No amount of green electricity, good press or generous development projects can outweigh the
violation of a nation’s constitution by politicians or corporations.
This was the message of Justice Peter Muchoki Njoroge’s verdict, issued on October 19 from
a modest courthouse in northern Kenya. The judge knows his subject well, since he has heard testimony and received evidence from the opposing parties on numerous occasions over the course of the last seven years.
The conflict concerns the land on which 365 gigantic windmills now stand. On one side is the Lake Turkana Wind Power Project, which took possession of the land, and the politicians that gave it to them. On the other are local tribal communities, who say they had never heard of the Lake Turkana Wind Power Project before their land was taken from them.
The case may end up providing a lesson as to how green energy projects should be undertaken in the rest of the world. And in the middle of it all is the Danish company Vestas, which built the wind turbines and owns a 12.5% stake in the consortium known as the Lake Turkana Wind Power Project.
Seven years have passed since, in 2014, the residents of Laisamis and Marsabit in northern Kenya sued their local politicians, public prosecutor, the national land commission and, chiefly, the Lake Turkana Wind Power Project, calling for a halt to the 620 million-euro project.
The money behind the project comes from several international investors,including:
- The Investment Fund for Developing Countries (IFU)
- The Export Credit Fund (EKF)
- Vestas, the constructers of the wind turbines and owner of 12,5 percent of the shares in the project.
Sources: Lake Turkana Wind Power
In spite of Justice Njoroge’s stern words, the wind farm will remain standing after the verdict, since the green energy it provides is in the public interest of the Kenyan people. But the deed to the land is “irregular and unlawful,” according to the judgment of Justice Njoroge and his two colleagues on the bench.
This means that the politicians responsible now have one year to ensure that the sale of the land is legitimate. In addition, the consortium behind the Lake Turkana Wind Power Project must ensure that future risk assessments – so-called due diligence – are much more “careful and foolproof”, according to the decision.
The case is not completely closed yet, since it is unclear whether the consortium will mount an appeal. In an email to Danwatch, its administrative director, Phylip Leferink, wrote:
“LTWP is still in the process of studying the ruling. We are, therefore, not yet in a position to determine the next steps”.
Vestas declined to comment on the court’s decision, but referred Danwatch back to the Lake Turkana Wind Power Project.
March 2016 – The Vision
The view stretches over kilometres of barren, stony desert, interrupted only by small clusters of acacia trees huddled against the strong winds. Along the line where the sky meets the desert, a cloud of dust rises as nomads lead a flock of camels to pastures farther up the mountain, where the rock-strewn cliffs give way to verdant grassland.
I visit Lake Turkana with a photographer in 2016 because I have heard that something has
gone awry with a widely-praised green energy project: one that Vestas, the Danish Investment Fund for Developing Countries, and Denmark’s Export Credit Agency have promised millions to and have celebrated in the press. We decide to visit the four local tribal communities to try to get to the heart of the matter: What did they know about the wind farm project, and when? Perhaps they just want a share of its profits…or perhaps they were never consulted to begin with.
Read the investigation: A people in the way of progress
The sun beats down upon us, but we don’t feel it because of the wind, which blows stronger
here than anywhere else in Kenya. Here, in 2005, in the corridor between an extinct volcano, Mount Koulal, and the blue-green Lake Turkana, two Dutchmen had a flash of inspiration. The friends, Harry Wassenaar and Willem Dolleman, saw potential; they undertook analyses and discovered that the wind in this corridor could increase Kenya’s energy production by 15
to 20 percent. Clean, green energy, no less.
At that time, only 26 percent of the total population of 35 million in Kenya had access to electricity. It was not long before governments, international investors and corporations got on board with Wassenaar and Dolleman’s vision: on April 3, 2007, the Lake Turkana Wind Power Project writes to Marsabit County, asking to take possession of twelve square kilometres of land along the shores of the lake. In August the same year, Marsabit County transfers the land to the consortium. The vision will be a reality, and the Danish firm Vestas will build the windmills.
Eight years later, on October 20, 2015, Vestas writes in a press release that Alphabet Inc., the parent company of Google, will purchase the 12.5% stake belonging to Vestas in 2017, when the project is expected to be completed. The Global Wind Energy Council, an international forum for the wind power industry, calls it a “leading example” of how businesses invest in green energy in order to obtain advantageous economic returns and scale up sustainable energy production.
