SEEKING REDRESS

For Lamu residents justice delayed is justice denied

By failing to monitor compliance, Nema has chosen to prejudice Lamu community deliberately and unduly.

In Summary

• President Uhuru Kenyatta on May 20 presided over the operationalisation of the first berth of the new Lamu Port.

• Unfortunately, however, since the construction of the Lamu Port began, the community in the area has experienced untold suffering as a result.

An aerial view of the ongoing construction of Lamu Port/KPA
An aerial view of the ongoing construction of Lamu Port/KPA

May ended with reports that plans for the long-awaited compensation for the affected fishers during the construction of the first three berths of the Port of Lamu have been finalised.

Compensation shall commence once the fisher folks provide the bank account details and their lawyers have executed the consent letter required to be filed in court, Kenya Ports Authority management says.

The fishermen first went to court in 2012, aggrieved by the manner in which the government was implementing the Lamu Port project, which is part of LAPSSET. Eighty  per cent of the community in Lamu depends on fishing for their livelihood.

Lamu Port will have 32 berths costing $5 billion (Sh539 billion). 

President Uhuru Kenyatta on May 20 presided over the operationalisation of the first berth of the new Lamu Port.

Unfortunately, however, since the construction of the Lamu Port began, the community in the area has experienced untold suffering as a result.

The construction of this project includes dredging and reclamation - the dredging along the Mkanda Channel has been undertaken in a manner that has unreasonably and severely restricted the activities of over 4,700 boat operators for whom access to Manda Bay and Kililana areas is critical to their livelihoods.

Already, mangrove has been destroyed, and this has had a direct impact on fishers and their livelihood. The berths have been placed right over the Shaka la Paye reef (traditional fishing ground), thus affecting Spiny lobsters, which settle in mangroves or seagrass as juveniles and live-in corals, as adults. The loss of corals has resulted in the destruction of critical fishery resources in the area and has further impacted much needed tourism.

Further, dredging activities continue in the absence of physio-oceanographic studies, which is a critical tool to guide project developers on safeguarding marine fauna and flora. Indeed, it is due to these challenges that the community took the matter to court to seek redress.

Sadly, a court process remains stuck at the Court of Appeal, three years since the progressive High Court judgment issued on April 30, 2018.

The High Court, in its judgment, declared that the planning and construction of the Lamu Port violated the rights of Lamu residents. In its 109-page ruling, the High Court in Malindi affirmed community residents’ grievances regarding the Lamu Port project’s lack of public participation, lack of environmental assessment and management plans, and failure to consider the community’s traditional fishing rights, as well as rights to protect their cultural identity and to a clean and healthy environment.

The ruling also asserted the role of regulatory authorities in upholding these rights. However, the Respondents, Kenya Ports Authority, filed an appeal and successfully applied for a stay of execution order against the High Court judgment.

For a community that depends solely on their environment for their livelihood, the negative environmental impacts, and a lack of enforcement from the National Environment Management Authority, have been a double tragedy for them.

Add to the challenges resulting from Covid-19 measures to flatten the curve, and one cannot begin to imagine the untold suffering the fishermen in Lamu who carry out their fishing at night are going through.

Communities have repeatedly raised these complaints with Nema, but no action has yet been taken to enforce compliance. This impunity has equally extended to the Lamu Port access road, a road linking infrastructure used to feed and evacuate cargo from the first berth to the highway (Lamu – Garsen road).

The construction of this road started without undertaking the pre-approval processes. To date, the project proponent is still operating without an environmental license. As a result, environmental concerns such as dust pollution, destruction of wetlands, and unsecured borrow pits have been raised.

Nema, however, has a clear and onerous constitutional and statutory mandate to protect, manage and conserve the environment by eliminating processes and activities that are likely to endanger the environment.

Nema can achieve this through voluntary cooperation, but where coercion is required, this can be achieved by consistently monitoring compliance, responding to violations, and enforcing compliance, failure to which leads to increased costs and liability associated with non-compliance. At no point does an appeal abdicate these responsibilities.

Unfortunately, by failing to monitor compliance, Nema has chosen to prejudice Lamu community deliberately and unduly.

Whereas the government vigour to compensate the fishermen is welcome, one hopes other host communities of major infrastructure projects will be spared the agony suffered by the Lamu residents.

As the old adage goes, justice delayed is justice denied.

The writer is an advocate of the High Court and senior programmes officer, Natural Justice ([email protected])