“The control man has secured over nature has far outrun his control over himself.”
Ernest Jones,The Life and Work of Sigmund Freud, 1953
In East
Africa, Kenya is considered a new frontier for business and development – hence
the term “engine” of the region (David 2015). Since the country adopted its Vision
2030 strategy, emphasis has been placed on trade, industrial expansion and
infrastructure development, with the aim of not only providing a stable
economic environment but also transforming and solidifying the country as a
middle-income economy (Kenya’s Vision 2030). To realize this goal, there has
been consistent budget allocation and foreign investment into the country’s
infrastructure development and growth, which has transitioned Kenya into the
current explosive era of infrastructure expansion (Laurance 2016). The recent
budget allocation, including external financing, gives a total of Kshs 117.6
billion - approximately USD 1.17 billion (Budget statement Fiscal year 2016/
2017). But it is the transport routes, particularly roads, which have been
identified as critical to maintain and expand this new frontier (Kenya’s Vision
2030 MTP2 2013-2017). The A2 Road Project, designed to bitumenize the 505km
stretch of unpaved road from Merrile River, in central Kenya, to the Kenyan-Ethiopia
border town of Moyale, fits well into this narrative.
It is
hoped that by October 2016, the road construction will open the country’s undeveloped
northern region to much yearned economic development (Marsabit CIDP 2013-2017).
A region marginalised socially, economically and politically with the aide of
colonial policies, some of which have continued well after independence. Pastoralism
continues to be the the most productive and prominent livelihood in the region with
livestock (cows, goats, and camels) being kept through a well regulated
traditional system of grazing (CIDP 2013-2017). Since water is scarce, the
community has designated water points, albeit limited, in different areas that
are able to support both residents and their livestock (CIDP 2013-2017). Given the
precarious nature of the environment and the importance of pastoralism, it is
only sensical that any development project should strengthen these livelihood
mechanisms. Therefore, we must be cognizant of the benefits and potential negative impacts that
roads, such as the one in Northern Kenya ,may bring (Laurance 2015).
Fortunately,
Kenyan law is not oblivous to the potential impacts such a development project
can have on people and their environments. Kenya’s Constitution inscribes a
fundamental right to a clean and healthy environment for all people, and for
the benefit of future generations. The Environmental Management and
Coordination Act (EMCA), the framework environmental law of Kenya, empowers
citizens to participate in environmental processes as well as minimising and
mitigating environmental damage. EMCA also stipulates that Environmental Impact
Assessments (EIA), a participatory process of assessing potential environmental
impacts of projects (Clayton &Sadler 2004), must occur prior to the
commencement of projects. If approved, the EIA results in the issuance of an
environmental license, which sets out numerous conditions to mitigate social
and environmental impacts (Section 63 EMCA; excerpts from Kohli & Menon
2009).
Consistent
with national law, an EIA study on the road was conducted and a report filed
with Kenya’s chief environmental regulator, the National Environmental
Management Authority (NEMA) in 2009 (A2 Road EIA 2009). In 2011, an
environmental license to conduct the project under certain conditions was
issued to the Kenya National Highways Authority (KeNHA), the project’s
proponent (EIA/ 447). KeNHA then contracted two China-based companies (China Wu
Yi and Jiangxi Zhongmei Engineering Construction Limited) and one based in
Turkey (Gulsan Holding) to carry out the construction.
Five
years on and the road construction almost complete, we are able to assess the
roads constructions compliance with Kenya’s laws, including the environmental
license. Community monitoring to investigate the project site, including
interviews with affected communities, has highlighted numerous instances of
non-compliance of the Environmental Management Plan (EMP), environmental
license and national law.
Culverts
and bridges have been poorly designed or constructed leaving surrounding areas
and homes prone to floods resulting in the loss of human life and livestock. In
other areas, constructed bridges have blocked community dams that were a
collecting point downhill hence limiting accessibility of water for livestock
and domestic use in these areas. Excavated materials have been disposed
alongside the road blocking access routes for animals and residents to water
points and grazing fields.
The excavation
for the road has also resulted in unregulated clearing of vegetation, damaged
existing livestock water pans and exposed borrow pits – the latter two
resulting in human and livestock death and injury as reported by the people
living in the area. Plastic bags used for construction have either not been disposed
of or only partially burnt – a concern for pastoralists who believe livestock
have died as a result of consuming this litter. Community water dams have been
polluted and water tables disrupted leaving the community with insufficient
water supplies, or no water all together, forcing them to walk long distances
to access other water points. There has been direct physical displacement and
dispossession without adequate compensation and a failure to adequately address
dust storms from quarry sites.
All of
these impacts are considered within the EIA study, environmental management
plan, environmental license or national laws and, hence, should have been
adequately dealt with. So, why is it that these impacts have occurred? Some of
the reasons that must be explored relate to: the limited amount of monitoring
that occurs during projects; vaguely drafted environmental license conditions,
which are difficult to implement and monitor like ‘all waste water is disposed as per the standards set out in then Water
Quality Regulation’ (Condition 3.1; Kohli and Menon 2009); and poor and
ineffective response from relevant government agencies. Further, a disempowered
citizenry, who don’t know the law nor mechanism to access systems of justice,
are unable to exert the necessary pressure to hold the relevant government
bodies and project actors accountable.
We have much work to do to improve
the implementation of our laws but it is unwise to apportion blame to one
group, given the real challenges that exist with funding and capacity of
government agencies. As a starting point, we all must inherently accept that
the rule of law, as a fundamental pillar of a democratic society, is completely
fused to our plans for development because the law is not there to deprive us
of a prosperous nation but to protect and enliven that which we, as Kenyan’s,
hold dear.
Rose Birgen is a legal researcher with Natural Justice's Extractives, Infrastructure and Industry Program.
Are community protocols
useful in assisting communities to respond to the challenges posed by
extractive industries or large scale infrastructure development? For the last three years, four communities in Argentina,
India, Kenya, and Zimbabwe, respectively, have been participating in a project
that seeks to answer this question (click here for more information). 