2021 – The gifts the majority didn’t want
Today, 365 enormous windmills dot the rocky landscape beside Lake Turkana like monuments to a lost civilization. Every day, these turbines deliver green energy to between eight and nine million Kenyans, accounting for 16-17% of Kenya’s total energy consumption, according to Phylip Leferink, the administrative director of the consortium.
Since its inception, public and private investors have contributed more than 4.6 billion Danish crowns to the project, and the Lake Turkana Wind Power Project has won several prizes for innovation, sustainability, and for being “best in class” among energy and infrastructure deals. The project quickly became part of Kenyan President Uhuru Kenyatta’s Vision 2030, a program promising to deliver Kenyans a “high quality of life” before the end of the current decade.
Vestas not only built the windmills; the company is also present through CSR projects in Loiyangalani, a small village close to the project. Over the years, the windmill project’s foundation, called Winds of Change, has built schools with solar panels enabling children to go to class in the evening, wells to water livestock, and a significant expansion of local road networks. Before this, the desert was nearly impassable. Today, 350 kilometres of roads provide a paved path for the heavy trucks ferrying windmill parts through the desert from Laisamis-South Horr to the shores of the turquoise lake.
On the surface, all seems well; but upon closer inspection, problems begin to appear. From the beginning, the Lake Turkana Wind Power Project promised 2000 new jobs. Unfortunately, this proved to be somewhat of a mixed blessing. Rumours of the new positions spread throughout the region, and new arrivals began streaming into an area that
was accustomed to making do with little. Foreign governments and NGOs had distributed food aid to the region for years, and pressures exerted by the increasing numbers began to reignite old conflicts. Livestock theft, in particular between the Turkana and Samburu tribes, had long been a source of tension, and was not improved by the new arrivals. The wind power project hired guards to deal with these issues, but this seemed to cause only new problems when locals accused the guards of abuses. For his part, Phylip Leferink maintains that the arrival of the guards brought order to the region.
Local residents are not unequivocal in their gratitude for the work done by Winds of Change, according to Mali Ole Kaunga, director of IMPACT, an NGO working to advance the interests of the various tribal communities in the area.
To begin with, the green energy produced by the wind farm is not for them, but is transmitted via huge power lines to Suswa, 428 kilometres away, he says.
“The vast majority of them are unhappy with the windmill project. All the households in Marsabit run on dirty energy, and yes, there are roads and health clinics, but that’s because the consortium needs them to transport windmills and care for their own employees,” says Ole Kaunga.
Mali Ole Kaunga recognizes that local residents value the new schools in the area, but in reality the CSR projects are part of the problem, he believes. They distract from the issue that has led the inhabitants to sue the consortium and their politicians: the wind farm is on land that local tribes believe they have rights to.
“Health and education are the responsibility of the government. CSR projects cannot compensate for the value that corporations are deriving from being here, and they shouldn’t be used to pacify the residents into giving up their rights,” says Ole Kaunga.
He identifies the right to be heard and compensation for the surrender of land claims as examples of these rights.
March 2016 – The Conflict
The chairs before the judge’s bench are filled with men and women in suits, seated close together in row after row. The air is heavy and stagnant, even though all windows are wide open behind their protective grates. The court session is delayed a moment while the
judge weighs whether my photographer colleague and I may observe. I am permitted to stay, but the photographer is sent out, and a few more people find seats in the last rows. In the open doorway, women in traditional necklaces, jewellery and wrap dresses stand alongside men in work clothes and suits. Behind them, a line of local tribal members stretches far down the street.
They squat on a slope outside. Some hold walking sticks; they have walked for as much as three days to get to the courthouse in Meru for this moment, they say. For centuries their tribes have lived side by side in northern Kenya. Their coexistence has not always been peaceful or without conflict, but today they are united. They are suing the Lake Turkana Wind Power Project and the county council in Marsabit for giving their land away without consulting them.
The plaintiffs are from the Rendille tribe, but they claim to represent the tribes of the entire area: Rendille, Samburu, Turkana and El Molo. They are nomads who have lived in the region for thousands of years, settling wherever the climate and provisions were best for man
and beast. They live off the land and use it for ceremonial and spiritual purposes, which they
say makes them the “original and true owners” of the land.
