Tough lesson from wind farm land case


A KPLC wind power turbine. PHOTO | ANTHONY KAMAU

Last week, the High Court in Meru nullified the title deed for the land on which the Lake Turkana Wind Power project sits after establishing that due process was not followed in setting apart the 150,000 acres of community land.

The company acquired a 33-year lease for the 150,000 acres to develop a 300MW wind power farm near Loyangalani.

The project is on a footprint of 87.5 acres which comprises among others, 365 wind power turbines and a power station with the rest of the acreages acting as a buffer zone for wind generation.

Now, some members of the community petitioned the High Court saying the project has led to the loss of rangeland, water sources and access.

The land is also central to their survival and livelihood as it is their cultural, ancestral and grazing land held under an intergenerational trust for future generations.

This case provides a good example of why investors and government officials get it wrong when setting up mega projects. Officials have the tendency to use their position and influence to acquire land for the way left of infrastructure projects when the government can simply lease it.

This is one reason infrastructure development is costly to taxpayers, who lose a lot of money in land acquisition. There are even cases where senior officials with prior information on where the way to leave will pass buy the land in these places then sell it to the government at a very higher price.

Back to the Lake Turkana Wind Power project, why didn’t the investor simply lease the land from the county government, which is the custodian of the community trust land?

What happened was that the project was approved at the highest levels of government then the Commissioner of Lands processed the title deed putting 150,000 acres of community land in private hands with little involvement of the community. It gets worse when it’s established that there was no compensation to the community for the loss of their land.

How the investors thought they can hive off 150,000 acres — which is the size of Nairobi County — through connections within top government and get away with it is surprising.

The investor was lucky because the judges found that the project was not capable of being cancelled, dissolved, rescinded or vacated therefore it couldn’t cancel the title deed entirely. Instead, the judges gave a one-year period to regularise the title deed.

To avoid all these, the investors should have just leased the community land from the Marsabit county government for 33 years and pay an annual lease fee.

Why the investors wanted the land to be handed over to them for such a passive project suggests there is more than meets the eye in this project. Also, the fact that the investors didn’t want to compensate the community raises a lot of questions about the project.

The practice of government officials acquiring land for the way leave of projects is one that we need to move away from. Telecommunications companies have demonstrated how leasing land to construct cellphone towers is a cost-effective way of doing infrastructure.

Many government projects are expensive because of land acquisition. Projects like the standard gauge railway (SGR) were costly because of land acquisition by government.

For passive infrastructure projects, the government should consider leasing land over acquisition. Take the proposed pipeline from Turkana to Lamu for example.

It has been mentioned that the reason for the delay of the project is land acquisition. Why shouldn’t the government simply lease the land?

In the case of Lake Turkana Wind Power project, leasing was the best option because the project is a passive one, with only 33 years, and an annual leasing fee going to the community. Why the land ownership had to be irregularly converted is a matter of grave concern.