THE HIDDEN CURSE BEHIND MEGA PROJECTS IN NORTHERN KENYA : A CASE STUDY OF ISIOLO COUNTY

By Salad Malicha
 
 
 
PASTORALISTS TRAGEDY OF COMMONS
 
 
Multidimensional poverty persists in Kenya, especially among its pastoralist communities of the arid and semi arid lands (ASALs). This results from the failure of successive independence governments to decisively mitigate the ASAL’s agro-ecological adversities, because these governments have hitherto considered the areas to be incidental to core national interests. The country’s long-term development blue-print, Kenya Vision 2030, also pays scant attention to the ASALs, undermining the new constitution’s aspiration for democratic, participatory governance that secures people’s basic rights and equitable development, with special attention to marginalized communities, such as pastoralists.
 
 
Prior to Kenya’s recent discovery of viable stocks of natural resources, the country was co-operating internationally on the development of the Lamu Port South Sudan Ethiopia Transport (LAPSSET) corridor incorporating a rail, highway, oil pipeline and refinery network, to which have been added airports and resort cities—all sited in the pastoralist ASAL regions.
 
 
Constitutional devolution encourages Kenya’s 47 autonomous counties to plan and implement their respective development priorities. Meanwhile, the government has undertaken little or no consultation with the host ASAL communities over the grandiose
LAPSSET project and the impending mining activities which are consequently likely to swamp the host counties’ priorities, likely exacerbating their marginalization.
 
 
My article highlights the risks LAPSSET and the impending mining activities pose to the ASAL pastoralists and underscores the need for constitutionally mandated consultations over national development initiatives.
 
While other parts of Kenya have undergone great socio-economic transformation since independence in 1963, northern Kenya and most other arid lands have remained largely untouched by modernization. These arid and semi-arid lands (ASAL) have the country’s worst human welfare indicators, seemingly stranded in the pastoralist, and often nomadic, livelihoods of their forefathers.
 
The failure of the colonial and successive independence governments to mitigate these regions’ harsh agro-ecological environments has consigned their inhabitants almost exclusively to livestock-based livelihoods. Yet, the marginalisation of ASAL regions has also meant that their livestock remains primarily a socio-cultural rather than economic asset, since the regions—denied appropriate social and physical infrastructure investments—have remained largely outside the market economy. ASAL regions are characterized by extensive land degradation, which is often blamed on a pastoralist ‘tragedy of the commons’ for which privatization has traditionally been seen as a solution. But these regions’ lack of an obvious economic potential hitherto has driven their persisting marginalization, perpetuating pastoral livelihoods. Pastoralism is associated with a ‘tragedy of the commons’ in which individualism prevails over the common good with respect to common pool resources, which are consequently degraded and eventually destroyed according Hardin, (1968)
 
However, Kenya’s recent launch of a transnational physical infrastructure project and its recent discovery of vast mineral resources exclusively in ASAL regions have focused investments in them, which are anticipated to bring modernity and markets. The ASAL regions covers the following counties which constitute former Northern Frontier Districts (NFD); Isiolo, Garissa, Wajir, Mandera, Tana River, Marsabit, Turkana and Samburu.
 
My deep seated concern  is that, in the absence of an initial transformation in socio-economic values among ASAL communities, they will not be able to participate in the modernising changes that result from the infrastructure and mineral extraction investments. Instead, the anticipated changes might possibly result in the further marginalization of the pastoralist communities, enhancing the scope for pastoralist conflict over their resources, especially pasture, which the proposed projects will diminish.
 
 
THE DAM OF DEATH: CROCODILE JAW DAM IN ISIOLO COUNTY
 
Proposed crocodile jaw dam site
 
There are concerns, myths and untruths that still require to be addressed before the implementation of the project. Under the current dispensation, it’s impossible to push down the throat any project until all legal avenues have been exhausted. Moreover, we wish to table some of the global case study, existing legal framework and ultimately put forth community observations and prayers.
 
