Mohamed Ali Baadi v. Attorney General, Petition No. 22 of 2012 (April 30, 2018)
High Court of Kenya at Malindi
This case arises out of the Lamu Port-South Sudan Ethiopia-Transport Corridor project (LAPSSET), a large-scale transportation and infrastructure scheme with many individual components, including a railway, oil pipelines, oil refineries, tourism development, and a 32-berth port at Manda Bay in Lamu, Kenya.
In 2012, a group of residents from Lamu County filed a case against the Attorney General and the heads of several ministries (collectively “the government”) responsible for approving the port project, alleging that the LAPSSET project was designed and implemented in violation of the Kenyan Constitution and applicable laws, such as the Environmental Management and Co-ordination Act (EMCA). The Lamu residents expressed concern about the far-reaching and potentially irrevocable environmental, economic, and cultural impacts of the project, which were not adequately considered during planning phases. Id., p. 6. The government’s approach to designing and implementing the project, according to the residents, violated their constitutional rights to a healthy environment, to earn a livelihood, and to obtain information (among other rights). The residents also claimed that the decisionmaking process improperly excluded the county government in Lamu, violating Kenyan constitutional principles of devolution. Id., p. 7.
In light of the complexity of the case, the High Court conducted a site visit to view areas highlighted in the litigation, observe ongoing construction of port berths, and hear oral testimony provided by expert witnesses. Id., p. 4.
The High Court’s decision is lengthy. This summary highlights key findings from the many issues the Court identified for resolution; however, readers are encouraged to review the entire opinion. The Court prefaced its decision by describing the unconventional efforts it made to obtain and hear expert testimony from both sides, and the challenge of weighing conflicting expert opinions. It outlined important principles to help courts evaluate and judge evidence provided by experts. Id., pp. 16-18.
I. Adequacy of ESIA & SEA and Duty to Evaluate the External Costs of the Port Project
The residents identified a number of procedural deficiencies during the decisionmaking process leading up to approval of the port project, including a deficient environmental and social impact assessment (ESIA), and a lack of strategic environmental assessment (SEA) at the outset. The residents also alleged that work started on the project before an environmental license was granted. Id., p. 33.
The residents argued that an SEA should have been completed before issuing a license for the port project so that decisionmakers could understand the overall environmental and social impacts of the port in conjunction with the other infrastructure components of LAPSSET, such as the railway, oil pipeline, and coal-fired power plant. Moreover, the SEA that was later prepared in 2017 contained major gaps and omissions. Similarly, according to the residents, the ESIA was flawed. It did not adequately account for the external costs of the LAPSSET project, overlooked a range of possible environmental impacts to land, air, and water, and, overall, was poorly drafted and confusing. Id., pp. 34-38.
The Court agreed with the residents that the project proponent should have prepared an SEA before the LAPSSET port project started. The Court was not convinced by the government’s argument that SEAs were not legally required until 2015, when amendments to the EMCA took effect. The SEA obligation, according to the Court, existed as early as 2003 through the National Environmental Management Authority’s own regulations and did not need backing in specific statutory text to be effective. Id., pp. 47-48. The Court also determined that the duty to prepare an SEA also arises from the Kenyan Constitution, which “require[s] a proactive approach to integrate environmental considerations into the higher levels of decision making for projects with the potential to have significant interlinkages between economic and social considerations.” Id., pp. 48-49.
Turning to the ESIA deficiencies, the Court zeroed in on the failure to include a robust analysis of the social and environmental (“external”) costs of the port project. The residents’ expert pointed out that the ESIA did not address the costs to mitigate and compensate community impacts from impacts such as port-related air and water pollution, occupational injuries and diseases, impairment of ecosystems, and climate change from downstream combustion of exported oil. Id., p. 52. The government countered this claim, arguing that Kenyan law does not require such an analysis and questioning the overall utility of evaluating a project’s external costs. Id., p. 53.
The Court looked to Kenyan environmental law and the constitution, noting that the drafters intended to promote broad environmental governance principles and encourage project proponents and decisionmakers to look “far beyond” traditional environmental impacts. In particular, the Court explained, Kenya’s constitution:
“create[s] an inescapable obligation on NEMA and other decision-makers to consider external costs of projects, policies, plans and programmes which are bound to have significant environmental, social, cultural as well as other external costs on the environment and the local population. Differently put, NEMA and other decisionmakers are duty-bound to require proponents of projects, policies, plans and programs of such magnitude to credibly assess and report on the external costs of the projects as part of their ESIA and SEA in order to provide the decision makers with sufficient materials to make decisions that are in line with the constitutional rights of those who will be affected by those decisions.”
Id., p. 54. The Court criticized the ministries for not considering the port project’s external costs, stating: “To the extent that such an estimation of external costs was not considered, assessed or reported, this amounts to a significant procedural inadequacy in the ESIA and the SEA Reports.” Id.
II. Adequacy of Public Participation & Access to Information
The High Court devoted considerable attention to the right of public participation in environmental decisionmaking, emphasizing the importance of hearing community voices and opinions:
“In the instant case, a key concept which this Court cannot ignore is environmental democracy, a term that reflects increasing recognition that environmental issues must be addressed by all, or at-least a majority of those affected by their outcome, not just by the minority comprising the governments and leading private-sector actors.”
Id., p. 59. The government defended its public participation efforts, pointing to various public meetings that had been held, but could not provide any detail about the public’s dialogue or interactions at those meetings. For that reason, the Court was not convinced that the government complied with the public participation requirements of applicable regulations, calling the stakeholder engagement “inadequate.” Id., p. 65.
