Environmental Management and Co-ordination Act

This Act may be cited as the Environmental Management and Co-ordination Act.

Defines oil to include "crude oil, refined oil, diesel oil, fuel oil and lubricating oil."

Every person in Kenya is entitled to a clean and healthy environment, must safeguard and enhance it, and must cooperate with state organs to protect and conserve the environment and ensure sustainable use of natural resources.

Every person has the right to access information relating to implementation of this Act held by the Authority, lead agencies or other persons, subject to access-to-information law; a person seeking such information must apply to the Authority or a lead agency, and the Authority or a lead agency may grant access on payment of the prescribed fee.

Section 10 establishes the Board composition, qualifications, terms, meeting/quorum rules, voting rules, appointment processes for vacancies and acting Director-General, duties of the Director-General and Directors, and limits on Secretary voting.

The Authority has the power to control, supervise and administer its assets.

The Authority may direct a lead agency to perform environmental duties (after reasonable notice) and, if the lead agency fails, the Authority may perform the duties and recover expenses as a civil debt; failing to comply with subsection (1) is an offence.

The Authority must regulate its own procedure, subject to this Act.

The Director-General and the Directors of the Authority must be paid salaries and allowances determined by the Board on the advice of the Salaries and Remuneration Commission.

The Authority may, by resolution, delegate any of its powers, functions or duties to a committee or to any member, officer, employee or agent, subject to this Act and whether generally or in a particular case.

The common seal of the Authority must be kept in custody as the Authority directs and may only be used on the Authority's order.

Members, officers, employees, agents and persons acting on their directions are not personally liable for actions done bona fide in executing the Authority's functions, powers or duties.

The Authority remains liable to pay compensation or damages to any person for injuries to the person, their property or interests caused by the Authority's exercise of powers or by failure of works.

There shall be a general fund of the Authority which shall vest in the Authority.

The Authority's financial year is the period of twelve months ending on the thirteeth June each year.

The Authority must prepare annual revenue and expenditure estimates at least three months before each financial year, approve them before the year starts, submit them to the Cabinet Secretary for approval, and may not increase them after Cabinet Secretary approval without the Cabinet Secretary's consent.

The Authority must keep proper books and records of its income, expenditure and assets, include specified statements in annual accounts, and ensure those accounts are prepared, audited and reported in accordance with Articles 226 and 229 of the Constitution and the Public Financial Management Act (Cap. 412A).

Establishes the National Environment Trust Fund and provides that it is administered by a Board of five Trustees appointed by the Cabinet Secretary.

Establishes the National Environment Restoration Fund ("The Restoration Fund"), vests it in the Authority, requires administration by the Director-General, allows the Cabinet Secretary to issue orders in the Gazette to levy funds, and lets the Authority determine proportions of fees or deposit bonds.

The Authority may invest its funds in approved securities, place surplus money on deposit after consulting the National Treasury, and dispose of assets in specified ways including current-asset disposals in the normal course of business, disposals provided for in approved annual estimates, or disposals by sale with specified approvals.

The Director-General must submit an annual financial report to the Cabinet Secretary no later than three months after the end of the financial year; the Cabinet Secretary must lay that report before the National Assembly within fourteen days after the next sitting following receipt.

The Authority must create a register of activities/industrial plants likely to cause significant environmental harm; the Cabinet Secretary (Finance) may require deposit bonds; the Authority must refund bonds within six months if good practice is shown or may confiscate bonds and cancel licences for breaches; proceeds go to the Restoration Fund and interest benefits the Authority; operators dissatisfied with confiscation may go to court.

The Governor must constitute a County Environment Committee by Gazette notice and the committee's composition, appointments and terms for certain members are specified.

County Environment Committees must be responsible for the proper management of the environment within the county for which they are appointed.

Establishes the National Environmental Complaints Committee membership, terms of office (three years, eligible for reappointment, max two terms), grounds for vacation or removal, replacement rules, temporary substitutes for incapacity, and that the Committee regulates its own procedure.

Section 32 sets out the Functions of the Complaints Committee concerning allegations or complaints against any person or against the Authority in relation to the condition of the environment in Kenya.

Certain failures to comply with requirements of, obstructing, or giving false or misleading information to the National Environmental Complaints Committee are offences punishable by fines.

