The Urgent Need to Strengthen National Protection for Environmental Human Rights Defenders (EHRDs) in Kenya

Willice O. Abuya^1*Thomas G. Onsarigo²

• ¹Moi University, Eldoret, Kenya
• ²The Catholic University of Eastern Africa, Nairobi, Kenya

Kenya stands at a defining moment in its environmental governance journey with Environmental Human Rights Defenders (EHRDs) playing an essential role in upholding the constitutional right to a clean and healthy environment (Mwanza, 2020). These defenders-ranging from community activists to public interest litigators-serve as the frontline against environmentally destructive activities.In the face of rapid development drive to achieve Vision 2030 1 and Africa Agenda 2063 2 , EHRDs have become indispensable actors in ensuring accountability, transparency, and sustainable resource management of environmental resources (Khanna and Le Billion, 2021). To fast-track development, several laws have been enacted to attract investment, finance and to offer businessfriendly environment 3 . This push carries with it the potential of adversely affecting the environment. EHRDs advocacy has halted several such destructive ventures in Kenya-from illegal activities in the Mau Forest to proposed projects like the Lamu Coal Plant-and helped enforce laws such as the Community Land Act, the Land Act, and the Environmental Management and Coordination Act. Their vigilance gives practical meaning to Article 42 of the Constitution and safeguards communities whose livelihoods depend on sustainable ecosystems. In many rural regions, where state oversight is limited, defenders remain the only effective watchdogs capable of challenging powerful government and corporate interests. The need to protect their activities is therefore obvious.However, despite Kenya's progressive legal framework, EHRDs increasingly face intimidation, harassment, arbitrary arrests, digital surveillance, and physical violence. For instance, Joel Ogada 4 , was sentenced to seven years imprisonment on fabricated charges for his opposition against salt mining on the coast of Kenya. Phyllis Omido 5 (winner of the Goldman environmental prize for her activism against lead smelting plant near Mombasa) went into hiding following multiple assaults and death threats from those opposed to her advocacy work. This contradiction between strong constitutional protections and weak on-the-ground safeguards highlights a critical gap in national protection mechanisms. There is also the argument as to whether there is need for enactment of a standalone law to protect EHRDs-or possible, have a combination of the two? As demonstrated above, Kenya's environmental defenders occupy a perilous yet indispensable position at the crossroads of governance, natural resource exploitation, and community rights. They are the individuals and groups who refuse to stay silent in the face of destructive development projects, who insist that economic progress must not trample ecosystems or human dignity. However, despite the country's progressive Constitution and an extensive body of environmental and human rights laws, the lived reality of defenders paints a troubling picture. EHRDs continue to face intimidation, violence, arbitrary arrests, smear campaigns, and sophisticated digital surveillance. From communities in Kwale and Magadi resisting harmful mining, residents in Kitui opposing extractive interests, to networks in Lamu challenging coal plants and port expansions, defenders remain targeted precisely because they are doing what the Constitution empowers them to do: protect the environment for present and future generations. Organisations such as Kajiado youth alliance, Save Lamu, Lamu Women Alliance, and Lamu Beach Management Units have particularly faced reprisals, revealing a disturbing gap between legal promises and ground realities (see Odhiambo-Abuya and Owuor, 2025).In our view, this contradiction raises a fundamental concern: if Kenya boasts some of the most advanced environmental and human rights protections in Africa, why then are those who defend these rights still unsafe? The answer lies in the widening disconnect between Kenya's robust legal framework and its inconsistent, often politically manipulated application of the law. While Articles 42, 69, 70, and 2(6) of the Constitution outline powerful rights and integrate international standards-such as the UN Declaration on Human Rights Defendersfoot_0 -these protections remain largely aspirational without institutional capacity, political will, or judicial consistency to back them. Reports from Global Witness (2025), Human Rights Watch-Kenya (2025), and Kenyan civil society repeatedly document patterns of killings, harassment, forced disappearances, physical attacks, and economic reprisals targeting defenders. Data from a 4 year studyfoot_1 revealed that in Lamu, activists opposing the coal plant have been vilified as "anti-development"; in Kajiado, those resisting damaging soda ash extraction have faced violent retaliation; in Kitui, anti-coal campaigners have been branded "saboteurs". These patterns echo global trends where land and environmental defenders are among the most targeted groups for lethal violence.Based on the 4 year study, our opinion is clear: unless Kenya undertakes meaningful legal, administrative, and societal reforms, environmental defenders will continue to operate under threat, and the country's commitment to sustainable and rights-based development will remain unfulfilled. Kenya's legal landscape offers numerous instruments intended to protect human rights, guarantee environmental justice, and support defenders. However, a closer review exposes several contradictions between legal intent and operational reality. The above lays a strong foundation for the protection of EHRDs, with Article 42 guaranteeing the right to a clean and healthy environment, Article 70 enabling anyone to seek remedies for environmental harm, and Articles 10 and 35 reinforcing public participation and access to information. In principle, these provisions position the Constitution as a powerful shield for defenders. However, in practice, its protective promise remains largely unfulfilled, majorly because laws to operationlise the various articles are yet to be enacted (see Molonko, 2013 on difficulties associated with drafting bills for operationalisation purpose). Further, environmental litigation is often slow, costly, and inaccessible to many affected groups. Regulatory agencies such as Kenya national Human Rights Commission (KNHRC) and the National Environmental Management Agency (NEMA) are often pressurised into turning a blind eye when government transgresses. In our view, the Constitution offers an impressive framework, but lacks the express instruments and executive support that it needs to protect EHRDs. This Act offers safeguards to EHRDs as it operationalises a key constitutional principle: access to information. In theory, the Act empowers citizens to scrutinize mining contracts, Environmental Impact Assessment (EIA) reports, pollution data, land acquisition documents among other official documents. Yet in practice, its impact remains limited. Ministries and county governments routinely ignore or inordinately delay requests for information (Karanicolas and Kwoka, 2022), while oversight