KENYANS ARE NOW INCREASINGLY OPPOSING A RAIL LINE THROUGH THEIR NATIONAL PARK
(Posted 27th September 2016)
Kenyans were alerted last week about public consultations, hastily called for by Kenya Railways Corporation (KRC) in connection with the environmental and social impact assessment (EIA) for phase two of the ill-conceived Standard Gauge Railway (SGR).
Within just one day notice the stakeholders were forced to be ready and to swallow what the notorious EIA consultant in the case – paid for by the Chinese construction company China Roads and Bridge Corporation/Company (CRBC) – had prepared and wanted to shove down the throats of stakeholders and concerned citizens alike, in order to get the way free for the proponent to proceed with the construction of the ill-planned SGR, though two significant and important court cases against the project being routed through Nairobi National Park are pending and the National Environmental; Tribunal (NET) had already issued a stop order against SGR phase two.
But Kenyans – and here not only the often misquoted "conservationists" but all affected residents – have woken up and immediately spoke out publicly against the planned machinations, threatened further legal action and were prepared to boycott the meetings, thereby achieving that the consultations were called off until further notice, though an official cancellation notice wasn’t issued.
Kenyans know that an EIA is basically a planning aspect under the “precautionary principle”, because it anticipates that large scale human activities have adverse impacts on nature. The EIA thereby seeks to minimize these adverse impacts on the environment and therefore it is an important tool to reduce environmental and social risks. Without such an in-depth study – carried out professionally, honestly and taking all aspects into consideration – unanticipated disasters would usually be the consequence of unwise and rushed project implementation.
This is why the Environmental Management and Coordination Act (EMCA, 1999) was made the overall law in this context and – in order to come to informed decisions – Kenyans have been sensitized.
The Environmental Impact Assessment (EIA) is part of the project development process and – as is the requirement – was done at the initial stage of the
SGR project development in a similar hush-hush fashion as it was plotted now to be pushed through for phase two. Thereby it must be noted that the Chinese construction company has in the meantime already gone ahead and pitched their camps with heavy machinery, constructions and excavations near Ongata Rongai and Bulbul. Do they believe they don’t need permissions or do they feel they have a card blanche?
An EIA is a decision making tool for Kenyans, their experts and their elected officials to find solutions together. The EIA thereby should guide on the risks and impacts of any project before implementation in order to propose mitigation measures to reduce negative impacts. It is a critical examination of the effects of the project on the environment. It identifies both negative and positive impacts of the proposed development activity or project, how it affects the Kenyan people, their property, and their environment. It is not for the Chinese contractor and constructor or its Kenyan subsidiaries or contractual partners to decide and to implement without consent given by the public and by all stakeholders or without legal permission and it is not permissible to create costly facts, which can not or hardly be reverted.
The Kenyan EMCA as law was therefore made so strong that it supersedes all other laws in Kenya apart from the Kenya Constitution. Article 148 gives the EMCA the power over all laws in Kenya – except the Kenya constitution – as it says:
Any written law, in force immediately before the coming into force of this Act, relating to the management of the environment shall have effect subject to modifications as may be necessary to give effect to this Act, and where the provisions of any such law conflict with any provisions of this Act, the provisions of this Act shall prevail.
According to section 58 of the Environmental Management and Co-ordination Act (EMCA) of 1999 legal Notice No.8, which the SGR didn’t adhere to, a project proponent, whose project falls under the second schedule 9 (i) of the act, is required to submit an impact assessment and audit report to the
National Environment Management Authority (NEMA).
In Part VI of EMCA the law elaborates about the EIA in Article 58 (1) and says:
"Notwithstanding any approval, permit or licence granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall, before financing, commencing, proceeding with, carried out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall
be accompanied by the prescribed fee."
and part 2 says:
"The proponent of a project shall undertake or cause to be undertaken at his own expense and environmental impact assessment study and prepare a report thereof where the Authority, being satisfied, after studying the project report submitted under subsection (1), that the intended project may or is likely to have or will have a significant impact on the environment, so directs."
It has become clear already in phase one SGR and now in factual preparation works on the ground for phase two of the SGR process also Part V article 42 and PART VI, articles 50 and 51 of EMCA 1999 have been violated .
