TECHNICAL UPDATE Kenya NCCRS Action Plan SC2: Enabling Policy and Regulatory Framework Working Sessions KCB Karen, Nairobi Feb 2012

1.Working Method for L-PAR 2.1 Legal Research, Analysis & Review Teams 2.2 Internal Drafting & Quality Control Systems 2.Draft Deliverables to Date 2.1 Scoping Kenya’s Policy & Regulatory Framework 2.2 Analytical Legal Working Papers 2.3 Legal Briefs for Outreach & Collaboration 2.4 L-PAR with Practical Text Recommendations 2.5 Other Reports on Request 3. Next Steps 3.1 Complete Tranches 3, 4 & 5 of LWPs 3.2 Finalise LWPs & L-PAR w Regulatory Options 3.3 Draft Enabling Policy & Regulatory Framework? 1.Working Method for L-PAR 2.1 Legal Research, Analysis & Review Teams 2.2 Internal Drafting & Quality Control Systems 2.Draft Deliverables to Date 2.1 Scoping Kenya’s Policy & Regulatory Framework 2.2 Analytical Legal Working Papers 2.3 Legal Briefs for Outreach & Collaboration 2.4 L-PAR with Practical Text Recommendations 2.5 Other Reports on Request 3. Next Steps 3.1 Complete Tranches 3, 4 & 5 of LWPs 3.2 Finalise LWPs & L-PAR w Regulatory Options 3.3 Draft Enabling Policy & Regulatory Framework? Overview – Technical Update

1. Working Method for L-PAR

Working Method for L-PAR 2.1 Legal Research, Analysis & Review Teams - Kenyan Law Students IDLO Climate Law Working Group, as part of IDLO/CISDL Global Legal Research Group (research / drafting) - IDLO SC2 Legal Specialists Kenya-based IDLO Legal Team & Internationally- based Legal Team (consultations / analysis / drafting / editing) - Kenyan & International SC2 Legal Expert Advisors (advice / review / editing) - Thematic Working Group & Other SCs (advice / review / guidance) - CCS / PS & Task Force (receipt / comment)* 2.1 Legal Research, Analysis & Review Teams - Kenyan Law Students IDLO Climate Law Working Group, as part of IDLO/CISDL Global Legal Research Group (research / drafting) - IDLO SC2 Legal Specialists Kenya-based IDLO Legal Team & Internationally- based Legal Team (consultations / analysis / drafting / editing) - Kenyan & International SC2 Legal Expert Advisors (advice / review / editing) - Thematic Working Group & Other SCs (advice / review / guidance) - CCS / PS & Task Force (receipt / comment)*

Working Method for L-PAR 2.2 Internal & External Drafting & Quality Control Systems - CLWG Researchers: Drafts for peer review - IDLO SC2 Kenyan & International Legal Specialists: Peer review, coordination, integrate consultation outcomes, edit & produce deliverables - International & Kenyan Expert Advisors & Other SCs: Expert review, advice & international best practices - Thematic Working Group / Task Force: National review, guidance & validation - People of Kenya through consultations: National / county ownership, ideas, reality-check 2.2 Internal & External Drafting & Quality Control Systems - CLWG Researchers: Drafts for peer review - IDLO SC2 Kenyan & International Legal Specialists: Peer review, coordination, integrate consultation outcomes, edit & produce deliverables - International & Kenyan Expert Advisors & Other SCs: Expert review, advice & international best practices - Thematic Working Group / Task Force: National review, guidance & validation - People of Kenya through consultations: National / county ownership, ideas, reality-check

2.Draft Deliverables to Date

Draft Deliverables to Date 2.1 Scoping Kenya’s Policy & Regulatory Framework - Compendium of Laws and Policies related to Climate Change in Kenya - Index to Online Database of Kenyan Legal Instruments related to Climate Change (Long-List of Laws) 2.2 Legal Working Papers with Policy/Laws, Capacity, Compliance, Barriers / Opportunities, International Best Practices & Practical Recommendations - Legal Working Paper: Legal & Institutional Framework in Kenya for Forestry (REDD+) - Legal Working Paper: Legal and Institutional Framework in Kenya for Climate Change Mitigation in the Transport Sector - Legal Working Paper: Legal and Institutional Framework in Kenya for Climate Change Mitigation in the Energy Sector - Legal Working Paper: Legal and Institutional Framework in Kenya for Climate Change Adaptation in the Northern Kenya and Arid Lands - Legal Working Paper: Legal and Institutional Framework in Kenya for Climate Change Adaptation Issues in Coastal Jurisdictions 2.1 Scoping Kenya’s Policy & Regulatory Framework - Compendium of Laws and Policies related to Climate Change in Kenya - Index to Online Database of Kenyan Legal Instruments related to Climate Change (Long-List of Laws) 2.2 Legal Working Papers with Policy/Laws, Capacity, Compliance, Barriers / Opportunities, International Best Practices & Practical Recommendations - Legal Working Paper: Legal & Institutional Framework in Kenya for Forestry (REDD+) - Legal Working Paper: Legal and Institutional Framework in Kenya for Climate Change Mitigation in the Transport Sector - Legal Working Paper: Legal and Institutional Framework in Kenya for Climate Change Mitigation in the Energy Sector - Legal Working Paper: Legal and Institutional Framework in Kenya for Climate Change Adaptation in the Northern Kenya and Arid Lands - Legal Working Paper: Legal and Institutional Framework in Kenya for Climate Change Adaptation Issues in Coastal Jurisdictions

