NET hearings ongoing in Lamu

Proceedings of court hearings, 11–12 May 2017

From 11 to 12 May 2017, Kenya’s National Environmental Tribunal (NET) held hearings in Lamu County to consider community groups’ objections regarding the insufficiency of the proposed Lamu coal plant’s Environmental and Social Impact Assessment. They visited the site and heard from witnesses pertaining to the proposed site, local community, and its ecosystem.

A small group of citizens was allowed to attend, while about 100 gathered and conducted a permitted silent march from outside the Lamu Fort hearing location. The march was disrupted by police in the latest action in a pattern of intimidation, interference, and allegations against coal plant opponents.

The objections to NET were filed by a handful of residents, Save Lamu, and Natural Justice, in response to the granting of a license for the ESIA by the National Environmental Management Authority. Following this week’s site visit, NEMA will hold a second hearing in Nairobi later this month.

Background of situation:

Media coverage of hearings (to date)

Mainstream media coverage of the 11–12 May National Environmental Tribunal meetings has been thus far limited to a handful of articles.

A second round of allegations by the County Commissioner Kanyiri accusing anti-coal plant activists of being “used by cartels” appeared in The Star, despite citing no evidence. The Star further reported that Lamu Women Representative Shakila Abdalla pledges to take the matter to High Court (which the community groups already intend to d0).

Meanwhile, the Business Daily reported on the anti-coal demonstrations, a silent march through Lamu town, and community views:

Protestors accused the Lamu County government, the National Environment and Management Authority (Nema) and the Energy Regulatory Commission (ERC) of trying to force the project on them. “We will continue fighting till the end. The project is harmful and that’s why it has been rejected in Kitui and other places in this country. We will not allow such kind of a project unless they come up with an alternative and environmental friendly project rather than coal. We are for green energy,” Ishaq Abubakar, a resident opposed to the project said.

Play by play of proceedings & community actions

On Tuesday, 9 May, for its planned Friday demonstration, Save Lamu obtains notification letter stamp of receipt by County Commissioner, as per public assembly requirements. [Included at bottom of this post.]

On Wednesday, 10 May, Save Lamu submits a letter to the District Criminal Investigation Officer complaining of the inflammatory and inciteful language used by Amu Power to rally potential direct beneficiaries of the project, the Lamu residents whose land is to be compensated.

Thursday 11 May hearings:

NET judges arrived and went straight to the Kwasasi for the site visit, at about 11am. They were late due to missed flights the evening before.

A group of 40 concerned community members from the broader affected community, including over 20 fishermen, took a boat to meet the NET judges at the site on the mainland, as pictured below.

Some land owners were gathered at the site by project proponents. There were threats made to fishermen by some Kwasasi landowners, but this came to a halt after the bus arrived and they were outnumbered.

At 3:30pm, supporters left the proposed project site after the chair of the tribunal explained to the crowds why they had come to the site. The NET and lawyers went to look at a beacon in question while others left.The rest of the site visit was without any interference. By 4:00pm, the NET judges left to make their way to Lamu island in preparation for witness testimony in the hearings, arriving at 6pm.

Thursday Morning:

Lamu community members and coal plant opponents at Kwasasi with judges from National Environmental Tribunal, lawyers, witnesses and supporters.

Thursday Afternoon:

Friday 23 May hearings: witness testimonies

NET heard Save Lamu’s petition against NEMA’s licencing of coal plant. Proceedings began at 8:54am at Lamu Fort.

The Tribunal informed parties that a limited number of 20 people from each side would be able to attend. Many spots were taken by lawyers, witnesses, and associates. From Save Lamu, imams, elders, and other key voices attended to represent the community.

Many other people who planned to attend were barred at the door.

Lamu fort rooftop

Arriving at hearing, Friday morning:

Witness Raya Famau gives testimony:

Raya Famau explains Save Lamu as a coalition of local organizations that work with the community for sustainable development. She notes, community members asked many questions at meetings with Amu Power consultants, but they were not able to be given complete answers about the coal plant negative effects.

Amu Power attorneys cross-examine Raya. They ask if no one went to the Public Hearing. She said no. They counter asking if Somo M Somo was present. She is saying yes but in a private capacity. Amu Power is trying to prove that Save Lamu acted in bad faith to wait until the day of the hearing to write a letter saying we are boycotting the hearing, given distance, etc.

Attorney has to stop Raya because she is not giving answers he wants.

But attorney Lempaa, of Katiba Institute, allows Raya to fill out her answers. “Most Kwasasi farmers live in Lamu.” Amu Power lawyer stands to object to that line of discussion. Amy Power lawyer is told by judge that it is part of the evidence provided.

The issue is whether Amu Power had [sufficient] public participation. Amu Power attorney is looking for short yes answers, but Raya really tries to fill out the answers and explain.

[The location of the hearing had been moved the evening before to the port site, a hard-to-access area for all affected residents other than those to receive compensation for their land.]

NET magistrate asks about the South Africa trip, where senior Lamu residents traveled to better understand the effects of coal plants firsthand. Raya discusses the negative effects of coal in South Africa. The water system was polluted, and people are getting sick.

The female NET magistrate asks questions about the health effects that Raya witnessed in South Africa.

Mohamed Athman testifies next. Again, Amu Power attorneys try to show that Save Lamu participated in the public hearing. They refuse him to expound to explain that he went as a member of the Lamu water users association. Not representing Save Lamu.

NET judges now asking about the timing of the public hearing, showing the notice for the public hearing. Tribunal members are asking questions, since the notice date is different in different newspapers.

The hearing was on a Friday, which makes it difficult for Muslim members of the Lamu community to attending.

