Environmental impact assessment: Why it fails in Kenya

Environmental impact assessments (EIAs) have served as recognized project planning tools for more than forty years. Kenya and many other African nations have passed legislation making such assessments mandatory, especially for large and what may be termed “environmentally sensitive” projects. The results are of mixed value and often fail to meet expectations. In this paper we shall consider the factors that have made EIAs ineffective in Kenya, drawing information from two projects – the Nairobi Thika Highways Improvement Project (NTHIP) and the Lamu Port and Southern Sudan-Ethiopia Transport Corridor (LAPSSET). The factors to be examined here include planning licences, subjectivity, corruption, lack of capacity, lack of political will, public participation, and the quality of EIAs.

PLANNING LICENCES

In Kenya, an EIA is needed to get a planning licence. In some cases, proponents of projects employ licensed experts from the National Environment Management Authority (NEMA) to conduct the EIA studies on their behalf (Barczewski, 2013). Thus, the experts are effectively employed by the proponents and, not unsurprisingly, more often than not prepare positive EIAs that enable the proponents to get their planning licences. According to Barczewski, some of these supposed “leading experts” even use templates prepared in advance and carry out their assessments without any field work. The available literature shows that few projects, especially the larger ones, are rejected or asked to provide additional information.

LAPSSET is an extremely large project that will affect Kenya, South Sudan and Ethiopia. It will create many complex issues, including questions of land rights involving a world heritage site, the rights of marginalized communities, compensation for displacement, the laying of an oil pipeline, and construction of a refinery. Unfortunately, the project was launched without the conduct of a comprehensive transboundary EIA by all the countries involved: that gap notwithstanding, political leaders played a major role in the approval process. Today, questioning the LAPSSET EIA after the project has been launched by the leaders of the participating countries could be interpreted, at best, as dissent, at worst, as subversion.

In the case of NTHIP, a project funded by the African Development Bank (AfDB) and the Chinese Government, NEMA required the project to be subject to an EIA, and the AfDB required an ESIA (Environmental and Social Impact Assessment). Under pressure from politicians, the project gained approval despite serious shortcomings in both the EIA and the ESIA.

Securing a planning licence is not the end of the EIA process, for the process also includes a management plan to be annexed to the EIA report that covers problems to be mitigated through monitoring and auditing. Sadly, this requirement is clearly paid much less heed than the need to acquire a planning licence. How else to explain six-story apartment blocks on half-acre plots in Nairobi's Lavington and Kileleshwa suburbs? Or roads built so that they flood and become dangerous in heavy rain? From the look of things it seems that there is almost no enforcement of the rules once a planning licence is granted.

SUBJECTIVITY

Another problem, as Haie (2006) argues, is subjectivity, which appears to be an inescapable and integral part of the EIA process. As Mostert (1996) states, “subjectiveness occurs whenever the results of an EIA are influenced by the subjective norms, values, and interests of one or more of the parties involved”. This could explain why, in preparing the EIA for the Nairobi-Thika Highway Improvement Project (NTHIP), some of the project’s impacts were seriously downplayed, especially those concerning water quality, water flow rates and volume, soil degradation and soil contamination (Barczewski, 2013). Moreover, mitigation plans for the noise and vibrations caused by construction were entirely absent; and Barczewski shows that the NTHIP EIA suffered from a lack of credible information, particularly on social and community issues. It appears that the Ministry of Works and the Kenya National Highway Authority were reluctant to engage with NGOs and community organizations because they feared that such consultations would slow down the project.

Similarly in the LAPSSET project, the EIA process is full of uncertainties regarding such issues as land rights, compensation and disruption of livehoods, status and protection of world heritage site, etc. Critical information on the project has not been shared with the stakeholders since it was launched in 2012. Ideally, to minimize the extent to which subjectivity is able to influence large-scale projects, such as NTHIP and LAPSET, EIAs should make space for more democratic participation and be less technical in their presentation and content, to enable all stakeholders to get involved in the process.

CORRUPTION

Corruption is a further challenge hindering the EIA process in Kenya. Many project proponents give NEMA staff something under the table and, in turn, these officials turn a blind eye when necessary (Barcweski, 2013). Barczewski adds that, even though the lead agencies are involved, NEMA can simply ignore their comments. This was the case with Silver Crest Limited for a project in the Marine Park in Mombasa and Cobra Corner in a Mara Triangle project. Issuance of the EIA licences for these two projects was in all likelihood facilitated by political pressure or corruption (Barcweski, 2013). Furthermore, there is little need for a developer to spend money obtaining an EIA if he knows that NEMA will not review it.