Draft Deliverables to Date 2.3 Legal Briefs for Outreach & Collaboration - Legal Brief: An Introduction to Kenyan Laws and Governance Systems - Legal Brief: Implications of Durban COP 17 Outcomes for Developing Countries - Legal Brief: Options for Legal Incorporation of a Climate Finance Instrument 2.4 L-PAR with Practical Legal Options / Recommendations - Chapter: Kenya’s Governance Framework and Sources of Law - Chapter: Kenya’s Constitutional Reform and Implementation Process - Chapter: Policies/Laws/Regulations/Guidelines on Adaptation - Chapter: Policies/Laws/Regulations/Guidelines on Mitigation - Chapter: Policies/Laws/Regulations/Guidelines on Finance - Chapter: Policies/Laws/Regulations/Guidelines on Technology 2.5Other Reports for CCS / Task Force / SCs on Request - Draft Legal Memo on a National Policy (on hold) - Brief Overview of the Constitutional Reform Process in Kenya (SC8) - Draft Report Legal Implications Cancun/Durban COP Outcomes for Kenya (CCS) 2.3 Legal Briefs for Outreach & Collaboration - Legal Brief: An Introduction to Kenyan Laws and Governance Systems - Legal Brief: Implications of Durban COP 17 Outcomes for Developing Countries - Legal Brief: Options for Legal Incorporation of a Climate Finance Instrument 2.4 L-PAR with Practical Legal Options / Recommendations - Chapter: Kenya’s Governance Framework and Sources of Law - Chapter: Kenya’s Constitutional Reform and Implementation Process - Chapter: Policies/Laws/Regulations/Guidelines on Adaptation - Chapter: Policies/Laws/Regulations/Guidelines on Mitigation - Chapter: Policies/Laws/Regulations/Guidelines on Finance - Chapter: Policies/Laws/Regulations/Guidelines on Technology 2.5Other Reports for CCS / Task Force / SCs on Request - Draft Legal Memo on a National Policy (on hold) - Brief Overview of the Constitutional Reform Process in Kenya (SC8) - Draft Report Legal Implications Cancun/Durban COP Outcomes for Kenya (CCS)

Selected Deliverables Legal Working Paper: The Legal and Institutional Framework in Kenya for Climate Change Mitigation in the Energy Sector This Legal Working Paper scopes Kenyan laws, policies and institutions related to climate change mitigation in the Energy Sector. Preliminary results of this analysis show that the Energy Act, 2006, supplemented by various government policies, provides a legal and institutional framework for climate change mitigation in the Energy Sector. Several institutions are involved with varying levels of capacity, and many mitigation measures and programs have been established, such that improved coordination could be considered. Compliance mechanisms are still under development and may require strengthening. This Legal Working Paper provides the necessary depth, background, gap analysis and innovations/best practices to inform the consultations, expert reviews and final editing planned for the development and publishing of Kenya’s Legal Preparedness Assessment Report (LPAR), which informs the Draft Enabling Policy and Regulatory Framework in the Action Plan. Legal Working Paper: The Legal and Institutional Framework in Kenya for Climate Change Mitigation in the Energy Sector This Legal Working Paper scopes Kenyan laws, policies and institutions related to climate change mitigation in the Energy Sector. Preliminary results of this analysis show that the Energy Act, 2006, supplemented by various government policies, provides a legal and institutional framework for climate change mitigation in the Energy Sector. Several institutions are involved with varying levels of capacity, and many mitigation measures and programs have been established, such that improved coordination could be considered. Compliance mechanisms are still under development and may require strengthening. This Legal Working Paper provides the necessary depth, background, gap analysis and innovations/best practices to inform the consultations, expert reviews and final editing planned for the development and publishing of Kenya’s Legal Preparedness Assessment Report (LPAR), which informs the Draft Enabling Policy and Regulatory Framework in the Action Plan.

