SECOND KENYA URBAN SUPPORT PROGRAM (KUSP2) (P177048) ENVIRONMENTAL AND SOCIAL SYSTEM ASSESSMENT (ESSA) May 2023 Table of Contents List of Acronyms i Executive Summary I 1. PROGRAM DESCRIPTION 1 1.1 Background 1 1.2 Governments Program 2 1.3 Program Description 2 1.4 Program Institutional and Implementation Arrangements 4 1.5 Results Monitoring and Evaluation 6 1.6 Disbursement Arrangements Error! Bookmark not defined. 1.7 Capacity Building 6 1.8 Environmental and Social Systems Assessment Scope and Methodology 7 1.8.1 Purpose and Objectives 7 1.8.2 Approach of the ESSA 7 1.8.3 The ESSA Methodology 8 2.ENVIRONMENTAL, SOCIAL, HEALTH AND SAFETY EFFECTS OF THE PROGRAM 10 2.1 Introduction 10 2.2 Scope of Projects and Environment & Social Risk Rating 10 2.3 Exclusion Criteria 10 2.4 Potential Environmental Health and Safety Benefits 11 2.5 Potential Environmental, Health and Safety Risks and Impacts 11 2.6 Potential Social Benefits 12 2.7 Potential Social Risks and Impacts 13 3. OVERVIEW OF RELEVANT COUNTRY POLICY, LEGAL, REGULATORY AND INSTITUTIONAL SYSTEMS FOR ENVIRONMENT, SOCIAL, HEALTH AND SAFETY MANAGEMENT 16 3.1 Land Management 33 4.INSTITUTIONAL RESPONSIBILITIES FOR MANAGEMENT OF ENVIRONMENTAL, SOCIAL HEALTH AND SAFETY SYSTEMS 38 5.COMPARATIVE SYSTEM ANALYSIS OF BORROWERS ENVIRONMENTAL, SOCIAL, HEALTH AND SAFETY SYSTEM IN RELATION TO THE PforR CORE PRINCIPLES AND KEY PLANNING ELEMENTS 45 6.CAPACITY ASSESSMENT FOR MANAGING PROGRAM ENVIRONMENTAL SOCIAL HEALTH AND SAFETY EFFECTS 62 6.1Directorate of Occupational Safety Health and Services (DOSHS) 62 6.2National Environment Management Authority (NEMA) 63 6.3Kenya School of Government (KSG) 64 6.4The National Environment Complaints Committee (NECC) 65 6.5 The National Gender and Equality Commission (NGEC) 66 6.6 National Construction Authority (NCA) 66 6.7 The State Department for Social Protection and Security 67 6.8 The Council of Governors (CoG) 68 6.9 The State Department of Housing and Urban Development (SDHUD) 68 6.10 National Land Commission (NLC) 69 6.11 National Commission on Administrative Justice (CAJ) 70 7.LESSONS LEARNT FROM PforR’s IN THE URBAN SECTOR 71 8.MEASURES TO STRENGTHEN SYSTEM AND INSTITUTIONAL PERFORMANCE 72 8.1Program Design Recommendations 72 8.2Recommendations for the Program Action Plan 74 9.ANNEXES AND REFERENCE DOCUMENTS 76 List of Tables Table 1: Program Action Plan (PAP) ....................................................................................................... Table 2: Proposed PDO-level result Indicators .................................................................................... 3 Table 3: Disbursement Linked Indicators (DLIs)................................................................................... 4 Table 4: Key Risk/Impacts and proposed Management Measures ................................................... 13 Table 5: Relevant Policy, Legal, and Regulatory Framework for Environment, Social, Health and Safety Management ........................................................................................................................... 17 Table 6: Legal and regulatory frameworks for land management .................................................... 33 Table 7: Institutional Responsibilities for Management of Environmental and Social Effects ......... 39 Table 8: Analysis of borrowers Environmental, Social, Health and Safety system in relation to the PforR Core Principles.......................................................................................................................... 46 Table 9: Program Action Plan for ESHS management ....................................................................... 74 List of Annexes Annex 1: UDG Eligible and Non-Eligible Expenditure Menu .............................................................. 76 Annex 2: Environmental, Social, Health and Safety Management Manual....................................... 80 Annex 3: Key Environmental Social Health and Safety Effects Associated with Program Activities . 82 Annex 4 Land Tenure Systems in Kenya ............................................................................................ 89 Annex 5: Environmental and Social Systems Assessment National Level Consultations .................. 91 Annex 6: Environmental and Social Systems Assessment County Level Consultations .................. 105 Annex 7: System Assessment Questionnaire................................................................................... 125 Annex 8 Capacity Assessment Tool (CAT) .......................................... 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List of Acronyms APA Annual Performance Assessments ARAP Abbreviated Resettlement Action Plan ASALs Arid and Semi-Arid Lands CAJ Commission of Administration and Justice CCAP Climate Change Action Plan CDE County Director of Environment CECM County Executive Committee Member CIDP County Integrated Development Plans CoG Council of Governors CoK Constitution of Kenya COVID-19 Corona Virus Disease CPCT County Program Coordination Team CPF Country Partnership Framework CPP Consultation and Public participation CPSB County Public Service Board CRA Commission on Revenue Allocation DA Designated Account DLI Disbursement Linked Indicator DLR Disbursement Linked Result DOSHS Directorate of Occupational Safety and Health Services DRS Department of Refugee Services E&S Environment and Social EEHP Eastern Electricity Highway Project EIA/EA Environmental Impact Assessment/Environmental Audit EMCA Environmental Management and Coordination Act ESF Environment and Social Framework ESHS Environment Social Health and Safety ESHSM Environment Social Health and Safety Management ESIA Environment and Social Impact Assessment ESMP Environment and Social Management Plans ESSA Environment and Social System Assessment FLLoCA Financing Locally Led Climate Action Program FY Financial Year GBV Gender Based Violence GDP Gross Domestic Product GEMS Geo-Enabling Initiative for Monitoring and Supervision GHG Greenhouse Gas GoK Government of Kenya GRM Grievance Redress Mechanism HDI Human Development Index HIV/AIDs Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome IDeP Integrated Development plan IGRA Intergovernmental Relations Act IP Indigenous People IPF Investment Project Financing IVA Independent Verification Agency i KADP Kenya Accountable Devolution Program KARA Kenya Alliance of Resident Associations KDSP Kenya Devolution Support Program KEBS Kenya Bureau of Standards KeNHA Kenya National Highways Authority KenUP Kenya Urban Program KeRRA Kenya Rural Roads Authority KFS Kenya Forest Service KISIP Kenya Informal Settlements Improvement Project KSG Kenya School of Government KURA Kenya Urban Roads Authority KUSP Kenya Urban Support Program KUSP2 Second Kenya Urban Support Program KWS Kenya Wildlife Service LAR Land Acquisition and Resettlement LWF Lutheran World Federation M&E Monitoring and Evaluation MC Minimum Condition MDAs Ministries, Departments and Agencies MoITED Ministry of Industrialization, Trade and Enterprise Development MSME Micro, Small and Medium Enterprises MSWM Municipal Solid Waste Management NACOSH National Advisory Committee on Occupational Safety and Health NCA National Construction Authority NCCRS National Climate Change Response Strategy NCPWD National Council for Persons with Disability NECC National Environmental Complaints Committee NEMA National Environmental Management Authority NEP National Environment Policy NET National Environment Tribunal NGAO National Government Administration Officers NGEC National Gender Equality Commission NLC National Land Commission NMK National Museums of Kenya NMT Non-Motorised Transport NPCT National Program Coordination Team NT National Treasury NUDP National Urban Development Policy OHS Occupational Health and Safety OAU Organization of African Unity PAP Program Action Plan PCR Physical Cultural Resources PDO Program Development Objective PforR Program-for-Results PIU Program implementing Unit PLUPA Physical and Land Use Planning Act PLWD Persons Living with Disability POM Program Operation Manual ii PS Performance Standard PSC Program Steering Committee PTC Program Technical Committee PWD Persons with Disability QAR Quality Assurance Review RA Result Area SDD State Department of Devolution SDG Sustainable Development Goals SDHUD State Department for Housing and Urban Development SEA/SH Sexual Exploitation and Abuse/Sexual Harassment SEP Stakeholder Engagement Plan SoE Statement of Expenditure SOP Standard Operating Procedure STDs Sexually Transmitted Diseases ToT Training of Trainers UACA Urban Areas & Cities Act UDG Urban Development Grant UIG Urban Institutional Grant UNHCR United Nations High Commissioner for Refugees UNHABITAT United Nations Human Settlements Programme VMG Vulnerable and Marginalized Groups WASH Water Sanitation and Hygiene WB World Bank WHR Window for Host Communities and Refugees WIBA Work Injury Benefits Act WRA Water Resource Authority iii Executive Summary Introduction The Government of Kenya (GoK) through the Kenya Vision 2030 recognizes sustainable urbanization as key to overall national economic growth. The draft Fourth Medium Term Plan (2023 – 2027), identifies urbanization among the six sectors under the Social Pillar to drive socio-economic development. The governance and management of urban areas and cities resides in urban boards, who under delegated authority from county governments, exercise various powers, functions and responsibilities defined under the Urban Areas and Cities Act (UACA). Through the Ministry of Lands, Public Works, Housing and Urban Development, the Government of Kenya (GoK) plans to implement the Second Kenya Urban Support Program (KUSP2) in financial year 2022/23. The KUSP2 is anchored on the GoK´s Program, the Second Kenya Urban Program (KenUP2, 2022-2026). KenUP2’s goal is to leverage urbanization as the road to national modernization, promoting effective urban planning and management systems, through Counties, as primary providers of public service delivery. Whereas the main objective of KUSP2 (herein referred to as the Program), is to strengthen county and urban boards institutional capacities to improve urban service delivery and private sector competitiveness. The KUSP2 is a hybrid operation with Program-for-Results (PforR) and Investment Project Financing (IPF)1. This Environmental and Social Systems Assessment (ESSA) has been prepared by the World Bank (hereafter the Bank) for the Program-for-Results (PforR)2 component of the Program. In accordance with requirements of the World Bank Policy Program-for-Results Financing (PforR Policy), PforR’s rely on country-level systems for the management of environmental and social effects3. Further, the Bank’s Environment and Social Framework (ESF), 2018, will be applied in the management of environmental, social, health and safety risks and impacts associated with Program activities financed under the IPF component. Program Description The Program aims to address challenges and binding constraints to be tackled at both national and sub-national levels with a focus on urban services, the important linkage between capacity building, infrastructure development and improvements in service delivery in urban areas. The KUSP2 will focus on: (i) Urban development challenges by focusing on urban institutions, urban finance, planning, infrastructure & service delivery; (ii) Governance challenges through considering national and county government capacities, public investment management, own source revenue, human resource management, accountability & participation, budgeting and funds flow, cash management, financial reporting, inter-governmental relations, that impact on the management of urban areas and the delivery of urban infrastructure & services; (iii) Private sector driven economic growth and job creation; (iv) Impacts of climate change impacts in cities; , (v) Gender gaps in urban areas through 1 Investment Project Financing by the Bank aims to promote poverty reduction and sustainable development of member countries by providing financial and related operational support to specific Projects that promote broad-based economic growth, contribute to social and environmental sustainability, enhance the effectiveness of the public or private sectors, or otherwise contribute to the overall development of member states. The Bank disburses the proceeds of Bank Loans against specific eligible expenditures. 2 PforR operations finances and supports borrowers’ Programs or sub-Programs; disburses upon achievement of Program results; focuses on strengthening the institutional capacity and the processes and procedures needed for Programs to achieve their desired results; and provides assurance that Bank financing is used appropriately, and th at the Program’s environmental and social aspects are addressed. PforR implementation involves monitoring the performance of the institutional arrangements monitoring and verifying results. PforR encourages flexible processes, with collaboration between the borrower and the Bank in assessing, planning, and adapting as necessary to each Program context. 3 Effects� is used throughout this document to refer collectively to benefits, impacts, and risks. The term benefits refer to positive consequences and the term impacts refers to adverse or negative consequences of actions taken. Risk is used to denote the potential for loss or damage of something of environmental and social value. Risk is typically expressed in terms of probability and severity of consequences occurring in the future. I facilitating inclusion and reducing inequalities, and (vi) support the transition of refugee camps into integrated host community and refugee settlements. The Project Development Objective (PDO) is to strengthen the capacities of urban institutions to (i) improve the delivery and resilience of urban infrastructure and services, (ii) enhance private sector engagement in urban planning, and (iii) support the transition of refugee camps into integrated host community and refugee settlements. The KUSP2 will directly benefit; (a) National government and urban boards through Program management, technical assistance, national level institutional and capacity development support, and (b) Incentivize County governments and urban boards through Urban Institutional Grants (UIGs) and Urban Development Grants (UDGs). The Program will support reforms and interventions under five Result Areas (RAs) that entail: i. RA 1: Strengthened institutions for urban service delivery, to clarify roles and responsibilities in urban development, strengthen the management of urban institutions, and enhance the financing of urban areas. ii. RA 2: Integrated planning for inclusive and resilient urban areas, to enhance the planning and development control capacity of urban institutions, strengthen urban planning instruments, including incorporating climate and gender considerations, and improve the implementation and monitoring of plans. iii. RA 3: More inclusive and resilient urban services and infrastructure, to improve access to urban infrastructure and services, as well as strengthening their resilience and sustainability. iv. RA 4: Improved private sector engagement, to build county and urban areas institutional capabilities to support private sector investments and enhance local firms' competitiveness. v. RA 5: Improved integrated development between refugees and host communities, to support establishment of a unified urban institution to lead joint planning (both urban, land use and investment planning), joint infrastructure and service delivery. Institutional Arrangements The KUSP2 will be implemented through institutional arrangements that are consistent with the constitutional and legal structures, systems, and processes at the national, county, and urban levels. At the national level, the State Department of Housing and Urban Development (SDHUD) will have the overall responsibility for implementation and coordination. SDHUD in collaboration with the Council of Governors (CoG), will provide technical coordination, capacity building and backstopping. At the sub-national level, county governments will be responsible for overall coordination and oversight. Scope and Methodology The KUSP2 ESSA aimed to review the existing borrower systems in terms of its capacity to plan and implement effective measures for management of Environmental, Social, Health and Safety (ESHS) effects associated with the Program at the county and national levels. This is with the intention to address any gaps in the system and capacity that may impede effective management of ESHS risks and impacts. The ESSA sought to: (i) identify the potential Program’s Environmental, Social and Health and Safety (ESHS) effects; (ii) review the relevant Kenyan legal, regulatory and policy frameworks related to ESHS management of Program interventions; (iii) assess the capacity of the implementing institution (SDHUD) and the relevant ESHS institutions within the public sector of the GoK that will be responsible for managing potential adverse ESHS risks and impacts associated with the Program; iv) assess the Programs system performance with respect to the six core principles of the PforR instruments and identify gaps in Program performance, and (v) recommend specific actions to address gaps in the Program’s ESHS management system that will be embedded in Program Action Plan (PAP) to strengthen Program performance to ensure sustainable implementation of Program activities. The ESSA Scope and Methodology integrated approach adopted included: II i. Comprehensive Desk Review of Kenya’s Policies, Legal and Regulatory Framework and Program documents. The review examined: a. The related policies, legal frameworks, and regulations governing the Environmental, Social and Health and Safety risks management in the urban sector. b. Lessons learnt from World Bank (WB) funded PforR operations in Kenya including the Financing Locally Led-Climate Action Program (FLLoCA), Kenya Urban Support Program (KUSP) and Kenya Devolution Support Program (KDSP). The WB related documents reviewed included: Program Concept Notes; Draft Program Appraisal Documents; and ESSA reports. c. Capacity building activities of counties through other institutions and government Programs. d. Environment and Social safeguards management procedures and tools. ii. Institutional, System and Capacity Assessments: The ESSA process included extensive field visits, stakeholder consultations and data collection from national and county levels to assess the environmental, social, health and safety systems and capacity for management thereof. These included: a. A Program preparation multi-stakeholder technical workshop was held on 11th -14th October 2022 at Naivasha with the State Department of Housing and Urban Development (SDHUD), State Department of Devolution (SDD), Council of Governors (CoG), Ministries, Departments and Agencies (MDA’s), private sector representatives and the WB. The aim of the workshop was to deliberate on the proposed Program activities. b. County level field assessments were carried out on 1st to 17th November 2022, to 7 sample counties including; (i) Makueni county (Wote Municipality), ii) Kiambu County (Kiambu municipality), (iii) Kisumu City iv) Siaya County (Siaya municipality), (v) Kericho County (Kericho Municipality), (vi) Kwale County (Kwale municipality), (vii) Tharaka Nithi County (Tharaka Nithi municipality).The selection of sample counties was informed by; (i) Size in terms of population; (ii) County headquarters and non-headquarters (represent county with more than one municipality); (iii) Regional distribution – one from each of the county regional economic bloc; (iv) Supported by KUSP and not supported; (v) Performance under KUSP and KDSP – best and worst performers, and (vi) accessibility and security considerations that may limit access. Key stakeholders consulted included: representatives from the County governments and government agencies such as; County Executive Committee Member (CECM) urban, CECM Land, CECM Physical Planning Housing and Urban Development, CECM Environment, County Director Environment (CDE), Director Culture and Heritage, Director Budget & Planning, Director Public Administration, chairman of municipal boards, municipal/city managers, county engineer, physical planner, quantity surveyor, trade officer, environmental officer, social officer, National Lands Commission (NLC), Directorate of Occupational Safety Health and Services (DOSHS), and National Environment Management Authority (NEMA). c. National level stakeholder consultations and institutional analysis were carried out in the months of December 2022 to February 2023 to identify the roles, responsibilities, and structure of the relevant institutions that the NPCT may coordinate within Environmental, Social, Health and Safety (ESHS) management under KUSP2.Stakeholders consulted included; representatives from the State Department of Housing and Urban Development (SDHUD), Directorate of Occupational Safety and Health Services (DOSHS), National Environment Complaints Committee (NECC), National Gender and Equality Commission (NGEC), Kenya School of Government (KSG), State Department of Social Security and Protection, Council of III Governors (CoG), National Environment Management Authority (NEMA), National Construction Authority (NCA), National Land Commission (NLC), Commission for Administrative Justice (CAJ). d. Stakeholder consultations on the Window for Host Communities and Refugees (WHR) was carried out in March 2023. Stakeholders consulted included the Department of Refugee Services (DRS), National Land Commission (NLC), United Nations High Commissioner for Refugees (UNHCR), United Nations Human Settlements Programme (UNHABITAT) and County Governments of Turkana and Garissa. A summary of the WHR component consultations are presented in Annex 6. The assessments focused on the potential environmental and social effects of the Program and mainly evaluated: (i) the adequacy of the applicable system in management of ESHS risks and impacts associated with Program activities; (ii) how and whether the system is applied as documented; (iii) the extent of compliance monitoring and reporting including provision for feedback to improve Program performance. The assessment considered the environmental, health and safety, social, temporary displacement and relocation and examined measures in place for effective citizen and stakeholder consultations and engagements, throughout Program implementation. In addition, the assessment considered the Grievance Redress Mechanism (GRM) to receive, record, resolve, and follow up on complaints or grievances received. Program Environmental and Social Effects Considering the scope and scale of investments under KUSP2, the significant geographic dispersion of the participating urban areas, and the potential environmental and social impacts associated with each sub-project in the Program, the ESSA has determined that the overall risk rating is Substantial. The Program has developed a set of minimum standards4 as measures to minimize potential negative Program ESHS risks and impacts. Additionally, as consistent with World Bank PforR Policy, activities that present high environmental or social risks will not be financed under this Program. Activities under the Program are likely to result in positive environmental and social benefits. These include enhanced environmental, social, health and safety management both at the national and county levels; strengthened preparation, implementation, and monitoring of ESHS instruments and mechanisms; Environmental and Social (E&S) systems performance and capacity enhancement and improved service delivery to urban residents. Overall, there will be enhanced ESHS management of Program activities and strengthened institutions at national & county governments, cities, municipalities, urban boards, and the Project Implementing Unit (PIU), beyond Program span. Environmental benefits will include but not limited to; improved management of solid waste, waste water, and storm water drainage systems to an extent based on the investment’s menu, resulting in improved public health through better sanitary conditions, reduced waterborne diseases and reduced environmental degradation from flooding and soil erosion, clean air and improved health through reduction of dust, noise and vibrations, improved mobility of urban residents through the Non- Motorized Transport (NMT), improved road conditions and access to public transport services will contribute to reducing traffic congestion, lower vehicle operating costs, reduced transportation costs and road accidents. 4 (i) All subproject feasibility reports to include E&S screening reports as per POM guidelines; (ii) Site specific environmental and social impact assessment's prepared and obtain NEMA license before start of civil works; (iii) All Contract documents include NEMA license/approval conditions and ESMP with budget allocation; (iv) All subprojects involving temporary physical or economic displacement and relocation to include consulted ARAP/Reinstatement/Restoration Plan before award of contracts; (v) GRM constituted and grievances records being maintained at Municipality level; (vi) At least two stakeholder’s consultations with Project Affected Persons were undertaken at preparation stage and two at implementation stage. IV Negative Environmental, Health and Safety risks and impacts are related to construction activities and thus, are expected to be temporary, site-specific, manageable, and reversible. These include; localised noise and air pollution from construction activities and vehicle emissions; traffic congestion and obstruction of roads/paths access, occupational health and safety incidents through injuries or accidents to workers, community health and safety incidents related to the construction activities; soil and underground water pollution from spillage of waste oil and/or fuel; increased road accidents due to non-adherence to road safety measures; disruption of existing infrastructure or services such as power and water supply; poor infrastructure development due to non-adherence to regulations and standards; drainage and access to residences and businesses challenges and limited urban infrastructure operation and maintenance costs, among others. Environmental risks and impacts mitigation measures will be applied in the KUSP2 ensuring effective management, as well as systems and institutional capacity strengthened. Sub-projects will follow Environmental Management and Coordination Act (EMCA), 1999, (amendment, 2015) requirements and undergo screening and preparation of Summary Project Reports (SPR) or Comprehensive Project Reports (CPR) (for full Environment and Social Impact Assessment), as required. In addition, Program activities will be guided by the Environmental, Social, Health and Safety Management (ESHSM) Manual, to be prepared for the KUSP2 as part of the Program Operational Manual, which will include ESHS guidelines, Standard Operating Procedures (SOPs), and templates. As a mechanism for mitigating potential adverse environmental health and safety risks and impacts, the Program shall exclude sub- projects likely to involve: a) Any investments that trigger high risk under the World Bank PforR Policy. b) Air, water, or soil contamination leading to significant adverse impacts on health and safety of individuals, communities, and ecosystems. c) Significant conversion or degradation of critical natural habitats or critical cultural heritage sites. d) Workplace conditions that expose workers to significant health and personal safety risks. e) Adverse E&S impacts covering large geographical areas, including transboundary impacts of global impacts such as greenhouse gas (GHG) emissions. f) E&S risks are high and/or if associated facilities are linked to the proposed investment. Social benefits will include but not limited to; improved grievance systems, structures, and management, reduced loss of livelihoods due to temporary displacements and relocation, improved stakeholder engagement mechanisms, reduced crime, improved security, increased revenue and improved collection systems for county governments, and improved service delivery of social services within counties. Social risks and impacts are likely to be significant considering, the dispersion of counties, scale and scope of the proposed investments menu and a focus on urban areas. Potential social risks and impacts may include: loss of livelihoods due to temporary displacements; impact on land use; disruption on public facilities such as water points, access roads, and roadside markets due to infrastructure construction activities; use of child labor and abuse in construction activities; Sexual Exploitation Abuse and Sexual Harassment (SEA-SH); exclusion of Program benefits to the most deserving including Persons with Disabilities (PWDs) and Vulnerable and Marginalized Groups (VMGs); inadequate citizen and stakeholder identification, engagements and monitoring; ineffective grievance redress mechanisms; elite capture; inefficient labour management; and urban residents/community protests. Social risks and impacts mitigation measures will be applied in the KUSP2 ensuring effective management as well as systems and institutional capacity strengthened. In addition, Program activities will be guided by the Environmental, Social, Health and Safety Management (ESHSM) Manual (annex to the POM), to be developed under the KUSP2 prior to effectiveness, which will include V guidelines, Standard Operating Procedures (SOPs), and templates. As a mechanism for mitigating potential adverse social risks and impacts, the following measures shall apply: a. A robust process to guide in management of temporary displacements and relocation due to use of public land for infrastructure investments, and preparation of Abbreviated Resettlement Action Plans (ARAPs). b. Establish a functional, effective, and accessible GRM at the sub-national level. c. Scale-up/utilize on County/Cities/Municipal structures and committees at the different levels for effective stakeholder engagement and grievance redress mechanisms. d. Projects likely to create or exacerbate social conflict within communities or counties/municipality geographical boundaries will be ineligible. e. Adequate citizen engagement and public disclosure of key documents. f. Consideration to cultural appropriateness and equitable access to Program benefits, to the most deserving including vulnerable groups (PWDs, women, youth, elderly). Key Findings of the Environmental, Social, Health and Safety System Assessment The environmental, social, health and safety management under the Program will be largely based on the existing policies, legal, regulatory frameworks, institutional capacities and systems in Kenya. The ESSA findings show that the policies, legal and regulatory frameworks in Kenya are consistent with the PforR six Core Principles. The Constitution of Kenya (CoK), 2010 is the supreme law of the Republic and binds all persons and State organs at all levels of government and confers to every person the right to a clean and healthy environment. Chap. 4 of the CoK, 2010, gives provisions for the Bill of Rights as the framework for social, economic, and cultural policies. The National EIA system is anchored on EMCA, 1999, (amendment, 2015) and EMCA legal Notice No. 31, 2019 and provides a comprehensive framework for environmental impact assessment. EMCA provides clear guidelines on screening and categorisation of the sub-projects according to the risks. The EMCA has gaps in facilitating social risks management as mandated by law and in practice. The NEMA has a limited role for SRM, including the review of social aspects of the ESIA, ESMP or RAP. Public participation in county planning processes is provided for in the County Government Act 2012, requiring provision of clear information on environmental and social impacts in the engagements. The country has legal statutes and provisions to protect the workers such as the Occupational Health and Safety Act (OSHA) 2007 and the Workers Injury and Benefits Act (WIBA), 2007. The Employment Act No 11 of 2012 [2007] confides the rights of children and has penalties on unlawful employment of children. The Constitution of Kenya (CoK), 2010 provides guidance on ownership, acquisition, conversion, payment of compensation and devolving public land management to counties. In addition, the Land Laws of 2012 [Land Registration Act (2012), Land Act (2012) and National Land Commission Act (2012)] outline provisions on the land management framework in Kenya. Article 66 of the CoK, 2010, gives provision for the State to regulate land use planning in the interest of defence, public safety, public order, public morality, public health, or land use planning. The Community Land Act, 2016 guides county government on holding in trust and registration of land on behalf of a community. The Refugee Act, 2021 guides on designation of areas for refugee habitation and freedom of movement outside traditional camps in line with the Government of Kenya’s commitment to move from refugee camps to settlements fostering integration with host communities. Notably, there are limitations that include; (i) the lack of integrated spatial and economic plans to guide both public and private investments in urban areas; (ii) Legal frameworks do not provide for compensation of assets built or extended on public land resulting in evictions and demolitions.; (ii) the legal Social Risk Management (SRM) is spread across various entities; and (iv) the National Environmental Impact Assessment (EIA) system mainly focuses on environmental aspects and does not comprehensively cover the social aspects such as labor, sexual exploitation and abuse and Gender Based Violence/ Sexual exploitation and Abuse/harassment (GBV/SEAH-SH), health and safety aspects VI such as occupational health and safety which are managed under the Occupational, Health and Safety Act (OSHA) and Work Injury Benefits Act (WIBA), while the land acquisition and resettlement aspects are managed by the National Land Commission (NLC). On ESHS management in practice, it is worth noting that; (i) The government standard contract and bidding conditions for contractors have some ESHS clauses; (ii) county systems have articulated the minimum requirements for equitable access and benefits for vulnerable groups including the disabled, women and youth; (iii) the NEMA is the responsible entity to ensure compliance with EIA regulations, and is devolved to the County level; (iv) some municipality/city administrative structures have fulltime E&S safeguards officers although lacking clear definition on roles and responsibilities; (v) municipalities conduct quarterly citizen forums for public engagement on investment priorities and activities; (vi) some county/cities/municipalities have grievance redress mechanisms although in some cases not well structured and functional; and (vii) the E&S screening checklist prepared under the Kenya Urban Support Program (KUSP) facilitates identification of the potential adverse Environmental and social impacts receptors, this has largely been adopted and used by most municipalities, however, there were cases it was not used appropriately. The KUSP implementation manual also provides list of ineligible activities and monitoring checklists. Similarly, other Programs such as KDSP and FLLoCA supported by World Bank funds prepared and implemented E&S screening checklists, set up grievance systems and E&S impacts management procedures. Based on the implementation experience of KDSP and KUSP, potential ESHS risks and negative impacts are expected to be limited to the design and implementation phases, that include; (i) the occupational health and safety risks on construction workers and gaps in community health and safety aspects of infrastructural investments; (ii) there is unclear urban land ownership including the absence/multiple ownership details; (iii) Most cities/municipalities have limited knowledge on the key requirements on land acquisition process in Kenya as provided by the law, as well as the management of temporary displacement and relocation and development of Resettlement Action plans (RAPs); (iv) There is limited, appropriate and transparent consultation mechanisms and documentation in the areas that operate under a communal land system; (v) the existing grievance management systems are not standardised across all counties/cities/municipalities and application is inconsistent; (vi) there is weak capacity to disseminate information to promote social accountability, transparency and disclosure of grievance uptake channels at the county/cities and municipalities; (vii) there is no clear mechanism, guidelines and procedures for targeting and inclusion of vulnerable and marginalised groups at the counties/cities/municipalities; (viii) there is limited application of standard procedures for ESHS risk screening and implementation of mitigation measures; and (ix) limited multi-stakeholder collaboration and coordination among key lead agencies/actors. Chapter 5 of the report presents the comprehensive analysis of the operational performance, and capacity of institutions for ESHS management of identified risks and impacts associated with the Program interventions. These are as defined in policies, legal and regulatory framework, procedures, guidelines and consistency with the core principles and key planning elements of PforR financing. ESSA Validation and Disclosure The ESSA process includes comprehensives stakeholder consultations and disclosure of the ESSA Report following the World Bank Policy for Program-for-Results financing and the World Bank’s Access to Information Policy. A national multi-stakeholder workshop on the draft KUSP2 ESSA, was conducted on March, 14th 2023. Feedback received during the workshop has been incorporated to the ESSA and summary provided in annex 9. The draft ESSA will be publicly disclosed in-country on the SDHUD website and the World Bank’s external website, prior to Board approval. Program Design Recommendations VII A. Environmental, Social, Health and Safety 1. The design of market infrastructure should be revised to accommodate incorporation of social aspects such as provide ramps for persons with disability, creche for children accompanying their mothers. The developed market management guidelines should be reviewed to incorporate emerging issues, validated and adopted by counties to facilitate sustainable market investments. 2. Programs investments should allocate budgets for operation and maintenance for infrastructure sustainability and avoidance of potential ESHS impacts. 3. There are several completed and ongoing World Bank funded operations in counties, in which ESHS systems and structures have been developed. There is need for harmonization and coordination for enhancement under KUSP2. Previous and ongoing Bank funded operations include; KADP, KDSP, FLLoCA, KISIP, KUSP. 4. Counties have conducted feasibility studies and master plans prepared for different urban functional areas such as on; road network/ non-motorised transport development, municipal solid waste management, storm water drainage, water supply and sanitation. The existing counties/cities/municipalities master plans need to be integrated and harmonised to inform investments under the KUSP2 useful for appropriate and sustainable land-use planning. 5. Harmonise urban planning regulations with the Community Land Act (2016), Refugee Act (2021) and draft Marshall Plan for Refugee Settlement (2023-27). 6. Strengthen the linkage between national and county Program coordination teams, safeguards units to enhance ESHS management. 7. E&S safeguards officers need to closely collaborate with the municipality engineers and surveyors from project inception, design and feasibility study, implementation, hand-over of investments and operational phases to ensure ESHS mainstreaming in all project activities. 8. Enhance the citizen and stakeholder engagement strategies to; i) adequate budget allocation for appropriate planning; ii) facilitate the targeting and inclusion of vulnerable and marginalized groups; iii) facilitate timely sharing of information to the public prior to scheduled consultations in a form and language understandable to project-affected parties and other interested stakeholders; iv) document the meetings proceedings and list of stakeholders, and v) facilitate timely feedback on deliberations. B. Institutional Strengthening 9. Each participating city/municipality should have 1 environmental and 1 social officer as part of the CPCT. However, there is need to define their roles clearly, for more effective ESHS management. Some of the assigned roles include: i) E&S screening of sub-projects and identification of instruments to be prepared, ii) participate in stakeholder consultation and dissemination campaigns; iii) ) review the ESIA/ESMP prepared by the lead experts; vi) ensure the ESMP form part of the contract and bidding documents; v) grievance management; vi) conduct field visits for ESMP supervision and monitoring throughout project implementation phase, vi) labour and gender management, and vi ) maintain liaison with key MDA’s. 10. The Program should promote multi-stakeholder collaboration and coordination with MDAs (NEMA, DOSHS, NCA, NLC) for enhanced technical advice, training and external monitoring during the design, construction and operation phases. 11. During planned safeguards training sessions, sensitize the counties/cities/municipalities on the role of the National Environment and Complains Committee (NECC), National Environment Management Authority (NEMA), Commission of Administrative Justice (CAJ) and National Land Commission (NLC) systems in place for management of environment, land, labor, SEA/SH related complaints. 12. Support institutional strengthening to cities/municipalities to ensure municipal planning and service delivery considers inclusion of vulnerable and marginalised groups, including the host and refugees communities. C. Capacity Building VIII 13. Social risks and impacts management; stakeholder engagement and disclosure of Program information, inclusion of disadvantaged and vulnerable groups, labour management, grievance redress management , child/forced labour, GBV/SEA-SH, temporary displacements, and relocation. 14. Environmental risks management; sourcing of construction materials and management of materials sites (quarries, borrow pits), implementation of chance finds procedures in the case of physical cultural resources. 15. Health and safety risks management; occupation and community health and safety including incident/accident reporting. 16. Preparation of ARAP’s, ESIA/ESMPs, monitoring and reporting, ESHS audits to the E&S officers in counties/cities/municipalities. 17. Training of contractors on ESHS risks management and reporting as provided in the ESHSM manual. 18. Training of safeguards focal person on the Geo-Enabling initiative for Monitoring and Supervision (GEMS) in participating counties/cities/municipalities including the National level to enhance supervision and monitoring. Table 1 below presents a summary of Inputs to the Program Action Plan (PAP) IX Table 1: Program Action Plan (PAP) No. Action Description DLI/IPF Responsibility Timing Expected Output 1. Counties and urban institutions receive training for the implementation IPF NPCT Yearly Training to of the Environmental, Social, Health and Safety Management (ESHSM) counties/cities/municipalities manual that includes guidelines, Standard Operating Procedures (SOPs) on the ESHSM manual Annual and templates for managing ESHS risks and impacts of conditional grants training calendar delivered on to counties/cities/municipalities as part of the Program Operational ESHS capacity building and Manual (POM). confirmed through progress reports. 2. a. Adequate deployment of full-time environmental and social MC County Before Qualified and experienced safeguards staff at participating city/municipalities. Governments/ disbursement of staff assigned, 1 environment At least 1 environmental and 1 social specialist, qualified and NPCT grants to counties and 1 social specialist, and experienced. confirmed annually through APA. b. Deploy fulltime environmental, social, health and safety staff at the NPCT Condition of Qualified and experienced National Program coordination team (NPCT):2 environmental IPF Program staff assigned, 2 specialists, (b) 1 health and safety specialist, (c) 2 social specialists effectiveness environmental specialist, 1 health and safety specialist and 2 social specialists, and confirmed annually through APA 3. Grievance Mechanism MC County Before GRM constituted and Cities/municipalities to develop GRM structures based on guidelines Governments disbursement of grievances being logged, provided in the ESHSM manual to facilitate improvement on grievance and NPCT grants to counties responded, and resolved at management. city/municipality level. Confirmed annually through APA 4. Include the ESHS clauses in the bidding and contract documents for civil IPF NPCT Before a. Bidding and Contract works. disbursement of document templates with grants to counties ESHS aspects No. Action Description DLI/IPF Responsibility Timing Expected Output b. Percentage expenditure on ESHS aspects in line with the allocated budget. c. Supervision and monitoring reports and confirmed through APA. 5. Program to partner with relevant lead agencies in the ESHS risks PS NPCT Continuous a. Number of trainings and management, these include DOSHS, NEMA, NLC and CAJ to deliver technical assistance provided capacity building to municipalities and contractors. in collaboration with relevant agencies. Confirmed through progress reports. I 1. PROGRAM DESCRIPTION 1.1 Background 1. Kenya experienced steady economic growth and declining poverty levels up to 2019 when the COVID-19 pandemic staggered the steady strides in Gross Domestic Product (GDP) growth, declining absolute poverty numbers, decrease in the share of population living below the national poverty line and rising Human Development Index (HDI). Despite the contractions and strained sectors, Kenya’s economy is on a positive recovery trajectory with the GDP expected to increase by 5.0 percent in 2023 and 5.3 percent in 2024. This projection is on the backdrop of renewed job creation, poverty reduction and rebound in government revenues. 2. Kenya is urbanizing rapidly at a rate of 4.3 percent a year, offering an opportunity of harnessing the expansion to drive economic growth. Effective management of the urbanization potential, through public and private sector investments, will foster economic growth and improved quality of life. Urbanization has proven vital to economic growth and better living standards in Kenya, but such gains are unevenly distributed with most of the urban population residing in informal settlements, are unemployed, underemployed, or work in the informal sector. Access to urban services is also uneven, with informal settlements being severely underserved with limited access to piped water, infrastructure and services including sanitation, power, roads access and solid waste collection. Additionally, the COVID-19 pandemic has exacerbated urban poverty and loss in livelihoods. 3. The Government of Kenya (GoK) through the Kenya Vision 2030 and subsequent urban policies recognizes sustainable urbanization as key to overall national economic growth. The second Kenya Urban Support Program (KUSP2) will support the GoK to implement its urban development agenda and aspiration to become an upper middle-income nation by the year 2030 using urban areas as drivers of economic growth. The KUSP2 firmly sets out to tackle some of Kenya’s core developmental urban areas challenges in counties, cities, and municipalities, to facilitate faster economic growth and job creation (through private sector development); a more effective and efficient public sector; and public services that are more inclusive and contribute to levelling up. Moreover, the proposed operation is strategically relevant with respect to devolution. KUSP2 will contribute to making devolution work for service delivery and development through addressing some governance constraints at the urban level. By addressing spatial and land use planning challenges and resilience concerns, the proposed operation is also strategically relevant to Kenya’s climate change agenda. 4. Kenya is highly exposed to various climate hazards, which will become more intense and more recurrent due to climate change. The Arid and Semi-Arid Lands (ASALs) counties of Turkana and Garissa are exposed to climate hazards and they additionally host 478,012 refugees and asylum seekers within two main refugee camp complexes. The camps are under the management of the Government’s Department of Refugee Services (DRS), with support from the UN refugee agency (UNHCR) and humanitarian partners. The two refugee hosting areas of Dadaab and Kakuma-Kalobeyei currently have population thresholds to sustain vibrant municipalities. In line with the Government’s support to durable solutions for refugees, anchored in the new legislative framework, there is potential to transform these long-standing refugee camps into urban settlements, serving both refugees and host communities, and to fully integrate them into the local administrative structures, thereby promoting resilience and inclusion. 