Contrary to the Environmental Management and Coordination Act (EMCA), the National Environmental Management Authority (NEMA) has submitted the environmental and social impact assessment (ESIA) final report for the Lamu port three berths for comment on February 14th, 2013 to a select few stakeholders without facilitating public consultation and review of the report.
On January 25th, 2012, Save Lamu and nine other community organizations in Lamu, Kenya took the Government to court, including the National Environmental Management Authority (NEMA), over the launch of the Lamu Port before the completion of an ESIA. Despite the fact that work has already commenced since last year, the Ministry of Transport finalised and submitted an ESIA to NEMA for approval on February 14th. In receiving the report, NEMA forwarded it to select stakeholder and gave them 30 days to comment (by March 16th). This is contrary to Regulation 21 of the Environmental (Impact Assessment and Audit) Regulations 2003, where an invitation for comments should be gazetted and a public forum to be carried out with the affected communities.
Since every Kenyan has a constitutional right to participation in decision-making, I hereby submit a complaint to NEMA and a request for the report to be shared to the public and relevant local stakeholders, as well as more time be granted for review of the ESIA as per the procedures mandated by law. Considering the biological sensitivity of the Lamu Archipelago and the uniqueness of the UNESCO World Heritage, any failure to do so would be tantamount to irresponsible development and contrary to the Environmental Management and Coordination Act (EMCA).
It has been brought to my attention that there is an open invitation for some select stakeholders to comment on the "ESIA Study Report for Construction of the First Three Berths of the Proposed Lamu Port and Associated Infrastructure”, the deadline of which is 30 days from February 14th, 2013 i.e. by Saturday, March 16th, 2013.
Although some select stakeholders have been invited to make comments on the report, there have been serious violations of the EMCA 1999 and the Environmental (Impact and Audit) Regulations 2003. The violation of this Act and Regulation has restricted the Lamu Community’s ability to make oral or written comments on the report, as the public were not made aware of the lodgement of the report, nor was the community invited to make oral or written comment.
The Act is supported by the Environmental (Impact Assessment and Audit) Regulations 2003, by virtue of section 21 (2) (a) and (b), where NEMA, at the expense of the Ministry of Transport, must publish the invitation to the public to submit oral or written comment through the following ways:
1. Publishing for two successive weeks in the Gazette;
2. Publishing for two successive weeks in a newspaper with nation-wide circulation, and particularly a wide circulation in the area of the proposed project;
3. Publishing a public notice once a week inviting the public to submit oral or written comments on the environmental impact assessment study report; and
4. Making an announcement of the notice, in both official and local languages at least once a week for two consecutive weeks in a radio with nation-wide coverage.
None of the above methods of invitation, set out in Kenyan laws and regulations, have been used to publicise or gazette the invitation to comment on the report and as a result there has been no public awareness of this report. These actions defeat the purpose of section 59 of the Act and section 21 of the Regulations, which were specifically introduced into Kenyan law in order to protect the interests of community stakeholders. This is not only detrimental to Lamu County and the communities in question but to each Kenyan citizen, who through the nations constitution has enshrined the fundamental importance of the rule of law.
We therefore request that per Section 21 of the Environmental (Impact Assessment and Audit) Regulations 2003, NEMA undertake to publish the invitation for public comment as per the means stipulated. Pursuant to section 59(2) of the EMCA Act, NEMA can, on application, extend the period to comment on the EIA in order to give a reasonable opportunity to provide oral or written comments. Consequently, we also request an extension of the time period to allow the submission of the oral or written comments by the public.
The deadline for comment, as at now, is today, 16th March 2013. We therefore urge you to act swiftly with expedience on the matter.
Thank you for your urgent attention,