Water is life! Water is a basic necessity. Some drink it directly from the source, others have found ways to channel it to the comfort of their homes. In higher sophistication, some purify and treat their water for domestic use while others enjoy it as mineral in branded bottles. Water is a factor of development. Ancient civilisation in Mesopotamia (Modern day Iraq) and Egypt began along the rivers. Today, human settlement and regeneration of existing settlements can only be undertaken on the assurance of availability of a reliable source of adequate water.
Water is a major source of human conflict. some conflicts have escalated to full blown wars. Since the second world war, over 200 agreements have been concluded on sharing of water resources.
In 1948, After five weeks of mediation by the World Bank, India and Pakistan entered the Indus Water Treaty on how to share the waters of Indus River. In 1979, Anwar Sadat declared that Egypt would never go to war again except over water. The extent to which societies and nations are willing to go to secure water resource underpins the importance of water as a factor of development. Kenya is preparing a launch pad to affirm her status as a 2nd world nation. She must plan for and project the water needs to support the projected development. To this end, multiple dams are proposed to be erected around the country. Needless to state, Construction of a water dam is the most distractive of all the strategies of harnessing water resources.
In Gatundu North in Kiambu County, Athi Water Works Development Agency - AWWDA plans to construct Ndarugu II water dam with a capacity to supply 50,000m3 per day. The dam shall be built at the intersection of Githobokoni and Ndarangu rivers. The dam shall sub-merge Githobokoni Coffee Factory and a sizeable portion of Kanjuku Primary School. The dam shall disrupt road network in the area when three intersections of six main roads subsumed by the dam. Communities in Gatundu North have been undertaking two projects, to tap water at the Ndarugu water fall and pump the water by gradient to the distant sub locations of Kamwangi, Nyarang’ara, King’oo, Mang’u, and Mukurwe. Ndarugu II Water Dam will render these community projects infeasible thus wasting decade long community labour and effort to realize water sufficiency. According to AWWDA, over two hundred (200) households shall be affected. Their homes, crops and other developments shall be submerged in water. People’s settled way of life shall be dislocated and they have to look for flew homes. The elderly, who need psycho-social support from the social set-ups, will have to look for and build new friends to grow old with, in their new settlements.
Article 10 Constitution of Kenya, 2010, commands every person to observe the national values and principles of governance. They include, respect for the rule of law, public participation, sustainable development and human rights (including right to property and respect for the inherent dignity of man). In undertaking a project such as Ndarugu II dam, the government is bound by article 10 and article 196 of the constitution to conduct effective public participation.The citizens must be aware of the nature and the impact of the project.
Further, the concerned authority is obliged to conduct an environmental impact assessment and prepare a report. That report should set out the impact of the project on the natural environment, the built environment and the social infrastructure. The report should either propose or require the developer to propose a pre-construction and a post-construction plan to mitigate the effects of the damage on the environment and the social infrastructure. For instance, developer may make provision for alternative roads, coffee factory and a water source for the citizens Communities that depended on the submerged roads, coffee factory and the two rivers as a source of domestic water. Mitigation may mean building new social infrastructure in lieu of the damaged one(s).
The government and the developer will not appreciate the impact of the project on the communities until the affected people express themselves. As such, Public participation should not be real and not an illusory, formalistic exercise to tick the boxes. Public participation exercises is a chance for the citizenry/community validate of the project. There should be as many as it is necessary. Erecting Ndarugu II dam, affects people’s lives, their settled way of living, their property and social amenities and water. Public participation on an issue affecting water will fail to meet the required threshold if it is not conducted everywhere, including in mosques as held by the High Court of Kenya sitting at Kiambu in Constitution petition no. 54 of 2018).
As at 12th January, 2023 AWWDA had not informed the affected families of its intention to construct Ndarugu II. The families affected by the dam, directly or indirectly, should unite and seek professional services inorder to lobby for the best relief to their disrupted lives if the dam will be erected. Compensation is not a panacea for all forms of disruptions of people’s lives. But,it is the only way to ameliorate the pain of disrupted living. Therefore, compensation should not only be sufficient, but adequate, to resettle the families in a new life. [The author is an Arbitrator and an Advocate of the High Court of Kenya. - mwangi@mmasadvocates.com].
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