5. The Kenya Integrated Urban Support Program aligns with the Country Partnership Framework (CPF) for the Financial Year (FY) 22-27 as the operation will assist to fulfil four key objectives: (i)improve public expenditure transparency and effectiveness at the municipal level by strengthening the institutional capacity of urban institutions; (ii) contribute to fostering Micro, Small and Medium Enterprises (MSME) and small producer success for faster job creation by enhancing engagement between public and private sector at the municipal level; (iii) help extend sustainable infrastructure services to the last mile by financing investments in basic urban infrastructure; and, (iv) increase household resilience and national preparedness for shocks by incentivizing risk-informed urban planning and development of resilient urban infrastructure. 1 6. World Bank is well placed to support an operation that focuses on, governance, service delivery and private sector development to improve economic growth and improved quality of life . The proposed operation builds on the achievements and lessons learned from the Kenya Urban Support Program (KUSP). KUSP2 aims to strengthen urban institutions established with the support from KUSP, incentivizing counties to provide them with greater autonomy, functions and financing for the delivery of their mandate as per urban Areas and Cities Act (UACA), while creating the capacity to enhance climate resilience and leverage private sector. 1.2 Governments Program 7. KUSP2 is the Government Program for Results (PforR) Program nested in the Second Kenya Urban Program (KenUP2, 2022 - 2026)5 whose primary objective is to facilitate effective and empowered urban planning and management systems, through their counties, as primary and accountable lead actors of socio-economic development, public service delivery and poverty reduction in their areas of jurisdiction; achieving the ‘urban management’ agenda, in each selected county. KenUP2’s core components include: i) urban space and shape, support integrated urban planning and development control, ii) urban economies and urban livelihoods, including the private sector and competitiveness; iii) Urban infrastructure and service delivery: iv) building climate resilience; v) governance, institutions, and finance, and vi) policy development. 1.3 Program Description 8. The World Bank is supporting the Government of Kenya with a hybrid Program for Results (PforR) and Investments Project Financing (IPF) instruments under the Second Kenya Urban Support Program (KUSP2). The primary objective of the Program is to strengthen the capacities of urban institutions to improve delivery and resilience of urban infrastructure and services, enhance private sector engagement in urban planning and support transition of refugee camps into integrated host community and refugee settlements. KUSP2 is proposed to be operationalized for a five-year (2023-2028) duration and will be implemented in 45 counties (except Nairobi and Mombasa), 6 cities and 63 municipalities (towns and market centres are excluded) under Component 2-PforR, while all counties will be eligible for technical assistance and capacity building under Component 1-IPF. The PforR financing under component 2 will support KenUP2 implementation by directly financing urban infrastructure and service delivery and county level institutional and capacity development support, Component 1 (IPF) for national level activities related to (i)Program management, (ii) policy and regulation development, and (iii) technical and capacity development support to counties and urban institutions, and Component 3 will establish and strengthen urban institutions and improve access to infrastructure services in refugee hosting areas, through performance grants accessed based on compliance with WHR MC's and PS's. 9. The Proposed Program Development Objective (PDO) is to strengthen the capacities of urban institutions to; (i) improve the delivery and resilience of urban infrastructure and services, (ii) enhance private sector engagement in urban planning, and (iii) support the transition of refugee camps into integrated host community and refugee settlements. 10. Under the PforR Component, KUSP2 will support interventions in five Results Areas: RA 1: Strengthened institutions for urban service delivery. Strengthening the management of urban institutions for improved urban service delivery, through inter alia, institutional capacity building, enabling the delegation of functions, enhancing of municipal human resources management, and financing, and improving citizen participation. RA 2: Integrated planning for inclusive and resilient urban areas, to enhance the planning and development control capacity of urban institutions, strengthen urban planning instruments, including incorporating climate 5 The Kenya Urban Support Program (KUSP) supported the implementation of the first KenUP. 2 and gender considerations, and improve their implementation and monitoring through appropriate development control tools and capacity. RA 3: More inclusive and resilient urban services and infrastructure, Improving the delivery of urban infrastructure and services, as well as strengthening their resilience and sustainability through inter alia, enhancing the capacity for planning, design and implementation of climate-resilient and inclusive urban investments, developing asset registries and management plans, and enhancing the operations and maintenance capacities of urban institutions. RA 4: Improved private sector engagement, Enhancing the private sector’s contribution to urban planning through inter alia, supporting the development and implementation of an engagement framework and promoting urban development plans being informed by dialogue with the private sector. RA 5: Improved integrated development between refugees and host communities, Supporting the transition of refugee camps into integrated host community and refugee settlements, through inter alia, the establishment and capacity building of unified urban institutions to lead joint planning, infrastructure and service delivery and interventions supporting economic activity and social cohesion. 11. The PDO will be monitored through the following PDO level indicators: Table 2: Proposed PDO-level result Indicators PDO-Level result PDO-level Indicators Strengthened urban institutions 1. Urban boards that have strengthened institutional performance as capacities demonstrated in the Annual Performance Assessment score [Percentage] Improved delivery and resilience 2. People provided with improved access to urban services and of urban infrastructure and infrastructure under the Program (Number) services 3. Infrastructure completed under the Program that complies with standards to ensure they are climate change resilient and inclusive (Percentage) Enhanced private sector 4. Participating urban boards with urban IDep's informed by private engagement sector diagnostic(Percentage) Improved integration between 5. Established municipalities which include refugee camps and host and refugee communities settlements, host communities areas (Number) 12. The operational structure of the KUSP2 encompasses; (i) institutional and capacity development to fund sub-national institutional and capacity development actions under sub-component 2.1: Urban Institutional Grant (UIG) [DLI 1], and (ii) Urban development investments to fund urban infrastructure and service delivery under sub-component 2.2: Urban Development Grant (UDG) (DLI 2 to 5). Similarly, UIG and UDG will be provided with support from the Window for Host Communities and Refugees (WHR) to Turkana and Garissa counties to support the establishment of Kakuma-Kalobeyei and Dadaab municipalities (DLI6 and 7). 13. The Urban Institutional Grant (UIG) will provide support to county governments to build core capacities required by urban institutions to enhance their mandate subject to compliance with Minimum Conditions (MCs). The eligible 45 counties will access the annual UIG,. Failure to satisfy any MC will disqualify any county from accessing its UIG in that year. The annual assessment of compliance with UIG of all eligible counties will be conducted as an integral part of the overall APA. The Urban Development Grant (UDG) on the other hand will provide financing for investments in urban infrastructure and service delivery, incentivizing enhanced performance of urban institutions in the Ras 1 to 4. The UDG will be available to eligible urban areas that comply with MCs and PSs for achieving good urban governance and development, including mainstreaming gender, climate resilience into planning and infrastructure development, and seeking a better understanding 3 of the local economy. The WHR UIG and WHR UDG will work similarly, but with a different performance framework. 14. The KUSP2 Disbursement Linked Indicators (DLIs) will be specific to each of the grant types and structured around APA results as detailed in table 3 below: Table 3: Disbursement Linked Indicators (DLIs) Disbursement Linked Indicators (DLI) Grant MC/PS GCRF Pillar DLI 1: Participating counties have developed and are UIG UIG MC Strengthening implementing a climate-resilient County Urban Policies, Institutions Institutional Development Strategy (CUIDS) & Investments for DLI 2: Participating urban boards have strengthened their UDG UDG PS Rebuilding Better institutional performance for inclusive and resilient RA1 service delivery and have adequate staffing and financing DLI 3: Participating urban boards have strengthened their UDG UDG PS Strengthening urban planning systems by incorporating climate change RA2 Resilience resilience6 considerations, enhancing inclusiveness, and improving development control. DLI 4: Participating urban boards have improved delivery UDG UDG PS of inclusive and climate change resilient urban RA3 infrastructure and services DLI 5: Participating urban boards have enhanced UDG UDG PS Strengthening engagement with private sector and improved its RA4 Policies, Institutions participation in urban planning & Investments for Rebuilding Better DLI 6: Participating refugee hosting Counties have set up WHR UIG WHR Strengthening urban institutions for integrated development UIG MC Resilience DLI 7: Participating urban boards have developed urban WHR WHR Strengthening planning tools and have improved access to inclusive and UDG UDG Resilience climate change resilient urban infrastructure and services MC and for host communities and refugees PS 15. The Program’s Disbursed Link Results (DLRs) will be verified on an annual basis by an independent verification agent (IVA) hired by the SDHUD. After the submission of the final APA result, the WB will conduct a quality assurance review (QAR) to ascertain the veracity of the APA results. The QAR will (i) review the APA Report and accompanied evidence, (ii) assess DLRs achievement and (iii) sample a few Counties and municipalities to validate APA results. The WB’s final review will prevail in the case of any disputes between the IVA and QAR results. 1.4 Program Institutional and Implementation Arrangements 16. The State Department for Housing and Urban Development (SDHUD) is the main implementing agency for the operation with the overall responsibility for the implementation and coordination of the operation. SDHUD will collaborate with the Council of Governors (CoG) with the Department of Refugee Services (DRS) (for WHR activities), will provide technical coordination, capacity building and backstopping. Technical support will also be provided by selected UN agencies. At the sub-national level, county governments will be responsible for overall coordination and oversight. 17. The implementation will be through: 6 A checklist will be defined in the POM providing guidance for urban climate resilience, gender, and universal design requirements. 4 i. National level Program implementation which includes the: a. National Program Coordination Team (NPCT) that will be established at the SDHUD and responsible for; (i) coordinating and preparing the annual plan and budget; (ii) the management/coordination and implementation of activities under Component 1; (iii) procurement and management of APAs; (iv) authorizing the disbursement of UIGs/UDGs on the basis of APA results ; (v) M&E and reporting; (vi) ensuring county resources are budgeted for and disbursed within as per the expenditure framework and properly accounted for. The composition of the NPCT will include Program Coordinator; Program Implementation Specialist; five Results Area Leads and five Deputy Results Area Leads; Grants management Officer; Procurement Specialist; Program Accountant; Finance Officer; two Social Safeguards Officer; two Environmental Safeguards Officers; one Health and Safety Officer; M&E Officer; Communications Officer, Urban Planning and Governance Specialist (at CoG) and DRS representative. Further the NPCT shall be assisted by technical experts. b. Program Steering Committee (PSC) that will provide policy guidance, oversight, strategic direction and broad oversight of the operation. The committee will consist of Principal Secretary SDHUD (Chair), Chair Lands, Housing and Urban Committee at CoG (co-Chair), Principal Secretary National Treasury, Principal Secretary Lands and Physical Planning, Principal Secretary Immigration and Citizen Services, and CEO CoG. Representatives from other MDAs will participate as needed. The PSC will meet at least bi-annually.. The PSC will meet at least bi-annually and as and when required and will be responsible for endorsing the APA results. c. Program Technical Committee (PTC) will advise the PSC on policy and strategic issues. It will meet at least quarterly to deliberate on issues and prepare motions for decision-making by the PSC, review implementation progress and financial accountability reports, review and verify APA reports, identify, and address any emerging technical issues and challenges in implementation of the operation. The PTC composition will include Secretary Urban and Metropolitan Development (Chair), Chair of CECM Urban caucus (co-Chair), Director Urban Development (Coordinator, Secretary), Secretary of the Lands, Housing and Urban Committee at CoG, Chair of CECM Finance caucus, Commissioner of Refugee Affairs and a representative from TNT&EP.. Representatives from other MDAs will participate as needed, as will UNHCR on WHR components. Members have important technical and capacity responsibilities relevant to urban management, infrastructure, and service delivery. They have been engaged in KUSP and are familiar with the program; incorporating them into the PTC will build critical buy-in and facilitate inter-agency coordination. d. National Treasury and Planning that will be responsible for fiduciary responsibilities. ii. Sub-National level Program Implementation includes: Implementation at the county level will be through County Program Coordination Teams (CPCTs) at the Participating County level, shall be responsible, for inter alia, overall program management, coordination, monitoring and evaluation and reporting to the NPCT; coordination of capacity development, and implementation of the Urban Institutional Grant; support procurement, supervision and technical backstopping of works funded by the Urban Development Grants and supporting urban institutions to prepare for the Annual Performance Assessment; and mobilizing and coordinating relevant county departments toward Program implementation. CPCTs will be headed by the county government director responsible for urban development (acting as Program Coordinator at the county level) and will consist of the local municipal manager(s) as well as county government staff with expertise in engineering, planning, public finance, internal auditing, public procurement, HRM, environmental and social safeguards, and industry and trade. In the case of counties accessing Component 3, the CPCT will include a representative from DRS (i.e., Camp 5 Manager), NLC County Coordinator, Community Land Registrar, and UNHCR. CPCTs will report to the CEC responsible for Urban Development. 1.5 Results Monitoring and Evaluation 18. Monitoring and reporting will be undertaken by using the existing government systems at both the National and County government levels, based on the Program Results Framework and Disbursement Linked indictor (DLI) reporting requirements. The main elements of the monitoring and reporting process will include APA reports, audits, the mid-term review report and other regular reports from NPCT and counties, including bi- annual reports, supervision reports, and technical audits. Monitoring and reporting will take place at both the National and County government levels and will be based on the Program Results Framework and DLI reporting requirements. 19. M&E officer at the CPCT will be responsible for collecting information and preparing the semi-annual reports using templates provided in the POM, the ESHSM manual and transmit to NPCT M&E officers who will consolidate them to single progress report and submit to the PSC, PTC and the World Bank for review. The use of the Geo-Enabling Initiative for Monitoring and Supervision (GEMS) tools shall be integrated in the CPCT semi- annual reporting. The M&E specialists at the NPCT will provide training to relevant county and municipal staff on the use of GEMS, M&E and results monitoring tools, to ensure that reporting is comprehensive, accurate and timely. 1.6 Disbursement Arrangements 20. Disbursement under Component 1 (IPF): The IPF component of the Program will have the foreign currency denominated Designated Account (DA) opened at the Central Bank of Kenya (CBK). The DA will be managed by the National Treasury. Similarly, the SDHUD will open a Project Account (PA) denominated in Kenya Shillings in the CBK from which payments for eligible project activities will be made. The initial disbursement will be made upon receiving a withdrawal application. This component will adopt the Statement of Expenditures (SOE) method of disbursement. 21. Disbursement under Component 2 and 3 (PforR): Disbursements under Component 2 and 3 are subject to PforR procedures and based on the achievement of results under set DLI targets. Amounts to be disbursed are determined on the basis of APA results which are certified by an Independent Verification Agent (IVA). 1.7 Capacity Building 22. KUSP2 will strengthen the capacity of the SDHUD as the national institution responsible for national urban policy development and capacity development of counties and urban institutions. SDHUD has good experience performing similar roles under KUSP. The management structures established under KUSP remain relevant, however the team is small and its capacity will be strengthened. Areas of strengthening include; Program and grant management capacities, procurement and financial management, technical backstopping, environmental, social, health and safety safeguards, monitoring and reporting, communications and knowledge management, policy and guideline development will be strengthened. 23. At the sub-national level, counties will apply the UIG for capacity interventions related to the domestication and operationalization of policies, regulatory instruments and guidelines for administrative procedures related to financial and human resource management, urban planning and development control, technical standards, norms, environmental and social risks and impacts management for resilient urban infrastructure and services, and guidelines on the engagement with the private sector and urban residents. 24. The NPCT will partner with lead agencies such as DOSHS and NEMA to enhance the capacity of the municipalities, cities and/or counties on the environmental, health and safety risks management based on national laws and regulations. Among the activities that shall be supported by DOSHS and NEMA will include 6 training and capacity building of municipal and county environmental and social staff and the hired contractors on the Occupational Safety and Health Act (OSHA) 2007, WIBA 2007 requirements and on the Environmental Management and Coordination Act (EMCA) 2015 and related regulations respectively. The NPCT will also partner with other institutions such as Kenya School of Government (KSG) for delivering training Programs on environmental and social risks management that will draw upon experts from relevant agencies. 1.8 Environmental and Social Systems Assessment Scope and Methodology 1.8.1 Purpose and Objectives 25. The KUSP2 Environmental and Social Systems Assessment (ESSA) has been prepared by the World Bank for the PforR financing instrument (Component 2), in accordance with the requirements of the World Bank Policy Program-for-Results Financing. The PforRs rely on country-level systems for the management of environmental and social effects. PforR Policy requires the Bank to conduct a comprehensive ESSA to assess the degree to which the relevant PforR systems promote environmental and social sustainability and to ensure that effective measures are in place to identify, avoid, minimize, or mitigate environmental, social, health & safety impacts. Through the ESSA process, the Bank provides recommendations to enhance environmental and social management within the Program, which are included in the Program design and PAP. 26. The main purposes of this ESSA is to: (i) identify the potential Program’s environmental, health & safety, and social effects, (ii) review the relevant Kenyan legal, regulatory and policy frameworks related to environmental and social management of Program interventions; (iii) assess the capacity of the implementing institution (SDHUD) and the relevant ESHS institutions within the public sector of the GoK that will be responsible for managing potential adverse environmental and social risks and impacts associated with the Program; iv) assess the Programs system performance with respect to the six core principles of the PforR instruments and identify gaps in Program performance, and (v) recommend specific actions to address gaps in the Program’s environmental and social management system that will be embedded in Program action plan to strengthen Programs performance to ensure sustainable implementation of Program activities. 1.8.2 Approach of the ESSA 27. The ESHS aspects of the KUSP2 Program is carried out according to the country system. The ESSA reviewed the system and capacity of existing country systems to plan and implement effective measures for environmental and social management consistency with the six Core Principles as outlined in the World Bank’s policy for the PforR instrument to determine if any measures would be required to strengthen the country system. These PforR core principles include: I. Environment and Social Management: To promote E&S sustainability in the Program design; avoid, minimize, or mitigate adverse impacts; and promote informed decision-making relating to Program’s E&S effects. II. Natural Habitats and Physical and Cultural Resources: To avoid, minimize, or mitigate adverse impacts and promote informed decision-making relating to a Program’s E&S effects. III. Protection of Public and Worker Safety: To protect public and worker safety against the potential risks associated with construction and/or operations of facilities or other operational practices under the Program; exposure to toxic chemicals, hazardous wastes, and other dangerous materials under the Program; and reconstruction or rehabilitation of infrastructure located in areas prone to natural hazards. IV. Land Acquisition and Loss of Access to Natural Resources: To manage land acquisition and loss of access to natural resources in a way that avoids or minimizes displacement, and assist the affected people in improving, or at the minimum restoring, their livelihoods and living standards. V. Vulnerable Groups: To give due consideration to the cultural appropriateness of, and equitable access to, Program benefits, giving special attention to the rights and interests of the Indigenous Peoples and to the needs or concerns of vulnerable groups. VI. Social Conflict: To avoid exacerbating social conflict, especially in fragile states, post-conflict areas, or areas subject to territorial dispute. 7 28. The details on applicability of the core environment and social principles to the Program are presented in chapter 5 on comparative system analysis of borrowers ESHS system in relation to the PforR core principles and key planning elements and annex 4 on potential environment, social, health and safety effects of the Program activities. 1.8.3 The ESSA Methodology 29. The ESSA review process seeks to describe and assess the systems for managing environmental, social health and safety in the preparation of the KUSP2. The World Bank team drew on a wide range of data, sources, and inputs during the ESSA review process, including the following actions: I. Assessment of the ESHS effects of the Program: an environmental and social risk screening of proposed Program activities was undertaken during concept stage to confirm that there are no Program activities that meet the defined exclusion criteria are included in line with the World Bank policy on PforR. II. Comprehensive desk review of policies, legal and regulatory frameworks, Program documents, and other assessments of environmental and social management systems: Detailed review of the set of national level policy, legal and regulatory framework requirements related to environment, social, health and safety management in the urban sector was carried out and presented in table 4 and 5. In addition, the assessment examined technical and supervision documents from previous and ongoing World Bank Programs in the urban sector such as the KDSP and KUSP. III. A Program preparation multi-stakeholder technical workshop was held on 11th -14th October 2022 at Naivasha with the State Department of Housing and Urban Development (SDHUD), State Department of Devolution (SDD), Council of Governors (CoG), Ministries, Departments and Agencies (MDA’s), private sector representatives and the WB. The aim of the workshop was to deliberate on the proposed Program activities. IV. County level stakeholder consultations; Consultations were carried out at the county level with selected county governments and other relevant key stakeholders The WB carried out field visits (1st to 17th November, 2022) to 7 selected counties including; (i) Makueni county (Wote Municipality), ii) Kiambu County (Kiambu municipality), (iii) Kisumu City iv) Siaya County (Siaya municipality), (v) Kericho County (Kericho Municipality), (vi) Kwale County (Kwale municipality), (vii) Tharaka Nithi County (Tharaka Nithi municipality). Key stakeholders consulted included: representatives from the County government and government agencies such as; CECM urban, CECM Land, CECM Physical Planning Housing and Urban Development, CECM Environment, County Director Environment (CDE), Director Culture and Heritage, Director Budget & Planning, Director Public Administration, chairman of municipal boards, municipal/city managers, county engineer, physical planner, quantity surveyor, trade officer, environmental officer, social officer, National Lands Commission (NLC), Directorate of Occupational Safety Health and Services (DOSHS), and National Environment Management Authority (NEMA). V. National level stakeholder consultations and institutional analysis were carried out in the month of December 2022 and January 2023 to identify the roles, responsibilities, and structure of the relevant institutions responsible for implementing the KUSP2 funded activities, including coordination between different departments and agencies responsible for Environmental, Social, Health and Safety Management (ESHSM) manual. Some of the national level stakeholders consulted included; DOSHS, Kenya School of Government (KSG), National Construction Authority (NCA), National Environment Complaints Committee (NECC), National Gender and Equality Commission (NGEC), State Department of Social Security and Protection, Council of Governors (CoG), National Environment Management Authority (NEMA), National Land Commission (NLC), Commission for Administrative Justice (CAJ). The detailed list of stakeholders consulted at the national and county level is presented in annex 11 and 10 respectively. VI. Stakeholder consultations on the Window for Host Communities and Refugees (WHR) was carried out in March 2023. Stakeholders consulted included the Department of Refugee Services (DRS), National Land commission (NLC), United Nations High Commissioner for Refugees (UNHCR), United Nations Human Settlements Programme (UNHABITAT), County Government of Turkana and Garissa. Persons consulted 8 and summary of the discussions and are presented in Annex 7 and 8 respectively. VII. ESSA validation and disclosure. The ESSA process includes comprehensives stakeholder consultations and disclosure of the ESSA Report following the World Bank Policy for Program-for-Results financing and the World Bank’s Access to Information Policy. A national multi-stakeholder workshop on the draft KUSP2 ESSA, was conducted on March, 14th 2023. Feedback received during the workshop has been incorporated to the ESSA and summary provided in annex 7. The draft ESSA will be publicly disclosed in-country on the SDHUD website and the World Bank’s external website, prior to Board approval. 30. In conclusion, the KUSP2 ESSA informs decision making by the implementing entities and will aid the Bank’s internal review and decision process associated with the Program. The findings and conclusions expressed in the KUSP2 ESSA will be incorporated to the program design and Program Action Plan. 9 2. ENVIRONMENTAL, SOCIAL, HEALTH AND SAFETY EFFECTS OF THE PROGRAM 2.1 Introduction 31. This chapter presents the anticipated Environmental, Social, Health and Safety (ESHS) benefits, risks, impacts, and management measures specific to the KUSP2 Program activities. The Program has a focus on strengthening the systems and capacities of urban institutions to improve the delivery and resilience of urban infrastructure and services, enhance the private sector in urban planning and support transition of refugee camps into integrated host community and refugee settlements. The experience gained by counties, municipalities, urban boards, SDHUD from implementation of KUSP and KDSP operations, is extremely useful in identifying and mitigating the adverse ESHS impacts of infrastructure sub-projects that this new Program will likely take into consideration. 2.2 Scope of Projects and Environment & Social Risk Rating 32. The Program will involve implementation of urban infrastructure and service delivery with a defined investment menu based on urban boards prioritisation of urban needs. Based on the E&S screening of the program activities, the overall risk rating for KUSP2 is considered as substantial. The Bank’s guidance provides that activities with a substantial risk rating pose the likelihood that Program activities would lead to adverse E&S consequences. However, these risks are less diverse or complex and many are more predictable than for a High-risk Program. Some program interventions may pose moderate risks. Moderate risks are known and demonstrated risk management measures likely available or shall be proposed. 33. The potential ESHS risks and impacts will be associated with activities linked to either new construction, rehabilitation, or expansion of existing infrastructure. Eligible types of infrastructure investments under the Program could fall under the following seven thematic areas; (i) connectivity, mobility, and accessibility; (ii) municipal solid waste management; (iii) wastewater and faecal sludge management; (iv) water supply; v) storm water drainage; vi) urban social and economic infrastructure, and vii) Fire and disaster management. 34. Consistent with the requirements of the Bank PforR Policy, the proposed Program operation will not finance activities that pose high ESHS risks. Prioritization and selection of the urban investments will consider key issues such as citizen engagement, public participation, gender and vulnerable groups inclusion, climate change and disaster adaptation. The operation has been screened for adverse environmental, social, health and safety impacts where the PforR component 2 and 3 of KUSP2 will generate potential ESHS benefits and risks. ESHS risks of the Program have been assessed and deemed to be substantial. The construction of major urban roads on public land are excluded as they may be challenged with encroachment on wayleaves. Annex 1 and 2 presents the Program’s urban functional areas and UDG eligible and non-eligible expenditure menu for component 2 and 3 activities, respectively. 2.3 Exclusion Criteria 35. The exclusion principle applies to Program activities that meet the criteria regardless of the borrower’s capacity to manage such effects. In the PforR context exclusion means that an activity is not included in the identified investment menu. Also, an activity is not included if it requires completion of non-eligible activity to achieve its contribution to the Project Development Objective (PDO) and/or Disbursement linked indicator (DLI). The KUSP2 is designed to exclude investments that are likely to have significant adverse ESHS risks and impacts or are categorised as high-risk sub-projects under the World Bank Policy for Program-for-Results.The six core principles under the PforR will apply to all investments as a mechanism for avoiding, minimising, or mitigating adverse environmental, health and safety and social risks/impacts. 36. More specifically, the Program shall exclude sub-projects likely to involve: a. Any investments that trigger high risk under the World Bank Policy for Program-for-Results. b. New investments or expansion of; i) power plants; Dams; Highways; Urban metro systems; Railways and ports; (ii) Engineered sanitary landfills; (iii) Construction and installation of incinerators; (iv) Activities related to management of solid waste dumpsites; (vi) decommissioning of dumpsites (vii) Office buildings; (viii) Land acquisition; (ix) projects with potentially significant risks to protected 10 areas or national parks; and (x) Manufacturing or industrial processing facilities; (xi) Investments which may be considered temporary in nature, e.g. murram/gravel roads, temporary relocation sites; (viii) construction of wastewater treatment facility; (xii) Construction of any water storage and treatment facility. c. Air, water, or soil contamination leading to significant adverse impacts on health and safety of individuals, communities, and ecosystems. d. Significant conversion or degradation of critical natural habitats or critical cultural heritage sites. e. Workplace conditions that expose workers to significant health and personal safety risks. f. Activities that warrant land acquisition and/or resettlements of a scale or nature likely to have significant adverse impacts to affected people or use of forced evictions. g. Large-scale changes to land-use or access to land and/or natural resources. h. Adverse E&S impacts covering large geographical areas, including transboundary impacts of global impacts such as greenhouse gas (GHG) emissions. i. E&S risks are high if associated facilities7 are linked to the proposed investment. j. Significant, cumulative, induced, or indirect impacts. k. Activities that involve the use of forced or child labour. l. Marginalisation of, or conflict within or among social groups. m. Activities with high risks of GBV and SEA-SH. n. Activities that would (a) have adverse impacts on land and natural resources subject to traditional ownership or under customary use or occupation; (b) cause the relocation of marginalised communities/indigenous peoples from land and natural resources that are subject to traditional ownership or under customary use or occupation; or (c) have significant impacts on marginalised communities’/indigenous peoples’ cultural heritage that is material to the identity and/or cultural, ceremonial, or spiritual aspects of the affected communities. 2.4 Potential Environmental Health and Safety Benefits 37. The PforR Program will significantly deliver environmental health and safety benefits which will vary depending on the investment’s menu. The potential environment health and safety benefits include, but not limited to: a. Improved clean environment and living conditions through creation of green spaces from the establishment of public parks and landscaping of public areas. b. Improved health and sanitation at the urban areas (markets, bus terminus, households) through provision of water, improved solid waste and wastewater management system. c. Improved public health through reduction of waterborne diseases such as typhoid, diarrhoea, cholera from provision of clean water to households and wastewater management systems. d. Improved roads will enhance safety and access to basic services. e. Reduced road-user’s conflicts and pedestrian accidents through provision of Non-Motorised Transport (NMT) facilities and bus terminus. f. Better roads will enhance traffic flow, improve air quality, reduce dust levels, and lower fuel consumption. g. Reduced risk of flooding and erosion through improved storm water drainage systems in urban areas. h. Protection of wetlands and waterways from appropriate urban planning. i. Increased awareness on the importance of environmental health and safety management at the national, county and municipality levels. 2.5 Potential Environmental, Health and Safety Risks and Impacts 38. The Program is expected to have direct and indirect effects on the physical environment, Environmental health and safety risks. Impacts in this Program are similar to the ongoing KUSP and mainly limited to the construction phase. The risks are considered site specific, temporary in nature and reversible. 7 Funded facilities or activities likely to present substantial/high risk due to direct linkage to an existing project, are considered non- eligible under the Program. 11 39. The potential negative environmental, health and safety impacts, include but are not limited to: a. Disturbance, loss of existing vegetation and potential impact to fauna species. b. Localised noise and air pollution (dust and emissions) from construction activities. c. Soil contamination and underground water pollution from spillage of oil and fuel associated with construction works. d. Soil erosion and sedimentation of waterways especially during construction of roads and storm water drains. e. Land degradation impacts from sourcing of construction material from quarry and borrow pits for use in civil works. f. Scenic quality deterioration and environmental pollution from dumping of excavated material and impact to physical cultural resources. g. Occupational health and safety incidents/accidents to workers at construction sites and community health and safety risks to the public. h. Increased generation and unsafe disposal of construction solid waste and wastewater. i. Traffic obstruction and increased traffic related safety risks. j. Temporal disruption of public access to residential and businesses especially during excavation of trenches on structures that have encroached the road reserve. k. Disruption of existing infrastructure or services such as drainage, sanitation, telecommunication utilities, power, and water supply especially during construction phase. l. Increased spread of sexually transmitted diseases including HIV/AIDs, STDs, and other communicable diseases such as COVID-19 and tuberculosis. m. Water (surface and groundwater) pollution risks from transport, treatment and disposal of wastewater and faecal sludge from pit latrines, septic tanks, and other onsite sanitation facilities, if not properly handled. n. Poor infrastructure development from limited involvement/availability of technical experts in development of feasibility studies and monitoring or supervision from NPCT as well as from relevant government authorities such as NEMA, DOSHS and NCA. o. Poor sub-project sustainability from limited operation and maintenance of urban infrastructure. 2.6 Potential Social Benefits 40. The KUSP2 activities have overall significant positive social impacts and will generate socio-economic benefits in the short and long term of the Program. The anticipated social benefits include, but not limited to: a. Creation of employment opportunities through construction and maintenance of the infrastructure leading to increased income and improved livelihoods. b. Enhanced service delivery and access to public facilities/social services through improved road networks within urban areas. c. Water supply/community connections including water kiosks and storage tanks, will improve people's lives through access to clean water and increased hygiene and sanitation. d. Enhanced security, safety on roads, streets and public areas through improved walkways and provision of streetlights. This will contribute to reduction in crime in urban areas. e. Increased transparency, better governance and management of urban areas and cities. f. Strengthened social responsibility and participatory governance as citizens in the counties, municipalities and cities will be stimulated to engage in-order to enhance accountability from public officials. g. Enhanced technical capacities in the counties, municipalities, and cities to implement and manage the public investments. h. Promote climate smart resilient infrastructure improvements. i. Increased access of Program benefits to the most deserving, promoting citizen and gender equality, and culturally appropriateness including women, youth, VMGs and IPs. j. Promote universal access to projects designs such as provision of rumps, disability friendly sanitation facilities, closed storm water drains to ensure, facilitating infrastructure access to all persons including the elderly, children, and persons with disability. 12 Address adverse climate related disasters such as floods that may adversely impact income streams and production as well as limit access to opportunities and services. k. Promote shared use of public facilities and institutions by refugees and host communities. 2.7 Potential Social Risks and Impacts 41. The KUSP2 proposed investments may pose potential negative social risks and impacts. The potential negative social risks and impacts include, but not limited to: a. Inadequate Environment and Social Staffing and budget allocation for ESHS risks management. b. Loss of livelihoods through temporary displacements/repositioning of vendors, hawkers, drivers especially during construction of public markets, access roads and NMT. c. Disruption of access and damage to public utilities and/or private properties such as the impact of improper channelling of storm water drains that may exacerbate flooding situation to settlements downstream. d. Labour influx risks which may lead to an increase in crime, insecurity and upset community dynamics. e. Use of Forced, child labour and abuse. f. Potential public and community health and safety risks such as accidents from open drains. g. Increased Gender-Based Violence (GBV) and Sexual Exploitation and Abuse and Sexual Harassment (SEA-SH). h. Lack of transparency and trust by communities due to poor consultations and stakeholder engagement with project beneficiaries, vulnerable groups, and marginalised communities/ Traditional Local Communities. i. Discrimination against the vulnerable groups, especially women and minorities in selecting Program participants, lack of consideration of PWD needs, access and suitable infrastructure. j. Lack of clear guidelines presents the risk of targeting and exclusion of vulnerable groups for Program benefits. k. Inadequate mechanisms for stakeholder identification, engagement, monitoring and feedback. l. Ineffective grievance redress and feedback mechanisms. m. Gender inequality in employment opportunities. n. Elite capture or political interference in beneficiary targeting of the most deserving as well as selection and prioritization of urban investments. o. Bias of contract awarding to known or particular group of contractors. p. Conflicts between the host communities and refugees on resources access and sharing. Table 4: Key Risk/Impacts and proposed Management Measures No. Risks/Impact Management Measures Risk Rating 1. Inadequate ▪ Enhance human resource staffing and resourcing of ESS Substantial Environment and department at cities/municipalities. Each participating Social Staffing and municipality should have 1environment and 1 social specialist as budget allocation a minimum condition to access the UDG. for ESHS risks ▪ The Program will partner with NEMA to train and build capacity management. of the newly recruited and/or seconded E&S experts on EMCA 2015 and related regulations. 13 ▪ Urban boards are allowed to spend up to 10% of the UDG allocations on preparation of ESIA/ESMP’S, ARAP and supervision of project investments through hiring of consultancy services, obtain NEMA license and supervision of project implementation including ESMP and ARAPs. 2. Environmental ▪ Prepare ESMPs as per EMCA, 1999 [2015] regulations and Low Pollution ( land, air, monitor implementation through better contract management. and water ▪ Sensitize the contractors on potential environment pollution pollution) and the mitigation measures. 3. Impacts on natural ▪ Review the E&S screening checklist prepared under KUSP, for Low habitats and screening sub-projects to identify any potential impacts to Physical Cultural natural habitats and physical cultural resources before Resources undertaking environmental assessments. ▪ Sub-projects shall consider the standard chance find procedures outlined in the ESHSM manual for the management of physical cultural resources. 4. Public and worker’s ▪ Develop guidelines for mainstreaming OHS/CHS aspects Substantial health and safety including avoiding child and forced labor in the ESHSM manual risks for adoption in Program implementation. ▪ The Program will partner with DOSHS to enhance the capacity of counties/cities/municipalities on health and safety risks management based on national laws and regulations. This will be achieved through training of E&S staff at cities/municipalities and induction of contractors on OSHA, 2007. ▪ Develop a simplified OHS manual for contractors. ▪ At the national level, NPCT will have a health and safety specialist as part of the team to support in mainstreaming H&S aspects in the Program. 5. Temporary ▪ Develop guidelines for managing temporary displacements and Substantial Displacements and relocation in the ESHSM manual for adoption by Relocation county/cities/municipalities that will guide on temporary displacements and relocation, consistent with national laws and the Bank’s guidance on Program for Results Financing. ▪ Training and capacity building of the ESS focal persons, urban CECMs and city/municipal managers on sustainable land access, temporary displacements, and relocation, grievance management on land matters, and ARAPs. ▪ Municipalities/cities may hire consultants to prepare ARAPs to improve the quality and timely preparation of the plans before commencing project implementation, where capacity is lacking. ▪ Conduct meaningful consultations and participation including the project affected persons and ensure that consultation minutes are prepared and properly documented. 6. Exclusion of the ▪ Strengthen awareness, targeting, engagement and inclusion of Moderate vulnerable and vulnerable and minority groups in the Program. marginalised ▪ Ensure the proper participation and consultation of vulnerable groups (youth, groups during planning, design, construction, and operation women, elderly, phases of the project. PWD’s, refugees ▪ Factor in the project infrastructure designs key recommendations to enhance gender inclusion and incorporate universal access. 14 7. Inadequate Citizen ▪ Develop and adopt guidelines for mainstreaming stakeholder Moderate and Stakeholder engagement processes and capacity build the counties/cities Engagement and municipalities. ▪ Creation of awareness on the benefits of meaningful stakeholder engagement and strengthening consultation and stakeholders’ collaboration ▪ Public participation and civic education guidelines developed under KDSP will be rolled out under KUSP2. ▪ Sensitize the cities/municipalities to include stakeholder feedback in monitoring, auditing and verification processes. ▪ Provide a platform for enhanced engagement between the host and refugees communities . ▪ Map out all the host villages around/adjacent to the refugee camps and encourage selection of their representatives to participate in Program activities. 