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A people in the way of progress

Kapitel 1: Storm ahead for Vestas as giant Kenyan wind power project is in court

As wind turbines begin to arrive in Kenya by the hundreds, a court case about illegal land acquisition in Northern Kenya drags on between nomadic tribes, an international consortium and the government, while tensions are on the rise in local communities. Danwatch visited Northern Kenya to get a closer look at the impacts of Kenya’s largest-ever private investment.

Behind this investigation

Green energy is expected to be a significant part of the solution to Africa’s energy problems. But what new problems may arise if progress exacts at a high cost?

Lake Turkana Wind Power is the largest private investment ever in Kenya, and Danish and international companies and investors have already sunk millions of euros into the project. But they now await a court decision which will determine whether the land on which the turbines will be built was illegally acquired.

KEY FINDINGS

  • Danwatch has conducted 24 interviews with ethnic groups in Sarima and the catchment area, Gatab, Loiyangalani, Kargi and Marsabit. Most communities approve of the wind power project, but claims of no public consultations prior to Lake Turkana Wind Power projects land acquisition in 2007 have been raised. The land rights issue is now in court
  • Prostitution, violence and alcoholism have now come to the resettled community Sarima, because of expectations of jobs, which the project has not been able to fulfill due to an influx of people
  • The consortium does not recognize 3 out of 4 tribes as indigenous people, and therefore they are not given rights as such in the project. The tribes in question, Turkanas, Samburus, Rendile and El Molo are recognized as indigenous peoples by The African Commission of Human and Peoples Rights as well as experts interviewed by Danwatch
  • Experts in IFC Standards, indigenous peoples rights and land rights in Kenya say to Danwatch that the wind power project is not in compliance with neither IFC Performance Standards nor international human rights standards

The room was filled to capacity as traditional nomads, lawyers and representatives met at the Land and Environment Court in Meru, March 9. Once again, Judge Peter Njoroge announced a postponement of his decision in a dispute about alleged illegal land acquisition between representatives from local communities and an international million-euro consortium, Lake Turkana Wind Power project. A high profile case which may have serious long-term consequences for Kenya.

The Lake Turkana Wind Power project represents a revolution for renewable energy in Kenya – but in its home region in Northern Kenya, the project is facing obstacles. First of all, the legality of how the consortium acquired the land in 2006/2007 is questioned, second the project has now caused inter-tribal conflicts, and finally, critique of the power purchase agreement (PPA) with the government has been raised. Lake Turkana Wind Power project is Kenya’s biggest private investment ever at a value of approximately 620 million euros. Electricity from the turbines will increase Kenya’s energy output by between 15-20%, and according to the project’s own calculations, the turbines will bring electricity to 2,5 million additional Kenyans.

Since its inception in 2006, the consortium has leased 150,000 acres of land and resettled a small village, Sarima, in order to build a road and set up 365 wind turbines alongside the windy shores of Lake Turkana.

In 2014, the project faced headwind when residents from Laisamis Constituency and Karare Ward filed a lawsuit, not only against Lake Turkana Wind Power project, but also the county government, the National Government and the National Land Commission for illegal land acquisition.

In her Nairobi-office, Amina Hashi, plaintiffs lawyer with expertise in land rights and land law, says that she cannot comment on the on-going case, however she can inform on the process of alienation of Land of this nature:

“As a Land Lawyer it is public knowledge that legal process of land acquisition are elaborated and contained in statute law and the Constitution. Therefore the framework for alienation of land follows a step by step procedure as enshrined in the various statutes for example the Trust Land Act covers how community land can be acquired through a step by step mandatory process known in law called setting apart”. Hashi adds:

”This process of setting apart allows for community consultation and qualitative participation. It even allows the community a right of refusal of the setting apart proposal if they so wish. Now the reality of what happened and the provisions of the law are being tested,” says Hashi:

The process of how the land was set apart was ”unconstitutional, unprocedural, illegal and irregular. The Procedure was flawed and made a mockery of and assumption that the provisions of the Repealed Constitution and the Trust Land Act were of mere ornamental status”.

Lawyers representing Lake Turkana Wind Power project do not wish to comment on the ongoing court case. But according to court case files, the question before the court as raised by the Lake Turkana project is that the issue of the land is one, but the project benefit to the community is enormous and they therefore question plaintiffs motives for filing the court case.

