Friends of Lake Turkana (FoLT) filed a petition against Government of Kenya through the Attorney General (AG), the Kenya Power and Lighting Company (KPLC) Limited and Kenya Electricity Transmission Company (KETRACO) Limited. The judgement by the High Court of Kenya was delivered towards the end of May this year.
The petition was based on an alleged MoU by Government of Kenya (GoK) and Government of Ethiopia (GoE) back in 2006 for the purchase of 500 (MW) megawatts of electricity from the Gibe III dam and an $800 million grid connection between Ethiopia and Kenya. Gibe III dam is part of a 25 year national master-plan by GoE to increase its electricity production through construction of water-resource schemes, one of which is a cascade of dams on the Omo River. Upstream of the Omo River are Gibe I, II and III to be followed by IV and V over a period of time. Of the 1870 MW produced by Gibe III dam, 900 MW are planned for export to Kenya, Djibouti and Sudan.
In the Petition, FoLT requested for full disclosure by GoK and GoE on all agreements entered by the two governments with regard to the purchase of 500MW of electricity and the 2006 MoU. The High Court was also requested to prohibit the Kenyan government, KPLC and KETRACO from entering into further agreements with the Ethiopian Government until comprehensive and independent EIAs (Environmental Impact Assessments) on effects of Gibe III dam on Lake Turkana and its surrounding communities are done. Issues were raised on the transparency of the processes leading up to the construction of the Gibe III dam. The two EIAs that were done only covered impacts on the Omo River with no consideration of Lake Turkana which is Omo River’s drainage basin and gets 90% of its inflow from the Omo River.
In response to the petition, GoK through the Permanent Secretary back in 2010, Patrick Nyoike, denied the existence of any contract to purchase 500MW of electricity from Ethiopia and further stated that the Kenyan government had no control over a dam being built in Ethiopia. He also pointed out that for such and agreement to be reached, it must go through the Energy Regulatory Commission so as to acquire a license. KPLC also denied the existence of an electricity purchase agreement and added that in the event that such a purchase is done, it will be impossible to tell which power station the electricity came from. They also pointed out that if they were to purchase electricity from Ethiopia it would reduce the need to generate power from fossil fuels which are known to have an adverse impact on the environment. KETRACO admitted to having plans for the construction of an Ethiopia-Kenya electricity interconnection project. Besides crediting the project as a step that will propel Kenya towards achieving MDGs, they described electricity production through hydro-power as clean energy as opposed to the alternative electricity production,thermal energy largely associated with local pollutants and greenhouse gases. KETRACO submitted an ESIA on construction of the Kenya-Ethiopia electricity interconnection which they said included consultation of the communities concerned.
There was contention over the jurisdiction of the Kenyan court in dealing with this case whose issues are of trans-boundary nature. However, all things considered, the judgement was largely in favor of the petitioner, FoLT. The court granted the request for full disclosure supporting rights to information, especially related to the environment to enable the facilitation of sustainable development and participation in decision-making processes. In this respect,the Kenyan Government, KPLC and KETRACO are to provide all relevant information in relation to importation, purchase and transmission of electricity from Ethiopia.
Though no real evidence of impacts on Lake Turkana and its communities were given, the judgement cited ‘precautionary principle’ as a standard by which the respondents of the petition had a duty to establish that no environmental harm would occur as a result of the agreements signed between them and the Ethiopian government. The High Court was not in a position to prohibit the respondents from entering further agreements prior to the completion of comprehensive,and independent EIAs on Gibe III dam’s impacts on Lake Turkana, the livelihood, culture and heritage of the communities surrounding it. It however noted that “EIAs are now a general principle in customary international law arising from the obligation on the states to cooperate with each other in good faith, in mitigating trans-boundary environmental risks.”
See full judgement on this link, file:///C:/Users/Sheila/Downloads/LakeTurkanaJudgment%20(2).pdf