BACKGROUND: 
 
 
An announcement was made in 2013 by the defunct National Water Conservation and Pipeline Corporation which transited to National Water Harvesting and Storage Authority that the “Crocodile Jaw Dam” will be built on Ewaso Ng’iro River at Oldonyiro in Isiolo County to supply water to the proposed Isiolo Resort City. The National Water Conservation and Pipeline Corporation (NWCPC) which has now evolved to National Water Harvesting and Storage Authority was established under the State Corporation’s Act Chapter 446 of the Laws of Kenya vide Legal Notice No. 270 of 24th June, 1988 as an autonomous agency reporting to the then Ministry of Water Development. It became operational on 1st July, 1989.
 
The NWCPC was created mainly to commercialise and improve the performance of the water sector operations. Its mandate was later expanded to include assisting Government in the formulation and execution of National Water Policy, and in areas where it was appointed as a water undertaker, developing state schemes.
 
The water sector reforms under Water Act 2002 changed the roles of National Water Conservation and Pipeline Corporation from Water Service Delivery to “Development and management water infrastructure towards enhancing water security and storage for multi-purpose uses, mitigation of drought and flood effects in a sustainable manner.”
 
NWCPC transited to NWHSA
 
National Water Harvesting and Storage Authority (WSA) was established under the Water Act 2016, as an autonomous agency reporting to the Ministry of Water and Sanitation. WSA. National Water Conservation and Pipeline Corporation (NWCPC) transited to WSA, which has a new mandate as stipulated in the Water Act 2016.
 
 
MANDATE OF WATER STORAGE AUTHORITY
 
(a) Undertake on behalf of the national government, the development of national public water works for water resources storage and flood control;
(b) Maintain and manage national public water works infrastructure for water resources storage;
(c) Collect and provide information for the formulation by the Cabinet Secretary of the national water resources storage and flood control strategies;
(d) Develop a water harvesting policy and enforce water harvesting strategies:
(e) Undertake on behalf of the national government strategic water emergency interventions during drought;
(f) Advise the Cabinet Secretary on any matter concerning National public water works for water storage and flood control
 
The dam will be on the border between Isiolo and Laikipia Counties. Once completed, the dam will benefit three counties in the region according to the Corporation. The dam construction is expected to cost Ksh 10 billion. This is one of the projects under LAPSSET corridor that will be financed by Kenya, South Sudan and Ethiopia governments as well as private developers in a public-private project arrangement.
 
Proposed crocodile jaw dam site
 
The “Crocodile Jaw dam” in Oldonyiro ward was intended to regulate the flow of the Ewaso Ng’iro River to provide a continuous water supply to the proposed Isiolo Resort City, as well as to downstream communities below Archers Post. A feasibility study and an Environmental Impact Assessment (EIA) were carried out. Local communities are objecting to the plan however, because firstly they were not consulted and secondly they are concerned that the dam will have a fundamentally negative impact on their water supply, which they depend upon for their livelihoods. They distrust the EIA, which they argue has not been adequately shared or explained. Currently Ewaso Ng’iro River is the lifeline for pastoralists and farmers in Ngaremara, Chari, Burat, Cherab, Garbatulla and Sericho wards in Isiolo County.
 
 

 
 
 
ISIOLO COUNTY
 
Isiolo County Map
 
Isiolo County is largely an arid and semi-arid region where the main economic activity is pastoralism. Other activities undertaken on a smaller scale include farming, fishing and hunting. This county is considered among the poorest in Kenya and is characterized by inadequate access to basic services such as water, food and social security. It is known to have experienced historical injustices by successive governments since independence. This is attributed to the colonial government policies that marginalized the Northern corridor that was perpetuated by the successive post-colonial governments. Evidence has further shown that there has been no genuine public sensitization, involvement and participation which has not only discriminated the local communities from taking part in the projects from an informed point of view, but also excluded them from their national duty and responsibility to make informed decisions on any development activity that affects their destiny.
 
 
 
PROPONENTS OF THE PROJECT
 
The dam is meant to supply water to the Isiolo resort city which is part of the government’s vision 2030 blueprint which aims to transform Kenya into a middle-income country by 2030. Resort cities are flagship projects under the tourism sector.
 
