CHAPTER to the Draft Policy National Policy (hereinafter

CHAPTER 1

 

BACKGROUND OF STUDY

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The study surrounds the assessment of the existence and scope of the legal framework governing disaster management in Kenya. This study was inspired by current worldly events that have seen many nations hit by various forms of national disasters. The UN defines a disaster as “an event or series of events which give rise to casualties and/or damage or loss of property, infrastructure, essential services, or means of livelihood on a scale that is beyond the normal capacity of the affected communities to cope with unaided”.1 According to the Draft Policy National Policy (hereinafter referred to as the Draft Policy), Kenya is prone to the following categories of hazards: 2

1.Environmentally triggered (Climate-related such as droughts, floods, storms landslides)

2. Geologic disasters includes volcanic eruptions, Tsunamis, earthquakes,

 3. Human-made disasters such as socio- economic, technologic-industrial, human

 4. Biological epidemics i.e. disease, pests

Disaster management on the other hand has been described as involving the prevention of disasters, preparedness, relief and recovery in the event disasters occur and will be the focus of this paper.3 These are measures put in place to mitigate the effects of disasters on nations.

This paper seeks to assess the effectiveness of the presence or absence of legislative framework on disaster management. This recognition of the threat level Kenya is exposed to by the Draft Policy necessitates the promulgation of robust legislation that will effectively protect Kenya’s citizenry.

The study also seeks to measure the efficiency of legislation vis-a-vis soft law in the name of policies. Although there is no consensus on the parameters of the definition of soft law, many scholars have been seen to use the binding/non-binding test to categorize laws as hard or soft law.4 It is therefore a safe assumption to place the Draft Policy in question under the soft law category.

 

STATEMENT OF THE PROBLEM

 

Interest to pursue research in this area was sparked by the acknowledgment of the absence of legislation aimed at managing disasters in Kenya. It is my aversion that this gap leaves the people of Kenya unnecessarily vulnerable to potential disasters that can be managed by a proper legislative framework.  In the recent past, nations in Africa and other parts of the world have been plagued by disasters such as; mudslides in Sierra Leone and hurricanes in the USA.5 These disasters have claimed many lives and caused substantial damage to property. Due to the unpredictable nature of disasters and environmental changes, this and other occurrences may be the fate of Kenya in the future.6 This calls for a level of preparedness that Kenya must attain through legislation. To address this problem, the study will contrast the level of preparedness secured by South Africa through passing the Disaster Management Act (2002) in contrast to Kenya’s situation which lacks hard law in the area. South Africa is the choice point of comparison because Kenya has fashioned many of its laws after South African laws, with the Constitutions being a prime example. The study will also seek to interrogate the proposed County Governments Disaster Management Bill (2014) keeping in mind devolved functions between the National and County Governments as well as the soft laws already in place.

 

JUSTIFICATION OF THE STUDY

The purpose of the study is to establish the extent to which a functioning legal framework for disaster management adequately facilitates the management of disasters. It is justified due to the identified gap in the legislative framework in place to guide Kenya on how to handle disasters if and when they arise, coupled with the eminent threat of natural and manmade disasters. The papers’ case is also strengthened by the alarming rate at which disasters are occurring in and around Kenya. Data from the Draft National Policy for disaster Management (2009) indicates an upward trend in the occurrence of disasters, especially considering that climate change has worsened the complexity of the disasters. Venturing into the discussion on disaster management is therefore a necessity that should not be left at bay any longer.

 

STATEMENT OF OBJECTIVE

The objective of this study is to assess the effect of the legislative gap with regards to disaster management in Kenya and subsequently provide suitable remedies.

 

RESEARCH QUESTIONS

This paper seeks to evaluate the following question:

1.     Does Kenya have legislative framework in place to cover disaster management?

2.     How adequate is the legal framework in operation (soft laws) in disaster management in Kenya?

3.      How does the legal framework in Kenya compare to that in South Africa?

4.     Is disaster management a devolved function?

5.     How effective would disaster management be if solely left to the County governments as opposed to doing so in a joint effort nationally?

