Assistance to the aggrieved person: A selected member of the Committee, preferably a staff member of the JPTC will act as the Project Liaison Officer who will be the direct liaison with PAPs. Where the affected person is unable to write, the local Project Officer will write the note on behalf of the aggrieved person and document any informal grievances. The note should then be embossed with the aggrieved person’s thumbprint.
c) Submission of the grievance: The Project Liaison Officer will submit the signed form to the JPTC which will be the secretariat of the Resettlement and Compensation Committee. Copies of the complaint shall be sent to Project Liaison
77 Officer, who will forward the complaints to the JPIP Technical Committee and the relevant agency for administration of land matters, within 20 days after the public notice. d) Response of the Resettlement and Compensation Committee: The Committee will review the claim and inform the claimant if it is valid or not valid:
if the claim is rejected by the Committee, the Project Liaison Officer will assist the aggrieved person to take the matter to the Local District Adjudication Board, provided in the existing Land Acquisition Act or as detailed in the Land Act. if valid, the Committee will notify the complainant and within 14 days assist the aggrieved person in establishing details of the grievance. If the grievance relates to valuation of assets, a second valuation will be undertaken by a separate independent Valuer. If necessary, valuation will be repeated to achieve agreement by both parties. The aggrieved person must be notified by the Project Liaison Officer the steps being taken in the consideration of the claim. e) Action of the aggrieved person if not satisfied with the outcome: If within the agreed time, the claimant does not receive a satisfactory response, she/he may take the matter to the District Land Adjudication Board, assisted by the Project Liaison Officer if deemed necessary by the Project Area Resettlement and Compensation Committee. f) The Project Area Resettlement and Compensation Committee will provide assistance at all stages to the aggrieved person to facilitate resolution of their complaint and ensure that the matter is addressed in the optimal way possible.
78 A grievance redress mechanism is given in Figure 2 below.
Dissatisfied PAP declares the grievances
JPIP Technical Committee reviews the grievances and refers the case No Action to the PAP Committee who are to Grievances Addressed Required respond within two weeks from the submission to respond
No Action Compensation Tribunal, Public Grievances Resolved Complaint Committees Required
Legal Redress
Figure 3: Chart showing Grievance Redress Mechanism
1.4 Grievance Log The Project Liaison Officer will ensure that each complainant has an individual reference number, and is appropriately tracked and recorded actions are completed. A record of the stages the claim goes through and the person/s responsible for an individual claim must be clearly recorded and information provided to the complainant. The record will show: Date the complaint was reported; Date the grievance was uploaded to the project database; Date information on proposed action was communicated to the complainant; Date the complaint was closed; and Date response was sent to the complainant.
1.5 Monitoring Complaints The Project Liaison Officer will be responsible for: ‐ Providing the Project Area Resettlement and Compensation Committee with a weekly report detailing the number and status of complaints; Any outstanding issues to be addressed; and
79 Monthly reports, including analysis of the type of complaints, and actions taken to address complaints.
1.6 Consensus, Negotiations, and Conflict Resolution
Consensus and negotiations are central to addressing grievances. In general, people are aware of their rights, their commitments to the country as citizens and their allegiance to village and family issues. For this reason, many Government funded community projects have been implemented without obstacles from project affected persons.However some projects have been known to stall due to delays in disbursement of compensation. Prior negotiations, between Government representatives and project beneficiaries, are therefore crucial to the success or failure of the project. As a guiding principle emphasis shall be placed on simplicity and proximity of the conflict resolution mechanisms to the affected persons and the following shall be noted:
a) Negotiation and agreement by consensus will provide the best avenue to resolving any grievances expressed by the individual landowners or households affected by community projects. These grievances shall be channeled through the Local Chiefs or leaders.
b) The JPIP Technical Committee shall ensure that the main parties involved achieve any consensus freely. The relevant government representative shall clearly advise the general public as to who is responsible for the activity and the procedure for handling grievances or compensation claims.
c) Grievances shall be addressed during the verification and appraisal process. If a suitable solution is not found, the JPIP Technical Committee shall defer consent of the project and the concerned project activities shall not be allowed to proceed at the particular location.
d) Grievances for which solutions have not been found shall be referred back to the community for discussion where the Local Leader and District Administration will redress the matter of concern to assist the claimants. The mediation process will be implemented according to traditional methods of mediation/conflict resolution. The resolution will then be documented on the relevant consent forms and verified.
e) If an agreement cannot be reached at community level the aggrieved party or parties shall raise their concerns to the JPIP Technical Committee who shall refer them to the respective District Administration, within 20 days of the verification meeting. Grievances that cannot be resolved at the Local and District level shall be submitted to the Local Government, the District Administration and to executing agencies. Should grievances remain unresolved at this level, they can be referred to the court of law.
80 9 CONCLUSIONS AND RECOMMENDATIONS
9.1 Conclusions
The courts infrastructure component of the JPIP shall generate both positive and negative environmental and social impacts. According to the World Bank’s safeguard policy on Environmental Assessment, the proposed court infrastructure component has been classified as a Category B project under the World Bank environmental assessment level with the potential for adverse impacts on human populations or environmentally important areas which are site-specific, mostly reversible, and in most cases capable of reasonable straightforward mitigation. For now each of the court facilities is likely to trigger three World Bank Operational Policies:
Environmental Assessment (OP/BP 4.01) Involuntary Resettlement (OP/BP 4.12) Physical Cultural Resources (OP/BP 4.11)
Projects that fall in the category listed in the Second Schedule of the Environmental Management and Co-ordination Act (EMCA), 1999 require undergoing EIA evaluation. In this Schedule under item 1, General – (a) an activity out of character with its surrounding and (b) any structure of a scale not in keeping with its surrounding are required to undergo Environmental Impact Assessment (EIA) and, therefore the proposed court rehabilitation and construction of new courts should undergo EIA evaluation.
The proposed court structures shall only require the preparation of EIA Project Reports (PR). If for each court facility a Project Report is prepared with adequate mitigation measures and Environmental Management Plans (EMPs), the sites shall not be required to undergo Full EIA Study. The Project Reports for each court facility shall require between 1- 2 weeks to prepare a Project Report that can be submitted to NEMA for review and issuance of EIA License.
The positive social impacts of the Court Infrastructure component of the JPIP is huge in terms of facilitating access to justice and significantly reducing the cost of travel, time loss and large distances that litigants have to travel to access justice.
9.2 Recommendations
This ESMF has been prepared to guide project implementers and other stakeholders to identify and mitigate environmental, health and social impacts associated with the rehabilitation or the construction of new court buildings in various regions of Kenya.
In implementing the ESMF it should be noted that the project sites, may be prone to other environmental and social impacts from activities of other development projects. Implementers of this ESMF, in consultation with all the stakeholders, should adopt and adapt (where appropriate) the screening process, the environmental checklist and the EMP to suit local conditions where each new court facility is located.
81 Specifically it is recommended that:
The screening process and the screening forms should be used for each of the sites where a new court structure is proposed to ensure that all environmental and social impacts are identified and appropriate mitigation measures put in place. Environmental and social awareness and training as presented in the capacity building proposal for the key players should be implemented to ensure that there is proper understanding of the environmental management process. Building capacity at the local level where the proposed new courts are located for appropriate information management to facilitate the environmental and social management process should be supported by the Judiciary. At the local level, the necessary resources and equipment for producing the required documentation and completing the screening forms, environmental monitoring as well as preparing reports for the implementation of the ESMF should be provided. Since it is noted that majority of the project impacts will occur during the construction phase of the new court facilities, the Contractor should follow the Environmental Guidelines for Contractors as elaborated in Annex 9 of this ESMF. This will ensure that environmental management of the construction sites is done and appropriate mitigation measures put in place where impacts cannot be avoided.
Due to the mandatory requirement that each new court site requires individual NEMA EIA License, each new court facility will require to undergo Environmental Impact Assessment (EIA) and preparation of EIA Project Report for NEMA approval and issuance of EIA License.
Since construction of new court facilities cannot commence without an EIA License and the minimum period required by NEMA to review and approve an EIA Project Report is 45 days, the sooner the sites undergo Environmental Impact Assessment and preparation of EIA Project Reports is done the better.
82 10 REFERENCES
ACTS-UNEP, 2001. The Making of a framework Environmental Law in Kenya. Acts press, Nairobi, Kenya.
