New Kenyan judgment shows difficulties for courts when adjudicating environmental matters

3 March 2023 · Carmel Rickard

A cohort of judges has been carefully trained by Jifa to deal with environmental and climate change cases. But what if those who bring petitions to court, even those who may have a genuine case, don’t present evidence that measures up? The latest decision from Kenya’s environment and land court illustrates the problem.

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A new decision by Kenyan environment and land court judge, Anne Koross, illustrates some of the difficulties for courts handling environmental matters when litigants do not understand what is required in cases of this kind.

The petition starts off in a way that suggests a major showdown is at hand over environmental issues. It references the articles of the constitution and the legislation implicated by the disputed behaviour brought before the court. It also references the Rio Declaration, the Universal Declaration of Human Rights and the Banjul Charter on Human and Peoples’ Rights, all of which are, by implication, at stake in the case.

Twelve petitioners from Siaya county in the west of Kenya brought the petition. They said they were all ‘small-scale gold miners and diggers’ and that they filed their petition as public interest litigation on behalf of residents of the area of Bondo.

The petition was brought against Emmanuel Oyugi, as well as the relevant cabinet secretary, the attorney general the director of mines and geology and the ‘National environmental authority’.

Clean and healthy environment

The petitioners said their constitutional right to life and to a clean and healthy environment, along with other rights, had been infringed by Oyugi, and that they wanted the court to issue a declaration that his mining activities were illegal and to stop him from continuing.

They also complained that he hadn’t had an environmental impact assessment (EIA) done and that there had been no public participation before he started mining.

In particular, they complained about cracks in buildings, noise pollution, mining dust, poor waste disposal that exposed residents to health hazards, water pollution from harmful chemicals like mercury and sulphuric acid, environmental degradation ‘and nuisance’ and that there had been breaches of the constitution as well as mining and environmental laws.

Imagination

They had tried to stop Oyugi, and when their pleas failed, they obtained a stop order from the National Environment Management Authority (NEMA). In terms of that order, he should have obtained an environmental impact assessment but he ignored the order and had not stopped his mining project.

Oyugi for his part, admitted he was the owner of the property under dispute, but said the allegations were a figment of the petitioners’ imagination and that he had not breached any constitutional or legal provision. He also denied being involved in any mining project, ‘nor did he collude with any person to excavate, dig or carry our mining activities.’

So far this appeared to be a case in which a number of important environmental law issues would play out. But the judgment quickly showed how the petition fell short, with the petitioners not tendering scientific and factual evidence to support their allegations, thus running foul of the trite law that those who allege must prove.

Non-detectable levels

The petitioners had included an impact assessment report on a scientific assessment of water sources in the area. Two tests were conducted outside the precincts of the mining project and one inside.

But the tests outside the precinct showed that there was either ‘non-detectable’ levels of water polluting chemicals, or that they were present ‘within the acceptable range’. In other words, commented the judge, the mining project had not caused any water pollution outside the mining project.

Inside, most of these chemicals were also either non-detectable or within an acceptable range. The exceptions were lead and mercury. Lead was found to be at 0.193 mg/l against the acceptable standard of 0.1 mg/l while the mercury level was 0.0264 mg/l against the acceptable standard of 0.02 mg/l.

The report attributed the higher levels of mercury to its use during the mining process, and that lead was either used during the process of mining gold or else it was a byproduct.

Waste management

The next question was how waste was being managed, but the expert report said nothing on this issue. There was also no evidence that lead and mercury had escaped from the mining project.

On this aspect, the court concluded, ‘Therefore, the … allegations that residents and their livestock had borne the wrath of harmful chemicals from the mining project, fail.’

The claim of harmful noise and vibration levels also failed: the expert report admitted that an assessment of these levels was not carried out.

‘In sum,’ said Judge Koross, ‘the petitioners did not table any report to affirm the noise and vibrations emanating from the project exceeded the legally stipulated maximum decibels or demonstrated an empirical scientific causal link between the noise and vibration from the mining project to the cracks and nuisance the residents … were experiencing.’

That aspect of the petition, therefore, also had to fail.

Not substantiated

Further, the expert report did not carry out an assessment on the allegations that mining dust was causing respiratory and other health complications, saying that time didn’t allow for an assessment of medical records to evaluate the toxicity of the impugned metals. But the judge pointed out that it would have been enough if the expert report had shown the capped standards of mining dust present. She also noted that there was no medical report for the court to examine.

Without these crucial elements, the claim that mining dust was causing illness also had to fail.

There was a similar problem with the allegations about waste disposal and environment degradation. The petitioners ought to have put up evidence showing that the mining project had conducted poor waste management or that the environment had been degraded.

‘In my honest opinion, these allegations were not substantiated by a credible expert report, a lead agency or a person duly authorised by NEMA.’ This claim too, therefore had to fail, along with the allegations that the petitioners’ right to life, property, economic and social welfare and a clean and healthy environment, were violated by the mining project.

No shred of evidence

What about the claim that Oyugi had flouted several legal provisions?

He hadn’t submitted the EIA reports required; he had carried our mining activities ‘without concern for the environment’; there was no social heritage assessment report and environmental management plan. All of these were required before a mining licence was issued. ‘In essence, there was laxity and several provisions of law had been flouted.’ Further, the property use designation hadn’t been changed from agricultural use to a mining project and no consent had been obtained under the Land Control Act.

Oyugi was required to show that he had met all the statutory requirements before the project began. And the expert report that showed mining operations were being conducted was not seriously challenged by Oyugi. He simply produced ‘no shred of evidence’ to contest the allegations that he was mining unlawfully.

The judge thus concluded that Oyugi was carrying out his mining project without regard to the relevant laws and regulations.

Royalties

How was she to ensure justice was achieved in these circumstances?

Again there was a problem about the petition: though the petitioners wanted compensation and damages for the mining operation, they put up no evidence about the number of people affected by the project, the royalties due from it or the damages they suffered as a result of Oyugi not complying with the laws and regulations.

Since the petitioners were partly successful, she granted them half of the petition costs. She also declared that Oyugi acted contrary to the law when he started the project without complying with the requirements laid down in statute.

The mining project was therefore to be closed within 60 days, she ordered. Further, Oyugi was to apply for all the relevant permissions, with oversight by the National Environment Management Authority and the director of mines and geology.

It's not a bad outcome for the petitioners. But the case illustrates that matters of this kind founder without proper evidence, and a better understanding of what a court requires if it is to make a decision in favour of the environment and the people affected.

Carmel Rickard

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