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Podcast Series: Hearing above the roar, Episode 3: Know your rights: Using the law to support environmental defenders in Kenya English Transcript
Host: Hein Aung Htet
Guest: Eva Maria Anyango Okoth
Hein: Hello and welcome to ‘Hearing above the roar’ a three part podcast series unpacking the complexities around the ongoing global boom in megadam construction in East Africa. In this series, we explore what this boom means for people living in its path.
I’m Hein Aung Htet and I am currently a social anthropology student at UCL. In our third and final episode of the series, we will be discussing issues of environmental justice in East Africa, taking a look at how communities are using the law and legal activism to defend their rights in the face of major infrastructure projects.
I have a particular interest in this topic specifically because of my background being from Burma where environmental laws are still not very concrete which affects the local population and their livelihoods. This has led to political violence that could have been easily prevented
Today, I’ll be speaking with Eva Maria Anyango Okoth, a lawyer and Senior Programme Officer based with the NGO Natural Justice.
Hein (in interview): Good morning from here from London. I don't know what time it is in Kenya at the moment.
Eva: It is lunch hour in Kenya.
Hein: Ah, good afternoon. So how are you today?
Eva: Good afternoon.
Hein - Voiceover
When we started out planning this series, our aim was to focus on the Julius Nyerere Hydropower Plant project in southern Tanzania, a controversial project which, once completed, will dam the Rufiji River, fundamentally disrupting the ecosystems and livelihoods of its 200,000 downstream inhabitants. International NGOs with offices in Tanzania, as well as government opposition leaders and local academics have condemned the project as an environmental and social disaster.
In episode 1, we heard about the background and historical context for this dam, and in episode 2 we heard about how local people in Tanzania may or may not have a voice in water use and management. We had hoped to hear directly from local people in this series, but given the political tensions around the project, it has been difficult to find Tanzanians willing to speak with us. Ultimately, it hasn’t felt safe or responsible for us to invite local people onto the podcast in case they also faced consequences from authorities.
But we are delighted to be able to speak to Eva, who shares her insights and experiences working with local communities in the neighbouring country, Kenya.
Eva lives in Nairobi, where her career has been dedicated to defending the environmental and human rights of marginalised communities.
She works to ensure local communities have a voice in development projects. As well as supporting the implementation of laws enshrined in Kenya’s constitution for the right to a clean and healthy environment, access to information and justice, and participation in decision making processes.
Although Eva won’t be talking to us specifically about hydropower today, her knowledge and experience in Kenya provides us with insight on development projects within East Africa and the challenges faced to ensure local communities are heard. She draws on her experience from projects constructing fossil fuel plants, and draws some parallels with the development of hydropower in Tanzania and other countries too.
Eva explained to me that although there are laws to protect the environment and local communities in Kenya, there isn’t always the capacity or accountability to implement those laws. And that is where her work with the organisation Natural Justice comes in.
We are grateful for Eva for speaking to us!
**Interview begins
Hein (in interview): So the first question I want to ask you is what prompted you to get into environmental justice throughout the legal system? Why the legal system and what fascinates you about this field?
Eva: What motivated me is the aspect of being able to find ways of making the law accessible to the ordinary people who often suffer because of, you know, violations of their human rights on because of lack of understanding of these rights and how to claim them. So these days for me, give me that opportunity to be able to contribute towards democratising the law and solving issues.
Hein (in interview): What are some of the things that you're trying to push for the local people, especially as a lawyer at Natural Justice?
Eva: From Natural Justice’s perspective, what we are trying to push for is to you know, grant communities and ordinary citizens, the agency, they need to be able to demand for this accountability and transparency.
I can give a very good example of how this has played out, is one of the cases we worked, we worked on which is called the Lamu coal plant case. It's a very good example because when the government of Kenya had proposed our coal fired power plant, in this very remote region, the community there at the time, were not aware of what was going on, and probably did not have the benefit of knowing the law and how they can use it to demand accountability. But with the legal environment that started happening over time, you would, you can see a positive change in terms of how they are now engaging in these processes. And in this case, many of the communities were able to demand for information on these projects. We were able to work together to participate in the environmental impact assessment study processes, where they asked questions, raised concerns around the potential impacts of this project. And when they were unable to get the kind of accountability they need, then the communities went to court to seek and demand for accountability, and this was definitely successful.
Hein: Could you give any examples from your work in Kenya or how like local groups can organize to postpone or stop major infrastructure projects, perhaps grassroot projects by local groups?
