Summary of the issues relevant to the Tana Delta
- Pre 2003: There were mega project proposals which never took off. This included growing of biofuel crops and oil crops project in the big ranches surrounding the delta.
- 2003: The TARDA sugar project was conceptualized soon after the NARC government came to power in 2003 after winning the 2002 elections. The first major pronouncement regarding the project was made in December 2003 by the local\member of Parliament- Garsen Constituency. The then MP for Bura- Tanariver and the former MP Garsen immediately raised an alarm and alerted the Kenya Wetlands Forum and EAWLS.
- 2004: An emergency meeting of the forum was convened early January 2004. A team was formed to do rapid appraisal on the ground. The Team was lead by NEMA through the officer in charge of wetlands and marine. At that time it was ALI MOHAMED, the former PS Special programmes. The report of that trip is with the Kenya Wetlands Forum (KWF) secretariat.
- 2005 – 2007 – Ongoing opposition to various projects/schemes provided by KWF and others on the basis that existing rights, the importance of the Delta ecosystem and its biodiversity were being ignored. At this time, it was established that TARDA had entered into some joint venture agreement with a Spanish based company called RAESA. This company we were made to understand is in irrigation technology. TARDA, RAESA and Kenya Sugar Research foundation started the sugar cane/irrigation technology trials at the pilot farm at Kulesa village.
KWF made a wide advocacy engagement. KWF engaged the embassies, the government, the local communities and the international advocacy groups. There is a VCD at the Society called ASHAKA. This is a documentation of all the community meetings held at that time and highlights the issues that were being raised.
During this time the project was receiving overwhelming support from the government. The president, the vice president, the parliament committee on agriculture among others visited the Delta and made their stand known in support of the project.
However, the sustained advocacy pressure that year paid off. RAESA silently pulled out of the venture around early 2005. TARDA started shopping for another investor. They visited KENANA in sudan, went to Brazil and also Mozambique and most probably also Zambia. They were not very successful. It is then around this time that TARDA entered into an agreement through an MOU with Mat International. This is a local based company with interests in sugar importation and petroleum product undertaking. The Secretariat, KWF should have a copy of that MOU.
At this time TARDA and Mat had wanted to proceed with the project even without carrying out an EIA because of the political pressure.
While pushing for this Project, TARDA had also approached the Japanese development agency for the possible revival of the defunct TDIP rice project. The Japanese gave TARDA some finances to carry out an ecological and socio-economic appraisal. These reports should also be with the secretariat. KWF challenged TARDA to inform the public on exactly what they wanted to do on the said land, whether it was Sugar or Rice.
When TARDA and Mat International could not proceed because of the sustained advocacy pressure, the government had to act on its senior officers. The MD of TARDA was a member of EAWLS council. The council through its Chairperson, the late Imre Loefler stood firm in opposing. Consequently the MD TARDA was sacked and TARDA unilaterally terminated the deal with Mat.
More Recent Events
- 16th October 2006 – TARDA and Mumias enter into agreement to develop the Tana Delta Integrated Sugar project. What Mumias did was to employ the former TARDA MD who become their deputy director. That is how Mumias also started their proposed sugar project. Knowing the issues that were being raised including the tenure rights Mumias started their process by applying for large tracts of land in the delta from the county councils of Tana river, Lamu and Ijara.
- Mid 2007 – TARDA/Mumias commission EIA report as required by Environmental Management and Coordination Act (EMCA)
- 26th November 2007 – NEMA published a public notice inviting comments on the EIA report.
- 21 December 2007 – Nature Kenya sends comments on EIA to NEMA (Annex B)
- January 2008 – BirdLife International and RSPB send comments on EIA to NEMA (Annex C)
26th February 2008 – The Kenya Wetlands Forum plus partners, including local community associations presented a 19 page report to NEMA on the flaws and non compliance with EMCA of the EIA study and recommended its rejection. (Annex D)
- April 2008 – NEMA Technical Advisory Committee presents draft report on review of EIA. Recommends license to be issued but glosses over importance of concerns raised by the TAC themselves. (Document available)
- 6-8thMay 2008– Public hearings organized by NEMA representation of local community views on proposed project. These views were expressed in 4 categories as follows:
- Land Tenure/ ownership and access
Essentially the communities were deeply opposed to the project location as they felt they were being disenfranchised and ignored.
