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OPINION | World Maritime Day: Kenya in the spotlight over lack of marine pollution law

Kenya’s Marine Pollution Bill 2014, is yet to be enacted as recommended by a taskforce on the Review of Maritime Laws. PHOTO/KMA


As celebrations to mark the World Maritime Day kicks-off on Friday, focus will be on Kenya’s failure to enact the Marine Pollution Bill 2014 into law.

While, the government of Kenya has ratified several conventions in effort to regulate the ship source pollution; it is yet to enact the Marine Pollution Bill 2014, as recommended by a taskforce on the Review of Maritime Laws.

The Bill is a comprehensive legislation to domesticate international conventions dealing with marine pollution. This development come at a time when this year’s theme for the World Maritime Day is “MARPOL at 50- our commitment goes on”.

The MARPOL, 1973 Convention addresses pollution from ships by oil; by noxious liquid substances carried in bulk; harmful substances carried by sea in packaged form; sewage, garbage; and the prevention of air pollution from ships.

This year’s World Maritime Day in Kenya is expected to take place aboard the Maltese flagged MV LOGOS HOPE on 29 th September. The vessel is on a 45-day visit to Mombasa and has been hosting book fairs.

This year’s theme is “MARPOL at 50- our commitment goes on”. The theme reflects the organization’s long history of protecting the environment from the impact of shipping via a robust regulatory framework and emphasizes its ongoing commitment to this important work. The theme ‘MARPOL at 50 – Our commitment goes on’ spotlights the International Convention for the Prevention of Pollution from Ships (MARPOL), which covers prevention of pollution of the marine environment by ships from operational or accidental causes.

Many Kenyans will recall 20 th May, 2018 when Mombasa experienced oil spillage caused by a cargo train hauling some 250,000 liters of super petrol, after it derailed as it negotiated a sharp bend near Kibarani.

The derailment caused a major spillage of the highly inflammable fuel forcing the government to close the Makupa Causeway which is the main link between Mombasa west mainland and the Island. The train which was shunting from Mombasa to Nairobi was hauling 16 wagons of fuel belonging to Vivo Energy when the accident occurred.

This reminds us of the major scare in April 2015 when a Singapore-flagged dry bulk carrier JS Danube ran aground after hitting a rock some two nautical miles off Kenya’s port of Mombasa. Despite the fact that the grounding happened close to the port, Kenya Ports Authority started the rescue operations seven hours after the accident.

Mv Ratna incident

It also reminds us of the 2005 oil spill from Indian oil tanker MT Ratna Shalini, which spread to shoreline causing environmental and property damage.

MT Ratna Shalini laden with 80,000 tons of crude oil was damaged as she berthed at the Mombasa Port oil terminal on April 7th 2005. One of her tanks loaded with 3,000 tons of crude oil was punctured on the starboard side of the vessel and about 200 tons of oil spilled into the sea.

Pollution control experts from the Kenya Maritime Authority, Kenya Ports Authority, the oil spill Mutual Aid Group and Kenya Navy managed to contain the spill; however, due to un-preparedness and ill-equipment the oil spill spread to the coastline about 5 km away from the port and some of the spill spread for about 150 cubic meters inside the port area.

Business as usual

Since 7th April 2005 when the oil spill occurred no assessment has been carried out on the property damage, environmental damage and loss of income to fishing community caused by the oil spill.

The International Convention for the Prevention of Pollution from Ships (MARPOL), covers prevention of pollution of the marine environment by ships from operational or accidental causes. PHOTO/KMA

Kenya is amongst the 86 member states of the International Oil Pollution Compensation Fund (IOPCF), but owing to the outdated maritime laws of Kenya the owners of the ill-fated vessel will pay only USD $ 1 Million. It beats reason at what criteria the Kenya government used to arrive at the USD $ 1 Million penalty.

For one, it was too early to quantify the damage caused by the oil spill. Scientifically, the damage can only be quantified after an assessment that can only be done after two (2) weeks when the effects of ecological manifestation will start showing.

The ill-fated vessel was a single hull-tanker built in 1987 and she was phased out in August 2005 as per the new IMO requirement. The spillage came after a new IMO regulation that bans carrying heavy grade oil in single-hull tankers came into force on April 5th 2005.

IMO rules

The new IMO requirement is designed to reduce the risk of spills from oil tankers involved in low-energy collisions or groundings. MT Ratna Shalini was owned by India steamship, of Kolkata, India. The coastal waters of many African countries contain some of the world’s richest ecosystems, characterized by coral reefs, sea grass meadows, mangrove forests, estuaries and floodplain swamps.

