Does the Constitution assume that infrastructure and extractive projects, often driven by early political backing, must come at a cost to communities? This is especially concerning cases where residents face police shootings, arrests on trumped-up charges, and exorbitant bail terms, such as the Sh1 million imposed on protestors in Ramula and Mwibona after Shanta Gold was licensed.
Dear concerned residents,
This column begins with a firm assertion: The Constitution of Kenya and people’s rights cannot be suspended or undermined, not even under a state of emergency. Consequently, citing the unstoppable momentum of an extractive project backed by political influence as justification is wholly indefensible. Article 1 establishes the Constitution as the supreme law of the Republic, binding all persons and State organs without exception. Every individual and institution, whether natural or legal, is subject to its authority.
The Constitution’s central purpose, reinforced by enabling legislation, is to promote justice. It does so by ensuring that socio-political, economic and legal systems protect ecosystems, prevent harm, punish violators, and reform structures that undermine collective wellbeing. Any attempt to override these principles contradicts the Constitution’s supremacy and its mandate to safeguard justice for all.
Article 10 of the Constitution reminds us that laws, policies, and regulations are tools meant to advance equity, equality, inclusion, and non-discrimination. They should never be applied in ways that defeat or injure justice. In the sphere of natural resource management, however, three competing interests often collide: investors prioritise profits, governments seek taxes, and nature—the most vital stakeholder—remains largely neglected.
Balancing human-centred (anthropocentric) and nature-centred (ecocentric) concerns is complex in legal, social, and economic terms. Yet too often, profits prevail, leaving local communities and other marginalised voices silenced. Investors, through their influence in government bureaucracy, exploit vulnerable environments while suppressing dissent, undermining the very principles Article 10 seeks to uphold.
Siaya County Commissioner Norbert Komora leading security committee officials together with Shanta Gold officials during a site visit to inspect Shanta Gold’s housing project for project-affected persons in Gem, Siaya County.
Photo credit: Alex Odhiambo | Nation Media Group
Before examining the specific objectives of environmental and social impact assessment (ESIA) laws and policies, it is essential to read Articles 22(1), 40, 67, 69, and 70 together. Infrastructure projects that threaten or harm the well-being of communities must be challenged under Article 22(1), which empowers every person to institute court proceedings where a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or is threatened. Article 23 further mandates the High Court to hear and determine such applications, ensuring remedies for violations of constitutional rights.
When agents of the extractive industry, often with government support, seek to acquire land under Article 62(1)(f), several constitutional safeguards come into play. Article 40 protects the property rights of everyone, regardless of whether minerals or other natural resources are present. Article 69(3) clarifies that public land classified under Article 62 must vest in the national government in trust for the people, administered by the National Land Commission (NLC). Article 67(2)(d) and (e) empower the NLC to research land and natural resource use, make recommendations, and investigate community complaints before permits are issued. Article 10(2)(d) enshrines sustainable development as a national value, requiring governance that prioritises environmental integrity and ensures no part of the ecosystem suffers unjust harm.
Environmental and social impact assessment (ESIA) laws derive their legitimacy from Article 69(1), which obligates the State to ensure sustainable exploitation, equitable benefit-sharing, and conservation of natural resources. Paragraph (h) reinforces that these resources must serve the people of Kenya.
ESIA processes that lack credible, inclusive public participation are constitutionally deficient and must be subjected to judicial scrutiny to restore justice. Otherwise, they risk either provoking citizen resistance or enabling exploitative partnerships that suppress dissent through violence.
The law exists to protect the vulnerable and uphold fundamental rights. In enforcing constitutional freedoms, courts are not bound by rigid procedural technicalities. Article 20(3)(b) directs courts to adopt interpretations that most favour the enforcement of rights, while Article 22(3) requires the Chief Justice to ensure that proceedings remain accessible, minimally formal, and free from unreasonable restrictions. This framework guarantees that constitutional justice is substantive rather than merely procedural.
First, law enforcers, who are often the first point of justice, must exercise restraint during protests —such as those in Ramula and Mwibona—where excessive force has led to injury and death, undermining Article 29’s protection of personal security. Second, prosecutors hold critical power in deciding charges, yet the public often perceives allegations against protestors as trumped up, raising concerns about fairness in the justice process.
Third, protestors themselves must uphold the constitutional purpose of demonstrations under Article 37, which is to express dissatisfaction, not to loot or destroy property. Finally, judicial officers sometimes impose exorbitant bail terms, making justice appear as an expensive privilege reserved for a few, contrary to Article 48, which guarantees every person the right of access to justice. Finally, justice must prevail in the circumstances discussed herein.