The story in brief

  • Lake Turkana Wind Power project in Northern Kenya is in court over allegations of illegal land acquisition
  • There was no public consultation, before the land was given away, no reservations from the residents and no compensation, which is a violation of Trust Land Act and the Constitution, plaintiffs state
  • The consortium, consisting of international lenders and companies “denies each and every allegation set out in the plaint”
  • The consortium claims that local host communities (Samburu, Turkana and El Molo Ed.) are fully in support of the project and do not feel the plaintiffs represent them
  • Lake Turkana Wind Power project is Kenya’s biggest private investment ever at a value of approximately 620 million euros. It is due to be fully operational in 2017

Green energy in rural Kenya

The Lake Turkana Wind Power project is financed by a number of international investors, including Finnfund, Norfund, the Danish Investment Fund for Developing Countries (IFU), the Danish Export Credit Agency (EKF) and Vestas. Vestas is manufacturing the turbines and holds a 12.5% share in the project. The wind turbine project was launched in 2006 and seemed like a good idea from the beginning. An increase in sustainable energy, job creation and development of rural Northern Kenya were highlighted by the consortium as positive impacts described in the project’s Environmental and Social Impact Assessment (ESIA).

Another benefit from the project is strengthening of the existing 200 km road from Laisamis-South Horr and South Horr-Loiyangalani Road in order to make sure that heavy trucks transporting the enormous wind turbines can access the rough areas around Lake Turkana.

Access to energy is one of the signature initiatives of Uhuru Kenyatta’s government, and the president appeared personally at the groundbreaking ceremony of the wind turbine project in July 2015, and lauded it to the invited members of the press.

“Today, we witness the commencement of a great project … It is my duty today to encourage the local people to open their eyes to the opportunities coming down this way, and to get ready to take advantage of them. Nothing will get in the way of this wind turbine project,” Kenyatta said.

In 2014, the project was awarded both the African Renewables Deal of the Year and the African Power Deal of the Year by the media firm Thomson Reuters.

However, allegations of illegal land acquisition and renewed inter-tribal tensions because of the project began to emerge. Two of the pastoralist communities in the area, Turkana and Samburu, which have lived off and fought over cattle for centuries, began accusing each other of being unfairly favorized in getting jobs with the consortium and violent attacks increased, say community members that Danwatch has interviewed. Violent attacks are common for this area, but usually due to cattle raids and at this point, people were being attacked and killed without cattle being stolen.

Later on, in 2009, critique was raised from a potential core investor, the World Bank, which disputed the feasibility of the project’s power purchase agreement (PPA) with the Ministry of Energy. According to the World Bank, the agreement will eventually make electricity too expensive for Kenyans. Allegedly, the World Bank dropped out of Lake Turkana Wind Power project in 2012 because of the project’s feasibility, said former country Director from the World Bank in Kenya, Johannes Zütt, October 2012.

“We believe that the take-or-pay provisions in the PPA between Lake Turkana Wind Power project (LTWP) and Kenya Power and Lighting Company (KPLC) would expose Kenya Power to unacceptably large financial risk given the possible curtailment”, Zütt stated.

Who has the right to the land?

In the court case, the process of how the land was given away is contested. There was no public consultation, no notice given of the proposal for setting apart, and no compensation for lost land or alternative settlement was offered, plaintiffs state.

Trust or communal land

Trust land or communal land is a territory in possession of a community, instead of an individual or company. Trust land or communal land (after the constitution in 2010) is managed by the government under a National Land Commissioner . It is the resposnsibility of the commisioner to manage public land on behalf of the national and county governments and make sure that the procedure and manner of setting aside land for investment should respect mechanisms of benefit sharing with local communities.

In 2006, the land in question was trust land, which means land held in trust by the county government on behalf of the communities. Plaintiffs are part of the Rendille community but they claim to represent all communities in the region which are Rendilles, Samburus, Turkanas and El Molo. These nomadic pastoralists have lived in the region for centuries. They use the land for their livelihoods, cultural, ceremonial and spiritual purposes, ”which makes them legitimate owners and occupants of the land in question, Laisamis and Karare”, plaintiffs say.

But the original ownership of the land is questioned by the consortium in their Resettlement Action Plan (RAP) from 2014, where they state:

“The nomadic pastoralists have customary rights of use to land pastures, however, have no recognizable legal right or claim to the land other than use and are therefore not eligible for land compensation”, the consortium says.

