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Kenya

More transparent and participatory development of climate polices at the national and subnational level (KE0010)

Overview

At-a-Glance

Action Plan: Kenya National Action Plan 2016-2018

Action Plan Cycle: 2016

Status: Inactive

Institutions

Lead Institution: Ministry of Environment and Natural Resources

Support Institution(s): Office of the Deputy President Ministry of Environment Kenya Forestry Service (KFS) Ministry of Foreign Affairs ICT Authority - Kenya Open Data Initiative (KODI); African Center for Technology Studies (ACTS) SIFA Kenya INFONET Africa Greenbelt Movement Transparency International (K), Kenya Association of manufacturers (KAM) TOTAL KENYA Food and Agriculture Organization (FAO)

Policy Areas

E-Government, Environment and Climate, Legislation & Regulation, Open Data, Public Participation, Public Service Delivery, Records Management, Sustainable Development Goals

IRM Review

IRM Report: Pending IRM Review

Starred: No

Early Results: Pending IRM Review

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information Civic Participation , Technology

Potential Impact:

Implementation i

Completion:

Description

Status quo or problem addressed by the commitment Kenya, as many Countries in the world acceded to the Paris Agreement in December 2015 that provides a framework for multilateral cooperation on Climate Change. The agreement speaks to the need to strengthen transparency and accountability mechanisms that ensure countries make progress on achieving their national determined contributions and other commitments. The SDGs adopted in September 2015 also sets ambitious targets that require creativity and innovation in their measurement and achievement. Main objective Create transparent and responsive institutions that manage and develop climate policies in Kenya. Brief description of commitment Commitments seeks to create a transparent and participatory environment for the implementation of sound climate polices as per the Climate Change Act 2016.

IRM Midterm Status Summary

1. Transparent and participatory climate policies

Commitment Text:

Title: 1. More transparent and participatory development of climate polices at the national and subnational level

Status quo or problem addressed by the commitment: Kenya, as many Countries in the world acceded to the Paris Agreement in December 2015 that provides a framework for multilateral cooperation on Climate Change. The agreement speaks to the need to strengthen transparency and accountability mechanisms that ensure countries make progress on achieving their national determined contributions and other commitments. The SDGs adopted in September 2015 also sets ambitious targets that require creativity and innovation in their measurement and achievement.

Main objective:

- Create transparent and responsive institutions that manage and develop climate policies in Kenya. Brief description of commitment

- Commitment seeks to create a transparent and participatory environment for the implementation of sound climate polices as per the Climate Change Act 2016.

Milestones:

1.1. Develop robust transparent multi-stakeholder consultative process to operationalize the Climate Change Act

1.2. Establishment of the multi-stakeholder Climate Change Council and Climate Change Directorate

1.3. Open Up Forestry Datasets, encouraging its reuse and the development of user-friendly data-driven apps and services by civil society organizations and the private sector

1.4. Ratification of the Paris Climate treaty by Kenyan Parliament

1.5. Development and approval of the climate change policy

Responsible institution: Ministry of Environment and Natural Resources

Supporting institutions: Office of the Deputy President; Ministry of Environment and Natural Resources; Kenya Forestry Service (KFS); Ministry of Foreign Affairs; ICT Authority - Kenya Open Data Initiative (KODI); African Centre for Technology Studies (ACTS); SIFA Kenya; INFONET; Africa Greenbelt Movement; Transparency International (TI); Kenya Association of Manufacturers (KAM); TOTAL KENYA; and Food and Agriculture Organization (FAO)

