This section highlights key domestic legal instruments as well as academic texts books and other writings by scholars relevant to disaster management in Kenya.
THE CONSTITUTION OF KENYA (2010)
The Constitution of Kenya (2010) is the supreme law in Kenya.1 It has been praised as one of the more progressive constitutions in Africa.2 The centre of this praise is the robust Bill of Rights. Among the rights protected under the Constitution is the right to life. Unpreparedness for disasters and lack of management legal institutions threaten this constitutionally protected right. The legislature is therefore duty bound to create laws to bridge this gap.
Constitution also dictates how the functions of government are devolved. Chapter 11 of the Constitution sets out the governance framework of devolved government. The Fourth Schedule of the Constitution sets out the functions and powers of the national government and the county governments. Under this, disaster management features as a joint function between the national and county government.
In regard to this, where a function is shared between two levels of government, Article 187(2) sets out that the national and county government exercises concurrent jurisdiction. The Article continues to state that functions are transferable by agreement but it is my interpretation that you cannot transfer a function to a body which already has constitutional mandate to perform the same function based on the ordinary meaning of transfer. It would not be a transfer; it will only be one level ‘neglecting’ its mandate, leaving the heavy lifting to the other.
REGIONAL AND INTERNATIONAL DOCUMENTS ON DISASTER MANAGEMENT
Kenya is a member of the following organizations that have produced documents influencing disaster management policy in Kenya:3
· Hyogo framework for Action (HFA) 2005-2015.
· Pan-African IDRL Forum African Working Group on Disaster Risk Reduction (AWGDRR)
· African ministerial conference on Disaster risk reduction African Union (AU): African Risk Capacity
· African Union Commission (AUC) New Partnership for Africa’s Development (NEPAD)
· IDRL Guidelines of IFRC Africa ministerial conference on the Environment World Meteorological Organization (WMO)
· International Civil Aviation Organization (ICAO)
· United Nations Framework Convention on Climate Change (UNFCCC)
Currently, there is no legislative framework in place to manage disasters. Although the Draft Policy was adopted in Kenya it has not been operationalized by law, creating a lacuna in the law. There are, however, proposed County Bills in Parliament to remedy this. These are the County Disaster Management Bill and the County Fire and Rescue Services Bill.4
There are other relatable acts of parliament that function to manage disasters and to ensure overall reduce risks. Examples include the Wildlife (Conservation and Management) Act (CAP 376)5 which provides for conservation of wildlife which are an integral part of the ecosystem, the Forest Act (CAP 385)6 which provides for conservation of forest cover necessary to keep global warming at bay and the National Environmental Management Act which establishes an Agency that is to conserve the environment , the Firearms Act (CAP 114)7 and the Explosives Act (CAP 115)8 which limits the use of firearms and explosives respectively for public safety, the Public Health Act (CAP 242)9 which gives guidelines on the handling of biological material to protect against the unnecessary outbreak of diseases, Radiation Protection Act (CAP 243)10 which protects handlers of radiation related machines and patients are protected from the risks surrounding exposure to radiation and the Pharmacy & Poisons Act (CAP 244)11 which ensures that medical substances are of a prescribed quality that will not harm end users.
These are a few examples of legislation that is geared to protect the citizenry from risks of all
DRAFT POLICY ON DISASTER MANAGEMENT IN KENYA
This is the only operational disaster management specific document in Kenya. The policy was formulated with the intention of reducing Kenya’s vulnerability in the event that disaster strikes.12 The draft policy set up institutional framework for management of disasters, including promotion of a culture of disaster awareness and for building the capacity for disaster risk reduction, at all levels.13 The policy recognizes that Kenya is prone to disasters which may have adverse effects if left unmanaged. These effects include the disruption of people’s livelihoods, destruction of infrastructure, the divert planned use of resources, interrupted economic activities and retard development.14 The policy sets out measures to counter disasters from preparedness prior to occurrence to handling the eventualities of disasters. In my view, the policy’s main aim therefore to act as a stepping stone towards legislation that preserves life and to alleviate suffering by providing timely and appropriate response mechanisms to disaster victims.