8. Grievance ▪ Develop and roll-out GRM guidelines to county/city/municipal Substantial Management levels to strengthen and harmonize the existing GRM systems established under KUSP. ▪ The Program should ensure disclosure of the grievance uptake channels at all project sites. ▪ Periodically train cities/municipalities on the GRM logging, feedback, monitoring and evaluation. ▪ Disclosure of GRM system on the sub-projects signboards with contact of responsible person. ▪ For the WHR component, strengthen the existing systems by integrating the GRM local structures, enhancing engagement at planning and delineation phases and review the Grievance Redress Committee (GRC) composition to include community leaders and elders from the refugee and host communities. 9. Enforcement of ▪ Review the contract documents to strengthen the existing ESHS Moderate ESHS requirements clauses such as on OHS, community health and safety and GBV/SEA-SH are adequately incorporated including integrating the NEMA licence conditions. ▪ Include template for incident/accident reporting in contracts, on site. ▪ Include a clause on monthly reporting of sub-project incidents/accidents on site by the contractor. ▪ Municipalities should work together with the relevant MDA’s (NEMA, DOSHS, social protection, labour, gender) to enforce compliance with ESHS laws and regulations. 10. Gaps in ▪ Develop an environmental social health and safety reporting Substantial Environmental template as part of the ESHSM manual. Social Health and ▪ Prepare biannual and annual environmental and social Safety monitoring implementation reports. and reporting ▪ Undertake annual environmental and social health and safety audits and disclose audit results. ▪ Continuously monitor contractor safeguards non-compliance to ensure implementation of agreed actions. 15 3. OVERVIEW OF RELEVANT COUNTRY POLICY, LEGAL, REGULATORY, AND INSTITUTIONAL SYSTEMS FOR ENVIRONMENT, SOCIAL, HEALTH AND SAFETY MANAGEMENT 42. This chapter describes the relevant Environment and Social Policy, Regulatory and Institutional Framework, for managing potential E&S impacts of the Program activities to achieve the key result areas under KUSP2. The PforR policy of the Bank requires the proposed Program to operate within an adequate legal and regulatory framework that can manage ESHS effects identified during the ESSA process. Relevant laws and institutions for ESHS risks management are summarised in the subsequent sections in this chapter including table 5 and 6 below. 16 Table 5: Relevant Policy, Legal, and Regulatory Framework for Environment, Social, Health and Safety Management i. Legislations Policy/ N /Guidelines Provisions Relevance Country Environment and Social Policies, Laws, Regulations and Management Systems 1. Constitution of Kenya (CoK) 2010 The Constitution of Kenya (CoK) 2010 is the supreme law of the Republic and binds KUSP2 shall ensure that peoples conditional rights all persons and State organs at all levels of government. Concerning the are safeguarded and lay emphasis on sustainable environment, Article 42 of Chapter four, The Bill of Rights, confers to every person environment and natural resources management the right to a clean and healthy environment, which includes the right to have the as well as ensure equitable sharing of accruing environment protected for the benefit of present and future generations through benefits. legislative measures, particularly those contemplated in Article 69. Section 69 (2) states that every person must cooperate with State organs and other persons to protect The Program shall promote ecological and conserve the environment and ensure ecologically sustainable development and sustainability through enhancements of urban use of natural resources. Section 70 provides for enforcement of environmental social and economic infrastructure including urban rights. greenery. Program activities shall be carried out to ensure compliance with the constitution on all aspects related to E&S management, including public participation, environmental impact assessments, audit, and monitoring. 2. Kenya Vision 2030 Kenya Vision 2030 is the current national development blueprint covering the period The activities under KUSP2 operation are anchored 2008 to 2030. The blueprint aims at transforming Kenya into “a newly industrializing, on the KenUP2 which is developed in line with middle-income country providing a high quality of life to all its citizens in a clean and vision 2030. Program activities support resilient secure environment.� The Vision is anchored on three key pillars: Economic; Social; urban development by adopting climate smart and Political Governance. The political governance pillar envisages public infrastructural designs and sustainable participation during project development, while social pillar envisages development urbanization. through equitable social development. The third medium Term Plan (2018-2022) of the vision 2030, identifies urbanization among the six sectors under the social pillar In addition, the projects under the operation are to drive social economic development. The impact of climate change in many parts anchored to the respective Municipality Integrated of the country constraints the social and economic development prospects of the Development Plans (IDePs) and annual urban area area. investment plan which are developed with The Vision 2030 policy anticipates possible environmental and social impacts during considerations of Vision 2030. the rollout of flagship projects requiring mitigation measures to be put in place in line with the requirements of the Environmental Management and Coordination Act 17 i. Legislations Policy/ N /Guidelines Provisions Relevance (EMCA), 1999 and the Environmental Management and Coordination (Amendment) Hence, the implementing counties/municipalities Act, 2015. should ensure environmental, social, health and safety care through mitigation of impacts during implementation of the sub-projects. 3. The Sustainable Development Goals The 2030 agenda comprises 17 new sustainable Development Goals (SDG’s). The The development of Municipality Integrated (SDGs) objective was to produce a set of universally applicable goals that balances the three Development Plans (IDePs) is linked with the SDG’s. dimensions of sustainable development: social, economic, and environmental The Program investments will therefore contribute sustainability. towards achieving these goals through the proposed Program activities and sub-projects. 4. National Environment Policy (NEP), The overall goal of the policy is to ensure that environmental concerns are part of KUSP2 is seeking to improve infrastructure in urban 2014 the national planning and sustainable management processes; and those guidelines areas, the policy requires all sub-projects likely to are provided for environmentally sound development. The policy aims to strengthen have ESHS impacts to undergo environmental the legal and institutional framework for good governance and effective screening and assessments before initiating any coordination and management of environment and natural resources in Kenya. The civil works to ensure implementation of climate policy further advocates for a broad-based public participation in decision making resilient and sustainable infrastructure. processes as one of the fundamental pre-conditions for sustainable development. It is guided by the following key principles, environmental right, right to development, Counties/municipalities shall ensure robust, ecosystem approach, total economic value, sustainable resource use, equity, public transparent and informative public participation participation, subsidiarity, and precautionary principle. takes place throughout Program implementation. The policy promotes the use of environmental management tools such as In addition, the public participation and civic Environment Impact Assessment (EIA), Environmental Audits (EA), Strategic education guidelines developed by the GoK under Environmental Assessments (SEA) among others. Promotes the inclusion of cross the Kenya Devolution Support Program (KDSP) will cutting and emerging issues such as poverty reduction, gender, disability, HIV&AIDS, be rolled out in municipalities and capacities of and other diseases. It also calls for the Government of Kenya (GoK) to ensure that all staff enhanced. significant development projects are subjected to EIA and regular environmental audits. Furthermore, the sub-projects will be subjected to periodic environmental audits throughout the life cycle of the project. The policy has gaps in integrating measures for the effective management of social risks associated with construction of sub-projects. 18 i. Legislations Policy/ N /Guidelines Provisions Relevance 5. National Climate Change Response The strategy guides on how to tackle the climate change variability and challenges The proposed operation aligns to this strategy by Strategy (NCCRS), 2010 with a view of ensuring a climate change resilient country. Key objectives of the supporting resilient urban development such as NCCRS includes: i) enhancing understanding of the global climate change process and through: position Kenya needs to take to maximize beneficial outcomes; ii) assess the a) mainstreaming climate change in spatial and evidence and impacts of climate change in Kenya; iii) recommend robust adaptation land use development plans such as and mitigation measures needed to minimize risks associated with climate change; preservation of wetlands, green places, and iv) understanding of climate change and its impact nationally and in local regions; v) flood plains. recommend vulnerability assessment, impact monitoring and capacity building b) screening the proposed infrastructure framework needs; vi) recommend research and technological needs and avenues for investment for climate risks and incorporating transferring existing technologies; vii) provide conducive and enabling policy, legal risk mitigation measures. and institutional framework to combat climate change, and vii)providing a concerted c) incentivise counties to finance climate action plan, and robust monitoring and evaluation plan. adaptation and resilient investments such as renewable energy projects, green building & infrastructure and flood management. 6. National Occupational Safety and The overall objective of this policy is to establish National Occupational Safety and The policy provides OHS guidelines which shall be Health Policy, 2012 Health systems and Program geared towards the improvement of the work complied with during implementation of the environment. The Policy seeks to reduce the number of work-related accidents and infrastructure sub-projects to prevent work related diseases, provide compensation and rehabilitation to those who may be injured at injuries as well as loss of life to workers and the work or contract occupational diseases. The specific objectives of this policy are, public. among others: a) to guide the development of laws, regulations and any other instruments on occupational safety and health; b) to recommend establishment and The DOSHS will be part of the Program Technical strengthening of responsible and accountable institutions for management of Committee (PTC), offering technical OHS expertise occupational safety and health issues; c) to recommend enforcement and and training in the Program. compliance mechanisms for occupational safety and health laws and regulations; d) to create mechanisms for cooperation between employers, workers and their In addition, capacity of the NPCT will be enhanced representatives at workplaces in the promotion of occupational safety and health; through having a health safety officer as part of the and e) to strengthen capacities of state and non-state actors in occupational safety team for effective OHS risk management under the and health. Among other safety issues, the policy provides the framework for Program. mandatory use of appropriate personal protective gear, protection of workers The Program shall build capacity of E&S staff at against of occupational hazards, and workplace provisions for First Aid and municipality level and induct hired contractors OHS emergency medical evacuation. risks management during infrastructure implementation, to improve the performance of urban institutions, under the UIG. 19 i. Legislations Policy/ N /Guidelines Provisions Relevance 7. National Policy on HIV and AIDS at This policy entails a framework for action by government employees and workers to The HIV Policy will be complied with during work, 2009 (Revised in 2018) deal effectively with HIV/AIDs at the workplace. Main objectives are to strengthen implementation of the Program; the contract will the legal & policy framework for HIV/AIDs; enhance capacities of policies incorporate in Bid Document and implement implementation; reduce on new infections and HIV related deaths; strengthen HIV/AIDs awareness initiatives during construction financing and sustainability of HIV Programs; eliminate stigma and discrimination as of the sub-Projects. well as enhance capacity for the informal and small enterprise sector for effective HIV response. 8. National Urban Development Policy This policy seeks to create secure, well-governed, competitive and sustainable urban The proposed operation will support the GoK to areas that contribute to overall national growth by: creating mechanisms for vibrant implement its urban development agenda and economic growth and development in urban areas and cities; increasing revenues aspiration to improve access and quality of services and efficient financial management systems in urban areas; promoting effective delivered for citizens and become an upper middle- urban governance structures; positioning urban planning as a driver of sustainable income nation by 2030, using urban areas as urban development; enabling access to developable urban land; building resilient drivers of economic growth. urban areas by promoting urban areas environmental planning and management as well as climate change adaptation plans; supporting investments in urban infrastructure and services; promoting investments in affordable urban housing and; mainstreaming urban safety and disaster risk management in urban planning and development. 9. Environmental Management and The EMCA of 1999, and the amendment act of 2015, is an act of Parliament that The Program is expected to: Coordination Act, 1999 and the provides for the establishment of an appropriate regulatory and institutional a. Ensure all activities are carried out in an amendment Act of 2015, Legal framework for management of the environment and matters connected there with environmentally friendly manner throughout Notice No. 31 of April 2019 on the and incidental thereto. Part II of the Act states that every person in Kenya is entitled the design, construction, and operation of EMCA. to a clean and healthy environment and has the duty to safeguard and enhance the projects. environment. Part VI of the Act directs that any new Program, activity, or operation b. Comply with EIA requirements during should undergo EIA and a report prepared for submission to the National implementation of infrastructure Environment Management Authority (NEMA) for review, who in turn may issue investments and subsequent undertake license as appropriate with specific conditions of approval to be adhered to during environmental and social audit(s) and project implementation. monitoring to safeguard and enhance the environment and to ensure clean and The legal notice 31 provides for the categorisation of projects as either Low-Risk, healthy environment for all. Medium-Risk, or High Risk, and provides a longlist of projects pre-screened into each c. Screen potential subprojects using the of these categories. criteria provided in the legal notice 31 of the Act to determine the risk category, and the 20 i. Legislations Policy/ N /Guidelines Provisions Relevance level of environmental and social assessment required. To enhance the capacity of municipalities, the NEMA will undertake training and capacity building on the Act and related regulations. The NEMA will be part of the Program Technical Committee (PTC), offering technical expertise on sub-projects. 10. Environmental Management and This regulation provides guidelines for conducting EIA and audits. It offers guidance The Program will adhere to this Act especially Coordination Act (Impact on fundamental aspects which emphasize must be laid during the field study and during implementation of infrastructure Assessment and Audit, 2003) and outlines the nature and structure of EIA and audit reports. The Environmental investments. the Amendment Regulations, 2019 assessments and audits are to be conducted by a qualified environmental lead experts/ registered environmental inspector. The legislation further explains the • Site specific environmental and social impact legal consequences of partial or non-compliance to the provisions of the Act. assessment's will be prepared and NEMA Legal Notice No 32, 2020 section 7 provides guidelines to the proponent undertaking license obtained before start of civil works a project specified in the second schedule of the Act; for low-risk projects, summary • Regular supervision of ESMP implementation project reports are to be submitted to NEMA, sub-projects with significant adverse conducted. environmental impact; a comprehensive project report while for sub-projects with • Environmental Assessment (EA) compliance no significant adverse environmental impact, the proponent is issued with the audits and monitoring will be carried out for approval to proceed with the project. infrastructure projects. Gaps are identified in terms of integration of social risks and impacts in ESIA and preparation for ARAPs. 11. Environmental Management and These Regulations applies to all categories of wastes that include solid waste, The proposed Program will abide by these Coordination Act (Waste industrial waste, hazardous waste, toxic substances and waste, biomedical waste, regulations in management of investments Management) Regulations, 2006 and radioactive substances. These Regulations also vest responsibilities to the enhancing urban functional areas on solid waste generator of the wastes especially with regards to any consequent environmental management. impacts. Construction activities might generate waste at different forms and quantities such This also includes handling of industrial, as form woodwork, empty bitumen drums, excavated spoil material, wrappers, hazardous, and toxic wastes which may be plastic containers, cuttings (plastic/metal), used vehicle tyres, among others. Wash- generated during construction or operations phase 21 i. Legislations Policy/ N /Guidelines Provisions Relevance down from equipment and vehicle maintenance, waste from septic facilities and of the sub-projects. Contractors will be required to used oil and chemical substances are some of the liquid waste expected to be seek services of NEMA licensed waste handler to generated at the project construction stage. The wastes generated from the manage waste generated from the site. activities have the potential of contaminating the immediate ground surfaces and atmosphere; thus, the need for strict adherence to these Regulations in dealing with all the wastes and handling of waste streams. 12. Environmental Management and These regulations provide for sustainable management of water resources including The proposed Program will have to abide by these Coordination Act (Water Quality) rules on the use and discharge of water for domestic, agricultural, and industrial regulations especially in dealing with investments Regulations, 2006 purposes. They also make provisions for the protection of water resources such as under the urban functional area on wastewater lakes, rivers, springs, streams, wells and other sources from pollution. The and faecal sludge management, water supply/ regulations prohibit in general the pollution of water and unauthorized abstraction community connections including water kiosks or use of water. In accordance with Part II of the regulations, every person is and storage tanks, and storm water drainage. expected to refrain from acts that could directly or indirectly cause immediate or subsequent water pollution, and no one should throw or cause to flow into water In fulfilling the requirements of these regulations, resources any materials that can contaminate the water. the sub-projects will have to undertake monitoring The regulations have standards for discharge of effluent into the sewer and aquatic of both urban water supply and wastewater and environment. NEMA has a responsibility to monitor the discharge of all effluent into ensure compliance with the acceptable discharge the environment whereas any wastewater management service providers are to standards to prevent pollution of underground and monitor and ensure discharge of wastewater into the sewer system is done surface water. according to the stipulated standards. 13. Environmental Management and The regulation prescribes measures against noise and vibrations from specified During sub-project implementation, the Coordination Act (Noise and sources and define permissible noise levels for various activities including contractors will be required to take into Excessive Vibrations Pollution) construction activities. Part II Section 3 of the regulation prohibits making of any consideration, minimizing any noise emanating (Control) Regulations, 2009 loud, unreasonable, unnecessary, or unusual noise which annoys, disturbs, injures, from works and provide PPE to workers who are or endangers the comfort, health or safety of others and the environment. The likely to be exposed to high noise levels. regulations require a permit/licence to be obtained from NEMA for any activities that Construction work shall be undertaken during the emit noise or excessive vibrations beyond the permissible levels day and/or as prescribed in the NEMA License. Works near schools should be scheduled outside off-peak hours. 14. Environmental Management and The Regulations give provisions for prevention, control, and abatement of air The Program will need to adhere strictly to these Coordination Act (Air Quality) pollution to ensure clean and healthy ambient air to protect human health. The Regulations and standards in preventing/ Regulations, 2014 regulations apply to specific priority air pollutants, mobile and stationary sources as monitoring possible air pollutants and managing well as stipulated emission standards. Section 4 of the regulation allows the sources of pollution. Authority (National Environment Management Authority) to consider the use of 22 i. Legislations Policy/ N /Guidelines Provisions Relevance other internationally recognised emission standards in relation to air pollutant/source where there are no local emission standards, targets or guidelines set out in the regulation. 15. Sustainable Waste Management This Act of Parliament establishes the legal and institutional framework for the All solid waste management including Waste Act, 2022 sustainable management of waste; ensure the realization of the constitutional Management Plans for the Program shall be guided provision on the right to a clean and healthy environment. by this Act. Part II of the Act, Section 9 (1) County governments shall be responsible for implementing the devolved function of waste management and establishing the financial and operational conditions for the effective performance of this function. Some of the functions the county governments must accomplish include; a) ensuring that the county legislation on waste management compliance with the act; b) ensure that the waste generated in the country is disposed of within county boundaries unless there is intercounty transportation; c) provide central collection centers for recyclable materials; d) establish waste management infrastructure to promote source segregation, collection, re-use and set-up for material recovery. Section 19 of this Act provides guidelines on the preparation of Waste Management Plans (WMPs) by counties, private entities and individuals. 16. The Water Act (2016) In Kenya, ownership of water resources is vested and held in trust with the National The construction of the sub-projects will apply Government. The Act provides the legal framework for the management, water resource management measures at the conservation, use, control, and development of water resources and for the project areas. The contractor shall ensure acquisition and regulation of right to use water in Kenya. It also provides for the protection of water resources with no pollution to regulation and management of water supply and sewerage services and for other nearby rivers (such as dumping of excavated connected purpose in line with the Constitution. Under this Act, ownership of water material along the riparian areas) and streams and resources is vested and held in trust with the National Government. Part IV section will seek the necessary permits to abstract water 63 confers to every person in Kenya a right to clean and safe water in adequate from rivers and other sources. quantities and reasonable standards of sanitation as provided in Article 43 of the constitution. Sub-projects such as on wastewater and faecal Water Resources Authority (WRA) have a primary responsibility to protect, conserve sludge management will reduce, to an extent, and regulate the use of water resources including the planning and issuing of water potential pollution to water resources. abstraction permits. 23 Policy/ N i. Legislations /Guidelines Provisions Relevance 17. Water Resources Management These Rules shall apply to all policies, plans, Programmes, and activities that are The Rules shall be applicable in the Program as Rules, 2006 subject to the Water Act 2002. These Rules apply to all water resources and water pertaining to control of water pollution and bodies in Kenya, including all lakes, water courses, streams, and rivers, whether activities on riparian land. perennial or seasonal, aquifers, and shall include coastal channels leading to territorial waters. 18. Public Health Act, Chapter 242 The Public Health Act provides for protection of public health through prevention The proposed operation will contribute to the and guarding against introduction of infectious diseases; the promotion of public improvement of urban infrastructure and services health; the prevention, limitation, or suppression of infectious, communicable, or which will include solid waste management, preventable diseases; advising and directing local authorities about matters affecting wastewater, and faecal sludge management as public health. The Act also provides the impetus for a healthy environment, and well as improvement on water supply in urban supports regulations on waste management, pollution, and human health. It also lays areas which will promote public health and down rules related to public water supplies. hygiene. The Act provides measures to the Program through the urban authorities to manage Part IX section 115 states that no person shall cause nuisance or condition liable to all wastes (Liquid and Solid Wastes) emanating be injurious or dangerous to human health. Section 116 requires Local Authorities from the Program in a way not to cause nuisance to take all lawful, necessary, and reasonably practicable measures to maintain their to the public. jurisdiction clean and sanitary to prevent occurrence of nuisance or conditions injurious or dangerous to human health. Section 118 defines such nuisance as waste pipes, sewers, drains and refuse pits in a state or constructed as in the opinion of medical officer of health to be injurious to health. 19. HIV/AIDS Prevention and Control Part 11, Section 7 requires HIV and AIDs education in the workplace. The government The Act provisions will be applied during Program Act (Act No. 14 of 2006) is expected to ensure provision of basic information and instruction on HIV and AIDs implementation phase where the contractors will prevention and control to employees of all Government Ministries, Departments and be required to offer training on HIV/AIDs Agencies, and employees of private and informal sectors. The information on awareness, prevention and management to the HIV/AIDs is expected to be treated with confidentiality at the workplace and positive workers and local community, as provided by law. attitudes shown towards infected employees/ workers. 20. Occupational Safety and Health Act The Act promotes safety, health, and welfare of all workers at the workplace, The Program shall put mechanisms to promote (OSHA) (2007) preventing work related injuries and sickness, protecting third party individuals from safety in infrastructure technical designs being pre-disposed to higher risk of injury and sickness associated with activities of preparation and during construction. people at places of work. The scope of OSHA 2007 covers all workplaces including Civil works contractors will be required to comply offices, schools, construction sites among others. It establishes codes of practices to with requirements of this Act through obtaining be approved and issued by the Directorate of Occupational Safety and Health relevant work site permits and licences, train Services (DOSHS) for practical guidance of the various provisions of the Act. workers on OHS, inspection of equipment to Inspection and enforcement systems exists with a bearing to occupational safety, ensure they are in good working conditions, 24 i. Legislations Policy/ N /Guidelines Provisions Relevance health, and labour inspections. DOSHS have a core responsibility to carry out provide appropriate PPE to workers among other inspections related to environment at work, safety of workplaces, general health, measures. and basic welfare of workers to ensure compliance with the OSH Act. In section 97 the act prohibits employment of persons below age of 18 years at the workplace or Regular supervision and inspection of perform work likely to harm the persons safety or health. infrastructure investments shall be carried out during construction and operation phases to ensure they are safe. The contract will incorporate basic minimum OHS requirements in bidding documents, to be met by all the contractors. 21. The Factories and Other Places of These Rules shall apply to all factories and other workplaces, which regularly employ As a subsidiary legislation under the OSHA, 2007, Work (Safety and Health twenty or more employees. The occupier of every factory or other workplace to the Program shall observe adherence to the rules Committees) Rules, 2007 which these Rules apply shall establish a Safety and Health Committee in the manner by facilitating the formation of Health and Safety provided in the Rules. A Safety and Health Committees shall consist of safety Committees, in municipalities, for effective ESHS representatives from the management and the workers. management. 22. The Factories and Other Places of The rules are applicable to workplaces, premises, place, process, and operations. The As a subsidiary legislation under the OSHA, 2007, Work (Hazardous substances) rules provide guidance on exposure limits to hazardous substances, provision of the rules shall be referred to in the Program to Rules, 2007 personal protective equipment for air bone and other hazardous substances ensure hazardous substances exposure guidelines exposure and recommendations while working in hazardous conditions. are adhered to. 23. The Factories and Other Places of This Act deals with factories and other places of work. Sections 21 and 22 of the Act As a subsidiary legislation under the OSHA, 2007, Work (Noise Prevention and provide that moving parts of machinery should be secured to be safe to every person the rules shall be referred to in the Program to Control) Rules L.N.24, 2005 employed or working at the premises. Part VI of the Act provides for the general ensure noise prevention and control measures are welfare of the workers with respect to supply of drinking water, washing facilities adhered to. and first aid among other aspects. Related to the workers welfare, Part VII section 51 states in part “every workplace in which there is given off any dust or fumes or other Fully equipped First Aid Kit shall be provided at the impurity of such a character and to such an extent as to be likely to be injurious or respective sub-project’s sites during the offensive to the persons employed, or any substantial quantity of dust of any kind. implementation of the Program. Kenya Gazette Supplement No. 25 of 24th May, 2004 of the Factories Act Cap 514, requires that, all workplace owners to establish a safety and health committee, which shall consist of safety representatives from the management and the workers. The Act also requires the management to appoint a competent person who is a member of the management staff to be responsible for safety, health and welfare in the workplace. Section 13 goes ahead to state that a health and safety audit of the 25 i. Legislations Policy/ N /Guidelines Provisions Relevance workplace be carried out every twelve months by a registered health and safety adviser. 24. The Factories and Other Places of The rules promote adherence to fire safety measures at every workplace, process, As a subsidiary legislation under the OSHA, 2007, Work (Fire Risk Reduction) Rules, and operations. The rules provide guidance with reference to the location of large the Program shall observe adherence to the rules 2007 installations for highly flammable substances, use of fire-resistant construction by facilitating the reduction of potential fire risks. material, the storage, marking and labelling of highly flammable substances, waste disposal, installation, and handling of electrical equipment, evacuation procedures, fire safety, fire detection systems, firefighting appliances, and fire safety audits. 25. The Work Injury Benefits Act (2007) The Act was enacted to ensure that workers who sustain work related death, injuries, The Act is applied to the Program as a measure to and diseases, are compensated. The Act applies to all employees including those ensure the safety and health of workers. employed by Government, other than the armed forces, in the same way, and to the same extent as if it was a private employer. An employee who is involved in an In the event of injury, during the implementation accident resulting in the employee’s disablement or death is subject to the provisions of the sub-projects under the Program, the of this Act and entitled to the benefits provided under this Act. employer/contractor will be required to compensate workers for temporary, total, or partial disablement and treatment. The contractor must, therefore, obtain and maintain relevant insurance cover (WIBA) in respect of this liability. 26. Employment Act No 11 of 2012 This Act declares and defines the fundamental rights of employees; minimum terms This Act provides guidance facilitating employer- [2007] and conditions of employment; the basic conditions of employment of employees; employee relationship including protecting against and regulation of employment of children, among other rights. Key sections of the child and forced labour. This is especially relevant Act elaborate on the employment relationship; protection of wages; rights and during implementation of investment duties in employment; termination and dismissal and protection of children, among infrastructure. others. Overall, the contractors will need to provide conducive terms of employment for their workers and will also need to ensure no child/forced labour in their workforce. 27. Traffic Act (Cap 403) & Traffic This Act declares that: No person shall drive, or, being the owner or person in charge The proposed Program will abide by these (Amendments) Act 2015, 2017, of a vehicle, cause or permit any other person to drive, a vehicle on a road at a speed regulations especially in dealing with investments 2022. greater than such speed as may be prescribed as the maximum speed for that class under the urban functional area on connectivity, of vehicle. In addition, on a vehicle subject to a speed restriction, there shall be mobility, and accessibility that includes road and painted or affixed to the rear, as close as possible to the rear number plate and so as non-motorised transport construction projects. to be clearly legible to a person within ten metres of the rear of the vehicle, a mark 26 i. Legislations Policy/ N /Guidelines Provisions Relevance in the prescribed form indicating its maximum permitted speed in kilometres per The contractors will be required to provide road hour. Lastly, the highway authority shall erect and maintain traffic signs as prescribed warning signages during the construction phase so as plainly to indicate to drivers entering or leaving such roads or areas where the and before handover of urban roads/NMT fifty kilometre per hour speed limit restriction begins and ends. infrastructure to the municipalities to mitigate risks The imposed speed limit on any road such lower limit of speed as it considers of traffic related accidents. necessary in circumstances when, by reason of repairs, reconstruction or damage to the road or the condition of the road, any lower limit of speed is necessary for the Contractors vehicles, equipment and drivers need public safety or to prevent damage to the road: to be licensed and inspected in line with the requirements of this Act. 28. National Construction Authority Act, This is an act of parliament for the establishment of powers and function of the The Authority is required to accredit and register 2011 National Construction Authority. The object for which the Authority is established is contractors and regulate their professional to oversee the construction industry and coordinate its development. undertakings and all construction works, contracts or projects either in the public or private sector shall be registered with the Authority in accordance with the Act. 29. Urban Areas & Cities Act (2011, The Urban Areas and Cities Act (UACA) operationalizes article 184 of the Constitution KUSP2 will be implementing infrastructural revised in 2015 & 2019) of Kenya 2010 that provides for governance and management of urban areas and projects included in the municipalities integrated cities. Section 13 of the Act makes provision for establishment of Cities while Section development plans. The boards have a role to 14 makes provision for establishment of Municipalities. Section 20 of the Act spells ensure the key safeguards staff are out functions of the board of city or municipality which include promotion of and seconded/recruited to support in screening of sub- undertaking of infrastructural development and services; promote a safe and healthy projects, ensure environmental assessments of environment; formulate and implement the integrated development plan; collection sub-projects are carried out as well as supervision of rates, levies, fees and taxes. Boards are also expected to recruit staff transparently and monitoring implementation of the sub-project and competently, establishment and monitoring of performance management ESMP’s. systems among other functions. Section 26 b) give power to council to formulate and implement the master plan for urban and physical planning and infrastructure development and provision of essential services such as water, sanitation, health care, education, housing, transport, disaster management systems and facilities for safe environment. section 26 (c) the council is expected to exercise control over land use, land sub-division, land development and zoning by public and private sectors for any purpose. 30. The County Government Act 2020 Part VII of the Act provides principles of citizen participation in counties including The sub-projects under KUSP2 will adhere to this timely access to information, access to the process of formulating and implementing Act by obtaining all the required planning permits 27 i. Legislations Policy/ N /Guidelines Provisions Relevance policies, laws and regulations, promotion of interest and rights of minorities, and licenses during construction and operation grievance redress and regional balance in decision making process. phase. Part XI of the Act empowers County Governments to oversee planning of development projects by coordinating and ensuring integrated planning including The responsibility of operation and maintenance coordinating the public participation and environmental protection. of infrastructure will be assigned to the respective The formed Counties technical planning units define: the County Integrated county/municipality departments once the project Development Plan (CIDP), sectoral plans, county spatial plan, and, cities and urban is commissioned. areas plans. The act also provides for the a) constitution to confers powers on the County During county planning and budget allocation, Assemblies to receive and approve plans and policies, and b) Ensuring and considerations are made for equity in resource coordinating the participation of communities in governance at the local level. allocation, the protection of natural resources and VMGs. The respective technical teams from the county/municipality departments will be involved in the project implementation and monitoring. 31. Intergovernmental Relations Act This is an Act of Parliament that provides a framework for consultation and co- KUSP2 will use the existing mechanisms as guided (IGRA), 2012 operation between the national and county governments and amongst county by the Act to resolve intergovernmental/county governments, to establish mechanisms for the resolution of intergovernmental disputes that may arise during Program disputes pursuant to Articles 6 and 189 of the Constitution, and for connected implementation. purposes. It provides a framework for the inclusive consideration of any matter that affects relations between the two levels of government and amongst county As part of capacity building support the Program governments; give effect to Articles 187 and 200 of the Constitution, in respect to will operationalize the urban sector the transfer of functions and powers by one level of government to another, intergovernmental forum to enhance coordination including the transfer of legislative powers from the national government to the mechanism for delivery of urban infrastructure and county governments. Part IV section 30 of the act provides mechanisms for the services to address overlaps. resolution of intergovernmental disputes where they arise before resorting to judicial proceedings. 32. Climate Change Act (2016) The Climate Change Act (2016) is national legislation that provides for an enhanced The proposed Program will align to this Act by response to climate change and provides mechanisms and measures to achieve low enhancing climate change resilience and carbon and promote climate-resilient development. The Act adopts a mainstreaming sustainable urban development such as through: approach that includes integration of climate change considerations into all sectors and in County Integrated Development Plans. The Act establishes the National a) mainstreaming climate change in spatial and Climate Change Council, chaired by His excellency the President. The Council is land use development plans such as 28 i. Legislations Policy/ N /Guidelines Provisions Relevance responsible for overall coordination and advisory functions. The Act also establishes preservation of wetlands, green places, flood the Climate Change Fund – a financing mechanism for priority climate change actions plains and drainage inter-connectivity and interventions. This Act requires the Government to develop five-year National b) screening the proposed infrastructure Climate Change Action Plans (NCCAP) to guide the mainstreaming of adaptation and investment for climate risks and incorporating mitigation actions into sector functions of the National and County Governments. risk mitigation measures. NEMA is assigned the responsibility to monitor, investigate and report on compliance c) incentivise counties to finance climate and the assigned climate change duties. adaptation and resilient investments such as renewable energy projects, green building, green infrastructure, transits-oriented development, flood management among others. 33. National Gender and Equality The Act establishes the National Gender and Equality Commission mandated to The Program will enhance gender representation Commission Act 2012 [2011] promote gender equality and freedom from discrimination in accordance with Article in urban governance and decision making by 27 of the Constitution; co-ordinate and facilitate mainstreaming of issues of gender, requiring all existing and new boards to adhere to persons with disability and other marginalised groups in national development and the 1/3rd gender rule. Developed infrastructure to advise the Government on all aspects thereof; co-ordinate and advise on public and provision of services are gender inclusive and education Programmes for the creation of a culture of respect for the principles of sensitive including vendor markets, urban public equality and freedom from discrimination; and, work with the National Commission space, public toilet facilities and childcare facilities. on Human Rights, the Commission on Administrative Justice and other related institutions to ensure efficiency, effectiveness and complementarity in their activities and to establish mechanisms for referrals and collaboration in the protection and promotion of rights related to the principle of equality and freedom from discrimination, amongst other functions. Section 8(d) of the Act mandates the Commission to co-ordinate and facilitate mainstreaming of issues of gender, persons with disability and other marginalized communities and groups in national development and to advise the Government on all aspects thereof. The law further mandates the Commission to work with other relevant institutions in the development of standards for the implementation of policies for the progressive realization of the economic and social rights specified in Article 43 of the Constitution and other written laws. 34. National Museums and Heritage The Act gives due consideration for national museums and heritage; to provide for The Program will conduct an ESIA for all projects to Act 2012 [2006] the establishment, control, management and development of national museums and avoids the significant conversion or degradation of the identification, protection, conservation, and transmission of the cultural and critical natural habitats. Developed chance find 29 i. Legislations Policy/ N /Guidelines Provisions Relevance natural heritage of Kenya. Provisions are given on heritage declarations, where procedures in the KUSP2, will enhance ESHS protected areas are on trust land, monuments, antiques and protected objects, management. powers of enforcement and export. 35. Sexual Offences Act, 2009 [2006] An Act makes provision about sexual offences, which are aimed at prevention and The Program shall ensure measures are in place to the protection of all persons from harm from unlawful sexual acts, and for connected avoid sexual offences including to minors. These purposes. Section 15, 17 and 18 are mainly focused on sexual offences on minors includes (i) sensitisation and capacity building to (children). create awareness to contactors, workers, and Government employees to prevent SEA/SH; and (ii) signed code of conduct and other relevant clauses in contract documents. 36. Child Rights Act, 2012 [2010] This makes provision for parental responsibility, fostering, adoption, custody, The Program shall ensure measures are in place to maintenance, guardianship, care, and protection of children. It also makes provision observe the rights of children as well as avoid for the administration of children's institutions, gives effect to the principles of the forced and child labor through exclusion criteria Convention on the Rights of the Child and the African Charter on the Rights and and age eligibility. Welfare of the Child. Section 15 states that a child shall be protected from sexual exploitation and use in prostitution, inducement, or coercion to engage in any sexual activity, and exposure to obscene materials. 37. Labour Relations Act, 2012 An Act of Parliament to consolidate the law relating to trade unions and trade There is scope of improvement in its application in disputes, to provide for the registration, regulation, management and management of construction workers. The democratization of trade unions and employer organizations or federations, to contractor shall be compelled to have contracts in promote sound labour relations through the protection and promotion of freedom place that provides for non-violation of workers of association, the encouragement of effective collective bargaining and promotion labor rights. of orderly and expeditious dispute settlement, conducive to social justice and economic development and for connected purposes. This Act in Section II Part 6 provides for freedom of employees to associate; section 7 provides for protection of rights of employees; Part 9 provides for adjudication of disputes and Part 10 provides for protection of the employees to hold strikes and lock outs. 38. Access to Information Act (No. 31 The Act’s purpose is to: (a) give effect to the right of access to information by citizens The gap is observed in adherence to the Act’s of 2016). as provided under Article 35 of the Constitution; (b) provide a framework for public provisions. KUSP2 shall enhance access to Program entities and private bodies to proactively disclose information that they hold and to information through robust inclusive public provide information on request in line with the constitutional principles; (c) provide participation mechanisms and communication via a framework to facilitate access to information held by private bodies in compliance various media (radio, newspapers, websites). with any right protected by the Constitution and any other law; (d) promote routine and systematic information disclosure by public entities and private bodies on 30 i. Legislations Policy/ N /Guidelines Provisions Relevance constitutional principles relating to accountability, transparency and public participation and access to information; (e) provide for the protection of persons who disclose information of public interest in good faith; and (f) provide a framework to facilitate public education on the right to access information under this Act. 39. Persons with Disability Act, 2003 The Act provides for the establishment of a National Council for Disability, its Often the gap is found in its implementation during composition, functions, and administration for the promotion of the rights of design and construction. The Program will put persons with disabilities set out in international conventions and legal mechanisms to allow for urban investment instruments, the constitution and other laws, and for other connected matters. infrastructure to address the needs of PWDs such 40. The Constitution of Kenya (COK) The COK 2010, (chapter 4, part III), Application of Rights (clause 54) states: A person as through provision of ramps for ease of access to 2010 with any disability is entitled: - (a) to be treated with dignity and respect and to be NMT, buildings, WASH facilities, and employment addressed and referred to in a manner that is not demeaning; (b) to access opportunities during Program implementation. educational institutions and facilities for persons with disabilities that are integrated The project team will involve the PWD during the into society to the extent compatible with the interests of the person; (c) to stakeholder engagements and their concerns taken reasonable access to all places, public transport and information; (d) to use Sign into consideration. language, Braille or other appropriate means of communication; and (e) to access materials and devices to overcome constraint arising from the person’s disability. (2) The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities. 41. Refugee Act, 2021 The Act provides for the recognition, protection and management of refugees; to The WHR Component shall observe provisions of give effect to the 1951 United Nations Convention Relating to the Status of Refugees, the Act in: the 1967 Protocol Relating to the Status of Refugees and the 1969 Organisation of a. the integration and cohesion of host and African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems refugees communities; in Africa and for connected purposes. b. access and shared provision of public services and infrastructure; Administrative institutions established under the Act include the; Department of c. delineation of the proposed Dadaab and Refugee Services; Refugee Advisory Committee; and Refugee Status Appeals Kakuma-Kalobeyei municipalities; Committee. The Commissioner for Refugee Affairs, with vast functions articulated in d. physical planning for proposed urban the Act, is the convener and Chair of the Refugee Advisory Committee. The investments; Commissioner shall work with the national and county Government authorities e. urban governance and management; and, within and around the designated refugee areas for its rehabilitation and ensure f. conflicts management. environmental protection. The Act will be considered in conjunction with related provisions of the Community Land Act, 31 i. Legislations Policy/ N /Guidelines Provisions Relevance Under guidance of the Commissioner, the Act further provides for the integration of 2016, Community Land Regulations, 2017, Physical host and refugees communities through facilitation of; (i) shared use of public and Land Use Planning Act (PLUPA), 2019, and draft institutions, facilities and spaces between the refugees and the host communities; Marshall Plan for Refugee Settlement (2023-27). (ii) sensitize the host communities about the presence of refugees and any other matters relating to their co-existence with each other; and (iii) in consultation with the Cabinet Secretary, establish measures for the handing over of amenities set up for the use of asylum seekers and refugees to national and county government authorities upon the departure of refugees from the place where the amenities had been set up for their use. In addition, the Act provides for the consideration of refugee matters in development plans; affirmative action for women, children and persons with disabilities; and voluntary repatriation and resettlement of refugees residing in Kenya. 32 3.1 Land Management 43. In Kenya, land is central to livelihoods and material wealth and thus appropriate measures for acquisition, resettlement and compensation are critical. The Bank’s PforR policy requires that land acquisition and loss of access to resources are managed in a manner that avoids or minimizes displacement, compensation of affected persons, assistance for improvement/restoration of their livelihoods and living standards. Under KUSP2, compulsory land acquisition is excluded as all investments will be on public land. In Kenya, the Ministry of Lands and Physical Planning is mandated with facilitating efficient land administration, equitable access, secure tenure, and sustainable management of land resource. The National Land Commission (NLC) was constitutionally conceived as an independent commission that facilitates many of the functions associated with the Ministry of Lands and Physical Planning which include planning, adjudication, mapping and survey, issuance of title deeds, and land valuation. Table 6 presents the legal and regulatory frameworks for land management and mechanisms for conflict resolution and appeal, in Kenya, as applicable to the urban sector and the KUSP2 investments menu. Table 6: Legal and regulatory frameworks for land management a. N Policy/Legislations Provisions Relevance and key gap area N /Guidelines Country Environment and Social Policies, Laws, Regulations and Management Systems 1. The Constitution of Kenya Article 40(3) provides that the state may deprive ownership of land in the case where In supporting urban development, RA 2 on (CoK) (2010) it refutes Chapter Five of the Constitution or it’s for a public purpose/interest. The Integrated planning for inclusive and resilient Article refers to the acquisition and conversion of all kinds of land in Kenya (private, urban areas will enhance the planning and public, community land and foreign interests in land). The Constitution further development control, strengthen urban planning provides that payment of compensation may be made to “occupants in good faith� instruments including incorporating climate and of land acquired by the state who do not hold the title for such land. An occupant in gender considerations. good faith is a “bona fide� occupant. However, the law is not clear about management Article 60(1) provides guidance on devolving public land management to county level. of encroachers on public land who do not fit the The Article sets out that land in Kenya shall be held, used and managed in a manner definition of landowner or “bona fide�8 occupants. 8 The Constitution of Kenya (2010) guides that provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land. 33 a. N Policy/Legislations Provisions Relevance and key gap area N /Guidelines that is equitable, efficient, productive and sustainable,and in accordance with: equitable access to land; security of land rights; sustainable and productive The WHR Component will be guided by the CoK management of land resources; transparent and cost effective administration of provisions on land classifications, landholding, and land; sound conservation and protection of ecologically sensitive areas; elimination land use regulations. All investments will be on of gender discrimination in law, customs and practices related to land and property allocated public land, accessible to both host and inland; and encouragement of communities to settle land disputes through refugees communities. recognised local community initiatives consistent with the Constitution. Articles 61 – 64 give provision on the classicification of land in Kenya as public, community or private. The Act further classifies public land and, in all cases, vests the responsibility on the respective county government to hold in trust for its residents, except for all minerals and mineral oils as defined by law and any land not classified as private or community land under the Constitution, which the national government is tasked. In all public land classifications, administration is vested on the National Land Commission. Community land is vested and held by communities identified based on ethnicity, culture, or similar community of interest. The Act classifies community land and provides any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held. Articles 65 and 66 give provisions on landholding and the regulation of land use and property, respectively. The State may regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning. 2. The Land Laws of 2012 (the In Kenya, the land management framework rests on these land laws of 2012. The As guided by the Land Act (2012), capacity building Land Act, Land Registration Land Act (2012), designates the NLC as the agency empowered to compulsorily for counties and municipalities, shall be Act and National Land acquire land. The Act provides for sustainable administration and management of undertaken. Commission Act) land and land based resources including compulsory acquisition. The Act gives provisions to national and county governments for compulsory land acquisiton, The Land Registration Act (2012) provides for based on proof that the compulsory possession is for public good and benefit. exclusive rigths to the state under the Land Act 2012. Land searches and establishment of claims 34 a. N Policy/Legislations Provisions Relevance and key gap area N /Guidelines The Land Registration Act (2012) provides for the registration of absolute to land is made based on the records maintained proprietorship interests overland (exclusive rights) that has been adjudicated or any by Land Registrations offices in counties. other leasehold ownership interest on land. Compulsory land acquisition is excluded under the Program as investments will be on public land. The National Land Commission Act (2012) establishes the National Land Commission (NLC), as mandated by the Constitution of Kenya 2010, that: manages public land on behalf of the national and county governments, 67(2) a; recommends a National Land Policy to the national government, 67(2) b; advises the national government on a comprehensive Program for the registration of title in land throughout Kenya, 67(2) c; conducts research related to land and the use of natural resources, and make recommendations to appropriate authorities, 67(2) d; initiates investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress, 67(2) e; encourages the application of traditional dispute resolution mechanisms in land conflicts, 67(2) f; assesses tax on land and premiums on immovable property in any area designated by law, 67(2) f; monitors and has oversight responsibilities over Land Use Planning throughout the country, 67(2) h; and performs any other functions prescribed by national legislation, 6(3). 3. County Government Act County governments are mandated with planning and development of public land, The Counties Technical Planning Units will be (2012) within their jurisdriction. During county planning and budget allocation, consulted and their input considered in line with considerations are made for equity in resource allocation, the protection of natural the County Integrated Development Plan (CIDP), resources and VMGs. The Counties technical planning units define: the County RAs has been aligned to the CIDP. Integrated Development Plan (CIDP) - five-year comprehensive plan; sectoral plans - exissting sectors; county spatial plan - GIS-based 10 year physical plan with earmarked desired patterns of land use and basic guidelines for a land use management system; and, cities and urban areas plans. According to the Act, city or municipal plans will facilitate development and control of these investments, within the respective boundaries. 4. The Environment and Land The Land Court has a status of the High Court, exercises jurisdiction throughout Kenya The Land Court shall be engaged to adjudicate on Court Act (2011) and is expected to ensure reasonable and equitable access to its services in every land matters, as stipulated by the Act, if/when the county. The Land Court has power to hear and determine disputes relating to event arises. environmental planning and protection, climate issues, land use planning, title, 35 a. N Policy/Legislations Provisions Relevance and key gap area N /Guidelines tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; compulsory acquisition of land; land administration and management; public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and any other dispute relating to environment and land. 5. The National Land Policy The policy identifies the critical land areas for reform in Kenya, presents a set of The policy gives guidelines on for optimal land (2009) proposals for administrative reforms and legislative action for desired land reforms. utilization, administration, and management The policy addresses critical issues including land tenure and decentralization of through application of standards, processes, and administrative structures and public engagement in decision making. procedures promoting efficiency, accountability, and transparency. The policy pursues land use that is productive, efficient, equitable and sustainable. Through E&S management and audit, the policy, encourages public participation. 6. Community Land Act, 2016 The Act provides for the recognition, protection and registration of community land The Act provisions are relevant for Program’s WHR rights; management and administration of community land; to provide for the role Component. The proposed Dadaab and Kakuma- of county governments in relation to unregistered community land and for connected Kalobeyei municipalities are located in Garissa and purposes. Turkana counties, respectively, mostly with Part II: recognition, protection and registration of community land rights, guides on community land. community land ownership and tenure system; the role of county governments; the procedure for registration of communities; the procedure for recognition and The Act will closely be applied with the Land Laws adjudication of community land; designation of a qualified registrar; maintenance of of 2012, in conversion of community to public a community land register in accordance with section 8 of the Land Registration Act, land, delineation of land for public investments 2012; registration of community land in accordance with provisions of the Act and and related land matters. the Land Registration Act, 2012; classifications of community landholding; reservation of special purpose areas by a registered community including for farming, settlement, community conservation, cultural and heritage sites and urban development; customary rights of occupancy or any other purposes as may be determined by the community, respective county government or national government for the promotion or upgrading of public interest. 36 a. N Policy/Legislations Provisions Relevance and key gap area N /Guidelines Part III on administration and management of community land, guides on the functions and powers of the community land management committee. Part V of the Act provides for conversion of community land to public land through compulsory acquisition, transfer, or surrender. The Act further provides that a registered community may use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms where it is appropriate to do so, for purposes of settling disputes and conflicts involving community land. All persons shall have the right to equal treatment in all dealings on community land. 37 4. INSTITUTIONAL RESPONSIBILITIES FOR MANAGEMENT OF ENVIRONMENTAL, SOCIAL HEALTH AND SAFETY SYSTEMS 44. The following institutions listed on table 7, are tasked with managing environmental, social, health and safety risks and impacts of the Program for realization of benefits. 38 Table 7: Institutional Responsibilities for Management of Environmental and Social Effects No. Institution Responsibilities Relevance 1. Ministry of The Ministry of Environment, Climate Change and Forestry is responsible Construction related activities shall be carried out in manner Environment, for environmental risk management at the policy level. The ministry’s that ensures appropriate usage of the environment, water, Climate Change and mission statement and the key objective is to facilitate good governance and natural resources. Proposed infrastructure shall not be Forestry in the protection, restoration, conservation, development and constructed in environmentally fragile areas. management of the environment, water, and natural resources for equitable and sustainable development. Before commencing construction related activities, The mandate of the ministry is to monitor, protect, conserve, and mandatory environmental and social risk screening will be manage the environment and natural resources through sustainable done, and requisite instruments developed to guide exploitation for socio-economic development aimed at eradication of management of adverse impacts and to ensure poverty, improving living standards and ensuring that a clean environmental and social sustainability. environment is sustained now and in the future. The ministry comprises of various Semi-Autonomous Government Agencies under the ministry The Ministry will play a key role in promoting collaboration (SAGA’s) including the National Environment Management Authority, between the different state departments and coordination Kenya Forest Service (KFS) among others on policy formulation. 2. National National Environment Management Authority is a government Infrastructure Program activities shall entail civil works and Environment parastatal established under the Environmental Management and environmental and social assessments will be prepared by Management Coordination Act (EMCA) No.8 of 1999, amended in 2015. lead experts’ consultants and submitted to NEMA for review Authority The responsibility of NEMA is to supervise and coordinate all matters and issuance of licenses. NEMA licenses are issued with relating to the environmental management and be the principle of conditions that the contractor is required to comply with. government agency in the implementation of policies relating to the Environmental audits will be prepared for investments under environment. the Program. The Authority is responsible for granting ESIA approvals including monitoring compliance with all environment regulations for any The counties/municipalities, SDHUD will liaise with NEMA in development project, to ensure protection and sustainability of the monitoring compliance and implementation of ESMPs. environment and development. NEMA is also charged with the NEMA will also play a critical role in undertaking the capacity responsibility of advice on land-use planning and ensures that building of county teams. 39 environmental management is integrated into development policies , Programs, plans and projects. 3. County The County environmental committees contribute to decentralization of The committees have a responsibility to conduct site visits Environmental environmental management and enable the participation of local and review the environment related reports of the County Committees (CEC) communities including persons with disabilities, marginalized groups projects and in some cases attend site meetings of the sub- and women in environmental management at the county level. projects to follow-up on critical issues. These are in relation The environmental management committees are constituted by the to infrastructure related activities. Governor and are responsible for the proper management of the environment within the County for which it is appointed. 4. National The National Environmental Complaints Committee (NECC) is Where grievance cannot be resolved through the Program Environmental established under Section 31 of EMCA. The NECC is concerned with GRM or sub-project GRM systems, the committee shall be Complaints investigation of complains relating to environmental damage and engaged to help address environmental related complaints/ Committee degradation. The NECC has powers to investigate any person or even grievances or those against NEMA decisions. Any unresolved against NEMA or on its own motion on any suspected case of grievances are referred to the office of the Ombudsman. environmental damage and/or degradation. The NECC is required by law to submit reports of its findings and recommendations to NEMA. 5. National EMCA established the National Environment Tribunal which has the The tribunal shall be engaged as and when disputes arise Environment jurisdiction to hear appeals from the decision of NEMA particularly on, against NEMA as related to Program construction activities Tribunal (NET) the grant of a license or permit or a refusal to grant a license or permit, and/or related environmental degradation. or the transfer of a license or permit; the imposition of any condition, limitation or restriction on a license the revocation, suspension or variation of a license; the amount of money payable as a fee and the imposition of an environmental restoration order or environmental improvement order. These appeals must be brought with 60 days of the decision so appealed. The tribunal is prohibited from extending this timeline by Rule 7 of the National Environmental Tribunal Procedure Rules, 2003, and thus does not hear any appeals brought outside it. EMCA gives the Tribunal the power to hear appeals against decisions of the Director-General of NEMA, NEMA itself, or NEMA Committees. 6. Environment and The Court has jurisdiction over any disputes relating to the environment The Court shall be engaged as and when matters arise as Land Court and land. The Court has powers to deal with disputes relating to: i) land related to implementation of Program activities such as administration and management; ii) public, private and community land construction operations particularly when such and contracts, choses in action or other instruments granting any environmental related complaints/ grievances cannot be 40 enforceable interests in land; iii) appellate jurisdiction over the decisions resolved through Program’s GRM at sub-project, county, of subordinate courts or local tribunals in respect of matters falling municipal and national levels. within the jurisdiction of the Court; and, iv) it exercises supervisory jurisdiction over the subordinate courts, local tribunals, persons or authorities in accordance with Article 165(6) of the Constitution. 7. Directorate of The Directorate of Occupational Safety and Health Services (DOSHS) is DOSHS will play a key role in KUSP2 by inspecting and Occupational Safety one of departments within the Ministry of Labour and Social Protection, auditing of workplaces to promote best practices and ensure and Health Services whose primary objective is to ensure safety, health and welfare of all compliance with safety and health standards as set out in (DOSHS) workers in all workplaces. OSHA, 2007 and its subsidiary regulations. The Directorate enforces Occupational Safety and Health Act, (2007) with its subsidiary legislation which aims at prevention of accidents and Based on the gaps identified on OHS compliance during diseases at work. It also administers the Work Injury Benefits Act, 2007 implementation of KUSP, DOSHS will be critical in (WIBA, 2007) which provides for compensation of workers who have undertaking capacity building of county teams. been injured or have suffered a disease out of and in the course of employment. Inspecting workplaces to ensure compliance with safety and health laws, including: Investigation of occupational accidents and diseases with a view to preventing recurrence, training on OSH, first aid and fire safety and disseminating information on occupational safety and health to customers among other issues. 8. The National The NCA was constituted to regulate, streamline and build capacity in NCA will register sites and issue permits for construction sub- Construction the construction industry. It oversees the Kenyan construction industry projects under KUSP2 as due diligence in ensuring quality Authority (NCA) and coordinates developments in the sector to ensure an effective and work. sustainable industry. The authority oversees; i) accrediting and registering contractors and regulating their professional undertakings, ii) The authority will also have a supervision role as part of its registering all construction projects, iii) accrediting and certify skilled mandate to manage construction sites including safety construction workers and construction site supervisors, iv) aspects and to manage quality assurance in the construction commissioning research into matters relating to the building sector, and industry. v) the authority develops and publish a code of conduct for the construction industry. 9. Ministry of Roads The mission of the Ministry is to provide efficient, affordable and reliable The RA3 provides support for improving access to and and Transport transportation services for sustainable economic growth and coverage of key municipal services, as well as for (KeRRA and KURA development. strengthening the resilience and sustainability of urban KeNHA) The mandate of KURA and KeRRA as defined in the Kenya Roads Act, infrastructure. This includes investments under the urban 2007 in the management, development, rehabilitation and maintenance functional area on connectivity, mobility, and accessibility 41 of national urban trunk roads and constructing, upgrading, rehabilitating that includes road and non-motorised transport construction and maintaining rural roads, respectively. projects. To ensure harmony in road infrastructure development and Kenya National Highways Authority is committed to Develop and appropriate operation and maintenance, the listed Road Manage Quality and Adequate National Trunk Roads through Innovation Agencies in line with the Road Act 2007 will be consulted by and Optimization of resources for Sustainable Development. the counties/ NPCT as relevant during feasibility stage to harmonize the proposed interventions and the design standards as well as during implementation phase to avoid conflicts in road infrastructure developments. 10. Ministry of Interior Is domiciled in the Office of the President. It is charged with the KUSP2 will be implemented in all the 47 counties. Some and Coordination of responsibility of public administration, internal security, and counties have security related issues, and the Program will National championing campaign against drug and substance abuse. The Ministry work with the respective counties public administration to Government also coordinates state functions and offers reception services to all ensure contractors involved in sub-projects implementation Government ministries. are safe The Ministry’s functions have evolved and its operations restructured over time to address emerging issues. It has remained decentralized to the grassroots in order to provide a framework for quick interpretation, dissemination and implementation of Government policies. 11. Ministry of The Ministry advocates for policy, legal, and regulatory reforms to The operation under RA 3 provides support to firm Industrialization, enhance compliance with the provisions of the Constitution and takes competitiveness through improved private sector Trade and Enterprise into account the constitutional provisions for a devolved structure of engagement at the national and sub-national level. The Development government and the particular call to encourage regional dispersal of MoITED are an important stakeholder in this and will be (MoITED) industries as a basis for equity and empowerment across the nation. This engaged in the activities as relevant. includes sustainable employment creation and environmental sustainability. The Ministry also recognizes the need to promote sustainable industrial development that upholds environmental protection, management and efficient resource utilization. 12. County The County Governments have powers to control or prohibit all County Government and its relevant departments shall Governments businesses, factories and other activities including the proposed supervise Program roll out within respective counties to Program which by reason of smoke, fumes, gases, dust, noise or other ensure no activity being implemented will be a source of cause, maybe a source of danger, discomfort or annoyance to the danger, discomfort, conflict or annoyance to the public at neighborhood. They also have powers to prescribe conditions that such large. businesses, factories, and other developers must comply with. 42 13. Ministry of Labour The department focuses on the welfare of the family, women, Children, The Program aims to empower individuals and communities and Social older persons and other vulnerable groups with special attention to facilitate sustainable social development for improvement Protection - State accorded to Persons with Disabilities (PWDs). in their livelihoods. This will be facilitated through targeting Department for for the most deserving beneficiaries of Program benefits. Social Security and The mandate of the department is formulation, review and Protection implementation of Social Security, employment, Programme for persons The Social Risk Management Unit within the department will with disabilities, National Human Resource Planning and Development, support in management of Program social risks and impacts National labour productivity, Child Labour and regulation management, through capacity building to Counties to identify and mitigate Facilitating and Tracking Employment creation, Co-ordination of social risks during project inception, implementation, and National employment, Internship and Volunteers for public service, operation phases. Community Development, Protection and advocacy of needs of Persons with Disabilities, Social Assistance Programmes, Workplace Inspection and Workman’s Compensation 14. Social Risks Under the Social Risk Management Unit at the State Department for The committees have a responsibility to create awareness Management Social Security and Protection, there are a few established Social Risks and guide on appropriate social risks management to project Committees Management Committees in 5 Counties, namely; Elgeyo Marakwet, implementing stakeholders. Busia, Vihiga, Nakuru and Kajiado. Members of the committees comprise representatives from DOSHS, NEMA, labor department, children’s The SRM Unit is currently facilitating the formation of department, water department, public works, NGAO, county additional committees in lacking Counties and development government, among others. of a social risk management curriculum, under the FLLoCA. 15. Commission of The office of the Ombudsman is commissined with receiving and During Program implementation, the public has the free will Administrative and addressing public complaints. The types of complaints considered are; (i) to submit complaints to the commission. Sensitization of the Justice Citizen against State/public officers and institutions; (ii) Public Officers mandate and channels of communication to the commission against fellow public officers; and, (iii) Public Institutions against other shall be undertaken. public institutions. 16. Ministry of Public The department is tasked with the promotion of equitable socio- The department will be consulted in ensuring Program Service, Youth and economic development between women and men; monitoring of 30% activities promote gender equality, socio-economic Gender Affairs - access to government procurement opportunities for women, youth and empowerment of women and reduction of GBV/SEA-SH. State department of persons with disabilities; establishment and implementation of gender gender affairs management system; and coordination of Programmes for the reduction of gender-based violence (GBV). 43 17. National Gender and The over-arching goal for the NGEC is to facilitate the reduction of The Commission will be consulted to facilitate adherence to Equality Commission gender inequalities and the discrimination against all; women, men, gender mainstreaming in urban infrastructure investments (NGEC) persons with disabilities, the youth, children, the elderly, minorities, and through i) capacity building; ii) promote formation of gender marginalized communities. committees which are inclusive of various actors such as civil society organizations and key departments; and iii) documentation by Counties/Cities/Municipalities on the identified gender mainstreaming areas during planning and infrastructure development. 18. National Council for The National Council for Persons with Disabilities is a state corporation Program activies will consider PWDs as beneficiaries, in Persons with established by an Act of Parliament; the Persons with Disabilities Act No. promoting their inclusivity, human dignity, equality equity, Disability (NCPWD) 14 of 2003 and set up in November 2004. The Council is mandated to and integrity promote and protect equalization of opportunities and realization of During the design review of infrastructure investments, the human rights for PWDs to live descent livelihoods. NPCT will collaborate with the NCPWD to facilitate inclusion of design specifications to cater for the needs of the PWD. 19. The Department of The DRS is an institution established under the Refugee Act, 2021. The The SDHUD, in collaboration with the CoG and DRS (for WHR Refugee Services DRS is responsible for all administrative matters concerning asylum activities), will provide technical coordination, capacity (DRS) seekers and refugees in Kenya; coordinates activities and programmes building and backstopping. The institution will be relating to asylum seekers and refugees; and handles all operational represented at the sub-national level and DRS camp aspects of protection and assistance of refugees. managers part of the CPCT, for WHR counties. 44 5. COMPARATIVE SYSTEM ANALYSIS OF BORROWERS ENVIRONMENTAL, SOCIAL, HEALTH AND SAFETY SYSTEM IN RELATION TO THE PforR CORE PRINCIPLES AND KEY PLANNING ELEMENTS 45. This chapter summarizes the operational performance, and capacity of institutions for E&S management of identified E&S risks and impacts associated with the Program interventions as defined in policies, legal and regulatory framework, procedures, guidelines and consistency with the core principles and key planning elements of PforR financing. 46. The summary discusses the applicability of the six core principles in terms of strength, weakness, opportunities, and threats/risks with respect to the policy and legal framework, institutional context and existing environment and social management system. The Approach applied entails: i. An analysis of the strengths of the existing ESHS system, as it functions effectively and efficiently and it’s consistent with Bank Policy and Directive for Program-for-Results Financing. ii. Identification of system weaknesses, capacity constraints and gaps in the existing national and county levels. Considering the inconsistencies and gaps with the Bank Policy and Directive for Program-for-Results Financing. iii. Identification of opportunities and key actions to strengthen the existing system to ensure environmental and social soundness and long-term sustainability in line with the design, construction, and operation phases of Program interventions. iv. System and capacity assessments that identified gaps and opportunities which informed the Program design recommendations and Program Action Plan (PAP) for enhanced ESHS management 47. Based on the findings from the analysis, and the resulting identification of gaps, the opportunities, proposed mitigation measures and actions to strengthen the existing system will be used to inform the recommendations presented for the Program for managing E&S aspects, and will also inform the preparation of the Program Action Plan (PAP). Table 8 presents the analysis of borrowers Environmental, Social, Health and Safety system in relation to the PforR Core Principles. 45 Table 8: Analysis of borrowers Environmental, Social, Health and Safety system in relation to the PforR Core Principles Core Principle 1: General Principle of Environment and Social Management Bank Policy for Program-for-Results Financing: Environmental and social management procedures and processes are designed to. a) promote environmental and social sustainability in Program design. b) avoid, minimize, or mitigate against adverse impacts; and c) promote informed decision-making relating to a Program’s environmental and social effects. Bank Directive for Program-for-Results Financing: Program procedures will: a) Operate within an adequate legal and regulatory framework to guide environmental and social impact assessments at the Program level. b) Incorporate recognized elements of environmental and social assessment good practice, including: • early screening of potential effects of all projects. • consideration of strategic, technical, and site alternatives (including the “no action� alternative). • explicit assessment of potentially induced, cumulative, and trans-boundary impacts. • identification of measures to mitigate adverse environmental or social impacts that cannot be otherwise avoided or minimized. • clear articulation of institutional responsibilities and resources to support implementation of plans. • Responsiveness and accountability through stakeholder consultation, timely dissemination of Program information, and • responsive grievance redress measures. Applicability: Applicable Core Principle 1 is considered relevant in terms of environment and social management during implementation of the KUSP2. The PforR component of KUSP2 finances urban investments which includes civil work activities related to new construction, rehabilitation, or expansion of existing urban infrastructures such as on solid waste management, wastewater and faecal sludge management, water supply, storm water drainage construction, energy among others. The implementation of these type of investments are likely to have a physical footprint with varying degree of E&S risks and impacts during the lifecycle of the project investments (construction, operation, and maintenance, and during decommissioning phases). Although expected to be localized, manageable and in some cases temporal, these risks and impacts require mitigation. Potential impacts may be due to materials sourcing and excavation, solid waste generation and management, health and safety risks and environmental (land, air, water) pollution issues. This therefore requires undertaking E&S assessment and providing appropriate mitigation measures to adverse E&S impacts. STRENGTHS WEAKNESSES ▪ The National EIA system is anchored on EMCA, 1999, (amendment, 2015) and ▪ The EIA system mainly focuses on environmental aspects and does not EMCA legal Notice No. 31 2019 and provides a comprehensive framework for comprehensively cover the social, health and safety issues such as on labour, environmental impact assessment broadly consistent with the core principles of occupational/community health and safety, land management. the Bank policy and Directives on PforR operations and key planning elements. ▪ Existing municipality/city administrative structures have E&S officers although lacking clear definition on roles and responsibilities. 46 ▪ EMCA provides clear guidelines on screening and categorisation of the sub- ▪ In some cases, there were inadequate personnel and skills at counties responsible projects according to the risks. The risk rating can either be low, medium or high- for mainstreaming social aspects and management thereof. risk as outlined in legal Notice No. 31, EMCA, 1999, amendment of the second ▪The E&S safeguards provisions at the county/city/municipal levels exists although the schedule, 2019. different departments operate in a silo manner. In some cities/municipalities, the ▪ NEMA is the responsible entity to ensure compliance with EIA regulations and is functions of the board are not fully delegated hindering secondments of experts devolved to the County level. The County offices are staffed with environmental including E&S officers. inspectors responsible for monitoring environmental compliance of projects in ▪Municipalities do not have adequate budgets versus workload to allocate full-time their jurisdiction. resources for E&S management. The most common arrangement is secondment of ▪ The EMCA provides for the preparation of County Environmental Action Plans county resources resulting in high turnover as well as limiting availability and (CEAP) whose objectives include the provision of guidance on the planning and dedication for city/municipal safeguards management. management of the environment and natural resources at the county level. ▪There are ESHS capacity challenges at counties and urban areas on understanding ▪ Municipalities have provided for E&S officers in the organizational structure to and application of the country systems such as on environmental, social, health and oversee the implementation of E&S objectives. safety risk management, labour and working conditions, land and temporary ▪ E&S safeguards provisions exists but it’s capacity and implementation vary at the displacements and relocation issues as per the national requirements. county level on E&S management. The municipalities use either the lead experts ▪There is limited involvement, budget allocation and capacity building of the E&S contracted consultants or seconded staff from the County to undertake officers for effective stakeholder engagement, preparation of ESIA/ESMP, ESIA/ESMPS for sub-projects. Abbreviated Resettlement Action Plan (ARAP) during project design, and ▪ Contract documents for civil works have some ESHS clauses incorporated, implementation and monitoring of investments. however there is an opportunity for strengthening to enhance compliance ▪Weak multi-sectoral coordination and collaboration with key MDAs such as NEMA, enforcement and monitoring. DOSHS, NCA, NLC useful in providing technical advice and monitoring of urban ▪ Public participation in county planning processes is provided for in the County investments. Governments Act 2012, requiring provision of clear information on environmental ▪NEMA supports in external monitoring/providing oversight on sub-projects during and social impacts in the engagements. Some counties have developed and implementation but are currently understaffed and underfunded to support proper enacted public participation legislation, while others are in the preparatory stage. preparation and supervision of projects. For example, Kisumu has developed the Public Participation Act 2015 and are in ▪There is general appreciation on the need to undertake stakeholder consultations the process of drafting a guiding policy that will inform the review of the Act. during the inception, preparation, implementation, and operational phases of the Whereas Kiambu county has prepared the Kiambu County Community and project. However, meaningful public participation is not attained as there are gaps Neighbourhood Associations Promotion of Participation and Engagement Act, on public consultation notices, allocated duration, documentation, and feedback to 2016. the public of scheduled sessions. ▪ Municipalities have quarterly citizen forums for public engagement on investment ▪There is a gap in coordination of the stakeholder engagement process between the priorities and activities. Other avenues for stakeholder engagement include county Governments and municipalities, for example in Kisumu County there is no newspapers, radio, TV stations, face-book/twitter platforms, local leaders, and collaboration between county department of public participation and City churches. management on public participation matters. In addition, there are no focal persons ▪ Grievance redress system at the county /municipality/cities is in place although in on public participation at the city level. some cases not well structured and functional. Some Cities/municipalities have 47 established GRM committees chaired by the municipal/city manager with ▪ The existing GRM systems at the city/municipal levels are not standardized and have committee members comprising of; engineer, planner, E&S officers, and a desk notable gaps in structure, functionality, logging, documentation, and weak feedback officer. Examples of Grievance uptake channels include written grievance, walk in, to complainants. In addition, GRM complaints committees do not include public/ GRM Desk/log, face book, counties toll free hotline numbers updated in their community representation. website. OPPORTUNITIES RISKS ▪ The E&S screening checklist applied under KUSP should be reviewed for enhanced ▪ Limited financial and human resource capacity for ESHS management at the identification of potential ESHS risks and impacts and risk categorisation based on counties/cities and municipalities. Legal Notice No. 31, EMCA, 1999, amendment of the second schedule, 2019. ▪ Inadequate social risks identification and assessments at project level as there is no ▪ Ensure consistent application of screening checklist across counties and across existing national regulatory body for social risk management and such risks are not projects. adequately captured in EIA’s. ▪ To enhance the E&S safeguards capacity at the city/municipality level, the urban ▪ Limited supervision, monitoring and reporting on ESHS management. administration to designate a full-time environment and a social specialist as a ▪ Political interference in decision-making on budgets, investment priorities minimum condition to access the UDG and outline their job description. operationalization of environmental and social management plans, application of ▪ To strengthen collaborations and engagements between Ministries, Departments by-laws and planning guidelines. and Agencies such as NLC, NEMA, DOSHS, NCA, department of public works and NLC to improve on project design, monitoring of investments and enforcements. ▪ Some counties such as Kiambu and Makueni have adequate E&S staff. There is need to assess and map-out county safeguard human resource for proper coordination and secondment to cities/municipalities. This can be done effectively through engagement and coordination with the county public administration office. ▪ Allocate adequate budget for ESHS management such as on stakeholder engagement, grievance management, environmental, social, health and safety assessments and monitoring. ▪ To improve on ESHS documentation, monitoring and reporting, a template should be developed as part of the ESHS management manual. ▪ To improve on E&S monitoring, provide adequate logistical support to E&S officers at the city/municipalities and deepen collaboration with the NPCT to enhance E&S compliance monitoring of works site. This can be achieved through organised joint field visits and capacity building on E&S aspects. ▪ Periodic short-term trainings and capacity building to orient new staff recruited under the municipalities. Peer learning on E&S management can also be explored through inter-forums, information sharing and exchange Programs between cities/municipalities. 