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Transparency and accountability are a central pillar of the good governance framework required to catalyse the extractive sector’s contribution to Kenya’s socio-economic development. Indeed, the need for greater accountability in Kenya’s extractive sector is well acknowledged by all stakeholders including government, oil and gas and mining companies and local community members. But despite this widespread recognition, concerns over lack of

openness, free flow of information, secrecy of mining and oil & gas contracts and accountability issues abound in the sector. This has led to perceptions that there is more rhetoric than actual work to expand extractive sector transparency and accountability in Kenya.

It is against this backdrop that the 10th Extractive Sector Forum (ESF) sought to unpack the meaning of transparency and accountability from the different extractive sector stakeholder perspectives, clarify key issues for transparency and accountability, and bring stakeholders to a common understanding. The ESF also sought identify practical solutions and ways to meaningfully improve transparency and accountability in Kenya’s extractive sector. This Policy Brief highlights the discussions and recommendations from the forum. The discussions are centred on four key issues: the role of global and regional voluntary mechanisms for transparency and accountability; the legal and policy framework for transparency and accountability in Kenya’s extractive sector; political will to realize transparency and accountability; and role of the media in promoting transparency and accountability. Recommendations include: encouraging civil society organizations to keep putting pressure on the government to implement voluntary mechanisms for transparency and accountability, as well as encouraging the government to demonstrate its commitment to improving transparency and accountability in the sector.

Read the full Policy Brief here.

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This policy brief contains highlights and lessons from the 9th ESF which discussed the legal and policy underpinnings for community engagement and its importance. The brief outlines the recommendations from the forum and also build on an institutional briefing paper that was developed to provide background to the forum. Among other things, the policy brief highlights: the difference between mere consultation with community and community engagement; the importance of meaningful community engagement; and challenges to the realization of effective community engagement. It ends with several recommendations such as encouraging all stakeholders to understand and better perform their community engagement roles, and urging that all necessary efforts be put into community engagement to be inclusive and participatory.

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On May 31st 2018, ILEG organised a county level Extractive Sector Forum (ESF) at the Cradle Tented Camp in Lodwar, Turkana County in Northern Kenya. The theme of the forum was ‘Land Rights and Land Acquisition for the Extractives Sector”. The forum was attended by officials from the National Land Commission (NLC), civil society, academia and professional working in Turkana. This policy brief summarises discussions and recommendations from the forum, as well as from other engagements and interactions with local community, government and other extractives and community development practioners in Kenya. The policy brief explores: the development model and its role in abuse of communal lands; implementation of Kenya’s land laws; procedures for land access and acquisition for the extractive industry; the role of local community structures; and the threat of the extractive industry to pastoralists, fisher folks and smallholder farmers. The policy brief gives a raft of recommendations which revolve around the need for: national and county government to speedily and diligently implement the Community Land Act, 2016; and national government to develop clear guidance on compensation and resettlement. Other include the need for: government, investors and all stakeholders to recognize, respect and work with traditional community structures during land access and acquisition processes, and to adopt the principle of Free, Prior and Informed Consent (FPIC); and to stave off land speculators.

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This policy brief summarises key points and recommendations gathered from the 7th Extractive Sector Forum (ESF) on “Kenya Early Oil Pilot Scheme (EOPS): What Does It Mean?”. The ESF sought to provide an opportunity to unpack the EOPS, clarify sticking issues around it, and to bring stakeholders to a common understanding. The policy brief thus discusses among other things, what the EOPS mean, concerns over its viability and the status of its implementation. It delves into some of the pertinent issues that arose from the forum such as incomplete legal reforms; lack of transparency in the EOPS implementation; non-completion of transport and other requisite infrastructure; and Environmental and social impact assessments for the EOPS. The brief concludes with key lessons and policy recommendations including need for: clarity around Kenya’s extractive governance framework; enhanced transparency; and a comprehensive and consultative environmental and social impact assessments ahead of the EOPS.