Environmental (Impact Assessment and Audit) Regulations, 2003
Environmental Management and Coordination (Water Quality) Regulations, 2006 – Legal Notice No. 120
Environmental Management and Coordination (Waste Management Regulations, 2006 – Legal Notice No. 121
Environmental Management and Coordination Act (EMCA) No. 8 of 1999
ERM Reports of 2009 on JPIP namely: - Strategic Environmental and Social Impact Assessment (S-ESIA) – Assessment Report - Volume 1 - Strategic Environmental and Social Impact Assessment (S-ESIA) – Environmental and Social Management Framework for Court Development - Volume 2 - Strategic Environmental and Social Impact Assessment (S-ESIA) – Resettlement Policy Framework - Volume 3
ESMF for World Bank Projects With Multiple Project Areas – Toolkit February 2008
Government of Kenya Documents - Environmental management and Coordination Act (EMCA) 1999 - Environmental (Impact Assessment and Audit) Regulations 2003 - The Environment and Land Court Act, 2011 - Occupational Safety and Health Act, 2007 - Public Health Act (Cap 242) - Physical Planning Act (Cap 286) - The Water Resources Management Rules (2007) - The Local Government Act (Cap 265) - The National Museums Act (Cap216) - The Employment Act, 2007
IFC Performance Standards
JPIP Project Formulation Document
Kenya Infrastructure Finance and Public-Private Partnership (IFPPP) Programme – Environmental and Social Management Framework by Tito Kodiaga – April 2012
Republic of Kenya, National Development Plan
National Atlas of Kenya, Fourth Edition (1991).
National Environment Management Authority (NEMA) EIA Guidelines 2002
83 Strategic Environmental and Social Impact Assessment (S-ESIA) for The Proposed Judicial Performance Improvement Project (JPIP), Volume 1: Assessment Report by ERM
Strategic Environmental and Social Impact Assessment (S-ESIA) for The Proposed Judicial Performance Improvement Project (JPIP), Volume 2: Environmental and Social Management Framework for Court Development Report by ERM
Strategic Environmental and Social Impact Assessment (S-ESIA) for The Proposed Judicial Performance Improvement Project (JPIP), Volume 3: Resettlement Policy Framework Report by ERM
United Nations Environment Programme (UNEP). 1996. Environmental Impact Assessment: Issues, Trends and Practice.
World Bank Project documentation for JPIP
World Bank. 1993. The World Bank and the Environment.
World Bank. 1991. Environmental Assessment Sourcebook. Volume I. Policies, Procedures and Cross-Sectoral Issues. Environment Department. Technical Paper WTP 139.
World Bank. 1991. Environmental Assessment Sourcebook. Volume II. Sectoral Guidelines. Environment Department. Technical Paper WTP 140.
World Bank Group Environmental, Health, and Safety Guidelines
84
85 ANNEXES Annex 1: ESMF Terms of Reference (ToR) Kenya Proposed Judicial Performance Improvement Project Terms of Reference for the preparation of an Environmental and Social Management Framework and a Resettlement Policy Framework
1. Introduction
1. The primary objective of this consultancy is to prepare an Environmental and Social Management Framework (ESMF) and a Resettlement Policy Framework to be relied upon in the implementation of the proposed Judicial Performance Improvement Project (JPIP). The ESMF is a statement of the policy, principles, institutional arrangements and procedures that the project proponents will follow in the JPIP in addressing environmental and social issues. It is used in the case of projects whose detailed engineering design, precise location and the range of environmental and social safeguard issues involved are not fully known.
2. The JPIP will renovate and construct courts. The judiciary has through a competition commissioned the designing of a model court which will outline the minimum standards for a court in Kenya. In addition, the judiciary is conducting a comprehensive inspection of its courts and sites to determine which courts will be rehabilitated and which suitable sites for court construction have land titles. Given the lack of full clarity on the sites and extent of renovations the ESMF is the appropriate framework. The ESMF spells out the World Bank’s environmental and social safeguard policy frameworks, the Borrower’s/Recipient’s institutional arrangements and capacity to identify and mitigate potential environmental and social safeguards issues and impacts of the Project. The ESMF has to be prepared, and cleared by the World Bank and disclosed publicly, in client country and at the World Bank Infoshop before project appraisal.
The Resettlement Policy Framework on the other hand is used in cases of projects that have a potential for displacing persons (DPs) in the project areas or impacting their livelihoods. The RPF outline measures to avoid and minimize resettlement as well as assist DPs in their effort to improve or at least restore their standards of living regardless of the legality of the land tenure. The JPIP is not likely to lead to any large scale acquisition of land or denial of access to usual means of livelihood. The project will carry out construction of courts in those areas where the judiciary has title. However, for due diligence purposes, the Judiciary will prepare and disclose a Resettlement Policy Framework (RPF) prior to appraisal. Like the ESMF, the RPF has to be prepared, and cleared by the World Bank and disclosed publicly, in the client country and at the World Bank Infoshop before project appraisal.
II. Background
ESMF and RPF 2009
3. The JPIP has been under preparation since 2008 but its preparation was put on hold given the prevailing environment in the country and the Government’s commitment to judicial reforms. During its initial preparation, a Strategic Environmental and Social Management Framework (Volume 11) and a Resettlement Policy Framework (Volume III) were prepared by Environmental Resources Management Inc., (ERM). Although these reports contain the necessary information for the preparation of an ESMF and RPF they do they do not adequately cover all the sections or the issues that a standard ESMF or RPF for a project level investment such as the JPIP should address and do not provide a unified systematic guidance required for project implementation. In this regard, the judiciary is looking for a consultant to review and update the ESMF and RPF. A detailed ESMF and RPF outline consistent with the World Bank requirements for project level investments is attached to guide the review. In addition copies of the ERM reports are available for review.
4. The Republic of Kenya has approached the World Bank to revive the preparation of the JPIP. In line with the new constitution in which the judicial reforms are anchored, the judiciary has developed a comprehensive judicial reform strategy which takes into account earlier viable reforms and the spirit of the new constitution. This new strategy is commonly known as the Judiciary Transformation Framework (JTF). The JTF is going to govern the reforms in the judiciary for the next 4 years (2012-2016). The new JPIP is implementing some of the key activities in the JTF and is aligned with the JTF priorities. The objective of the JPIP is to strengthen the capacity of the judiciary to deliver its services in an effective, transparent, and accountable manner.
5. The JPIP will finance selected areas in the Judiciary’s Strategic Framework and in this regard the components for the JPIP will seek to be aligned with the identified key result areas, taking into account the World Bank’s mandate and policies. Social accountability and specific Governance and Anti-Corruption tools will be mainstreamed into the various components the project and project management. Specifically, this will include third party project monitoring, the involvement of CSOs supervision of the project procurement monitoring and access to project information.
6. The proposed project components consist of:
A. Court Administration and Case Management.
(a) Court Administration- The Court Administration Sub-component will: (i) support an organizational review of the judiciary taking into account the recent structures proposed by the JTF, and consequent establishment of new management structures, directorates and committees; ii) develop and implement performance appraisal model for the Kenya judiciary; (iii) support the judiciary’s leadership, management and staff to enable them to carry out a significant process of change management; (iv) provide research assistants and reference materials to judges and Chief Magistrates; (v) provide technical assistance for the simplification of the rules of civil procedure by creating a simpler version easily accessible to ordinary citizens; (vi) provide support for efficient data recording, storage and management; (vii) provide support to Court Users Committees to convene, develop and implement agreed activities in Court Improvement Plans; and (viii) provide technical assistance for the preparation of a technical paper and implementation of court mandated/annexed ADR. ADR could be limited to the court mandate mediation as long as this could be achieved administratively. In addition, it will strengthen the internal governance and management of the judiciary including strengthening the capacity building of the new directorates, namely Human Resources, Procurement, Financial Management, etc. among others and strengthening the Office of the Chief Registrar and the Technical Secretariat for the Judicial Service Commission. (b) Case Management- The Case Management sub-component will build on the IT work undertaken under the Financial Legal Technical Assistance Project and will: (a) scale up the automating of recording of court proceedings and automate registries and digitize court files, (b) establish case tracking and management processes to speed trials and reduce backlogs; this will include automating and rationalizing procedures; and (c) introducing court mandated ADR in order to speed up dispute resolution; and (d) any other mechanisms for reducing the backlog of cases including recruitment of court assizes. The Project will work with the Judiciary to establish the status of the work it undertook to generate data on the backlog of cases and build on the work undertaken to date under the FLSTAP to address the backlog,
B. Judicial Training/Staff Development This component will strengthen the capacity of the Judicial Training Institute (JTI) by financing agreed activities under the JTI Strategic Plan. It will provide a structure for defining the critical competencies of judicial officers and for their on-going training toward those competencies. The component will assist the Judicial Services Commission to: (i) assess and carry out continuous assessments of the competencies for the Judiciary; (ii) conduct and update previous assessments of the training needs of the different categories of personnel within the Judiciary, e. g. paralegal staff, court administrators, magistrates and judges; (iii) review the progress to date on the performance of the Judicial Training Institute and identify areas for strengthening its capacity to deliver timely and relevant training to improve the capacity of the judicial officers; (iv) develop and implement relevant training; and (v) purchase equipment and software to enhance its performance. The modalities of conducting judicial training will be reviewed with the Judicial Service Commission, and will include the possibility of outsourcing training services or developing partnerships with universities and law schools. In order to strengthen the technical capacity for research, interpretation and analysis by judges and magistrates, the Project will also design and implement a program for judicial clerks to work closely with the judiciary, court clerks and other researchers. This component will be implemented by the Judicial Training Institute.
