Securing Environmental Justice and Participatory Governance in Kenya's Oil and Extractive Sector

Topics

Project Overview

Capacity Building Seminar for Turkana County Members of County Assembly (MCAs)

Research on oil and gas governance framework in Kenya

Raising public awareness on critical extractive sector issues

Enhancing lawyers’ capacity to deal with extractive sector issues

Project Overview

Kenya is poised to become a key producer of oil and natural gas as well as other extractive resources. This follows the discovery of oil, natural gas and other mineral deposits in different parts of the country, and ongoing active exploration for more resources. However, concerns continue to be raised as to whether extracting these finite resources will lead to meaningful development for the country and her people, or plunge the country into the proverbial “resource curse”.

This project, supported by the MacArthur Foundation, seeks to ensure that the impending oil boom benefits the local communities in addition to ensuring sound environmental practices and the country’s economic development. The project is titled “Capturing the Promise: Securing Environmental Justice and Participatory Governance in Kenya’s Oil and Extractive Sector”. It is implemented in Turkana County, but with a nation-wide component.

 Activities:

  • Research on national and international legal and policy framework for the extractive sector governance
  • Capacity building/training for government, civil society and communities on the legal and policy issues of the extractive sector governance
  • Holding dialogues and policy outreach with different government officials to promote good governance in the extractive sector

Capacity Building Seminar for Turkana County Members of County Assembly (MCAs)

From 11th-12th November 2013, ILEG, in partnership with Friends of Lake Turkana (FoLT) conducted a two-day capacity building seminar for members of Turkana County Assembly. The focus of the seminar was to enhance the capacity of Turkana County Assembly members, with special focus on their legislative and oversight role in governance of land and natural resources. Renowned natural resource governance experts from Kenya and Ghana shared their analytical insights with the MCAs. They presented suggestions on how the MCAs can improve their performance on legislation and oversight especially in relation to land, oil and other natural resources.

 Background to the meeting

In March 2012, Kenya announced the discovery of commercially viable oil deposits in its Turkana basin in the Northern part of the country, by the British company Tullow Oil. Since then Tullow has discovered more oil deposits with the company’s current estimates of estimated reserves standing at 600 million barrels. The oil exploration and extraction and the accompanying infrastructural development no doubt holds a promise for economic liberation and development of the hitherto marginalized county as well as the country. Indeed, the Kenyan government is keen to position the oil and extractive industry as a key driver of economic growth in line with the country’s development blue-print, Vision 2030. But these important discoveries have brought to the fore a number of key concerns including environmental impacts; irregular land transactions; corruption in awarding prospecting and mining licenses; conflicts between communities and mining companies; lack of transparency etc.

 Unless these critical social, economic and environmental issues are carefully addressed, there are justifiable fears that the discoveries could be a source of conflict and lead to increased poverty among the host communities, a situation that has been termed the “resource curse”. In response to these concerns, ILEG is in the process of implementing a project aimed at promoting sustainable and transparent governance of the extractive sector in Kenya. The project, which is part of a wider project involving six other organizations, and supported by the MacArthur Foundation, involves research, policy advocacy and capacity building for communities, Civil Society Organizations and government officials. One important component of the project involves holding trainings and consultative meetings and engagements with different stakeholders in Turkana County. This particularly seminar was the first of those meetings.

 The County Assembly was chosen for this first meeting due to the important role they play as the representatives of the local people, as the county legislators and in providing oversight over management of the County’s resources.

 Below is the program agenda for the two-day seminar, where you may download presentations of the various presenters, as well as the final report.

Day One: 11th November 2013

 Introduction and welcome remarks

  • Ikal Ang’elei
  • Hon. Geoffrey Kaituko

 Challenges facing the county assembly in their oversight role in county governance

  • Hon. Geoffrey Kaituko

 Legal and Policy Context for Oil and gas in Kenya

 Energy, water and natural resource reforms and linkages to the extractive industry

  • Prof Patricia Kameri-Mbote

 Ghana experiences with oil and gas in international context: Lessons for Turkana County government

Day Two: 12th November 2013

Oil revenues and other county revenues: the oversight role of the county assembly

  •  Dr Mohamed Amin Adam

Strategic planning for assembly members’ engagement on extractives and natural resource

