GOVERNMENT OF KENYASET TO PAY OFF KWS FOR NAIROBI NATIONAL PARK LAND
News emerged over the weekend that the Kenyan government appears to have set aside 21.6 million US Dollars for the Kenya Wildlife Service as a form of compensation for the land carved out of the Nairobi National Park for the construction of the Southern Bypass, which has already gone underway and advancing at urgent speed.
Critics of the project cite in particular the lack of willingness by the promoters and financiers of the project to pay for a tunnel to preserve what they say are critical portions of land near Wilson Airport, claiming that profit and cost considerations have once again trampled on the environment while calling the present situation the financially easiest way out but at the cost of the parks integrity.
It is also widely feared that the Kenya National Highways Authority will use this precedent to also advance plans which became public last year, to carve out a route of a highway bypass around Nakuru, which has in recent years become congested with transit traffic, where a map showing the proposed routing saw the highway route cut into the Nakuru National Park too.
Leading companies and NGOs in Nairobi are also upset as the Southern Bypass will cause the destruction of about 50.000 trees planted by them after a sustained campaign to increase forest cover along the park boundary two years ago, only to see their effort turned to cinder and their investment in the green future of Kenya turned to naught.
Friends of Nairobi National Park, or in short FoNNaP, and the Africa Network for Animal Welfare, amongst others, have recently made public their opinions and legal position, that the KNHA has breached terms and conditions contained in their NEMA License granted in February 2011 for the construction of the new highway, giving sufficient grounds for legal challenges on both facts as well as on constitutionality.
Information made available over the weekend by regular conservation sources from Nairobi shows that the legal analysis of the situation, at least going by the opinion of the opponents lawyers, concludes:
- The Nairobi National Park land is public land and not private of community land as defined under the new constitution
- The new National Lands Commission, an institution to be created under the new constitution, will hold in trust and administer in the future land set aside for protected areas
- That the notion of KWS holding and administering national park land is faulty as the NLC will be the body entrusted to do that under the new constitution
- That KWS has neither powers nor right to give away national park land as it seems to have been the case here
- That the Wildlife Acts provisions giving KWS land management rights are superseded by the new constitution
It is not clear at this stage, if a constitutional challenge will be filed, alongside seeking an injunction on the progress of the building of the highway or if other legal cases might be brought at the High Court in Nairobi in accordance with the legal opinions rendered by the legal teams of conservation stakeholders, nor if a case might even be filed at the East African Court of Justice in Arusha, which only recently declared itself competent and willing to hear cases of such nature.
Meanwhile have sources close to KWS also confirmed over the weekend that should indeed the payment of nearly 21.6 million US Dollars or 1.8 billion Kenya Shillings be made by government, the entire sum will be spent to expand the Nairobi National Park through acquisition of land on the Kajiado county side south of Nairobi, something KWS and conservation groups have for long had on their wish list but were unable to accomplish due to lack of funds. Only in December last year did the Keen family bestow 100 hectares of their ancestral land to become part of the national park in a widely publicized gesture, when they signed an easement contract with KWS.
The question in everyones mind now is if the expansion of the park on one side is worth the carving out of a 4 kilometres long route, about 120 metres into the park along its present boundaries, will be worth it or if indeed, as has been alleged this will only set a precedent for future land grabbing, as the park in years to come will constitute one of the few open spaces adjoining Nairobi and a constant source for the greed of speculators and profiteers.
It is beyond doubt that Nairobi needs the Southern Bypass to decongest traffic into the city and route the long distance trucks around the city centre. It is also beyond doubt that government has concealed, if not in part misled stakeholders in the past over their true intent and that alone is worth a legal challenge to put bureaucrats and politicians in their right place and have court tell them what they can and cannot do from here on. And while it must be pointed out that no known legal challenges have been filed yet, the question then comes up what impact for instance an injunction may have on the Nairobi traffic master plan and if public opinion, especially that of daily commuters suffering from intolerable jams when traversing the city or trying to get into the city for work, will swing against those who with the best of intent are speaking up on behalf of nature and the environment.
When is compromise too much and where does the inviolate line in the sand have to be placed. Tough questions and tough choices will have to be made. Watch this space as this saga continues and be sure to read of any legal challenges right here.