CHAPTER 1

 

BACKGROUND OF STUDY

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The study seeks to examine the existence and scope of the legal framework governing disaster management in Kenya. The Draft National Policy for Disaster Management (2009) (hereinafter referred to as the Draft Policy) defines a disaster as a serious disruption of the functioning of a community or society causing widespread human, material, economic or environmental loses which exceed the ability of the affected community/society to cope using its own resources.1 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”.2 According to the Draft Policy, Kenya is prone to the following categories of hazards:

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 involves the prevention of disasters, preparedness, relief and recovery in the event disasters occur and will be the focus of this paper.3 This paper seeks to assess the effectiveness of the presence or absence of legislative framework on disaster management. It 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?

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

 

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

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