THE SOUTH AFRICA’S DISASTER MANAGEMENT ACT (2002)
As stated earlier, this study seeks to propose the promulgation of national legislation that mirrors the South African document. South Africa, in my opinion, is an ideal point of legal comparison because Kenya’s Constitution mirrors the South African Constitution. With this in mind, it is conceivable that legislation adopted from a country Such as this with a near similar supreme law would work seamlessly.
South Africa’s Disaster Management Act, (2002) following severe flooding in the Western Cape province.15 The Act provides a single integrated and coordinated disaster management policy that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response to disasters and post-disaster recovery.
In contrast, Kenya has proposed County legislation for each county to assent for managing disasters. South Africa has avoided this multiplicity of legislation by having a single national document. Multiplicity in legislation creates the risk of distortion of the laws over time.16 It is my view that a consolidated document would be a better fit for Kenya.
Several academic writers have interrogated the need for effective disaster management mechanisms.
In a nutshell, most researchers agree that proper disaster management framework is necessary to safeguard the well-being of humankind. Based on this, they agree on the need for disaster management framework. This list of authorities is far from conclusive. It only gives a glimpse into some of the authorities that were available for perusal.
Michael Eburn, using Australia as his case study, highlights that the major factor in reducing vulnerability in the face of disasters is law.17 These laws are implemented by the government, through its agencies, which are tasked with making decisions that are in line with the law to protect the citizenry from harm. Eburn avers that the law can be used as both as a tool to reduce vulnerability to harm or a tool to increase it. This disparity results from the framing of the laws and their impact. He lives an example of laws that ensure only he poor remain in disaster prone areas while the rich live in safer areas as one way that the law can be used to increase vulnerability of a particular group of individuals.
In a paper presented at the 6th International Conference on Building Resilience 2016, Malalgoda et.al elaborates the conceptual framework of a research study aimed at making recommendations to empower local governments in making disaster resilient built environment within cities.18 They found that disaster management is the role of stakeholders that include the national government, local governments, non-governmental organizations and civil society groups. They averred that these stakeholders cannot act in isolation of each other and that an effective system requires cooperation from all stakeholders.
Damon P. Coppola, provides a comprehensive overview of the players, processes and special issues involved in the management of disaster. He discusses the special issues encountered in the management of international disasters and explains the various agencies that assist in the preparedness, mitigation, response and recovery during national and regional events. This book is vital to this research as it concentrates on the four phases of disaster management that is mitigation, preparedness response and recovery. It also contains many case studies useful to this research.
Joachim Ahrens and Patrick M. Rudolph explore the link between disaster management and institutional failure.19 They identify institutional failure as the main cause for vulnerability to disaster. They argue that sustainable livelihoods and a reduction in susceptibility to disasters will only be achieved if a country’s governance structure enables the implementation and enforcement of public policies conducive to a country’s economic and social development. This article is relevant to the study as it affirms that for effective disaster management, a system for implementation of policies needs to be in place, which is laws.
Dewald van Niekerk provides an in-depth analysis of the South African Disaster Management Act of 2002.20 He gives insights into the process of promulgation to the actual implementation of the act. The study finds that one of the weakest aspects of the Act and Framework is the absence of clear guidance to local municipalities. The placement of the disaster risk management function on all tiers of government remains problematic, funding is inadequate and overall knowledge and capacities for disaster risk reduction are insufficient. This study is integral in giving the final recommendations of this paper since the lessons highlighted in implementation of the statute will be incorporated to propose a more efficient piece of legislation.
The collection of works in the book titled “Strategic Disaster Risk Management” is an exemplary example of like mined individuals with a vison for better disaster management in a localized region.21 The prologue by Nivedita stresses the importance of preparedness in containing the effects of natural disasters. Without preparedness, there would be unnecessary losses that could have been mitigated extensively. The spirit behind the book is that disaster management is not a problem limited by boundaries but is a global problem. Scholars from all over the world and governments alike must partner to mitigate the effects of disasters for the good of all.
