Why Kenya should tread carefully on water dam projects 

The next war will be over water. This is the surreal predication of many leading hydro-climatologists who actually see many of the world conflicts today, including the Israel-Palestine conflict, as egged along by the quest for control of water resources.

Global investment banking, securities and management firm, Goldman Sachs has identified water as ‘the next petroleum’.

Either way, the reverberations of possible loss of water for Murang’a and downstream communities of the Mount Aberdares and Mau water basin because of the multi-billion shilling Northern Collector Tunnel and Itare dam are now stuck in the muddle of politics but will surely come back ringing as to whether these were prudent and sustainable projects.

Despite the Murang’a Northern Collector Tunnel being backed by political leaders and technical experts to improve accessibility of water in Nairobi, the World Bank-funded project may not be without blemish.

Many disconcerting questions will follow, long after the political dust on the debate has settled. The project, still in Phase One, will consume Sh6.5 billion and gobble up a similar amount before completion.

A similar fate awaits the completion of the Itare dam in the Mau water tower.

The main fear expressed over the two projects is basically around sustainability. The larger question is whether the country can afford to live with the likely environmental consequences of these developments.

Plausible consequences have been surmised to include desertification in the catchment and the downstream areas as well as future deaths of flora and fauna dependent on the ecosystem of the project basins.

While the debate was quickly sauntered with politics, and the engineering facts seemed to suggest that the project designs catered for the criticisms, rigorous, open and exhaustive discussion on the subject was sacrificed although the environmental fears were not brought to a settlement.

The question is whether it is still necessary to worry about these projects. Let us remember that Kenya’s collective environmental fears found their way in the discussions on the 2010 Constitution, leading to the recognition in Article 69 of the principle of sustainable exploitation of the country’s natural resources and equitable sharing of accruing benefit.

The constitutional principles on use of land also concurred with the arguments, and encapsulated the principle of sustainability in the use of the county land resources.

This requires that large development plans such as the Northern Collector and Itare water projects are put through hard assessments from these facts of the law. 

It is an enduring principle of environmental law, and particularly in the framework to promote sustainable development, that projects with environmental consequences must be implemented cautiously, and that mitigation measures must be undertaken to minimise any environmental negativities even in the absence of scientific proof of the impending damages.

This is known as the ‘precautionary’ principle. The principle is an oft argued hub for the motion against degradation of the environment.

Kenya’s corpus of environmental laws, including the Environmental Management Coordination Act (EMCA) as well as the Water Act, under which water resource management is regulated rightly underscore the ‘precautionary’ principle.

The requirement for environmental impact assessments (EIAs) before approvals of development projects of this nature is a stamp of authority in this direction.

Nonetheless, EIAs are expectedly nefarious in jurisdictions like this one in which the rule of law is still hampered by many factors, including low level of legal consciousness among citizens as well as the age-old problem of ‘food first democracy’ in which basic survival is stressed over ideal notions like environmental integrity. 

Arbitrating social and environmental consequences in water projects have been negotiated heavily in terms of transnational water courses, giving rise to several considerations that development projects must observe for sustainability. 

Many of the principles are linked to the consensus built by the International Law Association on international water resources known as the Helsinki Rules (1970). 

Kenya is a regional powerhouse in the articulation of these rules as seen in the dynamics of the Nile water basin in which the position of the country has largely supported these principles.

Just like her East African upstream riparian neighbours, Uganda and Tanzania, it has been questioning the belligerence of Egypt in the discussions on the Nile Basin Cooperative Framework Agreement, insisting on fair, equitable and reasonable use of the Nile water.

As such, the downstream counties that are likely to be affected by the water projects involving the rivers flowing from the Aberdares or Mau water catchment areas have legitimate worries about these developments.

This is only pragmatic, even were it not to be founded on any scientific evidence. The way to address the problem is to get back to the constitutional obligation of the government to pitch exploitation of the water resources on sustainability, whether it is necessary to drive the water to Nairobi for industrial expansion, human use or other developments.

The only way to do so is first to address relevant issues of equity, ecology and economic considerations in the project, not to politicise them or make them appear frivolous. 

Sustainability in the use of the water resources is at the core of understanding the principle of equitable and reasonable use.

Water security remains a very sensitive subject, and even for national stability, it as an important issue to address because local disagreements on water allocations can sometimes escalate.

In Tana River, Kwale and Isiolo counties, to mention a few, differences over the use and access to water has cost lives.

In the past, this was almost a perennial problem but overtime, it is getting handled better by actors who routinely use some of these common principles to address the grievances.

Well, one category in the use of water does not enjoy priority over another. It is fundamental to appreciate this point wherever you are dealing with the concept of ‘use’ related to water.

For example, in the Tana delta, Pokomo farmers will certainly have a different perspective on the use of the water from the Orma herders, leading to a disagreement.

Nevertheless, there is a good level of agreement that the use of water to satisfy vital human needs must be considered in any water allocation framework as a critical starting point.

For both the Northern Collector and Itare water dam projects, issues will certainly arise as to whether the water providers will bypass villagers with the much-needed resource only to take it to other areas.

This is a ‘local factor condition’ in Kenya that cannot be assuaged by politics, but action. Many remember the Nol Turesh water project, which bypassed vital human water needs in Machakos County to irrigate flower farms several miles away. 

Whether at the international or regional level, the same principles create a good beacon to moderate differences regarding water allocation projects.

In the Eastern European classic case involving Hungary and Czechoslovakia (1977-1997), the integrated Gabcikovo-Nagymaros Project on River Danube was thrown into disarray after the former expressed fears that the joint project would significantly alter the levels of water it received and posed ecological problems.

After squabbles, the dispute was referred to the International Court of Justice which ruled for the suspension of the project until the environmental issues are addressed based on the precautionary principle. 

We can now end by going back to where we started this discussion: The Helsinki principles confirm the right of every individual to equally access water to sustain life without discrimination.

Nations are required to take appropriate steps to sustain and manage water resources in ways that minimise environmental harm, or take action that do not result in a shortage of life-sustaining water for civilians or that may cause undue ecological damage.

Aluoka is a PhD Student, Centre for Advanced Studies in Environmental Law and Policy (CASELAP), University of Nairobi.