Start date: 1 August 2016

End date: 30 May 2018

Context and Objectives

Since 2010, the government of Kenya has taken bold measures against threats posed by climate change, such as developing a National Climate Change Framework Policy[Note51: David B. Adegu, 'National Climate Change Framework Policy & Bill' (National Climate Change Secretariat Ministry of Environment, Water & Natural Resources, 2015) www.thecvf.org/wp-content/uploads/2015/07/Kenya.pdf.] and a Climate Action Plan 2013–2017.[Note52: National Climate Change Action Plan 2013 -2017 (Government of Kenya, 2013) https://cdkn.org/wp-content/uploads/2013/03/Kenya-National-Climate-Change-Action-Plan.pdf.] Kenya’s economy is highly dependent on natural resources and therefore is highly vulnerable to climate variability and change.[Note53: Sessional Paper No. 3 of 2016 on National Climate Change Framework Policy, Ministry of Environment and Natural Resources, Executive Summary. ] The Ministry of Environment and Natural Resources is at the forefront of climate change mitigation and adaptation reform. Prior to the development of the OGP action plan, climate change policy in Kenya lacked sufficient mechanisms to ensure transparency, public participation, and accountability as provided for in the Paris Agreement. The Paris treaty requires governments to participate with various stakeholders and report on potential emissions and planning for climate change adaptation and mitigation.

The activities included in this commitment aim to increase citizen involvement in environmental policy and make more information available to citizens. Milestone 1.1 envisions involving civil society stakeholders in implementing the Climate Change Act of 2016.[Note54: The Climate Change Act (2016) strengthens climate change governance and coordination, and envisages the integration of climate change considerations into development planning, budgeting and implementation under the National Climate Change Action Plan (NCCAP).] Prior to the development of the national action plan, a number of CSO-coordinated consultative networks and coalitions were in place, such as the Kenya Climate Working Group (KCCWG).[Note55: KCCWG is a forum that brings together CSOs, donor partners, government departments and agencies.] However, the Ministry of Environment did not engage with CSOs. If implemented in full, this milestone would ensure CSOs involvement in working with the government on climate change policies.

Milestone 1.2. further involves stakeholders in implementing the Climate Change Act by establishing a multi-stakeholder climate change council and directorate. These two bodies form a coordination mechanism to oversee the implementation of the national climate change action plan, guide policy, and conduct research. The law mandates the Climate Change Directorate act as the lead government agency for coordinating intragovernmental national climate change plans and operations. The Directorate acts as the secretariat of the Climate Change Council, while the Council gives strategic policy direction.

The Council, formed November 2016, is chaired by the President who also appoints up to nine councilmembers. It consists of the Cabinet Secretaries responsible for environment and climate change affairs; the National Treasury; economic planning; energy; the chairperson of the Council of Governors; representatives of the private sector; civil society; marginalised communities and academia. Excepting the Cabinet Secretaries, the nominees must be vetted by Parliament.

The activities described in Milestone 1.3. focus on opening forestry datasets to the public and encouraging their reuse. Public use of forestry datasets would lead to greater transparency in issues concerning environmental degradation and land conflicts in Kenya. This data is also vital for stakeholders working in these areas. Environmental issues in Kenya include deforestation, soil erosion, desertification, water shortage and degraded water quality, flooding, poaching, and domestic and industrial pollution. Government-generated climate data is currently in geospatial form, and CSO respondents indicated a call for support to make the data more accessible and formatted so that the data could be reused.

Milestone 1.4, to ratify the Paris Climate Treaty within the Kenyan parliament, includes several key provisions. The government of Kenya acceded to the Paris Agreement in December 2015 leading to Kenyan laws strengthening transparency and accountability mechanisms in environmental reforms. The constitution of Kenya recognises all international commitments ratified by Kenya. Article 2 (6) states that, 'Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.' Ratifying the Paris Agreement could transform government practice in working with stakeholders to address the effects of climate change.

Finally, Milestone 1.5, to develop and approve the climate change policy, requires the government to create an overarching framework to enforce its commitment to addressing climate change. The policy document is intended to identify new laws needed to achieve its goals. As written, this milestone is not specific, and would have been more relevant if developed before the enactment of the Climate Change Act of 2016. It is unclear what additional climate policies will be developed under this step.

A key member from the Ministry of Environment and Natural Resources notes that while the Ministry is making progress on the commitment activities, stronger commitments are needed to achieve a greater impact. Activities under this commitment are ongoing government initiatives and their contribution to change in government practice may be limited, depending on how they are implemented. Some of the milestones’ language is vague in describing how their implementation will ensure climate change policy in Kenya is more transparent and accountable.

