The High Court has ordered the government to pay Sh1.76 billion in compensation to 4,600 fishermen in Lamu County affected by the Lapsset project.
The four-judge bench at Malindi ordered the government to make full payment within one year from the judgment date.
Justices Pauline Nyamweya, Joel Ngugi, Beatrice Jaden and John Mativo said the local fishermen are entitled to full and prompt compensation for the loss of their traditional fishing rights.
“Failure or delay to compensate them is unfair, discriminatory and a gross violation of their rights to their traditional fishing right and their right to earn a living,” said the judges.
The court directed the payment be done in line with the Project Proponent as identified in the judgment: “Fisheries Resource Valuation and Compensation: A Report for Consideration by Lamu Port and Coal Plant Power Generation Company in Lamu.”
The bench was delivering a judgment where fishermen, led by Mr Mohamed Ali Baadi had challenged the Sh2.6 trillion Lamu Port-South Sudan-Ethiopia (Lapsset) project.
The fishermen said they were not consulted or even compensated like land owners despite it affecting the environment, their cultural and traditional fishing rights.
The fishermen who had presented environmental experts to testify in the case filed in 2012 argued that the ongoing dredging at the Indian Ocean in Lamu for the construction of Lamu Port has destroyed mangrove forests, sea grass, and coral reefs which are fish and turtle nesting areas.
Rights to culture
The judges also noted that the project runs a risk of inevitably violating the various components of the right to culture of the petitioner and the indigenous residents if implemented in the projected manner.
“Failure to have prior consultation with the indigenous community in Lamu Island about the potential cultural impacts of the Lapsset project on the culture of the Lamu Island was a violation of the petitioner right to culture…,” said the judges.
The judges also said the government violated the petitioner’s right to culture by failing to draw up a plan to preserve the island as a Unesco World Heritage site.
Therefore, the court directed the Lapsset Project Proponent to include a specific programme for public participation with petitioners and other Lamu Island residents on the project's impact on culture and how to mitigate any adverse effects.
“That the government is hereby directed to draw up a Management Plan to preserve Lamu Island as a Unesco World Heritage site as requested by various declarations by Unesco within a year from today,” they said.
The judges also directed Attorney-General Paul Kariuki to report to the court on the progress of a plan to preserve the island as a Unesco heritage site within six months.
The judges found out that the proponents failed to carry out a strategic environmental assessment before embarking on the individual components of the project.
The court also ruled they did not adhere to their environment impact licence requiring them to compensate local fishermen and provide fishing gear and modern landing sites.
“The project proponents failed to adhere to the EIA Licence, which clearly requires the Ministry of Infrastructure and Energy to develop a detailed Environmental Monitoring and Management Plan for the first three berths...” they said.
The court thus directed that the EIA licence be returned to the National Environment Management Authority for further action in accordance with the judgment.
It ordered the national government to ensure the Lamu County government and other government agencies are involved in the Lapsset consultations and implementation.
The judges also ordered the government to pay for costs of the petitioner’s witnesses and experts they incurred in the case.