Read the full Policy Brief here.

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ILEG would like to take this opportunity to join the world in celebrating World Environment Day marked on 5th June every year. ILEG has made its pledge to the environment as follows:

“We pledge to continue working with local communities, governments, the private sector and civil society organizations to ensure fair, balanced and equitable development policy choices to improve peoples’ lives and protect the environment.
We pledge to continue seeking ways to transform the way governments make decisions and implement laws and policies,that affect the environment and natural resources.
This is our pledge to the environment and the people of the Republic of Kenya.”
– ILEG KENYA
World Environment Day is celebrated every year to raise global awareness to take positive environmental action to protect nature and the planet Earth. It is run by the United Nations Environment Programme (UNEP). It was established by the United Nations General Assembly in 1972 on the day that United Nations Conference on the Human Environment began. Like slogans, every event has a theme. This year’s theme is “Seven Billion Dreams. One Planet. Consume with Care.” “Earth Anthem” by poet-diplomat Abhay K was launched in June 2013 on the occasion of the World Environment Day. This year’s world Environment Day will be hosed in Italy.

World Environment Day Anthem
“Our cosmic oasis, cosmic blue pearl
the most beautiful planet in the universe
all the continents and the oceans of the world
united we stand as flora and fauna
united we stand as species of one earth
black, brown, white, different colours
we are humans, the earth is our home.

Our cosmic oasis, cosmic blue pearl
the most beautiful planet in the universe
all the people and the nations of the world
all for one and one for all
united we unfurl the blue marble flag
black, brown, white, different colours
we are humans, the earth is our home.”

“We have made our pledge, have you?”

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On Wednesday, 27th May 2015, the World Resources Institute (WRI), in partnership with the Institute of Law and Environmental Governance (ILEG), launched, at UNEP Gigiri (Nairobi), the first-ever interactive public platform that tracks countries’ progress in establishing national laws to promote transparency, accountability and inclusiveness in environmental governance, called the Environmental Democracy Index. This rendezvous also held the opportunity to disclose the results of the assessment made for Kenya in terms of its environmental democracy.

What is the Environmental Democracy Index?
The Environmental Democracy Index is a significant tool, developed by the World Resources Institute (1) and the Access Initiative (TAI) (2). It aims to measure the quality of laws and other legally-binding rules that exist at the national level in providing and protecting the rights of access to information, public participation, and access to justice in environmental matters. For assessing national laws, the tool is based on an international standard developed under the framework of the United Nations Environment Programme’s (UNEP) Bali Guidelines for the Development of National Legislation on Access to Information, Public Participation, and Access to Justice in Environmental Matters (3), commonly named the Bali Guidelines. There are 26 guidelines, internationally-recognized and completely voluntary, that have been adopted by the UNEP Governing Council in 2010 in Bali. Through these 26 UNEP P10 guidelines, 23 of them have been chosen for elaborating 75 indicators for the Environmental Democracy Index: 51 legal indicators and 24 practice indicators.

As the name suggests, the legal indicators assess laws, regulations and any other legally bidding rules in the following sectors:
• The Constitution and interpretations of the Constitution by competent bodies (e.g. The Supreme Court or Constitutional Court);
• The main national freedom of information law, public participation law and access to justice law (including access to administrative justice), if these exist;
• The apex environmental management law;
• Laws and regulations governing pollution control (including air and water quality laws), environmental impact assessments, terrestrial biodiversity (protected areas and wildlife), extractive industries, and forests;
• Laws governing the creation of environmental policies.

Concerning the scoring, each indicator has multiple choice responses, with scoring options between 0 and 3, with 3 always being the highest score. The indicator scores are averaged to produce a Guideline score. The Guidelines are grouped under three “Pillars”: access to information, access to public participation, and access to justice. The Guideline scores for each pillar are averaged to produce a Pillar score. Lastly, the three Pillar scores are averaged to produce an overall score for the country.
For carrying out this assessment, two lawyers from each country were chosen to score and review the indicators. These lawyers may have been recruited from civil society, government, the private sector, or academia. They were selected based on their experience and proficiency with the laws assessed for EDI. Finally, the scores were reviewed two more times by experts at the World Resources Institute, after the initial scoring and review was determined.

