Blog entry

Six years later, a criminal investigation into illegal environment permits finally begins in Romania

The company behind deforestation

Since its establishment in 2012 through the merger of decade-old power plants and coal mines, OEC has often found itself in situations where its actions were inconsistent with environment legislation.

Romania joined the global effort to limit global warming below two degrees Celsius by committing to a transition to a low emission economy. Even though OEC is a majority state-owned company, it still decided to expand its lignite mines and increase coal production.

The mines neighbour villages, agricultural lands and forests. When the company’s expansion plans stalled as owners refused to sell land, or complex permits were required to develop further, state institutions removed the obstacles that had blocked these processes.

In the village of Runcurel, where the government decreed the Jilț Nord mine expansion a project of ‘public utility,’ direct negotiations with land owners was eliminated, and the state became the owner of the land overnight. More than one hundred households will be expropriated for the expansion of Jilț Nord mine, and similar decisions were issued for the nearby Jilț Sud and Roșia mines.

Stepping further into the forests

The Government Decisions against property rights were just the beginning. The expansion required the removal of hundreds of hectares of forest, some neighbouring Natura 2000 sites, a network of protected areas created for the long-term protection of wild plant and wildlife species and the habitats in which they are located.

According to the Forestry Law, deforestation of areas measuring less than a hectare require just a decision of the Territorial Inspectorate of Forest and Hunting (TIFH, now the Forest Guard), but for areas of more than ten hectares, a Government Decision is needed.

OEC interpreted the provisions of the law in their favour, slicing the land needed for the expansion of the lignite mines into plots of less than one hectare to avoid environmental and social impact studies and the issuance of a Government Decision.

Taking it to the court

In 2014 Bankwatch Romania initiated a series of lawsuits for the annulment of these documents. In 2015, the deforestation decisions for the expansion of Pinoasa and Roșia mines were annulled, and in 2016 the decisions for the Roșiuța mine were annulled in the first court.

Not all cases proceeded as smoothly, however. Some of the actions have been declined to different courts, while others have been rejected. Different rulings were made on almost identical complaints concerning similar situations.

January 2012 – September 2013:TIFH Râmnicu Vâlcea issues over 100 deforestation decisions for Roșia, Roșiuța, Pinoasa, Rovinari, Jilț Nord, Tismana 2, Jilt Sud mines
February – November 2014:Bankwatch Romania files lawsuits for the annulment of deforestation decisions for Roșiuța, Roșia, Pinoasa, Rovinari mines
November 2014:contested Jilt Sud
December 2015: Deforestation decisions for Roșia mine are definitively annulled
June 2016:Deforestation decisions for Pinoasa mine are definitively annulled
September, 2016:Bankwatch Romania asks the Ministry for Environment to send the Control Unit to verify the TIFH’s activity
November, 2016:The Ministry of Environment replies, requesting additional information from TIFH Râmnicu Vâlcea
March 2017:Deforestation decisions for Jilt Sud mine definitively annulled
June, 2017:Deforestation decisions for Roșiuța mine are definitively annulled
August, 2017:A new message from the Ministry of Environment: the TIFH inspection is included in the 2017 Programme for thematic controls
December, 2017:The decisions for Jilț Nord are annulled in the first court; the Court does not accept a Bankwatch Romania lawsuit against the Tismana 2 decisions
March, 2018:Deforestation decisions for Rovinari mine are definitively annulled; Bankwatch Romania asks the Ministry for Environment for an update
August, 2018:The Control Unit sends its inspection report to the criminal investigation bodies after finding irregularities at TIFH

The caravan goes on

The slow evolution of the lawsuits allowed some areas to be deforested before the trials were finished, as the decisions were not suspended.

This was the case for the Roșia mine. OEC issued a statement to explain that ‘those areas were deforested in compliance with the TIFH decisions’ and that the final sentence of the court ‘has no effect on the continuation of OEC’s activity’.

To avoid repeating such situations in the future, Bankwatch requested that the Ministry for Environment send the Control Unit to verify the Forest Guard’s activity. After almost two years of delays, the Control Unit performed a thorough analysis at Râmnicu Vâlcea’s Forest Guard in spring this year. The control revealed irregularities in the definitive removal of land from the Romanian Forestry Fund in order to extend OEC’s mining exploitations. For this reason, the inspection report was sent to the competent criminal investigation bodies.

