The collapse of Patel Dam in Solai, Nakuru County, caused deaths and injuries, massive destruction of property and loss of livelihoods.
While the culprit is overflowing that resulted in floods, it has to be asked whether the regulators used all the legislative and regulatory devices at their disposal - in a satisfactory and timely manner - to either prevent or mitigate the risks of collapse.
If what has been reported in the media is true, it appears they did not. Press reports indicate that the owner of the dam had the temerity to refuse demands from the Water Resources Authority (WRA) to inspect the maintenance and operation of the dams for safety reasons as well as for issuing permits.
Instead of using the legal and regulatory machinery to force compliance, the regulator “threw in the towel”.
A legitimate and compelling case for encouraging the development and construction of dams and other water conservation structures in the country exists.
Dams provide an array of economic and environmental benefits, including flood control and water supply for irrigation, consumption and generation of hydro-electric power.
Indeed, the Nation Water Master Plan 2030, the blueprint for development and management of water resources in the country, has identified dams as key structures for addressing water requirements and needs.
Just as they have economic and social benefits, dams also pose significant risks to life and property when they collapse because of flooding and poor design, construction, operation or maintenance.
The State understands the inherent risks dam construction and operation poses to public safety and, therefore, seeks to either prevent or ameliorate this through regulation of a broad spectrum of dam construction and operation aspects, for instance, issuing permits, inspection, establishing emergency preparedness and warning procedures as well as apportioning liability.
Under the Water Act 2016, WRA is the regulator for the management and use of water resources. The underlying reason is to ensure the design, construction, operation, maintenance and upkeep of dams meet acceptable standards and are compliant with regulations to guarantee public safety.
The application, approval, issuance and cancellation of permits, the inspection process, and use of criminal sanctions are some of the mechanisms the organisation uses to fulfil the public safety imperative.
Thus, for instance, it is an offence to refuse inspectors to discharge their statutory mandate.
The need for thorough inspection is especially higher when the regulator receives a report or notice that construction or operations are defective.
In the case of the Solai dam, complaints that it had mud walls that were in danger of collapsing should have necessitated prompt and thorough inspection.
Construction and operation of dams implicates multi-faceted aspects such as environmental concerns, standards, land use and planning. These too have a role in promoting dam safety.
The flower firm in Solai is reported to have built seven dams on a river and, for accountability, it may be necessary to know whether it had approvals to do so.
Some countries have standards that guide construction of dams and other structures, for instance, India and the United States (which has the American Society for Testing and Materials). A quick trawl through the internet has not yielded any guidelines for our country.
The law gives WRA immunity from liability for negligence that emanates from its statutory power, so victims may not expect any compensation.
Although each case has to be evaluated on its own merit, and decisions from the courts suggest the immunity may be challenged where the regulator negligently executed statutory power and not where they failed to act, claims against public authorities are complex and contentious.
Victims stand a higher chance of getting compensation from the owner on account of negligence and strict liability.
However, the success of any legal action will rest on evaluation of varied circumstances including professionalism and expertise, and what the owner did or failed to do during construction - for instance, the use of mud walls.
Flooding is Kenya’s most frequent natural hazard during the rainy season and, invariably, the owner would claim that the collapse of the dam was the result of, among other things, an act of God.
However, this defence is not available in all instances of natural calamities. Rather, it is available in situations where the owner had no control and could not have foreseen the damage using available professional and technical expertise.
The law is not a panacea for public safety concerns. And man’s ability to deal with natural calamities is not unlimited. However, developing a safety programme that includes emergency-preparedness, public awareness and appropriate land use planning could mitigate the risks of dams collapse.
This should be a priority for public agencies and other stakeholders.
Mr Bosire is an advocate of the High Court of Kenya; [email protected]