LAPSSET furnishes another example of the workings of corruption: the feasibility study carried out before the EIA was very expensive but entirely untransparent, because a number of people had vested interests. According to Richard Trillo (2011) in his article “The Lamu Port Corridor: Fantasy or Fraud”, LAPSSET is a “massive white elephant consultancy project with the biggest possible offer to benefit every party involved without, in the end, delivering a feasible programme for actually carrying out the work.” Moreover, Noor (2014) adds that the developers and their government cronies paid scant regard to an EIA: those who lost their land are still waiting for compensation a year later. In short, Noor (2014) regretfully concludes that the entire process is nothing more or less than a scam which is riddled with corruption. The process of acquiring a port has become a massive fraud: it has been exploited by corrupt civil servants and land dealers to make a fortune for bogus claimants who have no land but still expect compensation (Noor, 2014). Clearly, corruption plays a very important part in the EIA process in Kenya.

LACK OF CAPACITY

An additional problem faced by EIAs is the lack of capacity in Kenya to carry out such assessments to the necessary standard. While there are a number of companies which, in theory at least, have the expertise needed to produce an Environmental Impact Statement (EIS), the reality is that those which are available are far from being acceptable examples of the genre: most are nothing more than consultants’ reports commissioned to enable a developer to get a planning licence.

According to Barczewrski (2013) and Vasquez (2013), NEMA has neither the necessary expertise to review EIS reports nor enough money to hire external experts to do the work. Corruption has killed any incentive that the available professionals may once have had to perfect their work in the field of EIA. If NEMA does not have the funds to recruit environmental officers and to send them out into the counties, county governments must fund the recruitment and training of their own staff with environmental and related backgrounds if they are to guard against the problems that Barcweski quotes from Barasa, namely, that NEMA does not visit upcountry projects. For their part, Barnes and Boyle (2015) recommend that staff of organizations such as NEMA engaged in the preparation of EIAs should have a good understanding of the entire EIA process – including both technical and administrative aspects – instead of merely being involved in processing paper work.

LACK OF POLITICAL WILL

The 1999 Environmental Management and Coordination Act (EMCA) is entirely clear on the need for EIAs. Unfortunately, its importance is not universally appreciated. According to Barszewski (2013), what developers endeavour to do is to recruit a NEMA staff member to prepare their EIA so that they are assured of getting a planning licence and their projects can proceed. The example of LAPSSET shows another way of circumventing the EIA requirement: as a flagship project under the Kenya Government’s Vision 2030, it was launched in March 2012 by Presidents Kibaki and Salva Kiir of Kenya and South Sudan without an EIA. Not only is this the wrong order in which these processes should be implemented, it also runs directly counter to section 58 of the EMCA and contravenes sections 42 and 69 of the Kenyan Constitution, which call for the government to protect the environment, natural resources and biological diversity.

Once developers have the licence in their hands, they care nothing about the eventual consequences of their project. According to Barszewski (2013), mitigation measures are neither enforced nor followed up. This is certainly the case with housing in Nairobi where, as noted above, three or four buildings can be built on a half-acre plot, leaving no room for children to play or for adult recreation. Contributing to this state of affairs is the failure by Parliament to take environmental issues seriously and the meagre budgetary allocations that it makes to NEMA. When Presidents Kibaki and Kiir launched the LAPSSET project it sent a signal that environmental issues were not important. Without strong political will and commitment, institutionalization of the EIA process in Kenya will not succeed and the environment will continue to be violated in the name of development.

PUBLIC PARTICIPATION

According to Barszewski (2013) and other EIA experts, a further bottleneck in the instutionalization of the Kenyan EIA process is caused by the inadequate participation of the public. Again, this is partly because developers want to avoid delays and additional costs. Moreover, most members of the public have little capacity or inclination to review EIA reports. The University of Nairobi organized six public meetings on the NTHIP: these were attended by a total of 197 people, 112 of whom said that they had no idea about the project period or cost.

This low level of public understanding could be due to the fact that the EIA documents are so difficult to understand – or to the government’s reluctance to share the reports for fear of attracting criticism. Nonetheless, article 35 of the 2010 Kenya Constitution stipulates that the government is obliged to increase public awareness and foster healthy debate of any proposed infrastructure project. Such action would help allay public concerns and prevent the need for them to rely on rumours and speculation. As noted above, the LAPSSET project was approved in July 2011 before an EIA was done, in contravention of both the EMCA and the Constitution. People were not given time to comment on the project and its components. As noted by Noor (2014), land was seized and held for over two years, and contracts were awarded despite people voicing their opposition, suspicion, disquiet, and discontent from the time the project was made public. Noor acknowledges further that civil rights groups and legal and environmental experts joined the affected people in a campaign to suspend the project and seek a review to resolve contentious issues.

The above two projects are important to the government and any delays or criticisms may be interpreted by politicians as attempts either to obstruct progress or to hinder efforts to create jobs and to reduce the country’s high unemployment levels.