According to the former Ministry of Environment, water and mineral resources, Under the economic pillar of Vision 2030, the government intends to develop a resort city that provides sustainable world-class living standards and working environment – a centre for finance, trade, business, services, sports, leisure and entertainment, this calls for supply of the adequate water to the city. Through a feasibility study and Environmental Impact Assessment conducted by the ministry in partnership with National Water Conservation and Pipeline Corporation; the water demand for the dam project has been taken to be the demand for Isiolo town & its environs, the Isiolo resort city and areas along the pipeline route.
 
Due to the volume of water stored the possibility of supplying areas of Laikipia and Samburu were explored. Similarly, areas-obtained data on projected populations for Resort City got from feasibility study carried out on Isiolo resort city by Japanese Port Consultants and populations and growth rates for existing Isiolo areas-According to the census data obtained from the Kenya National Bureau of Statistics.
 
Water demand assessment was analyzed based on design horizons; year 2016 as initial year, year 2026 as future year and year 2036 as ultimate year. The water supply assessment in Isiolo county, though its findings, using the computed ultimate domestic demand of 81,676m3/day works out 945 l/s, proposed, from a draw off tower located at the dam site (El 1,530), water is to be delivered to treatment plant at the dam site; water taken through full treatment consisting of among other things; coagulation; flocculation; filtration by rapid gravity filters and chlorination.
 
Water for Isiolo will be conveyed through 93km of pipeline passing through Ol DonyiroKipsing and Isiolo west locations. Two other pipelines designed to serve the areas of Samburu and Laikipia shall be done through pumping.
 
It was reported that water in the dam shall also be released into the Ewaso main channel during dry spells to guarantee flows beyond Archers Post – ensure supplies for communities downstream. The Pipeline Corporation maintains the dam will turn the resort city and Isiolo town into a huge economic hub that will help them realize the vision 2030 goal. However, Public participation and information dissemination in the project should be heightened to assist in addressing speculation that is straining the peaceful co-existence of people in this region.
 
Moreover, there has also been opposition to the proposed construction, on the grounds that the dam will expose herders downstream to drought, negatively affect endangered wildlife, and put the local wildlife-tourism based economy at risk. The Ewaso Ng’iro Basin Stakeholder Forum composed of conservation sector, business sector, and civil society, has sought further understanding on the risks and opportunities related to the project.
 
 
OPPONENTS OF THE PROJECT
 
The Community is protesting that they will lose some of their fragile ecosystems which supply them with water; Change in hydrology can be expected to have an impact on herders downstream through decreased water availability and decreased ecosystem health. The latter is not addressed here. The former can cause economic losses due to direct livestock mortality, decreased livestock health driven by lower quality forage and increased distance to water sources, change in prices paid, and increased social conflict related to use of scarce water supplies, among other issues.
 
Construction of the dam will have negative impact on wildlife and people residing downstream. This includes wildlife on Shaba, Samburu National Reserve and several other conservancies; Ewaso Ng’iro River, a fragile ecosystem, has drastically reduced its water flow over time, with recorded flow variations. 2011 recorded a significant low flow as a result of one of the worst droughts in recent times. Since cultural traditions such as pastoralism, do not change based on simple economic calculus, the new land distribution could lead to widespread hardship for herders upstream who face increased competition for their lands even though water is more readily available; In 1998 the region recorded one of the highest flows due to the El Nino rains experienced during that time. In 1984 the river had no flow; it was completely dry, a time when the worst drought hit the entire region of the horn of Africa.
 
The construction of the proposed Isiolo Dam will affect wildlife by eliminating seasonal flooding and greatly reducing the amount of water available downstream. The dam will also flood conservancy areas upstream. In the medium term, it is expected that additional habitat will be lost upstream as increased water availability fuels a transition of the current mix of rangelands and natural habitat into irrigated agriculture.
 
Downstream, construction of the proposed Isiolo Dam will change river flow dramatically not only by eliminating seasonal flood pulses, but also by reducing the amount of water available. Using official data, we find that during impoundment and post-impoundment, the river flow will be equal to 15 and 38 percent, respectively, of the current unregulated flow. Flows at these levels are likely to mean long- term drought conditions for those who depend on the river as their major water source, in particular in the area to the west of where the Isiolo River joins the Ewaso Ng’iro.
 
Further, the river will likely cease to reach water points at the lower part of the Ewaso Ng’iro Catchment, or reach them at much reduced volume. These include the Lorian Swamp, which is used as an important alternative water source during dry seasons and drought.
 
