Appeal blocks far-reaching environmental ruling

6 September 2019 · Carmel Rickard

Intrigues, illegalities and pollution involved in a sugar milling operation whose poisonous effluent eventually flows in Lake Victoria have been highlighted by Kenya’s environment and land court. In a far-reaching judgment, the court gave the company 120 days to sort out licences and environmental impact assessments for all their operations – or be closed down. But the Court of Appeal has now stepped in to overturn part of the lower court’s order, with a ruling that the mill may continue to operate as before until the appeal is heard. Judging from the long delays common in hearing appeals in Kenya, the sugar mill and the associated paper mill and distillery could continue polluting almost indefinitely.

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Judges from the Southern African Development Community (SADC) region met last week outside Cape Town for specialised judicial training in a growing field of law. The course, offered by the Judicial Institute for Africa (Jifa), was an introduction to environmental law, a subject many of the judges have not often needed to deal with before.

The teaching faculty included the head of marine and environmental law at the University of Cape Town, Professor Sandy Paterson, and Australia’s Brian Preston, chief judge of the New South Wales land and environment court and one of the world’s most influential environmental law jurists.

Among the SADC participants was the presiding judge of Kenya’s environment and land court, Samson Odhiambo Okong. Obviously proud of his court’s record on environmental issues, he pointed out a recent decision by one of his colleagues, Judge Stephen Kibunja.

Effluent

This was a case involving three residents of a community directly affected by effluent from the Kibos sugar factory in Kisumu county. They brought an application testing the validity of the permission allegedly granted the factory. They also asked the court to stop the factory’s effluent from being discharged into rivers, and for the factory to be closed down because its licences were invalid.

Kibunja agreed that the licences under which the factories operated were not lawfully granted. The environmental project report by the company and the resulting environmental impact assessment (EIA) licence granted by the national environmental management authority (NEMA) was for a project that would process 500 tons of sugarcane a day. Construction of the factory only began long after that licence expired, however. And at startup, the factory operated with an increased milling capacity, first to 1650 tons of cane per day (TCD) and then to 3000 TCD, all without any EIA. Nor was there a separate EIA for the additional facilities: a paper mill and a distillery.

There had also clearly been no public participation on whether to allow the mill to operate at all, let alone at its much-increased capacity. This despite Kenya’s 2010 constitution specifically requiring public input on such issues. The community members who brought the application were thus able to prove infringement of their right to participate in deciding whether the operations of the Kibos mill passed the test for ‘sustainable development’.

Toxic waste

The judge also accepted the evidence of the community, confirmed by the NEMA, that Kibos had been degrading the environment by pouring ‘vinasse’ – a by-product of the milling process – onto the road, for dust control and maintenance. Further amounts of vinasse, earmarked for organic fertilizer once a further factory had been built to deal with it, was in the meantime held in ‘a lagoon’. According to an initial environmental audit, vinasse in the lagoons showed levels of toxic waste much higher than recommended for discharge into the environment.

Kibunja found that there was ‘no prior arrangement’ for how to deal with the vinasse before the additional factory was built. He said he could not understand how the NEMA allowed the Kibos power plant to start work without so much as a plan dealing with harmful and hazardous effluent.

Three surrounding rivers were polluted with the waste and between the time the action was launched and the hearing of the case the NEMA had closed down the Kibos distillery and paper packaging plants. The air, the water and the ‘aquatic life in the water bodies’ of the neighbourhood, were so polluted that the judge found the applicants' constitutional right to a clean and healthy environment had been infringed.

He also found that the milling was being carried out on sites where no EIA had been conducted, and this should have led to ‘urgent and decisive action’ by the NEMA as the national regulator of environmental matters.

Future generations

It was true that closing the factories would seriously impact on the owners, employees and the country’s tax revenue, but the court had to consider the broader public interest. People needed ‘protection against potential harm to the environment through pollution which is not only affecting those who are alive today, but has the potential to negatively degrade the environment for future generations.’

Previous decisions, in line with the constitution, had made it clear that, where appropriate, courts should not shy away from ‘issuing closure orders aimed at preventing, stopping or discontinuing harm to the environment’. While people employed by the factories might want operations to continue, this had to be balanced against the good of the whole area, and ‘the future generations which indeed constitute the real wider public’.

Posterity

The Kisumu county government did not seem to appreciate its important role in ensuring that those carrying out commercial activities in their area of governance did so without degrading the environment, said the judge. ‘Like everybody else’, the local government had a duty to jealousy guard the environment for posterity.

In his order, the judge declared that the millers as well as local and higher-level officials had violated the constitutional rights of the community to a clean environment. The licences under which the factories operated were illegal, and the EIA licences were unlawfully acquired. The factories had to stop operating pending proper EIA studies, and were then to submit them for approval and apply for fresh licences.

The factories were to be demolished if they failed to get proper EIA reports and licences within four months, so that the environment could be ‘restored to its original status’.

'Massive losses'

While this might appear a fair resolution of the dispute, a fortnight later the company won an order from three appeal court judges, suspending the closure and demolition pending a further challenge. Kibos said it would suffer ‘massive losses’ if the order was put into effect. According to local media, the judges directed that the company could ‘continue with its operations’ pending the appeal.

As with most disputes of this kind, the companies complained that the trial judge failed to consider the economic impact of the order.

What will surely concern the community at this stage, is that there now seems to be nothing in place to prevent the continuing discharge of polluting effluent. Given how long it takes for appeals to be heard, the factories’ pollution could continue for years without check.

* Cases like this test the way factories are set up across Africa, often without any legal mechanism to prevent poisonous waste from sickening the people and the environment. Such litigation is likely to come to court increasingly often as communities exercise their constitutional rights. With Jifa’s training of key SADC judges in environmental law, and the promise of further, more intensive, courses, the region’s judiciary are gearing themselves to make stronger, better informed decisions.

* 'A Matter of Justice', Legalbrief, 3 August 2019

Carmel Rickard

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