The Chairperson and members of the Complaints Committee are exempt from legal proceedings for actions done bona fide in performing the Committee's duties under this Act.

Members of the Complaints Committee who have a direct or indirect interest in a matter must disclose it at the meeting as soon as reasonably practicable, must not participate in consideration, discussion, voting, or be counted in the quorum on that matter, and the disclosure must be recorded in the minutes.

The Chairperson and members of the Complaints Committee are to be paid remuneration, fees or allowances for expenses as determined by the Cabinet Secretary, and those payments are to be made from monies provided by Parliament.

Section 4 has been repealed.

The Cabinet Secretary must be responsible for policy formulation and directions for the purposes of this Act.

Section 6 has been repealed.

Establishes the National Environment Management Authority.

The Authority must have its headquarters in Nairobi.

The Authority is established to supervise and coordinate environmental matters in Kenya and is given a range of functions including coordination, resource stock-taking, auditing natural resources, advising the Government, research and monitoring, mobilising resources, identifying projects requiring environmental audits, prevention and remedial measures for environmental accidents, promoting environmental education and participation, publishing guidance, providing technical support, preparing biennial state of the environment reports to the Cabinet Secretary, encouraging conservation practices, and working with lead agencies to achieve at least ten percent tree cover.

Requires the Authority to formulate and review a National Environmental Action Plan on specified schedules, ensure public participation, submit the Plan for approval and publication, and requires the Cabinet Secretary to forward and publish the approved Plan.

Section 38. Provisions of the National Environment Action Plan Section contain an analysis of the natural resources of Kenya with an indication as to any pattern of change in their distribution and quantity over time;

Section 39 was repealed by Act No. 5 of 2015, s. 24.

County Environment Committees must prepare a county environment action plan within one year of commencement and every five years thereafter for adoption by the County Assembly; committees must undertake public participation and consider other adopted county plans for consistency; County Executive Committee members must submit plans to the Cabinet Secretary; the Authority must consider plans and recommend incorporation or specify changes; the Cabinet Secretary must issue guidelines on the Authority's recommendation.

County environment action plans prepared under section 40 must include provisions dealing with matters listed in section 38(a)–(j) for their county.

Purpose: minimize the duplication of procedures and functions and promote consistency in the exercise of functions that may affect the environment.

The Authority must monitor compliance with national and county environmental action plans, may take steps or inquiries to determine compliance, must serve written notice to organs if plans are not substantially complied with, and must keep records of all plans available for public inspection.

The Authority may issue and serve environmental restoration orders requiring the person served to restore the environment, prevent harmful actions, pay compensation, and pay charges to cover restoration costs; orders may set terms, conditions and obligations and list specific restoration and preventive actions; persons served have a right to appeal to the Tribunal and superior courts.

Section 109 specifies what must be included in environmental restoration orders and sets rights and duties: inspectors may inspect activities; the Authority has powers to enter land and may seek advice; a person served must comply with the order and may appeal to the Tribunal except where the order is from a court.

A person served with an environmental restoration order may, within 21 days and by giving written reasons, ask the Authority to reconsider; if the Authority exercises that power, its expenses may be recovered from that person as a civil debt.

A court may issue an environmental restoration order in proceedings brought by any person against someone who has harmed, is harming, or is likely to harm the environment; a plaintiff need not show a right or interest in the affected property or environment.

A court may, on application under this Part, grant an environmental easement or an environmental conservation order subject to this Act and the Land Act.

Persons may apply to the court for one or more environmental easements; the court may impose conditions on such grants to advance their object.

Only the person in whose name an environmental easement is issued may commence proceedings to enforce it; the court has discretion to adapt and adjust laws and procedures for enforcement.

The County Environment Committee must register environmental easements on a dedicated register for land not covered by the particular system of land registration.

Persons with a legal interest in land subject to an environmental easement are entitled to compensation for lost use value; they may apply to the granting court; the court can require applicants to pay compensation costs or order the Government to compensate if of national importance; the court must consider constitutional and compulsory acquisition laws when determining compensation.

Section 42 lists prohibited and regulated activities in rivers, lakes, seas and wetlands; empowers the Authority to issue management guidelines in consultation with lead agencies and the Cabinet Secretary to make regulations; and makes contravention an offence.

