Omtatah files suit over violations in approval processes of Lamu coal plant
PRESS AND PUBLIC SUMMARY
Suit filed against the following parties:
KENYA POWER AND LIGHTING COMPANY
AMU POWER COMPANY LIMITED
ENERGY REGULATORY COMMISSION (ERC)
PRINCIPAL SECRETARY, THE NATIONAL TREASURY PRINCIPAL SECRETARY, MINISTRY OF ENERGY & PETROLEUM
HON. ATTORNEY GENERAL
NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (NEMA)
Summary:
The following summary is provided to assist the public and the media in reporting this case.
1. Relying on deliberately falsified data that contradicts official records which clearly show that currently there is a glut in electricity generation, the Government of Kenya has allowed a consortium of local and international firms under the investment vehicle Amu Power Company Limited to build the proposed 1,050 MW coal fired electric generating unit (colloquially, power plant) in Lamu County. The plant is supposed to fill an imaginary acute shortage of electricity generation in Kenya.
2. Government records, including current data for daily supply and demand from Kenya Power; the National Energy and Petroleum Policy 2016; the Mid-Term Power Generation and Transmission Master Plan 2015 -2020; and the Long-Term Power Generation and Transmission Master Plan 2015 -2035 show a glut in electricity supply and the abundance of renewable sources of energy such as geothermal, hydro, solar, wind, and biomass, that have hardly been tapped. Hence, there is absolutely no justification today or in the distant future for setting up the highly polluting coal fired power plant in Lamu or anywhere in Kenya.
3. The Government has also refused to disclose whether or not the Energy Regulatory Commission has granted an Electricity Generation Licence to Amu Power Company Limited to build the Coal Fired Power Plant in Lamu County.
4. The Government has also refused to make full disclosure of the Power Purchase Agreement (PPA) entered into between the Kenyan State (through Kenya Power) and Amu Power Company.
5. The secretive PPA is said to bind Kenyan taxpayers to pay about US$ 368 million (approximately, Kshs 36.8 billion) per year as capacity charges for the privately owned Lamu Coal-Fired Power Plant whether we use the electricity or not.
6. The Environmental Impact Assessment report upon which NEMA licensed the project is a scientifically meritless apology for the project. It was prepared by a conflicted expert who was literally an agent of Amu Power Limited. Kurrent Technologies Ltd. was appointed by Amu Power Limited to dispense with the formality of preparing the EIA study report for the necessary environmental authorisation required in law.
7. The Environmental Management and Co-Ordination Act requires aggrieved parties to seek relief before the National Environment Tribunal, yet tribunals have no jurisdiction under the Constitution to entertain matters concerning the violation of constitutional provisions, including of rights and fundamental freedoms in the Bill of Rights.
8. In response to the above, I have filed Nairobi High Court Constitutional Petition №334 of 2017, asking the Court:
a. To determine whether or not the Energy Regulatory Commission has granted an Electricity Generation Licence to Amu Power Company Limited to build the proposed 1,050 MW coal fired electric generating unit (colloquially, power plant) in Lamu County. Further, I want the Court:
i. To determine whether or not the Energy Regulatory Commission’s Acting Director General Pavel Robert Oimeke, who is not a registered engineer, is competent to issue the Electricity Generation Licence for the Lamu Coal Power Plant.
ii. To determine under what circumstances the Electricity Generation Licence was issued (if it was issued) given it is in the public domain that Engineer Joseph Ng’ang’a, the former substantive Director General of the Energy Regulatory Commission, declined to issue the said licence.
iii. To order the production of the report by the Energy Regulatory Commission’s Electricity Generation Licensing Committee approving the issuance of a licence to the Lamu Coal Fired Power Plant.
iv. To order the production of the Energy Regulatory Commission’s minutes approving the issuance of the license to Lamu Coal Fired Power Plant.
b. To order the Kenya Power and Lighting Company, the Amu Power Company Limited, the Energy Regulatory Commission, the National Treasury, the Ministry of Energy & Petroleum, and the Hon. Attorney General to make full disclosure of the secretive Power Purchase Agreement (PPA) entered into between the Kenya State (Kenya Power) and Amu Power Company.
c. To further compel the Government to release the following information and documents on the Lamu Coal Fired Power Plant:
i. Details of any loans the PPA has been used to secure or guarantee.
ii. Details of any loan guarantees by the GOK or any of its agencies for the Lamu Coal Power Plant.
d. To declare that, given the inherent conflicts of interest, it is constitutionally invalid for proponents of projects to hire and pay experts who prepare the mandatory environmental impact assessment (EIA) reports, upon which the State regulator (the National Environment Management Authority — NEMA) then relies to issue licenses for development projects.
e. To declare that given the current glut in electricity generation, and the abundance of renewable sources of energy such as geothermal, hydro, solar, wind, and biomass, that have hardly been tapped, there is no justification for setting up the highly polluting coal fired power plant in Lamu or anywhere in Kenya.
f. To issue a permanent injunction against the establishment of the Lamu Coal Fired Power Plant.
g. To declare that, the National Environment Tribunal lacks the jurisdiction under the Constitution to entertain proceedings filed in defence of the Constitution and the Bill of Rights. The Tribunal continues to act as it did under the repealed Constitution as the court of first instance for challenging decisions of NEMA to licence projects which impact on the enjoyment of rights and fundamental freedoms protected by Article 42 of the Constitution.
Okiya Omtatah Okoiti
Nairobi, July 4, 2017
