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When SEA is Necessary: Review of Mohamed Ali Baadi & others v AG & others

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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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Why is THE LAWYER AFRICA Listing Top Law Firms and Top Lawyers?

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The Litigation Hall of Fame | Kenya in 2023 (The Most Distinguished 50 Litigation Lawyers in Kenya).

We live in the age of information overload where too much information (TMI) is increasingly making it difficult to find actionable legal data about a good law firm or lawyer. At the same time, legal services are increasingly going digital and finding your next lawyer is a now a matter of a few clicks. Many existing, new and potential clients are interested to know more about the lawyer handling or likely to handle their next case or transaction as every HR Manager seeks to know how their In-house Lawyer or next hire compares to peers.

The biggest dilemma especially for commercial consumers of legal services  is where to begin the journey in finding the law firm or the lawyer to meet their immediate legal need created by their new venture,  business, transaction or dispute. In-house counsel are also called upon to justify opting for one lawyer or law firm or over the other.  Hence, the rise in the popularity of international law directories rankings as an attempt to fill the yawning gap by listing a few dozen lawyers and law firms in esoteric categories that often don’t align with the legal needs of the domestic legal market.

But ranking two dozen elite lawyers or big law firms in a big jurisdiction like Kenya there are over 20,000 lawyers is merely a drop in the ocean. The result is the same candidates are listed year after year and an In-house Legal Team looking to infuse new blood in their external counsel panel is left very little discretion. At best, International legal ranking only succeed to tilt the scales in favour of few big firms and their lawyers and to aid the choice of International Legal buyers who are constrained for time in picking their External Counsel in jurisdictions where they cannot find referrals.

The questions that beg are: What about the other top law firms and lawyers who are equally good if not better but don’t have the time to fill the technical paperwork that comes with International Legal Directories rankings? What about Domestic Legal Buyers who simply want to justify why they prefer a lawyer or law firm not listed in the International Directory? Can increasing the number of listed lawyers or law firms from less 0.1% of the profession (as captured by International Law Directories) to at least 1% of the profession or higher for those specializing in the practice area help in enhancing access to justice in Africa? Can ranking law firms by number of fee earners help in the quest for a more accurate bird’s eye view of a country’s legal landscape?

At THE LAWYER AFRICA, we have set out to list Top Law Firms and Top Lawyers in the various practice areas in a way that democratizes law rankings and listings and brings this essential value add within reach of most lawyers and every law firms doing top legal work. We don’t promise to list all the top lawyers or law firms, but we commit to make sure every lawyer or law firm we list is at the top of the game in the listed practice area. We aim to help both little known and already known law firms and lawyers doing top legal work in their area of specialization get discovered by discerning clients and possibly get more opportunities to do great work.

THE LAWYER AFRICA is looking to list up to Top 200 Law Firms in every African Jurisdiction based on their reputation and number of fee earners headcount with a goal of listing at least Africa’s Top 1,000 Law Firms which are leaders in their respective countries. We also seek to list up to Top 1,000 Lawyers in every country in Africa in at least five main practice areas, namely, Litigation, Commercial Law, Property law, In-house and Private Sector or more.

THE LAWYER AFRICA categorizes law firms in large jurisdictions as Top 5, Top 10, Top 20, Top 50 and Top 100 (and allow tying where number of counsel is equal). The Top Lawyers are listed in three categories, namely, Hall of Fame (the Distinguished Top 50 or 75 Practitioners in a Practice Area), Top 100 (the Leading Top 100 Practitioners in a Practice Area) and Up-and-Coming (the promising Top 50 or 75 Practitioners in a Practice Area).  The placing of a listings depends on a number of key factors including the number of key matters or transactions handled, years in practice and experience, size of team working under a counsel, reputation and opinion of peers (where available) as established by THE LAWYER AFRICA.

THE LAWYER AFRICA prefers to list a counsel in only one listing, as far as possible. The Team tries (as far as possible) not to contact listed law firms or lawyers before the listing is finalized in the first. However, a listed law firm or lawyer may be contacted at the pre-launch stage of a list for purposes of selling merchandise relating to the launch but such engagement will not affect the listing. In case of future listings, it is expected that interested lawyers or law firms who feel they were previously left out of the list may to provide information for consideration to determine if they qualify for the next listing but that will not guarantee any listing.

THE LAWYER AFRICA undertakes not to charge for listing any lawyer or law firm. However, upon publication of a listing, as part of recovering the sunk costs we incur in the research and publication of the listings, we shall charge a token for printing and shipping of Quality A3 Certificate for listed Law Firms and/or A4 Certificate for listed Lawyers who wish to have or display the branded souvenirs or to use our proprietary digital materials in their business  branding. We may also charge listed and unlisted law firms and lawyers an affordable fee for limited banner advertising or publishing of enhanced profiles next to the listings.

For any question or feedback on any list or listing, feel free to contact THE LAWYER AFRICA PUBLISHER at info[at]thelawyer[dot]africa.

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The Roles of the Three Parts of the Permanent Court of Arbitration

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H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

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Brief History of the Permanent Court of Arbitration (PCA)

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By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.

Reference

PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25th May 2023).

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