The Cabinet Secretary may declare traditional local community interests around specified habitats to be protected by notice in the Gazette; the Authority must issue guidelines and prescribe co-management measures for critical habitats in consultation with lead agencies and stakeholders.

The Authority must, in consultation with relevant lead agencies, develop, issue and implement regulations, procedures, guidelines and measures for sustainable use of hill sides, hill tops, mountain areas and forests; those instruments must control harvesting and natural resource use to protect water catchments, prevent soil erosion and regulate human settlement.

County Environment Committees must identify hilly and mountainous areas at risk of environmental degradation and notify the Authority, which must keep a register of such areas.

County Environment Committees must identify areas for afforestation/reforestation; they must encourage local voluntary tree-planting in those areas; where such areas are under a leasehold or other land interest, the holder of that interest must implement the same planting measures.

The Authority must, in consultation with relevant lead agencies, issue guidelines and prescribe measures for sustainable use of hill tops, hill slides and mountainous areas; County Environment Committees must ensure those guidelines and measures are implemented in their counties; contravening or failing to comply is an offence.

The Authority may contract with private landowners, after consulting the Chief Conservator and subject to subsection (2) and the Forest Conservation and Management Act, to register land as forest land; the Director-General must not act to prejudice traditional local community interests in forests or mountain areas; where a forested area is declared protected the Cabinet Secretary may ascertain interests and must provide incentives; contravening Authority conservation measures or directives by a person is an offence.

Encourages promotion of renewable energy research and incentives, conservation of non-renewable energy, and measures to encourage planting of trees and woodlots by individual land users, institutions and community groups; such measures must comply with existing laws.

Identify, prepare and maintain an inventory of biological diversity of Kenya.

Mentions land use methods that are compatible with conservation of biological diversity.

Prescribes measures for the conservation of biological resources ex-situ, especially for species threatened with extinction.

The Cabinet Secretary must, on recommendation of the Authority, issue guidelines and prescribe measures for sustainable management and utilisation of Kenya's genetic resources for the benefit of the people, including specified matters such as access arrangements for non-citizens, germplasm import/export, benefit-sharing, biosafety and protection of indigenous knowledge.

The Cabinet Secretary may declare areas as protected natural environments; the Authority may issue management guidelines for such areas.

The Cabinet Secretary may declare protected coastal zones; must survey and prepare an integrated coastal zone management plan, review it not exceeding every four years, include specified inventories and estimates, issue regulations in consultation with lead agencies, and persons who release polluting or hazardous substances into the coastal zone in breach of the Act are guilty of an offence liable to a fine of not less than one million shillings or imprisonment for up to two years or both.

The Cabinet Secretary must undertake or commission national studies and give due recognition to scientific developments about substances, activities and practices that deplete the ozone layer, affecting public health and the environment.

The Cabinet Secretary must, in consultation with relevant lead agencies, issue guidelines and prescribe measures on climate change.

The Cabinet Secretary responsible for Finance may, on the Council's recommendation, propose to Government tax and other fiscal incentives, disincentives or fees to encourage proper management of the environment and prevent or abate environmental degradation.

Entities must prepare Strategic Environmental Assessments at their own expense and submit them to the Authority for approval; the Authority must prescribe rules and guidelines for SEAs.

Project proponents must submit a prescribed project report and, for projects in the Second Schedule, undertake and submit a full environmental impact assessment study report (unless the Authority directs otherwise); experts must be authorised; Director-General and Cabinet Secretary have specified powers; false or misleading reports are an offence with penalties.

The Authority must ensure its website contains a summary of the environmental impact assessment report referred to in subsection (1); the Authority may, on application by any person, extend the not-exceeding-60-day period in subsection (1)(d) to allow submission of comments.

A lead agency must submit written comments on an environmental impact assessment report when the Director-General requests them, within thirty days of that written request.

The Authority may set up a technical advisory committee on environmental impact assessment; the Director-General shall prescribe its terms of reference and rules of procedure.

The Authority may require a project proponent to, at the proponent's expense, carry out further evaluation or environmental impact assessment study, review, or submit additional information to ensure the assessment report is accurate and exhaustive.

The Authority may issue an environmental impact assessment licence after being satisfied about the adequacy of an environmental impact assessment study, evaluation or review report, subject to terms and conditions to facilitate sustainable development and sound environmental management.