Amu Power attorney tries to tear down this fact, citing that Mohamed Athman (who is Muslim) was attending today’s ongoing hearing on a Friday. The attorney is questioning why he should be able to attend on one Friday and miss another, indirectly raising doubts of his religious adherence.

Amu Power attorney trys to trip Mohamed up on his statement. He is trying to establish Save Lamu had knowledge of the public participation meeting. [Towards showing project proponents created sufficient opportunities for public participation.]

Lempaa steps up after Amu Power attorney finishes. Mohamed is asked to explain why he objected to the Public Hearing being held on a Friday.

Mohamed then expounds on the public participation meeting and how Amu Power spent an inordinate amount of time to discuss the coal plant’s benefits and none on its negative effects.

Mohamed in his own words:

  • The environmental threats of the coal plant are significant. Carbon dioxide and other air pollutants will be present. Let us not look just at people in the box — [within the area demarcated for the coal plant] — but what about those living outside?
  • And about land. There is no mitigation plan to solve problem of poisoned land and vegetation. People have no say, if the government wants this project.
  • We, as adults, will leave what for our children? What about the food we grow on this land. What will happen when we won’t have land for food?
  • And the negative effects on tourism, on the beaches and all of Lamu’s assets…

The judge asks, why does Mohamed not have confidence in NEMA?

Mohamed responds, NEMA is a toothless creature that can never bite. He pleads with them, ensure more information to the wanainchi (regular people, the citizenry) about the project.

The judge asks Mohamed, would you stop the project, or would you want it changed?

He responds, no coal. But buy the land and use it for alternative energy projects like wind and solar.

Having finished, Mohamed stands and exits, still emotionally distraught.

The room breaks for lunch and resumes at 2pm with Dr David Obura.

Dr David Obura, NEMA registered expert, witness testimony:

Dr David Obura testifies that maps in ESIA are not accurate. Where reefs are shown, there are none. “I challenge the sampling protocols and sampling method.”

Carbon dioxide emissions are not stated truly in the ESIA. The plant emissions will double energy emissions of Kenya. And what about heavy metals released? Ash yard — this ash heap will be as long as 4km, forming a mountain. These issues haven’t been addressed at all. Also, coal is leach-able and toxic when in water.

NEMA lawyer responds aggressively with questions and asks Obura about his credentials. He is trying to show that studies are not conclusive. Just over 60% coal used to generate electricity which is 39% global. Kenya is way below global amount of allowable emissions. “Am I correct to say that this is your opinion?”

No, Obura does not agree. “Sorry.”

PAH should be considered in the ESIA. Obura states it was not considered. Many places and elements of coal handling were not assessed in the ESIA. Such as radioactive components and heavy metals. (?)

Obura provides many research projects as evidence. Lawyers are trying to poke holes in his examples. “It is a good research but not exhaustive.” (?)

The judges are rifling through witness statements and annexes, and looking at maps.

The Amu Power lawyer has basically hit a wall in trying to poke holes in Obura’s report. Amu Power attorney is trying to establish that research paper authors not known by Obura should not be legitimate.

Even the judges are questioning his intent. Judges getting impatient and pointing out that Dr Obura’s qualifications are sound. “We cannot bastardize all articles. Do you have any evidence that these are not legitimate?”

Dr Obura: Ash yard will hold 15 years [worth of ash]. It is 1270 x 900 mt and 25 Mt tall. So they will need another ash yard 1.5 times larger.

Amu Power attorney: You are not an expert on the subject.

Dr Obura: I am a scientist, and I can tell when information is rendered or not. And it is lacking in the ESIA.

Amu Power lawyer: Climate change and Paris Convention — planting trees is one method of reducing carbon. We are planting trees.

Dr Obura: The coal plant will expel 8 million tons of CO2, so the trees you are planting are not enough to offset emissions. Why go backwards when we could go forward? We have wind, solar and natural gas.

Amu Power attorney: We have discovered sizeable quantities of coal in Kitui. Would you say leave it in the ground?

Dr Obura: I would suggest it is better to not develop these sources, as there are many other new technologies.

Katiba Institute up next…

Dr Obura:

  • Paris Agreement is to reduce carbon footprint, and Kenya has a responsibility to reduce emissions in future developments.
  • The ESIA is very deficient.
  • The coal plant will double Kenya’s carbon emissions. Coal from South Africa is known to be dirty and also that from Kitui.
  • My conclusion is that there are extensive impacts but not enough analysis on mitigation measures.
  • Countries are make sure that energy source is not obsolete, and using a dirty fossil fuel like coal is obsolete.
  • Twenty years from now, we may be using technology and renewables. And we will have a coal plant in Lamu with an ash yard with years of coal ash piled up. And this will be a waste.
  • Fodor creek is a reserve and protected by KWA, but it is not mentioned in the ESIA, even though the plant sits next to it.

Judge: Would a different choice of location mitigate impacts?

Dr Obura: Yes. (In reference to the sea grasses and mangroves in the area.) But the location for this project was already a foregone conclusion by the time the ESIA was written.

Outside: community mobilises, police disrupt

Meanwhile, outside, Lamu residents had gathered for a planned film screening and silent march. Residents unable to enter the Lamu fort building to attend the hearing rally outside. After watching a film on community members who traveled to South Africa to better understand the effects of coal, they gather in the streets for a peaceful march against the coal plant, as a show of support for the witnesses inside representing them.

Police intervene. Despite Save Lamu having notified the County Commissioner’s office as necessary and obtained the stamp of receipt, as below, police threaten the group. Stop the demonstration or your signs will be taken away.

Longtime project skeptic and opponent MP Shakila Abdallah — who had been attending the hearing — steps outside to mediate.

Lamu residents in opposition to the coal plant, in film screening and street demonstration

Save Lamu deCOALonize flyer & call to action, and received notification of intent to assemble: