A Hand Up, Not a Handout: Third-Party Funding and the Fight for Climate Justice in Kenya
The air hung heavy with the smell of parched earth and desperation. For Mama Akinyi, a small-scale farmer in Siaya, the endless drought isn’t just a weather report; it is a death sentence for her family’s livelihood. Lambwe river, once a life-giving artery, is now a dusty crack in the ground. Her crops have withered, her savings are depleted, and her hope is fading fast.
Mama Akinyi knows that the distant factories, spewing smoke from another continent, were part of the reason. She heard about climate change on the radio, but to her, it felt like an abstract problem with a very concrete, painful reality. She attributes her family's struggle to a larger issue, a global injustice in which the people who contributed the least to the problem were suffering the most. But what could a poor widow from a Kenyan village do against a global corporation? Where could she find the money to hire a lawyer, to commission scientific reports, or even to file a case? The courts seemed impossibly far away, a place for the rich and powerful, not for someone like her.
This is the harsh reality for countless climate-vulnerable Kenyans. Their constitutional right to a clean and healthy environment is meaningless without the means to defend it. Litigation third-party funding (TPF) offers a powerful solution to this injustice, providing a lifeline to those who have a strong case but lack the financial means to fight for their rights.
TPF: a tool for climate justice
TPF is an arrangement where a third-party funder, with no prior interest in the dispute, provides financial assistance to a litigant to cover legal costs. This is a non-recourse arrangement, meaning the litigant owes nothing if the case is lost. This model is uniquely suited to the challenges of climate litigation for several reasons:
Leveling the Playing Field: Climate litigation often pits small, under-resourced communities against powerful multinational corporations or state entities. TPF provides the necessary capital to hire expert lawyers, commission scientific reports from climate experts, and cover extensive court fees. It ensures that the merits of a climate claim—the scientific evidence and legal arguments are judged on their own terms, not on the financial strength of the parties involved.
Risk Transfer: Climate litigation is inherently complex, expensive, and high-risk. Cases can take years to resolve and the outcome is often uncertain. TPF transfers this financial risk from the affected communities to the funder. This allows farmers' cooperatives, community-based organizations, or environmental NGOs to pursue critical environmental claims without risking their limited assets.
Fostering Accountability: By enabling legal action, TPF can hold polluters accountable for their environmental damage. The threat of litigation, backed by adequate funding, can incentivize corporations to adopt more sustainable practices and compensate communities for harm already inflicted. This aligns with the principle of polluter pays and reinforces corporate environmental responsibility.
Overcoming legal hurdles
The legal doctrines of maintenance and champerty, which prohibit TPF, are a relic of a different era. They were designed to prevent frivolous lawsuits and exploitation, not to hinder legitimate climate justice claims. Kenya's legal system, rooted in the Constitution's progressive vision, has a duty to re-evaluate these doctrines in light of modern challenges.
A regulatory framework for TPF is crucial to ensure it serves the interests of justice and not just profit. This framework must address:
a) Conflict of Interest: Guidelines should be put in place to ensure funders do not unduly influence legal strategy or settlement negotiations, preserving the litigant's autonomy.
b) Transparency: Disclosure of funding arrangements to the courts and opposing parties will ensure the integrity of the legal process.
c) Fairness: Regulation must cap the funder's return to prevent the exploitation of vulnerable communities, ensuring that the majority of any settlement or damages goes to the victims of climate injustice.
By reforming its legal framework to permit and regulate TPF, Kenya can lead the way in using innovative financial mechanisms to secure the constitutional rights of its most vulnerable citizens. It would send a clear message that climate injustice will not go unpunished and that the right to a clean environment is a right for all, not a privilege for a few.
A call to action for climate justice
The time for climate justice is now. Communities least responsible for climate change bear the heaviest burdens of its impact. But you do not have to fight this battle alone. If you or your community has a strong case for a climate action suit, you have the right to demand accountability and we are here to stand with you. At CM Advocates LLP, we are committed to helping you turn your voice into action. Reach out to us at esg@cmadvocates.com.
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