For example: Part IV of EMCA article 42 (1) states:
"No person shall, without prior written approval of the Director-General given after an environmental impact assessment, in relation to a river, lake or wetland in Kenya, carry out any of the following activities –
(a) erect, reconstruct, place, alter, extend, remove or demolish any structure or part of any structure in, or under the river, lake or wetland;
(b) excavate, drill, tunnel or disturb the river, lake or wetland;
(c) introduce any animal whether alien or indigenous in a lake, river or wetland;
(d) introduce or plant any part of a plant specimen, whether alien or indigenous, dead or alive, in any river, lake or wetland;
(e) deposit any substance in a lake, river or wetland or in, on, or under its bed, if that substance would or is likely to have adverse environmental effects on the river, lake or wetland;
(f) direct or block any river, lake or wetland from its natural and normal course; or
(g) drain any lake, river or wetland."
What CRBC is presently doing in the Kitengela corridor, around Ongata Rongai and between Bulbul and Ngong as well as further west is a well documented case of concern already, and the Chinese contractor has meanwhile established two big camps in Suswa and Duka Moja in Narok County – likewise without any EIA or NEMA license.
Before KRC can therefore now embank on the EIA for phase two, everyone should recognize that the EMCA Act 1999 has been violated by the proponent, and articles 138 and 142 have first to take effect before the SGR construction can continue, because no one is above the law.
DEEDS MUST BE ACCOUNTED FOR
The law must take its cause first and the consequences are well stipulated in part XIII of the act.
PART XIII of EMCA – ENVIRONMENTAL OFFENCES – talks on the offences and the consequences.
Its Article 138 is very clear and states:
138. Offences relating to Environmental Impact Assessment
Any person who—
(a) fails to submit a project report contrary to the requirements of section 58 of this Act;
(b) fails to prepare an environmental impact assessment report in accordance with the requirements of this Act or regulations made thereunder;
(c) fraudulently makes false statements in an environmental impact assessment report submitted under this Act or regulations made thereunder,
commits an offence and is liable on conviction to imprisonment for a term notexceeding twenty four months or to a fine of not more than two million shillings orto both such imprisonment and fine.
And Articles 142 and 143 say:
(1) Any person who –
(a) discharges any dangerous materials, substances, oil, oil mixtures into land, water, air, or aquatic environment contrary to the provisions of this Act;
(b) pollutes the environment contrary to the provisions of this Act;
(c) discharges any pollutant into the environment contrary to the provisions of this Act; commits an offence and shall on conviction, be liable to a fine not exceeding five hundred thousand shillings.
(2) In addition to any sentence that the Court may impose upon a polluter under subsection (1) of this Section, the Court may direct that person to –
(a) pay the full cost of cleaning up the polluted environment and of removing the pollution;
(b) clean up the polluted environment and remove the effects of pollution to the satisfaction of the Authority.
(3) Without prejudice to the provisions of subsections (1) (2) of this section, the court may direct the polluter to meet the cost of the pollution to any third parties through adequate compensation, restoration or restitution.
Any person who –
(a) Fails, neglects or refuses to comply with an environmental restoration order made under this Act;
(b) fails, neglects or refuses to comply with an environmental easement, issued under this Act;
(c) fails, neglects or refuses to comply with an environmental conservation order made under this Act; commits an offence and shall on conviction, be liable to imprisonment for a term not exceeding twelve months, or to a fine not exceeding five hundred thousand shillings, or to both.
Kenyans therefore take now a stand and say that the SGR consortium has neglected this act and that the body who should protect it – which is NEMA – has ignored the law and is liable for every damage that has been and will be caused by the SGR.
In article 145 EMCA the law elaborates on the set consequences:
(1) When an offence against this Act, is committed by a body corporate, the body corporate and every director or office of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, shall be guilty of an offence.
(2) Where an offence is committed under this Act by a partnership, every partner or officer of the partnership who had knowledge or who should have had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, commits an offence.
(3) A person shall be personally liable for an offence against this Act, whether committed by him on his own account or as an agent or servant of another person.
(4) An employer or principal shall be liable for an offence committed by an employee or agent against this Act, unless the employer or
principal proves that the offence was committed against his express or standing directions."
