Table of Contents
Introduction
Kenya’s bold and ambitious embrace of green and renewable energy poses an unprecedented problem of balancing clean energy goals while taking into consideration the rights of the communities affected by green energy projects.
Contemporarily, the development of these projects is underpinned in an interconnected web of legal frameworks and principles that intend to promote public participation, ensure equitable share of benefits, protect community rights and also promote sustainable development. This paper therefore delves into the legal framework governing participation of communities in green energy projects in Kenya. The paper explores the foundational principles, the existing regulatory frameworks, decided case laws and the areas for improvement in this crucial aspect of sustainable energy development.
Foundational Principles for the Participation of Communities in Green Energy Projects
The Constitution of Kenya, 2010 (CoK) serves as the cornerstone for the legal rights and principles governing the participation of local communities in green energy projects in Kenya. Article 42 in recognizing the interconnection of environmental rights and the overall well being of citizens, states that every person has the right to a clean and healthy environment. Further, Article 69, and more specifically Article 69(1)(d) mandates public participation in the management of environmental resources. These express provisions of the CoK 2010 form the foundational principles for community inclusion in the development and management of any green energy projects affecting community land.
Moreover, the Land Act 2012 and the Community Land Act, CAP 287 Laws of Kenya, recognizes “community land” as a distinct land ownership and/or tenure system that gives communities some form of control over the development activities that may be undertaken on the land.
Existing Regulatory Frameworks
Several statutes in Kenya solidify the participation of communities in projects being carried out in their community land. Firstly, the Environmental Management and Coordination Act (EMCA)1999, CAP 387 of the Laws of Kenya mandates every developer carrying out any projects listed at the Second Schedule of the Act to conduct a mandatory environmental and social impact assessment study which includes and is not limited to consultations with the affected communities. Green Energy projects are listed under Part 10 of the stated schedule.
This requirement is echoed by the Energy Act, CAP 314 of the Laws of Kenya which further provides for the public participation of the communities in the planning and development of energy projects being carried out on their land. This Act establishes the Energy and Petroleum Regulatory Authority (EPRA) which is charged with ensuring compliance with its provisions.
The Community Land Act, No 27 of 2016 is another major statute that shapes the participation of communities in green energy projects. The Act stipulates and protects the communal rights of land-owning communities majorly in rural areas where the green energy projects are mostly carried out. It provides for mechanisms in which communities can effectively manage their land and mandates a Free Prior and Informed Consent (FPIC) from the community before any energy projects can be carried out on the community land. This helps in minimizing conflict and ensuring equitable distribution of benefits arising from these projects.
Judicial Decisions on Participation of Communities in Green Energy Projects in Kenya.
Beyond legislation, Judicial decisions forming precedence also play a critical role in the participation of communities in green energy projects. Some of the notable decisions in Kenya include:
Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another [2019] eKLR: in this case, the National Environment Tribunal (NET) revoked an Environmental Impact Assessment License issued to the 2nd Respondent (Amu Power Company) in order to set up a coal fired power plant in Lamu. In its decision, the Tribunal noted that “communities are justifiably concerned about the environmental impacts of projects being carried out in their location and therefore must have a say on each and every aspect of the project and its impact.” This clearly elaborated the principle of public participation in undertaking energy projects.
Friends of Lake Turkana Trust v Attorney General & 2 others [2019] eKLR: In this case, the Environment and Land Court sitting at Nairobi ruled that the Lake Turkana Wind Power Project violated the rights of the local communities, since they were not consulted nor compensated for the loss of their land, livelihoods and culture. The Court ordered the Government of Kenya together with the developer to conduct a human rights impact assessment and ensure quality and meaningful participation of the affected immediate communities. This case underpinned the importance of consulting the local communities when carrying out any projects including the green energy projects.
Areas for Improvement
Areas for Improvement
Despite the succinct legislation and resultant case law, FPIC still remains hugely undefined under Kenyan law hence making its application inconsistent and ambiguous.
Additionally, lack of legal representation and unequal access to relevant information puts the various local communities at a disadvantage thus potentially leading to unfair agreements which do not conform with the wants and needs of the communities.
In lieu of this, there is a need to strengthen the legal framework in relation to participation of communities in green energy projects. This could be done by amendment of the Climate Change Act CAP 387A of the Laws of Kenya or the passing and enactment of a distinct Community Participation in Green Energy Act in order to clarify on FPIC procedures, establish thresholds for community consent and also streamline the project benefit sharing mechanisms
Conclusion
To sum it up, it is prudent to note that Kenya’s legal framework provides a foundational basis for the participation of communities in green energy projects. However, improvement on the same is still needed so as to ensure the country’s green energy transition is not just but environmentally sustainable, but also appreciates and empowers local communities to partner in the green future.
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