In the courtroom, everyone listens to Justice Njoroge. The parties are exhorted to find a solution, and court is adjourned.
Outside the Meru Land and Environmental Court stands Abdi Hassan, a lawyer for the consortium behind the Lake Turkana Wind Power Project. A group of men in shirts, trousers and red shawls shout and wave their telephones at Hassan, but he dismisses all their accusations. The consortium has repeatedly insisted that the project proceeded after careful consultations with the four tribal communities. Abdi Hassan says that the lawsuit is merely “camouflage.”
“What they want is revenue that is accruing from [the windmill] project,” he says, as the last part of his sentence is drowned in the sounds of protest from the men around him.
I cross through the crowd outside the courthouse to find Roger Sagana, the prosecutor in the case, to ask if Hassan is right. Sagana dismisses it.
“No, actually the issue of revenue is not an issue at all in this particular dispute,” says Sagana.
“This was community land that belonged to the greater part of Marsabit County, with the Rendilles traditionally inhabiting the land. And there is a process that Kenya has in the Trust Land Act for the conversion of community land into private lands. And this process involves quite extensively public participation, it also involves compensation, and it is an elaborate process that was not followed at all,” he insists.
The promises made regarding jobs, health clinics, schools and wells for livestock in the parched regions cannot outweigh a central point: that the tribes do not believe they were consulted before their land was given away to the wind farm project.
A few days later – March 2016
We sit in the broad shade of a group of trees in the town of Loiyangalani, by the shores of the Lake Turkana. Behind Christiana Saiti walks a man in a hat and shawl. A boy wearing nothing but trousers runs behind the man down to the lake, where the waves rise with the wind. The lake’s fishery provides food to the area’s fishing families, who live in domed clay huts along the lake, putting their boats and nets in the water every day for centuries.
This is where the El Molo people have lived since they began to migrate here from Ethiopia around 1000 BCE, says Christiana Saiti, spokesperson for El Molo Forum, which represents the El Molo people. Today, the town has approximately five thousand residents and very
“There was no free, prior and informed consent on the issue of land especially,” says Christiana Saiti about the wind farm project.
“We didn’t agree to that size of land to be given to the consortium. And yet, attached to that parcel, there is another extra parcel, which they say is private.
Private belonging to whom? Our land is never private, it is public land. The land belongs to the communities. It is communal land, and it is in our constitution,” she says.
Farther in from the coast live the Rendille, Turkana and Samburu peoples, nomads who have lived in the region for centuries following their herds of goats and camels. Over the course of ten days, we interview 24 members of the local tribal communities. All say independently of each other that they had never heard of the windmill project until after 2007.
At that point, in August 2007, the Town Planning Committee for the region of Marsabit had already gathered around a table in the principal town of Marsabit and crafted the agreement that gave the land to the wind farm project.
But Marsabit is 264 kilometres from Lake Turkana, where the local tribes had no idea what
had just happened. Fourteen years later, this will prove decisive.
In 2016, Danwatch interviews representatives from several nomadic tribes i the areas around Lake Turkana. Photo: Shafiur Rahman / Danwatch.
2017 – Costly Delays
The windmill project is ready on schedule in 2017, ten years later. The transmission lines needed to convey the power from the turbines to Suswa and onward to the citizens of Kenya, however, are not. Ketraco, the national power company, is charged with the construction of the transmission lines, so they must pay penalties for the delay to Lake Turkana Wind Power.
As a public utility, however, the bill is really being paid by Kenyan taxpayers. In other words, consumers that in many cases lack electricity to begin with are now paying for green energy that never makes it to the outlets in their walls.
The delay eventually costs the Kenyan taxpayers 1.2 billion Danish crowns in all during the years when the power generated by the windmills is unusable. The expense is financed by making electricity more expensive.
The delay has other consequences, too. Alphabet Inc. withdraws from its pledge to buy Vestas’ one-eighth stake in February 2020 because of the setbacks with the transmission lines, Vestas tells Reuters.
