The High Court of Kenya rules that the environmental impacts of LAPSSET—a corridor spanning multiple countries in Africa—violated the constitutional and statutory rights of the Lamu County community.
In 2012, members of the Lamu County community took legal action against the Kenyan Attorney General and ministry heads over the approval of the Lamu Port-South Sudan Ethiopia-Transport Corridor project (LAPSSET). While not outrightly opposing the project, the petitioners contended that the project’s extensive and potentially irreversible environmental, economic and cultural impacts were inadequately assessed during planning and implementation. This rendered the project procedurally flawed and in violation of fundamental rights, such as the right to a healthy environment (R2HE).
In a comprehensive ruling, the Court sided with the petitioners. Consequently, the Court mandated remedies to address the legal violations while permitting the project to proceed.
The Lamu Port-South Sudan Ethiopia-Transport Corridor project (LAPSSET) is a vast infrastructure initiative comprising multiple components such as a railway system, oil pipelines, refineries, tourism development and a 32-berth port at Manda Bay in Lamu, Kenya.
In 2012, members of the Lamu County community brought a case against Kenya’s Attorney General and several heads of governmental ministries including the Environment, Water and Natural Resources; Land, Housing and Urban Development; Information, Communication and Technology; Transport and Infrastructure; as well as Energy and Petroleum ministries. Additionally, government agencies responsible for approving, planning and executing the project— the National Environment Management Authority of Kenya (NEMA) and the Ports Authority—were included as interested parties.
While they did not completely oppose the project, the petitioners argued that its extensive and potentially irreversible impacts on the environment, economy and culture were inadequately assessed during planning and implementation phases, resulting in procedural flaws. They emphasized the significant projected harms to the marine ecosystem in the Lamu region, such as the destruction of mangrove forests, discharge of industrial effluents and adverse impacts on marine life.
The petitioners also contended that the project improperly excluded the Lamu county government and public participation. They argued that the respondents violated their constitutional rights to a clean and healthy environment (R2HE), livelihood, culture and information and breached statutory and constitutional principles such as sustainable development, transparency, public participation and accountability. The respondents countered that they adequately addressed environmental, cultural and heritage concerns related to the LAPSSET Project.“
The Court, recognizing the project’s economic importance, firmly stated, “petitioners have substantially succeeded.” It found the project’s environmental assessments and licenses were lacking or delayed, thereby jeopardizing the petitioners’ fundamental rights. The Court issued directives: re-evaluate and redo aspects of the Strategic Environmental Assessment (SEA) and Environmental and Social Impact Assessment (ESIA); involve Lamu County Government and the community in implementation; enhance public participation in SEA; create a robust information dissemination plan for LAPSSET; compensate fishermen for livelihood losses; develop public participation and action plans for cultural protection.
Regarding R2HE—enshrined in the Kenyan Bill of Rights and Arts. 49, 69 and 70 of the Kenyan Constitution—the petitioners argued that the ESIA report’s scope was too narrow and its mitigation measures were insufficient. The Court concurred, stating that R2HE for the petitioners and Lamu residents was at risk. It instructed LAPSSET’s proponents to adhere to and improve mitigation measures by consulting the community and NEMA.
The petitioners based their arguments on fundamental constitutional rights, including R2HE and domestic environmental laws and regulations. This strategic approach provided several strategic advantages.
Firstly, the petitioners’ tactics empowered the Court to confidently affirm its jurisdiction to hear their case. As most of the petitioners’ arguments involved interpreting and applying fundamental rights and freedoms, the Court determined that alternative domestic dispute mechanisms were not suitable. In this regard, the Court underscored the significance of R2HE, stating that “Kenyans secured this powerful right to the environment through the promulgation of the Constitution and Courts have a solemn duty to enforce this right in the context of environmental harms.” The Court emphasized that evaluating violations or threats to any rights in the Bill of Rights was unquestionably within its domain. Consequently, as a violation of R2HE would invariably violate other fundamental rights, the Court decided that “to decline jurisdiction as suggested would in our view amount to an act of this Court abdicating from its Constitutional and statutory mandate, which we cannot do.”