These changes are estimated to cost local herders USD 13 million per year, due to livestock mortality and price changes. The total number of people affected by the Isiolo dam-related drought in and around the Lorian Swamp is close to 20,000. The dam will also negatively impact wildlife downstream, along with the wildlife-based tourism industry.
 
Isiolo people have never been consulted on this matter about the construction of the dam, we are a pastoralist community and our livestock depend on water and pasture largely. We don’t have many rivers here, only Ewaso Nyiro, if it dries up, it will be a disaster.
 
Generally, Isiolo is a water scarce region and anything done to its ecosystems that may tamper with the little water supply is a huge setback to the struggling population.
 
That the proposed dam has a lot of economic implications on the population here, first what we need to understand is that the only source of water in this region is Ewaso Ng’iro River; we perceive this river will be affected largely by this mega dam project. Our people have not been involved in any consultative forums, they are the custodians of this resource but nobody bothers to talk to them.
 
The community needs full report on the Environmental Impact Assessment (EIA) that will incorporate the people’s views together with the expert input; and The construction of the dam will control flooding downstream. Some of the people said that in Merti they have no problem with flooding because it expands their grazing lands.
 
 
HYDRO-CONFLICTS ON THE RISE GLOBALLY
 
 
Water conflict is a term describing a conflict between countries, states, or groups over an access to water resources. The United Nations recognizes that water disputes result from opposing interests of water users, public or private. A wide range of water conflicts appear throughout history, though rarely are traditional wars waged over water alone. Instead, water has historically been a source of tension and a factor in conflicts that start for other reasons. However, water conflicts arise for several reasons, including territorial disputes, a fight for resources, and strategic advantage.
 
Currently, Isiolo County is staring at another disaster in the making in the name of crocodile jaw dam.
 
Historical water conflicts dates back over 4,500 years. Water conflicts are categorized as follows:
 
Control of Water Resources (state and non-state actors): where water supplies or access to water is at the root of tensions.
 
Military Tool (state actors): where water resources, or water systems themselves, are used by a nation or state as a weapon during a military action.
 
Political Tool (state and non-state actors): where water resources, or water systems themselves, are used by a nation, state, or non-state actor for a political goal.
 
Terrorism (non-state actors): where water resources, or water systems, are either targets or tools of violence or coercion by non-state actors.
 
Military Target (state actors): where water resource systems are targets of military actions by nations or states.
 
Development Disputes (state and non-state actors): where water resources or water systems are a major source of contention and dispute in the context of economic and social development.
 
Recent humanitarian catastrophes, such as the Rwandan Genocide or the war in Sudanese Darfur, have been linked back to water conflicts. Moreover, it is now commonly said that future wars in the Middle East are more likely to be fought over water than over oil. 11% of the global population, or 783 million people, are still without access to improved sources of drinking water which provides the catalyst for potential for water disputes.
 
According to UNESCO, the current interstate conflicts occur mainly in the Middle East and Africa.
 
√ Disputes stemming from the Euphrates and TigrisRivers among Turkey, Syria, and Iraq;
√ Jordan River conflict among Israel, Lebanon, Jordan and the State of Palestine;
√ In Africa (Nile River -related conflicts among Egypt, Ethiopia, and Sudan), as well as in Central Asia (the Aral Sea conflict among Kazakhstan, Uzbekistan, Turkmenistan, Tajikistan and Kyrgyzstan);
√ A remarkable example is the 2000 Cochabambaprotests in Bolivia, depicted in the 2010 Spanish film “Even the Rain” by Icíar Bollaín;
 
In Kenya (Northern Collector Tunnel in Murang’a County, Itare dam in Kuresoi, Nakuru County & Crocodile jaw dam in Isiolo County classified as the tunnel of anger and the dam of death
 
 THE RESORT CITIES
 
Artistic impression of Isiolo Resort City
 
 
The envisaged Resort cities according Vision 2030 paper is; ISIOLO, LAMU and LAKE TURKANA
 
Cost Estimate
Lamu Resort City – US$ 970 Million 
Isiolo Resort City – US$ 200 Million 
Lake Turkana Resort City – US$ 42 Million
 
Economic Evaluation
Resort cities at Lamu, Isiolo and Lake Turkana have EIRR of 17.1%, 12.8% and 20.8 %, respectively.
 