The Authority may order a fresh environmental impact assessment in certain circumstances; any person must comply with those directions or be guilty of an offence; the Authority may cancel, revoke or suspend the licence when it directs a fresh assessment or requests new information.

Holders may transfer an environmental impact assessment licence to another person only for the project for which it was issued; when transferred the transferee and transferor must jointly notify the Director-General in writing within thirty days, and transfers take effect on the date the Director-General is notified. Contravention is an offence.

A licence or conditions attached to it do not make the Government, the Authority, assessment reports or the licence itself liable; and issuing a licence does not provide a defence for a proponent against civil or criminal proceedings about how the project is run.

The Authority may cancel, revoke or suspend an Environmental Impact Assessment licence (suspension up to 24 months) where the licensee contravenes the licence; when it does so it must give reasons in writing to the licensee; the licence holder must not proceed with the project until a new licence is issued; the Authority shall maintain a public register which may be inspected by any person at reasonable hours on payment of a prescribed fee.

The Authority (or its agents) must carry out environmental audits of activities likely to significantly affect the environment; inspectors may enter land to check conformity with EIA reports; owners/operators must keep records and make annual reports and must mitigate unanticipated adverse effects and submit annual or as-required audit reports to the Authority.

Lead agencies must set up environmental units; environmental inspectors may enter land or premises to monitor environmental effects.

The Cabinet Secretary must, in consultation with relevant lead agencies, make regulations prescribing what applications must contain and the conditions for registering pesticides and toxic substances.

Recommends minimum standards for emissions of noise and vibration pollution to preserve and maintain public health and the environment.

Any person who emits noise above the noise emission standards established under this Part commits an offence, subject to the Civil Aviation Act (Cap. 394).

The Authority may, on request, grant a temporary permit (not exceeding three months) allowing noise emissions above established standards for specified activities.

The Authority must set standards and criteria for acceptable radiation levels and measurement, inspect and examine places, vehicles and persons where there is reasonable cause regarding radioactive material, collaborate with the Radiation Protection Board to run monitoring and advisory programmes, maintain records and registers related to radiation, and take necessary actions to monitor and control radiation pollution.

Section 105 repealed.

Section 106 was repealed by ActNo. 5 of 2007, s. 80.

Establishes standards and procedures for the control, measurement and determination of noxious smells.

Section 70 has been repealed.

The Authority must consult and take into consideration the views of lead agencies before making the recommendations under subsection (1).

Any person who discharges or permits discharge of pollutants into the aquatic environment in contravention of water pollution control standards is guilty of an offence and faces up to two years imprisonment, a fine not exceeding one million shillings, or both; such persons must pay removal and restoration costs and may be ordered to pay third-party compensation.

Owners or operators of irrigation projects, sewerage systems, industrial workshops or other undertakings that may discharge pollutants must submit accurate information to the Authority about the quantity and quality of effluents or pollutants when demanded, within ninety days of the Act coming into force or as otherwise demanded.

Owners/operators must discharge effluents only into existing sewerage systems; the entity operating the sewer must issue a licence (for a prescribed fee); proponents/owners must install treatment plant before discharge and before licence is granted.

Entities that operate sewerage systems or owners/operators of trade or industrial undertakings must not discharge effluents or other pollutants into the environment without an effluent discharge licence issued by the Authority.

The effluent discharge licence may be cancelled if the holder contravenes any provision of this Act or regulations made under it.

The Authority must keep a public register of all effluent discharge licences; any person may inspect it at reasonable hours on payment of the prescribed fee.

The Authority must consult and take into consideration the views of lead agencies before making recommendations under subsection (1).

The Cabinet Secretary may declare areas to be controlled areas (subject to the Constitution and other laws) on the Authority's advice by Gazette Notice; the Cabinet Secretary may, on the Authority's advice, prescribe air emission standards for controlled areas in regulations.

Owners or operators of trades, industrial undertakings or establishments that emit substances or energy causing or likely to cause air pollution must apply to the Authority for an emission licence; existing operations had twelve months from commencement to apply; applications must be in the prescribed form and accompanied by the prescribed fee.

If the Authority rejects an application for an emission licence, it must notify the applicant in writing of its reasons within twenty one days of its decision.

Prohibits operating a motor vehicle or other conveyance in such a manner as to cause air pollution contrary to established emission standards.

