By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*
Many countries are reconsidering the role of nuclear energy in their energy mix, as a means to alleviate the concerns over climate change, security of energy supply and the price and price volatility of fossil fuels. The need for alternative sources of energy has been fueled by the combination of climate change fears and a continued growth in energy demand as a way of moving away from the global fossil fuel addiction. It is estimated that nuclear fission as one such alternative accounts for 14% of global electricity generation and has the potential to generate significantly more. The proponents of use of nuclear energy argue that it has the potential to reduce pollution, cut greenhouse gas emissions, and help countries attain more energy independence.
The Global Legal and Institutional Framework for Nuclear Energy
The global legal framework on production and use of nuclear energy governs key issues relating to the use and safety of nuclear energy. All countries venturing into this territory are expected to abide by the same. Specifically, the existing international nuclear liability regime is based on the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982 (1960 Paris Convention) and the Vienna Convention on Civil Liability for Nuclear Damage (1963 Vienna Convention), which set forth the basic principles of nuclear liability law. These principles include: the operator of a nuclear installation is exclusively liable for nuclear damage; strict (no fault) liability is imposed on the operator; exclusive jurisdiction is granted to the courts of one State, to the exclusion of the courts in other States; and liability may be limited in amount and in time.
In terms of institutional framework, the International Atomic Energy Agency (IAEA) is the main institution that oversees the implementation of these legal instruments among other functions. The mandate of the IAEA as an international organization is to seek to promote the peaceful use of nuclear energy, and to inhibit its use for any military purpose, including nuclear weapons. Currently, over thirty countries produce and use nuclear energy, with some, like France, producing large portions of their electricity from nuclear power, and others like Brazil and the Netherlands producing small percentages of electricity by nuclear power.
The Kenyan Legal and Institutional Framework for Nuclear Energy
Kenya is still at a nascent stage in its plans to set up nuclear reactors, especially as far as regulatory frameworks are concerned. The preferred site for the nuclear plant in the country is Tana River County, near the Kenyan coast which was preferred after studies across three regions. The plant will be developed with a concessionaire under a build, operate and transfer model.
Nuclear Regulatory Act 2019
The Nuclear Regulatory Bill 2018 was first published by Parliament on November 19, 2018. The Bill has since been enacted as law under Nuclear Regulatory Act, 2019 and the law to provide for a comprehensive framework for the regulation of safe, secure and peaceful utilization of atomic energy and nuclear technology; the production and use of radiation sources and the management of radioactive waste; the repeal of the Radiation Protection Act and for connected purposes. While the Act is quite comprehensive, there will be need for constant review as the stakeholders identify what works and what challenges arise in the course of its implementation.
Nuclear Power and Energy Agency (NuPEA)
The Nuclear Power and Energy Agency, formerly Kenya Nuclear Electricity Board (KNEB), is a State Corporation established under the Energy Act 2019. The Agency is charged with, inter alia: being the nuclear energy programme implementing organization and promoting the development of nuclear electricity generation in Kenya; and carrying out research, development and dissemination activities in the energy and nuclear power sector. The Agency is therefore expected to work closely with the other stakeholders in the energy sector to oversee the setting up and successful running of nuclear energy production projects in the country.
Nuclear Energy in Kenya: Are we Getting it Right?
Some commentators have keenly highlighted some of the issues that have made the general public uncomfortable with the idea of Kenya turning to nuclear energy including: lack of properly trained manpower, the overall cost of the project, suitability of the sites where nuclear plants are to be built and nuclear disaster management. However, even as the Government proceeds with the project, there has been many emerging issues and questions surrounding the viability of the nuclear energy project especially given that Kenya still has vast renewable energy resources that remain under exploited to this day.
Indeed, the progress towards making Kenya a Nuclear Energy producer has received a mixed bag of fortunes in this year, in a span of less than 3 months between June and October 2021. In June 2021, the International Atomic Energy Agency (IAEA) carried out a follow-up Integrated Nuclear Infrastructure Review (INIR) mission to assess the country’s progress on recommendations from an INIR mission conducted in 2015. IAEA reviewed the status of nuclear infrastructure development using the Phase 1 criteria from of the IAEA’s Milestones Approach, which provides detailed guidance across three phases of development (consider, prepare, construct). Phase 1 evaluates the readiness of a country to make a knowledgeable commitment to a nuclear power programme.
The follow-up INIR team of the IAEA said noted that Kenya had made progress in the implementation of most recommendations and suggestions from the 2015 review. In particular, the follow-up INIR team noted that Kenya developed the National Nuclear Policy and the National Policy and Strategy for Safety to enable the Government to make an informed decision on whether to introduce nuclear power. Further, it acknowledged the country enacted a national nuclear law and established a regulatory body with clear responsibilities for safety, security and safeguards. Kenya had also completed an assessment of the national legal framework and identified other laws needing review and there was enhanced the coordination among its key stakeholders in the development of its nuclear power program. However, the IAEA team said that further work is needed in areas such as the development of a nuclear leadership programme and the ratification of international conventions in the area of nuclear safety.
Interestingly, before the good news sank in, the Presidential taskforce on reviewing power purchase agreements recommended the dissolution of the Nuclear Energy and Energy Agency (NuPEA), stating that it is of no use at the moment. The presidential taskforce said in the report that the country is years away from installing its first nuclear power plant and does not yet need an autonomous parastatal to lead the process. This comes even as last year the Agency had announced the plans to build a $5 billion (Sh540 billion) nuclear power plant on a site in Tana River County over the next seven years with funding from private investors. In August 2020, the Kenya Nuclear Electricity Board (KNEB) in a regulatory filing with the National Environment Management Authority (Nema), revealed that the plant with an initial capacity of 1,000 megawatt (Mw) plant was to be constructed through a concession on build, operate and transfer (BOT) model.
But this did not stop the Presidential Taskforce from sounding the death knell on NuPEA putting limbo the future of nuclear energy program in limbo. The taskforce stated in a report released to the Media in October 2021: “According to the 2020-40 LCPDP, the country is unlikely to enter nuclear power generation in the near future. A separate entity to promote and implement a nuclear program in Kenya, therefore, is not needed at this time, and this high-level non-generation role could be played by the Ministry of Energy. The intended role, which is not nuclear-related, can be efficiently played by the respective entities. he implication of the costs of running NuPEA as a separate entity cannot be justified.”
Whole Kenya began considering nuclear electricity in 2008, a first plant had been proposed to be built by 2020 but this target was moved to 2027 and then later to 2037. It is interesting that the task force recommended the amendment of Section 54 of the Energy Act, which established NuPEA barely two be transferred to a department within the Ministry of Energy to manage the development of general nuclear energy policy. The question that begs is: Do we even need nuclear energy at all? As things stand, countries as France and Germany that have far much advanced technology and regulatory frameworks in place for nuclear energy are cutting down on their use of nuclear energy for its potential negative effects if not well handled. In fact, Germany has put in place long term plans to phase out their plants.
Given the nuclear energy trends among major players as highlighted above even before Kenya launches its own nuclear power project, shouldn’t the Government be considering focusing on other more affordable and safer sources of renewable energy? In any case, Kenya is already hailed as one of the notable producers of renewable energy such as wind power and geothermal power. There is a need to explore these at a higher scale because while they are not cheap to produce, nuclear energy may even prove more expensive and complicated to run due to the potential risks.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., “Exploring Alternative Sources of Energy in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2020/10/Exploring-Alternative-Exploring-Alternative-Sources-of-Energy-in-Kenya-Kariuki-Muigua-PhD.pdf, Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.
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