Coastal ecosystems are not only an important source for essential products for mankind, including foods, medicine, raw materials and recreational facilities, but also provide ecological services that directly benefit the coastal zone.

Approximately 39 km of shoreline along which 27 fish landing sites located were polluted by oil of which 22 kilometers were heavily impacted. Shorelines consisted of a mixture of sand, pebbles and mangroves as well as seawalls.

Fishing and Mari culture activities taken along the affected area included intertidal harvesting of marine products, inshore fishing with dugout canoes and set nets, crab culture farms and on shore hatcheries producing a range of marine products. Many of these activities also suffered the direct effects of the oil spill.

Apart from the environmental damage to marine organisms and mangroves, the fishing communities also suffered heavily loss of income due to property damage caused by the oil spill. The occurrence of the oil spill by which Indian Oil tanker Mt. Ratna Shalin at the Mombasa port is still fresh on our memories.

It is therefore necessary for all the concerned Kenyan authorities to put all the required contingency measures in place to ensure rapid response just in case an accidental spill occurs. There is an immediate need to release of the Mt. Ratna Shalin incident report by the Kenya Government on the extent of environmental, and property damage occasioned by that particular spill.

Quiet NEMA

It is surprising that until now the Kenya National Environmental Management Authority has not issued the assessment report even as claims are rife that the extent of damage was more than the US$1 million compensation stated by the Kenyan authorities.

Governmental organizations concerned with the matter must involve all the stakeholders and particularly the fishing community, community based organizations and civil society organizations.

A revised schedule for the phasing out of single-hull tankers and a new regulation banning carrying of heavy grade oil in single-hull oil tankers entered into force on April 5, 2005. The measures were adopted in December 2003 as amendments to Annex I of the MARPOL Convention, following the November 2002 sinking of the oil tanker Prestige off the Spanish coast.

It specifies that tankers of single-hull construction should be phased out or converted into double-hull according to a schedule based on their year of delivery. Maritime laws required the ship owner to pay a paltry Ksh10, 000 ($129) in case of an oil spill, along Kenyan territorial waters.

In August 2005, a single hull ship, MT Genmar Commander, carrying 87,000 tons of crude oil offloaded its cargo at Mombasa Port despite calls by environmentalists and maritime lawyers to have the vessel barred from entering Kenyan waters.

Kenya is yet to receive Ksh78 million ($1 million) compensation for an oil spill from MT Ratna Shalini after its hull punctured, spilling oil into the Kenyan due to lack of laws to force the ship owners to pay the claim. PHOTO/KMA

MT Ratna Shalini had its hull punctured, spilling oil into the Kenyan waters on April 7 th 2005.

Elusive compensation

Compensation is yet to be paid because Kenya has no laws to force the ship owners to pay the claim. The owners committed a bond of Ksh78 million ($1 million) which the company is yet to pay. The double-hull requirements for oil tankers are designed to reduce the risk of oil spills from tankers involved in low energy collisions or grounding.

Under the phase-out schedule, single hull oil tankers will not be allowed to trade after April 5, ships delivered on or before April 5, 1982 or earlier or after their anniversary date in 2005. In this category are oil tankers, commonly known as Pre-MARPOL tankers of 20,000 tons deadweight and above carrying crude oil, fuel oil, heavy diesel oil or lubricating oil as cargo.

This category also includes tankers of 30,000 tons deadweight and above carrying other oils, which do not comply with the requirements for protectively located segregated ballast tanks. This category of oil tankers, which have some level of protection from protectively located segregated ballast tank requirements, were phased out according to their age up by 2010.

Pollution Bill

The government of Kenya, through the office of the Attorney General, was to enact the Marine Pollution Bill, as recommended by a taskforce on the Review of Maritime Laws. The Bill is a comprehensive legislation to domesticate international conventions dealing with marine pollution.

Coast guard service should strengthen the existing enforcement measures by, for instance, stopping risk-bearing vessels from docking at the sea ports. Kenya Maritime Authority (KMA) should enforce the existing law in order to prevent the marine environmental degradation.

Unless this is done, we can expect many substandard and unseaworthy ships to dock at our sea ports with impunity, endangering our marine environment. Kenya lies within a busy tanker route to the Middle East and that pollution occurring in the high seas is likely to pollute Kenyan waters.

Andrew Mwangura is a public intellectual at Nautical Advisory Services.
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