The Authority may set extra application procedures and conditions for licences and may allow electronic issuance of licences to work with the National Electronic Single Window System.

An emission licence may be cancelled if its holder contravenes any provisions of this Act or regulations made under it.

The Authority must maintain a register of all emission licences; the register is a public document and may be inspected by any person at reasonable hours on payment of a prescribed fee.

Identify materials and processes that are dangerous to human health and the environment.

Prohibits discharging or disposing wastes in ways that cause pollution or ill health; requires licences for transport and disposal sites; requires waste generators to minimize wastes; contraventions are offences with penalties of up to two years imprisonment or up to one million shillings fine.

Persons intending to transport wastes in Kenya, operate a waste disposal site or plant, or generate hazardous waste must apply in writing to the Authority for an appropriate licence before commencing those activities; licences to operate a waste disposal site or plant may be granted subject to payment of the appropriate fee and any other licence required by the relevant Local Authority; if the Authority rejects an application it must notify the applicant of the decision and reasons within twenty one days.

Persons owning or operating a waste disposal site or plant at the commencement must apply to the Authority for a licence under this part within six months after commencement.

The Authority may apply to a competent court for orders requiring any person to immediately stop generating, handling, transporting, storing or disposing of wastes that present an imminent and substantial danger to public health, the environment or natural resources.

Lists categories of hazardous waste; Cabinet Secretary must issue guidelines on Authority recommendation; import of listed hazardous wastes into Kenya is prohibited; export and transport require permits (export also requires written consent of receiving country's competent authority); breaches carry minimum two years imprisonment or minimum fine of one million shillings and responsibility for removal and safe disposal on conviction.

Classification of toxic and hazardous chemicals and materials.

Prohibits any person from discharging hazardous substances, chemicals, oil or mixtures containing oil into waters or other parts of the environment contrary to the Act; establishes offences, required remediation and notification duties for the spiller, and powers for the Authority to seize or dispose of facilities or vehicles where mitigation is not taken.

Standards of pesticides and toxic substances include fresh or frozen fruit and vegetables in their raw state, grains, nuts, eggs, raw milk, meat and other agricultural produce;

Section 95 has been repealed.

Section 96 was repealed by Act No. 17 of 2006, s. 118.

The Authority may, upon application, register a pesticide or toxic substance subject to existing and other conditions the Authority may determine.

It is an offence for a person to distribute or otherwise deal in unregistered pesticides or toxic substances; contravening this section carries a penalty of up to one million shillings, up to two years' imprisonment, or both.

The Authority may seize pesticides or toxic substances suspected to be offences; seized items must be placed in the Authority's custody and the Authority must serve a notice of seizure to the owner as soon as practicable.

The Director-General must appoint environmental inspectors by Gazette Notice; those inspectors must monitor compliance, conduct audits, carry out inspections, take samples, seize items, order closures or issue improvement notices with required approvals, arrest with a warrant and assistance, install monitoring equipment after 14 days' notice, and suitably identify themselves when exercising powers.

The Environmental Inspector has the power to start and carry out criminal proceedings against any person in a competent court (other than a court martial) for offences alleged under this Act.

The Director-General may designate laboratories by Gazette notice; the Authority must prescribe how samples are to be taken for analysis.

Designated analytical or reference laboratories must issue certificates of analysis for substances submitted under the Act; analysis results are open to inspection by all interested parties.

The Director-General must, by notice in the Gazette, prescribe which activities require records, what the records must contain, and how they must be kept.

Records kept under section 121 must be transmitted annually and received by the Authority within one month after each calendar year; the Authority must keep transmitted records and may keep them confidential when circumstances require.

Any person may access records transmitted to the Authority, subject to section 122; a person seeking access may be granted access on application and on payment of a fee prescribed by the Authority.

The Authority must keep a register of all international environmental treaties, agreements or conventions to which Kenya is a party.

The Cabinet Secretary must, within six months from the commencement date of this Act and in consultation with the Authority and lead agencies, develop legislation to submit certain transactions involving environmental resources to Parliament for ratification; the Cabinet Secretary may, by Gazette notice, specify additional environmental resources requiring parliamentary ratification.