The question of who has the legal right to trust land is not a question at all, according to Liz Alden Wily, an international tenure specialist presently at the Leiden School of Law.

“The Constitution in force at the time was clear that this land is owned by the people although held in trust for them by the County Council. The new Constitution is even clearer: this land is community property,” says Wily.

Many land-rights conflicts arise when the government gives away concessions to land that are not theirs to give, says Birgitte Feiring, a senior researcher at the Danish Institute for Human Rights.

“It is not the case that because these people do not have a deed to the land, they have no rights to it or to the surrounding area, because their rights to the area are based on historical rights” Feiring says. A growing demand for green energy projects in developing countries has spurred several court cases of illegal land acquisitions, because foreign investors go for rural areas, where the wind, sun and water is suitable for these types of projects. This is one of the reasons why conflicts of this nature are not uncommon in Kenya, according to Mikkel Funder, a senior researcher in natural resources and development at the Danish Institute for International Studies (DIIS).

“Green energy projects are booming across Africa right now, and governments are eager to access the energy and financing.

The law: When land is set apart by a council

Before the new constitution was adopted in 2010, when a local council received an application for land lease, a divisional land board should be established to ensure public participation in the decision process. According to the Land Trust Act, a Divisional Land Board had to consist of:

  • a chairman, appointed by the Minister for the time being responsible for land after consultation with the council
  • not less than four and not more than fifteen persons appointed by the council;
  • not more than two public officers appointed by the council; and
  • two persons appointed by the council from amongst its members.”

Once the Divisional Board was established, the Land Trust Act required the following procedure before land could be set apart:

  • the Divisional Board shall hear and record in writing the representations of all persons concerned who are present at the meeting, and shall submit to the council its written recommendation concerning the proposal to set apart the land, together with a record of the representations made at the meeting;
  • the recommendation of the Divisional Board shall be considered by the council, and the proposal to set apart the land shall not be taken to have been approved by the council except by a resolution passed by a majority of all the members of the council:

Provided that where the setting apart is not recommended by the Divisional Board concerned, the resolution shall require to be passed by three-quarters of all the members of the council.”

In other words, a simple majority of the council could approve the setting apart if the Divisional Board supported it, but a three-quarters majority was needed if the Board opposed it. Either majority had to be calculated with respect to the total number of elected council members, not simply those present at the time of the vote.

Once the council approved a proposal to set apart land in accordance with the procedure above, the council was required to publish a notice of the setting apart in the Gazette, which means public announcement of the land being set apart.

Source: Trust Land Act, 2010

Cases like this are worrying, because they show that in practice, existing procedures around public involvement are not sufficient to ensure that communities feel properly heard and involved in green investments. We need more checks and balances and broad social acceptance of these projects,” says Funder.

Lack of consultations

It is the responsibility of the county government to make sure that communities were properly consulted before land was privatized, which was not the case with Lake Turkana Wind Power project, Plaintiff’s lawyer Amina Hashi says. The technical explanation from Hashi goes like this: ”When Marsabit County Council received Lake Turkana Wind Power projects application for the lease of 100,000 acres of land the 20th November 2006, it was the county councils responsibility to establish a Divisional Land Board according to the Trust Land Act”.

“The Divisional Board shall hear and record in writing the representations of all persons concerned who are present at the meeting and shall submit to the council its written recommendation concerning the proposal to set apart the land, together with a record of the representations made at the meeting. The recommendation of the Divisional Land Board shall be considered by the council, and the proposal to set apart the land shall not be taken to have been approved by the council except by a resolution passed by a majority of all the members of the council”.

Plaintiffs lawyers’ legal argument states, that there was never a divisional land board set, says Hashi.

“The only meetings held was attended by town dwellers and fishermen from one area (Loyiangalani), and did not involve the pastoralist community and the project therefore lacks public participation in its establishment. This meeting neither declared the size of land required for the project, nor did it inform the community of the loss of access to their land, but instead concentrated on the benefits to the community”.

The Government on the other side has not yet explained whether a divisional land board existed to counter the plaintiffs’ argument, instead they state that “town council committee” can be viewed to be the divisional land board, court papers state. But these are two very different bodies, Hashi Says:

“The trust land act make no mention of the “town planning committee” as a substitute of the “divisional land board.” Instead the trust land Act makes it a mandatory requirement for the establishment of the Divisional land board in accordance with its section 5”.