6.     Are multiple pieces of legislation for each county a more effective approach than a single piece of national legislation?

7.     Are there any adverse effects of having a multiplicity of legislation addressing the same issue?

8.     What are the recommendations for legal and policy reform for disaster management?

 

HYPOTHESES

This study is premised on the following assumptions:

1.     There is a gap in the legislative framework in place in Kenya covering disaster management.

2.     Public policy documents in place are inadequate to handle national disasters.

3.     The gap in legislative framework leaves Kenya open to unnecessary risk of damage and injury.

4.     Disaster management legislation assists nations to prevent disasters, prepare for disasters, respond to disasters, monitor progression of disasters and mitigate damage caused by disasters.

5.     Disaster management is the mandate of both the county government and the national government. The mandate should be executed at both levels.

6.     Multiple pieces of legislation addressing the same issue has adverse effects.

7.     One piece of national legislation is more beneficial than a multiplicity of legislation.

8.     Kenya requires national legislation on disaster management.

 

CONCEPTUAL AND THEORETICAL FRAMEWORK

The theoretical framework of this paper is two pronged: the first part addresses theories on soft law and hard law while the second part addresses the need for disaster management legislation altogether.

This study focused on the two contrasting jurisprudential schools of thought to delve into the debate on soft -v-hard law:  positive law school and American legal realism. The primary point of debate is whether soft laws are adequate in managing disaster or whether hard law must be promulgated in conjunction with soft laws to achieve the desired end. Mention will also be made to the human rights theory and the natural law school to inform the discussion on the indiscriminate need for laws in disaster management.

The debate on hard law -v- soft law is not new in the academic sphere. Many writers have ventured in this field theorizing both pros and cons of each type of law. Some have come out in support of soft laws as sufficient mechanisms, others hard law and others supporting the use of both.

The positive law school proposes that valid laws are only those that which come from a place of authority, in accordance with certain procedures, that the society enforces. They focused on what the law is and not what it ought to be. Classical positivists such as John Austin only recognized law as that emanating from a sovereign/state, that is, the hard laws.7 He focuses on the coercive nature of laws with the possibility of sanction that impose duties or obligations on individuals. Normative positivists took a slight turn from this rigid position recognizing both primary and secondary rules. H.L.A. Hart, a contemporary legal positivist, proposed the “separation thesis” in response to the natural law school separating morality from the law.8 Hart also separated laws into primary and secondary rules.9 Primary rules are those that impose duties, whereas the secondary rules confer powers which may alter duties or obligations. Although the normative and classical positivists differed on aspects such as the source and nature and classification of the law, they agreed on the fact that the law must be laid down in statute books and must be adhered to by the polity. In modern day application, positivists are in support of legislation rather than policy. To them, non-binding laws cannot be considered as laws altogether and in the event that they are branded as such, they remain inferior to laid down laws. Francesco Sindico, a modern-day positivist, for example, only views soft law as a stopover in the creation of legally binding laws.10

Legal realism informs a contrary argument towards the importance legislation holds vis-a-vis other sources of law in achieving the desired end. The American realist school particularly is a cross breed between analytical positivism and the sociological school.11 They are not focused on hard law posited in law books per se as the positivists; rather it is focused on law on its application post judicial decisions. To them, the law is not sufficient as it is unless it is applied to the facts of life. Realists are concerned about the operationalization of the law and are not fixated by legislation.

