By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*

The most pressing energy justice concerns in Kenya at the moment include limited access to energy, high energy costs, lack of transparency, accountability and public participation in energy governance and limited adoption of renewable energy across the country. These are discussed in detail here below along with proposals for the way forward in addressing them in enhancing energy justice in Kenya.

Promoting Access to Energy

It has been reported that Kenya has witnessed one of the fastest growth in electrification within Sub-Saharan Africa with 75% of the population having access to electricity by the year 2018. The National Electrification Strategy is geared towards achieving universal electricity access to all households and businesses by the year 2022. The country has also been hailed for making notable progress in deploying renewable sources of energy. However, while the country has made great strides towards electrification, there exists a wide disparity in electrification between urban and rural areas with 84% of the population in rural areas not having electricity connection. Further, it has been reported that a household in Nairobi is 36 times more likely to have electricity than a household in Turkana or Tana River Counties. Such disparity in access to energy creates energy justice concerns with the poor and rural areas being the most affected. With the essential importance of energy as human need, it is necessary to ensure equity and fairness in respect to energy access.

In addition, household energy needs entail two components, namely, access to clean cooking facilities and access to electricity. While Kenya has made notable progress towards enhancing access to electricity through measures such as the rural electrification programme, progress remains slow in promoting clean cooking facilities. Bio-energy sources such as charcoal, wood fuel and dung remain the most common source of energy in Kenya especially among the rural population. However, use of these sources is associated with environmental challenges such as air and soil pollution and environmental degradation through deforestation. Further, it is estimated that almost 500, 000 premature deaths per year in Africa are related to household air pollution from the lack of access to clean cooking facilities, with women and children the worst affected.

There is thus an urgent need to enhance access to clean cooking facilities in Kenya. Liquefied Petroleum Gas (LPG) has been promoted as an alternative but its use is largely concentrated in urban areas due to its associated costs. Under the Energy Act, the government is mandated to facilitate provision of affordable energy services to all persons in Kenya. Measures can be put in place to enhance access to clean energy sources such reducing the costs of LPG to promote its affordability. Further, costs related to electricity such as connection charges and billing costs should be made affordable for the benefit of all Kenyans especially those in rural areas.

The Need to Lower and Stabilize the Energy Costs

Energy costs relate to the expenses of being connected and equipped with energy sources and the cost of the energy used. Energy affordability remains a challenge in most sub-Saharan African Countries due to the high cost of power relative to income. Consequently, reports have shown that electricity prices in Kenya are higher than the global average at the rate of 0.224 U.S Dollar per kWh for households and 0.192 U.S Dollar for businesses against a global average of 0.15 U.S Dollar per kWh for households and 0.12 U.S Dollar for businesses. Other sources of energy such as kerosene are affected by international prices thus unpredictable and unreliable especially among the poor.

In addition to the ongoing activism which has seen the Government being dragged to court in an attempt to arrest the escalating energy, it is noted that recently the President committed to lower the cost of electricity by 30% before the Christmas holiday. This came after the report of the Presidential Taskforce to review Power Purchase Agreements to address concerns about the high cost of electricity. The John Ngumi led Taskforce made a raft of institutional and policy recommendations in reducing the cost of electricity which saw the President deploy a new Energy Minister to oversee their implementation. There is no question the proposals to lower the cost of electricity and energy in general will have a ripple effect on other sectors given the role of energy in production.

The use of litigation to tackle the energy cost has also seen Kenya Human Rights Commission (KHRC) and individual litigants sue the Energy and Petroleum Regulatory Authority (EPRA) and other Government agencies to compel them to lower the rising cost of fuel. The high and many taxes imposed on electricity and fuels in Kenya have been identified as major reason for the high cost of energy. Recently, the High Court also gave a judgment allowing a 300MW Wind Power Plant in Marsabit after 10 years delays which is likely to lower the cost of power to proceed after undue delays. The Government has also launched a number of projects to subsidize modern and efficient household energy sources although many have met little success and more needs to be done.

Promoting Transparency and Accountability in Energy Governance

The country has in recent past witnesses several scandals in the energy sector that have threatened to derail progress towards energy efficiency and security in the country with key players being hit with numerous fraud allegations. Further, the botched Mwananchi Gas Project by the Ministry of Petroleum that was aimed at providing LPG cylinders to Kenyans at subsidized costs saw taxpayers lose more than Kenya Shillings 870 million due to shortcomings in its implementations. Effective implementation of such a plan would have been crucial in enhancing access to clean cooking facilities in the country. Such scandals have contributed to energy injustices in the country since they hinder the ability of citizens to access reliable and affordable energy services.

There is need to strengthen accountability mechanisms in the energy sector and ensure that the perpetrators of such acts are held accountable for their misdeeds. Energy Service providers such as Kenya Power should also be transparent in their affairs and ensure that citizens are aware of their obligations and are billed according to the services they consume. The Energy Act mandates the Director of Public Prosecutions (DPP) to appoint a public prosecutor for purposes of prosecuting offences under the Energy Act. This is an important step in ensuring prosecution of perpetrators of energy injustices in the country with a view of promoting energy justice.

Promoting Renewable Sources of Energy

The Energy Act defines renewable energy as ‘non-fossil energy generated from natural non-depleting resources including but not limited to solar energy, wind energy, biomass energy, biological waste energy, hydro energy, geothermal energy and ocean and tidal energy.’ Renewable energy has been hailed for its advantages which include ensuring the security of energy supply. Energy security is an essential component of energy justice since it guarantees availability of energy necessary to fulfil basic human needs.

The Energy Act establishes the Rural Electrification and Renewable Energy Corporation whose functions include inter alia to develop, promote and manage in collaboration with other agencies, the use of renewable energy and technologies, including but not limited to biomass (biodiesel, bio-ethanol, charcoal, fuel-wood, biogas) municipal waste, solar, wind, tidal waves, small hydropower and co-generation but excluding geothermal. The Corporation needs to further its efforts in promoting renewable sources of energy apart from biomass which still remains the most common source of energy in Kenya. This will be vital in promoting energy security which is an important element of energy justice.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., Towards Energy Justice in Kenya, Available at: http://kmco.co.ke/wp-content/uploads/ 2020/02/Towards-Energy-Justice-in-Kenya-00000005.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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