For more information regarding the background and methodology of this environmental democracy index, you can check the website: http://www.environmentaldemocracyindex.org/.

What are the results for Kenya?
The Environmental Democracy Index assessment aims to be worldwide, the index has evaluated environmental democracy in 70 countries already. Kenya accepted to be one of them.
For the first pillar on access to information (also named transparency pillar), Kenya got a score of 1.22 out of 3. Regarding the second pillar on access to participation, the score is 0.99 out of 3, and for the last pillar on access to justice, Kenya got the best score with a score of 2.16 out of 3. Finally, the overall score for Kenya is 1.46 out of 3.
Based on the legal index scores, Kenya is ranked 36th out of 70 countries around the world and 4th in Africa after South Africa, Cameroon and Zimbabwe, placing the country in the average.

The table below gives an overview of the different strengths and weaknesses analysed in Kenya for the three access rights:

Strengths and Weaknesses

Access to Information – Strengths
 The public has a clear right to request information from all branches of government, which is supported by strong constitutional and statutory protections
 There is a constitutional public interest test that can be used to force the release of otherwise confidential information
Access to Information – Weaknesses
 Only a limited amount of public health information must be proactively disseminated to the public.
 The government has no legal obligation to release information to the public in cases where there is an imminent threat to public health or the environment.
Public Participation – Strengths
 The government is obliged to provide the public with an opportunity to participate in the development of EIAs.
 The public have adequate time (sixty days) to submit comments on draft EIAs, following the notice period.
Public Participation – Weaknesses
 Although the public is given an opportunity to participate in the development of EIAs, this is required only once the scoping process has been completed, limiting the influence it can have in the process.
 The government only has to “take into account” the public’s comments. What this means is left to the discretion of the government.
Access to Justice – Strengths
 There are clear review procedures for refusals to requests for information and for challenges to administrative actions, which are heard by an independent and impartial court of law.
 A wide variety of remedies, including restoration, are available in environmental cases, which can be flexibly applied by the courts.
Access to Justice – Weaknesses
 There are very few positive measures to reduce barriers to justice in environmental matters.
 Information on procedures for administrative and judicial review are not made immediately available to the public.

Source: 2014 Environmental Democracy Index Results – Kenya

Perspective:
The Environmental Democracy Index seems to be an interesting and fundamental tool to protect these rights and ensure that environmental democracy does not remain only theoretical but truly exists in practice in Kenya and in all countries around the world. The index provides to citizens and governments important insights of what is already satisfactory in environmental laws and what needs to be done to improve the situation of the country in terms of environmental democracy.

As the index tends to evaluate 69 other countries in the world, this can also help a country to improve with the effect of comparison. Indeed, by comparing its own results with another country that presents better scores, it may influence and encourage a country to adopt the same laws, helping it therefore to enhance its institutions. In other words, the index can be a real driving force for a country that seeks to fit into sustainable development.

Nevertheless, the only downside of this assessment, in my opinion, is that the environmental democracy index does not take into account the practice indicators into the legal practice scores. Clearly, it does not measure implementation.

The index is clear about it, the aim of this assessment is to only evaluate laws. By doing this, the index helps to better analyse gaps and issues in laws for, let’s hope, thereafter reforming them. The supplemental practice indicators results provide only key insights into how environmental democracy rights are manifested in practice. However, legal and practice should not be separated for the final result as we need both indicators to know what we have in laws and what is really happening on the ground. By taking into account those two indicators, we can definitely have a result more based on the facts. The laws can sometimes be well-written – perfect, in theory – and ineffective when it comes to their implementation. Vice versa, laws can also be very poor in their wording and be well implemented in practice.