Financing Plan
The Resort Cities would be build by private investors once Government has put in place sufficient infrastructure to facilitate growth.
 
CURRENT STATUS
Preparation for the master planning of the Lamu Resort city and Metropolis underway.
 
THE ISIOLO RESORT CITY
 
An artistic impression of Isiolo Resort map
 
Isiolo is set to become a major part of Kenya’s economic development plan Vision 2030 . The plan calls for Isiolo to become a tourist center that will include casinos, hotels, upscale retail outlets, a modern airport and transport facilities. Isiolo will also be a transport hub as the location of the fork of the LAPSSET .
 
Isiolo District was designated as the Headquarters of the Northern frontier Districts by The British East Africa Protectorate in 1922, until the North Eastern was curved out as a separate province in 1963 following the Lancaster House Constitutional conference.
 
The construction of a multi-billion-shilling resort city in Isiolo is inching closer to reality following the latest move by the State to settle on Kula Mawe as the site for the project.
 
The Lapsset Corridor Development Authority (LCDA),  which is coordinating the ISIOLO RESORT project, has directed the Isiolo County to set aside 10,000 acres of land in the area to allow the commencement of the Master – a critical process in the development of the city. This was diligently fast tracked by the first Isiolo County Speaker; Hon. Mohamed Tubi through written communiqué.
 
Artist’s impression of the bird’s eye view of Isiolo Resort City. PHOTO/COURTESY
 
In a May 12 letter that was addressed to the First Isiolo County Speaker Mohamed Tupi, LAPSSET Director General Silvester Kasuku Isiolo said that stakeholders had identified Kula Mawe in Garbatullaas the best site for the project since it would take care of the urban facilities which are envisaged in the resort city.
Response letter by LCDA to former Isiolo County Speaker
 
In a past LCDA consultative forum in Isiolo, former Isiolo County Governor Godana Doyo disclosed that the county was ready to allocate land for the project in Kula Mawe, which is located 70 kilometres from Isiolo town.
 
Isiolo will be Kenya’s first resort city under Vision 2030, aimed to boost growth in the tourism industry. The construction of the city will be funded through a Public, Private Partnership (PPP) to the tune of Sh18.6 billion of which Sh6.8 billion will be raised from the private sector.
 
Isiolo resort city will be located in close proximity to major tourist attractions including Mt Kenya National Park, Samburu National Park, Meru National Park, Shaba National Park and Buffalo Springs.
 
It will include high-end tourist facilities including accommodation facilities, amusement parks, water sport facilities, art exhibition, theatres for international festivals, as well as skiing and golf courses.
 
REROUTING LAPSSET
 
Isiolo town might be excluded from the Lamu Port, South Sudan, Ethiopia Transport (LAPPSET) corridor following recommendations to change the route over wildlife concerns.
 
A change of routing for the Sh2.5 trillion mega project would have major ramifications, specifically for thousands of speculators who have acquired land near the proposed site for the resort city. Prior plans had suggested that the resort city be built at a place called Kipsing Gap in Isiolo, but environmentalists have warned against it citing the potential displacement of elephants.
 
Map from the 2011 JPC feasibility study indicating location of Isiolo resort city and Conceptual layout of Isiolo Resort City.
 
 
Instead, they have proposed that the city be built in either Igembe North or Kula Mawe further from Isiolo town, on the other side of the Nyambene National Reserve. “There is need to relocate the resort city from Kipsing Gap which is a major elephant sanctuary and migratory corridor in favour of a site at either Kula Mawe or Igembe North where space is available,” the consultants conducting the environmental impact assessment recommended.
 
This is the latest LAPSSET route map by LCDA
 
 
Zoning of land
 
Adopting the recommended mitigation measures would deal a major blow to the prospects of Isiolo, where land prices have risen sharply in anticipation of the resort city. The National Environment Management Authority (NEMA) has also proposed that the railway line, oil pipeline and oil storage facility should by-pass the town.
 
