A CASE OF OUTMOST NEGLIGENCE AND UNTAMED IMPUNITY

(A STATEMENT AND PRELIMINARY REPORT BY THE KENYA HUMAN RIGHTS COMMISSION; FREEDOM OF INFORMATION NETWORK AND MID-RIFT HUMAN RIGHTS NETWORK).

  1. BACKGROUND

On 9th May 2018, an illegally and irregularly constructed man-made dam within the vast Patel Coffee Estates located in Solai, Nakuru, broke its banks at around 7.15 p.m, gushing out 190 million litres of water through settlements, leaving in its wake; gruesome deaths; horrible injuries(physical, mental and emotional); massive destruction of property and unprecedented displacement of people.

Official reports indicate that 47 people lost their lives. Most of those who were swept away by the raging waters were women, children and elderly persons. Public amenities were also not spared as Solai Nyakinywa Primary and a Private Medical Dispensary were also heavily affected. The students schooling at Jamhuri Primary School, Solai Nyakinywa Primary, Akuiris and Ruiru Secondary School could not go to schools since they were closed temporarily.

Questions still linger as to what exactly caused the bursting of the dam? Residents of affected villages: Endao, Energy, Nyakinyua, Milmet and Arutani  in Solai division believe that the bursting was brought about by excess water from three rivers that were blocked by the Patels and directed to the ill-fated dam. In what turned out to be one of the worst human-made disasters and the most glaring cases of corporate impunity and state negligence, the Patels owned and managed nearly 8 private dams without the requisite permits and accountability to the public.

Ironically, this disaster happened at the time, when another dam by the Finlays in Naivasha had its water overflowing into the Shah Karuturi flower farm, and in the process, causing minor damages to the company and its residents. Incidentally, and over the same period, Masinga dam, Kenya’s largest hydropower dam, overflowed after its reached its full capacity thus exposing the people of the downstream Garissa and Tana River counties to grave dangers.

It is  against this background that from 17th May 2018, the Kenya Human Rights Commission(KHRC), Freedom of Information Network (FOI Network) and Mid-Rift Human Rights Network(MR-HURINET) dispatched a joint fact mission in the villages and localities that were most affected by the Solai Dam tragedy.

The purpose of the mission was to investigate and document the causes and impact, responses and preparedness and recommend the necessary actions with regards to the Solai Dam tragedy. The mission involved the review of the necessary literature and interviews with the key informants (government officials, civil society, development agencies, media personalities, victims and the citizenry in general. Below are the key findings and recommendations.

 

  1. KEY FINDINGS:

 

  1. Corporate impunity by Patel and gross negligence by state officers and authorities

This reveals blatant lack of compliance by Patel Coffee Limited and negligence by officials of the National Environmental Management Authority (NEMA) and Water Resources Management Authority (WARMA). For its NEMA and WARMA officials who are responsible for overseeing environmental and water resource management. To that extent, the tragedy was more of human made disaster. This is as evidenced by the following operational and policy flaws:

 

  1. Early warning signs ignored

Worryingly, complaints about visible cracks on the dam had been made by the communities severally but fell on deaf ears. Members of the community had raised concerns about the dam which they say started leaking in 2016, through parents meetings and chief’s barazas and nothing had been done.

In 2012, a similar ordeal was experienced in the area when another leaking dam just adjacent to the one in question had a dangerous overflow. Luckily, there was another aquarium downhill that accommodated the over for some time before it could reach residents downstream. This saw water with fish overflow to the Energy village creating a harvest to the residents that time.

However, questions arise as to where NEMA and WARMA were since that time. It is indeed unsettling that this incident did not lead into any action by authorities to assess the viability and worthiness of the dams in that area.

 

  1. Operating without licenses

Information from NEMA reveals that none of the dams at the Patel Coffee Estates were licensed. In fact, NEMA claimed to have been unaware of the existence of the dams until the tragedy struck. Further, although the dams have been in existence for more than 15 years, NEMA had not conducted any environmental impact assessment (EIA) and neither had audits of the dams been done. However, the company had as recently as last year conducted self-environmental audits under Kensalt Plantations Limited and submitted the report to NEMA.

