Following a disputed presidential election at the end of 2007, violence broke out in Kenya that saw thousands of people displaced from their homes and left more than 1,000 dead.
Among the displaced was Joseph Loree, a 58-year-old father of eight who lived and worked in the Rift valley region of the country, the hotbed of tribal clashes. He and his family fled from his workplace at a farm in Trans Nzoia County to escape the violence, settling in his ancestral Lokichar in Turkana County, as an Internally Displaced Person (IDP).
But tragedy followed him again eight years later, when, in 2016, his 14-year-old son Eliar drowned while swimming at an abandoned quarry. The quarry had been left open by a contractor hired by Tullow Oil Plc, through its subsidiary Tullow Oil BV Kenya, the UK-registered company that has been drilling for oil in the area since 2012.
By law, the quarry had to be fenced off to avoid public access to the area, but this never happened — and the government failed to enforce laws requiring the land to be restored. Experts question whether this unimpeded access contributed to Eliar’s death, and have called for an investigation into whether the government, agencies, and company should be held accountable. Tullow acknowledges it supported the family’s funeral expenses while claiming no responsibility for the incident. And Loree signed a document he says he did not fully understand, which has released the company from liability.
Five years later, he is left grieving and searching for justice.
With the details of the tragedy only just emerging, and as the oil industry continues to try and expand in Kenya, experts say the incident highlights the need for stricter enforcement and adherence to the rules designed to keep the public and environment safe from the extraction industry’s impacts.
A Tragic Drowning
Between 2014 and 2015, Tullow dug quarries for gravel that it used for its access roads for oil wells. The quarries, however, were never decommissioned, leaving them wide open, posing danger to the community and animals.
The open pits subsequently turned into small dams whenever it rained and the community, living in an arid, sun-scorched area, would use the pool as a watering point for their livestock, with thousands of cattle, goats, and sheep gathering there daily for a drink.
As Loree describes it, “people would also draw water for domestic use from the dams as well, wash their clothes there, and that included school children who clean their uniforms at the ponds over weekends or after school. Some boys would also try to swim and it is during one such an occasion that my son drowned.”
Loree was at his home outside Lokichar Township on 28 January 2016 when the incident happened. After being informed about the tragedy, he rushed to the scene where a crowd had already gathered.
“Some young men tried to dive into the water to retrieve the body but they were not able to find the body. It was not until the following day that a tractor was sought and made an outlet to drain the water, and that is when we found his body stuck in mud,” Loree said.
An examination of the body the following day found Eliar had suffered head injuries after hitting rocks covered by the water, which may have made it hard for him to swim to safety and led to death by drowning.
Loree standing by his son Eliar’s grave. Credit: Maina Waruru
Loree reported the death to Tullow at their local offices where the incident was recorded as a “grievance” by the company’s Social Performance department. He also recorded a report on the incident with the local police, as required by law. Meanwhile, Loree made plans to bury his son, a former pupil at the local Kamarese Primary school.
Burial followed a day later on his small parcel of land. Two days later, he was summoned by a Tullow official to their offices. He was informed that the company bore no responsibility for the death of his son, but the company was willing to help his family settle the burial expenses.
Having posted revenues of $1.6 billion in 2015, Tullow agreed to cover the funeral expenses of £355 (about $450) so long as Loree signed a document stating the company was not responsible for his son’s death. The funeral costs were about seven percent of the a Kenyan’s average annual earnings at the time (of around KSh 644,800 or $6,448), and were far more than Loree could afford. He signed the document to receive the money, but claims it was only later that he came to fully understand it was a “grievance resolution” document absolving the company of any liability.
“I was not satisfied. How could they pay me such an amount for the death of my son disguised as burial expenses, when I had already buried him without their help? They took advantage of my poverty and lack of education to suppress my case,” he told DeSmog, where he shared a copy of the grievance document.
The grievance officer, a local man, informed him the matter was done and settled, and there was nothing more Tullow could do for him.
Feeling cheated by the amount offered, and still trying to come to terms with the loss of his son, Loree began making frequent visits to Tullow’s offices to plead for more compensation, but the company continued to insist the matter was over and that the money he had received was all the help he was entitled to.
“Since I was much stronger then, I pleaded with them to give me employment or employ one of my older children to help support our family,” Loree said. “Even though we do not have much education, any job to help me support my eight children would have been okay with me. Instead, I was taken round in circles for days on end until I gave up and stopped following up the matter and left everything to God.”
Tullow declined to comment on this story when DeSmog reached out to the company.
Failing to Fence-off the Quarry
By failing to fence off the quarry, the company may have been in violation of a wide range of laws and regulations, experts told DeSmog.
It failed to comply with the Environmental Management and Co-ordination Act, the Environment Act, and other guidelines for environmental management published by the National Environmental Management Authority (NEMA), according to David Mugendi, a lecturer at Kenya’s Kenyatta University’s Department of Environmental Planning and Management.
The regulations require concerned parties to fence-off the land three metres from the edge of a quarry, using chain-link wire which must be at least 1.5 metres long. This is to protect the lives of humans and animals, he said.
In addition, the rules require that such excavation should only happen 50 metres from human settlements, and 40 metres from a road. The land must also be restored back to its original form within 12 months after excavation ends.
“As the lead government agency NEMA is guilty of failing to enforce the law and should be held accountable,” he said, and “the company should take responsibility for the incident.”
Dennis Morton, a Social Performance Manager for Tullow from November 2013 to December 2015, questions whether his former employer is guilty of negligence and for failing to adhere to set environmental regulations.
“It should not have happened if procedures were followed properly,” he said. “Tullow … should also have secured the site as it was very dangerous. The devastated parents went to Tullow who paid for the funeral but denied responsibility.”
According to Morton, after the incident happened the site was fenced off, “which should have happened in the first place,” he said.
The aggrieved family ought to receive full compensation for the loss, argues Soyinka Lempaa, a litigation counsel with Katiba Institute, a Nairobi based constitutionalism and rights advocacy organisation. By failing to build the fence, Tullow may have been guilty of negligence, he alleges.
Equally liable for action, according to Lempaa, is the Kenyan government through its environmental agency, NEMA, for failing to enforce rules on rehabilitation of land and restoration of the environment after major excavation works. The government agency, Lempaa added, should be compelled to force compliance with environmental stipulations related to emerging extractive industries in the East African country.
As Lempaa noted, “the family has been denied justice” and any responsible parties concerned “[should] not dodge responsibility for the death of the minor.”
This opinion is shared by Dickens Kamugisha, head of Uganda-based African Institute for Energy Governance (AFIEGO), who says that Tullow could be sued so long as it’s still operating in the country. This could be done using the country’s laws or based on international laws — like the Convention Biological Diversity, to which Kenya is a signatory, said Mugendi — if national laws were weak or non-existent.
“In general,” argued Kamugisha, “the family [might] sue both Tullow and the government [if it] failed to ensure that the company did not endanger the community. The family needs to get the right lawyers to look at relevant laws and other contractual instruments to be able to decide the right action to take, against the right party in this case, [including] Tullow or government. So, it’s possible to sustain an action against any company whose actions lead to such damage.”
Loree, who earns a living by selling charcoal to households had big dreams for his son, who was a bright pupil in school. He hoped his son would do well in later life, and hopefully pull his parents and siblings out of poverty. Local and national officials have shown no interest in helping him get justice, despite repeatedly raising the issue with them, he said.
But Loree fights on. “I had high expectations in him,” he said, “that’s why I still hope to get justice someday.”
This article was developed with the support of the Money Trail Project.
Main image: The quarry where animals come to drink. Credit: Maina Waruru