48 ▪ The Program will partner with NEMA to enhance the capacity of the counties/cities/ municipalities on the environmental risks’ management based on national laws and regulations such as training and capacity building of E&S officers on the EMCA regulations. ▪ The Program will also partner with key institutions such as Kenya School of Government for delivering a training Program on environmental and social risk management that will draw upon experts from relevant agencies. ▪ Enhance the ESHS clauses in the contract and bidding documents to ensure key issues are comprehensively included. Contractors are required to ensure they have qualified ESHS personnel, comply with site specific ESMPs prepared for the sub-projects and integrate the NEMA licence conditions, including labour welfare, health and safety aspects in contract management. ▪ GoK developed public participation and civic education guidelines prepared under the KDSP. These guidelines should be rolled out to cities/municipalities and capacities built for municipal staff. ▪ Develop a guideline on stakeholder engagement for enhanced targeting, inclusion, consultation, and feedback mechanism. Public consultations should be comprehensive to include i) description of site conditions versus project design considerations; ii) project affected persons (PAP) and beneficiaries; iii) checklist to show the level of participation, and iv) feedback incorporated in project designs. ▪ Develop and roll-out GRM guidelines at county/city/municipal levels to i) harmonize and strengthen the existing grievance redress mechanism under KUSP to make it more functional and operational; ii) incorporate a GBV referral pathway and referral system hotline to addressing GBV/SEAH issues; iii) Ensure the GRM is gender responsive and accessible to all persons, iv) have a comprehensive system for documenting grievances with feedback mechanisms in place; v) create awareness to the public on the GRM uptake channels and systems; vi) assign a GRM focal person, vii) have a functional and well represented GRM committee, and viii) Build capacity of the GRM focal persons on the mechanism, structure, logging and feedback. ▪ Train the E&S officers on implementation of GEMS as it will provide a platform for remote ESHS supervision, real time risk monitoring and portfolio mapping for coordination across projects. ▪ Grievance management structures exist in the WHR counties (Turkana and Garissa), but require strengthening by integrating the GRM local structures, 49 reviewing the Grievance Redress Committee (GRC) composition to include community leaders and elders from the refugees and host communities. Core Principle 2: Natural Habitats and Physical Cultural Resources Program E&S management systems are designed to avoid, minimize, or mitigate adverse impacts on natural habitats and physical cultural resources (PCR) resulting from the Program. Program activities that involve the significant conversion or degradation of critical natural habitats or critical physical cultural heritage are not eligible for PforR financing. Bank Directive for Program-for-Results Financing: Program procedures will: • Includes appropriate measures for early identification and screening of potentially important biodiversity and cultural resource areas. • Supports and promotes the conservation, maintenance, and rehabilitation of natural habitats; avoids the significant conversion or degradation of critical natural habitats, and if avoiding the significant conversion of natural habitats is not technically feasible, includes measures to mitigate or offset impacts or Program activities. • Takes into account potential adverse effects on physical cultural property and, as warranted, provides adequate measures to avoid, minimize, or mitigate such effects. Applicability: Applicable The provisions in Core Principle 2 are considered as part of the ESIA process analyzed under Core Principle 1. It is expected that the Program will have moderate impact on natural habitats and physical cultural resources since it directly involves new construction, upgrading and rehabilitation of infrastructure limited to urban areas. The Program will not support investments that would either affect, convert or degrade critical natural habitats and cultural heritage sites. STRENGTH WEAKNESS ▪ The existing system especially the Environmental Management and Coordination ▪ Most county departments have not fully appreciated the CIDP which is a Act - EMCA, 1999, amendment (2015) and National Museums and Heritage Act, multisectoral document and includes aspects on protection of the natural habitats 2006 (2012) provides for protection of natural habitats and physical cultural and PCR. resources, including screening for archaeological, historical and cultural sites to ▪ Due to limited awareness on the presence and importance of PCR such as structures, ensure environmental and social sustainability. monuments, natural features, and landscapes that have archaeological, historical, ▪ National Museums of Kenya (NMK) under the Ministry of Sports, Culture and religious, or cultural importance, PCR’s may not be identified and hence affected. Heritage has procedures and mechanisms for chance finds for PCR. The ▪ Budgets necessary for the protection of the PCRs are inadequate or unavailable, department has mapped the PCR and has a special protection status preventing which may result in high risk of destruction/degradation of the PCRs. degradation or damage. ▪ Garissa and Turkana counties are challenged with environmental degradation, mainly ▪ The E&S screening checklist prepared under the KUSP facilitates identification of from cutting of indigenous trees for wood fuel and building materials. The prosopis the potential impacts to natural habitats and PCR at the sub-project areas and Juliflora shrub, originally introduced as a solution to deforestation and fuelwood avoid construction impacts. shortages, has become highly invasive, displacing indigenous plants, and negatively ▪ There are existing institutions legally established that mainly guide on the impacting biodiversity and livelihoods. protection of Natural habitats and PCR such as NEMA, Kenya wildlife Service (KWS), Water Resource Authority (WRA), Kenya Forest Service (KFS) and NMK. ▪ Counties recognize the presence and importance of the physical cultural resources, and have undertaken to map the resources. Examples of PCR in urban 50 areas include; cultural museums, cultural heritage homes, shrines located at riverine sections or gazette forests, statutes and monuments. ▪ Counties have a practice of documenting the existing PCR for example the Physical Development Plan (PDP) for Kisumu identifies the physical cultural resources in the Central Business District (CBD) such as institutions (Kisumu Girls High School), city market with a heritage concept, Nyayo House and the Kisumu old town as a historical core preserve. OPPORTUNITIES Risks ▪ Encourage multisectoral collaboration (such as with KFS, KWS, NMK, NEMA) to ▪ The inability to adequately screen sub-projects may lead to adverse impacts to the better manage the natural habitats and physical cultural resources. physical cultural resources and natural habitats. ▪ Develop standard operating procedures on protection of PCR as part of the ESHS ▪ Limited budget allocation for the protection of PCR or conservation of the natural management manual. habitats. ▪ Chance find procedures should be made a key requisite in E&S management ▪ Construction of infrastructures pose potential risks to natural habitats and PCR if provisions, in civil works contracts for infrastructure sub-projects under urban not appropriately sited and if chance finds procedures are not embedded in general functional areas such as connectivity, mobility and accessibility, municipal solid construction contracts and supervised appropriately. waste management, water supply and wastewater management. ▪ Enactment of the County Hall of Fame Bill, 2021, that provides an avenue through which county governments bestow honor on individuals within a respective county and provide framework for preservation of history, heritage, and culture of counties. This will be useful to guide counties in developing guidelines/policy on identification, documentation and preservation of the PCR and natural habitats. ▪ Enhance awareness on safeguarding PCR and natural habitats in counties/cities/municipalities. ▪ Incorporate climate change consideration in the design of sub-projects such as access roads, surface drainage and waste management infrastructure. ▪ Map out the existing natural habitats and physical cultural resources within the county/cities/municipalities to promote conservation and preservation respectively. 51 ▪ Allocate sufficient budget for the identification and management of natural habitats and PCRs. ▪ Promote the preservation of culture during infrastructure design especially in the WHR municipalities. ▪ Under the WHR component, interventions for environmental restoration include construction and maintenance of recreational parks and public open spaces and tree nurseries (urban greenery). Core Principle # 3: Public and Worker Safety Program E&S management systems are designed to protect public and worker safety against the potential risks associated with; a) the construction and/or operation of facilities or other operational practices under the Program; b) exposure to toxic chemicals, hazardous wastes, and otherwise dangerous materials under the Program; and c) reconstruction or rehabilitation of infrastructure located in areas prone to natural hazards. Bank Directive for Program-for-Results Financing: Program procedures will: ▪ Promotes community, individual, and worker health, safety, and security through the safe design, construction, operation, and maintenance of Program activities; or, in carrying out activities that may be dependent on existing infrastructure, incorporate safety measures, inspections, or remedial works as appropriate. ▪ Promote measures to address child and forced labour. ▪ Promote the use of recognized good practice in the production, management, storage, transport, and disposal of hazardous materials generated under the Program activities. ▪ promotes the use of integrated pest management practices to manage or reduce pests or disease vectors, and provides training for workers involved in the production, procurement, storage, transport, use, and disposal of hazardous chemicals in accordance with international guidelines and conventions. ▪ Include adequate measures to avoid, minimize, or mitigate community, individual, and worker risks when the Program activities are in areas prone to natural hazards such as floods, hurricanes, earthquakes, or other severe weather or climate events. Applicability: Applicable ▪ The provisions in Core Principle # 3 are considered as part of the ESIA process analyzed under Core Principle # 1. ▪ This core principle is fully applicable during construction, operation and maintenance, and decommissioning phase of urban infrastructure which could pose risks and have impacts on public and worker safety. ▪ New construction and rehabilitation of infrastructure sub-projects could expose the public and the community to direct or indirect health and safety risks such as from improper disposal of solid and liquid waste, exposure to hazardous materials which can cause nuisance due to odour, spread of disease, soil contamination, air, noise, and water pollution STRENGTHS WEAKNESSES ▪ The country has legal statutes and provisions to protect the workers such as the ▪ The National EIA system does not comprehensively cover aspects on public and Occupational Health and Safety Act (OSHA) 2007 and the Workers Injury and worker’s health and safety. This results to ESIA/ESMP prepared not to broadly Benefits Act (WIBA), 2007. incorporate the health and safety requirements and mitigation measures. 52 ▪ The Occupational Health and Safety Act mainly covers the workers’ health and ▪ The Ministry of Labour through the Directorate of Occupational Safety and Health safety (OHS) presenting a gap in addressing community health and safety aspects Services (DOSHS) has the responsibility to promote workers safety and health at workplaces. during implementation of infrastructural investments. ▪ Agencies such as DOSHS and NCA provide guidelines on management of ▪ There are no designated health and safety officers as part of the NPCT and city/municipality teams limiting adequate H&S management. construction sites ensuring the public and workers are safe from risks related to construction of infrastructure and operations. ▪ The counties/municipalities/cities have limited collaboration with DOSHS as a ▪ There are efforts under the KUSP to engage the DOSHS officers to support in relevant directorate in addressing occupational health and safety related issues. capacity building the cities/municipalities on the OHS requirements. Rarely are they involved in providing health and safety oversight at the construction ▪ Employment Act No 11 of 2012 [2007] confides the rights of children and has sites. penalties on unlawful employment of children9. ▪ Lack of abridged occupational/community health and safety guidelines and ▪ Kenya has several regulations under the EMCA, 1999, such as on waste procedures for adoption by contractors ▪ Weak implementation and enforcement of OSHA due to limited DOSHS staff and management, water and air quality, noise and excessive vibration as summarized financial resources at county/cities/municipalities. in table 5 that aims to protect the environment from all forms of pollution and environmental degradation across different sectors. ▪ Limited awareness, capacity, and enforcement of the relevant provisions for ▪ Kenya has a Climate Change Act, 2016 and National Climate Change Policy addressing community health and safety risks and impacts related to construction Framework which guides on low carbon emission and climate resilient sites such as environmental pollution, labour influx risks (GBV- SEAH, spread of technologies. Some counties have domesticated this regulation and have HIV/AIDs and communicable diseases). This is mostly due to limited budget for the developed county specific Climate Change Action Plans (CCAP) such as in Siaya,contractor to comply with the health and safety requirements. Makueni and Kiambu. ▪ Weak workers grievance redress mechanism which fails to address workers ▪ The Government standard contract conditions for contractors have ESHS clauses complains and concerns on occupational safety and health. ▪ Environment and social officers are partially or in some cases not involved during provided such as; a) the requirement to maintain an accident prevention officer project designs, this presents a gap in mainstreaming ESHS effects in project on site; b) maintain logs of any accident/incident at the work sites and report on incidents occurred; c) create awareness to workers on HIV and other sexually planning and management and fail to incorporate safety measures/signages on infrastructure sub-projects, roads and NMT transmitted diseases; d) labour laws (working hours, facilities for staff and labour, prohibition of forced, compulsory or child labour). However, there is an ▪ Limited budget allocation for operation and maintenance of infrastructure at the opportunity to strengthen the existing contract documents. county/city/municipality levels presenting potential community health and safety risks ▪ In Turkana County, child labour is common at Kakuma, this mainly is as a result of high poverty levels of the host community, vulnerability, limited child support, child headed homes and street children. OPPORTUNITIES Risks ▪ Promote collaboration with DOSHS for oversight and enforcement on technical ▪ Limited enforcement on public and worker safety aspects at the construction sites and OHS requirements during implementation of infrastructure sub-projects. may result in physical injuries, serious accidents, and fatalities. 9 The Employment Act No 11 of 2012 provides for the prohibition of employment and awarding of written contracts of children between thirteen years and sixteen years of age. 53 ▪ The Program will partner with DOSHS to enhance the capacity of ▪ Improper management of solid and liquid waste may pose health risks. counties/cities/municipalities on the H&S management based on the national ▪ Contractor non-adherence to OHS provisions such as sites hoarding, provision of laws and regulations. Among the activities that shall be supported by DOSHS in PPE, signages posing potential H&S risks and impacts. collaboration with NPCT include: (i) training and capacity building of cities/municipal environmental and social staff on the occupational safety and health act (OSHA) 2007 requirements and related regulations; and (ii) induction and training of contactors on OSHA 2007 so that they be familiar with OHS issues at their workplace. ▪ ESIA reports submitted for sub-projects should cover public and workers health and safety requirements. ▪ Identify the gaps in contract and bidding documents to incorporate the ESHS clauses such as on a) Contractor’s requirement to register work sites with DOSHS and obtain the permits; b) application of employee’s insurance to comply with WIBA requirements; c) requirement on contractors key ESHS personnel; d) Code of conduct to the contractor/ sub-contractor employees; d) contractors general ESHS obligations and penalties e) template for reporting ESHS progress, among other key requirements. ▪ Review and update the existing KUSP accidents/incidents recording template and ensure conformity with DOSHS form 1. ▪ Develop standard operating procedures and guidelines on OHS/CHS for the contractor. Provide on-site training to workers on OHS requirements at the workplace. ▪ Have in place a functional worker’s grievance redress mechanism to handle workers conflicts including incorporating health and safety aspects. ▪ Create awareness and sensitise contractors on legal prohibitions on use of forced and child labour and its implications. ▪ Create awareness to contractors and the public on OHS and CHS aspects. ▪ Encourage counties to develop, roll-out and allocate resources for the operation and maintenance manuals for the different infrastructure projects. ▪ The Program will build on FLLoCA’s efforts to develop a County Climate Risk Profile guideline to support counties and subsequently urban areas/cities/municipalities develop their respective profiles. ▪ Incorporate climate change consideration in the design of sub-projects such as access roads, storm water drainage, waste management and water harvesting and storage infrastructure. 54 Core Principle # 4: Land Acquisition Bank Policy for Program-for-Results Financing: Program E&S systems manage the land acquisition and loss of access to natural resources in a way that avoids or minimizes displacement and assists affected people in improving, or at the minimum restoring, their livelihoods and living standards Bank Directive for Program-for-Results Financing: As relevant, the Program to be supported: ▪ Avoids or minimizes land acquisition and related adverse impacts. ▪ Identifies and addresses economic and social impacts caused by land acquisition or loss of access to natural resources, including those affecting people who may lack full legal rights to assets or resources they use or occupy; ▪ Provides compensation sufficient to purchase replacement assets of equivalent value and to meet any necessary transitional expenses, paid prior to taking of land or restricting access; ▪ Provides supplemental livelihood improvement or restoration measures if the taking of land causes loss of income- generating opportunity (e.g., loss of crop production or employment); and ▪ Restores or replaces public infrastructure and community services that may be adversely affected ▪ (Program activities for which the borrower’s land acquisition and resettlement (LAR) processes have significant gaps with this principle, or for which the borrower lack sufficient capacity to manage LAR impacts in a manner consistent with this principles, should not be considered eligible for the PforR Financing regardless of the number of people affected, unless supplemental arrangements are agreed with the Program authorities and endorsed by the CESSO, GSUSS, and/or the Regional Standard Advisor). Applicability: Applicable The KUSP2 investments menu will not support land acquisition and involuntary resettlement, resulting in relocation and loss of livelihoods. Program infrastructure investments will be limited to public land. In the event of temporary displacements and relocations, Abbreviated Resettlement Action Plans (ARAPs) will be prepared. The ARAPs will include the potential risks and impacts which the affected persons may be subjected to; descriptions of the socio-economic survey, consultations with the affected and host populations, compensation options, resettlement-assistance and livelihood-improvement options; procedures for grievances redress management; institutional responsibilities for implementation and monitoring of the ARAP; and a schedule, budget and sources of funds. On any given sub-project, no more than 200 Project Affected Persons (PAPs) will be temporary physically displaced and relocated. Guidelines on preparation and management of ARAPs will be outlined in the ESHSM manual. STRENGTHS WEAKNESSES ▪ The policy, legal and regulatory framework for land acquisition, resettlement and ▪ Legal frameworks do not explicitly stipulate provisions for livelihoods restoration compensation in Kenya are spread through several provisions. The CoK, 2010 as compensation is focused on land/assets replacement and relocation. Legal provides guidance on ownership, acquisition, conversion, payment of frameworks do not provide for compensation of assets built or extended on public compensation and devolving public land management to counties. The Land Laws land. They are subjected to evictions and demolitions. of 2012 outline provisions on the land management framework in Kenya. The Land ▪ Inadequate planning to manage temporary relocation and resettling back after Registration Act (2012) guides on registration and ownership while the Land Act infrastructure is complete. (2012), provides for sustainable administration and management of land and land ▪ The process of delineation of urban areas is delayed mainly due to lack of based resources, compulsory acquisition and compensation of occupants. The adequate budget allocation and limited capacity that contributes to boundary Land Act, 2012 also outlines procedures for sensitizing the project affected related conflicts. 55 population and for consultation on implications and grievance procedures. The ▪ Urban areas lack integrated spatial and economic plans to guide both public and Act guarantees the right to fair and just compensation in case of relocation. private investments. Spatial expansion is largely uncontrolled, resulting in urban ▪ The National Land Commission Act (2012) establishes the National Land sprawl, increased infrastructure costs, environmental degradation, air and water Commission (NLC). The NLC monitors and oversees land use planning including the pollution, increased floods, loss of critical natural habitats, decline of open spaces management of public land on behalf of the national and county governments. and overall reductions in quality of life. ▪ The Community Land Act (2016) provides for community land ownership, rights, ▪ There is unclear urban land ownership including the absence/multiple ownership management and administration. As much as county governments hold in trust all details. The lack of public land inventories leads to encroachment on public land unregistered community land, they are prohibited by law to transact on them. or infrastructure wayleaves. Complex land administration impedes effective Under the law, in-kind compensation for unregistered community land is development control and delays infrastructure investments. acceptable. ▪ Most cities/municipalities have limited knowledge on the key requirements on ▪ The UACA, 2019 provides for delineation of the boundaries of urban areas or cities land acquisition process in Kenya as provided by the law, as well as the may be initiated by the Cabinet Secretary or by the relevant county government development of Abbreviated Resettlement Action Plans (ARAPs). making a written request to the Cabinet Secretary to appoint the ad hoc ▪ There is limited and/or no budgetary allocations for land management processes committee. The Cabinet Secretary shall, on receipt of a request or on considering including implementation of livelihood restoration activities in it necessary, appoint by notice in the Kenya Gazette an ad hoc committee to counties/cities/municipalities. delineate the boundaries of an urban area or a city. ▪ There are inadequate and opaque consultation mechanisms, grievance ▪ The Ministry of Land, Housing and Urban Development facilitates efficient land management and documentation in the regions that operate under a communal administration and management encompassing matters on public land land system, such as in Kwale, Turkana and Garissa. These pose risks of loss of administration, property valuation services, physical planning, adjudication, livelihoods and land management malpractices. registration of contractors, architects, surveyors and materials suppliers, policy ▪ Weak collaboration and coordination between key departments and entities at management, settlement matters, surveying, and mapping. Guiding policies and the national/county/city/municipal levels, such as NLC, NEMA, Directorate of land regulations considered by the ministry include the National Land Use Policy and Directorate of Urban Planning. (2016), National Spatial Plan 2015-2045 and National Land Policy (2009). ▪ There is an absence of clear guidelines on physical and land use planning on ▪ Avoiding or minimizing land acquisition is achieved through a robust process of community Land. considering the technical design of projects, conducting project feasibility studies, and a review by the land department through a pre-land examination and land use approval process. OPPORTUNITIES RISKS ▪ The Program shall review the Physical and Land Use Planning Act (PLUPA) resulting ▪ Inadequate compensation and restoration of livelihoods and assets of project in effective urban management and service delivery. To promote integrated urban affected persons. planning, the physical and land use development plan will be developed in ▪ The temporary relocated PAPs continue to remain on transit location for much accordance with PLUPA. longer time than anticipated Substantial complaints and conflict with PAPs due to ▪ A live suppository of county public land to enhance the inventories, survey, damage to their assets leading to stopping works and delays. ownership, documentation, infrastructure wayleaves, monitoring and ▪ Limited knowledge of the Community Land Act (2016), provisions by community enforcement minimising encroachment, conflicts, and grievances. land occupants such as on the title deed scope, the Community Land Management 56 ▪ Development of ARAPs guidelines that aligns with national regulations and PforR Committee’s mandate and county government’s role including all unregistered core principles. community land held in a trust and monies payable as compensation for ▪ Training and capacity building of the E&S officers, urban CECM’s and compulsory acquisition. city/municipal managers on sustainable land management including access, ▪ Limited stakeholder consultations with beneficiaries and among key MDAs with temporary displacements and relocation, grievance management on land weak grievance mechanisms which may lead to non-usage of developed urban matters, and RAPs. facilities such as markets, demolition of developed infrastructure and interference ▪ Development of guidelines that will guide temporary displacements and of municipal services provision due to land conflicts. relocation. This will support affected persons and avoid adverse impacts on their ▪ Limited monitoring of Community Land Management Committees activities. socio-economic status, assets and/or activities. ▪ Makueni county has operational land application and processing committees. Other counties in Kenya could domesticate similar committees operational at the municipal level to facilitate the improvement in stakeholder consultation, resolution of disputes, manage land grievances, valuation and replacement of assets and review compensation. ▪ Strengthening of guidelines and existing systems to include restoration of livelihoods to project affected persons. ▪ Establishment of appropriate and transparent consultation mechanisms and documentation in the regions that operate under a communal land system. ▪ Enhance citizen engagement through supporting community driven urban and land use planning and development. Core Principle 5: Indigenous People and Vulnerable Groups Bank Policy for Program-for-Results Financing: Program E&S systems give due consideration to the cultural appropriateness and/or equitable access to, Program benefits, giving special attention to the rights and interests of Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities, and to the needs or concerns of vulnerable groups. Bank Directive for Program-for-Results Financing: As relevant, the Program to be supported will: ▪ Undertakes free, prior, and informed consultations if Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities are potentially affected (positively or negatively) to determine whether there is broad community support for the Program. ▪ Ensures that Indigenous Peoples can participate in devising opportunities to benefit from the exploitation of customary resources or indigenous knowledge, the latter (indigenous knowledge) to include the consent of the Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities. ▪ Gives attention to groups vulnerable to hardship or disadvantage, including as relevant the poor, the disabled, women and children, the elderly, or marginalized ethnic groups. If necessary, special measures are taken to promote equitable access to Program benefits. Applicability: Applicable 57 The Program seeks to improve the conditions of urban areas dwellers, this includes vulnerable groups such as women, elderly, children, youth, PWDs and marginalised ethnic groups. Some of the counties and municipal areas have presence of marginalised communities within the urban area boundaries. STRENGTHS WEAKNESSES ▪ The constitution of Kenya (CoK), 2010: (a) provides that all State organs and all ▪ There is no clear mechanism, guidelines, and procedures for targeting and inclusion public officers have the duty to address the needs of vulnerable groups within of vulnerable and marginalised groups at the county/cities/municipalities. society, including women, older members of society, persons with disabilities, ▪ Lack of gender mainstreaming strategies to facilitate the inclusion of gender children, youth, members of minority or marginalized communities, and members consideration and equity in urban investments planning and development process. of particular ethnic, religious or cultural communities; (b) provides against This results in insecure public investments, work environment, gender insensitive elimination of gender discrimination in law, customs and practices related to land transport infrastructure and NMT facilities. and property in land; (c) elaborates certain rights to ensure greater certainty as to ▪ Weak multisectoral engagements at the county/city/municipalities results in lack of the application of the rights and fundamental freedoms to of vulnerable groups synergy among social protection departments (NCPWD, department of labour, including children, youth, minorities and marginalized groups, older members of department of gender) and meaningful collaboration during the development of society and persons with disabilities. plans and design of urban infrastructure. ▪ The County Government Act, 2020, gives provisions on the promotion of interest ▪ Limited engagements among the project teams during the design of investments on and rights of minorities, gender equity and representative citizen engagement in the needs of vulnerable groups resulting in failure to incorporate provisions for county planning. universal access to all persons. This includes provision of ramps, disability friendly ▪ The National Gender and Equality Commission (NGEC), established under the sanitation facilities, childcare areas in markets. National Gender and Equality Act, 2011, facilitates the reduction of gender ▪ Weak capacity to disseminate information to promote social accountability, equity inequalities and the discrimination against all; women, men, persons with and grievance redress mechanism at the county/cities and municipalities. disabilities, the youth, children, the elderly, minorities, and marginalized ▪ There is no monitoring and evaluation system to measure progress of equitable communities. access. ▪ County systems have articulated the minimum requirements for equitable access and benefits for vulnerable groups including the disabled, women, and youth. OPPORTUNITIES Risks ▪ Develop a SOP on social inclusion to target the vulnerable groups and create ▪ Inability to target the inclusion of the vulnerable groups including the refugees in awareness to the relevant stakeholders. The SOP should include aspects on consultation and delivery of urban services, will adversely affect the population poverty, gender, child labor and PWD’s targeting, inclusion and mainstreaming to especially the elderly, women, persons with disabilities. facilitate access to Program benefits. ▪ Capacity build cities/municipalities on the targeting and inclusion of vulnerable groups (women, children, elderly and PWD) and promote equitable access to Program benefits. ▪ During public participation and sensitization there should be targeting of vulnerable and marginalised communities’ members including the refugees and uptake of their recommendations in Program activities. 58 ▪ Promote multi-stakeholder collaboration with departments such as gender, social protection, PWD’s, to ensure appropriate inclusion of the vulnerable and marginalised groups and communities into Program activities. ▪ Enhance social inclusion in contract and bidding documents to mainstream targeting and inclusivity of vulnerable groups and employment of local labourers. ▪ Promote social inclusion in the project designs and implementation of investments. For example, in the design of markets; a) construct a creche for safety of children; b) provide adequate parking space, c) provide disability friendly and gender sensitive WASH facilities to allow unimpeded access for the elderly and PWD’s; d) provide ramps and seats along the NMT walkways. ▪ Strengthen requirements and address impacts on sexual exploitation and abuse- sexual harassment (SEA-SH); special measures should be taken to promote confidential reporting of SEA/SH related complaints and equitable access to Program benefits. Core Principle # 6: Social Conflict Bank Policy for Program-for-Results Financing: Avoid exacerbating social conflict, especially in fragile states, post-conflict areas, or areas subject to territorial disputes Bank Directive for Program-for-Results Financing: As relevant, the Program to be supported: Consider conflict risks, including distributional equity and cultural sensitivities. Applicability: Applicable ▪ The Program will not undertake projects that will cause or exacerbate social conflict in fragile states, post-conflict areas, areas subject to territorial disputes, impact distributional equity or associated cultural sensitivities. ▪ The Program is designed to yield significant social benefits to all citizens and to strengthen capacities of urban institutions to improve on service delivery. ▪ ESSA findings indicate that there have been some conflicts between counties in the past, mainly on issues related to sharing of resources and inter-boundary conflicts ▪ The principle is also applicable to the Program due to conflicts and grievances that may arise due to labour influx in the project areas such as gender-based violence, increased risk of illicit behavior, and crime, increased burden and competition on public resources and increased risk of communicable diseases. STRENGTHS WEAKNESSES ▪ Chap. 4 of the CoK, 2010, gives provisions for the Bill of Rights as the framework ▪ There is no legally established entity in Kenya that is specifically tasked with social for social, economic, and cultural policies. It considers the rights and risk management. fundamental freedoms to preserve the dignity of individuals and communities ▪ The existing grievance management systems are not standardised across all and promote social justice and the realisation of the potential of all human counties/municipalities and the application of existing system is inconsistent. beings. ▪ There are weak systems to disseminate information and mechanisms to reduce ▪ The CoK, 2010, also provides for economic and social rights including, (a) access social conflicts at National and County levels. to the highest attainable standard of health, which includes the right to health 59 care services, including reproductive health care; (b) to accessible and adequate ▪ Weak capacities to ensure compliance to legal provisions and law enforcement at housing, and to reasonable standards of sanitation; (c) to be free from hunger, the county/ city/municipalities. and to have adequate food of acceptable quality; (d) to clean and safe water in ▪ Weak procurement processes resulting in conflict between the local leaders and adequate quantities; (e) to social security; and (f) to education community on the available opportunities and proposed investments. ▪ The country and county systems clearly articulate the minimum requirements for equitable access and benefits for the persons with disability, women, and youth in its Programs to promote social inclusion and recognises the vulnerable groups. ▪ The government systems have embedded in the constitution the citizen engagement through Consultation and Public Participation (CPP) requirements on all County Programs as part of the devolution process. ▪ The municipalities have varied procedures of stakeholder engagement protocols, multiple mechanism for communication with the public and grievance redress mechanism. OPPORTUNITIES RISKS ▪ Development of a robust stakeholder engagement strategy and strengthen the ▪ Political interferences may exacerbate social conflicts. disclosure of Program information. ▪ Limited stakeholder engagement and disclosure of Program information may lead ▪ Contractors should prioritize to the extent possible recruitment of local labour. to social conflicts. ▪ Undertake deliberate efforts to strengthen the multi-agency coordination ▪ Unavailability of local labour and/or preference to award job opportunities to between the administration units and local leaders to resolve social conflicts workers outside the county/cities/municipalities rather than use of local labour arising at project areas. may present social conflicts. In Kiambu county, job opportunities are not mainly ▪ Municipalities have existing grievance redress mechanism that needs to be awarded to the local community (except women) because to an extent men reviewed and strengthened. GRM should be sensitive to all reported concerns engage in alcohol and drug abuse limiting their normal productivity. including issues related to labour influx and have a referral pathway in case of ▪ Pre-existence and recurrence of social conflicts or tensions in the urban areas. GBV cases. ▪ Social conflicts are prevalent between the host and refugees’ communities, ▪ Integrate social issues into the contracts for contractors to take responsibility in because of unequal access to public services, limited access to resources, land for social risks management. socio-economic development and limited job opportunities. ▪ Contractors should have social officers as part of their teams to support in ▪ Hiring of contractors with weak capacity to identify and manage social related risks mitigating the labour influx related risks that may exacerbate social conflict. ▪ Vandalism of safety signages and infrastructure investments. ▪ To address other cross cutting social issues arising during project ▪ Inter-county boundary conflicts limiting potential development of urban areas on implementation such as GBV/SEA-SH. There is need to create awareness and public land such as between Tharaka Nithi and Meru counties. mainstream HIV/AIDs, and GBV-SEAH in Program activities. ▪ To address social conflicts during operational phase in investment such as markets, the municipalities need to be capacity build on sustainability aspects to 60 include operation and maintenance, formation of market committees to manage the investments appropriately. 61 6. CAPACITY ASSESSMENT FOR MANAGING PROGRAM ENVIRONMENTAL SOCIAL HEALTH AND SAFETY EFFECTS 48. As outlined in the introductory section, the SDHUD is the key implementing agency for the proposed PforR Program and collaborates with the CoG at the National level to provide technical coordination, capacity building and backstopping. In the implementation of the Program the SDHUD will collaborate with other departments and agencies comprising of NEMA, DOSHS, KSG, NLC, NECC, CAJ in implementation of the Program. 49. This chapter provides a detailed description of their mandates, core functions and assesses their overall technical, financial, and human resource capacity in management of environmental, social, health and safety effects associated with Program activities. Based on the assessment, recommendation to address the capacity gaps are made for support through Technical Assistance under the IPF component. 6.1 Directorate of Occupational Safety Health and Services (DOSHS) 50. The mandate of the Directorate is to ensure compliance with the provisions of the Occupational Safety and Health Act (OSHA) 2007 and promote the safety and health of workers through implementing effective systems for prevention of occupational diseases, ill health, accidents, and damage to property to reduce the cost of production and improve productivity in all workplaces. In addition, the DOSHS administers the Work Injuries Benefit Act (WIBA) that provides compensation for workers injured in a workplace who sustain work related death, injuries, and contract diseases. 51. The directorate has limited staff capacity, currently, there are Occupational Health and Safety (OHS) officers deployed in 29 counties out of the 47 counties with additional presence in 2 sub- counties. Although stretched, the OHS officers cover the scope of counties without a directorate office. To bridge this gap, an additional 80 OHS officers have been recruited and deployed to respective counties. In enhancing the fulfilment of the directorate’s mandate, a standard OHS curriculum has been developed. The DOSHS has collaborated with accredited training organisations to offer a 4-day training on the curriculum. Aspects covered in the training include; health and safety management and administration, fire safety, construction safety, chemical safety, occupational safety and health administration, work injury benefits administration, work place hazards, cause of accidents and their investigation and prevention, Occupational Safety & Health Committees Management, Electrical Safety and Emergency Procedures, Personal protective equipment and safe work procedures, Stress management, and Workplace inspection techniques. In addition, the directorate has several specialists including medical personnel, engineers who check on safety of equipment and hygienist. Under KUSP, DOSHS officers were involved in training of the county teams on OHS requirements based on the OSH Act, 2007. 52. Collaboration exists with other agencies such as the i) National Construction Authority (NCA), in which all construction developments are registered with both entities and at the local county administration, ii) County governments, through approval of plans for building works (check on safety features in the building, fire and emergency exists, sanitary convenience, fire assembly points and monitor civil works to check on health and safety compliance; iii) DOSHS is a lead agency for NEMA and participates in review of ESIA reports before approval, NEMA on the other hand is represented at the National Council for Occupational Safety and Health (NACOSH), and iv) Kenya Bureau of Standards (KEBS) on the calibration of safety equipment’s as well as development of standards and rules such as on noise prevention. 53. Both OHS Act and WIBA Act provides for grievance reporting to DOSHS offices especially on work injuries, compensation and OHS non-compliance. Workplace related accidents should be reported within 7 days and 24 hours for non-fatal and fatal cases, respectively. In the event of late reporting or 62 non-reporting of accidents, legal prosecution may be warranted. The DOSHS is mandated to investigate reported accidents. Recommendations: i. Contractor’s health and safety guidelines will be prepared as part of the ESHSM manual. The NPCT will consult the DOSHS on the developed guidelines for concurrence. ii. The NPCT will Collaborate with DOSHS officers to train the E&S safeguards staff at the counties/municipalities including hired contractors under the Program. 6.2 National Environment Management Authority (NEMA) 54. The mandate of NEMA is to coordinate, supervise and manage all matters relating to the environment and to be the principal instrument of government in the implementation of all environmental policies relating to the environment. There is NEMA representation in all the 47 counties, with assigned County Directors of Environment (CDE) officers. The environmental impact assessment is guided by section 58 of EMCA 1999 (2015), EIA/EA, 2003, legal notice 31 and 32 of 2019. The EIA is categorized according to the risks; either low risks (Summary Project Report), medium risk (Comprehensive Project Report) or as high risks (Full EIA study report). The authority has capacity gaps, with approximately 300 officers required to supervise over a thousand sub-projects. 55. The EMCA has gaps in addressing social issues as mandated by law and in practice. NEMA has no role for SRM, including the review of social aspects of the ESIA, ESMP or RAP. In addition, it has no internal capacity to do so and has no strong linkages with other government institutions to support in this role. In most cases where there are sub-projects with land acquisition and resettlement issues, the matters are handled by the National Land Commission (NLC). The new Social Risk Management (SRM) unit under department of social security and protection will be very instrumental in management of social issues and NEMA will collaborate with the department during the ESIA process. 56. There is inter-agency collaboration with other MDA’s. NEMA has a department responsible for lead agencies coordination and also coordinates the National and County government. The main challenge in management of the department is on resource mobilisation and partnership. In the EIA process, based on the sub-project type, all the relevant lead agencies are involved in the review process before NEMA approves and licence a sub-project. On the other hand, The Ministry of Environment, Climate Change and Forestry plays a key role to coordinate on policy formulation issues. 57. To enhance environmental compliance and enforcement the authority has digitized/automated the licencing process, promote self-compliance audit/reporting by the agencies and has a functional environmental incident management and response system. The environment compliance and enforcement department is currently under review and expected to have two separate departments compliance and enforcement department to enhance their performance. The authority is currently recruiting the enforcement officers to be deployed at the county level. 58. The NEMA has an environmental incident management unit (equivalent to the grievance redress department) that reports to the Deputy Director in charge of enforcement under the Director, compliance, enforcement, and field operation. An incident management framework exists and guides the system in place. The environment incident reporting system has defined uptake channels such as email address and incident hot line contacts with an elaborate database on incidents reported. The system has established a network with the county governments where the central data base has contacts of environmental officers in each county. The most common reported cases in the urban areas include; illegal discharges of untreated sewer, impacts associated with construction in build-up areas, dumping of solid waste and noise pollution from existing facilities. NEMA as a regulator, has a separate system to handle their grievance from NECC which has its defined mandate. The NEMA incident management unit is the first responder to complaints. On issues not resolved, they are 63 escalated to NECC and NEMA is required to participate during investigation. In cases where the resolution of complaints has not been achieved, the authority escalates the complaint to the ombudsman office. Key Recommendations i. Representation of NEMA as member of the NPCT and CPCT /or the municipal teams project committee, at national and county levels respectively, ii. Capacity building of E&S officers at county/cities/municipalities by NEMA on environment requirements. Environmental aspects include; sustainable development of infrastructure, Environmental and Social Impact Assessments (ESIAs), and monitoring and compliance reporting on sub-projects implementation. iii. Collaboration and coordination with the NEMA nominated focal person at the national level, for consultation on all Program environmental matters. iv. To enhance grievance management, a more synergized information sharing and coordinated approach can be applied between the SDHUD and NEMA. The SDHUD may consider sharing the complaints register with the authority for updating on NEMA incident database for linkage to issued licences of the sub-project and concurrence on remedial action taken. 