Conservation victory as Kenyan judge rules against Ministers

29 August 2019 · Carmel Rickard

One of Kenya’s fabled national parks and the most remote of them all, is allegedly under threat by the actions of two cabinet ministers and the neglect of the country’s wildlife service. That is according to claims made in litigation before the environmental and land court. The case concerns the Malka Mari national park along the Daua River forming the border with Ethiopia in the far north east of Kenya and near the boundary with Somalia. Granting an urgent interim order to prevent the ministers allocating any further land to squatters or offering tenders for any further buildings or infrastructure, the judge said the matter was in the public interest and that the ministers and other respondents had not challenged any of the allegations against them.

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Two Kenyan cabinet ministers have been barred from giving further land to squatters or awarding any more tenders for illegal development structures in one of that country’s pristine national parks.

The urgent interdict was granted by the environment and land court earlier this month when Judge Enock Chirchir Cherono dealt with an application by petitioners Ibrahim Ibrahim and Abdi Yakub, who are trying to protect the Malka Mari national park.

They targeted the Kenya Wildlife Service, and the ministers (cabinet secretaries) of wildlife and tourism, and of internal security and coordination, as well as the Mandera county government where the park is situated.

Tourist literature on the park stresses its remote situation on the Mandera plateau in the extreme north east of Kenya, and the difficulty accessing the park. Declared in 1989 to protect the high concentration of wildlife and endemic plants in the area, the Malka Mari park runs along the Daua River that forms part of the boundary between Kenya and Ethiopia. It is also close to the border with Somalia.

According to the submissions of Ibrahim and Yakub and the documentation they produced, the two ministers had neglected and failed to manage or protect the park’s ecosystem. They had allowed community settlement in the park, posing serious environmental threats to the already extremely fragile ecosystem. In their view, the ministers’ actions ‘will obviously lead to the extinction and death of the wild life in the park’.

They said that the communities permitted by the ministers to settle in the park were mostly pastoralists whose lives revolved around ‘capturing, harvesting, cropping, hunting and poaching of animals and birds’. Their presence thus endangered and threatened the habitat of the area.

In permitting this, the ministers risked the complete degradation of the park in a way that affected the heritage of the Mandera region and the country’s tourism industry.

They accused the ministers of allowing the communities to settle in the park without conducting any environmental impact assessment or inviting public participation in the decision as legally required.

The cabinet secretary for internal security and administration had built an administration police post, a police station, and a ‘chief camp’, among other structures, all ‘without carrying out an environmental impact assessment’ or inviting public participation. The other cabinet secretary failed to act in a way that would conserve the park. They had gone ‘even further’, said the applicants, ‘and built schools, dispensaries and (constructed) roads within the park.’

Mandera’s county government had presented a budget for the 2018/9 year, in which funds were allocated to finance ‘illegal and unlawful construction of infrastructure within the park without following the law’.

What was the reply to all these allegations?

The legal officer for the Kenya Wildlife Service, Doreen Mutunga, did not ‘come out clearly’ in her replying affidavit to say whether ‘she supports or opposes the application’, said the judge. Instead, she complained that the two applicants had set about things the wrong way. They should have used the ‘elaborate dispute settlement procedure’ under the Wildlife Conservation and Management Act, and not gone straight to court. This section of the law ought to be ‘respected, honoured and promoted’ by the court, she said, and the judge should hold that disputes like this, relating to the management, conservation and protection of wildlife, ought to be resolved using dispute settlement procedures.

The law says that any dispute involving wildlife management or protection should be referred to the ‘lowest possible structure’. Only if there were any matter that could not be resolved by these structures would the case then be referred to the national environment tribunal and from there, an appeal could be made to the environment and land court.

Neither of the ministers made any response to the application, but the county government also argued that the dispute should have been dealt with by local government dispute resolution structures.

Judge Cherono said he had been asked to bar the ministers and others from awarding tenders for construction or development of any infrastructure. The applicants also wanted him to stop the allocation of plots to informal settlers in the national park. They argued that the respondents were legally mandated to protect the park, but had abdicated their responsibilities.

He said none of the respondents had denied the allegations. The case met all the criteria for granting a conservatory award, with the applicants showing public interest, and highlighting affected constitutional values among others.

The World Wildlife Fund has expressed concern about the ecoregion around the Horn of Africa including Kenya’s northeast semi-deserts. The region is rich in endemic plants and animal species specially adapted to the challenging terrain. The WWF report noted that Somalia would need stable government before large-scale conservation work could take place, while in Ethiopia the political situation is stable but conflict continues between ‘protected areas and people’. It added, ‘There are several protected areas in this ecoregion, many of which harbor the last remaining populations of desert-dwelling ungulates. However, these parks are generally not well protected, managed or funding, making them “paper parks” rather than effectives sites for conservation.’ Among the parks in this ecoregion is Kenya’s Malka Mari national park. The report also notes the strained relations between several countries in the region, as well as ‘politically-motivated instability in the border regions between Kenya and Ethiopia and Kenya and Somalia”, among others.
The International Centre for Transitional Justice refers to 'massacres' in the remote Malka Mari and Wagalla areas during the 1980s and to their aftermath.
* 'A matter of justice', Legalbrief, 26 August 2019

Carmel Rickard

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