What you need to know:
- The commencement of construction through the park is a major setback in the fight by a determined group of conservationists.
- Ordinarily, environmental compliance forms part of the planning process and is sought before construction decisions are made.
Two weeks ago, pictures surfaced on social media of the commencement of public works at the Nairobi National Park for the second phase of the standard gauge railway.
This phase will extend the railway line from Nairobi to Naivasha.
Last week, the National Environment Tribunal dismissed with costs an application for a finding of contempt against the Kenya Railways Corporation and the China Road and Bridge Corporation over the construction of the railway through the park, alleging that this had flouted the previous orders of the tribunal.
Fearing that a growing public outcry over the construction process might lead to the barracking of the site, the authorities soon cordoned off the construction site, and brought onsite heavily armed police to protect the public works.
It is now likely that when the police are eventually withdrawn and the hoarding removed, the country will be presented with the fait accompli of a railway line through the park.
The commencement of construction through the park is a major setback in the fight by a determined group of conservationists, who have sought to prevent the use of the park, unless a clear picture of the environmental consequences is established.
Originally, the Kenya Railways Corporation had said that the construction of the railway would not affect the park.
This changed on September 2016, when the corporation announced altered plans that would mean construction through the park.
Subsequently, President Uhuru Kenyatta, the architect of the Standard Gauge Railway, affirmed the changed plans, terming “upuzi" (nonsense) objections to the use of the park.
Following the announcement by Kenya Railways, campaigners filed an appeal before the tribunal seeking to stop the construction until environmental concerns were adjudicated upon.
Under the Environment Management and Co-ordination Act, once there is an appeal to the tribunal, the status quo of the matter that is the subject of the appeal must be maintained until the appeal is determined.
As a result of this provision, construction should have stopped until the tribunal had heard the dispute in question.
As set out in the papers filed before the tribunal, the substance of the objection to the construction through the park is that the award by the National Environment Management Authority (Nema) of the Environmental Impact Assessment Licence was based on an incomplete and incompetent Environmental and Social Impact Assessment, which lacked the benefit of public participation and which ignored the concerns and objections of various groups, including the Maasai community through whose land the railway line would pass.
The campaigners allege that the assessment did not value the resources that would be destroyed if the railway passed through the park, and that failed to consider other route options outside the park, allegedly because these would be more expensive.
The objection also faulted the Nema assessment for failing to consider the effect of the size of the park, claiming that this is too small to survive the habitat fragmentation that the SGR would bring.
The fragmentation would result in inbreeding, low wildlife genetic quality and a slow death of the park.
The reduced size of the park would escalate wildlife to wildlife conflict and human/wildlife conflict, which would spill over to the neighbourhoods of the park.
The SGR project ended up facing more public criticism than its authors would have anticipated, initially over viability and cost, and later over the decision to extend the project to Naivasha, which was not in the initial plans.
In this context, President Kenyatta has had to stake his political prestige and power for the success of the project.
It seems that having publicly taken a position that the project would pass through the park, the President has precluded contrary independent positions by the relevant public agencies.
The Environmental Management and Coordination Act requires that a project cannot start without an independent and professional study to determine its impact on the environment.
Ordinarily, environmental compliance forms part of the planning process and is sought before construction decisions are made.
However, the available information suggests that a decision was made that the railway line would go through the park, and was then followed by attempts to validate it through a favourable environmental assessment.
In the circumstances, it has been difficult to demonstrate that the decision by Nema was independent or in the public interest.
There has been a struggle to rescue the decision from a perception that it merely fulfils the President’s desire to construct through the park.
The National Assembly has also played a role in the management of this dispute, clandestinely inserting into the Prevention of Torture Bill, 2017, an amendment to the Environmental Management Act, which had the effect of reversing all stop orders previously issued by the tribunal.
Environmental campaigners allege that the government gave short shrift to alternatives that would have seen construction of the railway outside of the park because going through the park frees up land for grabbing, which would otherwise not be available.
If this allegation is true, corruption is a force driving the decision-making.
The manner in which the tribunal has handled this dispute is also of interest, resorting to legal sophism aimed at defeating the automatic application of the stop orders following the filing of an appeal against the construction of the railway through the park.
The evidence suggests a number of authorities, including the Kenya Wildlife Service, the National Assembly, Nema and the tribunal, have worked in concert to defeat objections to the construction of the railway through the park.
Regrettably, these very authorities are supposed to promote and protect the public interest.
Their strategies for managing the decisions have included political meddling displacing independent decision-making, legal sophism, of the kind that both the Assembly and the tribunal have employed in the past, and the non-disclosure of information that is material for informed public opinion and decision-making.
It is difficult not to feel that private interests are behind the strange unison between these agencies.