6.3 Kenya School of Government (KSG) 59. The Kenya School of Government is an institution established by the Kenya School of Government Act (No 9 of 2012) to build capacity of public service leadership by developing managerial and leadership competencies for quality public service. The institution provides capacity development Programs for the Public Service through training, research, consultancy, and policy advisory services. Established training departments within the institution include public service, finance, security management, environment, and climate change. The institution has experience in conducting training for clients implementing World Bank funded projects such as under the completed KDSP and Eastern Electricity Highway Project (EEHP). In addition, under the FLLoCA, there is an ongoing training in counties with a pilot completed in early December 2022. The ongoing training is leaning towards social risks management as social development officers are to be trained in all earmarked counties. 60. The institution draws development and facilitation support from technical departments, who are capacitated as Training of Trainers (ToTs) and thereafter roll-out the curriculum. Collaboration exists with ministries given their policy foundations and networks that is built in KSG’s Programs and delivery. The KSG has a curriculum for governance and urban areas and cities and conducts training to the SDHUD on urban planning and policy requirements. In addition, The KSG has developed the Environmental and Social Safeguards in Development curriculum that covers ESHS units that include: Introduction to environmental and social safeguards in development policy planning and budgeting; International, national and local guidelines for environmental and social safeguard Stakeholder Mapping and Engagement; Integrating environmental and social safeguards in development policy planning, budgeting and implementation; Monitoring, evaluation, review and reporting; and Conflict and Grievance Redress Mechanisms. The units are relevant to the Program and there is an opportunity for collaboration between the KSG and SDHUD to modify the content to fit KUSP2 activities. 61. The training needs of counterparts are diversified, leading to in different approaches being considered. These include (i) supply driven Programs, provided continuously, and revised periodically to accommodate emerging issues to facilitate the fulfillment of government’s mandate and (ii) demand driven Programs developed on a need’s basis capturing specific aspects. An opportunity exists for the development of a curriculum that specifically covers environmental, social, health and safety aspects for use to train county level institutions with E&S risk management under the Program. Such a curriculum could be marketed by KSG to facilitate capacity building in ESHS risk management for all public sector institutions engaged in various civil works projects at the national and county levels. 64 62. Feedback on training is received through online self-evaluation systems for online courses and physically for on-site training from participants. There is access for complaints to be laid with the Director for Academic Affairs and Director General, who is the chief complaints officer. In the event of raised complaints may require policy interventions, advisory notes are prepared to the head of service commission. Recommendations i. There is an opportunity for SDHUD to partner with the KSG to prepare an ESHS curriculum based on the KUSP2 needs assessment and existing KSG’s Environmental and Social Safeguards in Development curriculum. ii. The SDHUD and KSG will collaborate to develop an annual planned and costed ESHS training schedule for KUSP2. It is expected that there will be an opportunity to continuously incorporate any emerging ESHS issues under the Program. The ESHS management training Program is expected to enhance capacity of the safeguard officers at counties/cities/municipalities beyond the KUSP2 span. 6.4 The National Environment Complaints Committee (NECC) 63. The National Environment Complaints Committee (NECC) is established under Section 31 of EMCA and comprise of 7 members. The committee facilitates access to environmental justice to the public by providing a forum for environmental conflict resolution and contributing to environmental policy. The committee is tasked with; (i) investigating complaints or allegations regarding the condition of the environment and suspected cases of environmental degradation in Kenya, (ii) undertake public interest litigation on behalf of the citizens on environmental matters. The committee has also a mandate to supervise all environment related projects and may initiate an investigation on suspicion on environmental abuse. 64. Most complaints reported are mainly in the urban areas and are as a result of poor land use planning. This includes; (i) poor waste management as designated waste disposal areas have been grabbed and land available in other locations are wetlands; utilised as a source of water and waste dumping; (ii) quarrying activities, iii) Environmental pollution (air pollution and noise pollution); iv) poor wastewater management due to lack of sewer system. 65. There are several ways in which complaints are received comprising; (i) a hotline (0722510510), (ii) email, (iii) posted mail, and (iv) in-person at the committee’s office. The committee receives approximately 10-11 complaints per day. There is a master register in which complaints are categorized on a priority basis and timelines set dependent on urgency. 15 days in a calendar month are dedicated by the committee’s team for hearings and addressing complaints in all the 47 counties in the country. Once a complaint has been received, a notice to respond is issued to concerned parties, a meeting is set up at county commissioners office where a hearing is undertaken and judgement made. 66. The committee applies the inquisitorial system to investigate complaints in which the complainant, respondent and witnesses are present during a hearing session. Hearings are deliberated by a multi-agency committee comprising of a County Commissioner (chair), representatives from the NECC (chair), County Director NEMA (Secretary), CECM Environment, CECM Planning, Chief Officers, County Commander, Chief Prosecutor and Criminal Investigation Department (CID). Judgements made by the multi-agency team are final and stand due to the collaborative decisions making approach employed. Details of the agreed actions are recorded for future follow-up. 67. The committee has limited financial and human resources to adequately fulfil its mandate. In an attempt to address these challenges within its means, a) the committee has signed a memorandum of Understanding (MoU) with the association of town planners and Kenya Alliance of Resident Associations (KARA) for collaboration enhancement for timely attention to environment related matters in urban areas; b) the committee has also signed an MoU with NEMA to have officers deployed 65 to the 47 county offices, but this is delayed due to inadequate budgetary allocations to the committee; c) NECC has teamed up with at least 5 organizations/persons including environmentalist, CBOs, NGOs, in every county, who launch complaints and keep the committee abreast; d) Good working relationships exist with other departments/agencies such as, NEMA, WRA, KWS, Ministry of Mining. An MoU also exists with the National Land Commission (NLC) when land related matters are adjudicated upon and judgements given such as the allocation of title deeds. Recommendation The NECC play a mediation role in addressing environmental complaints. To improve on their visibility there is need for awareness creation to counties/cities/municipalities on the role of NECC and their unique inquisitorial system to investigate complaints in addressing environmental matters under KUSP2. 6.5 The National Gender and Equality Commission (NGEC) 68. The mandate of the Commission is to promote and ensure gender equality, principles of equality and non-discrimination for all persons in Kenya as provided for in the Constitution of Kenya 2010 with a focus on the following Special Interest Groups (SIGs): women, persons with disability, children, youth, older members of society, minority and marginalised groups. The Commission offers oversight and surveillance of all matters concerning promoting gender equality and equity and coordinating gender mainstreaming in national development. Most recently, the Commission has engaged with the Ministry of Transport through training committees on gender mainstreaming to promote gender equality and inclusion of special interest groups. The Commission considers policies at the international level, related to its mandate. It is currently developing a National inclusive framework for Indigenous Persons (IPs). 69. The NGEC has been in existence for the last 10 years with about 100 staff. It has a national office and 5 regional offices; Garissa (Tana River, Garissa and Wajir), upper Eastern (Isiolo), Coast region (Kilifi, Mombasa), Nakuru and Kisumu. Every region has 4 staff who play a key role in addressing issues on equality and inclusion. Challenges the commission is faced with include: limited adherence to legal provisions, limited gender main-streaming such as inclusion of women in urban transport, limited preparation and delayed submission of progress reports by public institutions on implementation of the key requirements and limited budget allocation for monitoring and support to MDA’s. 70. There is inter-agency collaboration with other MDA’s that facilitate the management of gender and social aspects in urban areas including the gender department, children’s department, labor department, KNCHR, CAJ, NCPWD. There is also collaboration with the climate change unit which taps the Commission’s expertise on gender inclusion and participation. 71. The Commission has a functional grievance redress mechanism system and structure. Complaints department are responsible for handing grievances and the legal department supports in review of findings and recommendations. Common grievances logged include: discrimination of PWD during employment, child labor and GBV/SEA-SH issues. 72. In the KUSP2, gender can be mainstreamed in urban infrastructure investments through; a) more targeted capacity building on the legal requirements to various stakeholders to promote programs that are gender responsive; b) encourage counties/cities/municipalities departments to document gender mainstreaming areas; and c) encourage gender consideration in all program committees at the national and county levels. 6.6 National Construction Authority (NCA) 66 73. The National Construction Authority (NCA) is a parastatal whose mandate is to regulate the construction industry and coordinate its development including environmental aspects. The key role of the NCA is to a) accredit and register contractors and regulate their professional undertakings; b) accredit and certify skilled construction workers and construction site supervisors; c) develop and publish a code of conduct for the construction industry, and d) environmental stewardship through promoting responsible use and protection of the natural environment through conservation and sustainable practices. The authority conducts construction research taking cognisance of emerging trends in the industry and capacity building to construction workers and site supervisors such as training on sustainable use of plastics in urban development. 74. NCA is present in 14 regional offices across the country, 13 liaison offices and is represented in 52 Huduma centres. Each of the Huduma Centres has two officers. The authority collaborates with other ministries, departments, and agencies such as all project sites need to be registered with NEMA; the DOSHS trains contractors on compliance with health and safety onsite, the NCA blacklists all poor performing contractors such as those operating at Kenya Oil and KeNHA. To improve on NCA’s monitoring activities, the authority has implemented a Regulatory Construction Information System (RCIS) to automate and integrate its processes. The authority is currently working on improving the share point system to strengthen the engagement and collaboration amongst relevant departments to improve the business processes and systems. 75. In the proposed Program, NCA can play a critical role in a) ensuring contractors and skilled construction workers engaged at the municipalities are registered with NCA. This can be facilitated through sharing of the list of KUSP2 sub-projects with the NCA regional offices for updates in their database and closely monitor in case of emerging issues; b) ensure quality construction standards and contract management, and c) enhance compliance by providing standards such as on fire station buildings. 6.7 The State Department for Social Protection and Security 76. The State Department for Social Protection and Security is mandated with formulation, review and implementation of social security, employment, programme for Persons with Disabilities, national human resource planning and development, national labour productivity, child labour and regulation management, facilitating and tracking employment creation, co-ordination of national employment, internship and volunteers for public service, community development, protection and advocacy of needs of Persons with Disabilities, social assistance programmes, workplace inspection and workman’s compensation. 77. A Social Risk Management (SRM) unit has recently been established at the Directorate, with current funding from the World Bank funded FLLoCA Program. SRM screening is guided by a checklist developed by the unit. With no specific SRM legal frameworks, other legislations are considered such as the Kenya National Social Protection Policy 2011, EMCA 2015, Children Act 2012, and CoK 2010. The application of these legislation to SRM is somewhat cumbersome. To this end, the SRM unit has drafted the Kenya Social Risk and Impact Management Policy, under the FLLoCA Program. In addition, a SRM curriculum has been developed and will be peer reviewed by the Bank. The SRM curriculum is envisaged to be published and launched in February 2023. A MoU with KSG and University of Nairobi (UoN) is being developed for accreditation of the curriculum and conduct training. 78. A multi-sector committee has been established at the national level with membership from the NEMA, labor department, UoN, children department, NCPWD among others. Some counties have established SRM committees comprising the Elgeyo Marakwet, Busia, Vihiga, Nakuru, Kajiado. Members of the county committees comprise the county government, DOSHS, labor department, NEMA, children department, public works, water department, National Government Administration Officers (NGAO), among others. 67 79. The department has an existing grievance redress system, although not well structured. FLLoCA program is supporting on enhancing the existing system. 80. In the KUSP2 opportunities exists to incorporate SRM during program implementation, compliance monitoring and evaluation. These may include (i)capacity building on SRM to county/city/municipality environmental and social officers; (ii) supervision and monitoring of sub- projects for compliance and (iii) periodic evaluation on SRM of sub-projects. 6.8 The Council of Governors (CoG) 81. The Council of Governors (CoG) provides a mechanism for consultation amongst County Governments, share information on performance of the counties in execution of their functions, facilitate capacity building for Governors, and consider reports from other intergovernmental forums on national and county interests amongst other functions. The Council is structured in sectoral committees including the Water, Forestry and Natural Resources, and Environment and Climate Change Committee. The Council provides a platform for standardization amongst County governments, facilitates disputes resolution, and is an agent of intergovernmental relations as it considers any matter referred from any member of the public. 82. The Council is guided by legal frameworks that include the Intergovernmental Relations Act 2012, with provisions for the explicit mandate to coordinate counties and establish sectoral committees. In the case of limited legislation guidance, County governments consider requisite legislations, apply good will, and resources, at their disposal. Counties are prioritizing their ESHS management function as they enter in agreements to monitor implementation of projects, and national government is committed in the sector through capacity building of Governors. Some municipalities are challenged with municipal waste management and environmental inspectors are incapacitated to enforce compliance. 83. County environment committees are tasked with the review of county environment action plan, public participation, mainstreaming of climate change programs into the CIDP and review budgets from county development departments. 84. The Council has a functional grievance management structure in which disputes/complaints are handled with guidance from the legal committee. Grievances can be escalated to the summit, involving expertise from the specific affected sector. There is a draft grievance management guideline in place. Mediation and dispute resolution can be cascaded to the municipal level, as the Council has recently deliberated with committees an inter-city and inter-municipality forum with guidelines being drafted. 85. The Council is challenged with limited human and financial resources and a lack of political good will. There is no specific budget allocated for environmental and social safeguards management and limited safeguard staff. The Council is at a strategic position to facilitate inter-county alternative dispute resolution. 6.9 The State Department of Housing and Urban Development (SDHUD) 86. The SDHUD is the key implementing agency for KUSP2. The mandate of the state department is to facilitate access to adequate and decent housing and prepare urban plans for sustainable development. SDHUD has no standard documents or policy to guide on environment, social, health and safety requirements but refers to the existing country polices and legal documents. The human resource capacity in management of E&S effects is limited. There is no standalone budget allocated 68 for ESHS management but resources are lumped together under the design and feasibility budget which includes preparation of ESIA reports for specific sub-projects. 87. To promote credibility and accountability on E&S management systems, the SDHUD involves other ministries and agencies to provide oversight on sub-projects. The KUSP created an opportunity for increased engagement with agencies such as NEMA and DOSHS especially during cluster training of safeguards officers at the municipal level. Other collaborations exist with the Roads agencies, Council of Governors (CoG), county governments, NCA, and utility departments (water and electricity), especially during harmonization of sub-project plans and interventions such as in siting of non- motorized transport system. In addition, through the KUSP; (a) the environmental officers were linked to the County Director of Environment (CDE), (b) there was development of E&S instruments such as the screening checklist, ARAP template, county GRM, which will be scaled up under KUSP2. 88. At the national level, the SDHUD has a system in place for management of grievances. Complaints are received at the program coordinator’s office and forwarded to E&S safeguards officers who follow up for resolution through involvement of other relevant departments. Key gaps in the grievance system include; (i) lack of operationalization of the grievance redress committee; (ii) the grievance uptake channels were available but there was limited disclosure to the relevant stakeholders, and limited documentation of grievances logged and feedback to complainants. Key Recommendations for enhancement of ESHS management include: i. National level GRM institutional strengthening for effectiveness in complaints and grievances management. Key areas of strengthening include: (a) review of the GRM structures, clearly outlining procedures for management of grievance, responsible persons, response procedures, and timelines for resolution and feedback; b) disclosure of grievance uptake channels such as toll-free number, email address, to relevant stakeholders; (b) the NPCT should form part of the GRM committee; (c) designate a dedicated GRM focal persons for handling grievance; enhancing its documentation and provide timely feedback. ii. KUSP2 should have an adequate budget (a dated and costed work plan) for supervision and monitoring of sub-projects at county/city/ municipality levels to ensure compliance with safeguard requirements. iii. There is need to review and update the existing safeguards reporting templates to improve on safeguards monitoring and reporting; supervision and monitoring of sub-projects at the sub- national level should be increased from bi-annually to tri-annual for close safeguards follow-up especially during the implementation of infrastructure sub-projects. iv. Recruit additional safeguards staff to include two (2) environmental specialists, (2) social specialists and one (1) health and safety specialist to enhance ESHS management. 6.10 National Land Commission (NLC) 89. The National Land Commission (NLC) is an independent entity established with provisions of the Constitution of Kenya, 2010. Chapter 5 of the CoK provides for the NLCs critical oversight and advisory roles on the various aspects of land, environment, and people management. The Commission policies and procedures also consider aspects on the preservation of natural habitats, vulnerable communities, and indigenous people. The Commission is mandated through the Land Act 2012 provisions to facilitate the fostering of resilience due to climate change, management of ecological sensitive landscapes or ecosystems, including conservation and protection as sustainable environmental management is directly hinge on land. 90. The NLC has presence at all 47 counties in the country with coordination at the national level utilizing an online land resource management system. The Commission has provided channels for aggrieved persons to lay complaints at their offices or via email with common grievances related to compulsory acquisition and evictions. Once complaints are received at the Commission, mostly through the chairman's or CEO's offices, they are referred appropriately to the respective technical department. There is collaboration with all government entities including the Ministry of Agriculture, 69 Ministry of Environment, State Department for Livestock, State Department for Fisheries and Blue economy and Kenya Wildlife Service. NEMA involves the NLC as a lead agency in the review of ESIA’s to enhance sustainable land management and protection of critical habitats. 91. The Commission has the mandate to issue eviction orders where there is encroachment on public land. Counties have a responsibility to monitor land usage and may issue specific orders for encroachment cases where public land has been reserved for development. Under the ongoing Bank funded Kenya Climate Smart Agriculture Project, the Commission has developed guidelines on access to different land types for public investments. The KUSP2 will consider these guidelines in implementation of investments. It was recommended for the NPCT to take stock of natural habitats within cities/municipalities jurisdiction and share with the Commission, for coordination in updating the inventory. The NLC can give guidance on approaches for integrated land use planning, inclusive stakeholder management, resilience building and reduce environmental degradation. 6.11 National Commission on Administrative Justice (CAJ) The Commission on Administrative Justice (CAJ), also Known as the office of the Ombudsman, is a body established under Article 59(4) and chapter fifteen of the Constitution of Kenya. It is operationalized by the Commission Administrative Justice Act, 2011. The mandate of the Commission under this Act is to enforce administrative justice in the public sector by addressing maladministration through complaints handling, capacity building, advisory opinions, and alternative dispute resolution. Further the Commission is the oversight and enforcement institution with function and powers to give effect to article 35 of the Constitution on the right to access to information as provided for by the Access to Information Act, 2016. The mandate of the Commission extends to both the National and County Governments. 92. The CAJ has a footprint in 18 counties across Kenya with 6 regional offices and at 12 Huduma Centre’s for accessibility and decentralization of services. The CAJ is mandated to investigate complaints, facilitate the set-up of complaint handling structures within the public sector and issue advisory opinions on the improvement of public administration. This has necessitated capacity building at both levels of government on complaints handling. There exists synergy between the Commission and other government entities enhancing complementarities in provision of public services and avoiding the duplication of structures and systems. Some of the entities the CAJ closely engages with includes the National Human Rights Commission (NHRC), National Gender Equality Commission (NGEC), and other state departments. CAJ also has working partnerships with the counties including Kisumu, Siaya, Kakamega, Bungoma, Vihiga and Elgeyo Marakwet. The CAJ has received over 800,000 complaints, mostly related to public services. 93. Under the KDSP a complaints handling guideline was developed. The KUSP2 can leverage on the developed guideline in facilitating the establishment of GRMs structures for cities/municipalities. The CAJ can provide technical guidance in the establishment of cities/municipalities GRMs structures as it has existing policies and guidelines for institutionalizing GRMs. Establishment of functional cities/municipalities GRM systems will ease the Commission’s burden as it receives significant numbers of complaints from counties. 70 7. LESSONS LEARNT FROM PforRs IN THE URBAN SECTOR 94. This chapter presents a summary of lessons learnt from the completed KDSP and on-going KUSP which informs some of the proposed Program design recommendations as summarized in chapter 9. Both KUSP and KDSP have delivered substantial institutional and capacity building support on ESHS management to county governments and urban institutions. KUSP2 will strengthen the quality, inclusiveness, effectiveness and capacities of municipalities to deliver urban services. 95. The KUSP NPCT has facilitated technical backstopping of the counties/cities/municipalities on ESHS aspects. Notable achievements under the KUSP included operationalization of the relevant E&S legal framework for management of E&S risks and impacts, screening of sub-projects thus avoiding high-risk investments, preparation of project ESIA/ESMPs, and licensing by NEMA, preparation of some ARAPs by some municipalities, monitoring and reporting on key ESHS aspects such as on implementation of ESMP, recording and reporting on accidents & incidences and grievance redress system. 96. In addition, key achievements noted under KDSP include; development of guidelines and tools such as GRM guidelines, E&S safeguard tools, GEMS tools for monitoring and reporting, training the County officials on social risks management and availability of E&S focal persons in all counties. 97. The key E&S aspects to be scaled-up under KUSP2 based on KUSP and KDSP experiences, include: (i) E&S staffing arrangements and technical capacity at cities/municipalities for enhanced ESHS management; (ii) update of the bidding and contract documents for civil works to include ESHS clauses, promoting contractor compliance; (iii) enhanced stakeholder and public consultations on investments; (iv)promote targeting and inclusion of vulnerable and marginalised groups, including the refugees to access program benefits; (v) review of KUSP E&S screening checklists and awareness creation to cities/municipalities; (vi) collaboration between the E&S safeguards officers and the project design team during design and implementation phases; (vii) enhanced collaboration with NEMA for increased scrutiny of ESIA/ESMP reports and timely issuance of licenses; (viii) GRM systems are not known to the public hence the need for review of structures and disclosure of the uptake channels; (ix) develop templates and train on ESHS monitoring tools to promote ESMP compliance monitoring; (x) ESHS budget allocation for implementation of corrective measures in cases of unforeseen adverse impacts; (xi) implementation of OHS provisions as per the OHS Act, 2007; (xii) enhanced collaboration and synergies with key ministries, departments and lead agencies including NEMA, DOSHS, NCA among others; (xiii) strengthen the collaboration between NCPT and CPCT safeguards teams; (xiv)sensitization of cities/municipalities and contractors on ESHS management; (xv) scale-up on use of the GEMS tool for monitoring of sub-projects and portfolio mapping for coordination across projects. 71 8. MEASURES TO STRENGTHEN SYSTEM AND INSTITUTIONAL PERFORMANCE 98. This chapter summarizes measures recommended to strengthen the ESHS existing system and institutional performance in line with the gaps and risks identified in the ESSA. The proposed measures should be executed during Program implementation to address identified gaps and risks considering the existing country system and capacity verses the PforR core principles and key planning elements. 8.1 Program Design Recommendations A. Environmental, Social, Health and Safety 1. The design of market infrastructure should be revised to accommodate incorporation of social aspects such as provide ramps for persons with disability, creche for children accompanying their mothers. The developed market management guidelines developed under KUSP1 should be reviewed to incorporate emerging issues, developed validated and adopted by counties to facilitate sustainable market investments. 2. Programs investments should allocate budgets for operation and maintenance for infrastructure sustainability and avoidance of potential ESHS impacts. 3. There are several completed and ongoing World Bank funded operations in counties, in which ESHS systems and structures have been developed. There is need for harmonization and coordination for enhancement under KUSP2. Previous and ongoing Bank funded operations include; KADP, KDSP, FLLoCA, KISIP, KUSP. 4. Counties have conducted feasibility studies and master plans prepared for different urban functional areas such as on; road network/ non-motorised transport development, municipal solid waste management, storm water drainage, water supply and sanitation. The existing counties/cities/municipalities master plans need to be integrated and harmonised to inform investments under the KUSP2 useful for appropriate and sustainable land-use planning. 5. Harmonise urban planning regulations with the Community Land Act (2016), Refugee Act (2021) and draft Marshall Plan for Refugee Settlement (2023-27). 6. Strengthen the linkage between national and county Program coordination teams, safeguards units to enhance ESHS management. 7. E&S safeguards officers need to closely collaborate with the municipality engineers and surveyors from project inception, design and feasibility study, implementation, hand-over of investments and operational phases to ensure ESHS mainstreaming in all project activities. 8. Enhance the citizen and stakeholder engagement strategies to; i) adequate budget allocation for appropriate planning; ii) facilitate the targeting and inclusion of vulnerable and marginalized groups; iii) facilitate timely sharing of information to the public prior to scheduled consultations in a form and language understandable to project-affected parties and other interested stakeholders; iv) document the meetings proceedings and list of stakeholders, and v) facilitate timely feedback on deliberations. B. Institutional Strengthening 9. Each participating city/municipality should have 1an environmental and 1 social officer as part of the CPCT. However, there is need to define their roles clearly, for more effective ESHS management. Some of the assigned roles include: i) E&S screening of sub-projects and identification of instruments to be prepared, ii) participate in stakeholder consultation and dissemination campaigns; iii) ) review the ESIA/ESMP prepared by the lead experts; vi) ensure the ESMP form part of the contract and bidding documents; v) grievance management; vi) conduct field visits supervision and monitoring throughout project implementation phase, vi) labour and gender management, and vi ) maintain liaison with key MDA’s. 10. The Program should promote multi-stakeholder collaboration and coordination with MDAs (NEMA, DOSHS, NCA, NLC) for enhanced technical advice, training and external monitoring during the design, construction and operation phases. 72 11. During planned safeguards training sessions, sensitize the counties/cities/municipalities on the role of the National Environment and Complains Committee (NECC), National Environment Management Authority (NEMA), Commission of Administrative Justice (CAJ) and National Land Commission (NLC) systems in place for management of environment, land, labor, SEA/SH related complaints. 12. Support institutional strengthening to cities/municipalities to ensure municipal planning and service delivery considers inclusion of vulnerable and marginalised groups, including the host and refugees and their needs communities. C. Capacity Building 13. Social risks and impacts management; stakeholder engagement and disclosure of Program information, inclusion of disadvantaged and vulnerable groups, labour management, grievance redress management (training on grievance redress including technical support for the review or set-up of own cities/municipalities GRMs and the domestication of the access to information laws), child/forced labour, GBV/SEA-SH, temporary displacements, and relocation. 14. Environmental risks management; sourcing of construction materials and management of materials sites (quarries, borrow pits), implementation of chance finds procedures in the case of physical cultural resources. 15. Health and safety risks management; occupation and community health and safety including incident/accident reporting. 16. Preparation of ARAP’s, ESIA/ESMPs, monitoring and reporting, ESHS audits to the E&S officers in counties/cities/municipalities. 17. Training of contractors on ESHS risks management and reporting as provided in the ESHSM manual. 18. Training of safeguards focal person on the Geo-Enabling initiative for Monitoring and Supervision (GEMS) in participating counties/cities/municipalities including the National level to enhance supervision and monitoring. 73 8.2 Recommendations for the Program Action Plan Table 9: Program Action Plan for ESHS management No. Action Description DLI/IPF Responsibility Timing Expected Output 1. Counties and urban institutions receive training for the implementation IPF NPCT Yearly Training to of the Environmental, Social, Health and Safety Management (ESHSM) counties/cities/municipalities manual that includes guidelines, Standard Operating Procedures (SOPs) on the ESHSM manual Annual and templates for managing ESHS risks and impacts of conditional grants training calendar delivered on to counties/cities/municipalities as part of the Program Operational ESHS capacity building and Manual (POM). confirmed through progress reports. 2. a. Adequate deployment of full-time environmental and social MC County Before Qualified and experienced safeguards staff at participating city/municipalities. At least 1 Governments/ disbursement of staff assigned, 1 environment environmental and 1 social specialist, qualified and experienced. NPCT grants to counties and 1 social specialist, and confirmed annually through APA. b. Deploy fulltime environmental, social, health and safety staff at the NPCT Condition of Qualified and experienced National Program coordination team (NPCT):2 environmental IPF Program staff assigned, 2 specialists, (b) 1 health and safety specialist, (c) 2 social specialists. effectiveness environmental specialist, 1 health and safety specialist and 2 social specialists, and confirmed annually through APA 3. Grievance Mechanism MC County Before GRM constituted and Cities/municipalities to develop GRM structures based on guidelines Governments disbursement of grievances being logged, provided in the ESHSM manual to facilitate improvement on grievance and NPCT grants to counties responded, and resolved at management. city/municipality level. Confirmed annually through APA 74 No. Action Description DLI/IPF Responsibility Timing Expected Output 4. Include the ESHS clauses in the bidding and contract documents for civil IPF NPCT Before d. Bidding and Contract works. disbursement of document templates with grants to counties ESHS aspects e. Percentage expenditure on ESHS aspects in line with the allocated budget. f. Supervision and monitoring reports and confirmed through APA. 5. Program to partner with relevant lead agencies in the ESHS risks PS NPCT Continuous a. Number of trainings and management, these include DOSHS, NEMA, NLC and CAJ to deliver technical assistance provided capacity building to municipalities and contractors. in collaboration with relevant agencies. Confirmed through progress reports. 75 9. ANNEXES AND REFERENCE DOCUMENTS Annex 1: UDG Eligible and Non-Eligible Expenditure Menu FUNCTIONAL INDICATIVE ELIGIBLE INVESTMENTS AREA Connectivity, • County urban roads, pedestrian walkways and bicycle paths, street and Mobility and security lights (solar) and road furniture (Land acquisition is excluded) Accessibility • Universal access adaptations in main transport stations including access, internal circulation, ticketing, toilets, access to platforms and specialized services. • Street improvements to meet the needs of all users (pedestrians and cycles lanes). • Converting roundabouts to Signalized junctions (traffic lights). • Piloting NMT means of transport (cycling and pedestrian walkways) Municipal Solid • Solid waste: collection equipment, collection bins, transfer stations, waste collection points (construction of sanitary landfill, incinerators and management decommissioning of dumpsites excluded). (MSWM) • Community sensitization campaigns on improved MSWM. Wastewater and • Safe and emptiable public toilets/latrines, community septic tanks, emptying fecal sludge and transportation services and equipment e.g., vacuum trucks, vacuum management handcarts, and others (construction of wastewater treatment facility is excluded) Water supply • Community connections (kiosks and storage tanks not exceeding 10m3), water reticulation systems (construction of water treatment facility and private connections is excluded) Storm water • Urban drainage systems; flood control methods (along existing channels e.g., drainage protection of drainage channels). • Rehabilitation of storm water drainage (drainage must have compliant outfall) Urban social and • Urban greenery and public open spaces, community halls, childcare facilities. economic infrastructure Fire and Disaster • Fire control stations and disaster management equipment (firefighting Management trucks, rehabilitation and/or construction of new firefighting station and facilities) GENERAL POINTS TO NOTE i. Proposed investments must be included in the annual Urban Area Investment Plan, aligned with the Physical and Land Use Plan, and take place in public land. ii. Proposed investments must follow urban resilience, gender and universal design requirements defined in the POM, following a checklist. iii. Investments can include both rehabilitation and construction of public infrastructure investments iv. To avoid the fragmentation of urban investments (and limit procurement efforts), investment projects are subject to a minimum investment of US$500,000 (except if the UDG allocation has been lower). v. At least 80 percent of the grants shall be spent on non-moveable infrastructure assets. Up to 20% can be used for equipment (fire engines, solid waste equipment, etc.) and consultancy services. vi. In order to finance investment preparation costs, urban boards shall be permitted to spend up to 10% of UDG allocations on feasibility studies and designs, preparation of ESIA/ESMP, ARAP and supervision of investment projects through hiring of consultancy services, obtain the NEMA license, supervision of project implementation including ESMP and ARAP. vii. Investments need to be accompanied by O&M plans. viii. Facilities (e.g., markets, fire stations) need to have a management plan. 76 NON-ELIGIBLE INVESTMENTS ix. Any investment projects that trigger Substantial/High Risk under the World Bank ESF. The following types of investment: power plants; dams; highways; urban metro systems; railways and ports; engineered landfills, construction and installation of incinerators; activities linked to management of solid waste dumpsites; decommissioning of dumpsites; office buildings; land acquisition; projects with potentially significant risks to protected areas or national parks; and manufacturing or industrial processing facilities. x. Investments which may be considered temporary in nature, e.g., murram/gravel roads, temporary relocation sites. xi. Investment projects not included in the urban IDeP and not approved by the urban boards. xii. Additionally, if E&S risks are high or associated facility is linked to the proposed investment. 77 Annex 2: WHR UDG eligible and non-eligible expenditure menu FUNCTIONAL AREA INDICATIVE ELIGIBLE INVESTMENTS Connectivity, Mobility and Accessibility • County urban roads, pedestrian walkways and bicycle paths, street and security lights and road furniture (Land acquisition is excluded) • Universal Access adaptations in main transport stations including access, internal circulation, ticketing, toilets, access to platforms and specialized services. • Street improvements to meet the needs of all users (pedestrians and cycles lanes). • Converting roundabouts to Signalized junctions (traffic lights). • Piloting NMT means of transport (cycling and pedestrian walkways) Municipal Solid waste management • Solid waste: collection equipment, collection bins, (MSWM) transfer stations, collection points (construction of sanitary landfill, incinerators and decommissioning of dumpsites excluded). • Community sensitization campaigns on improved MSWM. Wastewater and fecal sludge • Safe and emptiable public toilets/latrines, community management septic tanks, emptying and transportation services and equipment e.g., vacuum trucks, vacuum handcarts, and others (construction of waste water treatment facility is excluded) Water supply • Community connections (kiosks and storage tanks not exceeding 10m3), water reticulation systems (construction of water treatment facility, and private connections is excluded) • Water storage (not exceeding 100m3) at public land and facilities (schools, hospitals), for public use and from functional existing boreholes. Storm water drainage • Urban drainage systems; flood control methods (along existing channels e.g. protection of drainage channels). • Rehabilitation of storm water drainage (drainage must have compliant outfall) Urban social and economic • Construction and maintenance of recreational parks and infrastructure public open spaces, tree nurseries (Urban greenery) social retail markets, community halls, childcare facilities. Fire and Disaster Management • Fire control stations and disaster management equipment (firefighting trucks, rehabilitation and/or construction of new firefighting station and facilities) Energy • Increase connections to the main electricity grid for public facilities (Investments should be limited to public land and public facilities) • Solar mini-grid/onsite power supply for public/municipal facilities (schools and hospitals), not exceeding 1MW 78 GENERAL POINTS TO NOTE i. Proposed investments must be included in the annual Urban Area Investment Plan ii. Proposed investments must follow urban resilience, gender and universal design requirements defined in the POM, following a checklist. iii. Investments can include both rehabilitation and construction of public infrastructure investments iv. To avoid the fragmentation of urban investments (and limit procurement efforts), investment projects are subject to a minimum investment of US$500,000. v. At least 80 percent of the grants shall be spent on non-moveable infrastructure assets. Up to 20% can be used for equipment (fire engines, solid waste equipment, etc.) and consultancy services. vi. In order to finance investment preparation costs, urban boards shall be permitted to spend up to 10% of UDG allocations on the feasibility study and designs, preparation of ESIA/ESMP, ARAP and supervision of investment projects through hiring of consultancy services, obtain the NEMA license, supervision of project implementation including ESMP and ARAP. vii. Investments need to be accompanied by O&M plans viii. Facilities (e.g. markets, fire stations) need to have an operations management plan ix. Water storage tanks are dependent on design approvals. x. Water storage for public institutions (schools, hospitals) should be on public land. NON-ELIGIBLE INVESTMENTS i. Any investment projects that trigger Substantial/High Risk under the WB ESF. The following types of investment: Power plants; Dams; Highways; Urban metro systems; Railways and ports; Engineered landfills; Office buildings.; Land acquisition; projects with potentially significant risks to protected areas or national parks; incinerators and Manufacturing or industrial processing facilities. ii. Investments which may be considered temporary in nature, e.g. murram/gravel roads, temporary relocation sites. iii. Investment projects not included in the urban IDeP and not approved by the urban boards. iv. Additionally, if E&S risks are high or linked to an associated facility of the proposed investment. 79 Annex 3: Environmental, Social, Health and Safety Management Manual The Environmental, Social, Health and Safety Management Manual guidelines, templates, and Standard Operating Procedures (SOPs) will include: 1. Review and update the E&S screening checklist prepared under KUSP to improve on site selection criteria and adopt emerging issues such as on EMCA legal notice No.31, 2019 that provides guidance on the sub- projects risks rating, Community Land Act Regulations, areas with territorial disputes. 2. Develop guidelines and templates on stakeholder engagement incorporating tools and protocols for effective stakeholder identification, targeting, inclusion, meaningful consultation, and feedback mechanism. The guidelines will incorporate considerations for targeting of vulnerable groups including the refugees in site identification, selection, and design. Prepare standalone SEP for the PforR Program. 3. Review and update guidelines developed under KUSP for managing temporary displacements and relocation and adoption by counties. 4. Develop guidelines for targeting consultation, inclusion and protection of vulnerable groups and persons including women, the elderly, Persons with Disabilities (PWDs), children, youth, minority/marginalized communities, refugees and members of particular ethnic, religious or cultural communities. 5. Develop guidelines for management of Gender Based Violence, Sexual Exploitation and Abuse, and Sexual Harassment (GBV/SEA-SH) incidents aligned with Good International Industry Practice (GIIP) and World Bank’s Good Practice Note. 6. Develop GRM guidelines and templates for adoption by cities/municipalities to i) harmonize and strengthen the existing grievance redress mechanism under KUSP to operationalize the system; ii) incorporate a GBV referral pathway and functional hotline to address GBV/SEA-SH issues; iii) Ensure the GRM is gender responsive and accessible to all persons; iv) have a comprehensive system for documenting grievances with feedback mechanisms in place; v) create awareness to the public on the GRM uptake channels and systems; vi) assign a GRM focal person, vii) fully representative and functional GRM committee, and viii) capacity build the GRM focal persons/committee on the mechanism, structure, logging, feedback, monitoring and evaluation. 