Kenya is not the Wild-East, where under totalitarian rule a one party governance can issue or step over any law and walk over the judiciary just like over the dead bodies of their people. It must never be allowed that such practice ever can be imported and implemented in Kenya – even if the proponent blurred the clear vision of many Kenyans at first by bringing with the project also the money, which the Chinese government as main financier of the SGR provided for as a loan. Many realize now that the borrowed money has to be paid back by the taxpaying Kenyan citizens of today as well as by the next generations of Kenyans to come or by handing over vast lands or other natural resources to China.
Even the cost estimates of the different alternatives have never been truly analysed and independently scrutinized, while the proponents embark on scare tactics and issue wild guesstimates to the mainstream media, who willingly print or broadcast the alleged higher costs, thereby only confusing Kenyans.
However, that the Kenyan governance is still able to make wise decisions is proven by the fact that the high-flying plans to create Africa’s largest airport with the expansion of Jomo-Kenyatta International Airport (JKIA) were wisely shelved this year for good reasons.
It therefore is recommended to likewise scrap the extremely dangerous and ill-conceived plans to drill "Africa’s second largest tunnel" into the shoulders of the Great Rift Valley with a single pipe for the SGR in an area, which is seismologically challenged and the source of three important water courses, to abandon any plans on dangerous and costly high-rise rails and it is urgently advised to immediately abandon any plan to affect Nairobi National Park – a national pride with its pristine nature and wildlife, a priceless joy for Nairobians and visitors from near and far and a sustainable moneymaker in its best definition.
The now proposed bridge – dubbed by the board of the Kenya Wildlife Service (KWS) as their now agreed Savannah route – over the centre of the national park, which would – as supported by the Cabinet Secretary for Transport – split the park in half, has an average height above the ground of 18 metres – 8 meters at the entrance into the northern side of the park and 41 meters high at its southern exit – and qualifies only as an extremely risky and highly dangerous proposal. What would happen, if a SGR passenger-train with a thousand people or a SGR goods-train with thousands of tonnes of fertilizer like ammonium nitrate would derail and plunge 41m deep, is unimaginable.
The ill-advised upgrading of Kenya railways from the infamous "lunatic train" of the past to a modern "disaster train" must and can be averted.
Especially because also Kenya’s East-African counterparts (Rwanda, Uganda and even Tanzania) are no longer committed to the earlier plans of the Kenyan SGR, it is high time to call for a moratorium in order to provide for enough time and thought to carry out the legally required assessments professionally and with due diligence, to follow up, decide upon and clear up swiftly all cases where Kenyan law has been violated at present and already earlier in the SGR process, to embrace the now proposed better options for the SGR route for phase two and to achieve an optimal solution: Not through or with a highly dangerous bridge over Nairobi National Park, not through a dangerous, costly and environmentally unsound tunnel into the rift valley, but routed from Konya or Athi River via the vast rangelands west of Isinya in Kajiado County, and on the slope into the rift behind the Ngong Hills to proceed with its further track without a tunnel to the west via Narok County, is the way forward.
Especially the Kenyan younger generations say that blatantly harming people, their property and livelihoods and overall damaging nature irreversibly and persistently can no longer be tolerated in the 21st century.
The proposed better option for the SGR route is in line with vision 2030 and the will of the people, while the present plans and actions of the proponent and the implementers are not. The present SGR process violates the laws of Kenya with impunity.
Without question Nairobi National Park and its wildlife dispersal areas must be protected in their integrity and as a whole from any further man-made impact on its natural ecosystem, from any land-loss or transgression and must be held as national treasure and as untouchable natural heritage of Kenya and its people in perpetuity. This is what the community of the original owners of the land had agreed to – nothing more and nothing less.
But, because since its inception and at present the whole SGR process is carried and pushed forward against the legacy and the present will of the people as well as in blatant violation of the laws of the land, which thereby constitutes an insult to all Kenyans and Kenya as a whole, these issues now require urgent redress with first priority in order to allow for a clean, honest and peaceful way forward.
If that is done, Kenya can also stand abroad as a honest and stout advocate for the protection of creation, of wildlife and its natural habitat.