C. Court Infrastructure This component will on the basis of agreed criteria for the selection of sites for courts construction and rehabilitation, assist the judiciary in constructing new courts and rehabilitating existing ones. It will also finance the supply and installation of the necessary court IT to promote expedient delivery of services.
D. Project Management This component will finance the project management aspects of the project including the PIU staff and the Independent Fiduciary Agent. It will also finance the carrying out public opinion and court users surveys for progress monitoring
III. Objectives and Scope of the ESMF and RPF
7. The JPIP will trigger two of the World Bank’s 10 Safeguard Policies namely: a. Environmental Assessment (OP/BP 4.01): Investments may need Environmental Assessments (EA) and/or Environmental Management Plans (EMPs) before approval. The principle objective of OP/BP 4.01 is to ensure that World Bank-financed projects are environmentally sound and sustainable and that decision-making is improved through appropriate analysis of actions and of their likely environmental impacts. The policy is triggered if a project is likely to have potential (adverse) environmental risks and impacts in its area of influence. OP 4.01 covers impacts on the natural environment (air, water and land); human health and safety; physical cultural resources; and transboundary and global environment; and b. Involuntary Resettlement (OP/BP 4.12): – Involuntary land acquisition or restriction of access to resources will need to be managed through a Resettlement Policy Framework. The application of this policy will depend on how land will be acquired for construction of the courts. . Critical to the Project, the policy covers not only physical relocation, but any loss of land or other assets resulting in: (i) relocation or loss of shelter; (ii) loss of assets or access to assets; and (iii) loss of income sources or means of livelihood, whether or not the affected people must move to another location.
IV. Scope of Assignment
The key tasks of the consultant will be to review the ERM reports and remove the relevant information for incorporation in the proposed frameworks for the ESMF and RPF according to the outline provided to the consultant. The consultant will organize the information to take into accounts the requirements and main task which will be:
(a) on the ESMF to formulate an appropriate Environmental and Social Management Framework which is: (i) consistent with all relevant Government of Kenya legislative, regulatory and administrative regime (e.g. pollution control, occupational health, environmental management, land acquisition and use, protection of cultural heritage) that the Project will operate within, with a focus on requirements that will apply to the planning, approval and implementation of projects/activities; and (ii) consistent with relevant World Bank Operational and other policies (such as World Bank OP/BP 4.01). See Annex B for a sample toolkit for preparation of an ESMF.
(b) on the RPF to: (i) establish the resettlement and compensation principles and implementation arrangements; (ii) describe the legal and institutional framework underlying approaches for resettlement, compensation and rehabilitation; (iii) define the eligibility criteria for identification of project affected persons (PAPs) and entitlements; (iv) describe the consultation procedures and participatory approaches involving PAPs and other key stakeholders; and provide procedures for filing grievances and resolving disputes. The Resettlement Policy Framework to be developed under this project will accord with Kenya legislation and regulations and with World Bank Operational Policy 4.12, on Involuntary Resettlement. The outline for the RPF will follow that provided in OP 4.12, Annex A (see Annex 2 of the attached Annex B).
V. Outputs and Timeline
The following outputs are expected:
(a) An Inception Report confirming the consultants approach to the assignment and the availability of agreed experts for the duration of the assignment -- within one week of signing of the contract). (b) An environmental, social and resettlement due diligence report covering tasks within one month of signing of the contract. (c) An ESMF which addresses the requirements for the proposed JPIP – within 1 month of signing of the contract. (d) A Resettlement Framework which addresses the requirements for the proposed JPIP – within 1month of signing of the contract. (e) The assignment is expected to be completed within 1 month.
VI. Team and level of effort
8. The consultant will be responsible for the total assignment but may engage sub- contracted resources to carry out some of the tasks, as appropriate. It is expected that the following competencies and resources will be required. The consultant may however propose a different resource utilization to maximize team effectiveness, with appropriate rationale. 9. The work must be undertaken by a team led by a Senior Environment and Social Sector Specialist with the following background:
Masters degree or higher in a relevant discipline; and At least 10 years working experience in a relevant field especially with: (a) projects covered by the National Environmental Management Act and EIA guidelines and procedures of the Republic of Kenya; (b) World Bank-supported projects in the area of environmental / social assessment and review and approval procedures for development projects in Kenya; and (c) previous working / consulting experience in Kenya and/or East Africa.
11. The other team member must have skills and experience in resettlement related work ; preparation and/or overseeing implementation of environment and social safeguards and/or resettlement; familiar with the operations in Kenya; and experience working on infrastructure as well as project implementation and management. VII. Reporting and Input from the Client 12 The Consultant will report to a designated official within the Judiciary, who will provide an introductory letter to the Consultant for the assignment, and during the assignment respond to any questions submitted in writing. The Consultant will make all travel, meeting, and other necessary arrangements for the assignment.
VIII. Payment Schedule
13 The payment schedule is as follows:
10% on submission of Inception Report (within one week of signing of contract). 40% on submission of ESMF and RPF Due Diligence Report (within 2 weeks of signing of contract). 40% on submission of Draft ESMF and the Draft RPF (within 3 weeks of signing of contract). 10% on submission of Final ESMF and Final RPF . Annex 2: Generic ESIA ToR 1. Provide a full description of the nature of the project with respect to the name of the proponent, the postal and physical address, the spatial location of the potential site for the project, the estimated cost of the project, and size of land for the project site, including water reticulation, waste disposal and access roads.
2. Provide a site-specific map of the area (Scale 1:50,000) showing the proposed project site and existing establishments in the area and surrounding areas. A site plan for the project should also be provided.
3. Examine the existing conditions of the proposed site identifying and analysing:
Geological and soil conditions of the area; The scope of vegetative resources of the area; Existing land uses within the area and within adjacent villages; Ecologically important or sensitive habitats and resources e.g. water resources, biodiversity elements; and Suitability of the site for the proposed development.
4. Describe the major activities to be undertaken for the construction and operation of infrastructure services. This should include the size and type of infrastructure, the type of equipment to be used, the method and duration of construction, nature and quantity of wastes to be generated, the facilities for appropriate disposal and management of waste, number of people to be employed.
5. State the reasons for selecting the proposed site, the consequences of not undertaking the project at the proposed site and any alternative sites considered.
6. Predict the major short and long-term environmental impacts of the project. Examine both the positive and negative impacts as well as impacts on the biophysical, social, economic and cultural components of the environment.
The potential impacts must include those related to: project location (e.g. resettlement of people, loss of forest land, loss of agricultural land, impact on flora and fauna); construction works (e.g. soil erosion, disposal of construction spoils, drainage and access roads) project operation (e.g. solid waste disposal, sewage disposal)
7. Prescribe measures to eliminate, reduce or mitigate the negative effects identified and the measures to enhance the positive effects in 6.
8. Propose an Environmental Management Plan (EMP) in tabular form by which all of the mitigation/enhancement measures prescribed will be carried out, specifying who will be responsible for implementing these measures and the schedule for implementation, cost of implementing the measures and the source of funding. An environmental monitoring plan should also be prepared including the indicators to be used for monitoring the impacts and responsible persons and institutions that will conduct the monitoring.
9. Undertake public consultations to ensure that all interested and affected parties are involved in the EIA process and incorporate their views into the EIA. Evidence of consultation should be provided in the report.
