NMS Must Go

The Environmental Management and Co-ordination Act (No. 8 of 1999) is one of the most mind-numbingly boring pieces of legislation to ever manage from the National Assembly of Kenya. It is written in such a stodgy and turgid style that only a masochist would read it for fun. It's ennui-inducing text notwithstanding, it is a law of the Republic and must be obeyed whenever someone sets out to do a project in Kenya. It binds everyone, regardless of their station in life. Barring the nitpicking of members of my tribe, where it says "shall", it commands one to do or refrain from doing that act.

It states, at section 58(1):

Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.

The Second Schedule classifies projects into low-risk, medium-risk and high-risk.  In my opinion, what is being undertaken in Uhuru Park is a low-risk project (small scale rehabilitation, maintenance and modernization of projects), for which a project report should have been submitted to NEMA and, should NEMA have directed, an EIA should have been undertaken. In flagrant disregard for section 58, none of this was done and it has taken a petition by the Communist Party of Kenya to put a stop to the goings on in Nairobi's largest urban green space.

We have been fed tonnes of propaganda about how military officers are so by-the-book and honest that they will right the developmental ship of state from its dangerously parleys state. I have expressed my scepticism about the soldiers donning mufti and playing at civilian administration. I am not persuaded that soldiers - whose business should be to high wars - are well-suited to the mess coalition-building of varied interests that is necessary to the running of a city or the management of its affairs. Even senior military officers live under the rubric that all orders of their commanders-in-chief must be obeyed, regardless of the constitutional fig leaf of "lawful orders". The general in charge of the Uhuru Park project has not demonstrated a sufficient capability in civilian coalition-building to believe that he is capable of complying with anything other than the direct orders of his commanding officer.

We know enough about the disfunction in NEMA and other regulatory bodies to know that the cost of undertaking any project in Kenya is orders of magnitude higher than it needs to be. The solution, however, is not to undermine the laws of the Republic no matter how noble a project is claimed to be. The Uhuru Park fiasco is proof that military generals lack the creativity needed to undertake any major project in the city. Messrs Sonko and Kidero were terrible governors but they understood the need to consult widely and involve all affected parties when undertaking projects, and when the projects foundered for whatever reason, they adjusted, adapted or pulled out altogether, which is the essential component of democratic development.

The poor man charged with improving physical planning services in Nairobi City is incapable of consulting effectively; has no clue about the political and social impacts of his my-way-or-the-highway approach to leadership; believes that the ends justify unlawful means; and will not admit that he is in waters he can't navigate or that his appointing authority was wrong to appoint him in the first place. The Environment and Land Court may yet reverse its injunction against the Uhuru Park project and if it did, that would be entirely in keeping with the doctrine of the rule of law. The reason why the injunction exists in the first place is that the project proponents in Uhuru Park shat on the rule of law. Whether or not the injunction is lifted, the Nairobi Metropolitan Service cannot continue to operate. It should be disbanded and its officers barred from ever serving in the public service again.