Finally, there is hope that someone will be held accountable for the illegal permits that led to the destruction of hundreds of hectares of forest. Six years after the local authorities that are meant to protect the environment did the opposite, a criminal investigation began.

This law was changed in the meantime, however, enabling large-scale deforestation for projects of ‘public interest’ by removing the mandatory Government Decisions. The fight goes on.

5 benefits of engaging in a facilitated dialogue process: the case of Myronivsky Hliboproduct

In June 2018, villagers from the Vinnytsia region of Ukraine filed complaints to the independent accountability offices of the International Finance Corporation (IFC) and the European Bank for Reconstruction and Development (EBRD) about harmful impacts from an industrial chicken farm run by Myronivsky Hliboproduct (MHP).

MHP has received hundreds of millions in financing from the IFC and EBRD, enabling the construction of its Vinnytsia Poultry Farm and, now, a massive expansion that will double the farm’s production capacity. Local villagers have experienced negative impacts from the farm including dust pollution, foul odors and damage to roads and buildings from heavy vehicle traffic. They also fear long-term environmental and health impacts, but lack information to understand the full scope of these risks. As the expansion of the farm is underway, there is an urgent need to address these concerns before they intensify further.

Community members have asked the accountability offices to facilitate a Dispute Resolution process to allow them to negotiate solutions directly with MHP. Dispute resolution is a voluntary process and will only move forward if the community members and the company both agree to participate. If the company refuses, or if the parties cannot reach an agreement, the accountability offices may instead initiate a Compliance Review to investigate the complaints and publish any findings of non-compliance with the banks’ social and environmental policies in a public report.

When both parties come to the table ready to participate in a meaningful way, a dispute resolution can serve as a valuable opportunity for companies, as well as the communities impacted by its operations. Here are five reasons why MHP stands to benefit from a dispute resolution with local community members:

1. A chance to achieve a complete and lasting resolution

The recent complaint filing provides a unique opportunity to resolve years of building conflict. Since construction of the farm began in 2010, community members have continuously raised concerns about its impacts. MHP has made progress on some issues, yet its efforts to-date have not resulted in any true resolution of community concerns, and many people remain deeply unsatisfied with what they see as a pattern of false promises. For example, community members have requested detailed information on the environmental and health impacts of the whole farm.

While recent environmental assessments are more detailed than earlier ones, MHP still has not publicly released a comprehensive assessment for the whole farm and there has been limited outside verification of the Company’s reporting. Without an independent impact assessment, conducted by mutually agreed outside experts, community members lack trust in the information provided by the company and their concerns persist.

A facilitated dialogue provides a radically different way for MHP to engage with community members. Hosted by an independent facilitator, often a trained mediator, the process offers an opportunity to build trust, identify common ground and generate comprehensive solutions. Since community members will be directly involved in the dialogue process, any solutions that the parties negotiate will have a stronger chance of achieving a lasting resolution than solutions developed by outside parties without community input. The IFC’s accountability office reports that 75% of its dispute resolution cases handled in 2017 reached a full or partial agreement: a testament to the value of this process in building trust between parties and developing mutually beneficial solutions.

2. Often faster, more flexible and less costly than other forums

A dispute resolution process is collaborative by nature, and therefore more flexible and responsive to the needs of the parties compared to other forums, such as traditional court proceedings or even a compliance review. The parties jointly agree on the rules of the process and, together, define everything from how often to meet to which parameters are needed to allow for open and productive conversations about sensitive topics. Through committed efforts to reach an agreement, the parties themselves can influence the amount of time and energy needed to resolve the dispute and avoid any longer, more painful and public processes, such as a compliance review or litigation. Additionally, dispute resolution processes have fewer procedural formalities than other processes, such as litigation, and are likewise less prone to tense, costly and ultimately distracting legal battles about procedural issues that fail to address the core of the dispute. These processes are typically completed within a year or two from when they are filed – far less time than a court proceeding may take to address similar issues, and without the hefty legal fees.