- July 2008– Case lodged in Malindi High Court against the TARDA/Mumias project (document available). Case based on the following:
- The Director General, NEMA was wrongful and illegal in granting a project approval and EIA licence
- Displacement of local residents and their lawful rights
- No proper Council resolution in regard to taking up Trust Land
- Lack of concern for the ecology and ecosystem processes of the Delta
- Lack of attention to water balance required by the ecosystem
- June 2009 – Case dismissed on technicality as the proceedings prepared by the Applicants advocate were fatally defective and incompetent (EAWLS Council member opinion)
- Sept 2009 – present – Nature Kenya/EAWLS working on new approach with Advocates led by D. Majanja.
- Ongoing – proposed commercial venture developments are mushrooming and such initiatives now amount to over 100,000 ha compared to the initial 20,000 ha for the original TARDA/Mumias project. All these are without prio-informed consent of the local people disregarding their sustainable living, their rights over land and their rights over constitutional equity. As Kenyans, they deserve land titles.
- February 2010– Outline of approach in new case set out as follows:
- To assist the local community representatives to make a legal application for a multiple land use plan to be drawn up that closely involves them in the process and that any plan so produced has their proper support.
- That any such plan, must respect their right to life and hence their right to sustainable livelihoods and integrate their needs into the plan
- That they and other local communities in the Tana Delta should participate and benefit as much as possible in the agreed sustainable developments
- That the plan takes into account sustainable living and sustainable development, ensuring maintainance of environmental goods and services including plants, animals, soils, waters, air and general environmental quality and human health in the Tana Delta.
- That such a plan must sustain the rich biodiversity and important ecology of the area. In particular this refers to ensuring environmental goods and services including plants, animals, soils, waters, air and general environmental quality and human health are maintained in the Tana Delta.
- That such a plan must consider all possible development opportunities, e.g. tourism, fisheries, livestock, arable agriculture and must take into account the impacts of climate change and the mitigation of such impacts.
- That such a plan must be compliant with Kenya’s new Land Policy.
- To seek an injunction on any current development such as the large scale sugar initiative, jatropha plantations, etc be suspended until the land use plan for development, conservation and livelihoods is in place and thereafter any development must be guided by the adopted plan.
- To seek that injunction against TARDA, the Ministry of Lands, NEMA and the various local Councils and to have TARDA, Ministry of Lands, NEMA and the council to commit to coordinating the planning process. The government should appoint a lead agency to take charge of Tana Delta planning for conservation, livelihoods and development
The essence of this case is not to stop or deny development, but to have the Government agencies undertake a responsible transparent and collaborative approach to planning to avoid the disasters of the past ensuring that all the Millennium Development Goals (MDGs) are achieved within a sustainable living framework that respects the rights of all stakeholders and indigenous peoples.
- Nature Kenya/EAWLS expectations are as follows:
- That the legal process achieves agreement on the planning process described above, with a full commitment from the Government agencies concerned.
- That an injunction on any major development is issued pending the development of the conservation and development master plan for the Tana Delta. This includes ongoing initiatives by TARDA and other agencies.
- That issuance of land titles to private developers targeting the Tana Delta land is suspended until the multiple use plan is developed and the local people have entitlement to their indigenous/traditional lands.
- That current land dispensation in the area is investigated and confirmed such as to clarify to Kenyans all those who have a legitimate interest on the Tana Delta so as to ensure increased transparency and accountability.
- That the legal process will generate widespread publicity, widespread understanding and ultimately strong political support and pressure for a proper planning process, whatever the legal outcome
- That there is a good rapport and ability to evaluate progress between yourself and ourselves so that we keep strategically relevant and avoid unnecessary expenditure
- That we will be involved in assisting with creating as much understanding as possible of the issues involved.
16. Some background information is provided in Annex A and other documents labeled Annex B, C, D (To Follow)
Agreed modus operandi is as follows:
- That David Manjaja act as the lead advocate but have as part of the legal support team, the Nature Kenya retained Advocate, Waruhiu K’Owade and Ng’ang’a Advocates
- That EAWLS will be your focal point on behalf of our partnership but Nature Kenya is free to talk to you or your partner in the case as advised by yourself and receiving direct communication on all matters.
THE TANA RIVER DELTA WETLAND
The spectre of conflict between conservation and development regularly rears its head in the Tana Delta wetlands. Examples of development without consideration of conservation needs are a declaration by the Tana and Athi Rivers Development Authority (TARDA) to undertake sugarcane growing and ethanol production in the Tana Delta. More recently there is a growing demand to use the Delta area for the commercial production of Jatropha curcas and other oil crops (sunflower, castor & crambe) as a biofuel.
The latest EIA for such crops is that of G4 Industries (Impact Assessment. Available at http://www.iaia.org/publicdocuments/special-publications/SP3.pdf ). (Nature Kenya and EAWLS objection documents available).
