On June 26, 2019, in a landmark verdict, the National Environment Tribunal (NET) halted the construction of Kenya’s first proposed coal-fired electricity-generating plant in Lamu, ruling that the National Environment Management Authority (NEMA) had failed to do an adequate environmental and social impact assessment (ESIA) of the plant. Specifically, the public’s views had not been included in the ESIA study, and the ESIA itself had failed to incorporate several important environmental impacts of the proposed plant.
This judgement is a massive victory for environmental campaigns in Kenya, where too often, large political interests tend to prevail. Members of deCOALonize, the umbrella coalition group against the coal industry in Kenya that filed an appeal at NET in 2016, have had to deal with the propagation of “fake news”, intimidation, the convenient shuffling of Kenyan bureaucratic systems, and much more, which makes their win truly noteworthy. What makes this verdict even more incredible is that other environmental campaigns challenging the adequacy of the ESIA on similar, large Chinese-funded infrastructure projects, such as Save Nairobi National Park (NNP), for example, which have been branded by the government as crucial for development, have not achieved similar success.
Many researchers have questioned the need for a coal plant in the first place in Kenya when the country currently faces a power surplus. Further they argue that at the moment Kenya actually is generating a surfeit of electricity. In fact, many thermal plants in Thika and along the Athi river are currently idle. Although proponents of coal argue that more energy generation capacity is needed to meet projected demand in the future, international experts, such as Daniel Kammen from Berkeley, have shown that coal is not the cheapest technology to meet future energy needs. Very recently, the Institute for Energy Economics and Financial Analysis also produced an independent study questioning the economics of building a coal plant in Kenya.
Therefore the real question with these large infrastructure projects, is not development at what cost, but at what cost to whom?
The proposed Lamu coal plant is a Sh200 billion project that serves powerful private commercial interests (such as Centum Investments and Gulf Energy Kenya, which joined forces as Amu Power, the developer of the project) who have well-known connections to the very top of the executive branch of Kenya. These connections are reflected in the favourable terms and conditions of the power purchase agreement (PPA) between the Government of Kenya and the developers. The PPA essentially commits the government to buying electricity from the plant for the next 25 years at a favourable price (regardless of whether the electricity is used or needed). Coal is expected to arrive from South Africa to power the Lamu coal plant.
The Government of Kenya has repeatedly stressed that the Lamu plant will provide jobs for the community. However, like with the other large Chinese-financed infrastructure projects, most of the labour comes from China. The fact that most of the fishing community near the Lamu coal plant do not have a secondary education means that most of them are not qualified to be able to work at the plant, although their livelihoods will be most affected by the pollution from the plant.
The proposed Lamu coal plant is a Sh200 billion project that serves powerful private commercial interests who have well-known connections to the very top of the executive branch of Kenya.
Therefore, it is unlikely that the community would have benefited from the construction of this plant.
Furthermore, most of the community around the plant already have electricity from solar PV, and therefore there is no need of electricity from the plant. Importantly, and as stated several times in the NET judgement, the community was not involved in the decision to build the coal plant in Lamu and deCOALonize members were not invited to meetings held by Amu Power; the meetings were held in locations difficult to reach by most of the community. Therefore, their interests were not represented in the siting and planning of the plant.
Interestingly, we were told by a deCOALonize organiser that a few years previously, a coal plant was slated to be sited in Kilifi. However, the county government there is powerful, and the plan was ultimately dropped. The decision to locate a coal plant in Lamu, one of Kenya’s most marginalised counties with much less political power, does not appear, in light of this, to be accidental. The community in Lamu is well aware of this and spoke about how few roads in the North-West region of Kenya are tarmacked and low literacy rates prevail. A lot of large extractive projects have been initiated in the region. In addition to the Lamu Port and Lamu-Southern Sudan-Ethiopia Transport Corridor (LAPSSET) and the Lamu coal plant, natural gas exploration has been underway on Pate island. (It has only recently been abandoned.)
Given all of the many obstacles the campaign has had to face, how has deCOALonize managed to be so successful?
This is the central question of this article. It is important to document victories in Kenya. Too often, we only hear stories of failure and corruption. We need to challenge these hegemonic narratives by detailing how Kenyans have been winning critical battles for change.
Now, although deCOALonize won its case in court, campaigners have cautioned that the battle against the Lamu coal plant is not over. Amu Power can conduct a new ESIA and apply for a new licence, which means a new fight will ensue. The lead lawyer for deCOALonize, Lempaa Suyianka, only a few days ago was arrested on an arguably flimsy charge, and although he was released, his phone was impounded by the police. This event does not bode well for the campaign, and members of the public must continue to be vigilant to ensure that deCOALonize members do not suffer the wrath of powerful interests embroiled in this case.