7. Develop a SOP for engagement and coordination with key actors/ Ministries, Departments and Lead Agencies (MDA’s) such as NEMA, DOSHS, NLC, Ministry of Interior etc. 8. Terms of Reference (ToR) for the Environment, Social, Health and Safety Specialists. 9. Guidelines for management of civil works and construction activities at sub-projects sites including: a. Inclusion of ESHS clauses/provisions as part of contract bidding and contract documents. b. Design specifications on siting and universal access. c. Set of criteria for exclusions, especially with respect to thresholds for eligible county urban roads and drainage works, and associated facilities. d. Procedures and ToR on sustainable use of local material including materials sourcing and management of quarry/borrow sites. e. Identification of physical cultural resources and prepare a chance find procedure. f. Prevention of labor influx risks including child labour, forced labour, management of construction workers, and workers GRM. g. Occupational/community health and safety management including templates for incident accident reporting. h. Management of emergency and disaster preparedness. i. ESHS compliance monitoring, evaluation and reporting including a template. Ensure preparation of bi- annual and annual ESHS compliance monitoring reports. j. Template for carrying out annual environmental and social audits k. To avoid exacerbating social conflict, especially in fragile areas or areas subject to territorial dispute 10. On land management: a. Guidelines on preparation of Abbreviated Resettlement Action Plans (ARAPs) that aligns with national regulatory provisions and PforR Core Principles outlining the potential risks and impacts which the affected persons may be subjected to; descriptions of the socio-economic survey, consultations with the affected and host populations, livelihood-improvement options 80 for temporary displacement and relocation; procedures for grievances redress management; institutional responsibilities for implementation and monitoring of the ARAP; and a schedule, budget and sources of funds. b. Procedures for management of community land issues and conflicts such as tensions on resources sharing (water points, firewood), social conflicts between host and refugee communities, grievance management. c. Guidelines for management of encroachers on public land that accounts for loss of assets, livelihoods and management of other impacts associated with temporary relocation. 11. Mainstreaming inclusivity and sustainability of investments: To enhance ESHS management in investments, considerations will be made to mainstream social inclusion, urban land management and land use rationalization, sustainability, and climate resilience in County Integrated Development Plans (CIDPs), design considerations and urban plans. Key recommendations for mainstreaming inclusivity and sustainability of investments include: a. Revise contract and bidding documents to mainstream targeting and inclusion of vulnerable groups and employment of local laborer’s. b. Enhance social inclusion in infrastructure designs and implementation of investments. For example, in the design of markets; a) construct a creche for safety of children; b) provide adequate parking space, c) provide disability friendly and gender sensitive WASH facilities to allow unimpeded access for the elderly and PWD’s; d) provide ramps and seats along the NMT walkways. c. Engage the COG’s county environment committee, to review the county environment action plan, public participation strategies and mainstream climate change programs into the CIDP. 81 Annex 4: Key Environmental Social Health and Safety Effects Associated with Program Activities Result Activities and Environment Environmental Social Benefits Social Risks Area inputs al Benefits risks Result ▪ Institutional ▪ Availability of ▪ Availability of ▪ Lack of clear Area 1: capacity technical staff social officers to guidelines for Strength building to support in support in targeting of ened ▪ Ensure environment mainstreaming vulnerable groups. institutio appropriate compliance social issues ▪ Gender inequality in ns for institutional monitoring of ▪ Allow more employment urban set-up of Program resources to opportunities service municipalities activities counties to fund ▪ Ineffective grievance delivery ▪ Enhance ▪ Improved priority projects redress mechanisms DL 1 and municipal implementatio ▪ Promote ▪ Inadequate 2 HRM and n of transparency and mechanisms for performance infrastructure accountability stakeholder management investments ▪ Improve county identification, ▪ Strengthen from structured revenue hence engagement, and municipal monitoring and support monitoring PFM and OSR evaluation provision of ▪ Inadequate collection systems infrastructure/a disclosure of county ▪ Support menities investments projects citizen ▪ Improved living participation conditions in ▪ urban areas ▪ Enhanced economic growth in counties and urban areas resulting in poverty reduction ▪ Improved stakeholder, citizen engagement and public participation ▪ Accessible and functional grievance handling mechanisms. Result ▪ Harmonised ▪ Development ▪ Conflicts on ▪ Improved living ▪ Development control Area 2: legislation of of IDeP’s and competing land conditions challenges such as Integrate urban spatial plans use i.e ▪ Inclusive eviction of d planning will promote agriculture and economic growth encroachers planning ▪ Enhanced protection of built in counties and ▪ Increased demand for IDePs, and critical environment urban areas for public services resilient spatial plans, habitats, ▪ Promote women and/or physical and with climate open spaces participation in infrastructure inclusive and gender which will urban areas ▪ Potential failure to urban considerations consequently ▪ Clear urban land enforce development areas , reduce floods ownership standards 82 Result Activities and Environment Environmental Social Benefits Social Risks Area inputs al Benefits risks ▪ Development in urban ▪ Inadequate DLI 3 controls areas. stakeholder available and engagement during implemented harmonization of legal frameworks ▪ Inadequate citizen participation and consultation in planning and annual reviews. ▪ Inadequate disclosure of Program information. Results Plan design, Environment Environment Social Benefits Social Risks Area 3 build health and health and ▪ Creation of ▪ Loss of livelihoods More /rehabilitate safety safety Risks employment through temporary inclusive resilient and benefits ▪ Disturbance, loss opportunities for displacements of and inclusive urban ▪ Improved of existing communities. vendors, hawkers, resilient infrastructure clean vegetation and ▪ Improved access drivers especially urban and environment potential impact to public facilities during construction infrastruc servicesStrength and living to fauna species. through of public markets, ture and ening urban conditions ▪ Localised noise improved road roads and NMT services service delivery through and air pollution networks. ▪ Impact on livelihoods systems & creation of (dust and ▪ Enhanced of the poor and DL 4 capacities green spaces emissions) from security and vulnerable due to Develop asset from the construction safety through temporary management establishmen activities. improved displacements plans and t of public ▪ Soil walkways and ▪ Disruption of access enhance budget parks and contamination provision of and damage to public for O&M landscaping and streetlights. utilities and/or of public underground ▪ Reduced crime in private properties areas. water pollution urban areas. ▪ Labor influx risks ▪ Improved from spillage of ▪ Enhanced service ▪ Forced child labor health and oil and fuel delivery of social and abuse risks sanitation at associated with services within ▪ Increased gender- the urban construction counties. based violence and areas works. ▪ Awareness SEA-SH (markets, bus ▪ Soil erosion and creation and ▪ Potential community terminus, sedimentation of empowerment of health and safety households) waterways citizens to risks through especially during participate in ▪ Lack of transparency provision of construction of decision making and trust by local water, roads and storm and enhanced communities due to improved water drains. accountability poor stakeholder solid waste ▪ Land from public consultations and and degradation officials. engagement wastewater impacts from ▪ Strengthen social ▪ Discrimination management sourcing of responsibility against the system construction and participatory vulnerable, especially ▪ Improved materials from governance. women in selecting roads will quarry and ▪ Increased Program enhance borrow sites for equality, gender- beneficiaries safety and use in civil works. balance, and ▪ Lack of consideration access to ▪ Scenic quality culturally of PWD needs, access deterioration appropriate 83 Result Activities and Environment Environmental Social Benefits Social Risks Area inputs al Benefits risks basic and access to and suitable services. environmental Program infrastructure, ▪ Reduced pollution from benefits. road-users’ dumping of ▪ Promote climate conflicts and excavated smart resilient pedestrian material and infrastructure accidents impact to improvements through physical cultural provision of resources. Non- ▪ Health and Motorised safety risks; Transport occupational (NMT) health and safety facilities and incidents/accide bus terminus. nts to workers at ▪ Better roads construction enhance sites and traffic flow, community improves air health and safety quality, risks to the reduces dust public. levels and ▪ Increased lowers fuel generation and consumption unsafe disposal . of construction ▪ Reduced risk solid waste and of road wastewater flooding and effluent. erosion ▪ Traffic through obstruction and improved increased traffic drainage related safety systems in risks. urban areas. ▪ Temporary or ▪ Protection of permanent, wetlands and disruption of waterways public access from especially during appropriate excavation of urban trenches on planning. structures that ▪ Improved have encroached health the road reserve. through ▪ Disruption of reduction of existing water borne infrastructure or diseases from services such as provision of drainage, clean water sanitation, to telecommunicati households. on utilities, ▪ Development power, and of quality water supply infrastructur especially during e with safe 84 Result Activities and Environment Environmental Social Benefits Social Risks Area inputs al Benefits risks designs that construction are inclusive, phase. functional ▪ Increased spread and resilient, of sexually taking into transmitted consideration diseases climate including change and HIV/AIDs, STDs, disaster and other adaptation communicable universal diseases such as access, COVID-19, gender tuberculosis. sensitive ▪ Water pollution design and (surface and enhanced groundwater) supervision risks from capacity. transport, ▪ Strengthened treatment and environment disposal of social, health wastewater and and safety faecal sludge risk from pit latrines, management septic tanks and at national other onsite and county sanitation levels facilities if not through properly capacity handled. building. ▪ Poor ▪ Collaborative infrastructure synergy development amongst key from limited departments involvement/ava such as ilability of NEMA, technical experts DOSHS, NCA, in development SRM unit, of feasibility involved in studies and environment monitoring from al social, relevant health and government safety risk authorities such management as NEMA, NCA. . ▪ Poor project ▪ Improved sustainability sustainability from limited on urban operation and infrastructur maintenance of e investment urban through infrastructure planned, budgeted operational 85 Result Activities and Environment Environmental Social Benefits Social Risks Area inputs al Benefits risks and maintenance. Result ▪ Develop an up - - ▪ Enhanced ▪ Inadequate protocols Area 4: to date understanding of for effective Improved business private sector in citizens/stakeholder Private enterprise urban areas. identification and Sector database ▪ Development of consultation with the Engagem ▪ Design and urban space and private sector. ent implement creation of ▪ Ineffective grievance effective employment. redress mechanisms DLI 5 private sector ▪ Promotion of ▪ Lack of clear consultations private sector guidelines/procedure ▪ Integrate investments will s for targeting and private sector enhance service inclusion of inputs into delivery. vulnerable groups urban ▪ Improve living ▪ Lack of gender planning tools conditions mainstreaming ▪ ▪ Inclusive strategies in economic growth collecting, in counties and disaggregation and urban areas reporting on the ▪ Harmonization of MSMEs and clusters fees and tariffs of economic activities i.e., levies reduction, galvanizing the private sector RA5 ▪ Instituti ▪ Enhanc Construction ▪ Integrate ▪ Inadequate improved onal ed related EHS d spatial protocols for integrate Capacit deliver impacts during planning effective d y y of implementation ▪ Enhance citizens/stak develop building resilien of investments d citizen eholder ment ▪ Improv t as provided engagem identification between ed infrastr under RA3. ent of and refugees urban ucture refugee's consultation and host plannin and and host with the host communi g service commun communities ties capacit s ities and refuges y and ▪ Similar ▪ Creation ▪ Lack of clear DLI 6 and tools, EHS of guidelines/pr 7 ensurin benefit employ ocedures for g s as ment targeting and mainstr provid opportu inclusion of eaming ed nities for vulnerable of under host groups and climate RA3. commun refugees resilien ities and ▪ Ineffective ce refugees grievance ▪ Strengt ▪ Improve redress hen d access mechanisms urban to public ▪ Labour service facilities related risks delivery through during systems improve construction and d road of 86 Result Activities and Environment Environmental Social Benefits Social Risks Area inputs al Benefits risks capaciti network investments es s. such as child ▪ Enhanc ▪ Enhance and forced ed d labour. budget security ▪ Similar Social for and risks as O&M safety provided ▪ Enhanc through under RA3. ed improve systems d for EHS walkway manage s and ment at provision the of urban streetlig areas hts. ▪ Reduced crime in refugee settleme nts and host commun ity, ▪ Enhance d service delivery of social services ▪ Awarene ss creation and empowe rment of citizens to participa te in decision making and enhance d accounta bility from public officials. ▪ Strength en social responsi bility and participa tory 87 Result Activities and Environment Environmental Social Benefits Social Risks Area inputs al Benefits risks governa nce. ▪ Increase d equality, gender- balance, and culturally appropri ate access to Program benefits. 88 Annex 5 Land Tenure Systems in Kenya 1. The Constitution of Kenya, 2010, Chapter 5, classifies land in Kenya as public, community or private. 2. Public land is prescribed as: (a) land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date; (b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease; (c) land transferred to the State by way of sale, reversion or surrender; (d) land in respect of which no individual or community ownership can be established by any legal process; (e) land in respect of which no heir can be identified by any legal process; Constitution of Kenya 43 (f) all minerals and mineral oils as defined by law; (g) government forests other than forests to which Article 63 (2) (d); (i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas; (h) all roads and thoroughfares provided for by an Act of Parliament; (i) all rivers, lakes and other water bodies as defined by an Act of Parliament; (j) the territorial sea, the exclusive economic zone and the sea bed; (k) the continental shelf; (l) all land between the high and low water marks; (m) any land not classified as private or community land under this Constitution; and (n) any other land declared to be public land by an Act of Parliament—(i) in force at the effective date; or (ii) enacted after the effective date. 3. Public land shall vest in and be held by a county government in trust for the people resident in the county and shall be administered on their behalf by the National Land Commission. Public land classified under clause (1) (f) to (m) [above] shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission. Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use. 4. Community land shall vest in and be held by communities identified on the basis of ethnicity, culture, or similar community of interest. Community land consists of— (a) land lawfully registered in the name of group representatives under the provisions of any law; (b) land lawfully transferred to a specific community by any process of law; (c) any other land declared to be community land by an Act of Parliament; and (d) land that is— (i) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; (ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities; or (iii) lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2). Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held. Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively. 5. Private land consists of - (a) registered land held by any person under any freehold tenure; (b) land held by any person under leasehold tenure; and (c) any other land declared private land under an Act of Parliament. 6. The State may regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning. 89 90 Annex 6: Window for Host Communities and Refugees (WHR) Consultations A. Environmental and Social System Assessment (ESSA), Window for Host Communities and the Refugees (WHR) Component Stakeholders Consultation - Garissa County, March 2, 2023. Virtual consultations were undertaken with Garissa County government on the existing county systems and capacity for the proposed Dadaab municipality. A summary is presented below; Garissa County Government 1. Stakeholders consulted included the County Executive Committee Member (CECM) Land, Physical Planning Housing and Urban Development, Ministry of Lands Department, Director Urban Development, Director Gender, Culture and Social Protection, Director Public Participation and Civic Education, Director Water Services, County Director National Environment Management Authority, County Labour Officer, county focal person Environment and Social Safeguard Officer. 2. Spatial Planning Aspects: The Dadaab refugee camps are the Dagahaley, Ifo and Hagadera, located approximately 11Kms from Dadaab town. The agenda to upgrade Dadaab town and the refugee camps to a municipality is already in place. The County Government of Garissa and Lands Department are planning to embark on the delineation of boundaries and services jurisdiction for the proposed municipality, to include the refugee camps and Dadaab town.. The Program will focus on investments in urban areas, within the defined boundary in the municipality charter. 3. Safeguards Capacity: The county has existing capacity for environment and social risk management. The safeguard officers have been trained through completed or ongoing World Bank funded interventions including the Kenya Devolution Support Program (KDSP), Kenya Climate Smart Agriculture, Kenya Urban Support Program (KUSP) and Financing Locally led Climate Action Program (FLLoCA). The KUSP2 has a minimum condition on core staffing at the municipality level to include 1 environmental officer and 1 social officer. 4. Stakeholder Engagement. Stakeholder engagement is a fundamental requirement in the constitution. The county engages stakeholders in various activities such as in preparation of County Integrated Development Plans (CIDP), Annual Investment Plans (AIP), neighborhood planning, among others. For new sub-projects, the county engages stakeholders through the Project Management Committees (PMC) during inception, preparation, implementation, and operation phases. The UNHCR has set up structures for engagement between the refugees and host communities. 5. Core principle 2: Natural habitats and physical cultural resources. The Dadaab town is challenged with environmental degradation mainly from cutting of trees for wood fuel and building materials. The prosopis Juliflora shrub, originally introduced as a solution to deforestation and fuelwood shortages, has become highly invasive, displacing indigenous plants, and negatively impacting biodiversity and livelihoods. Proposed interventions for environmental restoration include setting up; (i) tree nurseries; (ii) green belts at targeted areas with adequate water and fenced and (iii) provision of alternative sources of energy. 6. Core Principle 3: Public and Workers Safety. There is a Directorate of Occupational Safety and Health Services (DOSHS) officer available in Garissa county. Some county departments mainstream health and safety requirements in projects as per the Occupational Safety and Health Act (OSHA), 2007 such as accidents and incidents reporting. There are few reported incidents of child and forced labour at the county. The department of gender and social protection collaborates with the children service department and local administration to address and mitigate child labour incidents. 7. Disaster Risk Management (DRM). The county is challenged with disasters such as drought, human and livestock diseases, and floods. The county is guided by a DRM policy which can complement on provisions of the development grant of the Program such as assessments and plans. The Program’s eligible menu also includes flood protection and drainage, fire stations and equipment’s. 8. Solid Waste Management presents a key environment challenge at Dadaab town especially due to increased population. Currently, there exists an open dump site, although not properly managed. The Program limits related investments to waste collection equipment’s, collection 91 points and preparation of strategies for solid waste management. As per the World Bank PforR Policy, some solid waste management investments are considered high risk such as construction of sanitary landfills and incinerators hence KUSP2 will not finance these types of activities. 9. Core Principle 4: Land Acquisition. Land ownership within the county is public and community. The camp sites are gazetted as refugee areas surrounded by community land. Most of the public amenities are on public land such as the administration offices, the public hospitals and schools. There is need document land ownership in the county for planning and to avoidance of disputes and conflicts. The process should involve robust and continuous stakeholder engagement and consultation. 10.Core Principle 6: Social Conflict. There is no hostility between the refugees and host communities on access to public resources. There is good co-existence as the refugees are mostly from Somalia descent with similar cultural practices as the host community. Preservation of culture should be given due consideration, in the proposed Dadaab municipality. 11.Grievance Management structures exist at county level and the refugee’s camps. KUSP2 can strengthen the existing systems by integrating the GRM local structures; enhancing engagement at planning and delineation phases; review the Grievance Redress Committee (GRC) and include community leaders and elders from the refugees and host communities. 12.Key stakeholders during Program implementation include the United Nations High Commission for refugees (UNHCR) and the Department of Refugees Services (DRS). The DRS has established structures at the refugee’s camps which are critical in mobilizing, integrating and a linkage with communities, county government and other development partners. Recommendations i. ESHS Capacity: Review the current ESHS human resource capacity as guided by a Terms of Reference (ToR). In the event of gaps, the county should facilitate the hiring of qualified personnel. This will enhance the capacities and strengthen systems to improve ESHS management of the proposed Dadaab municipality. ii. Stakeholder engagement: enhance public participation, stakeholder engagement mechanisms and information disclosure to the refugees and host communities, on the proposed Dadaab municipality. iii. Natural habitats and physical cultural resources: tree nurseries; green belts at targeted areas with adequate water and fenced and provision of alternative sources of energy. iv. Grievance management: integrate the existing GRM local structures; enhance engagement at planning and delineation phases; review the Grievance Redress Committee (GRC) and include community leaders and elders from the refugees and host communities. B. Environmental and Social System Assessment (ESSA), Window for Host Communities and the Refugees (WHR) Component, Turkana County, 6 - 8 March, 2023 Consultations were undertaken with Turkana County government and stakeholders from the host and refugee communities. The assessment of existing county systems and capacity were on the proposed Kakuma-Kalobeyei municipality. A summary is presented below: Turkana County government 1. Stakeholders consulted included the County Executive Committee Member (CECM) Land, Physical Planning Housing and Urban Development, Director Urban, Director Culture and Heritage, Director Public participation, County Gender Officer, Public Health and Sanitation Officer, National Land commission Officer, National Environment Management (NEMA) Officer, Lodwar Municipal Manager, and an environmental officer from Lodwar Municipality. 2. Spatial Planning Aspects: There are existing piecemeal plans including for Kakuma town, Kalobeyei Settlement and Kalobeyei Centre, which are at different stages of preparation and approval. The delineation process of the proposed Kakuma–Kalobeyei municipality is underway, that will include several small towns. No spatial plan has been prepared for the proposed municipality area. It was noted that an ad-hoc committee was formed in 2019 on Kakuma-Kalobeyei municipality formation. 92 Consultations were held with host and refugee communities and among matters discussed a proposal was given for boundaries to be pegged on natural resources such as rivers and hills. There is need for holistic planning for harmonization and sustainable development. In addition, extensive public participation on the municipal delineation and spatial planning processes are key, especially at the municipal levels. A robust Grievance Redress Mechanism (GRM) should also be established to receive, record, resolve, and follow-up on complaints/grievances pertaining the planning and formation phases of the municipality. 3. Environmental, Social, Health and Safety Aspects: Kakuma has existing natural habitats and physical cultural resources. Environment and Social Impact Assessments (ESIAs) guide in screening of ecologically sensitive areas, wildlife corridors, grazing areas and grave sites. The county is endowed with brown baboons in the Kalobeyei river and its environs, traditional rite shrines and shallow wells. In addition, mapping has been done on cultural grazing patterns with a greater need of consolidation for inclusion of undocumented natural habitats and physical cultural resources, to promote preservation. In appreciation of culture diversity within the county, the annual cultural festival includes refugee communities. 4. A health and safety department at the county has not been established, save the nearest Directorate of Occupational Health and Safety (DOSHS) office located in Kapenguria. The Kakuma camp is challenged with appropriate solid waste management that contributes to environmental pollution. 5. The Kakuma camp is located on the flood plains of the Kalobeyei river and Tarach river floods during the rainy season affecting Kakuma 2 camp resulting in temporary displacements and relocation. 6. There are significant child-headed homes and unaccompanied children, in the county. These result in children peddling drugs, prostitution, and child labor. This begs for their restriction at construction sites and closer Environmental and Social Management Plan (ESMP) compliance monitoring during implementation of infrastructure investments. 7. Public participation is conducted through various approaches that include; (i) public baraza’s headed by the Governor and CEC Urban Planning, (ii) county forums facilitating technical congregation, (iii) townhall forums that convenes elites from the Turkana West professional association, mapped stakeholders per ward and refugee community focal leaders from Burundi, the Democratic Republic of Congo, Rwanda, South Sudan, Ethiopia, Eritrea, Sudan and Uganda. Experience has shown public participation should be isolated for the host and refugee communities as there are earmarked meeting points for each group and enhanced freedom of speech. Common community communication approaches include through local radios and public participation meetings facilitated by the county commissioner’s office. Civil society organizations enhance engagement between the host and refugee communities. Consultation with the host community representatives 8. The community appreciates the proposed formation of Kakuma-Kalobeyei municipality and suggested for conventionally naming it to Kakuma municipality drawn from historical considerations. Kalobeyei centre is beyond the proposed boundary of Kakuma-Kalobeyei municipality. However, the Kalobeyei settlement is within the proposed Kakuma-Kalobeyei municipality. The consideration of the settlement name that encompasses the proposed municipality is a ‘sensitive’ matter, that requires extensive stakeholder consultations. 9. The host community considers the pastoralist’s community as a vulnerable group due to the loss of pastureland to the refugees. 10.Social risks mainly include: (a) Child labour as a result of high poverty levels of the host community, vulnerability, limited child support, child-headed homes and street children; (b) Gender-based Violence/Sexual Exploitation Abuse and Sexual Harassment (GBV/SEA-SH) as the rate is high at the both refugee and host communities. Referral pathways exist through hospitals, that requires strengthening through training and considerations for a survivor-centric approach; (c) Drug and substance abuse. 11.Social conflicts are prevalent between the host and refugee communities, because of unequal access to public services, limited access to natural resource such as water points and firewood, 93 water scarcity, land for socio–economic development and limited job opportunities. Civil society organisations involved in conflict management include the Lutheran World Federation (LWF) and the Lokado. 12.There is a perception by the host community that refugees are more favoured by government and donors. The refugee communities have better access to National and County government services such as security, healthcare, and education. Infrastructure constructed in the camp is operated by various agencies with limited access to the host community such as timed access to the library. 13.To promote peace, there is a peace and cultural centre that acts as a meeting point to celebrate diversity between the host and refugee communities. Consultation with Kakuma refugee camp 3 stakeholders 14.The business investments at the camp site are licensed with perceived limited commensurate benefits to the refugee community especially on enhancement of provided services. 15.Due to the rapid growth in the refugees’ population, there is encroachment on road wayleaves and access roads. With proposed investment at the camp, there is fear of temporary/permanent displacements and loss of livelihoods. 16.There are poor access road networks, that hinder fast response in management of fire outbreaks. 17.There is an existing GRM system at the Kakuma refugee camp and Kalobeyei settlement that requires strengthening in promoting confidentiality and feedback channels. 18.Other challenges at the camp include: poor lighting and water reticulation systems; insecurity due to increased crime (child labour, GBV cases and drug and substance abuse); lack of well-designed markets; fire outbreaks; limited solid and wastewater management; increased vandalism of solar systems and streetlights. Recommendations 1. Program design: Expand the eligible menu: i. To include markets that may reduce socio-economic conflicts between the host and refugee communities. The proposal is for the construction of a common marketplace incorporating the different cultures of the host and refugee communities (South Sudan, Sudan, Ethiopia, Eritrea, Democratic Republic of Congo, Burundi, Uganda, and Somalia) to promote integration. ii. Located in the Arid and Semi-Arid Lands (ASALs), increase the overhead water storage tanks capacity to 100m3. The water storage tanks should be set-up in public facilities such as schools and healthcare facilities. iii. To include water reticulation systems through construction of trunk water infrastructure from existing functional boreholes to public facilities such as schools and health centres. iv. With increased solar streetlights vandalism, preference is for installation of the Kenya Power and Lighting Company (KPLC) systems or have high mast solar powered street lights. v. Re-afforestation in restoration of vegetation especially along the Kalobeyei river where there is environmental degradation due to cutting of indigenous trees for firewood. 2. Public participation and stakeholder engagement: Key recommendations include: (i) Mapping of all host villages around/adjacent the refugee camp and encourage selection on their representatives; (ii) Comprehensive stakeholder consultation and community awareness on the proposed program activities. This will promote strengthened public participation and disclosure of information while delineating boundaries, amalgamation of the disjointed plans and other planning aspects. This can be enhanced through information/documents sharing and collaboration with the local Community-based Organisations (CBO’s). 3. Grievance management: (i) Integrate the existing GRM local structures; (ii) Strengthen the GRM system at the planning and delineation phases; (iii) Strengthen the Grievance Redress Committee (GRC) composition to include community elders from the host and refugee communities. 4. Natural habitats and physical cultural resources: There is need to; (i) map out and document all existing natural habitats and physical cultural resources within the county to promote conservation including appreciation of culture through monuments; (ii) Inclusion of cultural, traditional and beliefs aspects in planning and design of investments; (iii) Kalobeyei river marks the boundary of 94 the proposed Kakuma-Kalobeyei municipality, the riparian areas should be demarcated, and development control measures applied in the area. C. Department of Refugees Services and National Lands Commission 1. The consultation was conducted on the March 9, 2023 and included stakeholders from the State Department of Housing and Urban development (SDHUD), National Land Commission (NLC), Department of Refugee Services (DRS), United Nations Human Settlements Programme (UN Habitat) and the World Bank. The Department of Refugee Services (DRS) is; responsible for all administrative matters concerning asylum seekers and refugees in Kenya; coordinates activities and programmes relating to asylum seekers and refugees; and handles all operational aspects of protection and assistance of refugees. The UN Habitat is assisting local governments in developing well-planned and efficient human settlements, with adequate housing, infrastructure, and universal access to employment and basic services such as water, energy, and sanitation. 2. In Kenya, community land is administered under the Community Land Act, 2016. Therefore, land in Garissa and Turkana Counties are administered under community land tenures as provided under Article 63 of the Constitution of Kenya, 2010. With the proposed Dadaab and Kakuma- Kalobeyei municipalities, considerations are on: urban governance and management; role of county government; land administration matters under the Community Land Act, 2016; integration and provision of services for refugee and host communities; and conflicts management. To facilitate integration and cohesion between refugee and host communities, physical planning will incorporate peripheral areas of the camps and settlement within the framework of the Physical and Land Use Planning Act (PLUPA). 3. The conversion of community to public land is a consultative process initiated by the registration of communities as legal entities. After registration, a committee is formed that facilitates the preparation of by-laws. Subsequently, delineation for services jurisdiction is undertaken as guided by the Community Land Act, 2016, provisions. Thereafter, through rigours public participation, planning is undertaken, the land registered, followed by its conversion to public and private land for public and commercial services, respectively. 4. Article 66 of the CoK,2010, provides that the State regulates land in the interest of land use planning whereas Community Land Act, 2016 guides county government on holding in trust and registration of land on behalf of a community. The draft Marshall Plan for Refugee Settlement (2023-27) provides development solutions that benefit both refugees and host communities. The Refugee Act, 2021 guides on designation of areas for refugee habitation and freedom of movement outside traditional camps as well as the Government of Kenya’s commitment work, commitment to move from refugee camps to specific settlements where refugees will generate their own income and integrate with host communities. It is recommended for application of the various legislative provisions on land-use planning, administration, and management in the proposed Dadaab and Kakuma-Kalobeyei municipalities. 5. The Dadaab and Kakuma-Kalobeyei refugee camps are gazetted for public land use incorporating standing agreements with local communities. The gazettement of the proposed municipalities will be guided by the Community Land Act, 2016, provisions and the survey shall exclude all parcels already in use for public purposes and adjudicated private land. The two-fold integration of refugees and host communities includes (i) conversion of community land to delineate urban areas for public purposes for access to services; and (ii) integration of services and infrastructure to facilitate economic stimulus and enhance liveability. Recommendations i. a review of best practices on urban land administration from the 22 counties with unregistered community land; ii. a comprehensive assessment of land tenure and role of county government at Garissa and Turkana counties; 95 iii. interrogation of the gazetted notices for the Dadaab and Kakuma-Kalobeyei refugee camps; and iv. mapping of reserved urban areas for the proposed Dadaab and Kakuma-Kalobeyei municipalities. 96 Annex 7: ESSA Validation Workshop Summary Kenya Urban Support Program (KUSP2) Summary on ESSA Validation Workshop, Sarova Panafric, March 14th, 2023 No. Question/Comment Response 1. Could the list of interns include legal graduates to help develop and Based on this expressed need, the Council of Governors will make a presentation interpret policy, regulations, land acquisition procedures, by laws etc? for possible consideration of the legal capacity under capacity enhancement program proposed in KUSP2. 2. There was a process of adopting Guidelines on Markets' Development The existing market management guidelines will be reviewed to incorporate & Management where workshops were held under the Guidance of emerging issues, validated and adopted by counties to facilitate sustainable UDD. Kindly advise if this was concluded and if the document is market investments. available? 3. The team’s observation on the need for budgetary provision at ▪ Environment and Social impact trainings and sensitization are factored under Municipalities towards environmental and social impact trainings and component 1 (Investment Project Financing) that will provide technical sensitization etc cannot be over emphasised. Does this fall under any assistance and capacity development support to counties and urban institutions of the conditions? including on (Environment Social Health and Safety) ESHS aspects. ▪ The Urban Development Grant (UIG) will finance core institutional and capacity building activities to address urban governance and development capacity challenges, improving the capacity and performance of the urban institutions and helping them meet the MCs and PSs of the UDG. Basic capacities and systems to be developed relate to environmental and social risk management including climate change among other issues. 4. Is there a standard reporting tool/template for documenting Standard monitoring and reporting tools were not prepared under the KUSP and environment and social issues? If yes, can it be shared? are among the gaps identified. A detailed template will be developed under KUSP2 and form part of the Environment Social Health and Safety Management (ESHSM) manual. Training on use of the tool will be carried out to the environment and social officers. 5. Please clarify if the deployment of staff is at both the county and Yes, based on lessons learnt from KUSP, KUSP2 shall place an obligation to have national government Environmental Officer (2), Social Officer (2) and Health and Safety Officer (1) at the National level (NPCT). On the other hand, it is a minimum condition for 97 municipalities to have dedicated full time Environmental Officer (1) and Social Officer (1) to form part of the CPCT. 6. I appreciate the inclusion of safety issues and DOSHS as key role Based on lessons learnt from KUSP health and safety risks management were not player in capacity development in municipalities. However, their properly managed. Based on the eligible investment menu under KUSP2 the risk services are not readily available in counties, it has been a challenge rating of sub-projects is considered as either low/ moderate risk, but with how will these be addressed? improper management of health and safety issues the risk rating can be substantial. Part of the program recommendations is for the contractors to be trained on ESHS management how will this be facilitated under Therefore, the design of KUSP II will ensure enhanced collaboration with major KUSP2? national institutions such as Directorate of Occupational Health and Safety (DOSHS) and NEMA. DOSHS are in 29 out of the 47 counties. Some DOSHS officers cover 2 or 3 counties. To address this, there will be an organised capacity building of municipality E&S staff before and during program implementation including the hired contractors on OSHA requirements. The safeguards officers can then support on monitoring and supervision of sub- projects to ensure compliance with the health and safety aspects. 7. There has been concerns on adequacy of a framework guiding The ESHSM manual will provide detailed guidance (SOP /templates) on addressing assessment, documentation and enforcement of social issues, need the social risks gaps identified under KUSP1 to strengthen the system. to be enhanced 8. I am observing that the role of Urban Planners in the programme is The session mainly focuses on validation of the Environment and Social System not clear. Could it be an oversight or deliberate? Keeping in mind that Assessment (ESSA) carried out by the Bank E&S specialists and hence the we are talking of development and land issues within an urban space. discussion is biased on environment, social, health and safety aspects and not planning. However, the proposed KUSP II program has a whole result area on resilient urban planning and development control. Further there is a mandatory requirement, under the minimum conditions for result area 2 to have a registered planner as part of the municipality staff and they have defined roles and responsibilities under the program. 9. There is need to build capacity to all CPCT staff on ESHS issues before The ESHSM manual, will be developed and validated by the relevant stakeholders. beginning program implementation. The identified staff at the counties will be trained on key ESHS aspects as provided in the manual. 98 10 In Mandera county, the issue of municipality staffing as per the KUSP2 The KUSP 2 program will incentivise Counties including Mandera to have key staff requirements could present a challenge. The staff at county level are in the municipalities. It is assumed that this incentive will be good enough to have few. Mandera County prioritize key staff. 11 After preparation and submission of Environmental and Social All counties have NEMA representation. Most of the sub-project types are impacts assessments, NEMA takes too long to process the NEMA considered as either low/moderate risk rating and the review process should not licence. How can NEMA facilitate the review and approval process of take long. It is important for the cities/municipalities to closely collaborate with the ESIA under the KUSP2? the NEMA officers at the county level during the planning stages to seek technical advice. Typical lessons learned from implementation of KUSP1 is that the technical design studies are done early during program preparation and ESIA delayed. municipalities should review the timelines for preparation of the required ESIA instruments to allow for early submission to NEMA. Clear guidance on timelines will be provided in the ESHSM manual. 12. Issues on environmental management is wide. How can we enhance When NEMA licences are issued, it comes with conditions that should be adhered supervision of sub-projects including also management and to by the proponent (municipalities) through monitoring of sub-projects. rehabilitation of material sites/borrow areas used by contractors? There is need to allocate ESHS budget at the NPCT and CPCT level to facilitate appropriate ESHS supervision and monitoring and avoid conflict of interest by allowing the contractors to finance this activity. 14. There is a challenge in management of staffing such as the Project This is part of Program design, supervision and contract management and it is Implementation Team (PIT) and the inspection and acceptance team. important to clearly define the role of the CPCT and PIT. How can the municipal staff be safeguarded? Under KUSP1 there was no prescription on compensation of staff Under the proposed KUSP2 the urban institutional grant provides budget for involved in supervision of sub-projects. Sometimes the contractor fuelling the vehicles to facilitate field visits. In addition, there is increase of project was required to pay the supervision team which may compromise the design and supervision cost from 5% to 10% which can take care of the supervision quality of works. There should be clear guidelines on how the team costs. should be compensated and budget allocated. Clear guidelines on use of the project design and supervision cost is outlined as part of the general points to note on the UDG eligible investments and will be detailed in the POM. 99 Under KUSP the quality of supervision was a challenge and the safeguards team could not supervise the works appropriately. It is good practise to promote the independence of the E&S supervision team by allocating provisional sum. 15. There is need to define timelines for achievement of milestones in the The draft result framework earlier shared with counties/cities/municipalities result frame work such as spatial plans, integrated development shows the timelines on when each activity will be achieved. During KUSP2 Program plans, policy documents, staff needed at the municipalities etc. appraisal stage there will be further discussions on when to have the initial Annual Performance Assessment (APA). 16. The ESHSM manual should be clear on the issues related to temporary The manual will provide for E&S screening templates and other guidelines on displacements and relocation, as the management of such risks is a issues related to physical and temporal displacements. challenge at the municipality level. 14. Is it possible to amend the policy documents to allow municipalities It is not possible to amend the policy; the system is in place to ensure counties access their budget directly from the Treasury? There has always demonstrate accountability. been a challenge at the County level to designate the municipal managers as an accounting officer as required by the Law. 15. Focus to policy and capacity building on grievance redress system County Governments/Cities and Municipalities were required to develop Participation around the project area. Grievance Redress mechanisms and establish Grievance Redress committees. What were the efforts in KUSP1 on grievance redress system Quite a good number complied with this. We had cases of Grievances being Plans for the project around public participation, complaint handling referred to the bank, the state department and CoG indicating that there was no mechanisms. proper public sensitization on the established structures which need to be The Commission on Administration and Justice (CAJ) is an institution strengthened in KUSP II. The early involvement of the Commission on that you can leverage for purposes of complaints and grievance Administration and Justice (CAJ) will enhance the capacity of County management. Governments/Cities and Municipalities. 