Selected Deliverables Legal Working Paper: The Legal and Institutional Framework in Kenya for Climate Change Adaptation Issues in Coastal Jurisdictions This Legal Working Paper scopes Kenyan laws, policies and institutions related to climate change adaptation in the Coastal Jurisdictions. Preliminary results of this analysis show that there is a gap in legislation, with few specific laws or institutions that directly address climate change adaptation in coastal areas of Kenya. Gaps in legal provisions may be bridged by recent government policies and strategies such as Vision 2030 and the National Climate Change Response Strategy, However, increased collaboration and coordination is needed between implementing agencies, and laws may be needed to backstop and secure compliance. This Legal Working Paper provides the necessary depth, background, gap analysis and innovations/best practices to inform the consultations, expert reviews and final editing planned for the development and publishing of Kenya’s Legal Preparedness Assessment Report (LPAR), which informs the Draft Enabling Policy and Regulatory Framework in the Action Plan. Legal Brief: An Introduction to Kenyan Laws and Governance Systems Legal Working Paper: The Legal and Institutional Framework in Kenya for Climate Change Adaptation Issues in Coastal Jurisdictions This Legal Working Paper scopes Kenyan laws, policies and institutions related to climate change adaptation in the Coastal Jurisdictions. Preliminary results of this analysis show that there is a gap in legislation, with few specific laws or institutions that directly address climate change adaptation in coastal areas of Kenya. Gaps in legal provisions may be bridged by recent government policies and strategies such as Vision 2030 and the National Climate Change Response Strategy, However, increased collaboration and coordination is needed between implementing agencies, and laws may be needed to backstop and secure compliance. This Legal Working Paper provides the necessary depth, background, gap analysis and innovations/best practices to inform the consultations, expert reviews and final editing planned for the development and publishing of Kenya’s Legal Preparedness Assessment Report (LPAR), which informs the Draft Enabling Policy and Regulatory Framework in the Action Plan. Legal Brief: An Introduction to Kenyan Laws and Governance Systems

Selected Deliverables Legal Brief: An Introduction to Kenyan Laws and Governance Systems This Brief provides a very simple layman’s terms explanation of the sources of Kenyan policies, laws and institutions, to explain and set common terms for discussions of Kenya’s laws and policies among stakeholders and international experts. It includes a description of the Judicature Act, the Constitution of Kenya among other various instruments that are important in the law making process for Kenya. This Legal Brief was requested in Consultations and Work Planning processes of the Task Force in the fall of 2011, including by the Co-Chair of the Task Force, and is already completed and in use for exchanges with experts and capacity-building. Legal Brief: An Introduction to Kenyan Laws and Governance Systems This Brief provides a very simple layman’s terms explanation of the sources of Kenyan policies, laws and institutions, to explain and set common terms for discussions of Kenya’s laws and policies among stakeholders and international experts. It includes a description of the Judicature Act, the Constitution of Kenya among other various instruments that are important in the law making process for Kenya. This Legal Brief was requested in Consultations and Work Planning processes of the Task Force in the fall of 2011, including by the Co-Chair of the Task Force, and is already completed and in use for exchanges with experts and capacity-building.

Selected Deliverables Legal Brief: Legal Options for Establishing the Climate Finance Instrument This Brief provides a description of options in clear technical legal terms of the Kenyan policies, laws and institutions that might govern the establishment / incorporation of new climate finance entities, to explain and set common terms for discussions of Kenya’s laws and policies for registration and governance of entities, among stakeholders and international experts. It includes a description of the various applicable acts, comparisons of how several similar instruments are incorporated. This Legal Brief has been requested in Consultations and Work Planning processes of the Action Plan in February 2012, including by the leading international consultants from SC8, and will be completed by March Legal Brief: Legal Options for Establishing the Climate Finance Instrument This Brief provides a description of options in clear technical legal terms of the Kenyan policies, laws and institutions that might govern the establishment / incorporation of new climate finance entities, to explain and set common terms for discussions of Kenya’s laws and policies for registration and governance of entities, among stakeholders and international experts. It includes a description of the various applicable acts, comparisons of how several similar instruments are incorporated. This Legal Brief has been requested in Consultations and Work Planning processes of the Action Plan in February 2012, including by the leading international consultants from SC8, and will be completed by March 2012.

