"Contemptuous" report on planned major coal power plant dismissed by Kenya's environmental tribunal

4 July 2019 · Carmel Rickard

In one of the most significant victories ever won by Kenya’s community and environmental activists, the National Environmental Tribunal has cancelled the licence for a controversial Chinese-funded coal power plant due to be erected near the town of Lamu, next to the sea. Among the sharp criticisms of the developers by the Tribunal was its failure to carry out proper community consultations.

Read the Tribunal's report

This report is a rarity: seldom does almost any African country give the environment and the affected communities so much consideration in a national plan of this magnitude.

The report of Kenya’s National Environmental Tribunal, widely hailed for doing just this, included a resounding criticism of the developers, Amu Power Company, as well as the National Environmental Management Authority, for not consulting the affected communities. Even though there had been meetings during the early phases of the project, these had not provided key information nor were meetings held after this information had become available to report back.

The tribunal's report began with a clear statement that the purpose of environmental audits, such as were required with the planned coal plant project, was not to “hinder development” but rather to ensure that economic progress took into account the environmental impact of any proposals. It was not correct that coal power projects would always be rejected in Kenya: “As long as coal power plant projects meet the required standards of the law and abide by conditions imposed (to) mitigate potential impacts then they remain a viable and acceptable mode of power generation.”

At this point in the report it is really not clear what way the tribunal will go, but it soon puts claims by project planners that they had consulted with the affected communities under a magnifying glass, and then concludes that these consultation had not met the necessary criteria.

The meetings were held in an early phase before information, requested by the communities, was available. And subsequent meetings to explain the project properly and “allay the concerns of the residents, never took place”. In fact, said the tribunal, this failure to hold any meetings that would have given the requested information and then to prepare a comprehensive environmental impact assessment report “without the participation of the persons most affected was contemptuous”.

Confusion about deadlines for making comments made the process procedurally unfair, and the process was slammed for seeming to be “deliberately hurried to either meeting the proponents’ expectations or to lock out members of the public from the process.”

The tribunal members said they had “no hesitation” in holding that there was a lack of proper and effective public participation as required by law. Issuing the licence was “unreasonable”.

The seriousness of access to information “cannot be overstated”, said the tribunal. “Would members of the public have supported the project if certain information (known to the planners but not to the people) have been available to them?” Among the information not given to the public was a study report in which “air quality was stated to be potentially hazardous" and likely to cause difficulty in breathing, along with the impact on climate change as well as concern of increased risk of asthma, lung damage and even premature death.

The public was also not privy to concerns raised in this report on the potential for acid rain that could “fall from the sky in rain over a widespread area, killing fish and plants”.

In some strong words for administrators involved in such projects, the tribunal said they had to “be keen” when faced with objections to projects on the grounds that the the environment could be compromised. Such concerns needed to be taken seriously.

The report by the planners was bulky and contained a lot of information, but without public consultation, it was ineffective. The tribunal said the “outright disregard” of the need to consult effectively, vitiated the whole process.

There was also no proper analysis of the location and project alternatives and the exercise seemed simply to justify what had already been determined.

Views by the Kenya Forest Service were not heeded when they spoke of “grave concerns” about the mangroves and other forest cover. Nor was there any heed given to the problem of climate change.

Officially setting aside the environmental impact assessment licence, the tribunal said that if the proposed developers still wanted to push ahead with the project, they would have to undertake a fresh environmental impact assessment that adhered “to each step of the requirements”. This included engaging with the public “in the manner and strict timelines” provided by the law.

Once this had been done, the National Environmental Management Authority’s reasons for granting or refusing an EIA licence had to be published in a newspaper with nationwide circulation.

“These extraordinary measures are necessary to ensure sufficient access to information by the public on a project that will be the first of its kind in Kenya and the East African region.”

The tribunal’s findings have been widely welcomed and among those who hailed the decision was Mark Odaga of Natural Justice, an NGO that has been working on the issue for some time. “It really is a great day for the people of Lamu,” he said. It was not that the people of the area were “anti-development”, he said, but that they wanted their voices and their concerns to be heard and reflected.

Carmel Rickard

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