  • Ikal Ang’elei

 Next steps

  • Ikal Ang’elei

 The full workshop report is available here

Research on oil and gas governance framework in Kenya 

ILEG has conducted policy research on oil and gas governance framework in Kenya. The research is a key component of a wider initiative supported by the MacArthur Foundation to promote sustainable governance of oil and gas in Kenya. The research component involves developing two research papers and a number of policy briefs, with the ultimate aim of providing knowledge and information for capacity enhancement and evidence-based advocacy. Consequently, two research papers have been developed and subjected to a peer review and validation process. While not officially published yet, both papers have been disseminated widely at trainings and policy dialogue forums, and also through emails to key stakeholders and policy makers. They have helped provide a clear status on the legal and policy landscape and provided ILEG with scientific information to help support different actors in their engagements on legal and policy reform, capacity building, awareness creation and stakeholder engagement around issues of oil and gas at the national, regional, local and even international level.

Summary of the research papers 

The first paper gave a critical analysis of Kenya’s legal and policy framework relevant to oil and gas, with recommendations on how to improve the sector’s governance. It identified several gaps. First, there is no clear policy giving the government’s objectives and action plan for the sector. Secondly, the sector’s legal regime is outdated and does not adequately address critical sector issues such as equitable benefit sharing, community and environmental rights, transparency and accountability and local content development. Thirdly, the ongoing review of Kenya’s extractive sector-related legal and policy framework needs more coordination among different ministries and arms of government to avoid conflict, duplication and multiplicity of laws. Fourthly, there is an acute knowledge gap among key stakeholders on the technical and governance aspects of the upstream oil and gas, being a nascent sector in Kenya. The paper made a case for addressing these issues as part of the reforms to the legal and policy framework which was being undertaken in earnest in 2014

The second paper was a comparative analysis of international best practice in the sector, to help Kenya draw lessons from countries with well managed extractive sectors and avoid potential pitfalls. The paper gives useful lessons from Ghana, Botswana, Nigeria and Norway but warns Kenya to consider her unique circumstances and avoid blanket application of any country’s policies or principles. The paper presents the Niger Delta crisis in Nigeria as a classical lesson on how lack of transparency and accountability and an exploitative relationship between oil producing communities on one hand and the multinational oil companies and the state on the other can lead to natural resource curse. In Ghana, it identifies lack of clarity in petroleum policy direction, slow momentum in development of legislative framework and institutional overlaps, as some of the issues derailing the country’s otherwise promising oil and gas industry. Botswana’s innovative mineral taxation regime has led to a considerable extractive industry success. Transparency; public participation; political will; the rule of law; and developed democratic institutions have contributed to Norwegian petroleum sector’s success. 

The final research papers will be uploaded here upon official publication and launch. Below are the research consultants’ and main discussants’ presentations on the papers during the final peer-review on 16th June 2014 at Sarova Panafric Hotel, Nairobi.

Presentation: Legal and Policy Framework for Oil and Gas Governance in Kenya 

  • Dr Stephen Anyango, Senior Lecturer, Centre for Advanced Studies on Environmental Law of Policy (CASELAP) Download presentation 

 Discussants’ presentations on the paper on Legal and Policy Framework for Oil and Gas Governance in Kenya

 Presentation: Comparative Analysis and International Best Practices for Oil and Gas governance

  •  Dr Collins Odote, Senior Lecturer, Centre for Advanced Studies on Environmental Law of Policy (CASELAP) Download presentation

 Discussants’ presentation on the paper on Comparative Analysis and International Best Practices

Raising public awareness on critical extractive sector issues

Public awareness is a critical pillar of effective citizen participation in, and ultimately, sustainable governance of natural resources. Awareness creation is even more critical in the extractive sector, given that the sector’s highly technical nature and the fact that it is not well developed in the country. ILEG understood these realities, and initiated campaigns to educate the public, stakeholders and policy makers particularly on the legal and policy aspects of oil and other extractive resources in the country. This was accomplished through policy briefs, newspaper commentaries, press interviews and presentations at public forums. The institute developed two policy briefs based on analytical insights from researches it conducted. The first policy brief gave recommendations for improving the country’s extractive sector-related legal framework while the second one gave recommendations on how to ensure a good benefits sharing regime. The policy briefs were disseminated widely at trainings and policy dialogue forums, and also through emails to key stakeholders and policy makers. 