Both Kula Mawe and Archers Post have space for expansion and are devoid of boundary disputes which make them ideal as designated termini for the railway, oil pipelines and the highway,” the Strategic Environmental Assessment (SEA) report reads in part.
 
Under ‘concern of potential fragmentation of wildlife habitat by the LAPSSET-induced development, the consultant draft is at strategic level and affects resort city, road, oil pipeline and dry port locations. The report wants the National and county governments concerned to undertake zoning of land to isolate and gazette wildlife migratory corridors within the LAPSSET route. The counties affected are Lamu, Garissa, Meru, Isiolo, Laikipia, Samburu, Marsabit, Baringo and Turkana.
 
LAPSSET Corridor Development Authority (LCDA), Kenya Wildlife Service and national Government have been asked to come up with laws that govern game migratory routes.
 
Kipsing Gap, the area for the proposed city, is home to game reserves such as Buffalo Springs, Shaba and Bisanadi (Isiolo), Samburu and the wildlife corridor connects it to Laikipia and KWS-managed parks in Garissa and Tana River. With the LAPSSET Corridor Infrastructure Development Project (LCIDP), it is proposed as a mitigation measure to locate main dry port and oil storage facility at Kula Mawe in Isiolo and Archers Post in Samburu East from Isiolo town by re-routing the corridor to the two trading centres.
 
It also proposes disaggregating the corridor to avoid the road passing through Kipsing, onwards to Laikipia in favour of Samburu. The SEA draft report also wants LAPSSET project to give a 10 km buffer zone between Hindi in Tana River and Banane in Garissa to avoid habitat fragmentation in KWS-managed Arawale and Rahole game reserves.
 
The report also addresses the concern of locals in LaikipiaIsiolo and Samburu over the proposed Sh10 billion Crocodile Jaw Dam by the National Water Corporation that is aimed at providing adequate commodity for the resort city. It, for example, calls for a legal action to release water from upstream for downstream users through enforcement of Articles 22, 27 and 28 of the Water Act of 2016.
 
Envisaged Legal framework
 
Flood modelling at Lorian Swamp (in Isiolo and Wajir) to precede all dam design to determine contribution from other sources and ensure that enough floods are available to recharge both the swamp and the aquifer,” NEMA says.
 
Mitigation measures to address concerns of ‘possible marginalisation of fishing based livelihoods in Lamu’ and ‘possible over exploitation of Lake Turkana fisheries’. On possible marginalisation of pastoralists in the region, which is at the policy level, SEA calls for intervention to provide for development control and zoning where LAPSSET project traverses.
 
“Clear identification of pastoral grazing territories inclusive of dry and wet seasons and watering grounds,’’ says the report. The county assemblies are also expected to come up with legal framework for grazing and land management.
 
Constitution of Kenya
 
THE LEGAL FRAMEWORK FOR PUBIC PARTICIPATION IN KENYA
 
 
Kenya is considered a crucial pillar of the Kenyan Constitution. It is by providing the public with the opportunity to take part in decision making processes in government.
 
THE CONSTITUTION OF KENYA, 2010
 
Article 1(2): All sovereign power belongs to the people of Kenya. The people may exercise their sovereignty directly or through their elected representatives.
Article 10 (2) a, b and c: The national values and principles of governance include; democracy and participation of the people; inclusiveness; good governance, integrity, transparency and accountability.
Article 27: The Constitution guarantees equality and non-discrimination. Hence, public participation should ensure equality and non-discrimination.
Article 33: Public participation should respect the freedom of expression of all participants.
Article 35: The Constitution guarantees the right to access information by citizens
Article 61: Gives the public, individually or as a group, a say in matters of land including acquisition, management, transfer, disposal, or ownership of private, public and/or community land.
Article 69 (1) (d): The State shall encourage public participation in the management, protection, and conservation of the environment.
Article 118: (1) Parliament shall— (a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and (b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
Article 119 (1): Every person has a right to petition Parliament to consider any matter within its authority, including enacting, amending, or repealing any legislation. (2) Parliament may not exclude the public, or any media, from any sitting, unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.
Article 174 (c): Objects of devolution are: to give powers of self-governance to the people and enhance their participation in the exercise of such powers in decision-making.
Article 174 (d): Communities have the right to manage their own affairs and to further their development.
Article 184 (1): National legislation shall provide for the governance and management of urban areas and cities and shall, in particular— (c) provide for participation by residents in the governance of urban areas and cities.
Article 196 (1): A county assembly shall—(a) conduct its business in an open manner, and hold its sittings and those of its committees, in public; and (b) facilitate public participation and involvement in the legislative and other business of the assembly and its committees. (2) A county assembly may not exclude the public, or any media, from any sitting, unless in exceptional circumstances the speaker has determined that there are justifiable reasons for doing so.
Article 201 (a): There shall be openness and accountability, including public participation in financial matters.
Article 232 (1)(d) : The values and principles of public service include the involvement of the people in the process of policy making and (f) transparency and provision to the public of timely and accurate information.
Fourth Schedule Part 2(14): The functions and powers of the county are to coordinate and ensure the participation of communities in governance. Counties are also to assist communities to develop the administrative capacity to enhance their exercise of power and participation in governance at the local level.
 