3. Next Steps

Next Steps 3.1 Finish Legal Working Papers with Practical Recommendations based on International and Kenyan Legal Best Practices, Review of Institutional Capacity and Compliance Mechanism Legal Preparedness for Mitigation: - The Legal and Institutional Framework in Kenya for Climate Change Mitigation through Agriculture -The Legal and Institutional Framework in Kenya for Climate Change Mitigation through Waste - The Legal and Institutional Framework in Kenya for Climate Change Mitigation through Industrial Processes Legal Preparedness for Climate Finance: - The Subsidies &Tax Legal and Institutional Framework in Kenya for Climate Finance - The Trade & Investment Legal and Institutional Framework in Kenya for Climate Finance - The Commercial & Banking Legal and Institutional Framework in Kenya for Climate Finance - The Legal Form of a Kenyan Climate Finance Instrument Legal Preparedness for Climate Technology Transfer: - The Legal and Institutional Intellectual Property Framework in Kenya for Climate Change Legal Preparedness for Adaptation: - 4 top priorities to be identified (from 9 expansive planning topics) 3.1 Finish Legal Working Papers with Practical Recommendations based on International and Kenyan Legal Best Practices, Review of Institutional Capacity and Compliance Mechanism Legal Preparedness for Mitigation: - The Legal and Institutional Framework in Kenya for Climate Change Mitigation through Agriculture -The Legal and Institutional Framework in Kenya for Climate Change Mitigation through Waste - The Legal and Institutional Framework in Kenya for Climate Change Mitigation through Industrial Processes Legal Preparedness for Climate Finance: - The Subsidies &Tax Legal and Institutional Framework in Kenya for Climate Finance - The Trade & Investment Legal and Institutional Framework in Kenya for Climate Finance - The Commercial & Banking Legal and Institutional Framework in Kenya for Climate Finance - The Legal Form of a Kenyan Climate Finance Instrument Legal Preparedness for Climate Technology Transfer: - The Legal and Institutional Intellectual Property Framework in Kenya for Climate Change Legal Preparedness for Adaptation: - 4 top priorities to be identified (from 9 expansive planning topics)

Next Steps, cont 3.2 Complete further Legal Briefs for outreach, with potential topics: - Are there legal briefs needed in the area of Mitigation? - Are there legal briefs needed in the area of Adaptation? - Are there legal briefs needed in the area of Technology? - Are there further legal briefs needed in the area of Climate Finance? 3.3 Host Stakeholder Dialogues & Participate in Consultations 3.4 Finalise LPAR with texts of Practical Legal Best Practices & Regulatory Options 3.5 Based on LPAR, provide Practical Options and Drafting Recommendations for Enabling Policy & Regulatory Framework for Kenya’s Climate Change Action Plan 3.6 Complete Training Materials and Pilot County Legal Capacity-Building /Action Plans 3.2 Complete further Legal Briefs for outreach, with potential topics: - Are there legal briefs needed in the area of Mitigation? - Are there legal briefs needed in the area of Adaptation? - Are there legal briefs needed in the area of Technology? - Are there further legal briefs needed in the area of Climate Finance? 3.3 Host Stakeholder Dialogues & Participate in Consultations 3.4 Finalise LPAR with texts of Practical Legal Best Practices & Regulatory Options 3.5 Based on LPAR, provide Practical Options and Drafting Recommendations for Enabling Policy & Regulatory Framework for Kenya’s Climate Change Action Plan 3.6 Complete Training Materials and Pilot County Legal Capacity-Building /Action Plans

Kenya’s laws, policies and regulations relating to climate change include over 90 Acts of Parliament and Policies, with 100s of further Statutory Instruments. Many of these laws, policies and regulations are currently under revision. Kenya’s legal and institutional framework is undergoing significant changes in several sectors (Constitution, agriculture, water, environment...) The Commission on the Implementation of the Constitution is currently reviewing the Environmental and Natural Resources sector, to harmonize the legal and institutional framework with the new bill of rights, devolution, setoral laws. Kenya’s laws, policies and regulations relating to climate change include over 90 Acts of Parliament and Policies, with 100s of further Statutory Instruments. Many of these laws, policies and regulations are currently under revision. Kenya’s legal and institutional framework is undergoing significant changes in several sectors (Constitution, agriculture, water, environment...) The Commission on the Implementation of the Constitution is currently reviewing the Environmental and Natural Resources sector, to harmonize the legal and institutional framework with the new bill of rights, devolution, setoral laws. Interesting Further Findings

