HOW MUCH WILL THE LAPSSET COST THE PEOPLE OF LAMU

1. Photo|Said Salim

It has been over 3 years since the judgment in the petition number 22 of 2012 was issued by the High Court at Nairobi, Kenya. This was a landmark judgment which recognized the right of traditional fishermen to their fishing sites and awarded the fishermen Kshs. 1.76 billion as compensation for the losses incurred. The case was brought by residents of Lamu County on 25th January 2012 spearheaded by Save Lamu, after the Lamu Community got wind of the LAPSSET project and were aggrieved by the manner in which the Lamu Port South Sudan Ethiopia Transport corridor (LAPSSET) was designed and implemented without proper public participation and environmental and social impact assessment (ESIA).

The project was commenced without a Strategic Environmental Assessment (SEA) and the Environmental Social Impact Assessment (ESIA) should have had an Environmental Management Plan but it didn’t have this contrary to the Environmental (Impact Assessment and Audit) Regulations of 2003.

Poorly done impact assessment

The Environmental Social Impact Assessment (ESIA) license was exclusively for the first three berths, yet the LAPSSET involves other components that were not captured in the project assessment. This, coupled with an inadequate SEA that failed to consider program alternatives, threats to marine life, water, and air, which rendered the project irreparably flawed.

The court found that the respondents failed to adhere to the EIA conditions in 2.3, 2.23 which stated that the project proponent will provide modern fishing gear and fish landing sites with cold rooms as well as to ensure strict adherence to the Environmental Monitoring and Management Plan(EMMP) respectively.

Photo: Said Salim

Violation of public participation requirements Even if the LAPSSET project is an initiative of the National Government, the County Government through the principle of subsidiarity is entitled to be consulted because it has the best knowledge of the effects and concerns of its community and region in which the project will be implemented. still the community weren’t consulted adequately.

The court found that the project proponents violated the requirements of public participation. The project proponents are obligated under the constitution and Environmental Management and Coordination Act (EMCA) to give the public a chance to participate both in the design and implementation of the project and its components.

The court also found that whereas the project proponents disclosed the ESIA report with the petitioners, they did not give any information about the design or preliminary studies of the project.

The court further found that the only information the petitioners had access to were newspaper articles, advertisements, and verbal presentations in meeting held in different parts of the County and Country at large and Inadequate mitigation measures. The court found that the mitigation measures put in place by the proponents were not adequate and were inconsistent with the principle of sustainable development.

Save Lamu a community organization fighting for peoples rights in Lamu County was tagged as anti development, the organization has since been advocating for Lamu fishermen to get their rights, Lamu alone as County used to export tonnes of fish in different parts of the Country before the dredging of the sea begun at the Lamu Port area.

Photo|Khadija Juma

” Lamu depends so much in fishing activity as one of the economic booster in Lamu County, and having LAPPSET in our region is not not a bad project, but what we do not understand as the fishing community is our fishing sites have been been distracted since the beginning of the dredging of the sea” said Somo .M. Somo, chairman of the Beach Management Unit B.M.U.

The court determined a violation of the right to a clean and healthy environment. The court also found the traditional fishing rights of the communities can only be interfered with for a justifiable reason such as conservation of natural resources or, as was in this case, development of a project of national interest. Even in such a case, the government can only interfere with the traditional fishing rights subject to full and prompt compensation. It still incurs a further obligation to give the local fishermen priority to fish for food and commercial purposes over other users as part of their rights as indigenous communities.

The court further found that respondents violated the law when they failed to compensate the fishermen even after identifying them. Indeed, the court found that the indigenous communities of Lamu Island should have been consulted about the cultural effects of the project before the project was started.

Save Lamu on the other hand side has been creating awareness within the Lamu fishing communities to educate them further on the main components of LAPSSET which includes Ports, Pipelines, Roads, Railways and what is entails.

The court determined that the government violated the cultural rights of the local community by failing to make an environmental monitoring and management plan even after several requests by United Nations Educational, Scientific and Cultural Organization (UNESCO) by failing to create an actionable plan to protect the cultural identity of the region, the proponents violated the community’s cultural rights.

The challenge

The court issued a stay order upon application by the proponents of the project which in turn affected the execution of the judgment. This has delayed the compensation of the fishermen up to date, with fishermen worrying that they may be denied their compensation. On the other hand, the president recently came to Lamu to oversee the completion of the first 3 berths of the port with Ethiopian Prime Minister Aby Ahmed. This visit confirmed one thing more than anything else: that the port is ready to be commissioned anytime after the pandemic clears out.  This has caused fishermen to wonder whether the government has any intention to compensate these fishermen or address their concerns about the ongoing violations at the port site, further deteriorating the viability of the traditional fishing zones.

The Beach Management Unit (BMU) chairperson Somo. M. Somo in a meeting with the minister for fisheries and other stakeholders raised concerns about the well being of the fishermen to be given first priority and be compensated before the President of the republic of Kenya Uhuru Kenyatta launches the Port.

Lamu Fisherman in Lamu

The organization has made efforts to inquire about environmental conditions of replanting mangroves and  conducting oceanographic studies both being preconditions for the construction of the port, but up to date, these conditions have not been fulfilled by the proponents.

Any efforts to respond to the appeal case filed by the proponents against the judgment of the case, have been thwarted by the pandemic. Until now, no effective hearing date has been held, thereby causing more frustration for the now impatient fishermen who are demanding to be compensated for the damage to their industry which is still being threatened up to this day with the haphazard construction of the port.

Story| Save Lamu