Kenya’s National Environmental Management Authority (NEMA) has been given a tough lesson in obeying the country’s environmental laws by the National Environmental Tribunal. The NEMA had given the go-ahead for a major sewerage works to be built close to a stream and a natural wetland, all of this despite objections by the local community. Now the tribunal has found that the NEMA and other parties had not properly followed the law before the project was started. The tribunal has ordered that everything related to the project must be demolished and removed, while the local soil, plants and other natural features must be restored.
Decisions of Kenya’s National Environment Tribunal are fast becoming essential reading for judges interested in the subject of environmental law.
The tribunal recently delivered a crucial ruling that stopped the development of a coal power plant project after a local community challenged its legality.
Now here is another, just as instructive. This time it concerns a community in the Maraba village, supported by Kenyans for Justice and Development (KJD), who appealed to the tribunal against certain decisions of the National Environmental Management Authority (NEMA).
The NEMA had approved and issued an environmental impact assessment licence allowing the Lake Victoria North Water Services Board to construct sewage ponds in the Lwatinga area of Maraba village.
The local community had quite a lot to say about the allegedly faulty procedures adopted by the water services board and the NEMA, and their apparent failure to follow various statutes and international guidelines on the approval of waste ponds, their licencing and construction.
If the tribunal found in their favour, the community wanted the project stopped and reparations including environmental restoration, to be ordered.
The community alleged that they had not been properly consulted and that the NEMA ‘negated the spirit of public participation’ by failing to take into account the views of the public before making its decisions. These complaints are similar to the successful objections made about the authorities in the coal power case a couple of months after this one was finalised.
The Maraba village people also said that the environmental impact assessment report was ‘defective and incompetent’. While the report referred to ‘a non-existent waste water project’, in fact the project involved constructing ‘mega sewerage ponds’. The report was also not clear about the project’s location, nor did it set out exactly what activities were to be undertaken during the construction, operation and decommissioning phases of the project. Further, it was lacking in detail on the environmental impact and mitigation measures that should be carried out.
The EIA expert who prepared the project report refused to be cross-examined on the report by representatives of the community and KJD, and on their own the contents of the report were not useful. Refusal to be cross-examined violated the right to access to justice and a fair hearing among other rights, and the appellants urged the tribunal to exclude the expert evidence on those grounds.
The NEMA said that neither the district public health officer nor the district environment office had any objections to the project but that an EIA study was commissioned in any case.
Residents of the area were opposed to the project but the EIA was reviewed and approved all the same. This was because the NEMA was satisfied that ‘all adequate mitigation measures were put in place’ that would deal with the residents’ concerns. The public was properly consulted – all that the law required was consultation of ‘an acceptable/satisfactory sample of affected persons’.
According to the NEMA, all the complaints by the residents would be mitigated by the measures proposed in the EIA report and licence.
As far as the water authority was concerned, the community’s appeal amounted to pursuing their own private interests ‘instead of promoting the public good’.
The tribunal began with checking whether the authorities had satisfied the law in terms of the number of public meetings and the pre-publicity given to these meetings, and found that they did not comply with the regulations on public participation.
What about the community complaint that the project was too close to the banks of the Lwatingu stream? They said that during the rainy season the whole area was flooded, which meant the effluent might be swept away into the stream. As the stream was used by families for domestic purposes as well as for religious and cultural practices, this pollution would be dangerous.
According the tribunal, the mitigation provisions in the EIA study were inadequate to prevent contamination risks, nor had the required effluent discharge licence been obtained.
Another problem was that the affected areas included wetlands; the planned project was not among the permitted uses for wetlands, and no exemption had been obtained.
A major complaint by the community was the bad smell that would result from the project. There were houses less than 300 metres from the planned ponds and so the likely air pollution and resulting respiratory diseases were a concern. According to the tribunal, the planned mitigation measures proposed for these problems were inadequate.
Given all these concerns, the tribunal allowed the appeal and revoked the environmental impact assessment. Construction of the ponds had to be stopped and the tribunal issued a restoration order under which the ponds and any other elements of the projects that had already been built were to be demolished and removed. The authorities also had to restore all ‘soils, flora and natural features’. Supervised removal of all building material and other causes of pollution of the area had to be completed within 60 days of the order, and costs were ordered against the water services board and the county government.
Decisions such as these must be welcomed. They take community objections seriously and hold developers to account for not following the law properly. But my biggest concern about this case is an issue that was not addressed by the tribunal.
Why has it taken so long for the matter to be heard and finalised? The appeal is numbered Tribunal Appeal Number 113 of 2013, so it seems from the numbering that the delay in finalised the matter has been six years. Given the community and environmental damage that might have been done in the interim, I fear that the tribunal’s important process is taking just too long.
*Newsletter, Judicial Institute for Africa (Jifa), 19 September 2019