In its reactionary statement after the tragedy struck, WARMA publicly declared the water sources in Patel Coffee Estate unlicensed; and therefore illegal. The fact that the company withheld crucial information from NEMA by declaring only the broad categories of its water sources as opposed to a full disclosure on the actual number of dams and boreholes in place must have been a desperate attempt to beat the system.

 

  1. Illegal diversion of rivers within the full knowledge of state offices

It has been common knowledge over the years that Patel Coffee Estates has diverted water from several rivers and streams in that area so as to fill their dams for commercial water usage. Community members had on several occasions complained to authorities about the diversion of rivers which caused acute water shortage in the area.

The area Member of Parliament is also said to have received complaints on the diversion of the rivers but did not take any action on this. This sequence of events reveals the levels of brazen impunity by companies such as the Patel Coffee Estates, which has for many years had the daring audacity to construct and maintain dams without adherence to relevant laws.

 

  1. Evacuation and Response- Disaster Management & Response

We take note of the prompt and a well-coordinated inter-agency rescue and responses which were realized thanks to the diverse mandates of the relevant state offices and non-state actors, involved. Thus the Kenya Red Cross(KRC) and National  Disaster Unit(NDU), in concert  with the  local administration, political leaders, security organs( National Police Service and Kenya Defence Forces),  County Government of Nakuru and members of public strived to rescue, identify and support victims.

 

Generally, victims and their support fell within the following general categories:

  1. Those who died. These have since been buried, save for a case of the contested child, whose matter is pending court decision.
  2. Those who got injured, whether physically, emotionally and mentally. These have received and are still expected to continue getting the requisite medical  and psycho- social support;
  3. Tenants who lived in the area and had their shelter curtailed. Most of these ended up camping at the Solai  High School.
  4. Land Lords who either rented or occupied their houses, which were partially or completely destroyed;  most of these integrated into the neighbourhoods
  5. Business people, whether tenants or land lords, who lost their investments in the process; still waiting for support.
  6. Land owners, especially in Nyakinyua farm whose produce and soil were completely washed away.  These are yet to be assisted.
  7. The special cases that went with the necessary support to women, children (for instance sanitary pads, food etc.), Persons with Disabilities and those living with HIV / AIDS.
  8. People who in whatever categories, who lost their valuables, certificates, official documents etc. It was intriguing to learn that some victims lost valuables through vandalism by locals.

 

And despite the positive response and support, the following administrative gaps were noted:

  1. Land owners (in plots and farms) and other integrated victims complained that they were yet to get the necessary material supports, like mattresses, blankets etc.
  2. Allegations of looting or diversion of the supplies and other kinds of materials meant for the affected victims.
  3. Claims of non-victims from the neighbouring communities like Kamukunji being added in the list for support and other benefits.
  4. Accusations that some of the land lords were earmarked to/ had received Ksh. 30,000 as opposed to the agreed Ksh. 100,000.
  5. Clear duplication of roles or challenges in the coordination for most of the stakeholder met on the ground to help in their own ways.

 

  1. Midterm to Long-term Solutions

We also take cognizance of the other efforts that are meant to address the medium and in the process the long term needs and issues:

  1. The Kenya Defense Forces draining out the affected and another dam by Patel limited so forestall in further risk to the locals.
  2. The initial assessments by the agricultural ministry on the extent of damages suffered on crops and land within the affected farms.
  3. The efforts by the county government to assess with a view to fixing new beacons of the plots affected in the shopping centre.
  4. The initiative by Kenya Power to restore the electricity posts and lines which were destroyed for reconnection of power to be considered.
  5. The efforts by the Huduma Centre to identify and support who lost crucial personal documents, such as the national identity cards.
  6. The Director of Public Prosecutions’ directive for the Inspector General of Police to investigate the causes and establish possible culpabilities, and submit a report in two weeks.