10. Provide an account of all statutory and regulatory licenses and approvals obtained for the project to ensure that they are in line with sound environmental management practices and are in compliance with all relevant existing legislation. Reference should be made, but not limited to the Environment Management Act and other relevant and other relevant legislation. Annex 3: Generic ESIA Table of Contents 1. An executive Summary; A concise description of the proposed project, environmental settings, highlighting key findings and potential sources of environmental impact, giving recommendations on mitigation measures and a monitoring plan shall be provided here. 2. Introduction. The Introduction will highlight contents of the report including any special techniques or methods used for identifying issues, assessing impacts and designing mitigation measures. 3. Policy, Legal and Administrative/Institutional Framework: This shall identify and give a detailed description of all the existing legislation, regulations and policy governing project implementation. These shall include policy governing solid and liquid waste management, Air and Noise Pollution, Environmental, quality Health and Safety Issues among others. The level of compliance to the applicable laws and corporate environment, safety and health policy will be clearly stated.
4. Description of Project This chapter shall describe the proposed project giving details of the project activities covering construction and operation. It shall also include a brief history of the project and identify project sponsors and technology to be used for the project.
5. Study Methodology: Shall elaborate the approach and methodology adopted by the Consultant to carry out the ESIA Study.
6. Project Baseline Data: This chapter shall describe the environmental condition (Baseline) in and surrounding the project. Environmental features to be described shall include climate and air quality, landforms (geology and geomorphology), hydrology, water quality and groundwater resources, ecology, flora and fauna, existing land and water resources uses, socio-economic conditions and archaeology, history and cultural resources of national value. Project information gaps in knowledge and uncertainties.
7. Project Potential Environmental and Social Impacts: This chapter shall identify all potential environmental and social impacts of the project giving comparison of impacts associated with alternative sites or processes as may be applicable. The chapter shall identify significant impacts, distinguishing between beneficial and adverse impacts, direct and indirect, and short term and long term impacts. Impact ranking shall be done and reported in this chapter.
8. Project Alternatives: This chapter shall report on the evaluation results of all project alternative options including the “no project’ alternative. This shall cover alternative to designs, alternative to routing and alternative to construction processes taking into consideration the local conditions.
9. Project Environmental Management and Mitigation Plan: In this chapter, an outline of environmental management & mitigation plan including plans for on-going site management to ensure reduction of impacts and cost effectiveness throughout the lifetime of the project shall be elaborated. Estimation of costs for environmental management and identification of institutional and training requirements for the project shall also be reported here. 10. Impact mitigation measures and Project Monitoring Plan: This chapter shall include proposals of feasible mitigation measures and suggest a detailed and adequate environmental and social management plan and transmission Line safety and environmental parameters in and around the project site including impacts and benefits of the project. Report on the rate and concentration of waste generation at the project site and occupational health & safety conditions and effectiveness of the mitigation measures shall be made. The parameters to be monitored during construction and operation phases of the project cycle shall be listed including timelines, frequency and reporting.
11. Economic and Social Analysis: This chapter shall provide an economic and social analysis of the project covering pre-project, project construction and operation phases. All the project impacts (cost and benefit) to the local area population in terms of disruption and also livelihood improvement shall be listed and elaborated on. A cost and benefit analysis shall be determined and listed in this chapter.
12. Public Consultation and Disclosure Process: This chapter shall provide a summary of steps taken to consult with the local population, affected and interested parties and government agencies; where key impacts (losses and benefits including concerns of each party shall be discussed; an explanation shall be given on how the losses and concerns are being addressed in the ESIA Study. The ESIA Report shall include copies of the Attendance Registers, Minutes of the Public Consultation Meetings and Stakeholder Questionnaires.
13. Major Conclusions and Recommendations: The major conclusions and recommendations arising from the ESIA Study shall be listed and elaborated on in this chapter. This is intended to ensure that the project positive and negative impacts are identified and listed in the report, the positive impacts are enhanced and mitigation measures for all the negative impacts clearly elaborated on. This will allow for the project to be implemented with minimal impacts to both local population and environment.
14. References: All sources of information shall be documented including personal communications, with names and proper locations under references.
15. Appendices: All the collected data, information and documents supporting the ESIA Study that cannot be put in the main ESIA report chapters shall be annexed in the appendices. This shall include the following:
NEMA Approved ToR NEMA EIA Certificates and License Structured ESIA Survey Questionnaires Environmental Impact Survey Matrix Charts Minutes of Public Participation Meetings List of Persons Contacted during the ESIA Study Selected Photographic Plates Annex 4: Brief Field Visit Report Date of Visit Thursday July 5, 2012 Officers Met Ms. Virginia Karanja – Resident Magistrate (Contact - 0728 359399) Mr. Moses Obonyo - Executive Officer (Contact - 0723 063092) Law Courts Status The Law Courts are temporarily housed at the DC office. The courts are served by 2 magistrates; Senior Principal Magistrate and Senior Principal Magistrate and additional 13 paralegal staff. Currently the court is assigned to serve a population from Bomet and Chepalungu District which is estimated to be 397,104 (Bomet District pop as per 2009 population census) Facilities available within the restricted area are: Chamber for the Senior Principal Magistrate Court Room for the Senior Principal Magistrate Criminal/ Traffic and Inquest Registry Civil Registry Cash Office Executive officer Office Secretary’s / Typist Office Senior Principal Magistrate Chamber / Court Room Makeshift Holding Cell Observations Due to the fact that the facilities are being provided by the Provincial Administration, they are much squeezed. They are soon being required to vacate and provide room for the County Officers. New Site Land already available at a different location approx. 400m away (South West) from the Provincial Administration where the current courts are housed. Land provided by Municipal Council of Bomet. Land Size is 0.8 Ha. Part Development Plan (PDP) availed. To be used for construction of High Court for Bomet County and Magistrate Courts Land is currently vacant and fenced by poles and barbed wire Title Deed processing is underway and should be ready by end of 2012
Field Visits – JPIP Project - ESMF and RPF Study
Site: Bomet Law Courts
Site: Tawa Law Courts
Date of Visit Friday July 6, 2012 Officers Met Richard Mbaka, Assistant Executive Officer (Contact - 0726 697421) Law Courts This law Court is in Makueni County. It serves Mbooni West and Mbooni East Districts. Status The Law Court Buildings (which are structural condemned) are on their own compound. The court building is decent due to continued and proper maintenance. The courts are served by Senior Resident Magistrate and a Resident Magistrate has been posted to the court and is reporting in a week’s time and additional 11 paralegal staff. The land that has been allocated to the Judiciary was initially allocated to Tawa Sub District Hospital but is now being transferred to the Judiciary. It is currently held in trust by the Makueni County Council Water is a major challenge. There is piped water but the taps are generally dry and have to make local arrangement to have water for office use; Facilities available within the restricted area are: Chamber for the Senior Resident Magistrate Court Room for the Senior Resident Magistrate Criminal/ Traffic and Inquest Registry Civil Registry Cash Office Assistant Executive Officer Office Secretary’s /Reception Office Observations There is no holding cell making it difficult and risky to hard criminals before they are produced in court. New Courts To be constructed in the compound of the existing courts Land Size is slightly over 1 acre. Proposed Space is currently open with plants like Pawpaws belonging to the Courts
Site: Kajiado Law Courts
Date of Visit Tuesday July 10, 2012 Officers Met Patrick A. Olengo, Principal Magistrate (Contact - 0722 571707) John Odhiambo, Chief Executive Officer (Contact - 0721 586844) Law Courts The Law Courts are located on a piece of land allocated to Judiciary. The court building Status is old, built before independence. There two building structures. The courts are served by a Principal Magistrate, Senior Resident Magistrate and a Resident Magistrate. The Law Courts have an additional 13 paralegal staff. A small part of the land belonging to Kajiado Law Courts has been hived off and is being occupied by other GoK offices namely NSIS and Probation. The land has been under Kajiado County Council. Kajiado Law Courts wrote to the Registrar in 2011 requesting for the Kajiado Law Court Land to be gazetted in preparation for issuance of Land Title. Water is a major challenge. There is no piped water hence the court has to make local arrangement to have water for office use; Facilities available within the court compound are: Main Court Building that houses the following - 1 Court Room - 3 Chambers for the Principal, Magistrate, Senior Resident Magistrate and Resident Magistrate - Registry - Accounts Office - Holding Cell - Toilet Facility for Principal Magistrate Small Building that houses Offices for the Court Clerk and Chief Executive Officer Pit Latrine with 4 Units (One Toilet is used by Staff and one is used by convicts and the general Public) The other two units are used as store for exhibits) Observations Two chambers are sometimes used as Courts The Kajiado Law Court compound is not fenced exposing the facilities to theft. There is only one Security Officer posted to Kajiado New Courts Proposed prefab be constructed within the existing compound Land Size is approximately 1.5acres. Part Development Plan (PDP) availed. Space for the proposed prefab building is currently vacant and used as parking area To provide adequate space for the proposed prefab building, the small office building that houses the Chief Executive Officer and Court Clerk may need to be demolished.
