Friends of Lake Turkana Trust v. Attorney General, ELC Suit No. 825 of 2012 (May 19, 2014)
Environment and Land Court (Nairobi)
Friends of Lake Turkana Trust (FLTT) alleged that the government of Kenya and other state entities (respondents) deprived community members of their constitutional rights to life and dignity by agreeing to purchase 500MW of electricity from the government of Ethiopia. The electricity would be sourced through a series of dams on the Omo River (including the Gibe III dam), which flows into Lake Turkana. Construction and operation of the dams is anticipated to cause a sharp reduction in water flows to Lake Turkana and adversely impact community members who rely on the lake for their economic and cultural livelihoods.
The Court first responded to arguments that it lacked jurisdiction over the claims, declaring: “The facts that the subject matter of the petition is an agreement entered by the Kenyan Government with the Ethiopian State, and that the alleged violations of the rights of the Petitioner arises in a transboundary context, and may have originated from transactions that were undertaken in Ethiopia do not on their own operate to limit access to this Court, or this Court’s jurisdiction. This is for the reason that this Court is obliged to consider any issue raised as to whether the actions of the Respondents in this regard has resulted in a violation of the Petitioner’s rights, and whether the Respondents are subject to any constitutional and statutory duties and responsibilities under Kenyan law when entering into such an agreement.” P. 8.
The Court held that although there was evidence indicating that dam construction and operation on the Omo River was likely to cause adverse impacts to Lake Turkana communities, FLTT had not introduced evidence of the actual effects of the Gibe III hydroelectric project and the infringement of community members’ rights. “This court cannot therefore at this stage make a finding that the Petitioner’s rights to dignity, life, livelihood and cultural and environmental heritage have been infringed, in the absence of concrete evidence in this regard.” P. 13.
With regard to the community members’ right to information, however, the Court declared that the respondents violated the constitutional rights of community members when they withheld the power purchase agreement and other key documents about the impacts of the Gibe III dam from public disclosure. The government of Kenya has an affirmative duty to disclose all relevant information in relation to importation or purchase and transmission of electric power from Ethiopia. P. 15.
Lastly the Court addressed the government of Kenya’s obligations under Article 69 of the Kenyan Constitution, which requires the State to protect and conserve the environment, and ensure sustainable use of natural resources. P. 15-16. Pointing to the principles of sustainable development and the precautionary principle, the Court stated that the respondents “have a duty to establish that no environmental harm arises from the [electricity] agreements and projects [with the Ethiopian government.]” P. 16. The Court continued: “[The Respondents] as trustees of the environment and natural resources owe a duty and obligation to the Petitioner to ensure that the resources of Lake Turkana are sustainably managed utilized and conserved, and to exercise the necessary precautions in preventing environmental harm that may arise from the agreements and projects entered into with the Government of Ethiopia in this regard.”
The Court ordered the government of Kenya, Kenya Power and Lighting, and Kenya Electricity Transmission Company (respondents) to disclose each and every agreement or arrangement entered into with the government of Ethiopia (and parastatals) relating to the proposed purchase of electricity or the Gibe III project. The Court also directed the respondents to take all steps necessary to ensure that the resources of Lake Turkana are used sustainably and conserved in any engagement with or agreements made with the government of Ethiopia with regard to the purchase of electricity. See p. 21. The Court declined to enjoin the government of Kenya from entering into future agreements until full evaluation of the environmental and social impacts of the Gibe III project is completed.