Secondly, the petitioners’ reliance on constitutional law established a clear legal obligation on government bodies in the absence of a defined regulatory framework. Specifically, they argued that a SEA was legally required before any phase of the LAPSSET Project could proceed. The respondents countered that although the SEA was listed in NEMA regulations, it was not conducted before the project began as it was not yet part of Kenya’s legislation while the project was devised. The Court disagreed, stating statutory backing was not essential since NEMA regulations applied to LAPSSET and mandated a SEA for impactful projects.
Expanding on R2HE to challenge the respondents’ stance, the Court held that irrespective of regulations, the Commission had a constitutional duty to uphold R2HE and its principles, including the precautionary principle. Upholding R2HE necessitated a “proactive approach to integrate environmental considerations into the higher levels of decision making.” Consequently, R2HE required an SEA—a more comprehensive environmental assessment than typical Environmental Impact Assessments—to be conducted early in the decision-making process when possible alternatives were still viable. As the SEA had not been carried out in a timely manner, the Court deemed the entire LAPSSET Project procedurally flawed.
The precautionary approach mandated by R2HE strengthened the Court’s jurisdiction. The ongoing SEA for LAPSSET did not render the case premature for analysis; instead, it provided more grounds for the Court to evaluate its adequacy and, if necessary, take corrective actions.
The petitioners and the Court referenced regional and international environmental and human rights instruments, such as the Rio Declaration on Environment and Development and the International Covenant on Civil and Political Rights, to strengthen their arguments. They also relied on diverse domestic caselaw, and drew on precedents from the United States and South Africa, to support their conclusions. For the Court, these international instruments and caselaw were crucial for establishing that public participation in environmental law and governance had become customary international law.
Regarding R2HE, the Court looked to the Indian Constitution and caselaw to help interpret the 2010 Kenyan Constitution. It emphasized the interconnectedness of R2HE and the right to life, stating that they “weave together a pattern of human rights guarantees’ that are neither mutually exclusive nor distinct.” Thus, the Court concluded that given R2HE intertwined with other rights, the realization of other fundamental rights necessitated R2HE’s protection.
In defining R2HE, the Court emphasized that it includes the right to protect the environment for future generations through legislative and other means. Highlighting its intergenerational importance, the Court referenced the Constitution’s preamble, which declares: “We, the People of Kenya […] Respectful of the environment, which is our heritage, and determined to sustain it for the benefit of future generations […].” The Court concluded the preamble unequivocally expresses Kenya’s commitment to sustainable development, which balances economic progress with with intergenerational and intra-generational equity.
The petitioners argued that the County Government of Lamu was uninformed of and excluded from the planning and execution of LAPSSET, hindering it from fulfilling its constitutional obligations. These duties involved implementing national government environmental policies and engaging the local community. The petitioners asserted that this exclusion allowed the project’s shortcomings to persist unchecked. The respondents responded there was public participation and highlighted that LAPSSET was conceived before county governments were formed.
The Court dismissed the argument that LAPSSET was solely a national government initiative as inadequate justification for limited local involvement. It clarified that “even though the LAPSSET Project is an initiative of the National Government, the Constitution requires consultation, cooperation, and coordination between the two levels of government in the performance of their functions.” This constitutional mandate was not mere formality. Stressing the significance of genuine participation from those directly impacted by government actions, the Court ordered the LAPSSET project’s proponents and the approving government ministries to engage in consultation, cooperation and coordination with the Lamu County Government and other affected counties.
As discussed above, the petitioners raised procedural and substantive arguments related to R2HE and other fundamental rights.