According to Lake Turkana Wind Power project, there has been numerous public consultations. The first official consultation allegedly took place 15th November 2007, a year after the land lease application was sent to the county council. Participants, content and minutes from this consultation have not been documented to Danwatch upon request.

The foundation for the first wind turbines, up to 77 meters tall, awaits the turbines in March 2016.

Consortium denies all allegations

Not surprisingly, the communities in the court case and the consortium don’t agree on much else than the size and location of the land and the dates in question. On the 20th November 2006, the Lake Turkana Wind Power project submitted an application to the Marsabit County Council to lease 100,000 acres of land south of Loiyangalani for a period of up to 99 years, according to leaked documents obtained by Danwatch. The following year, 3rd April 2007, the consortium requested 50,000 additional acres, expanding their application to 150,000 acres in total. On 13th August 2007, Lake Turkana Wind Power’s application to lease the land was approved at a meeting in Marsabit County Council.

The consortium denies “each and every allegation set out in the plaint”. They also claim that plaintiffs do not represent the communities Rendille, Samburu, El Molo and Turkana. Rendilles, the consortium say, live far away from their traditional community, and therefore they cannot be representing the “project affected communities”, the defense statement reads. Furthermore, the consortium contests that the land is being used for spiritual purposes, but should any of the local communities wish to access the land, they can do so, which is why the question of compensation for land is not relevant. The area will not be fenced off after construction, they state.

Finally, the consortium states that the “lawful and proper” acquisition of the land lease was confirmed by the National Land Commission on November 2013. The National Land Commission is also on trial, accused by the communities of illegal land acquisition.

According to the consortium, ”numerous” consultations and stakeholder meetings have been held since April 2006, and the project has received “numerous and repeated assurances of support from all the local communities surrounding the proposed wind farm”, they state. The defense statement, however, do not address whether the issue of land lease was mentioned in any of these public consultations.

Danwatch has interviewed 24 members from the Rendilles, El Molo, Turkanas and Samburus, who independently say, when they first heard about the land being given away. Almost all answers vary from 2009-2016. None of them had heard about the land acquisition by the consortium until after 2007. The consortium has to date not been able to document otherwise to Danwatch.

A share of the profits

Back at the Land and Environmental Court in Meru on the 9th of March 2016, the judge has heard arguments from the lawyers for the communities and the consortium and the government representative. Prior to this court case, the Lake Turkana Wind Power project took the Deputy Registrar of the High Court on a site visit using helicopter with two of their lawyers, the lawyers for the county and national government and only one lawyer from the Plaintiff. A couple of grainy photographs of the barren landscape and a question from the judge regarding the ongoing construction of a school for Sarima’s children was all that was disclosed in a report to the court and litigants regarding the site visit, however.

Abdi Hassan, the defense lawyer for Marsabit County, which plaintiffs accuse of failing to involve the local population in the decision of setting apart land, offers a different perspective on the case. He suggests re-negotiating the sale of electricity from the consortium to the government so that Marsabit County can secure a percentage of the profits.

”This is in its essence what this case is about. This is not about the right to land – that is just a camouflage. What they (the community Ed.) want is the revenue that is accruing from that land”, says Hassan.

The more than two hundred nomads who have come to the court strongly disagree. They protest and begin to shout at Abdi Hassan, who is led away by security personnel.

Recently, May 23, the court reconvened the parties to announce the date on which it will hand down its final judgment. Lake Turkana Wind Power declined an interview about the court case, while it is in court. The Plaintiff say that they will continue to pursue their rights in this Environment and Land Court and ”will wait for the ruling as they are prepared legally for any eventuality”.

Kapitler

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Dato: 30. maj 2016

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This investigation is the first of two parts of a journalistic investigation carried out in Kenya from March 2-11 2016, where ngo’s, politicians, experts in land rights and indigenous peoples’ rights and community members have been interviewed by an international collaborative team of journalists. Desk research, including data collection through Freedom of Information Act, research in this field as well as interviews with experts on human and land rights was conducted from December 2015 - May 2016. Partners in Lake Turkana Wind Power project have had the opportunity to be interviewed and furthermore comment on the findings of this investigation prior to the publishing date.

NyhederA people in the way of progress

Video: A People in the way of Progress

Lake Turkana Wind Power is the largest private investment ever in Kenya, and Danish and international companies and investors have already sunk millions of euros into the project. But they now await a court decision which will determine whether the land on which the turbines will be built was illegally acquired.