3. Lasting improvements to local community relations

As long as MHP continues operation of the Vinnytsia Poultry Farm, it will continue to impact the people living near its facilities. Community relations is a necessary and unavoidable part of doing business among rural communities in Ukraine and it is therefore critical for the company to develop and maintain a strong social license to operate within local communities. Social license refers to ongoing acceptance or approval by local communities of a company’s business practices. Without this acceptance, companies face damaging public criticism and costly conflict with local communities, both of which can threaten the long-term sustainability of their operations. Meaningful engagement in a facilitated dialogue is an ideal way for MHP to build legitimacy and trust with local villagers and develop meaningful solutions to concerns about its Vinnytsia Poultry Farm, which is critical to enhancing its social license to operate.

4. Build and maintain an international reputation for strong corporate values

MHP asserts that environmental protection and improving the welfare of the Ukrainian population are two of its top corporate social responsibility priorities, yet recent media reports raise questions about the company’s exporting practices and the environmental and social impacts of its operations. This building pressure demonstrates that the international community, particularly European countries to which MHP exports poultry, care deeply about social responsibility and the impacts of MHP operations. Participation in a dialogue process provides an opportunity for MHP to prove its commitment to the corporate social responsibility values that it advertises. Genuine and meaningful engagement in a dialogue process would show the international community that MHP cares about the impacts of its operations enough to fix them, in line with accepted international practice for responsible business conduct.

5. Apply lessons learned across company operations

The Vinnytsia Poultry Farm is the largest of MHP’s poultry farms, but it is not the only one. The company has operations in over half of Ukraine’s 24 administrative regions, cultivating over 370,000 hectares of land, and communities living near other MHP operations have raised similar concerns. If MHP engages in a facilitated dialogue, it stands to learn lessons that may improve its community relations across all operations. If successful, the process may provide a blueprint for improving MHP’s engagement and communication with other communities, helping the company to achieve a social license to operate and reduce the reputational risks of its farms across Ukraine and beyond.

The European Parliament resolution urges European financial institution to respect indigenous peoples rights

The European Parliament resolution of 3 July 2018 on violation of the rights of indigenous peoples in the world, including land grabbing recognises the “central role” that international financial institutions can play in ensuring respect for the human and environmental rights of indigenous peoples. It “calls for the EU to be particularly vigilant when it comes to projects supported by international and European financial institutions so as to ensure that this funding does not entail or contribute to the violation of the human and environmental rights of indigenous peoples”.

The resolution “insists that the EU and its Member States must work to hold multinational corporations and international financial institutions to account for their impact on indigenous communities’ human and environmental rights; calls for the EU to ensure that all violations of the rights of indigenous peoples by European companies are duly investigated and sanctioned through appropriate mechanisms and encourages the EU to withdraw any form of institutional or financial support in the case of human rights violations.”

The European public financiers, however, still need to be reminded about this seemingly obvious and non-controversial demand – to respect indigenous peoples’ right to make informed decisions about their ancestral lands.

Geothermal developments in Kenya’s “traditional heartland”

In 2010, the European Investment Bank (EIB), together with the World Bank, Germany’s Development Bank (KfW), the French Development Agency (AFD) and the Japanese development financier (JICA) invested in the extension of the geothermal power plants Olkaria I and IV in Kenya, which resulted in the resettlement of four indigenous Maasai villages inhabited by around 1 000 people.

As stated in the EIB’s conclusions report on Olkaria, the entire central Rift Valley, from south of Lake Naivasha (including Olkaria) to Lake Baringo and the nearby plateaus in the north, was once part of the vast grazing lands, which the Maasai controlled in the early nineteenth century. Historical accounts suggest that Naivasha, including Olkaria, was the “traditional heartland” of Maasai territory, where some Maasai continue to seasonally graze their cattle to this day.

At the appraisal stage of the project, the company and its lenders failed to recognise the Maasai community as indigenous peoples, even though they identify themselves as such and their unique status is acknowledged by the international fora, including the United Nations and the African Union.

Their indigenous language Maa is a Nilotic language with considerable tonal complexity and a unique grammatical structure that differs significantly from the African Bantu languages.

The Project’s 2010 Environmental and Social Impact Assessment (ESIA) documented the cultural importance of the sites in the project area, such as the Ol Njorowa (or Orjorowa) Gorge, sacred caves that have been used for initiation rituals and other ceremonies, and deposits of ochre used for Maasai cultural practices and personal adornment.