Results must reflect somehow the situation that prevails in the country in terms of environmental democracy. Those results should stem from an assessment through laws, but also and above all, through practice. Indeed, the results of practice indicators may also largely help to fill the gaps. To not include them is clearly to put the veil on a part of the truth and therefore to offer a result that do not illustrate the reality.

Of course, it is extremely important to assess laws but I do not imagine a legal assessment such as the environmental democracy index to dismiss the practice indicators results in the final score. They can be calculated separately, but we – experts, citizens, governments – need to know what is the score for legal indicators and what is the score for legal indicators by taking into account practice indicators.

I also admit it that it is not an easy task to score practice indicators, it requires more energy, more time, more people to fulfil the mission. However, I do believe we need accurate results to have the hope of concrete advancement in this area.

I heard that the next environmental democracy index will take more practice indicators into consideration, I am sure this will help all of us to make more progress in kenyan laws and practices.

References:

(1) http://www.wri.org/

(2) http://www.accessinitiative.org/

(3) http://www.unep.org/civil society/Portals/24105/documents/Guidelines/GUIDELINES_TO_ACCESS_TO_ENV_INFO_2.pdf

*Julie Boyer is Legal Research Associate at the Institute of Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.

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Kenya is in a period of interest in exploration and development of oil, natural gas and other mineral resources in the recent past. Other natural resource sectors such as fisheries, forests, and hydro-power are also increasingly attracting investments both from local corporations and multinational companies. Contracts relating to these resources are in most cases signed between the national government and the companies, with parliament. The Constitution of Kenya 2010 sought to change this by requiring parliament to ratify agreements relating to natural resources. The Constitution states in Article 71 states that a “transaction is subject to ratification by Parliament if it––(a) involves the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resource of Kenya. The Constitution further requires Parliament to enact legislation providing for the classes of transactions subject to ratification and to give effect to the provision above. The timeline given by the Constitution for the said legislation to be enacted by Parliament is 5 years from the promulgation of the Constitution. This time limit expires in August 2015 which means the legislation has to be enacted before then.

In order to comply with this requirement, the Ministry of Environment, Water and Natural Resources (MEWNR) set up a technical Committee and hired a Consultant to develop the Bill. The Consultant, Prof Albert Mumma from University of Nairobi has since developed a draft Bill, the Agreements Relating to Natural Resources (Ratification by Parliament) Bill. Following invitation from the Ministry, ILEG Executive Director Benson Ochieng has been part of the Technical Committee working on the Bill.

Draft bill on Agreements relating to Natural Resources (Ratification by parliament) Act.
The bill is divided into six parts: Preliminary; Classes of Transactions; Submission of the agreements to the cabinet secretary; Procedure for ratification; Administrative arrangements; and Miscellaneous provisions. The following is a brief overview of the main features of the draft bill.

Preliminary
An agreement relating to natural resources is defined in the bill as an agreement whether or not in writing, which grants to a party the right to exploit a natural resource and includes permit issued under county or government legislation.

Analysis
The above means therefore an agreement can either be a contract or a license. Whether or not the contract can be oral is yet to be agreed upon. Of interest to our discussion though is the aspect of a permit as a form of an agreement. The Bill therefore alludes that a person seeking to exploit natural resources in Kenya can present to parliament for ratification a contract or a permit issued by a local authority in line with legislation .In this case the permit becomes precedes the contract, while the contract in our case precedes the permit.

The Bill defines a beneficiary as one who has been granted the right to exploit, while a grantor is one who grants this right.
The term cabinet secretary is defined in bill as the cabinet secretary for the time being responsible for natural resources.

Analysis
This definition presents a conflict due to the existence of the problem of multiplicity of players as regards management of natural resources in Kenya. This therefore raises the question of, who is to be the cabinet secretary of in this Bill. Article 132 of the Constitution of Kenya seems to be the proposed solution. This Article provides empowers the president to appoint cabinet secretaries in accordance with Article 152.The fallback position in case the president fails to appoint a cabinet secretary seems therefore to be the one adopted by the Bill.

