DANIEL OTUNGE: Make the Nairobi River a legal person to guarantee its future

No amount of cash for cleaning will guarantee the future of the Nairobi River unless it’s legally enabled to protect itself from humans sooner rather than later.

In 2017, New Zealand granted the Whanganui River legal personhood through an Act of Parliament. Since then, the river's fortunes have improved.

 As Kenya, led by President William Ruto, grapples with how to clean up and protect the Nairobi River, it would be wise to borrow a leaf from New Zealand.

To achieve this, Parliament should pass a law making the Nairobi River a legal person. With such legislation, the Nairobi River will have a separate legal identity, similar to that of a registered company or foundation. Granting the river a legal personality will give it the legal standing to sue and be sued. This will guarantee the river's ability to protect itself from encroachers and polluters.

What does legal personality mean for a natural resource like the Nairobi River? To begin with, the law defines a legal person as a human or non-human entity with legal rights and subject to obligations.  Thus, the Act will give the Nairobi River all the rights, powers, duties, and liabilities of a legal person.

However, since the River is not human and cannot act independently, the Act incorporating the Nairobi River as a legal person should establish its governing board of directors, which should be made up of relevant eminent persons, environmentalists, and the UN Environment.

The board should be charged with the solemn responsibility of ensuring that the river’s best interests are protected.

Like a company, the Nairobi River, through its Governing Board, will be able to own property, sign contracts, pay taxes on its income, hire staff, and sue and be sued in court.

The river can license recreational facilities to operate on its riparian land, charge a fee for vessels to transport goods and people, and levy fees for certain types of commerce, ceremony, or sports along its watercourses and shores.

That way, the government will not only recoup its investment in cleaning up the river (e.g., the Sh50 billion promised by President Ruto recently) but also enjoy accruing taxes for prosperity.

More importantly, the aquatic animals, the people of Nairobi, and its environs will enjoy an unparalleled clean and healthy environment as enshrined in Art 42 of the Constitution of Kenya 2010.

Environmental legal personhood as a means to protect nature has been discussed in academic circles since the 1970s. In Should Trees Have Standing? Christopher D. Stone, an American law professor, argued that environmental interests should be recognized apart from human ones.

Stone’s work influenced many scholars, including James Morris and Jacinta Ruru, who wrote Giving Voice to Rivers, arguing that waterways should be given legal personhood contrary the 1972 Stockholm Conference which empathized that  “safeguarding the homo sapiens” is the primary objective of environmental laws. 

The shift from protecting nature for the benefit of men (anthropocentric) to protecting nature for the benefit of nature (eco-centric) is evident in several countries, including New Zealand, Ecuador, Bolivia, Panama, Bangladesh, India, Spain, and the United States.

Ecuador, for example, became the first country to declare in its constitution that nature is a legal person. Articles 10 and 71-74 of the Constitution recognize the inalienable rights of ecosystems, give individuals the authority to petition on the behalf of ecosystems, and require the government to remedy violations of nature’s rights, including “the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.”

The countries listed above are great examples of how environmental laws should focus on protecting nature for the benefit of nature rather than the benefit of man.

Kenya can learn from these examples as it grapples with how to protect its priceless natural resources, such as the Nairobi River, sustainably.

No amount of cash for cleaning will guarantee the future of the Nairobi River unless it’s legally enabled to protect itself from humans sooner rather than later.

The writer is a communication specialist and an environmental law expert