This scramble for Tana Delta land for developments may be summarized as follows:
- TARDA land 40,000 ha with 20 ha already developed with some of it currently under maize in response to the 2008/9 food crisis
- G4 Industries targeting 28,000 ha with some of it in a ranch and the rest in the trust land but the collapsed ranch land currently used as grazing area by the indigenous local communities. No change of user or cost benefit analysis for conversion of land use from livestock to crop farming
- Mat International (unofficial to date but they are on the ground) claiming some 30,000 ha in the delta for initial growing of Sugar cane and some 90,000 ha within the district (not known where) for the same proramme
- Bedford Energy (not sure of name) are claiming some 50,000 ha near Garzen area in the Tana Delta district. An EIA is in the making.
- Qatar government (unofficial sources in the media and public domain) claiming some 40,000 ha to grow food for Qataris in exchange for a port in the town of Lamu (Not sure if still under consideration)
- Tiomin mining company currently in Kwale has plans to carry out mining at the sand dunes in the Tana Delta. The area not yet known, but could have significant implications on water resources.
- We have heard there are others claiming land but we have not yet known them.
What the above growing list shows is that there is a true scramble for Tana Delta, there is no control over the land allocation, there is no central decision making and management for the development, the rights of the local people are ignored and sooner than later, there will be a serious land use conflict that might lead to serious land clashes. This must be avoided.
The Tana Delta wetlands within Tana River district of Coast province is arguably Kenya’s largest, most ecologically and biologically diverse, socially and economically important wetland. The Tana Delta is formed at the lower Tana River floodplains found largely in the new Tana Delta District (Garsen Constituency). A small portion is located in Witu location of Lamu District. It covers about 130,000ha of which some 69,000ha are regularly inundated. The head of the Delta is below Lakes Giritu and Bilisa south of the Tana River Primate National Reserve. Below these lakes the flood plain widens and a series of old and new river channels fan out to reach to the coast at Ungwana Bay on the Western Indian Ocean. There are extensive permanent swamps and smaller lakes along the channels and floodplain.
In summary, the Delta has very rich and diverse biological resources. 76% of this biodiversity is wetlands, comprising permanent water bodies; swamp or marsh vegetation; seasonally flooded grasslands; mangrove forests; riverine/floodplain forests; marine sea grass beds; coral gardens and coastal dune habitats. The remaining 24% comprises wooded grassland and bush land associations. At the species level, parts of the Delta sustain 2 species of monkeys that are considered endemic to Kenya – the Tana River Crested Mangabey and the Tana River Red Colobus – and several globally threatened bird species, including Basra Reed Warbler and Malindi Pipit.
The initial sugar development,the TARDA/Mumias Sugar Co Sugar project, was to cover 20,000ha most of it in Tana Delta district and a small portion in Witu location in Lamu District, under an irrigation system with water supply from the river. An EIA study was done but was challenged in terms of technical and scientific weakness, omissions, errors, ambiguities as well as procedural flaws. Nevertheless an EIA license was given to MSC/TARDA on 16 June 2008. A court case put an injunction on this project, but the case was thrown out on a technicality in June 2009.
While the court injunction was still in force, in April 2009, TARDA were given a title for some 40,000 ha above the 28,000 ha in their original county council allotment Tana Delta land. It is this land the TARDA decided to grow maize and rice because Kenya was facing a food emergency as a result of the drought. Reportedly, the sugar project by TARDA is not dropped.
The other sugar initiative is via MAT International, who have applied for 2 parcels of land – 30,000ha in Tana Delta District between the Tana River Primate National Reserve and the TARDA/MSC proposed site and 60,000ha in Lamu District bordering Tana Delta District to the West and Ijara District to the North. MAT is also seeking to apply for another parcel in Ijara District. For the first 2 parcels, approvals have been done but have been challenged. To date neither a project document nor an EIA study has been undertaken.
The existing human settlement and land use can be summarized as over 18 villages within the Delta in the proposed sugar sites, comprising pastoralist/livestock herders –Orma, Wardei and Somali; farming communities –Pokomo, immigrant Mijikenda; fishing communities –Malakote, Bajuni and immigrant Luos; and gatherers –Wasanya and Boni. It is estimated that some 25,000 people will be adversely affected directly. More than 200,000 livestock use the flooded grassland for dry season grazing and drought refuge. There is no equivalent grazing area to which these cattle can be relocated. The delta is also a refuge for wildlife of all variety ranging from primates, hipos, crocodiles, elephants, buffaloes, fish and huge congregations of birds that make the delta to qualify as an important bird area (IBA) and Key Biodiversity Area (KBA) on a global scale. Yet, there exists no formerly conserved wildlife and tourism area in the delta.
