Florence Shako is an Advocate and Academic researching in Business and Human Rights and Access to Justice Issues. She is the Senior Partner of Mitullah, Shako and Associates Advocates as well as the Executive Director of the Center for Education Policy and Climate Justice based in Nairobi, Kenya.

Introduction

One of the key areas of focus for the 2023 United Nations Climate Change Conference (UNFCCC COP 28) is a paradigm shift to fast tracking the energy transition and reducing emissions before 2030. COP 28 presents an opportunity to fast track the energy transition by building the energy system of the future, while rapidly decarbonizing the energy system of today to keep 1.5 degrees Celsius within reach.

The International Energy Agency forecasts that global renewable capacity will increase by almost 2400 GW (almost 75%) between 2022 and 2027. This trend, coupled with the land-intensive nature of wind and solar projects, foreshadows a worrying parallel trajectory for adverse human rights impacts to local communities near these sites.

Beyond causing widespread, often irreversible harm to people and communities, human rights harms also result in adverse consequences for businesses. Community protests, adverse media coverage and investor pressure – these cascading responses all translate to operational, financial, and reputational risks for wind and solar projects through project delays and cancellations, abandoned assets, diminished return on investment, and an inability to secure or retain finance.   

The Need for Just Transition

The International Labour Organization (ILO) describes just transition as “greening the economy in a way that is as fair and inclusive as possible to everyone concerned, creating decent work opportunities and leaving no one behind.”

There is an urgent need for a rapid and just transition away from the harmful fossil fuel-based energy system, to a renewable energy system based on energy sufficiency for all.

To date, many large-scale renewables have too often replicated the same destructive patterns of the current extractivist dirty energy system. This system is built on fossil fuels and destructive large-scale hydropower, nuclear and industrial biomass. Some parts of the climate movement have prioritised the urgency of tackling climate change and rolling out renewables over the rights of peoples living in the Global South, in terms of land, food, water, livelihoods and energy access. This risks the wholesale rejection of larger-scale renewable energy installation in the Global South.

There are numerous examples of attempted energy transitions that have not taken into account the context of local communities and their unique needs. Local communities protested a major wind farm project in Oaxaca, Mexico claiming that it would have adverse effects on their livelihood due to the economic and cultural significance of the land.

Legal risks for businesses are also significant, particularly given the emerging landscape of mandatory human rights due diligence laws. France’s largest utility, Électricité de France (EDF), is facing a lawsuit for failing to conduct adequate due diligence in relation to its Mexican wind farm project, resulting in a violation of the rights of the Indigenous Zapotec community of Unión Hidalgo.

Kenya as a Case Study

Kenya is a signatory to the 2015 Paris Agreement on Climate Change and amongst the first countries to deposit its instruments of ratification of the Nationally Determined Contributions (NDCs) with the UNFCCC. The country seeks to pursue an ambitious mitigation contribution towards the agreement by abating her GHG emissions by 30% by 2030 relative to the Business As Usual (BAU) scenario of 143 MtCO2eq, and in tandem with the SDG agenda7.

Additionally, even before the passing of the Paris Agreement, Kenya was amongst the first countries in the region to develop and adopt the National Climate Change Action Plan (NCCAP). This shows the country’s commitments and proposed measures to take action to deal with both the negative impacts of climate change, as well as mitigation efforts aimed at cutting its national contributions to the emissions of GHGs.

However, in a bid to fast track energy transitions, there is need to ensure just transition that takes into account the local communities affected. The Lake Turkana Wind Power Limited project is illustrative in this regard. This is a critical source of low-cost renewable energy for Kenya and Africa’s largest wind energy project. It has 365 wind turbines each with a generating capacity of 850KW, producing a total of 300MW of electricity. The project will benefit Kenya by providing clean and affordable energy that will reduce the overall energy cost to end consumers. Further, the project will allow the landlocked Great Rift Valley region to be connected to the rest of the country through the improved infrastructure linked to the wind farm, including a road, fibre-optic cable and electrification. This zero-emission project will also contribute in filling the energy gap in the country, enhancing energy diversification and saving 16 million tons of CO2 emission compared to a fossil fuel-fired power plant.

However, courts in Kenya nullified the project land title deeds and revoked operating licenses because the land was acquired without the free, prior and informed consent and compensation of Indigenous Peoples and interfered with traditional grazing rights. The High Court in Meru nullified title deeds for the land on which the Sh70 billion Lake Turkana Wind Power project sits, because it was acquired irregularly.

Applying a just transition lens to climate action

By taking into account just transition, countries can better understand the impacts (positive and negative) of bold climate action and then identify the best solutions for their context. This will help to unlock the greatest benefits. A just transition strategy, embedded within short and long-term climate plans like NDCs and LTS, will help leaders stay focused on the urgent task at hand of rapid decarbonization, while also striving for fair and inclusive outcomes. Just transitions will also help to advance progress against all the Sustainable Development Goals (SDGs), notably those related to affordable and clean energy, decent work and economic growth, reduced inequalities, and responsible production and consumption.

At COP 28, the need for just transition should be at the core of discussions on energy transitions. This includes the need to protect human rights. A just transition would be one that measurably enhances all human rights, including, but not limited to the rights to health, healthy environment, equality and non-discrimination, and decent work promoting inclusion and equality. The necessary efforts to combat the triple planetary environmental crisis of climate change, biodiversity loss and pollution provide a unique opportunity to realign development pathways that should already be in accordance with human rights obligations and the Sustainable Development Goals. Just transition also includes implementing regulation on corporate human rights due diligence.

Shared prosperity for all workers and communities underpinned by fair negotiations and equitable benefits sharing is also at the heart of just transition. Enabling conditions such as robust, rights-centred corporate accountability regulation, coupled with legal, policy and financial frameworks that enable Indigenous Peoples to engage in these projects, are key to making Indigenous self-determined decisions a reality. This will aid in reversing the historical practice of concentrating power in the hands of a powerful few, while undermining the rights of Indigenous Peoples.

The paradigm shift to fast track energy transition at COP 28 is a noble initiative but will only be effective and inclusive in the Global South if there is real consideration of just transition initiatives.

*** The Center for Education Policy and Climate Justice (CEPCJ) joins the latest call by Civil Society Organizations for the UNFCC and state parties to centre shared prosperity and corporate justice in climate action ***