Essay Example on Examine the existence and scope of the legal Framework









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 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 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 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 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 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 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 HYPOTHESES This study is premised on the following assumptions 1 There is a gap in the legislative framework in place in Kenya covering disaster management 2 Public policy documents in place are inadequate to handle national disasters 3 The gap in legislative framework leaves Kenya open to unnecessary risk of damage and injury 4 Disaster management legislation assists nations to prevent disasters prepare for disasters respond to disasters monitor progression of disasters and mitigate damage caused by disasters 5 Disaster management is the mandate of both the county government and the national government The mandate should be executed at both levels 6 Multiple pieces of legislation addressing the same issue has adverse effects 7 One piece of national legislation is more beneficial than a multiplicity of legislation 8 Kenya requires national legislation on disaster management

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