Petitioners from Kenya‘s South East port town of Lamu, who travelled overnight to reach Nairobi for an important judgment that was set to be delivered on 8th May 2019, were disappointed when the National Environment Tribunal (NET) postponed the judgment yet again, until 24th June 2019.
The landmark judgment was to give verdict on a case that was challenging the Environment Impact Assessment (EIA) licence granted by the National Environment Management Authority (NEMA) to Amu Power, a consortium of local sector players Gulf Energy and Centum Investments as well as international actors General Electric and the Investment and Power Construction Corporation of China, the company that plans to build the controversial Lamu Coal Plant.
Kenya’s government announced bids for the project in 2014. Initially meant to begin construction in September 2015 about 21km north of Lamu town in the Kwasasi area, the 8.8 million megawatt-hours coal plant would be built on the island’s doorstep. This is part of an ambitious economic development plan for the coastal region known as the Lamu Port-South Sudan-Ethiopia Transport (LAPSSET) corridor, intended to facilitate the transport of goods and services from landlocked Ethiopia and South Sudan to the Kenyan coast, and also encompass a deep-sea port, a pipeline, a series of resort towns, and other investments in the region.
On the delay in the ruling, some of the petitioners who were not amused, lamenting that the NET had made this a habit throughout the hearing of this case, much to their disadvantage.
Mohammed Mbwana, Save Lamu Vice Chairperson, noted that the NET had similarly cancelled scheduled hearings at the last moment throughout the litigation. Expert witnesses traveled from abroad multiple times to attend scheduled hearings, yet went home without testifying, and ultimately had their testimony excluded, after the court adjourned the case.
“Firstly, you must know that this case has taken a lot of time. We’ve had similar adjournments during the case where our international expert witnesses were not able to testify because the tribunal changed hearing dates on short notice,” said Mr. Mbwana.
This morning, the four sitting members of the tribunal wasted no time from the moment the court sat.
“[The] judgment itself is not ready. There are still issues. It will come on the 24th of June,” NET Chairman Mohammed Balala said, adding that he did not anticipate any further delays past that date. He also observed that the case has now gathered significant public interest and promised to move to a larger court room.
The lead lawyer for NEMA was not present, while Amu Power lead lawyer Masika had his colleagues fill in for him. Katiba Institute lawyers who were present expressed optimism the judgment will be delivered on the 24th of June, saying it’s a normal practice for the courts to adjourn.
“Judges adjourn cases from time to time the world over. We don’t read any ulterior motives. We believe they’re taking their time to write a well-reasoned judgment,” said Mr. Lempaa Suyianka, lawyer for the petitioner with Katiba Institute.
The adjournment nonetheless may affect the turnout on 24th June, especially from the affected petitioners, who said they have spent money travelling and booking lodges just to be present in court for the judgment, for which they have waited for more than two years.
Community leader and organiser Ms. Raya Famau Ahmed faulted the NET for sending out the notice of judgment, only to adjourn today, saying it was suspicious. “This was very disappointing, considering it’s the month of Ramadhan and most of us are fasting. People may [not] come back on the 24th because we [still] can’t be too sure. And it’s expensive traveling here and looking for a place to stay – even if for a day!”
In its notice of judgment for today, the tribunal had explicitly cautioned, “Take further notice that in the event of non-attendance by yourselves the case shall proceed and such directions granted as the Court may deem fit and just your absence notwithstanding.”
Environmental Human Rights defenders in the country and around the world are keen on this case particularly arguing that the proposed Lamu Coal Plant would contribute to adverse climate change with projected greenhouse gas (GHG) emissions as high as 8.8 million tons of CO2eq per year, which they claim would be in violation of Kenya’s commitment to abate GHG emissions by 30% by 2030. Also, in the wake of Cyclone Idai and Cyclone Kenneth, climate change risks are only more visible.
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“It’s unfortunate that the people of Lamu have had to deal with the adjournment despite travelling from far. However, their resilient spirit won’t be crushed by this. Natural Justice shall continue to stand by them as we anticipate the judgment on 24 June,” said Mark Ogada, lawyer with Natural Justice.
Materialisation of the Sh200 billion project faces even more of an uphill task as the Government’s Kenya National Electrification Strategy released in early December 2018 gives an overview of the country’s ambitious strategy of building 3,000 megawatts (MW) in installed capacity over the next five years. The plan indicates that the Lamu coal-fired power plant will take longer to construct, owing to prioritization of other completed and ongoing renewable energy projects.
Disclaimer: This article contains excerpts from a DeCOALonize Press Release permitted for use on Nate’s Crest