Oliver Wendell Holmes, a major proponent of this school, is famous for his remark that “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”.12 This phrase is an example of their approach which places importance on judicial over what is actually in the statute books.  The realist thinking is more progressive in the sense that

What then happens in the event that there is no law in place to begin with considering the unpredictable nature of disasters?  In my view, the realist practical approach opens-up avenues for the application of laws outside the purview of statute. It is my view, that in Kenya’s case, the Court, in the absence of legislation, will apply constitutionally backed policies as law in the absence of hard law. In Kenya’s case, the Ministry of Devolution is a creature of the law and creation of policy is a lawful endeavor. In addition, the Constitution provides that disaster management is the role of both the National Government and County Government.13 Therefore, the Constitution has laid down the base for disaster management through both soft and hard law. The only hurdle is the absence of legislation to guide the executive on how to exercise its mandate.  By recognizing policies as law, the Court will have remained within their mandate as interpreters of the law without overstepping into the role of the legislature.14 By doing so, the Courts will have made a Constitutional based pronouncement that protects the well-being of the citizenry.

Therefore, in line with the realist thinking, policies backed by the Constitution are sufficient in managing disasters in Kenya. The Ministry of Devolution and Special Planning (formerly the Ministry of State for Special Programs) formulated the Draft National Policy for Disaster Management in Kenya (2009) making the option to legislate unnecessary.15

In the conclusion of this paper, I give a recommendation on the necessity to legislate in the area of disaster management based on the positivist school or the American realist school. This will contribute to the overall debate of the effectiveness of hard law v soft law in achieving the desired ends.

The second facet of the study on the overall existence of disaster management legislation in Kenya is informed by the human rights theory. Human rights are rights derived from the inherent dignity of the human person.16 The Magna Carter was the first document to recognize human rights in 1215 after King John of England violated ‘human rights’.17 Human rights were formally recognized in the world over following the conclusion of Treaty of The Peace of Westphalia, concluded in 1648 in Münster (Germany), which ended the cold war. Since then, the jurisprudential school of human rights has continued to grow to date.18 Although the Treaty was the first formal recognition of human rights, natural law scholars had already alluded to human rights in their works. Thomas Hobbes and John Locke are the main scholars who developed the Natural Rights Theory.

Hobbes, in the Leviathan, espouses the theory of Such self-preservation which constituted the indispensable core of human rights. He linked the idea of the necessity of self-preservation to the need of a social contract between the polity and a sovereign ruler.  The underlying factor as to why a sovereign ruler must step in is the inclination of individuals to do whatever is necessary to protect their natural rights.19 He therefore recognized the existence of natural rights and the role of the state in safeguarding these rights. The Constitution of Kenya (2010), in the Bill of Rights, recognizes the citizenry’s right to life which can only be limited by law.20 It is the role of the state to protect this right by implementing measures that will mitigate the effects of disasters. It is my assertion that this role can only be effectively exercised if there is legislative framework to guide the state in the event of disaster.

John Locke further developed this, arguing that every human being has a personal right to life, personal liberty and property and that no government authority has the power to deprive individuals of these rights, because they are inherent, meaning they enjoyed them, even before the creation of a civil or political society. 21

Jack Donelly states that human rights are held universally by all human beings. They are the highest moral rights and they regulate the fundamental structures and practices of political life. In ordinary circumstances, they take priority over other moral legal and political claims. These dimensions encompass what he calls moral universality of human rights.22

The Constitution of Kenya 2010 provides for the right to life, the right to property, freedom and security of the person and economic and social rights.23 The economic and social rights provided for include the right to be free from hunger, the right to clean and safe water, the right to social security and the right to the highest social attainable standard of health. Unmanaged disasters deprive the population of these rights, and it is therefore on this, that the study is based. It is the role of the State to protect these rights by setting systems in place to counter disasters as and when they happen.

Closely related to the Human Rights theory is the Natural Law school. Aquinas, the main proponent of the classical natural law theory, defines law as a certain ordinance of reason for the common good, meaning it burdens the community equally and is made by him who has the care of the community with the power to coerce others to obey it and promulgated.24 Further, it is created by a being with reason and must have an end or goal. The law should be for the common good, therefore, it should benefit the society as a whole rather than the private good of individuals. In addition, the law is made by him with the authority to do such. The law should be promulgated. Promulgation of laws basically means that it should be made known to those being ruled by it.