In addition, the Lamu coal plant is only one of the many mega infrastructure projects in Lamu. LAPSSET, and the building of the Lamu-Garissa-Isiolo road are still underway, and have caused a lot of damage to the region, with many farmers displaced by access roads without being granted compensation, as well as acres of mangroves in the area being cleared. The public must continue to fight for the people of Lamu to ensure that compensation is disbursed to the people affected.
Still, the deCOALonize’s recent court win has set a new precedent for environmental cases in Kenya and warrants further examination. In order to do this, we first list the strategies deCOALonize activists used, as well as the challenges the campaign faced.
Raising awareness
deCOALonize runs a transparent campaign and uploads videos of court proceedings, documents and press reports on its website.
Kenyan scholar Nanjala Nyabola’s much-acclaimed book, Digital Democracy, Analogue Politics, charts how social media tools such as Twitter are creating spaces for Kenyans to protest and create new narratives. deCOALonize has leveraged these tools successfully to raise awareness at the local, national and international levels.
Some activists believed that the awareness about the coal projects they had generated at the international level through sustained posts on social media, participation in climate summits and street demonstrations would lead to divestment by external organisations, which would lead to the Lamu coal plant project stalling. The Industrial and Commercial Bank (ICBC) of China has agreed to finance 75 per cent of the Lamu coal plant to the tune of $2 billion, but the Government of Kenya needed to find a backer for the remaining 25 per cent needed. deCOALonize’s campaign has been successful in influencing the African Development Bank and the Standard Bank of South African, both of which have pulled out of financing the project. However, General Electric (GE) is still considering investment in the project
In addition, deCOALonize has presented evidence to UNESCO about the impact the coal plant would have on Lamu, which is a World Heritage Site. UNESCO has also recently come out strongly against the construction of the coal plant.
Partners of the campaign also believed that awareness at the national level was important. Activists said they did this to prevent the government from shifting the construction of the coal plant to another county. They particularly focused on holding a variety of public forums, photography exhibitions, protests, and other events in Nairobi, the political centre. They were successful in getting some progressive politicians, such as Boniface Mwangi, to make stopping coal part of their political campaigns.
Furthermore, at public events organisers connected the plans for building the Lamu coal plant with the broader theme of energy justice. Ordinary Kenyans are affected by the economics of the energy sector. Kenya Power and Lighting Company (KPLC) holds a monopoly on electricity transmission through the national grid. It’s cartel-like practices of inflating electricity bills at random and giving poor services have resulted in campaigns such as #SwitchOffKPLC in 2018 that have unleashed a massive backlash against the company. Cries for energy justice have made energy a topic that people are paying close attention to, and therefore, there was hope that this would catalyse a national backlash against the Lamu coal project.
One of the major tactics the government deployed in its war against deCOALonize was misinformation to the community. High-level leaders promised the community jobs and compensation, glossing over the deleterious impacts of coal. For example, Deputy President Ruto assured the community of Lamu that the coal plant would not have any impact on their health, despite evidence to the contrary.
The Kenyan government even went as far as branding Save Lamu, a member of the deCOALonize coalition, as a terrorist organisation. Save Lamu received several grants from international agencies to continue its work in fighting for the rights of the residents in Lamu affected by the building of the Lamu port and coal plant. The government claimed that the money was sent to Save Lamu to conduct terrorist activities, and ransacked their offices. The government accused Save Lamu of being involved in the 2014 massacre carried out by Al Shabaab in Mpeketoni and Pormoka in Lamu County to discredit them. It is a testament to the deep ties Save Lamu has with the community. It is still a trusted and valued organisation in the area. Save Lamu’s partnership with organisations able to provide legal representation was also crucial for it to contest these charges.
Amu Power also repeatedly stressed that it would be using the best coal technology available to reduce the environmental impacts of the coal plant. It tried to build connections with the local community by installing a water tank near the farms, among other small projects, which we witnessed first-hand when we went to Lamu.
The Kenyan government even went as far as branding Save Lamu, a member of the deCOALonize coalition, as a terrorist organisation.
However, official documents collected by deCOALonize activists have indicated that Amu Power — the special purpose vehicle formed by the developers to own and operate the Lamu coal plant – was given the right to import equipment that did not meet quality standards and a waiver on the need to pay taxes on construction. This has made many activists wonder whether, despite Amu Power protestations about taking measures to reduce adverse environmental impacts, in reality equipment from old coal power plants in China was being exported to and dumped in Kenya. Indeed, when we spoke to an activist at the actual proposed site of the coal plant, we were told that although Amu Power said they were going to use cooling technology, such as “once through cooling systems”, which they tried to sell to the community as cutting edge, when in fact this was not the case. The activist told us that he knew the details about these technologies through his conversations with communities affected by coal plants in Gujarat, India.