In addition, from the second half of 2014, ILEG’s senior researcher Dr Collins Odote became a regular contributor in the Business Daily, the premier regional business newspaper in East Africa. Dr Odote’s weekly column focusses on promoting sustainable governance of Kenya’s extractive sector. The platform was used to share some of the findings from ILEG’s research to a wider audience. Further to providing information and raising public awareness, the articles led to many inquiries for the research reports; requests for presentations at national and local level meetings on the extractive sector; and incorporation of some of the proposals in policy initiatives. Other than the Business Daily, the articles are also disseminated through ILEG’s website and on the Information Centre for Extractive Sector (ICES) website. Some of ILEG’s partners like Environmental Law Alliance Worldwide (ELAW) have also used some of the information from the publications in their own publications. 

The policy briefs and Dr Odote’s columns have greatly contributed to educating the public and policy makers on sustainable extractive sector governance, therefore contributing immensely to the realisation of the targeted outcomes of increased participation by communities in extractive sector policy discourse, contribution to the legal and policy formulation and putting a spotlight on the sector. 

Below are internet links to some of Dr Odote’s articles on extractive sector as published in the Business Daily in 2014: 

Extractive sector can learn from EAC dialogue, By Dr Collins Odote, Posted on the Business Daily on December 14, 2014

Conservation, exploration balance thin, By Dr Collins Odote, Posted on the Business Daily on December 7, 2014

Scale up human resource capacity, By Dr Collins Odote, Posted on the Business Daily on November 30, 2014

Let’s tax extractive industry prudently, By Dr Collins Odote, Posted on the Business Daily on November 23, 2014 

Enhance civil society role in mining sector, By Dr Collins Odote, Posted on the Business Daily on November 16, 2014

Stop multiplicity of laws in mining sector, By Dr Collins Odote, Posted on the Business Daily on November 9, 2014 

Balancing development and social needs, By Dr Collins Odote, Posted on the Business Daily on November 2, 2014

Why do communities always feel cheated?, By Dr Collins Odote, Posted on the Business Daily on October 26, 2014

Prioritize capacity building in oil sector, By Dr Collins Odote, Posted on the Business Daily on October 19, 2014

How to sustain role of extractive industry, By Dr Collins Odote, Posted on the Business Daily on October 12, 2014

Why access to information law is vital, By Dr Collins Odote, Posted on the Business Daily on October 5, 2014 

Let’s manage extractive industry prudently, By Dr Collins Odote, Posted on the Business Daily on September 28, 2014

Kenya need not suffer oil, minerals curse, By Dr Collins Odote, Posted on the Business Daily on September 21, 2014

Consultative Meeting with Turkana County Leaders and other stakeholders on sustainable exploration and development of oil and other natural resources in the county 

From July 24th-25th, ILEG, in partnership with Friends of Lake Turkana (FoLT) conducted a two-day consultative meeting with key Turkana County stakeholders. The meeting was part of the two organizations’ initiatives to promote accountable, inclusive and sustainable governance of oil and extractive resources in Kenya. It was organized to empower local leaders to promote good governance of oil and other natural resources in the county. Participants were drawn from the Turkana County Government executive, Turkana County assembly, community-based organisations, and resource persons for the meeting. They discussed key oil and natural resources exploration and production issues and challenges as well as opportunities available to the various leaders for addressing the challenges. 

Background to the meeting

In March 2012, Kenya announced the discovery of commercially viable oil deposits in its Turkana basin in the Northern part of the country, by the British company Tullow Oil. Since then Tullow has discovered more oil deposits with the company’s current estimates of estimated reserves standing at 600 million barrels. The oil exploration and extraction and the accompanying infrastructural development no doubt holds a promise for economic liberation and development of the hitherto marginalized county as well as the country. Indeed, the Kenyan government is keen to position the oil and extractive industry as a key driver of economic growth in line with the country’s development blue-print, Vision 2030. But these important discoveries have brought to the fore a number of key concerns including environmental impacts; irregular land transactions; corruption in awarding prospecting and mining licenses; conflicts between communities and mining companies; lack of transparency etc. 

Unless these critical social, economic and environmental issues are carefully addressed, there are justifiable fears that the discoveries could be a source of conflict and lead to increased poverty among the host communities, a situation that has been termed the “resource curse”. In response to these concerns, ILEG is in the process of implementing a project aimed at promoting sustainable and transparent governance of the extractive sector in Kenya. The project, which is part of a wider project involving six other organizations, and supported by the MacArthur Foundation, involves research, policy advocacy and capacity building for communities, Civil Society Organizations and government officials. As part of the project, ILEG and FoLT have been holding a series of meetings and engagements with different stakeholders in Turkana County. This consultative meeting thus builds on previous capacity enhancement meetings conducted in the county. 