In line with Aquina’s thinking of Law, law should be created within reason, with a particular end or goal. Disaster Management laws must be formulated with reason, it must be  well thought out and effective. According to Aquinas, the laws must be made by a person or body with the authority to make the law. The body responsible for the making of law is the legislature. The law has the force of law only when it is promulgated. 25 The disaster management law ought to be made known to the public for it to fulfill the purpose for which it was intended.

 

1 United Nations Office for Disaster Risk Reduction Terminology on DRR https://www.unisdr.org/we/inform/terminology/ on August 20th 2017

2 Draft National Policy on Disaster Management in Kenya, February 2009.

 

3 International Federation of Red Cross and Red Crescent Societies, Disaster and Crisis Management, http://www.ifrc.org/en/what-we-do/disaster-management/  on  August 20th 2017.

 

4 Commitment And Compliance: The Role Of Non-Binding Norms In The International Legal System (Dinah Shelton Ed., 2000)

5 The Guardian, Natural disasters and extreme weather + Africa

 https://www.theguardian.com/world/natural-disasters+africa/ on 22nd August 2017

6  NASA Earth Observatory , The Impact of Climate Change on Natural Disasters https://earthobservatory.nasa.gov/Features/RisingCost/rising_cost5.php / on August 22nd 2017

7 The Province of Jurisprudence Determined (1832) John Austin

8 The Concept of Law (Oxford: Clarendon Press, 1994) H.L.A. Hart, 

9 ibid

10 Francesco Sindico, Soft Law and the Elusive Quest for Sustainable Global Governance, 19 LEIDEN J. INT’L L. 829, 832 (2006)

11 Rigveda Dattatraya Amonkar, Positivism With Reference To American Realism Available at:  http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Rigved.pdf Accessed September 29th 2017.

12 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 460-61 (1897)

13 Constitution of Kenya 2010, Fourt Schedule

14 The standard edition of De l’Esprit des Loix is by J. Brette de la Gressaye, Paris, 1950, 4 vols. Quotations are from the translation by Thomas Nugent, ed. by F. Neumann, New York, 1949.

15 Kenya Law Reforms Commission http://www.klrc.go.ke/index.php/bills/477-development-of-model-laws-on-disaster-management-and-fire-rescue-services on August 30th 2017

16 Preamble, International Covenant on Economic, Social and Cultural Rights , 16 December 1966.

17 Archives.gov. (2015). Featured Document: The Magna Carta. online Available at: http://www.archives.gov/exhibits/featured_documents/magna_carta/ Accessed September 29th 2017.

18 Michael Vaughan After Westphalia, Whither The Nation State, Its People And Its

Governmental Institutions? 2011

19 Hobbes T, Leviathan, Oxford: Oxford University Press, (2012), 72-73.

20 The Constitution of Kenya, Article 26

21 Locke J and Whiston J , Two Treatises of Government,  London printed: Reprinted the seventh time by Whiston Strahan W, Rivington F, Rivington J, Davis L, Owen W, Hawes, Clarke and Collins, Johnston W, White B, Caslon T, Crowder S, Longman T, Law B, Rivington C, E. and C. Dilly, Wilkie J, Cadell T, Baker S, Payne T, Davies T, Robinson G, Becket T, and Robson J, (2012),  427.

22Donnely J, The Relative Universality of Human Rights, Human Rights Quarterly 29 (2), (2007), 281-306.

23 Article 26,29, 40, 43, Constitution of Kenya, (2010).

24’Prof. James E. Mabon: The Philosophy of Law’ Available at: http://home.wlu.edu/~mahonj/PhilLawLecture1NatLaw.htm on 26  September 2017.

25 Maritain J, Man and the State, The Catholic University of America Press, (1951), 82.

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