Kenya has been at the heart of a long and controversial debate between infrastructure development and conservation.
Despite this, there is a growing understanding that the State needs to facilitate economic growth by investing in development projects. But the government also needs to honour and protect the unique natural heritage.
Unfortunately, the Energy Bill 2017 and the Petroleum (Exploration, Development and Production) Bill 2017 currently at the National Assembly fail to recognise the need to conserve the protected areas.
Article 206 (1) of the Energy Bill (2017) states that: “For the purpose of the production, conveyance and supply of energy, a licensee may erect, fix, install or lay any electric supply lines, oil or gas pipelines, other infrastructure or apparatus in, through, upon, under, over or across any public street, road, railway, tramway, river, canal, harbour or government property, including forests, national parks, reserves and heritage sites, in the manner and on the conditions as provided in this Act.”
This provision, unless reviewed presents the greatest threat to our critical ecological systems in recent times as it fails to exempt protected areas from the installation of structures associated with energy production, conveyance and supply.
The clause contravenes the Environmental Management and Coordination Act 2015 and other sectoral laws on forests, wildlife, wetlands and marine, which are protected areas.
Protected areas are landscapes or seascapes that have been surveyed, demarcated and gazetted.
They include various types of ecosystems namely: parks, forests, wetlands, and Savannah, marine, arid and semi-arid areas.
Any access to or utilisation of such protected areas should only be done in accordance with environment Act, the sectoral laws and their respective management plans.
Therefore, article 206 (1) of the energy Bill and article 107 (1) of the petroleum Bill need to be reviewed to exempt protected areas, which are only about eight per cent of the total land area, from energy and petroleum associated infrastructure.
Protected areas are the cornerstones of biodiversity conservation and the sustainable use of natural, cultural and social capital, yielding flows of economically valuable goods and services that benefit society and secure livelihoods.
They are also key to buffering communities from unpredictable impacts of climate change and are necessary for maintaining ecosystems as our life support mechanisms.
Any detrimental impacts to these critical terrestrial and marine ecosystems will only lead to the ‘tragedy of the commons’.
In this regard, the Bills should be subjected to strategic environmental assessment to ensure that all possible impacts of the energy and petroleum development to the environment are identified and appropriate mitigation measures developed.
Additionally, management plans for all protected areas should be developed and gazetted to guide any development or activities in these areas.
It is also my expectation that the State Law Office will give these Bills a thorough scrutiny to ensure that they are coherent and in harmony with other sectoral laws.
Julius Kamau is Executive director, East African Wildlife Society.