16. My question is on estimation on project beneficiaries. What’s the best This need was well captured and will be prioritized as part of the national level practise of doing this? Please if possible conduct capacity building on capacity support to County Governments/Cities and Municipalities. this. 17. Clarity who constitutes the grievance redress management Details on the GRM structure and procedure will be detailed in the manual committee at the municipality level? including the key members of the grievance redress committee 18. Who is responsible to develop the contractor Environment and Social The contractor will be required to adopt the sub-project ESMP and develop a C- Management Plan (C-ESMP)? ESMP based on the recommendation’s provided in the plans and include any other emerging issues during the project implementation phase. 100 19. What are some of the qualification requirements of the E&S staff at The ESHSM manual will be prepared as an annex to the Program Operational the county level. Manual and will include Terms of Reference (ToR) on the role of the Environment and social officers at the cities/municipality level. 20. Include the operational and maintenance budget of investments after Ensuring proper maintenance of assets is a necessary process. This is captured as the project is implemented. a requirement under component 2, DLI 4 and Performance Standard 9 and will be assessed year two. 101 102 Annex 8: ESSA Consultations Photos ESSA validation workshop Kakuma host community representatives Kakuma refugee camp 3 stakeholders 103 Annex 9: Environmental and Social Systems Assessment National Level Consultations No. Institution Nominated Officer E-mail Address Date Time 1. Directorate of Occupational Safety and Health Mr. Justus Bosire jbosiren@yahoo.com 24.11.22 11-1pm Services (DOSHS) 2. Kenya School of Government (KSG) Dr Antony Kamakia antony.kamakia@ksg.ac.ke 08.12.2022 11-1 pm 3. Kenya School Of Government (KSG) Simon Angote simon.angote@ksg.ac.ke 08.12.2022 11-1 pm 4. National Environment Complains Committee (NECC) Dr, Justry P.L.Nyaberi nyaberico@yahoo.com 08.12.2022 2-4PM 5. National Gender and Equality Commission (NGEC) Carolyn Munyua cmunyua@ngeckenya 13.12.2022 4-5.30pm 1. National Construction Authority Sylvia Essendi s.essendi@nca.go.ke 16.12.2022 10 am 7. National Construction Authority Arch. Juliet Kabere j.kabere@nca.go.ke 16.12.2022 10 am 8. National Construction Authority Cyprian Kiprop c.kiprop@nca.go.ke 16.12.2022 10 am 9. National Construction Authority Walter Kipkemei w.kipkemei@nca.go.ke 16.12.2022 10 am 10. State Department of Social Security and Protection Peter Murigu pwamdizi@gmail.com 18.01.2023 11-1pm 11. Council of Governors Nicodemus Mbwika nicodemus.mbwika@cog.go.ke 19.01.2021 11-1pm 12. Council of Governors Brian Muthoka Brian.muthoka@cog.go.ke 19.01.2021 11-1pm 13. Council of Governors Wendy Mutania Wendymutania.WFNRM@cog.go.ke 19.01.2021 11-1pm 14. Council of Governors Veronica Wanyora Veronica.wanyora@cog.go.ke 19.01.2021 11-1pm 15 National Environment Management Authority Esther Mugure emugure@nema.go.ke 23.01.2023 11-1pm 16. National Environment Management Authority Joseph Makau Makau.nema @gmail.com 23.01.2023 11-1pm 17. National Land Commission Benard Opaa benopaa@gmail.com 01.02.2023 2-3.30pm 18. National Land Commission Christopher Kitonga chriskitonga@gmail.com 01.02.2023 2-3.30pm 19. Commission on Administrative and Justice Edith Imunde karwithaimunde@gmail.com 03.02.2023 11-1pm 20 Commission on Administrative and Justice Rosaline Wanjiru rosalinwanjiru@gmail.com 03.02.2023 11-1 pm 21. State Department of Housing and Urban Arch Francis Owade owadefm@gmail.com 07.02.2023 2-4pm Development (SDHUD) 22. State Department of Housing and Urban Dr. Leah Oyake leahoyake@gmail.com 07.02.23 2-4pm Development (SDHUD) 104 Annex 10: Environmental and Social Systems Assessment County Level Consultations 105 106 107 108 109 110 111 112 113 114 SECOND KENYA URBAN SUPPORT PROGRAM (KUSP2) ENVIRONMENTAL AND SOCIAL SYSTEM ASSESSMENT CONSULTATIONS COUNTY: KIAMBU LOCATION: KIAMBU DATE: 04/11/2022 NAME INSTITUTION POSITION CONTACT (Tel) Email 1. Mary Kirobi County Government of Kiambu 0725025897 mwkirobi@yahoo.com 2. Eng P.M. Wachira KUSP CPCT RE Electrical 0716113459 engpeterwachira@gmail 3. Eng. H.M. Maitha KUSP CPCT ARE Electrical 0700714155 Annielsac05@gmail.com 4. Robert W. Chutha Karuru municipality Board Board Member 0722861692 rchutta@yahoo.co.uk 5. Nancy Wambugu County Government of Kiambu Ag. in-charge Roads 0721485343 wanguwambugu@gmail.com 6. Eng. P.K.Njenga County Government of Kiambu Re Civil Works 0722612867 Kuspre1920@gmail.com 7. Eng Charles Mutunga SDHUD Head, Component 2: Infrastructure mutungacenge@gmail.com 8. Francis Owade SDHUD Safeguards 0721296439 owadefm@gmail.com 9. Dr. Samwel Nyaga State Department of Devolution Social safeguards Officer samuel.nyaga@devolution.go.ke 10. Prof. Caleb Mireri SDHUD Urban Planning Advisor 0722839691 mirericaleb@gmail.com 11. Leah O. Oyake State Department for Housing and Safeguards leahoyake@gmail.com Urban Development (SDHUD) 12. Joan Biwott World bank Social specialist jbiwott@worldbank.org 13. Diana Sirma World Bank Environment Specialist dsirma@worldbank.org 14. Eng. John K. Kinuthia 115 SECOND KENYA URBAN SUPPORT PROGRAM (KUSP2) ENVIRONMENTAL AND SOCIAL SYSTEM ASSESSMENT CONSULTATIONS COUNTY: KISUMU LOCATION: KISUMU DATE: 08/11/2022 NAME INSTITUTION POSITION 1. Amos Nyadie City of Kisumu 2. John Sande City of Kisumu Senior County Director of environment 3. Owino O. Maurice City of Kisumu Director Water 4. Tom Togo NEMA County Director Environment 5. Judy Waturi World Bank Disaster Risk Management and Climate Change 6. Francis Owade State Department of Housing and Urban Safeguard Officer Development 7. Belinda Nyakinya County Government of Kisumu Environment Safeguards 8. Leah Oyake State Department of Housing and Urban E&S safeguards consultant Development 9. Joshua adongo MoH – City of Kisumu CDPH 10. Benard Ojwang County of Kisumu HOD – ENVT CITY 11. Ken K’oyooh County Government of Kisumu Director Environment 12. Eng. Charles Mutunga SDHUD/KUSP Component 2 Head 13. Dr. Samwel Nyaga State Department of Devolution Social safeguards Officer 14. Protes O. Appida National Land Commission County Coordinator 15. Patrick Nyawita City of Kisumu 16. Charles Omollo City of Kisumu Project Coordinator 17. Caleb Mireri State Department of Housing and Urban Urban Planner Advisor Development (SDHUD) 18. Diana Sirma World Bank Environment Specialist 19. Joan Biwott World bank Social Specialist SECOND KENYA URBAN SUPPORT PROGRAM (KUSP2) 116 ENVIRONMENTAL AND SOCIAL SYSTEM ASSESSMENT CONSULTATIONS COUNTY: KWALE COUNTY LOCATION: DIANI DATE: 14/11/2022 NAME INSTITUTION POSITION CONTACT (Tel) Email 1. Joseph Indo County Government of Kwale (CGK) Director Environment and Climate 0723691406 Indo.muli@gmail.com Change 2. Juma Ali Madzitsa CGK Roads and Public Works 0712047279 Juma.madzitsa@gmail.com 3. Mulei Ngui CGK Environmental Officer Richymulei.rm@gmail.com 4. Ali A Budzuma CGK Director, Physical Planning Aabdallah14@gmail.com 5. Nachili H. Zani CGK S.C.D. O zaninachili@gmail.com 6. Mwanaidi M. Hamisi CGK Assistant Engineer, Roads monaidkhamisi@gmail.com 7. Leah O. Oyake State Department for Housing and Safeguards leahoyake@gmail.com Urban Development (SDHUD) 8. Eng Charles Mutunga SDHUD Head, Component 2: Infrastructure mutungacenge@gmail.com 9. Prof. Caleb Mireri SDHUD Urban Planning Advisor 0722839691 10. Francis Owade SDHUD Safeguards 0721296439 11. Simon Wandeto World Bank Environmental Specialist 0721626965 swandeto@worldbank.org 12. Joan Biwott World Bank Social Specialist jbiwott@worldbank.org 13. Keziah Mwanja World Bank Urban Specialist kmwanja@worldbank.org 117 SECOND KENYA URBAN SUPPORT PROGRAM (KUSP2) ENVIRONMENTAL AND SOCIAL SYSTEM ASSESSMENT CONSULTATIONS COUNTY: THARAKA NITHI COUNTY LOCATION: KATHWANA DATE: 17/11/2022 NAME INSTITUTION POSITION CONTACT (Tel) Email 15. Timothy Gituto Njonjo Tharaka Nithi County Government Quantity Surveyor 0702353031 (TNCG) Kathwana Municipality 16. Jonathan Njeru TNCG – Kathwana Municipality Municipality Architect 0722656110 17. Daniel Kithuka TNCG Deputy Director - Urban mdanielkithuka@gmail.com 18. Silas Kimathi TNCG Water Engineer silasmugao@gmail.com 19. Peninah Muriuki National Land Commission County Coordinator 0727834292 20. Fredrick Moruta TNCG Social Development 0720757010 21. Purity Mwendwa TNCG Environmental Safeguards 0700758010 22. Duncan Mwenda TNCG Physical Planner 0706913526 23. Leah O. Oyake State Department for Housing and Safeguards leahoyake@gmail.com Urban Development (SDHUD) 24. Eng Charles Mutunga SDHUD Head, Component 2: Infrastructure mutungacenge@gmail.com 25. Prof. Caleb Mireri SDHUD Urban Planning Advisor 0722839691 26. Francis Owade SDHUD Safeguards 0721296439 27. Simon Wandeto World Bank Environmental Specialist 0721626965 swandeto@worldbank.org 28. Joan Biwott World Bank Social Specialist jbiwott@worldbank.org 118 SECOND KENYA URBAN SUPPORT PROGRAM (KUSP2) ENVIRONMENTAL AND SOCIAL SYSTEM ASSESSMENT (ESSA), WINDOW FOR HOST COMMUNITIES AND THE REFUGEES (WHR) COMPONENT GARISSA COUNTY, MARCH 2, 2023. NAME DESIGNATION EMAIL TEL 1. Abdilatif A. Haret Director Climate change abdilatif846@gmail.com 2. Mary W. Mwangi Director Physical Planning mary.mwangi@garissa.go.ke 0724740236 3. Dubow Sanjab Director donor and public dubow.sanjab@garissa.go.ke participation 4. Muhamed A Bu’ull Director urban muhamedbuul@yahoo.com development 5. Abdullahi I. Gure Director gender, culture gureabdullahi9@gmail.com and social services 6. Isaac Kimitei County Director -NEMA ikimitei@gmail.com 0721541545 119 120 121 122 123 124 Annex 11: System Assessment Questionnaire Core Principle 1: Program E&S management systems are designed to (a) promote E&S sustainability in the Program design; (b) avoid, minimize, or mitigate adverse impacts; and (c) promote informed decision-making relating to a Program’s E&S effects. Bank policy for PforR: Environmental and social management procedures and processes are designed to (a) promote environmental and social sustainability in Program design; (b) avoid, minimize or mitigate against adverse impacts; and (c) promote informed decision-making relating to a Program’s environmental and social impacts. Program procedures will: Operate within an adequate legal and regulatory framework to guide environmental and social impact assessments at the program level. Incorporate recognized elements of environmental and social assessment good practice, including (a) early screening of potential effects; (b) consideration of strategic, technical, and site alternatives (including the “no action� alternative); (c) explicit assessme nt of potential induced, cumulative, and trans-boundary impacts; (d) identification of measures to mitigate adverse environmental or social impacts that cannot be otherwise avoided or minimized; (e) clear articulation of institutional responsibilities and resources to support implementation of plans; and (f) responsiveness and accountability through stakeholder consultation, timely dissemination of program information, and responsive grievance redress measures. Key planning elements Guiding questions The assessment considers, as may be applicable or relevant under particular PforR Program circumstances, to what degree the PforR Program systems: Operate within an adequate legal and regulatory i. What relevant E&S laws, regulations, procedures, decrees, or other mandatory legal instruments are framework to guide E&S impact assessments, applicable to the Program activities and associated impacts and risks. (It is important to note that an mitigation, management and monitoring at the ESSA should not be limited to the legal and policy framework for a single leading agency such as the PforR Program level. SDHUD). ii. Do the Program implementing agencies have the legal and/or regulatory authority to commit resources and implement actions necessary for effective E&S assessment and management of impacts and risks? iii. If not, are critical changes to the legal or regulatory framework needed before the operation can proceed? iv. If a new Program is being proposed, has legal and regulatory authority been clearly established? v. Do the current systems include mechanisms, where appropriate, to ensure objective or independent assessments of E&S impacts? vi. How will E&S aspects be coordinated between the implementing agencies, municipalities, and the various compliance and other mandate holders, such as, among others, NEMA, DOSHS, NLC, Ministry of Lands, NGEC etc.? vii. Does the implementing agency have access to adequate and qualified capacity (in-house or outsourced) to carry out E&S assessments and management of E&S risks and impacts? Incorporate recognized elements of good practice i. Do applicable procedures require E&S screening or assessment of activities associated with the in E&S assessment and management including: proposed PforR operation that presents risks? 125 ii. Does screening lead to E&S assessments that are proportional in depth and scope to the identified Early screening of potential impacts. adverse impacts and risks (e.g. does it apply risk categories to determine the depth and breadth of assessments?) iii. Are screening procedures comprehensive? Do they include specific consideration of the full range of E&S risks, including among others biodiversity impacts, land use changes, changes to air or water quality, management of hazardous materials, social risks such as land acquisition; Physical and Economic displacement, GBV/ SEA-H; spread of communicable diseases; insecurity, labour influx and related impacts, Forced and child labor? iv. Do screening procedures include the opportunity for stakeholder involvement in the identification of priority E&S risks and impacts? v. Do these requirements clearly apply to the Program proposed for support by the PforR operation? Has screening for, and estimation of E&S effects been part of the PforR operation? vi. Does this screening process consider opportunities to enhance the range and reach of Program benefits? vii. Is the E&S screening conducted in an integrated manner, so that both E&S risks and impacts are identified early on? viii. Is the scope of Program screening broad enough to cover all potential significant E&S issues? Consideration of strategic, technical, and site i. Do the applicable systems require the consideration of alternatives or other forms or options alternatives (including the “no action� alternative) assessments to avoid or minimize potential environmental and social impacts and risks? For example, are strategic, technical, and site-selection alternatives considered, including a “do nothing� option? ii. Which, if any, other forms of strategic planning, such as sectoral master planning (e.g. urban, natural resources, coastal zones, informal settlements, public land), are used to identify E&S risks and impacts? iii. Does Program design (ie identification of activities or expenditure) consider the relative environmental and social costs and benefits of feasible alternatives? Explicit assessment of potential induced, i. Do Program procedures require the consideration of induced, cumulative, or transboundary impacts cumulative, and trans-boundary impacts. as part of the screening, options assessments, and/or Environmental and Social Impact Assessment? ii. Do the procedures allow for, or promote, the use of tools such as strategic E&S impact assessments to help identify and evaluate such impacts? iii. Do the systems require such issues to be managed if they are relevant to the Program? iv. What is the broader Plan/base document that is referred to while selection and approval of site level infrastructure proposed by the Municipality? v. Are Program activities set within Spatial Plans/master plans/Integrated Infrastructure Plan that provide an operational framework for understanding and managing such impacts? vi. Do the procedures include measures for evaluating critical global urban land management related issues such as trans-boundary pollution, biodiversity loss, international waterway, climate change, informal settlement, and involuntary resettlement? vii. Does the assessment provide adequate opportunity to engage stakeholders on induced, cumulative, and trans-boundary impacts? 126 viii. Do Program systems require assessing the risks from natural disasters or human-induced emergencies? Identification of measures to mitigate adverse i. Do the applicable systems effectively promote the application of mitigation hierarchy (e.g. avoid, E&S risks and impacts that cannot be otherwise minimize, mitigate, compensate/offset)? avoided or minimized. ii. Do the E&S management plans provide sufficient operational detail to guide effective implementation? Are implementing entities clearly identified? iii. Are mitigation/management measures called for under the system relevant and realistic (e.g. not requiring disposal or hazardous wastes in a licensed facility)? iv. Do management plans require time-bound actions? Do they have clear targets and clear assignment of responsibilities for implementation and for monitoring/oversight? v. Do applicable systems include clear and appropriate repercussions and remedies in case E&S mitigation measures are not applied? Clear articulation of institutional responsibility i. Are implementing entities responsible for E&S management clearly identified? How is the and resources to support the implementation of responsibility assigned at National, county and Municipality level? Is there a clear institutional plans. structure available with specific terms of reference? ii. Are institutional/organization responsibilities for E&S management supported by adequate human and financial resources to implement environmental and/or social management (includes occupational health and safety aspects) procedures or plans? iii. Are Program entities responsible for E&S aspects adequately staffed-in terms of skills, qualification, and the number of personnel – to ensure effective administration, planning, design, implementation, and monitoring functions? iv. If the Program does not build sufficient in-house, what reliable alternative arrangements (e.g. coordination with other agencies, use of qualified consulting services) are available to promote effectiveness? If none, what needs have been identified for supplementary support and/or capacity strengthening? v. If the Program depends on interagency collaboration for delivery of services or for managing E&S effects, or if the multi-jurisdictional reach or scope of the Program creates divided responsibilities for implementation, what structural arrangements are in place to ensure effective and timely coordination? vi. Is there a coordinating body that is empowered to resolve coordination issues or delays in required actions? vii. Are the Progam entities effective at applying their E&S frameworks in practice? viii. Are “adaptive management� processes in place to respond to unanticip ated E&S management issues that may arise? ix. Do Program entities have access to contingency funds for unexpected impacts or budget shortfalls? x. Are processes and procedures related to E&S management routinely, effectively, and equitably implemented? Responsiveness and accountability through i. What mechanisms are available for Program entities to use to ensure that stakeholders are identified stakeholder consultation, timely dissemination of and that their views, concerns, and suggestions are systematically considered? the PforR information, and responsive GRM. ii. Does the borrower consult with stakeholders on various aspects of Program design and operation? 127 iii. Is information relating to E&S effects made available to the people or communities that are potentially affected? Do Program implementation arrangements include measures for responsive communications or relevant E&S concerns? iv. Do Program implementing entities promote the credibility and accountability of E&S management systems? For example, do they use external monitoring of implementation or other forms of oversight? v. Does the system include mechanisms for independent oversight and monitoring where appropriate? vi. Does the Program have accessible GRMs with established procedures for submission or grievances? Do the established GRMs accept and process grievances relating to E&S management issues? vii. Are there established routines and standards for responding to grievances received? Are records available? Does the management of implementing agencies act on identified issues consistently and objectively? viii. Is there a system of maintaining records and tracking Grievances? ix. Do consultations processes promote communication and informed decision-making? Do those who may be affected have prior access to information about the topics for consultations? x. Are consultations conducted early enough that stakeholder feedback is considered in the design of new or changing Program activities? Are consultations conducted in a manner that encourages an open exchange of views? xi. Do consultations include a representative cross-section of groups affected by the Program (including women, Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities, ethnic minorities, the poor, or other groups that might be under-represented)? xii. Does the sampling capture jurisdictional or geographical diversity? Core Principle 2: Program E&S management systems are designed to avoid, minimize or mitigate adverse impacts on natural habitats and physical cultural resources resulting from the Program. Program activities that involve the significant conversion or degradation of critical natural habitats or critical physical cultural heritage are not eligible for PforR financing. Bank policy for PforR: Environmental and social management procedures and processes are designed to avoid, minimize and mitigate against adverse effects on natural habitats and physical cultural resources resulting from Program. As relevant, the program to be supported: Includes appropriate measures for early identification and screening of potentially important biodiversity and cultural resource areas. Supports and promotes the conservation, maintenance, and rehabilitation of natural habitats; avoids the significant conversion or degradation of critical natural habitats, and if avoiding the significant conversion of natural habitats is not technically feasible, includes measures to mitigate or offset impacts or program activities. Takes into account potential adverse effects on physical cultural property and, as warranted, provides adequate measures to avoid, minimize, or mitigate such effects. Key planning elements Guiding questions Identify and screen for adverse effects on i. Has Program screening identified potential impacts on modified, natural, or critical natural habitats? potentially important biodiversity and cultural ii. Will the Program activities affect environmentally sensitive habitat areas with local importance, such as streams, wetlands, ponds, and vegetated riparian areas? 128 resource areas and provide adequate measures to iii. If such impacts involve the significant conversion or degradation of critical natural habitats, have the avoid, minimize, or mitigate adverse effects. activities been excluded from the Program? iv. Does screening include the use of the best available science (e.g. reference to authoritative source materials such as maps, lists of threatened or endangered species prepared by recognized experts, direct advice from recognized experts, advice from peer-reviewed technical literature) to inform the assessment of potential impacts? v. Are Program activities planned and carried out in the context of land use or other management plans that identify sensitive habitat areas? vi. Is screening at a sufficient level of detail and granularity to identify the location and geographical extent of natural and critical habitats? vii. Would Program activities lead to the fragmentation of existing habitat areas, both at the level of localized Program activities and at larger landscape levels? viii. Do management plans require appropriate conservation and mitigation measures to be in place, including those required to maintain ecological services? Support and promote the protection, conservation, i. Does the Program include management measures to protect, conserve, or rehabilitate habitats that are maintenance, and rehabilitation of natural at risk? Are these measures consistent with recognized international good practice? habitats. ii. Do management systems include measures to avoid, restrict, or otherwise forbid the introduction of exotic or invasive species that may threaten ecosystems or value? iii. Are monitoring measures in place to determine the extent to which habitats are affected by the Program? iv. If Program activities affect protected areas are such activities consistent with approved and up-to- date protected area management plans? v. Have the relevant management authorities and other key stakeholders for such protected areas been consulted or otherwise involved in decisions that may affect the legal status of habitat values of the area? vi. If the Program involves any support for establishing forest plantations or other forest management activities for conservation, forest regeneration, or non-timber forest production purposes, does it do so in a manner consistent with internationally recognized standards of responsible, sustainable forest management and use? Avoid significant conversion or degradation of i. Are arrangements in place to ensure that significant conversion or degradation of critical natural critical natural habitats (modified habitats, natural habitats does not occur and that Program activities do not otherwise contravene international are defined as in ESS 5 in the Bank’s ESF) environmental agreements relating to natural habitats or forests? ii. When available data are insufficient to determine the extent or severity of biodiversity impacts, are new biodiversity surveys or inventories, conducted by qualified individuals or organizations, required as part of the Environmental Impact Assessment process? iii. Are appropriate measures in place to ensure that incidents of non-compliance are dealt with in a timely and effective manner (e.g. through work stoppage, penalties or other legal remedies)? 129 If avoiding the significant conversion of natural i. If Program activities may cause conversion or degradation of non-critical natural habitats, do habitats is not technically feasible, include Environmental Impact Assessment procedures include considerations of measures to avoid or measures to mitigate or offset the adverse impacts minimize the severity of impacts (for example, through the systematic consideration of viable of the PforR Program activities. alternatives)? ii. Do plans require appropriate conservation offset measure to be in place, including measures to maintain ecological services? Take into account potential adverse effects on i. Does the screening review involve careful attention to avoiding impacts on resources of physical cultural property and provide adequate archaeological, paleontological, historical, architectural, religious, aesthetic, or other cultural measures to avoid, minimize or mitigate such significance? effects. ii. Is the mitigation hierarchy principle applied in the management of potential adverse impacts on the physical cultural property? iii. Are management measures in place to avoid, minimize or mitigate such effects? iv. Do procedures require the use of authoritative source materials or field-based surveys to identify existing physical cultural resources before works commence? v. Do borrower systems include “chance find� procedures to take effect whenever Program activities result in the discovery of, or disturbance to, physical cultural resources? Core Principle 3: Program E&S management systems are designed to protect public and worker safety against the potential risks associated with the construction and/or operation of facilities or other operational practices under the Program; exposure to toxic chemicals, hazardous wastes, and otherwise dangerous materials under the Program; and reconstruction or rehabilitation of infrastructure located in areas prone to natural hazards. Bank policy for PforR: Environmental and social management procedures and processes are designed to protect public and worker safety against the potential risks associated with (a) construction and/or operations of facilities or other operational practices developed or promoted under the program; (b) exposure to toxic chemicals, hazardous wastes, and otherwise dangerous materials; and (c) reconstruction or rehabilitation of infrastructure located in areas prone to natural hazards. Promotes community, individual, and worker safety through the safe design, construction, operation, and maintenance of physical infrastructure, or in carrying out activities that may be dependent on such infrastructure with safety measures, inspections, or remedial works incorporated as needed. Promotes use of recognized good practice in the production, management, storage, transport, and disposal of hazardous materials generated through program construction or operations; and promotes use of integrated pest management practices to manage or reduce pests or disease vectors; and provides training for workers involved in the production, procurement, storage, transport, use, and disposal of hazardous chemicals in accordance with international guidelines and conventions. Includes measures to avoid, minimize, or mitigate community, individual, and worker risks when program activities are located within areas prone to natural hazards such as floods, hurricanes, earthquakes, or other severe weather or climate events. Key planning elements Guiding questions Promote adequate community, individual and i. Does the Program have a legal framework that addresses and promotes workplace safety? worker health, safety and security through the safe ii. Are there mandatory measures that compel contractors and facility operators to operate equipment design, construction, operation, and maintenance and facilities in a manner that protects individuals and communities? of Program activities, or, in carrying out activities iii. Does the Program include adequate measures to protect people and the environment form the effects that may be dependent on existing infrastructure, of hazardous or toxic materials that are used in construction and production processes or wastes that are generated as a by-product of construction or facilities operations? 130 incorporate safety measures inspections or iv. Does the borrower require measures to help protect individuals and/or communities from violence, remedial works as appropriate. intimidation, harassment, criminal activity or other negative interactions with contractors, laborers, operators, or other workers associated with a project activity? Promote measures to address child and forced i. Does the borrower have specific laws and regulations to avoid the use of child and forced labor in the labor. implementation of Program activities? ii. Are contractors required to prepare and implement a child protection policy and sign clauses on child labour and forced labour. Promote the use of the recognized good practice i. Does the borrower have specific laws, regulations, procedures, standards to effectively evaluate and in the production, management, storage, transport, manage the potential effects of hazardous or toxic materials in the workplace? and disposal of hazardous materials generated ii. Are qualified technical experts engaged for the design, construction supervision, operation and under the PforR. maintenance of all infrastructure that may pose a significant risk to public safety (including periodic safety inspections)? iii. Does the Program include safety measures and standards for emergency preparedness for pre- existing civil works or works under construction that pose potential hazards to people or the environment? iv. Are emergency preparedness plans implemented and periodically reviewed? v. If an emergency preparedness plan is deficient, what safety measures or remedial works do Program entities need to undertake? Promote the use of integrated pest management i. Where relevant, do Program systems promote the use of integrated pest management practices to practices to manage or reduce the adverse impacts manage or reduce pests or disease vectors? of pests or disease vectors. ii. Does the Program promote reducing the use of hazardous synthetic chemical pesticides? iii. Does the Program include appropriate technical guidelines and training for the safe production, storage, transport, use and disposal of hazardous pesticides or other chemicals in accordance with international conventions? Provide training for workers involved in the i. What procedures are in place to induct and train workers on all aspects of handling hazardous production, procurement, storage, transport, use, chemicals? and disposal of hazardous chemicals in ii. Have past training practices been sufficient in terms of technical scope and depth? Are workers able accordance with the relevant international to implement good practice in the workplace? guidelines and conventions. iii. Are there systematic constraints to the application of good industry practice in these areas? Include adequate measures to avoid, minimize, or i. As relevant, does the Program include measures to ensure that people or the environment would be mitigate community, individual, and worker risks put at increased risk from natural hazards such as flooding, earthquakes, earthquakes, landslides, when the PforR Program activities are located in severe weather or climatic events, or other disasters? areas prone to natural hazards such as floods, ii. How does the borrower assess the climate change risks associated with Program activities such as the hurricanes, earthquakes, or other severe weather estimation of GHG emissions or the inclusion of appropriate mitigation and/or adaptation measures or affected by climate events. under the PforR operations? 131 Core Principle 4: Program E&S systems manage the land acquisition and loss of access to natural resources in a way that avoids or minimizes displacement and assists affected people in improving, or at the minimum restoring, their livelihoods and living standards. Bank policy for PforR: Land acquisition and loss of access to natural resources are managed in a way that avoids or minimizes displacement, and affected people are assisted in improving, or at least restoring, their livelihoods and living standards. As relevant, the program to be supported: Avoids or minimizes land acquisition and related adverse impacts; Identifies and addresses economic and social impacts caused by land acquisition or loss of access to natural resources, including those affecting people who may lack full legal rights to assets or resources they use or occupy; Provides compensation sufficient to purchase replacement assets of equivalent value and to meet any necessary transitional expenses, paid prior to taking of land or restricting access; Provides supplemental livelihood improvement or restoration measures if the taking of land causes loss of income-generating opportunity (e.g., loss of crop production or employment); and Restores or replaces public infrastructure and community services that may be adversely affected (Program activities for which the borrower’s land acquisition and resettlement (LAR) processes have significant g aps with this principle, or for which the borrower lack sufficient capacity to manage LAR impacts in a manner consistent with this principles, should not be considered eligible for the PforR Financing regardless of the number of people affected, unless supplemental arrangements are agreed with the Program authorities and endorsed by the Regional Standard Advisor). Key planning elements Guiding questions Avoid or minimize land acquisition and related adverse i. What’s in place to ensure that the program does not result in compulsory acquisition of impacts. land; displacement of people or their economic activity? Or that it would not restrict them from accessing resources that may be located on the project site? ii. What requirements are in place for identification and mitigation of impacts under the program? iii. Does the program screen all planned activities to determine whether they may require involuntary taking of land, relocation of residence or businesses or restrictions on access to natural resources? iv. What measures are in place to ensure individual and communities are not forcibly evicted from land that is required for the program? Identify and address economic or social impacts caused by i. What measures are in place to identify or recognize that an area intended for the project is land acquisition or loss of access to natural resources, a communal property or is customarily claimed or is used by squatters or belongs to including those affecting people who may lack full legal Indigenous groups and what do you do about impact on such groups? rights to resources they use or occupy. ii. How does the program deal with the identification and mitigation impacts on informal users or occupiers of land? iii. Are Resettlement Action Plans or Livelihood Restoration plans Prepared? iv. Who is responsible for review and approval of RAPs? v. Do the ARAPs clearly outline responsibilities to prepare, implement, monitor RAP activities and audit RAP completion? 132 vi. Are these responsibilities aligned with provisions in applicable laws e.g., in the management and administration of land as mandated by the Land Act 2012 and ensuing regulations? Provide compensation sufficient to purchase replacement i. What compensation arrangements are in place for land and other assets under this assets of equivalent value and to meet any necessary program? E.g. Do you consider the replacement cost when land acquisition or physical transitional expenses, paid before taking land or restricting relocation is required? If not, can the program provide supplemental payments to meet this access. requirement? ii. Are transitional expenses allowed under the borrower’s systems? If not, are there mechanisms to mobilize additional resources to support this requirement? Restore or replace public infrastructure and community In case of physical relocation, what provisions are there to restore or replace public infrastructure services that may be adversely affected by the Program. lost or damaged because of Program activities? If not, what mechanisms are in place to address such concerns under the Program. Include measures in order for land acquisition and related i. What are the requirements for the participation of the program's affected people? activities to be planned and implemented with appropriate ii. What kind of information do you give program affected people to enable them make disclosure of information, consultation, and informed informed decisions? participation of those affected. iii. What happens in the event complaints/grievances or disputes arise under the program? What measures are in place to ensure that these complaints/grievances are redressed? Core Principle 5: Program E&S systems give due consideration to the cultural appropriateness or and equitable access to, Program benefits, giving special attention to the rights and interests of Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities, and to the needs or concerns of vulnerable groups. Bank policy for PforR: Due consideration is given to cultural appropriateness of, and equitable access to, program benefits giving special attention to rights and interests of Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities and to the needs or concerns of vulnerable groups. Program procedures will: Undertakes free, prior, and informed consultations if Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities are potentially affected (positively or negatively) to determine whether there is broad community support for the program. Ensures that Indigenous Peoples can participate in devising opportunities to benefit from the exploitation of customary resources or indigenous knowledge, the latter (indigenous knowledge) to include the consent of the Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities. Gives attention to groups vulnerable to hardship or disadvantage, including as relevant the poor, the disabled, women and children, the elderly, or marginalized ethnic groups. If necessary, special measures are taken to promote equitable access to program benefits. Key planning elements Guiding questions Undertake meaningful consultations if the i. Do consultations include a representative cross-section of groups affected by the Program (including Indigenous Peoples/Sub-Saharan African women, Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Historically Underserved Traditional Local Communities, or other ethnic minorities, the poor, or other groups that might be under represented)? Communities are potentially affected (positively ii. What are the efforts made at National, county and site level to identify the presence of different or negatively), to determine whether there is social, cultural, religious, and vulnerable groups and ensure their participation? broad community support for the PforR Program iii. Does the screening tools include; common property resources, customary or traditional rights to land activities. or resource use, and the rights of Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities? 133 Ensure that Indigenous Peoples/Sub-Saharan i. Does the sampling capture jurisdictional or geographic diversity? African Historically Underserved Traditional ii. Do Program entities regularly review and consider consultation results to obtain or broaden Local Communities can participate in devising community support? opportunities to benefit from the exploitation of iii. Does the Program exclude activities involving: adverse impact on natural resources to which customary resources and indigenous knowledge, Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities, the latter (indigenous knowledge) to include the have traditional ownership or customary use rights; resettlement from or restriction to such consent of Indigenous Peoples/Sub-Saharan communities’ access to such lands; or the commercial exploitation of Indigenous Peoples/Sub - African Historically Underserved Traditional Saharan African Historically Underserved Traditional Local Communities, cultural heritage? Local Communities. iv. Are vulnerable groups (persons with disability, elderly, youth) provided with access to Program benefits? If so, how is this achieved? Give attention to groups of vulnerable to hardship i. What considerations are given to distributional equity, affordability, and cultural or gender or discrimination, including, as relevant, the poor, constraints to access or participation? How are women and the elderly considered? How are the the disabled, women and children, the elderly, occupants of the land or building with no formal title or claims considered? ethnic minorities or other marginalized groups; ii. Does the incentive structure within Program agencies promote outreach measures to encourage and if necessary, take special measures to promote equitable and affordable access to Program benefits? equitable access to PforR Program benefits. iii. Does it consider how to alleviate cultural, financial, or physical barriers that hamper the participation of socially marginalized or disadvantaged groups? What are the barriers? What measures are in place to reduce these barriers? Core Principle 6: Program E&S systems avoid exacerbating social conflict, especially in fragile states, post-conflict areas, or areas subject to territorial disputes. Bank policy for PforR: Avoid exacerbating social conflict, especially in fragile states, post-conflict areas, or areas subject to territorial disputes. Considers conflict risks, including distributional equity and cultural sensitivities. Key planning elements Guiding questions i. Is the Program being implemented in areas of recognized fragility or in post-conflict zones? If so, Consider conflict risks, including distributional what special risks does this context present regarding the achievement of E&S objectives and equity and cultural sensitiities. outcomes? ii. Is the Program being implemented in areas of boundary dispute, land title disputes or disputes related to access to natural resources? If so, what special risks this program's actions may reinforce? iii. Could the Program contribute in any way to underlying tensions or civil strife by reinforcing inequities or grievances? iv. Would support for the Program in any way prejudice one party’s claims to inland or territorial disputes? v. Do the screening and design or Program activities consider the risks of creating or exacerbating social conflict, especially in fragile states, post-conflict areas, or areas subject to territorial or jurisdictional dispute? vi. Are Program agencies open to discussion with the Bank and consultation with stakeholders on potentially sensitive issues? 134 The enabling environment 1. What legal and regulatory frameworks guide the institution (s) in fulfilling its environmental, social, health and safety mandates? 2. What are the institutional mandate for environmental, social, health and safety effects management, in the operation? 3. What institutional compliance enforcement measures are in place for management of environmental, social, health and safety effects? 4. Are there inter-agency relationships that facilitate effective environmental (including health and safety) and social management? Who coordinates such relations? 5. Is there institutional support for citizen engagement initiatives? Individual skills assessment/resources 1. What institutional E&S technical capacity exists? 2. Is there an institutional budget for management of environmental and social effects? Organizational capacity/performance 135 1. Is there an operational county/urban boards environmental and social management system? Including ▪ A sound E&S Policy endorsed by management; ▪ A system for identifying and managing E&S impacts; ▪ Adequate and qualified personnel for effective E&S management; ▪ Support from the senior leadership on E&S risk management ▪ Frameworks and Plans for managing E&S effects, including land acquisition, stakeholder engagement, grievance management, OHS etc 2. Are institutional E&S implementation guidebooks/manuals with guidelines in place? 3. Are there ES training modules and manuals for the ES staff? 4. Do train-the-trainer initiatives on E&S management exist within the institution? 5. What institutional mandate and capacity exists for land acquisition and resettlement? 6. What measures and capacity are in place to carry out meaningful consultations and stakeholder engagements? 7. What mechanisms are in place to ensure adequate opportunity for affected people to raise complaints or grievances and to have those concerns timely addressed? 8. How will the institution facilitate or encourage transparency and accountability during implementation? 9. How often does the institution engage in E&S gap analysis to identify major capacity constraints and needs of its interventions (not limited to Bank funded operations)? 10. What institutional capacity exists to conduct requisite environmental and social assessments to agreed quality and standards, upon Program effectiveness? 11. What institutional capacity exists to supervise and monitor ESMP for project implementers to ensure compliance and results are achieved? 12. What institutional capacity exists to respond to ESHS compliance or management issues based on Program progress reports and results? This includes remedial actions and resources to be deployed in response to issues flagged. Specialist Institutions: NEMA, DOSHS, NLC, NCA, CRA 1. What is the entity’s mandate as related to the ES risk management? 2. Based on the institutional mandate, what role can the institution play to deliver or enhance the delivery of the KIDUSP Program? 3. Are technical resources available to support counties/urban boards to manage the E&S risks? 4. What institutional capacity exists to support counties/urban boards on E&S management? 5. What are the staffing numbers of the relevant ES staff at the devolved units, and are they resourced to deliver on their mandate? 6. Elaborate on coordination/synergy with other key agencies in the urban sector. 7. What citizen engagement and participation mechanisms are in place at the entity and how effective are they? 136 8. What feedback and grievance redress mechanisms are in place at the County/Entity and how effective are they? 9. How does the entity handle grievances/issues relating to projects from the members of the public? 10. What has been the entity’s experience (positive and negative) of World Bank funded projects in the management of E&S issues? 11. Propose key recommendations for adoption in the KIDUSP program based on lessons learnt from implementation of related projects. 137 138