 

  1. RECOMMENDATIONS

Had we been equally responsive in addressing the questions of negligence and compliance raised above, we would have pre-empted all the disastrous losses and harms witnessed in this very unfortunate but preventable unfortunate tragedy.

It is against the above issues and interventions that we wish to make the following recommendations:

 

  1. Continuous and accountable humanitarian support

There is a need for continuous support (food, clothes, medical, psycho-social etc) to the affected and other needy cases within the locality. An affirmative action approach may be considered to secure the necessary supplies for men with special needs, for some lost their personal wares which were not part of the provisions availed.

Given the lots of remaining humanitarian stuff, there is a need to engage the county government of Nakuru and other local stakeholders for recommendations on how such resources can be optimized beyond this incident and locality. More important, the KRC and NDU and other agencies involved in the coordination of interventions should present a detailed report on how all the humanitarian resources were dispensed. For accountability is key in every public enterprise.

  1. Reconstruction: We call on the National and county governments and Patel Coffee limited to support the communities in re-constructing the damaged infrastructure:
  2. Boreholes: There is need to rehabilitate existing boreholes in the area to serve various villages with water
  3. Infrastructure: Need to rebuild destroyed infrastructure such as bridges, roads, schools, dispensaries that were affected
  4. Land reclamation and ownership: Mechanisms for the necessary state agencies to reclaim farms that were massively eroded and thus rendered unproductive. The Nyakinyua farmers should be provided with title tittle deeds.
  5. Houses: Mainly for the land lords/ owners in question. There should be an option of relocating those feeling unsafe and uncomfortable with resettling in the area.

Victims recommended that we should not consider repairing houses on site for their foundations were badly shaken and weakened.

 

  1. Compensation and rehabilitation

First, the Kenya Red Cross should undertake an immediate and transparent disbursement of the all immediate financial assistance earmarked to the following specific categories of victims:

  1. Tenants who lived in semi-permanent houses, made to receive a one off payment of  Ksh. 30,000;
  2. Tenants living in semi-permanent houses, to get a one off payment of Ksh. 50,000
  3. Land lords with permanent structures will receive a one off payment of Ksh. 100,000.

 

Moreover, the inter-agency committee should carry out a comprehensive assessment of the extents of major harms and damages suffered and consider other forms of remedies to victims.  Patel Coffee Limited should provide some resources for these reparatory programmes.

Finally, there should be a process of replacing the beacons for the affected plots, power reconnection to the necessary residents and replacement of all lost identification documents. This may also entail engaging the Kenya National Examination Council (KNEC) and other institutions to explore ways of re-issuing certificates to victims who lost theirs.

 

  1. Investigation and possible culpability

Further investigate Patel Coffee Limited, NEMA, WARMA for possible culpability; the alleged corruption in profiling and supporting victims; and culprits who vandalized victims properties.  The investigative process should independent, overboard and involving all the key stakeholders. The final report should be made and fully implemented with immediate effect.

 

  1. Assessment of other dams

We call for a speedy environmental and human rights impact assessment of the state of all other dams in the area, and for necessary action to be undertaken on these dams in accordance with the Engineers’ reports. The same should be undertaken to other dams in the country that fall within public and private spheres with a view to decommissioning the undesirable ones located upstream.

 

  1. Policy Actions

First, we need to review and harmonize the laws and mandates of the disparate state institutions mandated to manage disasters, water, environment and other resources.  Such would enhance coordination and reduce duplication of roles regarding disaster management. It would also facilitate systematic programming on disaster programming in line with the Sendai frameworks which would be pivotal in mitigating disasters especially those arising from systemic lapses in adherence to set rules of law and procedure.

 

The law would allow for the formation of a national board and county boards in each county. Perhaps, this tragedy should offer the momentum for the development and adoption of a national policy on business and human rights.  Finally, we should continually monitor and hold to account the different state and non-state institutions along the established laws and policies.