By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The Petition concerned the design and implementation of the Lamu Port-South Sudan-Ethiopia-Transport Corridor project (“the LAPSSET Project”) and was launched in the High Court at Nairobi on 25th January 2012. The Petitioners case was that the LAPSSET Project was designed and implemented in violation of the Constitution and statutory law. Additionally, the Petitioners complained that the project will have far reaching consequences on the marine ecosystem of the Lamu region in terms of the destruction of the mangrove forests, discharge of industrial effluents into the environment, and effects of the fish species and marine life. In other words, the Petitioners claimed that the LAPSSET Project will have far reaching environmental effects adverse to them, which have not been adequately taken into consideration in the design and implementation of the LAPSSET Project. Finally, the Petitioners claimed that if the project is implemented as designed, it will affect their cultural heritage and way life as well as their livelihoods.
One of the arguments upon which the Petitioners based the Petition was the procedural impropriety of embarking on a mega-infrastructural project of the LAPSSET magnitude without SEA. They challenged the legal position taken by the Respondents and the Interested Parties that SEA was not required. The Petitioners asked the Court to pronounce itself on the prospective consequences of failure to conduct SEA if indeed one was required. Second, the Petitioners argued that the methodological flaws in the SEA process were bound to generate outcomes which will be devoid of substantive environmental and cultural concerns of the Petitioners at a time when the path and design of the Project would be inescapably established. At that point, therefore, it would be futile and moot to challenge the SEA process. The court was invited to note the evolution of Environmental Law to move from reactive regime that exists merely to minimise environmental damage after it has occurred or become inevitable to a proactive approach that ensures that action is taken to reduce, mitigate and manage environmental impacts before they happen. The court acknowledged that it is this proactive approach has come to be known as the precautionary principle in environmental governance and adjudication. The Court found that to the extent that an argument is made that SEA should have been carried out before the commencement of the LAPSSET Project and none was undertaken at the commencement of the LAPSSET Project, then, the question whether the LAPSSET Project was procedurally infirm is a ripe question for consideration by this Court.
The Petitioners, inter alia, based their constitutional attack on the LAPSSET Project upon procedural defects in the conceptualization and implementation of the Project and argued that the entire process of conceptualization and implementation of the LAPSSET Project was irredeemably flawed and the proponents of the Project proceeded in complete disregard of basic Constitutional principles and statutory law. The Petitioners insisted that the Project suffered from procedural infirmities which included the fact that the SEA was not done at the commencement of the Project as legally required and when ultimately embarked upon, SEA was not properly done to adequately account for all public policies, plans, programs and impacts of the Project. The Petitioners submitted that no SEA was conducted but instead the LAPSSET Project was started with an EIA Licence which addressed the first three berths of the Lamu Port, yet the Project involved other components such as construction of an oil pipeline, railway and coal power plant. In counsel’s submissions, well defined goals ought to have been identified early and incorporated in the assessment of the Project’s viability in conformity with the principles of sustainable development which requires a precautionary approach with regard to human health, environmental protection and sustainable utilization of natural resources. It was pointed on behalf of the Petitioners that there were significant gaps in the SEA such as inadequate program alternatives, inadequate assessment of threats to local water supplies, air pollution and threats to marine life.
The respondents argued that commencement of the LAPSSET Project, and that it only became necessary after the amendment to the law by Act No. 5 of 2015 which inserted the new section 57A to provide for SEA, and to give effect to the guidelines on SEA that NEMA had passed in 2012. Their argument was that while the NEMA Guidelines of 2012 provided for SEA, they were not yet effective because they did not have statutory backing until 2015. As a consequence, the Respondents and the Interested Parties argued, that there was nothing improper in embarking on the SEA process after the commencement of the LAPSSET Project. In the same vein, the Respondents argued that the nature of SEA is such that it can be conducted both ex ante and ex post – and neither mode of conducting is privileged or is more prudent or preferred than the other. Hence, the Petitioners should allow the SEA process to be completed.
In its judgement, the Court described SEA thus:
“177. On the other hand, NEMA Guidelines define Strategic Environmental Assessment (SEA) as “a range of analytical and participatory approaches to integrate environmental consideration into policies, plans, or programs (PPP) and evaluate the inter-linkages with economic and social considerations.” SEA is a family of approaches that uses a variety of tools, rather than a single, fixed, prescriptive approach. The SEA process extends the aims and principles of Environmental Impact Assessment (EIA) upstream in the decision-making process, beyond the project level, when major alternatives are still possible. As NEMA states in its guidelines, “SEA is a proactive approach to integrate environmental considerations into the higher levels of decision-making.” 178. Hence, during a SEA process, the likely significant effects of a Policy, Plan, or Program (PPP) on the environment are identified, described, evaluated, and reported. The full range of potential effects and impacts are covered, including secondary, cumulative, synergistic, short, medium, and long-term, permanent, and/or temporary impacts. 179. Stuart Bell & Donald McGillivray authoritatively state that EIA and SEA should be an iterative process, in which information that comes to light is fed back into the decision making process. First, a truly iterative process would ensure that the very design of the project, plan, or programme would be amended in the light of the information gathered and secondly, and also ideally, it would also involve some kind of monitoring of environmental impact after consent or approval has been given.”
The Court found for the petitioners and held that:
“182. On our part, we are not persuaded that SEA was not a required legal step prior to the EMCA amendments of 2015 as the Respondents and the 1st and 3rd Interested Parties argued. It is true that a new section 57A of EMCA was added in 2015 which specifically provided for SEA. However, as early as 2003, NEMA’s own regulations -the Environmental (Impact Assessment and Audit) Regulations, 2003 – at Regulation 42 provided as follows: 42 (1) Lead agencies shall in consultation with the Authority subject all proposals for public policy, plans and programmes for the implementation to a strategic environmental assessment to determine which ones are the most environmentally friendly and cost effective when implemented individually or in combination with others… (3) The Government, and all the lead agencies shall in the development of sector or national policy, incorporate principles of strategic environmental assessment.” 183. It seems clear to us that NEMA envisaged that SEA will be required for some Projects with significant environmental and cumulative impacts where Policies, Plans and Programmes are implicated. There was no need to have specific backing in the text of the statute for this aspect of the regulations to be effective. …”
In conclusion, the Court in justifying its finding that the SEA was procedurally infirm stated:
“186. Given the analysis above, it is our finding and conclusion that the proponent of the LAPSSET Project was duty bound to conduct SEA before the commencement of any of the individual Project’s components. Our conclusion is based not only on the text and content of the law but on the nature and magnitude of the LAPSSET Project. This is a necessary reading of the environmental governance principles contained in our Constitution including Articles 10, 69 and 70. These Articles among other things require a proactive approach to integrate environmental considerations into the higher levels of decision making for projects with the potential to have significant inter-linkages between economic and social considerations.”
*This article is part of the series on Principles of Natural Resources Management in Kenya by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. 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 2022.
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