This commitment, if fully implemented, would fill operational gaps and increase CSO involvement in implementing Kenya’s new national climate policies. By including this commitment in the action plan, it leverages CSO networks involved in OGP to bring more voices into implementing national climate policies, and if fully implemented, would fulfil civic participation requirements as designated under the Paris Climate Agreement, while also strengthening best practices for involving more stakeholders in climate policy. For this reason, the commitment can be considered to have a moderate impact on opening government.

Completion

The Ministry of Environment and Natural Resources has made significant progress in the first year of implementation toward completing the commitment. Two out of the five milestones have been fully completed while two others have been substantially completed, as elaborated below.

1.1. Develop robust transparent multi-stakeholder consultative process to operationalize the Climate Change Act – Substantial

The Climate Change Act passed in May 2016 prior to the development of the action plan. It has provisions for public participation and access to information as espoused in Article 24 and Article 30 on the public engagement strategy. Civil society has been consulted through the Kenya Climate Working Group (KCCWG)[Note56: KCCWG, 'About Us' (accessed 21 Feb 2018) http://www.kccwg.org/about.html.] and climate hearing forums held at the local level to collect views. The multi-consultative process needs to be anchored in law through a ministerial directive or circular on its guidelines.

1.2 Establishment of the multi-stakeholder Climate Change Council and Climate Change Directorate – Substantial

The Climate Change Act passed in May 2016 provides for the creation of the National Climate Change Council. The Climate Change Directorate is to act as the secretariat to the Council.[Note57: The Council comprises of nine members: four cabinet secretaries representing the ministries of (1) environment and climate change affairs, (2) the National Treasury, (3) economic planning, and (4) energy; as well as (5) the chairperson of the Council of Governors; (6) a representative of the private sector; (7) a representative from Civil Society; (8) a representative of marginalised communities and (9) academia. With the exception of the cabinet secretaries and the chairperson of the council of governors, the other four nominees are required to be vetted by the Parliament] The Council comprises of nine members: four cabinet secretaries, and one representative each from the Council of Governors, the private sector, Civil Society, marginalised communities, and academia. With the exception of the cabinet secretaries and the chairperson of the council of governors, the other remaining four nominees are required to be vetted by Parliament.

During the parliamentary vetting of the nominees, the National Assembly rejected two nominees representing the civil society and marginalised community.[Note58: Gideon Keter, 'House rejects two nominees to National Climate Change Council' (The Star, 11 Jan. 2017) https://www.the-star.co.ke/news/2017/01/11/house-rejects-two-nominees-to-national-climate-change-council_c1485259. ] The names of the approved nominees to the council were then officially published in the Kenyan Gazette number 136 of 2016 on 7 November 2016. However, the council has not been fully formed due to a dispute over the selection process for CSO and marginalized community representatives. Transparency International Kenya, the Green Belt Movement, and Pan-African Climate Justice Alliance, in close collaboration with other CSOs working on climate change, filed a court case in January 2017.[Note59: The case reference is JR No.11 of 2017.] The CSOs had gone through an elaborate process to select a CSO representative but discovered that the nominee had been dropped through Gazette number 136 of 2016. The ongoing case is challenging the process. The Orders for stay were not granted,[Note60: Republic v National Assembly & 2 others Ex-parte Green Belt Movement & 5 others (High Court of Kenya at Nairobi, 13 Feb. 2017) http://kenyalaw.org/caselaw/cases/view/131918/.] and the hearing is set for 20 November 2017.