Such is the immense value of the wetlands that when TARDA declared that it intended to convert a large area of the wetlands for sugarcane growing and sugar and ethanol production, several varying opinions have been expressed regarding the venture. These sentiments have either been in support of, or contrary to the proposed project. The one hand, those in support of the project propagate the argument that the proposed project will act as a factor for development and economic growth, thus leading to alleviation of poverty, which is reported to be high in the area, providing alternative sources of livelihoods, improving quality of life and raising material living standards among the area inhabitants.
On the other hand, those with contrary opinion argue that displacement, change of livelihood systems, lack of alternative livelihood options and limited attention to environmental aspects of the Delta will have serious immediate adverse effects and long-term adverse ramifications on the Delta, its people and the national interests of Kenyans. They believe that this is not the best use of the resources (both social and ecological). They believe that these ventures are short term and will cost the Kenyan Government and the local people great loss in the long term.
In considering those two viewpoints, the following concerns need to be noted:
- There is no planning framework to guide proposed developments in a way that helps to safeguard environmental services and the rights of the local people. This lack of a conservation and development master plan for the delta is the single most important reason for the failed developments, the heightened scramble for delta resources, the loss of biodiversity and the violation of indigenous peoples rights over land, over resources and over the right to decide on their future destiny
- Local people are likely to lose their rights to the land on which they have lived since immemorial.
- The available water resources and the complex hydrology of the Delta have not been considered adequately. Many scientists say that there is not enough water in the Tana River and the Delta to support existing irrigation schemes now undergoing rehabilitation, much less the proposed ones. Developing ground water resources has in the past led to salt water intrusion.
- Cost-benefit analyses of the current economic and ecological values of the Tana Delta versus the proposed projects have not been done. A cost benefit analysis for sugarcane versus the existing benefits (without extra inputs) has showed that current benefits stand at 3.7 billion Ksh against 1.2 billion to come from the sugarcane. If environmental benefits are considered and added to the current benefits, the gap is wider and if ecological losses are valued and added to the new destructive projects, then the projects should not be thought of as an option in the Delta.
- The option of other uses – meat-packing factories, fruit juice factories, tourism development and improved farming, fishing and ranching, making use of current economic systems – has not been considered. A cost benefit analysis for value adding the current uses and the benefits it is likely to bring to Kenya and the local people has not been done. Clearly, livestock will not need as much inputs as new strains of crops which also have huge ecological losses. Also, tourism potential is huge and remains unexploited yet the investment is minimal.
- The economic loss to Kenya of the loss of the Delta’s ecological services – water storage, shoreline protection, carbon storage, climate moderation, biodiversity – has not been quantified.
- No public access to detailed information, including maps, has been provided by the developers
- Weak public participation in decision making regarding the project
- Political and administrative decisions have been made in favour of the projects, thus imposing the projects despite fundamental concerns
- The Councils have betrayed their responsibilities to local communities in regard to Trust Land custodianship.
- Government agencies and public servants including TARDA, NEMA and local administration have avoided generating any debate because of the factional and vested interest pressures.
- The EIA findings and licenses granted are technically scientifically and procedurally weak and legally flawed. The EIA has not undergone any independent verification
- The proposed schemes and manner of implementation within a planless framework negate Kenya’s adherence to the obligations stipulated in International Agreements for which Kenya has signed up to. These include the Convention on Biological Diversity (CBD) whose three core objectives are: Biodiversity Conservation, Sustainable Use and equitable access and benefit sharing. There is a gross violation of this convention as the proposed programmes are not sustainable, they destroy biodiversity and do not promote equity but violet the rights of indigenous peoples. Kenya is party to the UN charters and by extension party to the UN Declaration on Indigenous People’s that calls for prior informed consent before the territories of indigenous peoples are taken for whatever reason and which calls for the full recognition and respect of their indigenous rights. Other conventions that Kenya has signed and which are being violated through these developments in the delta include the Convention on Migratory Species (CMS) that requires parties to protect migratory species through out their cross border territories. The RAMSAR is a convention that promotes wise use of wetlands and Kenya’s lack of commitment to wise use of the delta is exemplified by the fact that despite talking about RAMSAR listing of the Tana Delta for a long time, Kenya has never finalized the process for RAMSAR listing. That is why this process should be completed into to promote the wise use of the Tana Delta within internationally agreed standards.