Because the Maasai were not considered indigenous people, they were not offered sufficiently informed consultations conducted in Maa, compatible resettlement scheme, and a benefit-sharing framework for commercialisation of the natural and cultural resources and loss of cultural heritage, and the company did not seek their prior and informed consent. Long mediation process facilitated by the financial institutions left many unsatisfied and the geothermal project is still being developed around Lake Naivasha.

The Maasai case is, unfortunately, not a standalone blunder on the part of the EIB and its sister institutions.

Svaneti is my homeland

On 5 March 2018, representatives of all 17 communities of Upper Svaneti in Georgia gathered for a traditional Svan Council meeting, Lalkhor, to oppose the development of gold mining and hydropower projects in Svaneti threatening local livelihoods and ecosystems.

The Lalkhor issued a declaration that restated protesters demands – recognition of Svans as indigenous peoples with appropriate rights for customary and community property in Svaneti and a ban on the development of any infrastructure without their free, prior and informed consent (FPIC).

One of the planned dam is Nenskra hydropower plant, which represents one of the 35 power plants, planned to be constructed in Upper Svaneti with the approved investments of USD 150 and 229 million by the EIB and the EBRD respectively. In addition, power grid development from the Nenskra dam is financed by the EU Neighbourhood Investment Facility, German Development Bank KfW and the EBRD.

Complaints by Svans and Bankwatch to the accountability mechanisms of the EIB and the EBRD request review of the banks’ failure to recognise the status of Svans as indigenous peoples and to implement relevant environmental and social standards. They present evidence that the financiers have ignored the project significant impacts on Svans as indigenous people, including their livelihoods, culture, health and safety, and general well-being.

Svans are an ethnic group in Georgia, constituting approximately one per cent of the Georgian population, with their own distinct cultural and religious traditions, unique language and customary law, which runs in communities and the region. They recognise ancestors’ rules and customs on land ownership, carry on the traditional agricultural activities, pastoralist livestock herding, wood processing, crafting, among other things.

Free, prior and informed consent approach has to be effectively executed

Thanks to our engagement with the EIB and the EBRD, almost a decade ago both banks started to require project promoters to ensure a free, prior and informed consent by affected indigenous people to any relocation. It is high time also to require the banks to properly identify the most vulnerable communities – the indigenous ones, and to ensure that their indigenous peoples criteria and safeguards are coherent with the international law.

According to the UN, indigenous peoples are facing greater violations of their rights than it was the case 10 years ago. Front Line Defenders shared that of the 312 human rights defenders reportedly murdered around the world in 2017, 67 per cent were fighting for indigenous peoples’ land and defending environmental rights against extractive projects.

Indigenous peoples’ uniqueness should be celebrated. Today is their day, but it is also for us and our institutions to remind of our obligation to honour their rights.

Environmentalism and democracy on the rise in Albania

Take action

We call on the Albanian Prime Minister Edi Rama to stop the construction of hydropower plants inside the Valbona Valley National Park.

Sami Ismalaj remembers his father, Ram Alia, with the empathy of a son who now has children of his own. “My father was a simple, hardworking man. He got up early everyday and worked in in the fields to provide for his children and his family.” During a recent visit to his father’s grave in Dragobi, a village in the picturesque Valbona valley national park in Albanian Alps, Sami recalled his shock at discovering in 2016 that his father and others had given their approval in 2013 for a hydropower scheme that would have a detrimental impact on the community. An impossibility given Alia died in 2010.

The project that Alia is purported to have consented to is the Dragobia hydropower plant, which has been under construction since September 2016. The Dragobia plant is just one of hundreds of similar hydropower schemes that have saturated the energy market in Albania over the last decade – a country estimated to be already 98 to 99% dependent on hydropower. As the number of hydropower projects has grown, so too have the costs to people’s rights and the environment.

Albania was one of the first nations to sign the Aarhus agreement, the United Nations convention that grants citizens the right to access information from public bodies where environmental issues are at stake. Albanian law also requires that developers, in cooperation with local governments, carry out consultations with residents. Public participation is therefore supposed to be actively pursued as part of the development process. But in the case of the Dragobi, in order to fulfill this legal requirement, the project developer, Dragobia Energy, owned by Gener 2 – one of the largest construction and civil engineering companies in Albania – claims to have held a single meeting in 2013, during the course of which 20 people gave their support for the project. Based on the testimonies of villagers during a field visit in mid-June, the list of supporters was forged and is comprised of either dead people or employees and family members of a locally based construction firm. Over two dozen community members and a local campaigning group, The Organization to Conserve the Albanian Alps (TOKA), have filed formal charges requesting a criminal investigation of the project, and three months later, the case is still pending in the public prosecutor’s office.

