Infighting brings environmental tribunal to a standstill

Key members of an environmental appeals tribunal are engaged in a war of attrition which has effectively paralysed the operations of the all-important National Environment Tribunal (NET).

The infighting that started in early 2017 has seen sittings of the quasi-judicial body affected for months.

The Sunday Nation has seen a notification that was sent to litigants on July 2 informing them of the postponement of appeals that were pending before the tribunal.

“We are unable to proceed with the week’s appeal sessions due to logistical challenges. Kindly bear with us as the situation is rescued. All activities for the week shall be scheduled and a notice issued. We apologise for the inconvenience caused,” the notification reads.

COURT BATTLES

By the time of going to press, litigants who spoke to us said they had not been notified of new dates.

This latest suspension of sittings comes after a disruption that is said to have lasted nearly eight months, until March 2 this year. Then, the tribunal’s sittings were disrupted as members took their battles to court to force out the chairperson, the University of Nairobi law lecturer Jane Dwasi.

Members Mohammed Balala, Christine Mwikali Kipsang, Andrew Mwamuye and Waithaka Ngaruiya wanted the chairperson to quit, claiming that her term had expired. The contention was the subject of litigation in the Employment and Labour Relations Court review No. 35 of 2017, which was ruled in favour of Dr Dwasi. The Judicial Service Commission (JSC), which appoints the chairperson, sided with Dr Dwasi in the case while former Environment Cabinet Secretary Judi Wakhungu wanted the chairperson replaced.

Chief Registrar of the Judiciary Anne Amadi, however, said the Judiciary is not aware of any infighting at NET. “No infighting has been brought to the attention of the Judiciary… There is no impasse,” said Ms Amadi.

MISBEHAVING

This is despite a letter by Dr Dwasi to Chief Justice David Maraga dated May 7 and received at the Judiciary on May 9, a copy of which the Sunday Nation has obtained, in which the chair questions the integrity and suitability of her colleagues to continue serving as members of the tribunal.

“I am writing to request the JSC to consider the continued misbehaviour of members, which has seriously destabilised the tribunal, declare them unfit to serve as judges or members of the tribunal, terminate their term under Section 125(4c) of the Environmental Management and Coordination Act (EMCA) and request the ministry (of Environment) to appoint their replacement through a competitive process that will attract people of integrity,” the letter reads.

Without explaining the situation with regard to the chairperson, Ms Amadi said that vice chairperson Balala has been chairing the meetings.

SGR PHASE2

NET is a creation of the Environmental Management and Coordination Act (EMCA), 1999, with the mandate to review administrative decisions made by the National Environment Management Authority (NEMA) relating to issuance, revocation or denial of licences and conditions of licences.

The tribunal also has powers to change or give an order and direction regarding environmental issues in disputes and provide legal opinion to NEMA on complex matters where the Authority seeks such advice.

In fact, no environmental conflict can proceed in the High Court without first having passed through NET. It exercises both judicial and quasi-judicial functions.

Among the major environmental cases which have lately been brought to the tribunal are appeals against NEMA licences on the implementation of Phase 2A of the standard gauge railway, particularly the decision to route the railway through the Nairobi National Park and the Sh200 billion Lamu coal plant which has caused uproar among the surrounding communities.

CONTESTED

Sources at NET said a section of members had taken a strong position on the two appeals, to the dislike of the Ministry of Environment which is said to be working with the opposing side to derail NET operations.

According to Ms Amadi, NET had 48 cases. Between January and June, it cleared 19 cases. “So 29 cases are currently before it at various stages of determination,” she said, adding that the members work part time.

Though the tribunal is created by EMCA, it is under the supervision of the Judiciary, which also recruits the chairperson.

Disruption of NET’s operations therefore means all environmental matters arising from administrative decisions by NEMA have also come to a halt, and contested development projects remain suspended.

Former environment CS Wakhungu last year swore an affidavit in support of the removal of Dr Dwasi, stating that the embattled chairperson’s term had ended and there had been no renewal by JSC, a contention that was disputed by the Judiciary.

SUCCESSOR

The former CS also said there had been complaints against the chairperson, and that the ministry of Environment through a letter dated October 13, 2017, to JSC “expressed their dissatisfaction with the performance of Dr Dwasi…(and) in the circumstances she was not suitable for reappointment.”

The matter was however ruled in favour of Dr Dwasi on March 2, 2018, with Justice Nelson Abuodha pointing to “power games” as one of the causes of the upheaval at NET.

“The National Environment Tribunal is a very important tribunal in our environmental governance. It would therefore be irresponsible for the court to sit back and watch helplessly as power games take stage between the respondent (cabinet secretary for Environment) and the interested party (JSC),” the judge said.

Justice Abuodha had directed that Dr Dwasi remains in office “in transitory capacity pending the recruitment of her successor.” But the ruling has not calmed down the protagonists, if Dr Dwasi’s May 7 letter to Chief Justice Maraga is anything to go by.

INTEGRITY

In the letter, Dr Dwasi pointed to a completely dysfunctional tribunal where members sabotage sittings by absenting themselves or arriving after hearing hours.

She also accused her colleagues of reducing the tribunal’s sittings to only the first and last week of the month, which according to her means they are not committed to work, and delaying rulings for more than a year, among other charges.

“These members have introduced, in the environment tribunal, levels of questionable integrity, hatred, acrimony, absenteeism and collusion that the tribunal has not witnessed before. There have never been anything like what is happening now in this tribunal,” the chairperson laments in the letter to the CJ.

When asked about the embattled chairperson’s letter, Ms Amadi avoided to directly confirm its existence.

“If the said letter was addressed to the Chief Justice, then the matter is before him. He will deal with it,” she said.