Green energy and sustainable environmental management do not exist in a legal vacuum. In Kenya, their foundation is firmly anchored in the Constitution of Kenya, 2010, particularly Article 69, which places clear environmental obligations on the State.
Article 69 requires the State to establish systems of Environmental Impact Assessment (EIA), environmental audit, and environmental monitoring. Through these mechanisms, Kenya seeks to operationalise two cornerstone principles of sustainable development: the precautionary principle and the polluter pays principle.
Against this constitutional backdrop, attention now turns to the National Construction Authority (Amendment) Bill, 2025, which proposes to reshape how environmental sustainability is addressed within the construction sector.
Article 69: The Constitutional Anchor for Sustainable Development
Article 69 is not merely aspirational. It is a binding constitutional directive that compels the State to promote sustainable use of natural resources, establish effective environmental governance systems, ensure compliance with environmental standards through monitoring and audits, and prevent environmental harm before it occurs.
Any legislation touching on construction, climate resilience, or green energy must therefore be measured against this constitutional standard.
The National Construction Authority (Amendment) Bill, 2025: A Green Turn in Construction Law
The Bill seeks to amend the National Construction Authority Act (Cap 118) by introducing provisions on environmentally sustainable construction practices, climate change resilience in building design, renewable energy integration, and broader environmental compliance within construction regulation.
At face value, this shift appears progressive and necessary in a rapidly urbanising country.
Unease Among Built Environment Professionals
No sooner had the Bill been introduced than it sparked concern among architects and other professionals in the built environment sector. These professionals argue that some provisions of the Bill may encroach on the constitutional functions of county governments and overlap with mandates already assigned to other regulatory bodies.
The Problem of Overlapping Mandates
Traditionally, the role of the National Construction Authority has been to ensure quality assurance in the built environment. The proposed amendments significantly expand its mandate into environmental enforcement, potentially creating conflict with existing institutions such as NEMA and county governments.
The risk is duplication of roles, regulatory confusion, and jurisdictional conflict outcomes that could ironically undermine Article 69 itself.
Promote or Enforce? The Core Debate
At the heart of the controversy lies a key question: should the National Construction Authority promote green construction, or enforce it? Many professionals argue that NCA’s proper role should be to encourage, guide, and build capacity for sustainable construction, while leaving strict environmental enforcement to NEMA and development approvals to county governments.
A Promising Bill But Premature
The intentions behind the Bill are commendable. Kenya does need stronger legal tools to support climate resilience and sustainable construction. However, in its current form, the Bill appears rushed and insufficiently harmonised with existing legal frameworks.
Fortunately, the Bill is still at an early stage, which presents an opportunity for public participation, stakeholder engagement, and legislative refinement.
The Way Forward: Coordination, Not Competition
A national commitment to green development aligns with Article 69 of the Constitution and should be embraced. What is needed is clear definition of institutional roles, harmonisation between NCA, NEMA, and county governments, and a framework that promotes cooperation rather than regulatory competition.
If properly refined, the National Construction Authority Amendment Bill could become a powerful tool for advancing sustainable development in Kenya.
