The River Never Forgets

The year is 2009. The Government of National Unity, otherwise known as the grand coalition cabinet has its Lands docket occupied by Mr. James Orengo. In a press statement, he announced that there were plans to demolish all illegal structures built on riparian land. In his radar were the Ukay Centre and Westgate parking lot, including the Visa Oshwal Centre all located directly on a tributary that joins its waters with that of the Nairobi River.

The minister said that both commercial and residential structures on wetlands were built without approval, while the owners maintained that they were legally obtained and consented to by the government.

This is difficult to ascertain, because before the NEMA was commissioned to carry out the Environmental Management and Coordination Act in 1999, the role was spread haphazardly across different organizations including the City Council as well as Ministries in charge of Environment, Water, Health, Agriculture, and Industrialization.

The 1970’s, 80’s and 90’s was a time when land could easily be acquired through less than transparent means, and construction regulations could be skirted by greasing the hands of key stakeholders. The last approved urban plan was made in 1973 and expired in the year 2000. Between then Nairobi’s urban sprawl has been dictated by demand rather than infrastructure planning. There are five ways one developers have approached the land development policies put forth by the Nairobi City Council (according to a report by Arthur Mwaura in 2006)

1. Developments that have maintained the status quo
2. Developments that have been approved and implemented in compliance with existing policy for their specific zone
3. Developments that have been approved by the CIty Council of nairobi but implemented contrary to approved planning briefs and drawings of building developments
4. Developments that have been equally approved and implemented but in non-compliance and contrary to development policy for specific zones
5. Developments that have not been approved but are already implemented.

Orengo claimed that he and his colleagues in Environment, Water and Local Government ministries had received the Cabinet nod to revoke the land’s title deeds.

Eight years later these commercial buildings still stand, as well as other residential homes on the riverbed.

It is important to note, however, there are two distinct types of encroachment on Nairobi Wetlands. The Mathare river basin, for example, has been populated by many informal urban settlements simply because there is no affordable space for the urban poor to purchase and occupy. This public and recreational land by the river is the only “free” unoccupied space in the city. The Upper and Lower Spring Valley Basins, including Westlands and Westlands CBD, makeup zone 3, 4 and 5 which are mostly affected by the construction of expensive residential homes and commercial buildings, usually outside their designated expansion zones.

On Saturday May the 7th 2016, after a heavy downpour between 5 and 8 pm, a flash flood that coursed water down the Ukay and Westgate private road completely engulfed Nakumatt Ukay under water, causing damage of uncertain amounts and rendering the roads in that section impassable.

We sought comment from NEMA on the incident, who referred us to a statement they made earlier.

“The recent flooding has been made worse by the wanting solid waste management we have in the city,” said the National Environmental Management Authority (NEMA) Acting Director in Charge of Compliance and Enforcement Zephania Ouma.

He claimed the flooding was caused by a blocking of drainage.

Basically, that a blocked drain caused the emergence of what looked like a temporary river which engulfed entire sections of roads.

They said the authority was scrutinizing the building’s Environmental Impact Assessment report afresh.

Problem is, an Environmental Impact Assessment Report should be conducted before construction commences. It is a prerequisite for construction approval and has little to no function after a structure is erected, unless the purpose is on a FYI basis only.

As in FYI, this building is dangerous and is, in fact, built on the course of a river and might be prone to flash floods.

In his report in 2010, Charles Karisa proposed that a lack of capacity might be a root cause for shoddy implementation of NEMA roles.

“Despite having a clear vision and understanding of what needs to be done, many actors are still unable to operationalize such actions to significant levels due to inadequacy in equipment and technical expertise, human resource, and financial aspects.”

That, or the level of environmental impact is actually completely unfathomable to them.

Another option is that there are unseen forces that are blocking the government agencies. Forces that have made substantial investments in time and money that cannot afford to comply at present.

Nairobi County officials were more forthright, however, saying that “It was clear” that the building hosting Nakumatt Ukay was built on riparian reserve and refusing to comment on whether it would be demolished.

MP Timothy Wanyonyi called for action to be taken on the owners of these buildings. But these feeble objections by government are not new.

Alina Villas, on Lower Kabete Road in Kibarage Valley in Nairobi that started construction in 2007. Members of Hillview Residents Association requested for help from regulators, as the construction was directly on Mathare River and would affect the locals as much as everyone else. They were ordered to cease and desist in 2009 On April 1 2010 the title was revoked.

Which makes the next part interesting.

Construction resumed in early 2013 until the then lands minister Charity Ngilu stopped it in 2015.

There are also a few differences in the statutory provisions on riparian width.

GoK, Various Acts/City Council of Nairobi, 2007

It still remains unclear what actions will be taken, or who will take action to repair this damage. A blatant disrespect of regulations and obvious greed.

All stakeholders stand accused. Government and public officials, developers and landowners, tenants of the properties (hope the risk was worth it) as well as government organizations like NEMA.

Taking from Wangari Maathai’s unofficial twist on the original quote: a river never forgets its course.