This case originates from the respondents’—various government ministries and authorities—failure to fulfill their constitutional and statutory obligations when approving LAPSSET. In response, the Court asserted that R2HE, along with the rights to life, human dignity, culture, sustainable development and livelihood, imposed “an inescapable obligation upon NEMA and other decision-makers” to demand that the project’s proponents assess and disclose the external costs of LAPSSET during the ESIA and SEA environmental assessment processes. This, the Court argued, would provide government bodies with adequate information to make decisions aligned with the constitutional rights of those affected. Since this was not done for the LAPSSET project, the Court again declared both the ESIA and SEA procedurally infirm. Consequently, the Court mandated the respondent government entities to uphold their statutory and constitutional duties and enhance the environmental assessment requirements.
The Court stressed further that the respondents’ regulatory role was vital; without upholding fundamental rights and principles tied to R2HE, such as public participation and access to information, Kenya would not achieve its goal of being an environmental democracy.
The Court underscored that the 2010 Kenyan Constitution’s enactment granted Kenyans the “powerful right to the environment” under R2HE. The procedural guarantees enshrined in R2HE, like public participation and access to information, played a crucial role in shaping Kenya’s democracy. This was because Kenya’s democracy not only required political representation by the government but also depended on assurances “that they empower individuals to have a meaningful voice in decisions that affect them and their development.”
The Court acknowledged that, given the nature of this dispute, it “departed from how most constitutional cases are heard because of its nature. In particular, the Court conducted a site visit” and heard oral evidence from expert witnesses. Despite the respondents’ claims that the petitioners had not shown “any damage to or possibility of damage to the environment,” the Court clarified that the site visit and collected evidence allowed it to confidently link LAPSSET to the detrimental environmental impacts experienced in the Lamu community. This led the Court to conclude that R2HE was at risk of being violated.
The Court articulated that access to information, participation in decision-making and access to justice are “minimum requirements for existence of environmental democracy.” Furthermore, the Court clarified that these fundamental participatory rights can only be excluded from a project if it passes a proportionality test. That test requires a public authority to provide evidence that the action or decision justifies limiting the right in question, is linked to the aim(s) it seeks to achieve, and that the means used to limit the right are no more than those necessary to accomplish the aim(s).
The Court provided remedies for each of the petitioners’ claims. However, the Court stated that it “delicately fashioned the reliefs” by balancing the petitioners’ concerns about fundamental rights violations with the fact that the petitioners’ did not completely oppose LAPSSET, given its substantial economic investment and value. Consequently, the Court ordered remedies to address the legal violations while allowing the project to continue its implementation.
The Court provided a broad definition of the “environment” within R2HE. It clarified that, according to Kenya’s primary environmental regulatory law, the environment’s definition “transcends mere ecological interests. It explicitly includes dimensions of the environment beyond the bio-physical aspects such as the inter-relationship between people, the natural environment the socio-economic and cultural aspects undergirding that inter-relationship.” The comprehensive definition of the “environment,” the Court elaborated, meant that R2HE was “sufficiently comprehensive and all-encompassing to provide ‘everyone’ with the possibility of seeking judicial recourse in the event that any of several potential aspects related to the right or guarantee derived there from is infringed.” Those “potential aspects” and “guarantees” include rights such as culture and livelihood. Therefore, the Court concluded that all issues raised by the petitioners were appropriate for adjudication.
The Court clarified that Kenya’s inclusive definition of the “environment” within R2HE implied a broad interpretation of standing. It emphasized that, as per the Constitution, R2HE allowed “everyone” seeking redress and legal remedies to approach a court of law. Crucially, this entitlement did not necessitate demonstrating incurred loss or suffered injury. In essence, standing could be established as long as R2HE was under threat, as was the case here.
This case highlights the effectiveness of using the constitutional R2HE to establish a valid legal duty on government bodies in the absence of clear regulatory frameworks. It also underscores the importance of the procedural aspects inherent in R2HE.
Furthermore, the case illustrates a Court navigating the delicate balance between the violation of fundamental rights and economic interests.