Eva: Yeah. Yeah, definitely. Just pick it up from from where I left, because one lesson that we've learned from the coal fired power plant project in Lamu is that there's a lot of strength and power that comes with grassroots organising. It's very important from the word go for communities to be able to come together, organise themselves and, you know, put forward a common position in terms of what they feel and what they think about these type off developments that are being proposed in their regions. And so as I recall, one of the things that happened when we started the case is the communities came together and formed an umbrella organisation that brought together different groups of people in the society including women, young people, the elderly, and they formed this community based organisation that is called Save Lamu. And so this umbrella organisation is what was able to be at the forefront of this struggle to oppose this project.
There was also a national movement called Decolonize that was formed. So this movement brought together experts, lawyers to be able to also, you know, speak about this issue at a national level because the issue does not—or even if it directly affects the community—it also has an implication at a national level, maybe direct or indirect. So, for me, the community organising was definitely the game changer.
Hein (in interview): As you know, our podcast is quite focused on hydro project, hydropower as well. So could you give an example of how like, if there's any examples in Kenya where like, local groups organise against big hydro power projects?
Eva: When it comes to when it comes to hydropower project, I can’t clearly speak to a specific case we have worked on, but generally for me, what it brings to my mind is this discussion around Just Energy Transition, you know, where more and more communities are pushing for renewable energy that is less risky and that will not contribute to climate injustices that we see. So when it comes to these types of project the discussion and the debate has beenwe need to transition to renewable energy, whether it's hydro hydropower, whether it's geothermal, however, the transition must be just so it means that even as you put up such types of projects, then compliance with environmental regulations and ensuring that relevant stakeholders are involved in the process still becomes very critical.
Hein (in interview): Does organising carry risks for like, local communities?We know that environmental defenders face political violence, so how does like African environmental defenders work to support themselves?
Eva: You will see from some of the statistics that are coming out that the number of incidents are increasing in a very worrying way. As of 2021 Global Witness released a report thatat least four defenders are killed every day. And I think this is a very worrying trend andstatistics to hear about. In the African continent, not many of these cases have been reported but it doesn't mean that they don't occur. There are so many of these cases that we witnessed where people are killed. Environmental defenders who put themselves out there are attacked physically, either or even in digital spaces. In some cases, there's a lot of judicial harassment, in you'll find that many of them are subjected to, you know, court processes that really frustrate them. You may have heard of how strategic lawsuits against public participation are being used against defendants to you know, lock them into criminal justice or civil justice processes. So I think that the risks are quite high. And the reason for this is that many of these development projects are definitely backed by politicians or, you know, people with a lot of money and so it's definitely going to present these kinds of risks.
So for us, we, at Natural Justice, we've set up an African Environmental Defenders initiative, that is basically meant to provide the solidarity and support whenever such issues arise. Maybe just to give a little bit more information in terms of how this works. We have an emergency fund, which is meant to be a rapid response mechanism to help the defendants remove themselves from harm's way whenever they face a threat. And so we provide rapid response in the form of medical assistance if there is a physical attack. We also give urgent clinical support where for instance, a person has been arrested and their freedom of movement restricted So in such cases, we can give bail, or we can support you know, the cost of bail or the lawyers to secure the bail or bond for the defendant. Other cases we've given security infrastructure where the defendant thinks that they're being stalked or you know, their privacy is being violated in one way or another. So those are the kinds of short term support that this Urgent Response Fund provides.
And then secondly, with time realised that even as we give the rapid response, they need to have in place more proactive and preventive approaches as well. So way before an emergency arises, what can we do to increase the resilience of the defender and you know, minimise the chances of such incidents happening? And so we've now moved more into providing legal empowerment and capacity building in the form of trainings, you know, digital and security, trainings, for instance, trainings on physical safety.
And then finally, we also have do a lot around law and policy reform where we seek to influence the law to provide greater protection and recognise the critical role that defenders play when it comes to the struggle for climate justice and environmental justice. And my response, in a nutshell to your question is that the contexts really differ. And there are places where depending on, you know, the political, the political environment of a country, there are places where such kind of laws can be welcomed, but in other, in other cases, it becomes difficult.
If I can give a good example, within the East African region in a place like Kenya, there is to some extent, a good level of democracy, I can say. The rule of law is to some extent at least working and it's evident in for instance, the Constitution that we have and so we there is a lot of leverage for us to use to be able to push for such laws. In another country, if I can now contrast like Uganda, in Tanzania, the civic space in those countries are quite worrying, because civil society and people who speak are under a lot of threats. And what's interesting is, I was just in Uganda last month, and I was having this conversation with some defenders who are impacted by the East African crude oil pipeline, and they were sharing an experience about a proposal that is being made to have a human rights bill. But the interesting perspective for them was that this law would not be useful at this stage. And it's because in Uganda, apparently, the laws to some extent are being used to oppress people.
