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.
- Bloomberg, ‘Kenya on Course for $5 Billion Nuclear Plant to Power Industry,’ https://www.bloom berg.com/news/articles/2020-08-04/kenya-on-course-for-5-billion-nuclear-plant-to-power-industry (4 August 2020) accessed 19 August 2020.
- Bodansky, D., ‘Nuclear Energy: Principles, Practices, and Prospects,’ (CERN Document Server, 2008) https://cds.cern.ch/record/1109377 (accessed 19 August 2020).
- Bukszpan, D., ‘11 Nuclear Meltdowns and Disasters’ (CNBC, 16 March 2011) https://www.cnbc.com/ 2011/03/16/11-Nuclear-Meltdowns-and-Disasters.html (accessed 6 October 2020).
- Gioia, A., “The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation. Explanatory Texts.” (2007): 5-99 < https://www. pub.iaea.org/MTCD/ Publications/PDF/P1768_web.pdf> accessed 8 September 2020.
- International Atomic Energy Agency, ‘Nuclear Energy for Peaceful Uses,’ https://www.nti.org/ learn/treaties-and-regimes/international-atomic-energy-agency/ (accessed 6 October 2020).
- International Atomic Energy Agency, “IAEA Reviews Progress of Kenya’s Nuclear Infrastructure Development,” Available at: https://www.iaea.org/newscenter/pressreleases/iaea-reviews-progress-of-kenyas-nuclear-infrastructure-development (accessed 14 November 2021).
- Kawi, ‘Background’ (Ministry of Energy), Available at: https://energy.go.ke/?page_id=439 (accessed 28 September 2020).
- Nuclear Regulatory Act, No. 29 of 2019, Laws of Kenya.
- Owiro, D., G. Poquillon, K. S. Njonjo, and C. Oduor. “Situational analysis of energy industry, policy and strategy for Kenya.” Institute of Economic Affairs (2015) < https://media.africaportal.org/ documents/Situational-Analysis-ofEnergy-Industry-Policy-and–Strategy-for-Kenya_1.pdf> (accessed 28 September 2020).
- Republic of Kenya, National Energy Policy, October, < https://kplc.co.ke/img/full/BL4PdOqKtxFT _National %20Energy%20Policy%20October%20%202018.pdf > accessed 30 September 2020.
- Strupczewski, A. “Accident risks in nuclear-power plants.” Applied Energy 75 (2003): 79-86.
- The Star, ‘A Case for Nuclear Energy in Kenya,’ https://www.the-star.co.ke/opinion/columnists/ 2019-04-05-a-case-for-nuclear-energy-in-kenya/(accessed 19 August 2020).
- The Star, ‘A Case for Nuclear Energy in Kenya,’ Available at: https://www.the-star.co.ke/opinion/ columnists/2019-04-05-a-case-for-nuclear-energy-in-kenya/ (accessed 19 August 2020.)
Former KCB Company Secretary Sues Over Unlawful Dismissal
Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.
Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.
In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.
He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.
“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.
Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.
Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.
He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.
“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.
Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.
He wants further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.
Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.
He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.
He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.
He adds that at that point his roles were given to Okumu for reasons that were not related to work demands. He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.
Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.
“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.
He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.
Court of Appeal Upholds Eviction of Radcliffes from Karen Land
The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.
Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:
“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”
On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.
The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.
The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.
At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.
The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.
As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.
Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.
Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1
The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.
Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.
Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.
Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.
Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.
Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.
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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1
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