The road to having won the court case against NEMA for a substandard Environmental Impact Assessment Report instead of a FULL STUDY and subsequently for issuing a license to China Railway & Bridge Corporation (CRBC), has been long and tortuous, full of deceit, lies and cover ups. It started in late 2013 over 2 years ago. We have proved that IT CAN BE DONE and we hope that many other organizations will follow suit. Sand harvested has the potential to destroy beaches and tourist resorts.
Late in 2013 we were receiving reports of a dredger in the Waa/Tiwi areas but erroneously thought it was a continuation of the Kenya Ports Authority (KPA) dredging program.
In 2014 the sand harvester moved into the Diani area and we were getting reports of this noisy monster dredging day and night. One of our members sent me aerial photos which captured the name of the dredger. On 14th October 2014 in the morning we spotted the dredger, close to the reef and going south towards Neptune Beach Hotel. We raised the alarm amongst the hotel industry and Government officials. Reports hit the social media and ATC News. Initially Kenya Ports Authority denied any knowledge of this ship, the SI HANG CAI SHA (formerly TOKAI MARU No. 8), but when we sent them evidence of the Port Shipping Movements and itinerary of the dredger KPA published a miniscule article in the press admitting knowledge.
Meantime, through partners we brought up this issue with NEMA who were not very helpful. “Following receipt of the above stated issue reported to us by Dr. David Obura of CORDIO I got in touch with KPA Harbour Master (HM) for details on the operation by the reported vessel. The report I got from the HM is that this is a dredging vessel that has just been contracted by KPA for use in the upcoming dredging works by the LAPSSET project in Lamu. The vessel operator was testing the vessel equipment at the time it was spotted in south coast in the last 2 weeks.
Ref the area/site location, the HM said the testing was done in the areas/sites that NEMA licensed KPA 2 years ago to harvest sand for use in construction of additional berths at the port. That is areas beyond the reef between Shelly beach and Tiwi. The HM said the testing has since been completed and the vessel will be moving to Lamu for use by LAPSSET next month”.
Again, on 30th October 2014 we received a copy of an email from NEMA confirming our fears, that indeed the dredger was owned by Chinese Company contracted to construct the Standard Gauge Railway. The vessel was undertaking the sand sampling activity at the time it was spotted in the sea by the public. This was being done illegally as the Chinese company had no valid EIA at the time of the said sampling. NEMA directed them to undertake EAI for both sampling and sand harvesting.
In early December 2014, we received information that a gentleman working for the Consultant doing the EIA for CRBC was randomly going around Diani asking a few people whether they were in favor or not of sand dredging. We contacted the gentleman and demanded proper stakeholders’ consultations as required by environmental laws. In partnership with other players such as WWF, we forced a stakeholders meeting which was held in 16th December 2014 in Diani, where over 300 participants attended. These included the County Government, National Government agencies (KMFRI and KWS), NGOs, fishermen, NEMA, hoteliers, residents, boat operators etc. SCRA as everybody else emphasized that due to critical marine biodiversity, importance of the area and tourism industry no sand harvesting should take place in South Coast. We also informed the team that actually Diani had been voted THE BEST BEACHES IN THE WORLD. Sand harvested posed the danger of destroying this tourist resort.
We continued to monitor the situation of the ship and NEMA. SCRA continued to bombard the Director General of NEMA as rumors had it that the EIA report was out, unadvertised and unavailable on-line. Needless to say there was no response. Finally, on May 12, 2015, NEMA responded and emailed us the documents leaving us a very short deadline in which to submit our comments.
Despite stakeholders’ views and opposition and unbeknown to us, NEMA went on and issued a license dated 22nd May 2015 for sand harvesting before full studies were conducted. This meant, the Chinese firm could go on with sand harvesting without full impacts having been undertaken and analyzed and robust mitigation measures being developed. Additionally, no compensation framework for fishermen, diving companies and hotels had been developed for the loss of income.
Our response to NEMA was sent by email on 6th June 2015 with copy to our lawyer Mr. Felix Midikira to hand deliver a copy.
We immediately instructed our lawyer to appeal to the National Environmental Tribunal (NET) against NEMA. On 2nd July NET issued a stop order to CRBC, copying NEMA, for the proposed offshore sea sand harvesting in the South Coast, Kwale County!
Another SCRA member started an on-line appeal addressed to the President of Kenya and which on reaching 1,171 signatures was sent to the Senate in Nairobi. At the same time, Kenya Association of Hotel Keepers and Caterers initiated a process through the National Assembly to have the license cancelled and order that no sand harvesting should ever take place in the South Coast.
The Parliamentary committee visited Diani and held a workshop at the Diani Reef Hotel on 12th August 2015 which was well attended.
Luckily we had the support of Kwale County Government which was consistent throughout. No dredging in the South Coast!
The NET Court Case started on 4th September 2015. We mobilized experts to testify for us during the tribunal. These included an ESIA expert, a marine scientist, a fisherman and natural resources management expert all of whom had vast experience with the area. The case lasted five months.
Friday, January 22, 2016 all the lawyers were urgently requested to attend the NET Court at 13.30 for the ruling. After a tense one hour of waiting, the verdict was out… WE HAD WON!!!
So many SCRA members have in one way or another contributed to this victory proving the importance of our networking, the full support from SCRA members, and to them all, ALL OF US, say ASANTE SANA! Our victory was not only a victory for us but for all organizations and environmentalists that IT CAN BE DONE!