Immediately after the passage and commencement of the Climate Change Act in May 2016, the Climate Change Directorate was established by the Ministry of Environment and Natural Resources. Among other functions, the Directorate is the lead agency of the government on national climate change plans and actions to coordinate operations. Under the Directorate, the National Climate Change Resource Centre (NCCRC)[Note61: Kenya Climate Change Knowledge Portal, 'NCCRC - National Climate Change Resource Centre' (Ministry of Environment, Climate Change Directorate, accessed 21 Feb. 2018) lecrd.co.ke/nccrc-national-climate-change-resource-centre/. ] was established in the Ministry of Environment and Natural Resources. The NCCRC is the national repository for climate change information and houses the Climate Change Directorate offices. The Directorate is responsible for managing a climate change registry[Note62: Ministry of Environment and Natural Resources, 'National Climate Change Registry' (accessed 21 Feb. 2018) kenyaclimateregistry.info/usrlgn.aspx.] of appropriate mitigation actions by the public and private entities. The registry enables government and non-government actors to better understand climate change actions in Kenya, and assist the Climate Change Directorate to fulfil domestic and international reporting requirements on climate change. The registry includes actions that were taking place in 2013, the first year of Kenya’s National Climate Change Action Plan 2013-2017, and up to May 2017.

1.3. Open Forestry Datasets – Limited

The Ministry of Environment, in close coordination with the Kenya Forest Service, is working to open and make publicly available forestry datasets in GIS and other user-friendly formats. The respondent from the Ministry explained that officials from the Ministry and the Kenya Forest Service have held meetings to discuss what datasets are to be opened up, such as forest maps.[Note63: Examples of Kenyan forest maps may be found at http://www.arcgis.com/apps/View/index.html?appid=fc9f167106e44f3cbd0e0b31f23b6794.]

1.4. Ratification of the Paris Climate treaty by Kenyan Parliament – Complete

The Paris Agreement went through parliamentary approval per the Treaty Making and Ratification Act of 2012. The Cabinet Secretary Ministry of Environment and Natural Resources submitted the Agreement to the Cabinet with a supporting memorandum. The Cabinet approved ratification of the Agreement; the Cabinet Secretary then submitted the Agreement and the memorandum to Parliament who approved the Agreement without reservations and it took effect 27 January 2017.

1.5. Development and approval of the climate change policy – Complete

As of November 2017, the draft climate change policy[Note64: 'Sessional Paper No. 3 of 2016 on National Climate Change Framework Policy (Ministry of Environment and Natural Resources) webcache.googleusercontent.com/search?q=cache:17B999pyh8oJ:www.ke.undp.org/content/dam/kenya/docs/energy_and_environment/2016/Climate-Change-Framework-Policy(31Nov2016).doc%3Fdownload+&cd=1&hl=en&ct=clnk.] was awaiting Cabinet approval.[Note65: President's Delivery Unit, 'Environment and Natural Resources' (Office of the President, accessed 21 Feb. 2018) https://www.delivery.go.ke/ministryprojects/14.] The climate change framework seeks to facilitate a coordinated, coherent and effective response to the local, national and global challenges and opportunities presented by climate change. An overarching mainstreaming approach has been adopted to ensure integration of climate change considerations into development planning, budgeting and implementation across all sectors and levels of government. The Policy therefore aims to enhance adaptive capacity and build resilience to climate variability and change, while promoting a low carbon development pathway. The government of Kenya has made significant progress toward achieving the commitment on climate change action by implementing an enabling policy and legislative framework.[Note66: Ratified agreements include:

The Paris Agreement,

National Wetlands and Conservation Management Strategy,

The Climate Change Act 2016-[1] enacted,

Established the Directorate of Climate Change,

Established the National Climate Change Council,

Approved National Environment Policy,

Approved Education for Sustainable Development Policy,

Approved National Wetlands Conservation and Management Policy,

Approved Integrated Coastal Zone Management Policy,

Approved Environment Management and Coordination (Amendment) Act No. 5 of 2015,

Climate Change Policy awaiting approval from the Cabinet,

Approved Hazardous Waste Regulation,

Approved National Action Plan on Persistent Organic Pollutant,

The Natural Resources (Classes of Transaction Subject to Rectification), Bill 2015,

Prepared National Determined Contribution (NDC) and submitted to UNFCCC in April 2016,

Developed National Green Economy Strategy and Implementation Plan (GESIP), and

The government mainstreamed climate change into sectoral planning.]

