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Courts struck blow for local communities

CASE

Hopefully, the judgment will serve as a wakeup call to all concerned actors. file photo | nmg

The implementation of the Lamu Port South Sudan- Ethiopia Transport Corridor (Lapsset) project has been going on for several years now.

As envisioned, the project has several components, including construction of a port in Lamu, a railway line from Lamu and a resort city in Lamu amongst other components.

While the above were poised to transform the development status of Lamu, community members from Lamu went to court to challenge certain aspects of the Lapsset project amongst them lack of public participation, violation of the right to a clean and healthy environment and interference with the culture and fishing rights of the local communities.

In a detailed judgment issued last week, the High Court gave orders in favour of local communities, requiring that the project pays compensation to the tune of some Sh1.07 billion and puts in place a plan for robust participation and protection of the cultural identity of the region even as the construction proceeds and long thereafter.

The court’s decision struck at the heart of the contestation between the desire for development and the need to preserve the traditional practices of communities in whose area development takes place.

This challenge has long accompanied any large scale infrastructural and other development initiatives. Way too often these projects are designed oblivious of the dangers they pose to communities.

Whenever concerns are raised, the arguments in response normally disregard these complains on the basis that transformation of societies and local economies brought about by such developments outweigh the inconveniences.

As a young law student, I was always impressed with the ground-breaking decisions from courts in India and Pakistan protecting rights of local communities.

A few years ago, the African Commission on Human and People’s Rights also gave a celebrated decision in favour of the cultural and property rights of the Endorois community in Baringo.

One of the reasons for the decision was the failure by the Kenyan government and courts to respect and protect the rights of the local Endorois community.

It is for this reason that the decision by thefour Judges of the High Court in the case of Mohamed Ali Badi and Others versus Attorney General and Others brought by residents of Lamu against the Lappset project is laudable.

In the decision, the courts provide a very useful balance between the arguments in favour of the environment and those in favour of development.

They demonstrate that the quest for sustainable development captured both in Article 10 of the Constitution and part of Kenya’s international obligations is not an idle aspiration. It is both possible but also necessary. In seeking development, we cannot disregard the cultural practice of local communities.

The decision is also awake up call for project proponents, the Government and the National Environment Authority (Nema).

READ: Court orders State to pay Lamu fishermen Sh1.7bn in Lapsset compensation

The environmental regulator is expected to be at the forefront of ensuring that environmental concerns are addressed before any proposed project starts off. However, in the above case, it made arguments whose tenure suggested that they neither valued nor made adequate efforts to discharge their responsibilities.

Tools for environmental assessment are included in our environmental laws. While these assessments are routinely carried out, the decision by the courts in this case, confirm that the assessments are treated more like a routine.

They do not offer an avenue for robust conversations, for detailed assessment of proposed impacts on the environment and society and thus become a basis for objective decision making. Nema will continue failing in its duties, if it does not start being innovative and strong in its protection of the environment.

The courts have demonstrated in the Lappset case that they fully appreciate that sustainable development is about balancing economics, environment and society so that our development pathways as a country is sustainable and beneficial.

In addition, we cannot pit development and the environment against each other. Hopefully, the judgment will serve as a wakeup call to all concerned actors. A starting point would be to read it, digest its contents and develop a clear road map for its implementation.