Table: Indicative Lists of Courts to be Newly Constructed and Rehabilitated (there may be additions and/or deletions to this list).
Court Type County New Construction
Kakamega High Court Kakamega
Lunga Lunga Magistrate Mombasa
Nanyuki High Court Laikipia
Ngong/Rongai High Court Kajiado
Garissa High Court Garissa
Kapsowar High court/ Elgeyo Marakwet Magistrate Kabete Children’s Court Kiambu
Bomet High Court Bomet
Nakuru High Court Nakuru
Makindu Magistrate Makueni
Nyando Magistrate Kisumu
Kisii High Court Kisii
Machakos High Court Machakos
Molo Magistrate Nakuru
Homabay High Court Homa Bay
Nkubu Magistrate Meru
Karaba Magistrate Embu Othaya Magistrate Nyeri
Mukurweini Magistrate Nyeri
Tamu Court Magistrate Kisumu
Bondo Magistrate Kisumu
Kasarani Magistrate Nairobi
Rehabilitation
Court Type County
1. Kitui Magistrate Kitui
2. Tawa Magistrate Makueni
3. Kigumo Magistrate Muranga
4. Hola Magistrate Tana River
5. Garsen Magistrate Tana River
6. Kapsowar Magistrate Elgeyo Marakwet
7. Kabete Children's Court Magistrate Kiambu
8. Bomet Magistrate Bomet
9. Mpeketoni Magistrate Lamu
10. Marimanti Magistrate Tharaka Nithi
11. Eldama Magistrate Nakuru
12. Kabarnet Magistrate Baringo
13. Kasarani Magistrate Nairobi
14. Kapswokony Magistrate Bungoma
16. Lokichar Magistrate Turkana
17. Budalangi Magistrate Busia
18. Lunga Lunga Magistrate Mombasa 19. Archer Post Magistrate Samburu
20. Kisii Magistrate Kisii
21. Kibera Magistrate Nairobi
22. Vihiga Magistrate Vihiga Annex 5: EIA Stakeholder Questionnaire ENVIRONMENT IMPACT ASSESSMENT (EIA) QUESTIONNAIRE
To be filled by Neighbours, Surrounding Community, Stakeholders and Communities likely to be affected by the Proposed Facility
Name of Proposed Facility/Project: ______
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Location of Facility/Project: ______
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Name of Neighbour/Stakeholder: ______
ID No. of Neighbour/Stakeholder: ______
Signature of Neighbour/Stakeholder______Date: ______
1. Has the proposed Facility/Project been mentioned to you before?
______
2. Should the development of the Facility/Project be allowed to continue or be stopped?
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3. What do you like about the proposed Facility/Project?
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4. What do you dislike about the proposed Facility/Project? Please explain
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______5. Do you think the proposed Facility/Project will affect the People in any way? If so, which People? ______
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6. Do you think the proposed Facility/Project will affect the Environment in any way? If so, which Part of the Environment? ______
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7. What improvements should the Facility/Project developers include to reduce effect to the environment, if the development is to continue? ______
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8. Any other relevant comments related to the proposed Facility/Project.
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End - Thanks Annex 6: Court Facility Screening Checklist Project Area Name: …………………………………………………………………………….
Project Area Location: …………………………………………………………………………
Community Representative and Address: ……………………………………………….
Extension Team Representative and Address: …………………………………………
Site Selection: ………………………………………………………………………………..
When considering the location of a project site, rate the sensitivity of the proposed site in the following table according to the given criteria. Higher ratings do not necessarily mean that a site is unsuitable. They do indicate a real risk of causing undesirable adverse environmental and social effects, and that more substantial environmental and/or social planning may be required to adequately avoid, mitigate or manage potential effects.
Site Sensitivity Issues Rating Low Medium High Water Water flows exceed Medium intensity of Intensive water quality and any existing water use; multiple use; multiple water water demand; low water users; water users; potential for resource intensity of water quality issues are conflicts is high; availability use; potential water important water quality issues and use use conflicts are important expected to be low; no potential water quality issues Natural Flat terrain; no Medium slopes; some Mountainous hazards potential erosion potential; terrain; steep vulnerability, stability/erosion medium risks from slopes; unstable floods, soil problems; no volcanic/seismic/ flood/ soils; high erosion stability/ known hurricanes potential; volcanic, erosion volcanic/seismic/ seismic or flood flood risks risks Cultural No known or Suspected cultural Known heritage property suspected cultural heritage sites; known sites in project area heritage sites heritage sites in broader area of influence Involuntary Low population Medium population High population resettlement density; dispersed density; mixed density; major population; legal ownership and land towns and villages; tenure is well- tenure; well-defined low-income families defined; well- water rights and/or illegal defined water rights ownership of land; communal properties; unclear water rights Completeness of Project Application:
Does the Project application document contain, as appropriate, the following information?
Yes No N/A Description of the proposed project and where it is located Reasons for proposing the project The estimated cost of construction and operation Information about how the site was chosen, and what alternatives were considered A map or drawing showing the location and boundary of the project including any land required temporarily during construction The plan for any physical works (e.g. layout, buildings, other structures, construction materials) Any new access arrangements or changes to existing road layouts Any land that needs to be acquired, as well as who owns it, lives on it or has rights to use it A work program for construction, operation and decommissioning the physical works, as well as any site restoration needed afterwards Construction methods Resources used in construction and operation (e.g. materials, water, energy) Information about measures included in the Project plan to avoid or minimize adverse environmental and social impacts Details of any permits required for the project Yes No ESMF Guidance A Type of activity – Will the Project Area: 1 Support animal husbandry or processing? 2 Involve the construction or rehabilitation of any small dams, weirs or reservoirs? 3 Support irrigation schemes? 4 Support rural water supply and sanitation schemes? 5 Build or rehabilitate any rural roads? 6 Involve solid waste management? 7 Involve community forestry? 8 Involve small-scale aquaculture? 9 Involve leather processing? 10 Involve food processing? 11 Involve community healthcare facilities and the management of healthcare waste? 12 Build or rehabilitate any structures or buildings? 13 Support agricultural activities? 14 Be located in or near an area where there is an important historical, archaeological or cultural heritage site? 15 Be located within or adjacent to any areas that are or may be protected by government (e.g. national park, national reserve, world heritage site) or local tradition, or that might be a natural habitat? 16 Depend on water supply from an existing dam, weir, or other water diversion structure? If the answer to any of questions 1-16 is “Yes”, please use the indicated Resource Sheets or sections(s) of the ESMF for guidance on how to avoid or minimize typical impacts and risks B Environment – Will the Project Area: 17 Risk causing the contamination of drinking water? 18 Cause poor water drainage and increase the risk of water-related diseases such as malaria or bilharzia? 19 Harvest or exploit a significant amount of natural resources such as trees, fuel wood or water? 20 Be located within or nearby environmentally sensitive areas (e.g. intact natural forests, mangroves, wetlands) or threatened species? 21 Create a risk of increased soil degradation or erosion? 22 Create a risk of increasing soil salinity? 23 Produce, or increase the production of, solid or liquid wastes (e.g. water, medical, and domestic or construction wastes)? 24 Affect the quantity or quality of surface waters (e.g. rivers, streams, wetlands), or groundwater (e.g. wells)? 25 Result in the production of solid or liquid waste, or result in an increase in waste production, during construction or operation? Yes No ESMF Guidance If the answer to any of questions 17-25 is “Yes”, please include an Environmental Management Plan (EMP) with the project application. C Land acquisition and access to resources – Will the Project Area: 26 Require that land (public or private) be acquired (temporarily or permanently) for its development? 27 Use land that is currently occupied or regularly used for productive purposes (e.g. gardening, farming, pasture, fishing locations, forests) 28 Displace individuals, families or businesses? 29 Result in the temporary or permanent loss of crops, fruit trees or household infrastructure such as granaries, outside toilets and kitchens? 30 Result in the involuntary restriction of access by people to legally designated parks and protected areas? It the answer to any of the questions 26-29 is “Yes”, please consult the ESMF and, if needed, prepare a Resettlement Action Plan (RAP)
CERTIFICATION
We certify that we have thoroughly examined all the potential adverse effects of this Project Area. To the best of our knowledge, the Project Area plan as described in the application and associated planning reports (e.g. EMP, RAP, PMP), if any, will be adequate to avoid or minimize all adverse environmental and social impacts.