Given the scale of the mega-project, the government had a duty to disseminate information without waiting for members of the public to request it. Id., p. 71. The Court acknowledged that the government met disclosure requirements with regard to the ESIA for the port project, but provided no information to the public leading to conception of the project or preliminary studies. This omission violated the community members’ rights to access information. Id.
III. Adherence to Environmental Licence Requirements
The residents alleged that the certain ministries did not adhere to environmental licence requirements imposed by the National Environmental Management Authority, by: 1) failing to provide financial compensation to local fishing communities and facilitate efforts to obtain modern fishing boats and equipment; 2) failing to prepare a detailed environmental management and monitoring plan; and 3) failing to choose an effective method for ensuring that mangrove forests would be replanted. The Court agreed with the residents that the ministries failure to pay compensation and prepare a monitoring plan constituted significant violations of the environmental licence, but refused to second-guess the ministries on the manner in which they complied with conditions concerning mangrove forest replanting. Id., pp. 51-52.
IV. Exclusion of the Lamu County Government
The Lamu County Government, which participated as an interested party, alleged that it was sidelined and kept in the dark about the port project in violation the Kenyan constitution, which delegates planning and development administration to county-level governments. Id., p. 56. The High Court agreed, explaining:
“[E]ven though the LAPSSET Project is an initiative of the National Government, the Constitution requires consultation, cooperation and coordination between the two levels of government in the performance of their functions. (See Article 189 of the Constitution). This Constitutional commandment is not merely pedantic. Rather, this is the subsidiarity principle: a recognition that the County Government more closely reflects the concerns, preferences and choices of the local population. Further, it puts in action the constitutional requirement that "those most affected by a policy, legislation, or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account." Id.
The Court directed that, going forward, government ministries associated with the LAPSSET project just consult, cooperate and coordinate with the Lamu County Government and other affected counties. Id. , p. 57.
V. Right to a Clean and Healthy Environment
The High Court addressed whether the government infringed on the constitutional right to a clean and healthy environment by approving a project that would irrevocably harm the marine ecosystem in Lamu by removing mangrove forests, harming fisheries, and degrading water quality (among other impacts). Through the site visit, the Court observed that mitigation measures touted by the government and port developer were not entirely effective.
The Court recognized that the right to a clean and healthy environment includes the right to have the environment protected for the benefit of future generations. Id., p. 74. Environmental rights are also inextricably intertwined with the right to life. Id., pp. 75-76. The Court agreed with the community members that the right to a clean and healthy environment “is potentially at risk of being violated.” Id., p. 80.
VI. Traditional Fishing Rights
Many residents of Lamu County derive their livelihoods from traditional and artisanal fishing, using small vessels close to shore. The High Court observed that these fishing rights are protected by several provisions of the Kenyan Constitution related to social and economic rights, the right to life, the right to property, and the right to dignity. For that reason, the government must show a compelling reason to infringe on fishing rights and, if the infringement is determined to be necessary, promptly pay compensation to the affected individuals. Id., p. 86. The Court was dismayed that compensation had not been paid, even though the government had developed a set of compensation strategies to assist local fisherfolk. It concluded, “we are of the view that the local fishermen are entitled to full and prompt compensation and that the failure or delay to compensate them is unfair, discriminatory, and a gross violation of their traditional fishing rights and their right to earn a living.” Id., p. 87.
VII. Threats to Cultural Rights
The High Court agreed with community members that the LAPSSET project poses a significant threat to the unique culture of Lamu and that the government of Kenya did not do an adequate job of consulting with the public on this issue or developing a plan to preserve the community’s cultural legacy, which is recognized as a UNESCO World Heritage Site. Id., pp. 84-95. These failures constituted a violation of the community members’ right to culture in the Kenyan Constitution and international treaties. Id.
The petitioners sought a broad spectrum of remedies from the High Court, including declaratory relief, an order of prohibition or injunction to stop implementation of the project until safeguards and remedies are put in place, and orders of mandamus compelling the government of Kenya and the port developer to fulfill consultation and information disclosure duties. In addition, the petitioners asked the Court to quash, or alternatively suspend, the SEA and EIA licenses until new SEA and ESIA processes are completed. Id., pp. 96-97.
The Court prefaced its orders on relief as follows:
“From our findings, the Petitioners have substantially succeeded. However, we note that they were not materially opposed to the Project, but only to the manner of its implementation which concerns have been affirmed by the court. Additionally, the Court has also taken into account the considerable investment made in the implementation of the Project and the public interest in the continued implementation of the Project. In this connection, we have delicately fashioned the reliefs we have granted below to appropriately respond and remedy the specific violations of the law affecting the Petitioners as well as ensure the proper, lawful implementation of the Project moving forward.” Id., p. 98.
The relief granted included (pp. 99-109):
*Remand of the EIA license for reconsideration within one year and with consideration (among other things) of the external costs of the first three berths of the port project. The EIA license, however, remains valid and operational.
*An order directing government officials to consult, cooperate and coordinate with Lamu County government and other affected counties and government agencies.
*Implementation of effective and inclusive programs for public participation and information dissemination during reconsideration of the EIA license and SEA process, and for the LAPSSET project generally.
*An order directing the project proponents to fully comply with the mitigation measures and conditions identified in the ESIA report. If the mitigation measures prove inadequate, they must be modified in consultation with the public and environmental officials.
*Directions to the project proponent to pay full and prompt compensation to local fishermen in the amount of Kshs 1,760,424,000.00 and meet the obligations outlined in the compensation plan within one year.
*Directions to the project proponent and Kenyan government to consult with the public and develop plans and programs to protect the cultural identity of Lamu Island residents and the Lamu Island World Heritage Site.
IX. Expert & Witness Costs
As this was public interest litigation and the residents largely succeeded on their claims, the High Court directed the government to pay the residents’ basic expert and witness costs. Id., p. 109