Hein (in interview): I can understand from that context, in my context of Burma, where a lot of environmental defenders are still criminalized. In fact, some of them are arrested and thrown into jail for some time for defending indigenous rights or ethnic minorities and the land rights. And the legal system is very difficult to go around. And it takes a lot of time and it is used again and again, in a form that's oppressing the lawyers and the minorities themselves so that nothing can go forward.
How could like these big environmental projects, such as the crude oil project that you talked about continue, despite local resistance? What about the business? Do they not see that losing local livelihoods will be anything negative, do they not see that as anything negative?
Eva: Yeah, so I think with what's happening in the continent, in many countries, we’re seing a situation where this culture of capitalism is really growing and you know, it's that it's getting kind of system that you know, seeks to, earn power and money for specific elites in the society while others are suffering the impacts in bearing the greatest burden so I think the, the, capitalistic nature of how development takes place, is really failing many countries, especially in Africa, and I think, again, it's just about these business interests, because you find that many times the interests of businesses are being prioritised more than the needs of communities.
So I think I would put the blame on the mentality and the development and economic systems that many of our countries are adopting more blindly. If I can put this into perspective when we look at many developed countries right now, who’ve you know, during the Industrial industrialization yields used coal and fossil fuels to develop, they are now moving away from, coal projects and fossil fuel projects. But the irony is, these projects are being now shifted into the African continent, not bearing in mind that the past has shown us that this is not the model that is sustainable.
And it's all about, you know, extractivism it's all about wanting to exploit resources for the benefit of a few specific individuals. So thethe environment is quite let me say corrupt. And so this kind of corruption is the one that is sustaining the capitalism or the capitalistic system that we see being enforced more and more. So I think that that there is really need for for people to have thatmindset shift, and more of our leaders need to really think critically about some of these development projects that they are allowing so these it's more of a systemic issue.
Hein (in interview): With extracting resources or doing the crude oil project in Kenya like that, what are the violence that the locals have face specifically, and what, have Have they responded with violence or have they responded with protests to some of these projects?
Eva: Yeah, so with the East African crude oil pipeline. Many of the communities have responded through, let me say, they’ve use more legally available channels to be able to assert these rights because when it comes to protests, when it comes to expression, freedom of expression, these are rights that are protected within the Constitution. And so definitely communities have reason enough to question some of these issues that are happening. So the East African crude oil pipeline if I can give more clarity, it is a project that is going to run or that’s’ going to lay down a pipeline from oil fields in Uganda and is going to use to export oil through a port in Tanga, within Tanzania. And so there are a number of communities along that pipeline region that are going to be impacted by it. So the way Kenya comes into the question is that this pipeline is going to pass close to Lake Victoria which is a shared resource and any potential impacts that come out of it could also spill into the Kenyan side.
We've seen cases where some communities have wanted to hold demonstrations, but this hasn't been successful because of the restriction of civic spaces, like I said. Slowly, slowly, they really witnessed a lot of backlash, especially whenever they tried to participate in EIA processes.
It's quite a tense environment. And there's no space for people to engage in dialogue more freelybecause of the intimidation that happens because of you know, the arrests that might happen. Like last year there was an arrest of some of the civil society organisations and community defenders who are participating in challenging this project. Many civil society organisations are scared also of being deregistered because of again, being linked to the people who are opposing this development.
Even as you develop economically you can ensure that environmental considerations are taken into account and this is why we are demanding that indigenous people be included and their concerns be taken into account when such developments are being planned or implemented on the ground.
When you look at what science is saying right now in terms of, for instance, the recent IPCC report is that we have no time, we are already at a critical situation where we need to be able to reduce our emissions to mitigate the climate impact. We need to reduce the rate at which biodiversity is being lost. And when these developments do not take this into account, then it means we are losing it. We are definitely in the wrong trajectory.
Hein (in interview): Thank you. So I would like to direct the topic to indigenous people now and I would like to ask you, especially about indigenous peoples situation in Kenya, and how they are affected by infrastructure developments. Could you please tell us more about the importance of environmental justice to indigenous people in Kenya, whether it's economically, socially or spiritually or even religiously?
Eva: When it comes to environmental justice for indigenous people, I can say, the key, I mean, the infrastructure and how it affects them, first of all, is many of their lands are being taken away because of, or in the name of, development or conservation. So they kind of you know, fortress conservation where we see communities and indigenous people being totally excluded or being totally driven out of their lands and off their ancestral territories, which are the most, the best conserved and with the greatest, healthy biodiversity. And so, infrastructure has a huge claim when it comes to you know, threatening their rights over their land and over their natural resources. From my perspective, issues of land for these indigenous people transcends just the physical you know, presence in that land, you have spiritual attachment to eat, they have cultural value which they attached to their lands, and also traditional knowledge which they have preserved and conserved over time.