Early Results

The ratification of the Paris Agreement is a major milestone for ensuring more transparent and accountable climate change policies. Creation of the Climate Council and Climate Change Directorate are positive steps however, staffing of the Council has been challenged by civil society. TI Kenya is lobbying for more openness in the staffing process and is contesting of the appointment of the right CSO representative in the council through court action.

Next Steps

In the next action plan, the Ministry of Environment and Natural Resources needs to collaborate with all stakeholders to ensure effective implementation of the Climate Change Act by holding sensitisation forums on the climate change legislation. Organisations and networks working on climate change issues such as Kenya Water and Sanitation Network, Africa Youth Initiate on Climate, Kenya Climate Finance Network, Umande Trust, and CARE International should be brought into consultations.[Note67: Suswatch Kenya, Kenya National Baseline Project, (Promoting the Implementation of the Paris Agreement in East Africa (PIPA Project), May 2017) www.inforse.org/africa/pdfs/PIPA_Kenya_Baseline_Report_May_8_2017.pdf.]

The Cabinet needs to approve the climate policy and develop relevant regulations to ensure implementation of the Climate Change Act. The multi-stakeholder process needs to be institutionalised through a government circular outlining the guidelines for establishment, composition, and nomination of representatives, as well as their function and oversight. This could ensure that relevant CSOs and climate groups have a permanent voice and remain engaged in implementing climate policies.

There is need for education and capacity building on how to participate in the consultations so a broader range of CSOs can engage in the process rather than just subject matter experts.

· The Ministry of Environment and Natural Resources needs to ensure that civil society representatives are duly selected and included in the work of the Climate Change Council and Directorate.


Kenya's Commitments

  1. Beneficial ownership

    KE0018, 2018, Beneficial Ownership

  2. Open Contracting

    KE0019, 2018, Capacity Building

  3. Open Geo-Spatial Data for Development

    KE0020, 2018, E-Government

  4. Public Participation

    KE0021, 2018, Capacity Building

  5. governance indices

    KE0022, 2018, Capacity Building

  6. Open government resiliency

    KE0023, 2018, Capacity Building

  7. More transparent and participatory development of climate polices at the national and subnational level

    KE0010, 2016, E-Government

  8. Enhancing preventive and punitive mechanisms in the fight against corruption and unethical practices

    KE0011, 2016, Anti-Corruption Institutions

  9. Enhance transparency in the legislative process

    KE0012, 2016, E-Government

  10. Publish Oil and Gas Contracts

    KE0013, 2016, Extractive Industries

  11. Starred commitment Ensure greater transparency around bids and contracts

    KE0014, 2016, Anti-Corruption Institutions

  12. Create transparent public procurement process, public oversight of expenditure and ensure value-for-money towards citizen priorities

    KE0015, 2016, Anti-Corruption Institutions

  13. Improving access to government budget information and creating wider and more inclusive structures for public participation

    KE0016, 2016, E-Government

  14. Starred commitment Enhance right to information

    KE0017, 2016, Capacity Building

  15. Starred commitment Improving Transparency in Electoral Processes: 1.a. Definition of Electoral Boundaries and Name.

    KE0001, 2012, Media & Telecommunications

  16. Improving Transparency in Electoral Processes: 2.b. Voting Information Online

    KE0002, 2012, E-Government

  17. Promoting Public Participation: 1.b. End-to-End Service Delivery Portal

    KE0003, 2012, E-Government

  18. Promoting Public Participation: 1.d. Public Complaints Portal

    KE0004, 2012, E-Government

  19. Promoting Public Participation: 2.c. Kenya Action Plan Online

    KE0005, 2012, OGP

  20. Promoting Public Participation: 1.c. Open Data Portal

    KE0006, 2012, Education

  21. Starred commitment Improving Transparency in the Judiciary: 2.a. Public Vetting of Judges and Case Allocation System

    KE0007, 2012, E-Government

  22. Open Budgets: 3.a. Improve Kenya's OBI Index

    KE0008, 2012, Fiscal Transparency

  23. Open Budgets: 3.b. Increase Public Participation in Budgetary Processes

    KE0009, 2012, Fiscal Transparency