Anatomy of a conflict

Public participation is a prerequisite to functioning democracy. Environmental justice is crucial to sustainable development. But in Albania, a small, southeastern European country only recently emerging from decades-long, self-imposed isolation, democracy is still struggling to be born, and suffers from often being confused with unchecked capitalism. Dragobi and other faked public consultations are common, while the number of real public consultations can be counted on one hand.

However, a coalition of Albanian activists, civil society organisations and local citizens are seeking to change the status quo by demanding basic transparency in decision-making. Perhaps nowhere in Albania today is this seen more clearly than in the Valbona valley.

One of the most beautiful places in the Balkan peninsula, the Valbona valley and national park annually attracts a growing crowd of adventurous tourists from abroad who are rewarded by access to the relatively unknown and unblemished natural environment as well as the unwavering traditional hospitality of the locals. But in spite of its protected status as an IUCN category II national park – the second strictest level of internationally-recognised protection – Valbona valley national park remains under attack from developers seeking to turn it into a hydropower hub, pumping tonnes of concrete into building dams and diversion tunnels in order to extract energy from the wild and crystal clear Valbona river and its tributaries.

One such company is Gener 2, the Albanian firm behind the 2016 Dragobi scheme, who were also involved in building a controversial pipeline crossing the south of Albania that will transport Azeri gas across centuries-old olive groves. The Gener 2 attack on pristine nature in Valbona valley is one example of the hydropower rush in Albania, as well as more widely in the Balkans, motivated by hefty subsidies for hydropower projects, and power-purchase agreements ensuring steady profit margins for investors. Despite worrying reports about climate change impacts that will affect the availability of water, the ‘fuel’ of hydropower projects, the industry boom shows no signs of slowing.

A sign of things to come?

There is hope, however, that the tide of democracy is starting to turn. On June 6, the administrative appeals court in the capital Tirana overturned a previous court verdict permitting the Dragobia project and upheld a request from TOKA and 27 villagers in Valbona for an injunction. The injunction was originally requested in January 2018, as part of a suit against the National Territorial Council of Albania over their decision in November 2017 to issue the developers a new construction permit. The plaintiffs argued that the new permit is illegal, as the Law for Protected Areas was amended in June 2017 to ban all hydropower projects in national parks. Under Albanian law, a stop work injunction should be granted in all cases where “irreversible environmental damage may occur during the period of the judicial process.” This should remain in effect until the final resolution of the suit from TOKA and the 27 locals, which could be some months or even years, depending on the appeals process. Locals are now waiting to see whether the stop order will be enforced. Once the injunction is in effect, any continued construction by Dragobia Energy or its parent Gener 2 would constitute a criminal act.

Remaining hopeful

That an official body ruled in favour of locals is a welcome sign of functioning institutions in Albanian and a relief for the locals who were forced into the streets in June in protest against rockfalls on their properties that were caused by demolitions Gener 2 used to excavate water tunnels. Two of the company’s engineers were arrested by local police as a result of the explosions. The people of Dragobia recently started a campaign to remove the kryeplak, the local village head, who helped fake public consultations. Even after being denied several times by local authorities in a bureaucratic back and forth, locals remain determined to exercise their democratic rights. The local fightback in Dragobi offers hope that environmentalism and democracy are on the rise not only in the Valbona valley but in Albania as a whole.

Catherine Bohne is the president and founding member of TOKA, the Organization to Conserve the Albanian Alps. David Hoffman is the communications coordinator with Bankwatch.

Done in cooperation with partners of A Voice of Tropoja project financed by the Visegrad Fund

Devastating floods are the latest warning sign about controversial Nenskra hydropower project

Community members in Georgia’s Upper Svaneti region and environmental groups, worried about the impacts of unchecked hydropower development, have long been warning that decision makers are overlooking the unstable seismological, geological and hydrological conditions in the area.