But most of the time, many of them-- governments or environmental regulators-- view indigenous people as a threat to biodiversity or to forests in the country, which is not right, because when you look at indigenous people, they are people who've been able to conserve the environment, to conserve forests using their traditional ways of life. And they possess this unique kind of knowledge, which can to a great extent, help and contribute towards the, you know, solving the climate issues that we see and also contribute towards ensuring that we develop sustainably and we use our natural resources sustainably.
Hein (in interview): With Kenya being like a culturally and biologically diverse country that is predicted to develop rapidly over the next decade, what is the importance of preserving that diversity, whether it's culturally or biologically in the face of economic development?
Eva: In Kenya we definitely have a lot of diversity. And this speaks probably to cultural, traditional diversity that, you know, many of these communities, ethnic communities, or tribal communities have been practicing. Where our ways of development does not does not allow for communities to be able to continue exercising these cultural practices and these ways of living.
You know, if I can give a good example is, we have communities that are largely pastoralist groups, and whose ways of living are quite different from other communities. The way climate change is playing out in the country, it means that their way of living stands to be risked in one way and so they may need to shift to other ways of living to be able to continue earning their own livelihood, so it means we might lose this way or their way of, of earning their livelihood.
Another good example I can give you in terms of fishing communities who are largely in the coastal region. And you know, the coastal, in the coastal region, this is where the climate impacts are also again, largely threatening the livelihoods of people. And so where these risks present themselves because of development projects, then fisher communities are likely to lose their livelihoods and so shift to other ways, which may not be as sustainable and also may not preserve the kind of diversity that we see.
The scramble for natural resources and land can also present conflict situations where different communities, different tribes are now scrambling for land and natural resources because definitely land is a commodity, is itself becoming more scarce, more expensive, people are being driven from their territories. So when we look at different countries in Africa, not just Kenya, Nigeria is a very good example where conflict, severe conflicts arising because of natural resources; in Congo, also DRC the same situation. So this kind of diversity is really threatened, where there isn't adequate measures to ensure environmental justice.
Hein (in interview): Especially as some ethnic groups are indigenous populations are threatened with the idea of losing the identity, as the identity is tied to suppose land, where I've talked in context of Burma again, there's a war at the moment within indigenous groups and governments because of the environment. And so I think it's very essential to preserve the culture and biological diversity.
So, one last question because I don’t want to take too much of your time. Thank you again by the way for doing this. How important is environmental justice to democratization of Kenya?
Eva: Yeah. When it comes to democratisation, it's about trying to ensure that people have space, you know, to participate in decision making, and to be able to voice their concerns more freely, and what environmental justice seeks to achieve is a situation where people are placed at the centre of environmental governance and that any, any concerns that they raise, any issues that they raise are taken into account when decisions that could potentially affect are being made by leaders, by administrative institutions. And I think that environmental justice and now becomes very important because it ensures that there is transparency in everything that is done. There is accountability on the part, not just on the part of the private entities, but also and most importantly, from the government itself, which is supposed to protect their rights. So it does environmental justice is important for ensuring that transparency and accountability are upheld.
From that angle then we can say environmental justice is indeed a critical pillar for democratization in ensuring that all people are treated equally and that all people enjoy the rights that are enshrined in the constitution. Yes.
Hein: Thank you so much for your time, and your well-rounded answers. Thank you so much.
Eva: From my end it was great engaging on this topic and being able to share, at least from my perspective, some of these issues and I hope that this will be useful going forwards for anybody who listens.
Hein – Personal reflection
Today’s podcast with Eva is essential to understanding the law surrounding megadam construction and how this law can be used by the state to perpetuate violence towards civilians who rely on the area for the local livelihoods and how this law can be used to silence activists who speak up about this.
But we also looked at how activists actively use the law to protect the rights of civilians. I also enjoyed speaking to her about the impacts of capitalism and colonialism on the concept of development and how contradictory it can be as it doesn’t serve the interests of the locals living there especially marginalised groups.
Thank you so much for listening to our final podcast of our series. If you missed the first two episodes, you can find them on the podcast page, along with transcripts in English and Swahili of each episode. You will find our email address on our website, or tweet us @AnthropoceneUCL
We hope we’ve given you a better sense of what is driving the push for megadams and other major energy projects in East Africa, and across the global south.