bodies lack the power to enforce compliance. In our view, the weak implementation of this Act undermines the ability of defenders to hold powerful actors accountable. This Act was intended to safeguard personal information and strengthen privacy-which is a crucial protection for EHRDs. However, the limited independence and capacity of the Office of the Data Commissioner has left defenders vulnerable to unlawful access of their phone records, location data, and private communications. It is our view that until the state and its agencies respect this law, injustice towards EHRDs will continue unbated. EMCA provides the foundation for environmental governance. It mandates EIAs, audits, pollution control, and sustainable resource use. It is a defender's key weapon in challenging harmful development activities. Yet EMCA suffers from weak enforcement, weak monitoring capability, lack of funding, conflicts with other sectoral laws and interference by politicians (Muigua, 2023). This undermines its ability to protect defenders. These Act provides standards for the protection of the environment and empowers communities to own and oversee governance of environmental resources. However, implementation is slow and prone to political interference. Many community lands remain unregistered, leaving them vulnerable, and setting the stage for endless protestation (Aiden, 2018). The broad definition of "public interest" has been brazenly abused to justify compulsory acquisition of land without adequate consultation. These two sets of law are vital for defenders. However, protection programs are underfunded, victims often exposed, and many defenders are unable to access this service due to bureaucracy or refusal by the state (Wamaitha, 2025). This needs to be corrected. These Acts integrate sustainability and public participation into national development. They require EIAs, community development agreements, and public participation. Yet, in practice, public participation is often tokenistic, environmental concerns often side-lined in favour of economic interests (Hao, Nyaranga and Hongo, 2022). Regulators in turn lack independence from political and commercial pressure. The first Act offers protection against illegal displacement, while the second protects the environment against plastic and other non-degradable waste. While the first has been roundly ignored by the state (Nyarangi, 2024), the second has been quite successfully as the state has been keen on its implementation. This goes to show that whereas adequate laws exist, their implementation is the problem. Despite a comprehensive legal framework, several structural gaps undermine effective protection of environmental defenders. For starters, Kenya lacks a specific law focused on protection for EHRDs (Mballa, 2024). One has to go through a plethora of laws to successfully argue a case for EHRDs. Secondly, it is evident that existing legal framework offer little solace to EHRDs due to weak enforcement. Enforcement Institutions and protection agencies (such as National Environmental Management Agency, National Land Commission, Kenya National Human Rights Council, Witness Protection Unit etc) are weak, underfunded, under-staffed and prone to political interference, leading to slow response, intimidation of defenders to influencing of court outcomes that puts defenders at risk. Defenders increasingly face cyber-surveillance, phone tapping, and digital harassment (see Guntrum and Lasson Mena, 2025); acts that infringe upon existing laws. In fact, acts (such as the Cybercrime Act with many of its provisions increasingly being declared unconstitutional), have purposively been enacted to intimidate defenders. This has to change.Third, persistent criminalization of EHRDs make the environment particularly hostile to defenders (Gonzalez, 2024). Activists are frequently charged with unlawful assembly, malicious damage, incitement and trespass, which drain resources and silence advocacy. Court orders in favour of defenders are routinely ignored. Provisions in law to dissuade state and police actors from perpetuating this should be enacted. Limited access to justice is another identified structural gap. Litigation is expensive, slow, and technically complex. Public interest environmental lawyers are few, and those ready to work on pro bono basis are even fewer. Limited access to information is another barrier that needs redress. Despite Article 35 of the constitution and the existence of the Access to Information Act, public bodies continue to withhold key documents, particularly around mining, land acquisition, oil exploration, and energy deals. Without this information, EHRDs often end up relying on hearsay, which regularly attracts libel suits. Kenya stands at crossroads. While its constitutional framework on environmental rights is widely celebrated, the lived experience of many environmental defenders tells a different tale-that of risk, vulnerability, and inconsistent state protection. The gap between the law and implementation has placed defenders in precarious positions even as environmental degradation accelerates.Protecting EHRDs is not just a moral or legal imperative; it is a national development priority. Kenya must thus transform its strong environmental rights framework into meaningful protections for those who safeguard these rights. The urgency is undeniable, the need is clear, and the moment for decisive action is now. To jumpstart this, Kenya must fix its legal framework (review existing environmental and human rights laws to protect and not criminalise defenders), then go beyond this and build a structural, institutional, and societal ecosystem that genuinely supports environmental justice. As suggested by Natural Justice 9 and its partners, there is need for Kenya to operationalise its National Action Plan on Business and Human Rights (2020-2025) 10 , which includes themes on land, natural resources, environmental protection, and access to remedy. This can be operationalised by Kenya adopting a standalone national law on EHRDs. Its key features would include legal recognition and protection of EHRDs, clear independent funding and sanctions and accountability for those who go against the provisions of the Act. Internationally, there is need for Kenya to align itself to other regional and International policy frameworks (such as the African Commission on Human Rights and Peoples' rights 11 , the Kunming-Montreal Global Biodiversity framework 12 and the UN HRC resolution 40/11 and the "Geneva Roadmap" on environmental defenders 13 ).Secondly, institutionally restructuring is necessary. For instance, courts and the police should be re-oriented to offer service to defenders other than be used as pawns by politicians. Institutions charged with the responsibility of protecting defenders must also be adequately resourced, both in material and monetary form. County-level protection systems with budgets, monitoring, and strong public participation structures be also established, and these be shielded from political interference. Last but not least, mounting of public awareness campaigns on the role and rights of EHRDs and the strengthening of collaboration with civil society through joint risk assessments, rapid response systems, and shared monitoring be programmed.