Below are some of the topics covered during the two-day seminar, where you may download presentations and the final workshop report. 

Day one 24th July 2014

Opportunities and challenges facing Turkana County Government in management and oversight of County natural resources

  • Hon. Peter Lokoel, Deputy Governor, Turkana County 

Status of the legal and policy framework governing natural resources in Kenya, and Options for Policy Reforms

  • Benson Ochieng, Executive Director, Institute for Law and environmental Governance (ILEG) 

General Introduction to Petroleum Exploration and Production Issues

 Day two 25th July 2014

The role of County Government and Parliament in natural resources management. The case of Turkana County

  • Dr Collins Odote, Senior lecturer, centre for Advanced Studies on Environmental Law and Policy (CASELAP) 

Review of the Petroleum Exploration and Production Bill

Way Forward and Next Steps

  • Ikal Ang’elei

The final workshop outcome report can be downloaded here

Enhancing lawyers’ capacity to deal with extractive sector issues

In 2014, ILEG partnered with the Law Society of Kenya (LSK) to introduce capacity building on the extractive industry as part of LSK’s Continuing Legal Education (CLE) programme. CLE involves regular and continuous education and capacity building for lawyers so as to equip them with modern and relevant knowledge and skills on various aspects of the law. ILEG’s Benson Ochieng and Collins Odote made presentations at over five sessions organized for that purpose during the year in various parts of the country. Furthermore, ILEG partnered with LSK to organize sessions on extractives during the society’s 2014 annual conference. As a result of these engagements LSK established a standing Committee on Minerals, Oil and Gas to follow up the issues around the extractive industry. 

In addition, ILEG in partnership with Environmental Law Alliance Worldwide (ELAW) and the Law society of Kenya (LSK) organized training workshops in Kenya and Uganda for young lawyers interested in Public Interest Law and Litigation and social justice in Kenya and East Africa. Over 60 young lawyers from Kenya, Uganda and Tanzania participated at the trainings, which mainly focused on extractive sector-related issues. Trainings were delivered by seasoned public interest lawyers from Kenya, Tanzania and United States, and covered a wide array of topics including mineral rights contracting; and championing legal reforms for public interest. The Kenya seminar was held on 23rd June 2014 at the Sarova Stanley Hotel in Nairobi. Below you will find the workshop program where you may download presentations of the various presenters, as well as the final report of the workshop. 

Session I: Official Opening & Introductions Chairperson: Benson Owuor Ochieng – Director, ILEG 

Opening remarks

  • Jennifer Gleason – Staff Attorney, ELAW
  • Eric Mutua – Chairman, Law Society of Kenya
  • Maurice Odhiambo Makoloo, Regional RepresentativeEastern Africa Office – Ford Foundation 

Session II: Nature and Scope of Public Interest Environmental Litigation Chairperson: Dr. Collins Odote – Director, ILEG; Senior Lecturer, CASELAP 

Innovative Public Interest Environmental Lawyering for Sustainable Development

  • Waikwa Wanyoike (Discussant) – Executive Director, Katiba Institute; Co-Chair, Public Interest Committee, LSK

Session III: Making Economics Relevant Chairperson: Dr. Collins Odote – Director, ILEG

 Valuation of Natural Resources: What Lawyers Need to Know

  • Ernie Niemi – University of Oregon Download presentation

Session IV: Public Interest Environmental Litigation Beyond National Borders Chairperson: Dr. Rugemeleza Nshala – Director, LEAT

 Public Interest Litigation in Regional and International Fora.

  • Dr. Abraham Korir – Advocate; Legal Advisor, Executive Office of the Deputy President Download presentation
  • Japheth Yegon (Discussant), Legal Resources Foundation, SA

 Solving Contemporary Public Interest Environmental Litigation Challenges

  • Open Question and Answer Session

Session V: PIEL, Land and the Extractive Sector in Kenya Chairperson: Anthony Mulekyo, LSK, Kenya

 Understanding Natural Resource Concessions: The Role of Public Interest Litigation

 Session VI: PIEL and Legal Reforms Chairperson: Anthony Mulekyo – Advocate; Member, PCC

 Championing Legal Reforms for the Public Interest

  • Mr. Apollo Mboya

The final workshop report is available here