Indigenous communities in Kenya still tied up in court proceedings over the Lake Turkana Wind Project
On 22 May 2023, Indigenous Peoples had a victory in the Lake Turkana Wind Project (LTWP) case when Kenyan Environment and Land Court in Meru declined the Review Application filed by the LTWP. Essentially, this means that the land titles in question are cancelled because the time extension requested by LTWP in 2021 was denied with the court maintaining that the LTWP deeds are “irregular and unlawful”. LTWP have now filed yet another Notice to Appeal.
The case, which began in October 2014 and finally ended on 19 October 2021, found that the title deeds were acquired irregularly.
Indigenous Peoples in the area have long complained that this large wind energy project, among other issues, never followed proper free, prior and informed consent (FPIC) protocols or proper compensation when the land was acquired and violated current and former land acts. The Marsabit County Government, Attorney General, Chief Land Registrar and National Land Commission were then given 12 months to correct the process or else the deeds would automatically be cancelled and the land would revert to the community.
Five months after the 2021 ruling, LTWP asked for a review of the judgement on account of new evidence. They argued that according to the Community Land Act of 2016, Marsabit County Government, Attorney General, Chief Land Registrar and National Land Commission cannot regularize the land acquisition process as it is only the communities themselves that can initiate registration of the land. LTWP also asked for an indefinite time extension to be able to comply with the judgement.
It is important to note that LTWP is not disputing the fact that the land acquisition process was irregular.
Lack of information, transparency, communication and options
The current situation in the communities affected by the LTWP is very bad. Apart from the loss of land and forced relocation they have endured for years, the situation has intensified poverty and increased social problems, and the influx of outside workers to build the project brought with them new problems, such as women having to resort to prostitution to make ends meet.
On the legal and financial side, three of the four plaintiffs have passed away, leaving only one plaintiff alone with the case. The communities have not been informed that the case is under review. They have also been left with a huge debt in lawyers’ fees from the initial case that lasted seven years, and they have no further funds to pay for a lawyer to represent them in this new appeal process.
Moreover, the four communities affected by LTWP are divided and in conflict over land and resources. The LTWP project has exacerbated this division by giving some compensation and benefits to only certain villages/communities, a common tactic by companies who wish to exploit Indigenous land.
The way forward for the Indigenous communities affected
The communities recognize they need to unite their voice and put in place a governing structure and plan. This will help them define how to receive compensation and benefits as well as have a strong decision-making process in place on how to distribute them to all affected communities. It will also give them a stronger position for negotiation and engagement when and if compensation is provided and when new investments come.
It is therefore urgent for them to meet, discuss and strategize on how this could be done concretely.
There are currently a number of investment projects for wind farms and hydropower plants at the proposal stage on Indigenous Peoples’ land in Kenya. This further makes learning how to fix the process of how the LTWP project was planned and implemented important as it has often been seen as a darling project by all Kenyan and foreign partners, including various governments, involved.
All the projects are meant for export mainly, resulting again in no direct benefits for the communities: like in the LTWP, where the electricity produced is not going to the communities. In its current state, LTWP is unfortunately an example of an investment that left indigenous peoples behind and even in a worst situation than before. A good way forward could be to ensure benefit sharing with the communities affected – by for example leasing their land and giving them a percentage of the benefits on an annual basis, ensuring that they are part of the project, and ensuring that they get directly access to the energy produced.
For more on the LTWP project and the related Indigenous Peoples' rights and human rights violations, see our reports and articles here:
Photo: Windmills at the Lake Turkana Wind Power project site. Credit: J M Ole Kaunga / IMPACT