THE COUNTY GOVERNMENT ACT
 
The provisions on public participation in Kenya contained in this Act affect the county governments.
Section 113: Makes public participation in county planning processes compulsory.
Section 87: Stipulates the principles of public participation. They include timely access to information and reasonable access to planning and policy making process.
Section 88: Citizens have a right to petition the county government on any matter under the responsibility of the county government.
Section 89: County government authorities, agencies, and agents have a duty to respond expeditiously to petitions and challenges from citizens.
Section 90 : A county government may conduct a local referendum on among other local issues— county laws and petitions, or planning and investment decisions affecting the county for which a petition has been raised and duly signed by at least twenty five percent of the registered voters where the referendum is to take place.
Section 91: The county government shall facilitate the establishment of modalities, and platforms for citizen participation e.g. town hall meetings, IT based technologies and establishment of citizen fora at county and decentralized units.
Sections 94, 95, 96: Counties are to establish mechanisms to facilitate public communication and access to information using media with the widest public outreach. Every county shall designate an office for ensuring access to information.
Sections 100 and 101: County governments should create an institutional framework for civic education
 
INTERNATIONAL LAW
 
The Universal Declaration of Human Rights 17 provides that “everyone has the right to own property alone as well as in association with others” and that “no one shall be arbitrarily deprived of his property”.
 
The African Charter on Human and People’s Rights, 1986; provides that the right to property shall be guaranteed. It may nevertheless, “only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”. It further declares that “all peoples shall freely dispose of their wealth and natural resources” and that “this right shall be exercised in the exclusive interest of the people”.
 
The law in this case articulately states that in no case shall people be deprived of their property. In case of spoliation, the dispossessed people shall have the right to the lawful recovery of their property as well as to an adequate compensation in case any of the steps articulated in the procedure were violated.
 
The International Covenant on Economic, Social and Cultural Rights (ICESCR) which was established in 1966 has been in force from 3rd January 1976. It expects its parties to work towards the granting of economic, social and cultural rights (ESCR) to Non-Self Governing Trust Territories and individuals including labour rights, right to health, the right to free education, right to an adequate standard of living and is monitored by the UN Committee on Social and Cultural Rights which ensures that all member countries set action plans to achieve the targets.
 
COMMUNITY OBSERVATIONS AND PRAYERS
 
The County & National Government
• It is the responsibility of the county government through the office of civic education and public participation to sensitize the public and create awareness on the project by involving all stakeholders.
 
• The county government should consult the public before they make key decisions that affect the people’s destiny so that the public may give their opinion
 
Civil Society Groups
 
• The civil society agencies, including religious movements, should be the true representatives and eye-openers of the marginalized voiceless members of the public;
 
• They should alert, educate, sensitize and organize the public for any public picketing/demonstrations as the last resort wherever the people’s basic rights are violated;
 
• They should create firm lobby groups within the community as an avenue for addressing basic rights violations;
 
The Local Community
 
√ There has been no public sensitization and engagement, which explains why most members of the community are still not aware about the projects. In fact, some people learned about it through newspapers. To date, some leaders do not know the exact layout of the project in our county. They are only hearing rumours about this project;
 
