1. PROGRESS REPORT Kenya NCCRS Action Plan SC2: Enabling Policy and Regulatory Framework Working Session 27 th -29 th February 2012 KCB KAREN

2. 1.SC2 Scope of Work 2.The Progress Report (Nov 2011 to date) 3.Next Steps 1.SC2 Scope of Work 2.The Progress Report (Nov 2011 to date) 3.Next Steps Overview

3. SC2: Terms of Reference

4. Stage 1 Review of existing umbrella and sectoral policies, legislation and strategies in Kenya, or elsewhere, highlighting strengths and weaknesses relative to the climate change context in Kenya and identify gaps. Review of the current institutional and technical capacity to enhance coordination and implementation of climate change actions, identifying strengths and any areas for improvement. Make recommendations to inform the policy and regulatory framework. Stage 2 The actual formulation of enabling policy and regulatory framework based on outcomes of Stage 1. It is expected to include the following elements: A National Climate Change Policy. A Regulatory Framework to enhance coordination and implementation of climate change actions. Stage 1 Review of existing umbrella and sectoral policies, legislation and strategies in Kenya, or elsewhere, highlighting strengths and weaknesses relative to the climate change context in Kenya and identify gaps. Review of the current institutional and technical capacity to enhance coordination and implementation of climate change actions, identifying strengths and any areas for improvement. Make recommendations to inform the policy and regulatory framework. Stage 2 The actual formulation of enabling policy and regulatory framework based on outcomes of Stage 1. It is expected to include the following elements: A National Climate Change Policy. A Regulatory Framework to enhance coordination and implementation of climate change actions. SC2 Terms of Reference This aims to review international, regional and national policy and legislative instruments relating to climate change with a view of developing a policy and /or legislative framework that promotes coherence, coordination and cooperative governance of climate change issues at the national and county levels.

5. SC2 Deliverables: 1.Legal Preparedness Assessment Report 1.1Enabling Policy and Regulatory Framework Scoping Report for national and county-level climate law action, 1.2Technical and Institutional Capacity for Coordination and Implementation Report 1.3Report from series of stakeholder dialogues on Kenya’s LPAR 2.SC2 Contributions to the Kenya Climate Change Action Plan Master Document 2.1Policy Briefs contributing to other Subcomponents’ contributions 2.2Section on policy, regulatory and institutional framework for Action Plan Master Document as coordinated by SC9 and the CCS 3.Policy and Regulatory Framework 3.1Draft Policy and Regulatory Framework for all options to tailor, amend or enact specific umbrella and sectoral regulations in Kenya 3.2Recommendations for county-level pilot programs for legal reform processes and implementation in 2-3 counties

6. SC2 Deliverables, cont: 4. Integrated Legal Training and County Pilot Programs 4.1Climate law training of future lawyers through Climate Law Working Group at Kenyan universities 4.2Delivery of county level training pilot programs on legislative reform and climate law in 2-3 counties through E-Learning/In-Person Course and County Implementation Guidebook 4.3Delivery of capacity building for the Commission for the Implementation of the Constitution through targeted policy briefings/training materials

7. SC2: The Progress Report

8. Summary of SC2 Consultations Consultations with SC3, SC4, SC8 and others: SC2 has held consultations with SC3, SC4 and SC8 to discuss modalities of sharing information. Consultations and exchange of information is done on a continuous basis and will go on through the process. SC2 has also participated actively in the meetings of the Process, learning about other SC priorities and workplans, and providing legal support on specific issues as requested. Continuing Consultations with Kenyan Government: Building on CCS and other introductions, SC2 has held follow-up consultations with officials from the Ministry of Forestry, Ministry of Agriculture, NCST NEMA, the Task Force on Land and Environment, the Parliamentary Committee on Environment and Natural Resources, to discuss issues of climate change and how to address them within their policies that are being developed. Consultations with Civil Society and Private Sector Stakeholders: SC 2 has engaged in a series of meetings, and joined a forum on climate change that is hosted by civil society and the private sector. SC 2 has contributed presentations on legal aspects of climate change in Kenya, and has shared the workplan that is ongoing with civil society and private sector actors, formally and informally.

9. SC2 Consultation, Outreach, Capacity-Building & Exchange at UNFCCC COP17 in Durban SC 2 helped lead the legal aspects of the UNFCC COP 17 that was held in Durban South Africa from November 28 to December 10 th : ▫ Organization of Conference on Climate Law and Governance in the Global South at University of KwaZulu-Natal Faculty of Law, including a special Plenary Presentation highlighting the Legal Aspects of the Kenya Climate Change Action Plan with speakers from the IDLO Kenyan Legal Team and the CCS (thank you Stephen!); ▫ Together with Climate Lawyers from other developed and developing countries, members of the IDLO Kenya Legal Team participated and made presentations at COP17; ▫ IDLO Kenya Legal Team participated in Kenya COP17 Side-Events & other CDKN events, held consultations with senior officials and collected international legal best practices, and held cooperation meetings with other SCs who were presented; ▫ IDLO Kenya Legal Team, upon request from Kenya and African governments, provided pro bono legal and negotiating support for COP 17 African delegation meetings. SC 2 has developed a Legal Working Brief for the Ministry on the “Legal and Policy Implications of the Durban COP17 Climate Conference” and is presently refining it into a Legal Working Paper on the Legal Implications of the Durban COP 17 for Kenya, which will be supported by detailed Technical Annexes.