Section 125 establishes the National Environment Tribunal, lists categories of members (nominations/appointments by JSC, Law Society, Cabinet Secretary and three experts), requires appointments to be by name and by Gazette Notice issued by the Cabinet Secretary, sets staggered terms, lists vacancy events, provides election of Chairperson and vice-Chairperson at the first meeting, requires Chairperson and vice-Chairperson to be of opposite gender, and sets rules for acting Chair and designation of sittings.

Section 126 sets procedures for the National Environment Tribunal: it is not bound by standard rules of evidence; it must inquire into appeals and referrals, make awards/orders/decisions and notify parties and the Authority; it shall sit where and when it appoints; proceedings are open to the public unless the Tribunal directs otherwise for good cause; it regulates its own proceedings except as otherwise provided; parties may appear in person or be represented by an Advocate.

Section 127 grants the Tribunal powers to make orders to secure attendance and production of documents, to take evidence on oath (and administer oaths), and to summon and hear witnesses; subsection (2) lists failures and misconduct (e.g. failing to attend, refusing oath or production, giving false evidence, insulting or interrupting members, or failing to comply with Tribunal decisions).

The Tribunal must sit with a quorum of three members to hear or determine any cause or matter before it; a Tribunal member with a direct interest in a case must not take part in those proceedings.

A person dissatisfied with certain decisions or actions under the Act may appeal to the Tribunal within sixty days in the manner prescribed by the Tribunal.

Anyone aggrieved by a Tribunal decision may appeal to the Environment and Land Court within thirty days; the Director-General may take immediate action to avert serious environmental injury, and the Court may confirm, vary, remit or make other orders on appeal.

The Chairperson of the Tribunal may appoint people with special environmental skills or knowledge to serve as advisory assessors in Tribunal proceedings when such expertise is needed for proper determination.

The Authority may refer complex or legally difficult matters to the Tribunal after giving notice; where referred the Authority and parties are entitled to be heard and parties may appear in person or be represented by an Advocate.

Members and officers of the National Environment Tribunal are immune from civil suit for acts done in the discharge of their duties (if made in good faith), and contempt of the Tribunal is an offence the Tribunal may punish.

The Chairperson and members of the Tribunal are entitled to remuneration and allowances determined by the Cabinet Secretary on the recommendation of the Salaries and Remuneration Commission, and those payments and Tribunal expenses are to be met from monies voted by Parliament.

The Tribunal shall have such other staff as may be necessary for the performance of its functions.

The Cabinet Secretary must appoint a public officer as secretary to the National Environment Tribunal and the Cabinet Secretary determines the allowances payable.

The Ministry may establish other tribunals anywhere in Kenya.

Any person must not hinder or obstruct an environmental inspector in the exercise of his duties under this Act or regulations made thereunder.

It is an offence where a section fails to submit a project report contrary to the requirements of section 58 of this Act.

Any person who fails to keep records required to be kept under this Act.

Any person must not contravene any environmental standard prescribed under this Act.

Any person must not fail to manage any hazardous waste and materials in accordance with this Act.

Section 142 creates offences for discharging dangerous materials, pollutants or otherwise polluting the environment and provides for fines and cleanup or compensation measures.

Certain failures to comply with environmental orders or easements are offences punishable by imprisonment of 1–4 years, a fine of 2–4 million shillings, or both; failure by a lead agency to comply with an Authority directive under section 12 is an offence.

Any person who contravenes a provision of this Act (or regulations made under it) for which no specific penalty is provided is liable, upon conviction, to imprisonment of not less than one year and not more than four years, or to a fine of not less than two million shillings and not more than four million shillings, or to both.

Section 145 makes bodies corporate, certain officers and partners criminally responsible for offences under the Act if they knew of the offence and failed to exercise due diligence; it also makes persons personally liable and holds employers/principals liable for employees' offences unless they prove compliance with directions.

Court may order forfeiture and disposal of items used in an offence; may order disposal costs to be borne by convicted person; may cancel licences/permits related to the offence; may order environmental restoration or issue an environmental restoration order against the convicted person.

The Cabinet Secretary may make regulations, on the Authority's recommendation and after consulting lead agencies, to prescribe matters required or permitted by the Act and to give full effect to it; subsection (2) lists example subjects (licences; fees/charges; adopting lead-agency instruments).

County may make legislation on matters that are required or permitted under the Constitution and this Act.

Existing written national and county environmental laws in force before this Act continue to have effect, subject to necessary modifications, and where they conflict with this Act the Act's provisions prevail.