A THREE-Member panel of the National Environment Tribunal (NET) has made a landmark ruling that has stopped the construction of a section of the Southern Bypass in the Nairobi National Park.
The NET has also asked the Ministry of Roads and the Kenya government to follow the law if it wishes to degazette the relevant section of the park.
Through KENHA, the Government of Kenya had intended to put up a 4-km section of the Southern Bypass in Nairobi National Park, contrary to the conditions given by NEMA when it issued the EIA license for the said road.
Upon realizing this, Africa Network for Animal Welfare (ANAW), East Africa Wild Life Society and a prominent conservationist, Dr Paula Kahumbu, appealed the Environmental Tribunal to stop KENHA from damaging any part of the Nairobi National Park by building a heavy-traffic road through it.
Nairobi National Park is an important wildlife area that is home to a pride of 15 Lions, critically endangered bird species, numerous plant species including the whistling acacia thorn tree which is fodder for the black rhino. The Park was gazette in 1957 and a title deed for 999 issued to the Trustee of the Royal National Parks of Kenya in 1961. It is a popular destination that now caters to 120,000 visitors every year. It is also unique in being the only wildlife park in a capital city in the world.
In a ruling that took two hours to deliver, the members of the tribunal upheld the appeal by ANAW, EAWLS and Dr. Kahumbu to stop the construction of the Southern Bypass. They also set a date for the determination of who is to bear the costs of the application and asked respondents to seek redress elsewhere if dissatisfied with the ruling. They included the Chairman of the NET, Donald Kaniaru, and two other members, Jane Dwasi and Evans Gaturu.
During the hearing, it came to light that KENHA had offered to compensate KWS to the tune of Kshs1.6 billion for the 4km section of Nairobi National Park that would have been encroached upon in order to buy alternative land.
The major accusation placed on the respondents was that KENHA and the Ministry of Roads were contravening the NEMA condition and that besides affecting the wildlife there, the road would have failed to adhere to civil aviation regulation that requires the preservation of a 570m buffer zone from a runway. The road is near the ever-busy Wilson Airport.
The Tribunal was extremely clear that while there was no actual encroachment, the likelihood of encroachment into Nairobi National Park was extremely high. Considering the witness statements, the design of the Southern Bypass and the testimony given by EIA Expert, Prof. Kibwagi, the three member tribunal ruled that there was imminent threat of encroachment in the park if construction was allowed to continue. They went so far as to berate NEMA, saying that the environment body ought to have declined to issue the license for the entire bypass based on this.
Lastly, the tribunal ruled that the application made by ANAW, EAWLS and Dr. Kahumbu was definitely not premature and thereby decided to allow it to explore whether constructing the road on the contentious section of the park would have been done in full compliance with the law on acquisition of the said land.
That the NEMA license has been cancelled means that there will be no road constructed through the park. This has led to celebrations for Kenya’s conservation fraternity. Benson Wachira from ANAW expressed his excitement with the ruling pointing out that the Tribunal has now formally asked NEMA to be considering all laws when issuing EIA licenses.
On her part, Dr Kahumbu said; “the case was not one of environmentalists against development; it was about stopping impunity. It is a win for all Kenyans because we can now challenge any government agency hell-bent on disregarding the law.”
The EAWLS Director, Michael Gachanja, was equally pleased with the ruling; “I am delighted about the ruling because it sets a precedent that the Government cannot interfere with country’s protected areas without following the process of the law”.
For Further Questions;
1: Paula Kahumbu (Chairperson- Friends of Nairobi National Park) 0722-685106
2: Josphat Ngonyo (ANAW Executive Director) -0722-243091.
Article written by The East African Wildlife Society.