In his book, Nan D. Hunter investigates, among other issues, the legal authority at the federal, state, and local levels when executing disaster management mandate.22 He finds that division of power between the state and federal governments with regard to disaster management provides checks and balances which prevents the localization of power in one arm. He highlights risks that come along with excessive power will be concentrated in one location. In the American jurisdiction, there exists state statutes that set the parameters between local and state power when it comes to managing disasters. There is some similarity in the Kenyan context whereby there exists draft county disaster management bills that are yet to be assented. In contrast, there is no national legislation highlighting the role of the national government in disaster management.
The study was conducted using a desk based approach. All the materials used was sourced from the internet. The materials ranged from books, journal articles and open source website articles. The desk-based research included a review of a wide range of material pertaining to disaster management; both local and international. The desk-based research also included a study and critique of various policies and legislation, mainly the Draft National Policy on Disaster Management (2009), the County Disaster Management Bill and the County Fire Disaster Management Bill.
In order to emphasis the need for national Disaster Management legislative framework, Disaster Management Act, 2002 (South Africa) was juxtaposed against the National Draft policy. The County Disaster Management Bill and the County Fire and Rescues Bill were also reviewed against the Disaster Management Act, 2002 to test the efficacy of County legislation vis a vis National legislation.
The study also included scholarly articles from journals and relevant books and other online sources.
This research was conducted using a desk based approach. The following are the limitations experienced:
1. Because this study was conducted using a desk based approach, data used to prove/disprove the hypotheses was limited to only secondary data. A more comprehensive study would involve physical data collection from disaster prone regions in Kenya.
2. Disaster Management is a relatively broad topic and requires a lot of time and resources to cover adequately. This limitation put constraints on a comprehensive interrogation of all available material on disaster management.
1 Section 3 (1) of the Judicature Act 1967
2 Fox News Politics, Obama Lauds Passage of Kenyan Constitution As Critics Slam Its Abortion Rights Stand
Available at: http://www.foxnews.com/politics/2010/08/05/obama-welcomes-passage-kenyan-constitution-following-controversy-involvement.html August 22nd
3 Christine Ye-Rang Nam Background Report Law and Regulation for the Reduction of Risk from Natural Disasters in Kenya A National Law Desk Survey September 2012
4 Kenya Law Reforms Commission Available at: http://www.klrc.go.ke/index.php/bills/477-development-of-model-laws-on-disaster-management-and-fire-rescue-services on August 30th 2017
5 Wildlife (Conservation and Management) Act (CAP 376)
6 The Forest Act (CAP 385)
7 Firearms Act (CAP 114)
8 Explosives Act (CAP 115)
9 Public Health Act (CAP 242)
10 Radiation Protection Act (CAP 243)
11 Pharmacy & Poisons Act (CAP 244)
12 Draft National Policy for Disaster Management in Kenya, February 2009.
15Dewald van Niekerk A critical analysis of the South African Disaster Management Act and Policy Framework 2014
16 The Law Commission Consolidation From https://www.lawcom.gov.uk/consolidation/ on September 3rd 2017
17 Eburn M The Role of Law in Disaster Management. J Geogr Nat Disast 3, 2013
18 Local Governments And Disaster Risk Reduction: A Conceptual Framework. Available from: https://www.researchgate.net/publication/309396143_LOCAL_GOVERNMENTS_AND_DISASTER_RISK_REDUCTION_A_CONCEPTUAL_FRAMEWORK accessed Sep 28, 2017.
19 Ahrens J and Rudolph PM, The Importance of Governance in Risk Reduction and Disaster Management, Journal of Contingencies and Crisis Management,Vol.14 No. 4, (2006) 207–220.
20 Dewald van Niekerk , A critical analysis of the South African Disaster Management Act and Policy Framework 2014
21 Ha H, Fernando RLS and Mahmood A, Strategic Disaster Risk Management in Asia(Springer India 2015)
22 Hunter, Nan D. The law of emergencies: public health and disaster management (2009)