Community representative (signature): …………………………………….……………
Extension team representative (signature): ………………………………………………
Date: …………………………………………………………………………………………..
10.1.1.1 FOR OFFICIAL USE ONLY
Desk Appraisal by Review Authority:
The project can be considered for approval. The application is complete, all significant environmental and social issues are resolved, and no further project planning is required.
A field appraisal is required.
Note: A field appraisal must be carried out if the project area: Needs to acquire land, or an individual or community’s access to land or available resources is restricted or lost, or any individual or family is displaced May restrict the use of resources in a park or protected area by people living inside or outside of it May affect a protected area or a critical natural habitat May encroach onto an important natural habitat, or have an impact on ecologically sensitive ecosystems (e.g. rivers, streams, wetlands) May adversely affect or benefit an indigenous people Involves or introduces the use of pesticides Involves, or results in: a) diversion or use of surface waters; b) construction or rehabilitation of latrines, septic or sewage systems; c) production of waste (e.g. slaughterhouse waste, medical waste); d) new or rebuilt irrigation or drainage systems; or e) small dams, weirs, reservoirs or water points.
The following issues need to be clarified at the project area site: ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………………………………
A Field Appraisal report will be completed and added to the project area file.
Name of desk appraisal officer (print): …………………………….………………………………
Signature: …………………………………………… Date: ……………………………… Annex 7: World Bank Safeguard Policies Nr Policy Objective Trigger For the Policy
1. OP/BP 4.01 The objective of this policy is to ensure that Bank Depending on the project, and nature of financed projects are environmentally sound and impacts a range of instruments can be Environmental sustainable, and that decision-making is improved used: Environmental Impact Assessment Assessment through appropriate analysis of actions and of their likely (EIA), Environmental Audit (EA), Hazard environmental impacts. This policy is triggered if a project or Risk Assessment and Environmental is likely to have potential (adverse) environmental risks Management Plan (EMP). When a and impacts on its area of influence. OP 4.01 covers project is likely to have sectoral or impacts on the natural environment (air, water and land); regional impacts, sectoral or regional EA human health and safety; physical cultural resources; and is required. The Borrower is responsible trans-boundary and global environment concerns. for carrying out the EA. 2. OP/BP 4.04 This policy recognizes that the conservation of natural This policy is triggered by any project habitats is essential to safeguard their unique biodiversity (including any project area under a Natural Habitats and to maintain environmental services and products for sector investment or financial human society and for long-term sustainable intermediary) with the potential to cause development. The Bank therefore supports the protection, significant conversion (loss) or management, and restoration of natural habitats in its degradation of natural habitats, whether project financing, as well as policy dialogue and economic directly (through construction) or and sector work. The Bank supports, and expects indirectly (through human activities borrowers to apply, a precautionary approach to natural induced by the project). resource management to ensure opportunities for environmentally sustainable development. Natural habitats are land and water areas where most of the original native plant and animal species are still present. Natural habitats comprise many types of terrestrial, freshwater, coastal, and marine ecosystems. They include areas lightly modified by human activities, but retaining their ecological functions and most native species. 3. OP/BP 4.36 The objective of this policy is to assist borrowers to This policy is triggered whenever any harness the potential of forests to reduce poverty in a Bank-financed investment project (i) has Forests sustainable manner, integrate forests effectively into the potential to have impacts on the sustainable economic development and protect the vital health and quality of forests or the rights local and global environmental services and values of and welfare of people and their level of forests. Where forest restoration and plantation dependence upon or interaction with development are necessary to meet these objectives, the forests; or (ii) aims to bring about Bank assists borrowers with forest restoration activities changes in the management, protection that maintain or enhance biodiversity and ecosystem or utilization of natural forests or functionality. The Bank assists borrowers with the plantations. establishment of environmentally appropriate, socially beneficial and economically viable forest plantations to help meet growing demands for forest goods and services. 4. OP 4.09 Pest The objective of this policy is to (i) promote the use of The policy is triggered if : (i) procurement biological or environmental control and reduce reliance on of pesticides or pesticide application Management synthetic chemical pesticides; and (ii) strengthen the equipment is envisaged (either directly capacity of the country’s regulatory framework and through the project, or indirectly through institutions to promote and support safe, effective and onlending, co-financing, or government environmentally sound pest management. More counterpart funding); (ii) the project may specifically, the policy aims to (a) Ascertain that pest affect pest management in a way that management activities in Bank-financed operations are harm could be done, even though the based on integrated approaches and seek to reduce project is not envisaged to procure reliance on synthetic chemical pesticides (Integrated pesticides. This includes projects that Pest Management (IPM) in agricultural projects and may (i) lead to substantially increased Integrated Vector Management (IVM) in public health pesticide use and subsequent increase in projects. (b) Ensure that health and environmental health and environmental risk; (ii) hazards associated with pest management, especially the maintain or expand present pest use of esticides are minimized and can be properly management practices that are managed by the user. (c) As necessary, support policy unsustainable, not based on an IPM reform and institutional capacity evelopment to (i) approach, and/or pose significant health enhance implementation of IPM-based pest management or environmental risks. and (ii) regulate and monitor the distribution and use of esticides.
5. OP/BP 4.11 The objective of this policy is to assist countries to avoid This policy applies to all projects Physical Cultural or mitigate adverse impacts of development projects on requiring a Category A or B Resources physical cultural resources. For purposes of this policy, Environmental Assessment under OP “physical cultural resources” are defined as movable or 4.01, project located in, or in the vicinity immovable objects, sites, structures, groups of structures, of, recognized cultural heritage sites, and natural features and landscapes that have archaeological, projects designed to support the paleontological, historical, architectural, religious, management or conservation of physical Nr Policy Objective Trigger For the Policy aesthetic, or other cultural significance. Physical cultural cultural resources. resources may be located in urban or rural settings, and may be above ground, underground, or underwater. The cultural interest may be at the local, provincial or national level, or within the international community. 6. OP 7.50 Projects The objective of this policy is to ensure that Bank This policy is triggered if (a) any river, financed projects affecting international waterways would canal, lake or similar body of water that in International not affect: (i) relations between the Bank and its forms a boundary between, or any river Waters borrowers and between states (whether members of the or body of surface water that flows Bank or not); and (ii) the efficient utilization and protection through two or more states, whether of international waterways. The policy applies to the Bank members or not; (b) any tributary or following types of projects other body of surface water that is a (a) Hydroelectric, irrigation, flood control, navigation, component of any waterway described drainage, water and sewerage, industrial and similar under (a); and (c) any bay, gulf strait, or projects that involve the use or potential pollution of channel bounded by two or more states, international waterways; and (b) Detailed design and or if within one state recognized as a engineering studies of projects under (a) above, include necessary channel of communication those carried out by the Bank as executing agency or in between the open sea and other states, any other capacity. and any river flowing into such waters. 7. OP/BP 4.12 The objective of this policy is to (i) avoid or minimize This policy covers not only physical involuntary resettlement where feasible, exploring all relocation, but any loss of land or other Involuntary viable alternative project designs; (ii) assist displaced assets resulting in: (i) relocation or loss Resettlement persons in improving their former living standards, income of shelter; (ii) loss of assets or access to earning capacity, and production levels, or at least in assets; (iii) loss of income sources or restoring them; (iii) encourage community participation in means of livelihood, whether or not the planning and implementing resettlement; and (iv) provide affected people must move to another assistance to affected people regardless of the legality of location. This policy also applies to the land tenure. involuntary restriction of access to legally designated parks and protected areas resulting in adverse impacts on the livelihoods of the displaced persons. 8. OP/BP 4.37 The objectives of this policy are as follows: For new This policy is triggered when the Bank dams, to ensure that experienced and competent finances: (i) a project involving Safety of Dams professionals design and supervise construction; the construction of a large dam (15 m or borrower adopts and implements dam safety measures higher) or a high hazard dam; and (ii) a for the dam and associated works. For existing dams, to project which is dependent on an existing ensure that any dam that can influence the performance dam. For small dams, generic dam safety of the project is identified, a dam safety assessment is measures designed by qualified carried out, and necessary additional dam safety engineers are usually adequate. measures and remedial work are implemented. 9. OP/BP 4.10 The objective of this policy is to (i) ensure that the The policy is triggered when the project Indigenous development process fosters full respect for the dignity, affects the indigenous peoples (with human rights, and cultural uniqueness of indigenous characteristics described in OP 4.10 para Peoples peoples; (ii) ensure that adverse effects during the 4) in the project area. development process are avoided, or if not feasible, ensure that these are minimized, mitigated or compensated; and (iii) ensure that indigenous peoples receive culturally appropriate and gender and inter- generationally inclusive social and economic benefits. 10. OP 7.60 Projects The objective of this policy is to ensure that projects in This policy is triggered if the proposed in Disputed disputed areas are dealt with at the earliest possible project will be in a “disputed area”. Areas stage: (a) so as not to affect relations between the Bank Questions to be answered include: Is the and its member countries; (b) so as not to affect relations borrower involved in any disputes over between the borrower and neighboring countries; and (c) an area with any of its neighbors. Is the so as not to prejudice the position of either the Bank or Project situated in a disputed area? the countries concerned. Could any component financed or likely to be financed as part of the project be situated in a disputed area? Annex 8: Governing Legislation and Authority
Governing Legislation and Authority
1.1 The Environmental Management and Co-ordination Act, 1999
The main objective of the EMCA is to provide for the establishment of an appropriate legal and institutional framework for the management of the environment in Kenya. The Act further aims at improving the legal and administrative co-ordination of the diverse sectoral initiatives in the field of environment so as to enhance the national capacity for its effective management. In addition, the Act harmonizes the 77 sector specific legislations touching on the environment in a manner designed to ensure greater protection of the environment in line with national objectives and the sustainable development goals enunciated in Agenda 21 of the Earth Summit held in Rio de Janeiro in 1992. The ultimate objective was to provide a framework for integrating environmental considerations into the country’s overall economic and social development.
