The Climate Change (Amendment) Act 2023

 Introduction 

The Climate Change (Amendment) Act, 2023, represents a watershed moment in Kenya’s unwavering commitment to confront the pressing challenges posed by climate change. This legislative milestone, framed within the context of Kenya’s obligations under the Paris Agreement, carries global significance. This white paper delves into the Act’s core features, including the establishment of a carbon market, strengthening the role of the Climate Change Council (CCC), climate change action plans, the creation of a climate change fund, enhanced enforcement measures, and key changes introduced through the amendment of the Climate Change Act of 2016. 

 Establishment of a Carbon Market 

One of the most prominent features of the Act is the creation of a carbon market, a mechanism enabling businesses to trade carbon credits. These credits represent quantifiable reductions in greenhouse gas emissions, thus incentivizing emission reductions and offsetting environmental impacts. Kenya’s proactive stance on carbon markets extends to international cooperation, positioning the nation to engage in global carbon trading schemes. The National Climate Change Council (NCCC) assumes the responsibility of developing and enforcing market regulations, ensuring transparency, fairness, and accountability. 

 Strengthened Role of the Climate Change Council 

The Climate Change Council (CCC), a pivotal institution in Kenya’s climate policy landscape, gains enhanced authority through this legislation. The Act empowers the CCC to establish binding greenhouse gas emissions targets across economic sectors, further solidifying Kenya’s commitment to emission reduction. Beyond its regulatory functions, the CCC also oversees the implementation of the carbon market, aligning it with overarching climate objectives. 

 Climate Change Action Plans 

Large businesses operating in Kenya are mandated by the Act to create and implement climate change action plans. These plans serve as strategic roadmaps for reducing greenhouse gas emissions and enhancing climate resilience. Moreover, the Act imposes transparency requirements, necessitating businesses to report on their progress in implementing these action plans. 

 Creation of a Climate Change Fund 

The Act establishes a dedicated climate change fund, intended to finance adaptation and mitigation measures. Contributions to the fund come from the government, businesses, and individuals, ensuring a multi-stakeholder approach to climate financing. The fund’s allocation covers a wide spectrum of initiatives, including investments in renewable energy, climate-smart agriculture, ecosystem preservation, and support for vulnerable communities. Stringent mechanisms for transparent fund utilization tracking are integral to the Act, guaranteeing accountability and effectiveness. 

 Enhanced Enforcement 

Recognizing the urgency of addressing climate change, the Act fortifies enforcement mechanisms and penalties for climate change law violations. The NCCC, vested with authority in this regard, possesses investigative powers to address alleged violations and institute enforcement measures. These stringent measures underscore Kenya’s commitment to taking decisive action against climate change offenders. 

 Key Changes to the Climate Change Act 

During the Climate Change Summit, several significant amendments to the Climate Change Act of 2016 were adopted to align with Africa’s commitment to addressing climate change more effectively. These changes include: 

 a) Establishment of African Carbon Markets

African nations, as exemplified in the amendment to section 3 of the Act, commit to developing their own carbon markets. This initiative aims to properly value and trade carbon credits generated through emissions reduction and removal efforts, creating economic opportunities for African countries. 

 b) Principles for Carbon Markets

 The Act mandates that carbon markets adhere to specific principles to effectively reduce greenhouse gas emissions and comply with prescribed carbon standards. 

 c) Enhanced Carbon Registry

The Act includes provisions for enhancing the National Carbon Registry, facilitating more efficient monitoring and documentation of carbon credits generated within the country. This enhanced registry promotes transparency and accessibility for stakeholders and the public. Real-time monitoring systems will be integrated for precise tracking of credit issuance, transfers, and retirements, aligning with international standards and ensuring data security and privacy. 

 d) Cabinet Secretary’s Role

 The Cabinet Secretary will prescribe regulations and guidelines for the optimal functioning and maintenance of the enhanced registry, fostering credibility, accountability, and efficiency within the carbon market. 

 e) Environmental and Social Impact Assessment

 Carbon trading projects sanctioned under this Act must undergo rigorous environmental and social impact assessments, aligning with environmental regulations. This ensures a comprehensive evaluation of potential effects on the environment and society, particularly in projects focused on mitigating emissions linked to deforestation and forest degradation in developing nations. 

 f) Community Development Agreement (CDA)

 Each approved carbon trading project, under the Act, is mandated to establish a comprehensive Community Development Agreement (CDA) with the affected communities. The CDA outlines the rights, obligations, and relationships between project proponents and impacted communities, promoting equitable and sustainable development. 

 g) Dispute Resolution

 The Act establishes a clear mechanism for addressing disputes arising from carbon projects. Land-based projects follow the dispute resolution framework outlined within the Community Development Agreement (CDA). Other disputes not related to land matters are subject to Alternative Dispute Resolution (ADR) and, if necessary, referral to the National Environmental Tribunal for resolution. 

 Conclusion 

The Climate Change (Amendment) Act, 2023, stands as a testament to Kenya’s unwavering dedication to combat climate change and aligning with international commitments like the Paris Agreement. It introduces comprehensive measures to regulate carbon markets, enhance transparency, and promote sustainable development. In doing so, Kenya sets a remarkable example for climate action in Africa and the world. This Act reinforces the imperative of collective action, uniting government, businesses, individuals, and civil society organizations in sculpting a sustainable and resilient future where the pervasive impacts of climate change are mitigated, and the environment is preserved for generations to come. Kenya’s leadership in climate policy serves as a beacon of hope and a model for global climate action. 

Disclaimer: 

The goal of this write-up is to foster an open exchange of ideas and perspectives related to the topic. It is intended to encourage dialogue and invite comments from readers. The information presented should not be construed as legal advice or a definitive position on the matter, and individuals should seek professional legal counsel for specific situations or concerns. A construction attorney is strongly advised.