On the Nairobi Southern By-Pass

Earlier this year the government commissioned the building of the Nairobi Southern By-Pass. The 30km road, which is scheduled for completion in 2015, will run from Mombasa Road through Langata, Ngong, Dagoretti to Kikuyu. At 18.5 billion shillings, 85% of which is on loan from the Chinese government, the Nairobi Southern By-Pass represents a significant and much needed investment in infrastructure.

The building of the road is not without controversy. At the time the Nairobi Southern By Pass was commissioned it was promised that the road would not interfere with the Nairobi National Park. In fact the NEMA license for the building of road contains a clause that prohibits any encroachment on the Nairobi National Park. From the outset it is apparent that it was intended that the Nairobi South By-Pass would be park adjacent i.e. passing by the park without encroaching on its fragile ecosystem.

However it appears the government’s stance on the Nairobi Southern By-Pass vis-à-vis the Nairobi National Park changed when it was discovered that for a 4 kilometre stretch the path intended for the road is too narrow to build on as it is sandwiched between the park and residential homes. To resolve the problem the Cabinet, acting unilaterally, approved the hiving off of approximately 150 acres of the Nairobi National Park to make way for the road. A clear contravention of conditions of the NEMA license that prohibits the encroachment of the road on gazetted parks, in this case the Nairobi National Park.

The contravention of the terms of the NEMA license is not the only point of contention in Cabinet’s decision to hive off a portion of the Nairobi National Park for the By-Pass. In order for the government to hive of a portion of the park, the park has to be de-gazetted. The de-gazettement of the park requires parliamentary deliberation and approval, neither of which has taken place. So it appears that once again the Executive, in this instance the Cabinet, is making unilateral decisions outside its sphere.

Dr. Wilber Otichilo, MP for Emuhaya, raised the issue in parliament asking the Minister for Forestry and Wildlife to confirm: (a) Whether the Government had approved the de-gazettement of parts of the Nairobi National Park for the construction of the Nairobi Southern By-Pass Road against the recommendation of NEMA? (b) Whether the Minister was aware that de-gazettement of any national park in the country is prohibited by law without the approval of parliament?

To which the Minister for Forestry and Wildlife Dr. Noah Wekesa replied:

“The Government has approved the de-gazettement of only a strip of land along the edge of Nairobi National Park to be made available as a transport corridor to accommodate the Nairobi Southern By Pass Road. I am aware that de-gazettement of any national park land is prohibited by law unless it is done with the approval of Parliament...the issue of any de-gazettement of any national park land is the preserve of Parliament and not that of my Ministry. Parliament deliberates on the merits and demerits of any de-gazettement of any proposal before a decision is made.”

The minister’s statement is at best ambiguous and contradictory and at worst completely illogical. The strip of the park is part of park, if de-gazettement of any national park land is the preserve of Parliament it follows that de-gazettement of parts Nairobi National Park to make way for the by-pass would require parliament’s approval. If parliament has not approve the de-gazettement of the park, how can is it possible that that the government has approved it?

The Minister’s response to what appears to be an unlawful de-gazettement of sections of the Nairobi National Park raises issues of following the rule of law, due process and adhering to separation of powers. The Cabinet’s unilateral de-gazettement of parts of Nairobi National Park also sets a dangerous precedent for the future of other national parks. And while not everyone may agree on whether or not sections of the park should be hived off to make way for the road, I’m sure that most would agree that due process and the rule of law should be followed in the making of the decision.

Another important issue of raised is how the 4 kilometre stretch of became too narrow for the intended road i.e. the illegal allotment of the land meant for road reserves to developers, and whether the government had considered reposing the illegally allotted land, but that’s another post…

Posted by Mzalendo Editor on Aug. 17, 2012

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