Pressure had been mounting on Alphabet on another front, however. The company’s CEO, Sundar Pichai, received a letter from 38 “concerned investors” who read the Danwatch investigation “A People in the Way of Progress” about local tribes’ resistance to the wind farm and want Alphabet to drop its investment in the project.
“I think Danwatch’s report should make Google seriously reconsider their plans to buy out Vestas,” says Steve Heim of Boston Asset Management, an Alphabet shareholder. “Google should not be associated with violations of indigenous people’s rights in Lake Turkana.”
Whatever the reason, Vestas is forced to seek other potential buyers. Today, Vestas still owns 12.5% of the shares in the consortium.
It is not until two years after the completion of the project, in July 2019, that President Uhuru Kenyatta can declare the wind farm open, accompanied by congratulatory speeches and a gigantic brass band.
“The successful implementation of Lake Turkana Wind Power demonstrates Kenya’s outstanding credentials as an investment destination in Africa and is a perfect example of the immense potential of the public private partnership model of implementing development
projects,” says the president.
Just over two years later, this “successful implementation” is found by a court to be in violation of the country’s constitution.
October 2021: The Verdict
Back at the Meru Land and Environmental Court on an October day in 2021, seven years after the case was filed, the final verdict is rendered. The three justices, Peter Muchoki Njoroge, Jemutai Grace Kemei and Yuvinalis Maronga Angima, have once again listened to
arguments and witness testimony.
They have voted, and their decision is unambiguous.
The land was transferred unlawfully. A divisional board consisting of local and national politicians and members of the local communities was never established to ensure that all parties were heard. There were no notices posted in the Kenya Gazette, a government publication disseminating information to the citizenry, business community and public institutions as required by law regarding legislation and other matters of public interest.
Adequate public hearings were not held, and the relevant government minister did not take action to correct any of these matters. Therefore, write the justices in their decision, the consortium’s titles to the land are declared “irregular and unlawful.”
The politicians responsible have one year to renegotiate the rights to the land. If their efforts do not succeed, the property “shall revert to the community,” say the justices.
The Lake Turkana Wind Power Project does not escape blame, either.
“As an investor in a project involving billions of shillings, it should have undertaken careful and foolproof due diligence. The court has, however, taken into account that the impugned project is already complete and is supplying a substantial portion of the national electricity needs,” the verdict says.
In a statement to Danwatch from Lake Turkana Wind Power Project, its administrative director, Phylip Leferink, says that the company is studying the verdict, and that time will tell whether any of the parties seek an appeal.
“It would appear that the judges sought to strike a balance between ensuring strict compliance with the law, and preserving a national government and Vision 2030 project. It will be interesting to see how the rectification will be done or if any of the parties will seek to appeal the judgment,” he writes.
Companies have a responsibility, too
Steve Heim at Boston Asset Management supports the Kenyan court’s verdict, because “it provides access to remedies for the impacted Indigenous Peoples.”
He believes that the directness of the court’s statement demonstrates that investors and companies need to ensure that indigenous peoples grant “explicit consent” before they move into new areas.
“The Court stated it well: ‘[Lake Turkana Wind Power Ltd.] should have undertaken careful and foolproof due diligence’,” writes Heim in an email to Danwatch.
At the Danish Institute for Human Rights, Birgitte Feiring, head of the Departement for human rights and development, likewise emphasizes the need for businesses to investigate possible problems ahead of time and ensure that consultation takes place with indigenous peoples before their land is appropriated for infrastructure projects.
“The decision illustrates how you will run into huge problems if you don’t follow the proper procedures for acquiring land, especially in cases where indigenous peoples are involved. If you don’t identify the correct people and groups as owners or users of the land, then you might for example not identify the right camel routes, and so the risk increases that you violate people’s rights. And this represents an increased risk for businesses as well,” she said, calling attention to the need for due diligence from both governments and companies.
In this case, the justices chose to place blame with the local politicians instead of the consortium, but their decision included a reprimand to the wind farm project as well.
“We often see that courts choose to acquit companies and convict governments instead, since the state has the primary responsibility to uphold human rights. But businesses also have a responsibility to investigate whether their projects are in conflict with human rights. That is why the court asserts that the consortium behind a project worth billions ought to have exercised greater vigilance,” says Feiring.
Vestas declined to comment for this article.