Despite the sustained misinformation, deCOALonize has been extremely successful in making information available to the respective local communities. They did so through holding public meetings in local languages, regularly updating their website and making resources and short summaries publicly available. Members of the coalition have recorded the court proceedings, and held events that were made accessible via Facebook live, so that the community knew what was happening.
Providing a pipeline of information from the community to the courtroom: Engaging the community proactively
Importantly, local organisations, such as Save Lamu and the Centre for Human Rights and Civic Education (CCHRCE), have been able to channel community concerns into the courtroom and to react quickly.
For example, we learnt when were in Lamu that when the community reported that an access road was being built through their farms to connect the proposed coal plant site with that of the port without an ESIA being carried out, the representative of deCOALonize on the ground was able to feed this information to the legal team, who went to NET to get a stop order for the road. This pipeline of information proved to be extremely important as the local branch of NEMA in Mokowe town in Lamu County (where the coal plant has been slated to be built) was often kept in the dark about such constructions. Instead, for mysterious reasons, officials not based in Lamu were often responsible for making decisions that would affect Lamu. deCOALonize’s information intervention was crucial in bringing government regulators on the same page.
Save Lamu has also been able to engage the community to map natural resources in Lamu to better understand the impacts of proposed projects on different groups of people, such as the Bajun, the Sanye, the Aweer and Swahili communities, so that they can speak with one voice. CCHRCE has mapped perceptions of the community whose land is part of the mining area. They have also mapped the community resources, such as schools and hospitals, currently on the land to document the costs of razing this area.
Such engagement has been extremely useful in both communities learning about the impacts of coal as they had no experience with this fuel previously. Women in Kitui experimented with using coal to heat their sufurias and noted that it caused their sufurias to melt. Both Save Lamu and CCHRCE took community members and members of their respective County Assemblies (MCAs) to other countries, such as South Africa, so they could see for themselves the impact of coal on the site. They have created a documentary on these visits to archive this knowledge. All of this has led to a true grassroots movement against coal.
Importantly, we learned that these exchanges have allowed for the transnational sharing of resources and knowledge. For example, South African activists helped facilitate some connections between climate experts and activists from Lamu in order to bolster their case in court.
deCOALonize members have come strongly out for renewable energy as an alternative to coal.
Lobbying the government at multiple levels
President Uhuru Kenyatta gave speeches about his ambitions to move Kenya 100 per cent to renewable energy by 2020. There was hope that this would lead to the halting of plans to build the coal plant as Kenya couldn’t possibly become 100 per cent reliant on renewable energy if it still depended on coal. This hope was bolstered by the National Electrification Strategy released in 2018, which explicitly supported decentralised renewable energy technologies.
However, despite President Kenyatta’s pronouncements about renewable energy in Kenya, Kenya’s Power Generation and Transmission Master Plan 2015-2035 states that coal will have a place in Kenya’s future. Moreover, the Kenyan energy regulator had approved the coal-fired Lamu plant.
The contradictions made by various levels of government fueled uncertainty and anxiety in the campaign. Nevertheless, deCOALonize engaged with different government officials to try and gain their support against the coal industry in Kenya. For example, their conversations with the former Minister of Environment, Judy Wakhungu, led to her opposing the proposed coal plant publicly.
The campaign also engaged with the county government because they recognised the power that the county government had in approving the allocation of land for the coal plant, as well as to putting pressure on the national government to abandon such projects.
In order to educate county government officials about the potential effects of coal mining, deCOALonize facilitated county government officials going to visit communities that lived near coal plants so that they would understand the true impacts of such projects. They tried to get the officials to understand the effect such a construction could have on tourism, an important source of income in Lamu. Importantly, Samia Omar, the Trade, Tourism, Culture and Natural Resources Executive, publicly resigned after voicing her opposition to the Lamu plant.
However, despite President Kenyatta’s pronouncements about renewable energy in Kenya, Kenya’s Power Generation and Transmission Master Plan 2015-2035 states that coal will have a place in Kenya’s future.
When we were in Lamu, we heard from multiple independent sources that many tourists demanded their money back when they were promised pristine clear waters to snorkel in, but instead found the water in long-time snorkeling spots muddied because of all the construction in Lamu.
The engagement with the county government, plus Natural Justice and Save Lamu’s transparency and efforts to bring all government bodies on the same page, have resulted in county government officials walking out of meetings with the National Land Commission and LAPSSET when they found out that acres of land were claimed without them being notified. Thus deCOALonize’s strategy has been productive
CCHRCE has been doing great work, teaching the community how to avail of the various constitutional means at their disposal to petition the government and be heard. CCHRCE plays an important role in Kitui, imparting civic education.
Fighting for due procedure to be followed in court
This set a precedent for external costs to be considered for any large project. deCOALonize’s recent victory on June 26, 2019 has set an important precedent for the carrying out of environmental and social impact assessments for projects in East Africa.