QUALITY OF EIAS

EIAs prepared to date do not meet what is normally required by international standards. Some omit useful information and, as shown by the University of Nairobi’s 2013 study of the NTHIP, some important impacts are simply taken for granted. For example, there was no inbuilt monitoring system for the noise and vibration from the heavy machinery or the use of explosives (University of Nairobi, 2013). Similarly, Barszewski (2013), citing the same study, identified noise emission as a serious shortcoming of the NTHIP project. Barszewski also points out that the NTHIP designers did not consult the community on the placement of the footbridges. As reported by the Daily Nation of 29 April 2012, the bridges were thus not sited where most pedestrian traffic needed to cross the river, with the result that people risked their lives with consequent accidents and deaths.

LAPSSET has seven components and its EIAs were only prepared after the project was launched. Information on the EIAs only became available when pressure was placed on the government to release it. Unfortunately, the report released on 31 January 2012 omitted any information on the exact position of the LAPSSET corridor, or its scope, or the infrastructure of the port, its associated city, airport, and tourism resorts, or its likely impact on the outstanding universal value (OUV), or the precise boundaries of the property and buffer zones, or the management plan.

That said, however, EIAs of this low quality are not unique to Kenya: in a 2014 report prepared by the Netherlands Commission for Environmental Assessment (NCEA), the authors concede that the problem is widespread. According to the NCEA, only 50 of 114 NCEA prepared reports were of sufficiently high quality and the rest, especially those on land use and intensive livestock farming, were vitiated by a lack of information.

Clearly, as long as EIA reports are seen as sales documents for developers or merely box-ticking exercises for the obtention of planning licences in Kenya, their quality will continue to be poor. Good EIAs and EISs are those that can be easily monitored and evaluated.

SUMMARY

The above discussion clearly shows that, despite the existing legal framework in Kenya, the EIA process faces problems that must be solved if EIAs are to serve any function in promoting sustainable development. The two examples of large-scale projects cited in this study demonstrate the lack of political will at the highest level to accord any importance to environmental issues and the manner in which they affect the lives of ordinary Kenyans. LAPSSET is a transboundary project with seven components, most of them with serious implications for society, the economy and the environment. This project should have been subjected to a transboundary EIA with participation by the governments of South Sudan, Ethiopia and Kenya and by the affected communities. The EIA conducted by the Kenya Government, which clearly demonstrate the negative impact which LAPSSET will have on a fragile ecosystem, did not in any way hinder approval of the project: it was, in fact, already in progress (Noor, 2014). As observed by Professor Goldsmith of Pwani University, Mombasa, and quoted by Noor: “The LAPSSET project is a gravy train being pushed to benefit politicians, wealthy individuals, land grabbers and a cartel of foreign investors”. As to whether Professor Goldsmith is right or not in his damning appraisal, time will tell.

For its part, lessons learned from NTHIP include the need for a clearer determination of the project’s critical impacts during the scoping stage of the EIA process; the role of public participation in the EIA process; and the need to suppress corruption.

To conclude, the issues investigated by EIAs are critical and must be taken seriously by government authorities and all other stakeholders. EIAs should form part and parcel of the planning process, especially for large scale or environmentally sensitive projects. Overall, a well-managed EIA process promotes ownership, inclusiveness, transparency, practical environmental options and partnership.

* Ambassador Dr John O. Kakonge is a freelance Principal Consultant Adviser.

REFERENCES

Barczewski, B. (2013): “How well do environmental regulations work in Kenya? The case of the Thika Highway Improvement Project”. Unpublished paper supported by the Centre for Sustainable Urban Development and the University of Nairobi.

Barnes, J.L., and Boyle, J. (2015): “The weak link in EIA effectiveness: challenges in process administration”, Proceedings of the 15th IAIA Conference, 20–23 April 2015, Florence, Italy.

Haie, N. (2006): “Subjective sustainability criteria applied to a renewable energy installation”, Engenharia Civil, vol. 27, pp. 41–49.

Mostert, E. (1996): “Subjective environmental impact assessment: causes, problems and solutions”, Impact Assessment, 14:2, pp. 191–213

Netherlands Commission for Environment Assessment (NCEA) (2014): “Quality remains of the highest importance”, NCEA Newsletter: 2014 and Beyond, July 2014,

Noor, A. (2014): “Development or fraud? Another coastal paradise to die for big oil”. Pambazuka News, issue No.666. http://www.pambazuka.net/en/category.php/features/90644

Trillo, R. (2011): “The Lamu Port Corridor: fantasy or fraud?” Rough Guide to Kenya. http://theroughguidetokenya.blogspot.co.at/2011/07/lamu-port-corridor-fraud-or-fantasy.html

University of Nairobi (2013): A scoping study report on the Environmental Impact Assessment Report for the Thika Highway Improvement Project. chss.uonbi.ac.ke/sites/.../geography/ANNUAL%20REPORT%202013.pd..

Vasquez, P. I Kenya at a Crossroads: Hopes and Fears Concerning the Development of Oil and Gas Reserves. https://poldev.revues.org/1646

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