Mavoko sewer line row raises stink of public participation brush-offs

Affordable houses

Handover of Great Wall Gardens 3 developed by Erdemann Property Limited in Athi River.

Photo credit: File I Nation Media Group

Nearly a decade ago, real estate firm, Erdermann Property Limited decided to construct a multi-billion-shilling complex within the Athi River plains, not far from Nairobi, buoyed by a huge demand for housing.

Dubbed the Great Wall Gardens project, the housing complex sits on a 30-acre parcel, consists of 2,200 apartments divided into 21 blocks, and has a commercial centre to host a primary school and shopping complex.

With the housing units complete, Erdermann had its next challenge of ensuring a sewer waste is efficiently in place. The real estate firm opted to lay a sewer line along Quarry Road and Old Mombasa Road that linked to a mega one owned by the Mavoko Water and Sewerage Company.

There was, however, a catch to it. It passed adjacent to several properties including a mega mixed-used real estate project christened Chrystal Rivers Mall owned by Safaricom Staff Pension Scheme, which means Erdemann required the consent of their landlords before constructing the channel in line with Article 10(2) of the Constitution on public participation and all aspects of governance.

Court proceedings reveal blatant acts of disregard for the law that saw Erdemann proceed to build the sewer line in November 2016 without consultation of parties such as Safaricom Staff Pension Scheme.

Fillings in an Appellate Court last week revealed that Erdemann curiously obtained approval from three public agencies; the Kenya Urban Roads Authority, the Mavoko Water and Sewerage Company, and the Kenya National Highways Authority to build the mega sewer line based on the views of just five people.

Court records showed that although the “public participation” for the Environmental Impact Assessment for the major sewer line project that was going to affect several property owners and general members of the public, the collection of views on the venture was limited to interviewing only five people, namely Isaac Mutuku of Athi River Fourth Nurseries, Catherine Koki of Marino Church, Ruth Mwikali of Athi River Youth, Joseph Mwendwa of Kenani and one Everlne Mutha.

Erdemann snubbed Safaricom Staff Pension Scheme in its consultations as well as the proprietors of the other immediate neighbours to the Chrystal Rivers Mall including Sunset Boulevard Estate, Jam City slum, M. A. Math Charitable Trust and Amrita school, and Apex Steel Limited.

“The principle of public participation is a requirement in the development of processes, plans, and policies for the management of the environment and Article 69 (1) d, f, and the Constitution sets out the obligations towards securing the environment,” a Court of Appeal bench comprising Justices Asike Makhandia, Kathurima M'inoti, and Hellen Amolo Omondi said a judgment last week.

“Indeed, Section 3(5) of the Environmental Management and Coordination Act, places a duty on the National Environmental Management Agency (NEMA) to ensure that there is sufficient and credible public participation before issuing licenses. Lack of public participation is fatal and any action done without public participation where it is required invalidates the said actions and is null and void,” the judges added.

The Court of Appeal said the decision to grant approvals for the construction based on the views of just five parties while snubbing others was suspect.

“For reasons that are not apparent to us, the property owners and people who were more directly affected by the project were omitted. It would thus look, with due respect, that there was a deliberate effort to engage only people and institutions that were on the face of it peripherally affected by the project,” the court said while upholding the findings of a trial court.

“Taking into account the centrality of participation of the people in a democratic polity and as a constitutional edict as elucidated above, we cannot escape the conclusion that there was no meaningful public participation in this case,” the Appellate Court said.

It said that as a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance and that a public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.

“The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means,” the judges said.

“Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill ’a constitutional requirement. There is a need for both quantitative and qualitative components in public participation,” they added.

The Appellate Court said public participation must be accompanied by reasonable notice to accord affected parties sufficient opportunity to state their views and positions.

“What we see in this appeal is not a genuine and honest effort to satisfy a constitutional principle, but a cosmetic public relations exercise, a bare stratagem for no other purpose but to give the impression of compliance with constitutional dictates,” the court said at it dismissed an appeal by Erdemann seeking to have the approval for sewer line upheld.

“For a project of the magnitude involved in this appeal, we agree with the trial court that it ought to have been advertised in the dailies or through other accessible public medium, calling for comments, views, and/or objections and carried out public education on the project, which was never done. That is the bare minimum required by the guidelines prescribed by the Supreme Court,” the court said.

The decision by the Appellate Court is expected to refocus the spotlight on other public projects where public participation has been ignored in direct breach of the law.