Kenya on the spot for delaying rules to curb ocean pollution

Kenya is under pressure to speed up enactment of strict anti-ocean pollution laws as more states adopt the Nairobi Convention on Wreck Removal, eight years after its adoption.

Cyprus will adopt the convention on Thursday next week, joining a long list that includes Nigeria, Liberia, Morocco, Congo, Antigua and Barbuda, Bulgaria, Cook Islands, Denmark, Germany, India, Iran, Malaysia, Marshall Islands, Palau, and the United Kingdom.

Malta and Tuvalu also joined the treaty this year (in April and May respectively), one year after it came into force in April last year following ratification by at least 10 signatories.

Kenya has been under pressure to lead from the front since the convention was adopted at a five-day International Conference at the Nairobi United Nations office in 2007 and named after the capital city.

The Nairobi Convention compels vessel owners to locate, mark and remove hazardous wrecks with the signatory state assuming power to make certification of insurance, or other form of financial security for such liability, compulsory for ships of 300 gross tonnage (gt) and above.

The treaty also empowers regulatory agencies of signatory states to take direct action against the overseas insurers of such vessels.

Last year, Environment minister Judi Wakhungu published the Prevention and Control of Marine Pollution Bill – which seeks to impose the Nairobi Convention laws on ships that ply Kenya’s portion of the Indian Ocean – to seek public comments.

Under the proposed laws which are yet to pass through Parliament, offshore oil drilling firms would have to buy insurance worth at least 40 million units of Special Drawing Rights (SDRs) to cover risks linked to their operations.

In case of liability such as pollution or an oil spill, the unit of SDR – valued by weighting the US dollar, euro, British pound and yen – would be exchanged into Kenyan shillings at rates determined at the time by the International Monetary Fund.

Prof Wakhungu wants ships below 5,000gt to have a liability limit of 4.51 million SDRs while vessels above that capacity would pay 4.51 million units of SDRs plus 631 units for each extra tonne, up to a maximum amount of 89.77 million SDRs.

The Bill also requires any ship that intends to carry hazardous substances to maintain insurance or other financial security such as a bank guarantee in the amounts equivalent to the value of damage likely to be caused in Kenya’s waters.

It states: “Any person who engages in bunkering business on Kenya’s waters or imports more than 150,000 tonnes of oil per year to contribute to the International Fund for Compensation for Oil Pollution Damage at rates to be determined by the director general of the Kenya Maritime Authority (KMA).”

It strictly forbids ship masters, owners or agents from dumping or incinerating of waste under Kenya’s waters without approval of KMA.

Delays in enacting laws that enforce the convention means Kenya does not have a legal basis to order the removal of dangerous wrecks despite heightened activity at its shores which includes drilling and oil transportation.

Industry players have already criticised Prof Wakhungu’s proposals saying all trading ships of over 500gt already comply with the International Maritime Organisation’s Convention for the Prevention of Pollution.

“The proposed legislation intend to penalise ship owners whose vessels are plying Kenyan waters, over and above their insurance cover offered by the P&I Clubs,” an executive of a top international shipping line said in an e-mail reply to the Business Daily.

“The master and owners of the ships are always fully aware of their responsibilities as per the existing code of practice that has been in operation for many years.”

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