1.2 Administration of the Act Two major institutions have been established for the purpose of the administration of the above act. They are the National Environmental Council and the National Environmental Management Authority.
1.3 The National Environmental Council (NEC) The Act established the National Environmental Council chaired by the Minister for Environmental Conservation with membership from all relevant ministries as well as a broad range of other interests. The functions of the Council are the formulation of the national policies, goals, and objectives and the determination of policies and priorities for environmental protection. The Council also promotes co-operation among all the players engaged in environmental protection programmes.
1.4 The National Environmental Management Authority (NEMA) The National Environment Management Authority (NEMA) was established under the Environmental Management and Coordination Act (EMCA) No. 8 of 1999, as the principal instrument of government in the implementation of all policies relating to the environment. The Authority became operational on 1st July 2002 following the merger of three government departments, namely: the National Environment Secretariat (NES), the Permanent Presidential Commission on Soil Conservation and Afforestation (PPCSCA), and the Department of Resource Surveys and Remote Sensing (DRSRS). However, following government restructuring in March 2003, DRSRS reverted to its departmental status under the then Ministry of Environment and Natural Resources (MENR). There was a transition period characterized by the integration of previous departmental activities and appointment of the first Board of Management. Coordinating the various environmental management activities being undertaken by the lead agencies
1.5 Core functions of NEMA Some of the core functions of NEMA include: Promote the integration of environmental considerations into development policies, plans, programmes and projects, with a view to ensuring the proper management and rational utilization of environmental resources, on sustainable yield basis, for the improvement of the quality of human life in Kenya. To take stock of the natural resources in Kenya and their utilization and conservation. To establish and review land use guidelines. Examine land use patterns to determine their impact on the quality and quantity of natural resources. Advise the Government on legislative and other measures for the management of the environment or the implementation of relevant international conventions, treaties and agreements. Undertake and coordinate research, investigation and surveys, collect, collate and disseminate information on the findings of such research, investigations or surveys. Identify projects and programmes for which environmental audit or environmental monitoring must be conducted under this Act. Monitor and assess activities, including activities being carried out by relevant lead agencies, in order to ensure that the environment is not degraded by such activities. Management objectives must be adhered to and adequate early warning on impending environmental emergencies is given. Undertake, in cooperation with relevant lead agencies, programmes intended to enhance environmental education and public awareness, about the need for sound environmental management, as well as for enlisting public support and encouraging the effort made by other entities in that regard. Publish and disseminate manual codes or guidelines relating to environmental management and prevention or abatement of environmental degradation. Render advice and technical support, where possible, to entities engaged in natural resources management and environmental protection, so as to enable them to carry out their responsibilities satisfactorily . Prepare and issue an annual report on the State of Environment in Kenya and in this regard, may direct any lead agency to prepare and submit to it a report on the state of the sector of the environment under the administration of that lead agency.
1.6 Environmental Impact Assessment (EIA) .In reference to Section 58 of the Environment Management and Coordination Act (EMCA), NEMA (August 2003) released regulations to govern environmental protection.. These regulations include the following:
All new enterprises and projects must undergo environmental impact assessment and a an EIA Report submitted to the Authority for evaluation and issuance of EIA License
The Act further requires that any person being a proponent of a project shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced with, carried out, executed or conducted by another person shall undertake or cause to be undertaken at his own expense an environmental impact assessment study and prepare a report thereof for consideration by the Authority. Environmental Impact Assessment (EIA) and Environmental Audit (EA) studies must be undertaken by experts who are registered by the Authority National Environment Management Authority (NEMA).
The Environmental Management and Co-ordination Act makes it mandatory for any person being a proponent of a project, to submit a project report to the NEMA in a prescribed form. After perusing the proponent report, and the NEMA is satisfied that the proposed project is likely to have significant negative impacts on the environment, it will direct the proponent of the project to undertake at his or her own expense an environmental impact assessment study and prepare a report. NEMA shall publish such reports and invite comments thereon from the public before deciding to issue an environmental impact license Annex 9: Environmental Guidelines for Court Construction Contractors
Environmental Guidelines for Contractors
1. General Provisions and Precautions
The contractor engaged to construct court buildings shall take all necessary measures and precautions to ensure that all the works and associated operations on or off the work sites are carried out in accordance with statutory and regulatory environmental requirement of Kenya.
The Contractor shall implement all measures necessary to avoid undesirable adverse environmental and social impacts wherever possible, restore work sites to acceptable standards, and abide by any environmental performance Requirements specified in the EMP. The contractor shall avoid and prevent any nuisance or disturbance associated with execution of work under this project. In the event of any soil, debris or silt from the work sites being deposited on any adjacent land, the contractor shall immediately remove all such spoil debris or silt and restore the affected area to its original state, to the satisfaction of the local authority or any other responsible authorities where the court facility is being constructed. During construction, the Contractor shall adhere to the proposed activity implementation schedule and the monitoring plan/strategy in order to ensure that there is effective feedback of monitoring information to the project management. This will ensure that Impact management can be implemented properly and where necessary, allow for adaptation to changing and unforeseen conditions. Apart from the regular inspection of each site by the Project Engineer for adherence to the Contract conditions and specifications, Local Authorities or the Environmental Agency may carry out similar inspection during construction. In all cases, the Contractor shall comply with directives issued by such inspectors to ensure that there is adequate rehabilitation of the bio- physical environment and compensation for socio-economic disruption resulting from the construction activities.
2. Protection of Water and other Public Services
The Contractor shall ensure that no utilities or public services are disrupted as a result of execution of the courts construction works. In particular, the Contractor shall: Not discharge or deposit any waste or any material into any water bodies or any grounds except with the permission of the appropriate regulatory authorities. Not interfere with supply or abstraction of water for public or private use; and shall not pollute any water resources (including groundwater) as a result of execution of the works; Not disrupt power supply or telephone connections or any other public or private services including footpaths and walkways; Ensure that at all times during construction activities, all streams and drains within and adjacent to the work sites are kept safe and free from any wastes and any material arising from the works; Protect all water courses (including rivers, streams, ditches, canals, drains and lakes) from pollution, siltation, flooding or erosion as a result of the construction works. Take all responsibility to locate or to confirm the details and location of all utilities on or in the vicinity of the construction site. Assume responsibility for any damage and \or disruption caused by the firm or workers, directly or indirectly, arising from actions taken or a failure to take action to protect public or private utilities. The Contractor shall be responsible for full restoration of any damage caused and for restoration of disrupted services. Record and Report in a timely manner (within 24 hours) to the construction site engineer/manager any damage caused to water utilities or public services. Water and waste products shall be appropriately collected, removed and disposed of at an approved location and in a manner that will not cause pollution or nuisance in compliance with the Local Authority and the Environmental Agency regulations. Not dispose of any excavated soil or surplus materials on private land unless such authorized in writing by the plot or land owner(s).