√ The assessment of the project turned out to be a scandal. It turned out that when the assessment was being done, there was a shortage of critical important data without which a proper assessment cannot be conducted. Some of that unavailable data is the hydrological mapping of the underground water system in Isiolo and how that system affects the larger Isiolo area and the rest of the River Waso basin;
 
√ It is surprising that geotechnical investigation for a project to be established on the river that serves a significant number of pastoralist downstream to Lorian swamp in Wajir County was not exhausted;
 
√ Information on whether Water Resource Management Authority (WARMA) for this project has been licensed is extremely scanty;
 
√ Any such activity on River Waso will lead to alterations of underground drainage and fracture flow. Studies have shown that entire ecosystem of fauna and flora will be irreparably damaged leading to severe socio-economic and ecological effects for generations to come;
 
√ Environmental experts say that such damage to the river Waso hydrology is irreversible. It might lead to permanent drought of aquifers and streams. The effects will be so severe that the larger Isiolo , Garissa & Wajir region will be deserts within five years of this project;
 
√ Some analysts estimate that due to an increase in human consumption of water resources, water conflicts will become increasingly common in the near future;
 
√ Public participation was limited to Members of the Isiolo County Assembly, Governor, Members of Parliament, Speaker of the Assembly and the County Commissioner.
 
√ No efforts were made to get the views of most of the Isiolo and Wajir people particularly in those areas that already have serious water challenges like Charribelt, Cherrab plains, KinnaSericho and Garbatulla;
 
√ People living on the rest of the Waso River basin were not contacted at all. The people in above mentioned regions rely on the Waso River as their sole source of water. A project like the Crocodile Jaw Damcannot be legitimately conceptualized, designed and commissioned without taking into consideration the views of the people along the river and considering the effect of the project on their lives;
 
√ It also goes against the provisions of the Environmental Management Co-ordination Act and the Environmental (Impact Assessment and Audit) Regulations that requires the conduct of proper public participation before any project is designed and commenced;
 
√ Hydrological mapping data of the entire County has never been availed to members of the public and geo-technical investigation of the project has never been exhausted;
 
√ The project therefore goes against the Constitution of Kenya which states that public participation is one of the National Values and Principles of Leadership that must be complied with;
 
√ It also goes against the provisions of the Environmental Management Co-ordination Act and the Environmental (Impact Assessment and Audit) Regulations that requires the conduct of proper public participation before any project is designed and commenced; and
 
√ The community should demand for their rights through their local leaders and public forums. They should hold peaceful (picketing) demonstrations where and when dialogue fails to yield positive results.
 
 
√ Any aggrieved person(s) has the right of access to a court of law to seek a remedy on the acquisition or compensation process. The question at this point is: were the local members of the public in Isiolo fully involved and made aware of the economic and socio-cultural implications of the projects.
 
 
SITUATION ROOM
 
The general position with regard to the implementation of LAPSSET, RESORT CITIES and other infrastructure and mineral-based projects is one of qualified support—even by the communities likely to be affected adversely, in the full knowledge that they are by a government which has compulsory acquisition rights, amongst other means of pushing such projects through.
 
The position of host communities and environmental campaigners is further captured in the non-governmental organization (NGO) Save Lamu’s statement which hints at drama of the commons: Although we agree that Kenya as a country and East Africa as a whole will stand to benefit from the (Lamu) port, we are in doubt that economic
development on the one hand, and the ecological, social, cultural and economic destruction of the Lamu archipelago and its indigenous communities on the other, is a reasonable ‘trade-off.’. The Isiolo county government should update members of  the public on the status of “Sarova declaration”
 
But development interventions, such as LAPSSET, do not only pose the obvious direct threat to host communities; they also risk undermining Kenya’s young experiment in fiscal decentralization. Legislation requires county governments to produce widely consulted integrated county development plans and subsequent annual budgets, which must be done with scarce human and financial resources and in many instances, poor data on baseline development conditions at sub-county levels.
 
 
Crocodile jaw dam site 

Whispers from the North
msaladus@gmail.com
Whispers from the North is an online platform that appreciates the ecological, cultural and socio-economic diversities of Northern Kenya. We also acknowledge that the lives of the communities of northern Kenya has been shaped by a number of intrinsic and extrinsic factors which have led to complex challenge that calls for a multifaceted approach.