The fight in court was not easy. The judiciary and the bureaucracy faced extensive political interference. In Kenya, the executive branch of the state has the most control over shaping patronage networks through its power of disbursing bureaucratic appointments and resources. Kenya has a long history of corruption scandals. Joe Khamisi’s explosive book, Looters and Grabbers: 54 Years of Plunder by the Elite, 1963-2017, details in painstaking detail the systematic pillaging of the country by people right at the top.
The advent of devolution has restructured the institutional landscape. However, efforts to “get the institutions right” have been foiled by flaws in the current legal processes, corruption, low institutional capacity, as well as the lack of cooperation of formal administrative mechanisms. Other researchers have found that devolution, instead of putting a stop to corruption, might only have led to a new mindset of “its everyone’s turn to eat”.
Activists we spoke to told us that NET is a politicised organization with its own agenda. Court files have mysteriously been misplaced. Court dates and places were changed at the last moment, making it very difficult for the organisers. This happened multiple times when the court members coming from Mombasa said at the last minute that they were indisposed. For example, on May 9, 2019, NET, without warning, postponed the much-awaited judgement. Petitioners from Lamu had spent time and money to travel to Nairobi to hear the judgement and had to wait a month to receive the judgement. The most costly incident happened when Save Lamu paid for the flights for international consultants to fly to Nairobi to testify against the plant, and the hearing was postponed at the very last moment.
In addition, since 2017, Parliament has proposed an amendment to the Environment, Management and Coordination Act (EMCA), such that even if an appeal is filed against a project in court, such a legal proceeding will not automatically halt the project, as was the case earlier. A separate appeal would need to be filed to prevent the project from proceeding. Activist Omtatah filed an objection. It is yet to see whether these amendments will go through. This meant that if Amu Power was able to raise the remaining 25 per cent of the project financing, the construction of the coal plant could go ahead. This highlights the importance of the other tactics that deCOALonize has deployed in its fight against the Lamu coal plant.
There have been other complex ways in which the legal process has been thwarted. Because elites in the county, especially those from Nairobi, were aware of the impending coal project before the local residents, they bought land from the residents at throw-away prices, knowing full well that once the project started they would receive compensation for their newly bought land. We heard a similar story about land in Kitui. On visiting some of the newly bought plots in Lamu, we saw that some of the owners had erected make-shift structures that they termed as “hotels” and “restaurants” in order to increase the amount of compensation they would receive.
This created a tension in the community, as many of the new landowners wanted the project to go through to obtain compensation. On speaking to residents of Mokowe county, we were told that in many cases there were many irregularities in the documenting of the area of affected farms by the National Land Commission to allocate appropriate compensation (as the community did not have formal land tenure), resulting in land being allocated to elites/outsiders not from the area.
There have been other complex ways in which the legal process has been thwarted. Because elites in the county, especially those from Nairobi, were aware of the impending coal project before the local residents, they bought land from the residents at throw-away prices, knowing full well that once the project started they would receive compensation for their newly bought land.
The process of allocating compensation for land in Kenya is a complicated one, and more monitoring of current processes and institutions is required. Lamu, in particular, has been subject to many land grabs in the past.
This is Kenya
In an article published in The Elephant, Keguro Macharia dissects the phrase, “This is Kenya”. He describes it as a site of “violation and exhaustion” – a tool used by the rich to perform the “gatekeeping” function of naturalising a system that marginalises the poor and a tool used by the poor to express frustration at an opaque system that repeatedly denies them anything but the most meagre of existences. In other words, “This is Kenya” draws a granite boundary between what can be fought, and possibly changed, and that which cannot. This granite box contains new more equitable realisations of Kenya from bursting through.
As we spoke to deCOALonize activists to learn about the different strategies they were using to fight coal, despite their success, we inevitably got the response: “This is Kenya”. Their use of the phrase indicated that they perceived the limits of the space in which they could mount their opposition. The interior of the bounds of “This is Kenya”, or the space in which they operated, corresponded to ensuring that mechanisms of due procedure as specified by the Constitution and the laws were followed by bureaucrats and the courts. The space outside of this, separated by “This is Kenya”, comprised one that was moulded and shaped by powerful political interests over which the activists had no control. And yet, this distinction was in many ways artificial.
We unsurprisingly learnt that the boundaries implied by “This is Kenya” belies the fact that outside politics seeps into this interior politicised bureaucracy and legal system. What is the point of documenting how a politicised bureaucracy and an imperfect legal system are actually experienced and navigated? Does this mean documenting the same tired corruption scandals?
Well, for one, in this case deCOALonize actually won this critical battle in court! We hope that by detailing how this heroic campaign managed to win, we can prevent ourselves from being boxed in by “This is Kenya”, and instead see deCOALonize’s victory in court as “This too is Kenya!”