10. Legal Preparedness Assessment Report (LPAR) Progress SC2 has begun summarizing our legal analysis into sections of the L- PAR. The following activities have been completed: ▫ Review of the sources of Kenya’s existing policy/legal/institutional framework (Draft LPAR Chapter) ▫ Review of implications of the Constitutional Reform Process for climate change law and policy (Draft LPAR Chapter 1:2) ▫ Desk review and consultations with officials on implications for climate change of consolidation of legislation in the Environment and Natural Resources Sector (Draft LPAR Chapter) ▫ Scoping of policy/law/institutions mandated to address climate change adaptation in Kenya for Northern Kenya and other Arid Lands & Coastal Jurisdictions (Draft LPAR Annex) ▫ Scoping of policy/law/institutions mandated to address climate change mitigation in Kenya for Forests, Transport & Energy (DRAFT LPAR Annex)

11. Climate Law Working Group Engaged As part of its methodology, IDLO pledged to establish a Climate Law Working Group with students from top environment and law schools. Law & policy students competed for specially reserved places, creating a pool of law and policy research assistants to gain training, ‘learning through doing’, networking and small contract opportunities through this project After competing assignments were evaluated by IDLO experts, 6 law and policy researchers were awarded places in the Climate Law Working Group The Climate Law Working Group has held two planning meetings and Training Workshops with the IDLO Legal Team, gaining guidance and support from Kenyan and international climate law experts The Climate Law Working Group is receiving assignments, and also support to publish their work, and to participate in training. The Climate Law Working Group continues to be of assistance in the development of the Action Plan

12. Database SC2 has developed an online legal database of 100+ Kenyan Policies, Laws and Regulations that have implications for climate change, classified by sector and scope of the policies, laws and regulatory instruments. Contents of the Database have been summarized in different tools (Compendia, Indexes, as will be shown in Technical Report), and the instruments have been analysed in accordance with their current status (ie, including new laws and regulations, and also draft Bills). SC2 is now reviewing the Laws and Policies in specific priority areas identified by the CCS and other SCs, with a view to identifying the policies and laws that might foster or frustrate effective action on climate change (mitigation, adaptation, technology, climate finance, as will be shown in Technical Report). This database will be tailored and updated, in order to be integrated in the website designed by SC9 and hosted by the Ministry

13. The Detailed Work Plan (Word document is presented here)

14. Key Action Items Expanded & Comprehensive LPAR Enhanced Stakeholder Involvement Provision of Legal Analysis to other SCs, CCS and Counterparts (briefs, reports) Key Action Items Expanded & Comprehensive LPAR Enhanced Stakeholder Involvement Provision of Legal Analysis to other SCs, CCS and Counterparts (briefs, reports) Fine Tuning the SC2 Work Program

15. SC2: Next Steps

16. SC2 Progress on Work Program Sept - OctNov - DecMar - April Legal Memo on National Policy Framework, Inception Report, Workplans, Legal Briefs for CCS & SCs LPAR Ch 1: Kenya’s Law and Policy Framework & implications for Climate Change Database of legislation, policies and regulations Index / Analysis / Long-list Legal Instruments Jan - Feb LPAR Ch 1, 2 & 3: Initial drafting & taking into account Consultations outcomes LPAR: Table of Contents, Compendia of Kenyan & International Best Practices Kenya Climate Law Working Group LPAR: Legal Working Papers on Regs on Forests, Transport, Energy, Agriculture, IP, Tax & Subsidies Stakeholder Events, Consultations, Summarize for LPAR, Recommendations

17. Annexes

18. Kenya NCCRS Action Plan Subcomponents

19. Importance of laws for climate policy Laws are often mistaken for the ‘stick’ over the ‘carrot.’ They are, however, capable of both functions and more. Laws and institutions not only prohibit or incentivize but they also provide an overall framework that guides public and private sector activities toward desired ends. They furnish government actors with jurisdictional mandates, delineate public and private rights and responsibilities, create project-level programmes and implement fiscal policies that engage investors. Laws and institutions can have a neutral, inhibitive or facilitative effect on climate policy and implementation and are integral to the preparatory process.

20. IDLO Strategic Plan 2009-2012

21. What is the LPAR? The LPAR will provide 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 will provide 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 will provide 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 will provide 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.

22. 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. =