In early July, well before the completion of the Nenskra hydropower project, the largest in the region, all those involved received the starkest reminder when villages of the Chuberi commune were hit with major floods. Heavy rains and melting of snow and glacier ice triggered a mudflow in the Okrili river, a right tributary of the Nenskra river, which in turn created a blockage that diverted the floodwater right through the villages.

The water gushing through the villages inundated agricultural lands and heavily damaged road infrastructure, bridges, houses and electricity lines.

According to a July 25 emergency report from the International Federation of Red Cross and Red Crescent Societies, three families have lost their houses, including all their belongings, and all 1143 people living in the valley “remain without access to the sewage system, proper access to drinking water and electricity.”

From the outside, this tragedy might seem like a natural disaster, a force majeure. But one cannot ignore the human factors at play.

Scientists have repeatedly warned that climate change, fuelled by humanity’s unabated greenhouse gas emissions, is making such extreme weather events more likely by creating the conditions for them to appear more often and be more devastating than we are used to.

In the Nenskra valley, many of the local residents have been expressing their concern, since more than three years, that the construction of the 130 meters tall Nenskra dam is aggravating the situation in this geologically volatile region. In fact, the dam and reservoir site encompasses a number of other, even more active mudflow streams than Okrili, as well as several avalanche and landslide prone areas. In addition, forest clearing within the project area, which was documented barely three months prior to the disaster, could lead to the emergence of new mudflows and active landslide zones, thus further worsening the existing geological conditions.

Yet, planners have failed to properly assess the impact of these risky conditions on this questionable hydropower adventure. Evidently, the Nenskra project is quite literally on shaky ground.

Moreover, on the day the floods began sweeping through the Chuberi commune, JSC Nenskra Hydro, the project developer, was quick to deny any connection between the construction of the project and the disaster. In a statement it released, the company claimed that the floods occurred five kilometres from the construction site, even though the Okrili stream flows below the dam site but squarely through the construction area.

But this was not all. The following day, speaking to journalists, Prime Minister Mamuka Bakhtadze linked the disaster to sporadic logging in the area. However, there is no evidence to support such claim. According to a statement issued by Green Alternative and six other Georgian environmental groups on July 16, satellite monitoring of forests in the area shows no indication of tree cover loss in the relevant section of the Nenskra gorge in the years 2000-2017.

Rather, by shifting responsibility to local residents, the NGOs’ statement said, the Prime Minister is essentially trying to avert political criticism.

The July devastating floods in Upper Svaneti must be a wakeup call for the Georgian government that’s so keen on pushing the controversial Nenskra project, despite ongoing protests of the local communities and the warnings from experts and civil society groups.

This disaster is also a reminder for the international financial institutions which enable this project – namely, the European Bank for Reconstruction and Development, the European Investment Bank, and the Asian Development Bank – that a much closer attention should be given to the way Nenskra and other hydropower projects in Georgia are realised.

Specifically, the government and the project financiers should seek expert advice from the Netherlands Commission for Environmental Assessment (NCEA) in order to revise the Nenskra hydropower project’s documentation in light of the recent floods and other potential disasters. The NCEA’s contribution should also include an assessment of the cumulative impacts of all hydropower projects, in operation and under development, on geological processes.

The water in Chuberi has already subsided, but neither the community nor the government and the international investors can say ‘après nous le déluge.’

In Kenya, a motorway funded by the European Investment Bank runs over roadside dwellers

The nearly 1 000 km route connecting Mombasa and Lake Victoria has always been of key importance for the development of East Africa.

In the beginning of the 20th century, a railway line was the first big infrastructure investment in the region. But realising this massive project has also sacrificed the lives of 2 500 workers, who helped to build it. The railway bridge over the Tsavo river has become particularly notorious because of the two lions that killed tens of workers, and it is still known by the name Man Eaters’ Bridge.

A century later, construction works are taking a toll on those living in the road’s periphery, but this time the government agency is the culprit.

Part of the Mombasa-Mariakani existing road in Jomvu Varcol. Photo by K.Miękus

The EIB oblivious to ubiquitous violations

The narrow, crowded motorway is still the main traffic artery of the eastern Africa. Kenya’s National Highways Authority (KENHA) is working to expand a 41.7 km section of the route to the dual carriageway standard, a project that is planned to be completed by 2020. The EIB is one of the development banks supporting the project, but despite its own policies ensuring compliance with the highest standards, this important investment – before it even started – has destroyed lives of hundreds informal settlers in Mombasa’s suburbs.