- There is no formerly recognized conservation area in the Tana Delta. While conservation areas e.g. National Parks, game reserves, forest reserves etc are largely for wildlife, they are also critical in maintaining invaluable ecosystem goods and services e.g. water catchments and have become economic pillars as they are centres for tourism. This use seems not to be a priority for the government yet the Delta is within a tourism hotspot.
- Impact of reduction in flood volumes from irrigation, thus impacting the traditional flood dependent small scale/subsistence agriculture, has been ignored
- The likely increase and intensification of land use conflicts between farmers and livestock herders due to the decrease in available land has been ignored.
- Use of River Tana’s water for irrigation, thus reducing overall flow, will have severe adverse impacts on fresh water fisheries
- The proposed schemes and wetland reclamation will cause severe physical destruction of the Delta floodplain habitats and associated biodiversity – a loss to the nation as a whole
- Pollution from agricultural inputs and factory effluents will adversely affect the Coastal and Marine biodiversity such as the important fisheries of Ungwana Bay, mangroves, coral gardens and sea grass beds and associated biodiversity and livelihood systems
- Hydrological imbalance and reduced river flow will cause intrusion of saline water further upstream, which will impact negatively on flood recession agriculture and other floodplain agricultural systems.
With these concerns in mind, two questions surface
- Are the proposed large scale plantation schemes the best way to develop the very rich and diverse resources of the Tana Delta?
- Are there alternative approaches to developing these resources in ways that will benefit the local communities and bring sustainable and widespread development to the area?
We believe the answer to 1 is that the proposed plantation schemes will monopolise all the rich and diverse resources of the delta for a single agricultural operation, to the detriment of the local population and the local environment, with no proven national benefit to justify the loss of homes and or livelihoods for 25,000 people or more and irreversible loss of plants, animals and tourism potential in the delta.
In response to 2, we believe that there are many alternative approaches that put emphasis on multiple land use within the principles of wise use that can result in sustainable development without adverse environmental impact. However until the national interest prevails over individual interest and until proper dialogue occurs in a manner that allows transparent and objective evaluation, the proposed commercial projects are a manifestation of ill-considered governance in natural resources management and poverty alleviation. That is why it is critical to:
- Develop a multiple land use plan for development, livelihoods and ecological protection for plants, animals and ecosystem services. Until this master plan is developed in a consultative manner, any proposed developments will always meet objection and the end result might be deep rooted land use conflicts that should be avoided at all costs. To this end our prayers are that the honorable court should rule over any development in the Tana Delta until this maturely agreed master plan is developed and gazetted.
- Recognize and respect the rights of the indigenous peoples in the Tana Delta. We pray that the honorable court should rule that all developments must be subjected to transparent consultative processes and should not pushed through the throats of local speechless poor indigenous peoples. If this does not happen, we fear that as local population increases and grazing land reduces, there will be severe conflicts between the indigenous peoples and the private developers. This must be avoided at all costs
- Local rights of land entitlement should be recognized through land titles to indigenous local communities. We pray that the court should rule that the Government of Kenya through the ministry of lands should survey and allot titles to the indigenous peoples and develop land decision making structures to ensure effective local governance over land in lines similar to the group ranches established under the group ranches act.
- Establish wildlife and tourism areas in the Delta. In the interest of present and future generations and within the principles of sustainable development we pray that the court rules that the government establishes and issues titles for ecologically sensitive areas whose use will compatible with wildlife and tourism principles to ensure ecological services are maintained in perpetuity. If this does not happen we fear that the invaluable biodiversity and ecosystem goods and services will be lost including opportunity for economic growth through tourism
- Identify a government institution or agency to safeguard biodiversity and ecological services as TARDA is largely for exploitation and development of water resources but not the conservation of the ecological goods and services. To this end, the Kenya Wildlife Service is best placed to protect the delta biodiversity, tourism values and ecosystem services.
- Carry out cost benefit analyses for any development and contrast with existing benefits which have been ignored by the current developers who assume indigenous peoples ways of living and assume that livestock grazing is as good as not a land use considering the Tana Delta as idol land.
- Ensure that any development is subjected to transparently done EIA with transparent consultations for all stakeholders and that all views of stakeholders at all levels, local, national and global levels are taken into account.
- Ensure joint planning by all interested parties by establishing a multi-stakeholder institution to ensure efficient planning of the Tana Delta resources.
- Ensure that all developments in the Tana Delta are proposed and implemented for the people of Kenya and for Kenya’s development BUT not just to meet policy decisions of other countries as is the case with agro-fuels which are mainly responding to the need for Europe to important 5% of bio-fuel energy from other countries ignoring the negative impacts on people, biodiversity and sustainability in general.