MERCI / THANK YOU / GRACIAS / ASANTE

Annexes

IDLO Strategic Plan

What is the LPAR? The LPAR provides a comprehensive review of all existing umbrella and sectoral policies, legislation and strategies, international commitments, and institutional and technical capacity in Kenya at the national and county levels highlighting strengths and weaknesses relative to the climate change context with clear recommendations on the scope of enabling policy, legislation and institutional frameworks to be developed. The LPAR provides the Government of Kenya with a list of optional solutions with a clear prioritization of models based on realistic prospects for coordination and implementation at the county level. The LPAR provides a comprehensive review of all existing umbrella and sectoral policies, legislation and strategies, international commitments, and institutional and technical capacity in Kenya at the national and county levels highlighting strengths and weaknesses relative to the climate change context with clear recommendations on the scope of enabling policy, legislation and institutional frameworks to be developed. The LPAR provides the Government of Kenya with a list of optional solutions with a clear prioritization of models based on realistic prospects for coordination and implementation at the county level.

LPAR Table of Contents Structure of the Kenya LPAR Chapter 1: Executive Summary of Report 1.1 Introduction 1.2 Purpose and Methodology 1.3 Presentation and Explanation of the Database of Kenyan Laws on Climate Change 1.4 Principal Findings & Recommendations with Draft Legal Provisions 1.5 Summary of Annexes 1.6 Conclusion Chapter 2: Annex 1- Foundations of the Kenya Policy and Regulatory Framework 2.1 Introduction 2.2 Kenya’s Governance Framework and Sources of Law 2.3 Constitutional Reform and Implementation Process Chapter 3: Annex 2- Scoping Report of the Kenya Policy, Regulatory and Institutional Framework for Climate Change Responses 3.1 Introduction 3.2 Summary of Action Plan Components examined in the Scoping Report 3.3 Adaptation Planning and Actions (NAP): Analysis of the Existing National Policy, Regulatory and Institutional Framework [Key policies/laws/regulations to be determined]

LPAR Table of Contents, cont 3.4 Mitigation Planning and Actions (NAMAs): Analysis of the Existing National Policy, Regulatory and Institutional Framework - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Energy Sector - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Forests Sector - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Waste Sector - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Agriculture Sector - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Transport Sector - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Industrial Processes Sector 3.5 Technology Transfer and R&D: Analysis of the Existing National Policy, Regulatory and Institutional Framework - Summary of Policy & Legal Challenges, Innovations & Recommendations for Intellectual Property Law 3.6 Climate Finance: Analysis of the Existing National Policy, Regulatory and Institutional Framework - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Tax & Subsidies Law - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Trade & Investment Law - Summary of Climate Policy & Legal Challenges, Innovations & Recommendations for Commercial & Banking Law Chapter 4:Annex 3 - Institutional Coordination and Implementation Report for the National Policy Framework 4.1 Overview Scoping Report of Existing Institutional Coordination and Implementation for Climate Change Responses in Kenya 4.2 Detailed Analysis Report of National Institutional and Policy Framework 4.3 Review of Existing Best Practices for Institutional Coordination and Implementation 4.4 Conclusions and Recommendations for the Action Plan for Institutional Coordination and Implementation and the National Policy Framework

What is Regulatory Framework? Will constitute a detailed multi-jurisdictional and cross-sectoral implementation regulatory plan to overcome gaps, barriers and challenges identified under the LPAR. In order to promote coherence and country ownership and also to lower transaction costs, IDLO solutions give priority to strategies that are built from existing laws, regulations and policies. Therefore, legislative mechanisms to strengthen laws through tailoring, such as amendments, by-laws and regulatory guidelines and standards will be recommended where possible. Recommendations for reform could also be incorporated into one omnibus draft regulatory instrument that impacts legislation in multiple sectors at once, such as an “Act to Implement the National Climate Change Policy”; through amendment to the EMCA; or even through the enactment of a new umbrella “Climate Change Act”. The Regulatory Framework may also employ a graduated approach to implementation over time in an order that reflects realistic relationships between different pieces of legislation and jurisdictional mandates. = Will constitute a detailed multi-jurisdictional and cross-sectoral implementation regulatory plan to overcome gaps, barriers and challenges identified under the LPAR. In order to promote coherence and country ownership and also to lower transaction costs, IDLO solutions give priority to strategies that are built from existing laws, regulations and policies. Therefore, legislative mechanisms to strengthen laws through tailoring, such as amendments, by-laws and regulatory guidelines and standards will be recommended where possible. Recommendations for reform could also be incorporated into one omnibus draft regulatory instrument that impacts legislation in multiple sectors at once, such as an “Act to Implement the National Climate Change Policy”; through amendment to the EMCA; or even through the enactment of a new umbrella “Climate Change Act”. The Regulatory Framework may also employ a graduated approach to implementation over time in an order that reflects realistic relationships between different pieces of legislation and jurisdictional mandates. =