Tomas Obongo in his workshop destroyed in 2015. Photo: by K.Miękus

In 2015, more than a hundred families were forcibly evicted from their homes on the roadside to make way for the construction works. Only later did the international lenders and KENHA halt the road works to mitigate the harm caused to the people and revised the Resettlement Action Plan (RAP) for the whole project. The mitigation process was not satisfactory, and affected people and KENHA are currently in the process of mediation facilitated by the EIB. But we found that there is still a high risk of further forced evictions along the entire project area.

The Resettlement Action Plan of such low quality should not have been accepted by lenders. It lacks key components such as a Stakeholders Implementation Plan, Livelihood Restoration Framework, projects maps and asset inventories, and its compensation methodology leaves affected persons with uncertainty and fear for their livelihoods. None of the annexes to this plan are publicly available and the EIB has not responded to our requests. Translations into Swahili are also unavailable.

Most strikingly, we found that people are being handed the vacate notices without any relocation sites being offered, and financial compensation (if any) is given without any valuation reports. Some movable structures, small buildings, trees or tree nurseries have already been demolished, effectively constituting forced eviction under the international law.

George Ongaya on the way to his rented house surrounded by the trees planted by himself. Photo by K.Miękus

The most vulnerable groups, such as women and children, are at risk of becoming homeless and dropping out of school. Finally, community leaders are intimidated and receive death threats, as the EIB accidentally disclosed the confidential complaints of the project affected persons to the promoter and local authorities. The bank’s complaint mechanism has subsequently acknowledged this blatant mistake, but not before the complainants already suffered renewed reprisals.

What does this case say about the bank’s human rights standards during the projects’ appraisal and monitoring?

The example of Mombasa-Mariakani Dualling Project shows that the EIB is currently unable to manage human rights violations in the projects it supports.

It is particularly worrying given that out of 63 eligible countries under the bank’s External Lending Mandate for the period 2014-2020, as many as 43 are considered authoritarian or hybrid regimes by the Economist Intelligence Unit’s Democracy Index 2017.

Unfortunately, the recent mid-term review of the external mandate did not focus much on the problems related to the EIB’s approach to human rights, including its weak due diligence on the matter. Instead, in 2018 the mandate guarantee was increased by EUR 3.7 billion to deal with even more sensitive migration issues.

In its 2017 report on corporate social responsibility, the EIB proudly indicated that, during that year, it did not undertake a single human rights impact assessment, implying that the quality of its projects did not make it necessary. From Mombasa’s suburbs, this sounds as detached from reality as it can be. The bank’s operational weakness is unfortunately accompanied by a lack of political willingness to develop proper human rights due diligence.

What can be done

Violet Nabwango in her house. Photo by K.Miękus

As proposed in our report Going Abroad, the EIB should initiate a process to develop a human rights action plan in order to implement the objectives of the EU’s Strategic Framework on Human Rights and Democracy and the EU’s Action Plan for Human Rights and Democracy.

Such plan should provide the rules and mechanisms required to prevent the negative impact on human rights and remedies in case of violations. This should then be used during the ex-ante assessment and ongoing monitoring on a project-by-project basis, whether funded directly or via financial intermediaries.

In addition, throughout the project cycle, the bank should take all necessary measures to mitigate risks of all forms of threats, attacks, or reprisals of community members, workers, activists, journalists, human rights defenders, and civil society organisations who either participate in project development, criticise or oppose a project, or otherwise speak out (or are perceived to speak out) against a project. The bank needs to incorporate clauses preventing reprisals in loan agreements and develop a rapid response system to address threats to project critics.

These policies and practices are still to be developed. Yet, the EIB already has the tools to provide a just and transparent resettlement scheme for the thousands of people living along the Mombasa-Mariakani route.

We informed the EIB about our findings and shared the collected evidence. Any forced evictions or even attempts that leave people in fear and uncertainty, must stop immediately. It is hard to exaggerate the gravity of the situation the local residents are facing.

As you read these lines, people in Mombasa’s suburbs – Changamwe roundabout, Kibaoni, Bangladesh, Jomvu Narcol – continue to fight for their homes: not to be forcibly evicted, and not to be trampled over by an ill-conceived project in the name of development.

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