3. Control of Air Pollution Open fires and burning of construction waste shall not be permitted at all; Blasting and quarrying shall be carried out using material and methods approved by the appropriate controlling authority and in a manner to avoid dust emission. Dust- generating operations shall not be permitted to affect any residential areas, pedestrians or any public or private property. Where dust generation cannot be avoided, appropriate measures such as water sprinkling and use of fencing shields or appropriate covering material shall be employed. All workers shall be provided with appropriate protective gear (nose masks) to guard against excessive dust or smoke emissions. All construction machinery and equipment including all vehicles shall be regularly maintained to ensure that no smoke or obnoxious gas is discharged to pollute the air and affect the public or property. Construction workers shall be instructed to minimise dust generation and emission of excess smoke through excessive raving of machinery or vehicle engines.
4. Excavation and Acquisition of Construction Material All excavation activities shall be carried out in approved places, using approved excavation procedures and practices. Topsoil from borrow pits will be saved and reused in re-vegetating the excavated areas to the satisfaction of the construction supervisor. All sites identified for excavation of construction materials shall be approved by the construction supervisor in liaison with the local authority and Ministry of Public Works in charge of the area. All excavated areas shall be restored to original or better state in full compliance of environmental regulations, standards and according to contract specifications. Restoration of the borrow pit areas and their surroundings, shall be done according to environmental regulations and to the satisfaction of the construction supervisor and local authority. Borrow pits shall be levelled and covered to facilitate natural drainage and scenic beauty, or to create functional water storage structures as appropriate. Borrow pit sites shall be re-vegetated using indigenous grass and plants.
5. Soil Erosion Prevention. The Contractor shall fence off construction sites, provide appropriate drainage and ram or compact soils where necessary to stabilize the soils and reduce erosion. All construction sites and sites used for mining materials shall be backfilled, levelled and re-planted with trees, vegetation and grass to restore them to the original state and to prevent soil erosion. As far as possible the contractor shall avoid or reduce construction activities and mining of construction material during the peak of rainy seasons. Minimize the long-term visual impact of the site area by creating landforms that are compatible with the adjacent landscape. Ensure reshaped land is formed so as to be inherently stable, adequately drained and suitable for the desired long-term land use that avoids ponding and allows for natural regeneration of vegetation.
6. Construction Site Waste Management Construction site shall be provided with solid and liquid waste receptacles for collecting generated solid waste at the site and used oils from vehicles and machines. All waste generated during construction shall be collected and disposed off at designated disposal sites in line with applicable local authority and environmental agency regulations. Used oil from maintenance shall be collected and disposed of appropriately at designated sites or be re-used or sold for re-use locally. Runoff to and from the site area shall be restricted by constructing diversion channels or holding structures such as drains to reduce flooding within the site area and also the potential of soil erosion and water pollution. No construction water containing spoils or site effluent, especially cement and oil, shall be allowed to flow into natural water drainage courses. Wash water from washing out of equipment shall not be discharged into water courses or drains.
7. Control of Social Impacts The Contractor shall coordinate with all the neighbouring land users and respect their rights to a clean and safe environment. The contractor shall undertake to restore to original condition or conditions acceptable to the owner within an agreed time. Construction site shall be maintained and cleaned up at all times and on completion of the works. Health and safety of workers shall be protected by providing basic emergency health and first aid facilities and awareness meetings aimed at the prevention of sexually transmitted diseases including AIDS. Awareness meetings shall be conducted as a part of all construction employee orientation programs. Employees shall be provided with condoms for protection from STIs. The Contractor shall employ the use of barricades and barrier tapes to control movement within the construction area and also provide safety. The Contractor shall not stockpile or store any construction materials; nor park construction plant or vehicles in walk ways, pedestal routes or driveways. Stockpiles of material shall be covered with tarpaulins or sprayed with water where these materials pose risks of dust to the public or people’s property. The Contractor will follow the requirements of the National Museum Act, which governs the preservation of cultural resources, prohibits movement of any asset that is archaeological or paleontological interest from the place where it has been discovered unless authorized by an exploration license, or by written permit from the Minister after consultation with the National Museum. The construction workers will be advised of this policy and legal requirements.
8. Noise Control and Regulation The Contractor shall take all necessary measures to ensure that the operation of all mechanical equipment and construction processes on and off the site shall not cause any unnecessary or excessive noise to the public. In addition, the Contractor shall operate noisy equipment within government working times unless with prior arrangement and permission from the employer Vehicle, plant and equipment exhaust systems shall be maintained in good working order, as recommended by the manufacturers, to ensure that no noise is unnecessarily generated to inconvenience the public. Construction works and operations shall be scheduled to coincide with periods when people would least be affected by noise, having due regard for avoiding any noise disturbances to local residents, hospitals, schools or any other public and private places in the work site neighbourhood. The contractor shall notify public (likely to be affected by the works) of impending construction operations and specify methods to receive and handle all public complaints.
9. Contractor’s Environment, Health and Safety Management Plan (EHS-MP) The Contractor shall prepare an EHS-MP to ensure the adequate management of the health, safety, environmental and social aspects of the construction works. The Contractor’s EHS-MP will serve two main purposes: - For the Contractor’s internal use to ensure that all measures are in place for adequate EHS management and as an operational manual for the Contractors Staff. - For the Judiciary to ensure that the Contractor is fully prepared for the adequate management of the EHS aspects of the project, and as a basis for monitoring of the Contractor’s EHS performance. The Contractor’s EHS-MP shall provide at least the following: - A description of procedures and methods for complying with the general environmental management conditions, and any specific conditions specified in the EMP; - A description of specific mitigation measures that will be implemented in order to eliminate or minimize adverse impacts; - A description of all planned monitoring activities and the reporting thereof; and - The internal organizational, management and reporting mechanisms put in place for to realise the same. The Contractor’s EHS-MP will be reviewed and approved by the Judiciary’s representative supervising the courts construction works before commencement. The review should demonstrate if the Contractor’s EHS-MP is adequate and covers all the identified impacts, and has defined appropriate measures to mitigate any potential impacts.
10. EHS Reporting The Contractor shall prepare regular (bi-weekly or monthly) progress reports to the Supervising Engineer on compliance with the general conditions, the project EMP if any, and the Contractor’s EHS-MP. It is expected that the Contractor’s reports will include information on: - EHS management actions/measures taken, including approvals sought from local or national authorities; - Problems encountered in relation to EHS aspects (incidents, including delays, cost consequences, etc. as a result thereof); - Lack of compliance with contract requirements on the part of the Contractor; - Changes of assumptions, conditions, measures, designs and actual works in relation to EHS aspects; and - Observations, concerns raised and/or decisions taken with regard to EHS management during site meetings. It is advisable that reporting of significant EHS incidents be done “as soon as practicable”. Such incident reporting shall therefore be done individually and as need arises. Also, it is advisable that the Contractor keeps his own records on health, safety and welfare of persons, and damage to property. It is advisable to include such records, as well as copies of incident reports, as appendixes to the regular reports. Example formats for an incident notification and detailed report are given below. Details of EHS performance will be reported to the Client through the Supervising Engineer reports to the Client.
11. Training of Contractor’s Personnel The Contractor shall provide sufficient training to his own personnel to ensure that they are all competent and aware of the relevant aspects of the general conditions, project EMP and the Contractor’s EHS-MP and are able to fulfil their expected roles and functions. Specific training should be provided to those employees that have particular responsibilities associated with the implementation of the EHS-MP. General topics should be: - EHS in general (working procedures); - Emergency procedures; - Social and cultural aspects (awareness raising on social issues) and - Reporting Procedures.
12. Environmental Monitoring The Contractor shall be responsible for monitoring all his activities and ensuring that all environmental requirements and conditions are met at all times. All records and reports on environmental monitoring carried out by the Contractor shall be kept and availed to the Project Engineer supervising the construction works.
Annex 10: EIA Process Chart
Proponent Submits Project Report
Review of Project Report PEC DEC Lead Agency
No Further EIA Studies EIA Study Report Study Proposal No Further EIA Studies Required License Issued RejectedStudy No Proposal License Required License Issued with Necessary RejectedIssued No License Conditionswith Necessary of Approval Issued Conditions of Approval
NEMA NEMA
DEC Lead Agency PECDEC Lead Agency PEC
PEC PEC Rejected Rejected
Review by NationalReview by National Project Approved Environmental Environmental LicenseProject IssuedApproved Tribunal License Issued Tribunal
Rejected No RejectedLicense No License
High Court High Court
EMP AND IMPLEMENTATION WITH MONITORING, EMPAUDITING AND IMPLEMENTATION AND CONDITIONS WITHOF APPROVAL MONITORING, AUDITING AND CONDITIONS OF APPROVAL