Natural resources mean natural resources as defined in Article 260 of the Constitution. This refers to the physical non-human factors and components.

Analysis
This definition would seem likely to gain criticism for being too broad. It however is worthy to note that a new definition by the Bill would risk a failure to include all natural resources in Kenya and thus the definition by the constitution would seem to be appropriate as captures it all.

Parliament is defined as the National Assembly and the Senate, while the relevant house is either of both depending on the context in which the phrase is used.

Analysis
According to the Bill, this means both houses will ratify the agreement. The issue however is which committee of the parliament will be responsible for this?

Section 3 provides for transactions entered into between the effective and commencement date. These transactions will be deemed valid. It further states that any exploitation of natural resource in Kenya contrary to provisions of the Bill will be deemed unjust enrichment and beneficiary of exploitation refund to the government financial benefit obtained from the exploitation.
Analysis

Two issues are raised in this context. The Bill does not provide for agreements already entered into before the effective date. The second issue is, the requirement to pay a refund may encourage furtherance of none ratified transactions as the refund maybe too little a burden to the beneficiary, hence suggestion to put an alternative penalty. The refund costs should also be inclusive of costs of loss and destruction to environment.

Classes of transactions
Section 5 provides for 5 classes of transactions. These are concessions relating to exploitation of endangered species, protected areas, with a national of a foreign state, for taking resources out of Kenya, those under the Public Private Partnership Act, 2013 and for private commercial benefit.

Section 5(2) provides for transactions that shall not be subject to ratification unless parliament by a majority vote, decides to ratify transaction relating to this section. These transactions are those that are for subsistence purposes, for scientific research, educational or non-commercial purposes, those that have already been through the process of public consultation and those that have followed an open tender process in line with our laws.

Analysis
This section though imperative in one sense, as the burden on an individual person of this law would be burdensome and costly. In light of this, it therefore opens a doorway for a number of issues. First, there is a risk of people presenting their transactions in this classes as a disguise, secondly, this section is oblivious to intellectual property rights of indigenous people and third the tendering process in Kenya is always rigged with corruption and this is just an open door for the same.

For purposes of Section 5(2), Section 6 requires that these agreements should anyway be notified to the cabinet secretary. It further states that these transactions will become valid after 30 days have lapsed, without a majority vote.

Analysis
One would argue that this section beats the purpose of section 5(2) as still in a subtle way the transactions are still part of the rigorous process of getting approval. The argument however is this section is not meant to beat it’s purpose, but to acknowledge that parliament retains the power to ratify any transaction regardless of its nature as empowered by the Constitution.

Section 6(2) states that an agreement entered into during a period when parliament is not in session, the time will begin to run on the day parliament resumes. This is to deter people from taking advantage of time when parliament is not in this session to enter into these transactions.

Submission of agreements to cabinet secretary
A beneficiary is required to submit the agreement to the cabinet secretary within 14days of entering into the agreement. This is to be accompanied by a memorandum that is to state as provided for in section 7(2).

Analysis
The requirements that accompany the agreement in this section, fails to include a clause on the analysis of sustainability of the exploitation. This is imperative as the transactions that are ratified should be geared towards sustainability as required by our constitution.

Within 7 days of its receipt the cabinet secretary will give one copy of the agreement to the clerk in each house of parliament. Section 9 provides that there is an implied term that compliance with the Act is a condition to an agreement’s validity as lack of agreements not ratified in accordance with the Act shall be void; Section 10.No public officer is bound to give effect not such an agreement.

Analysis
Kenyan public officers are notorious for sometimes if not most failing to comply with the law. It is in line of this that it was suggested that to include a criminal offence for both the beneficiary and public officer who fails to comply with this requirement.

Procedure for ratification
Upon receipt from cabinet secretary, the clerk will refer it to relevant committee of the house. This transaction shall then be publicized inviting the public to give their comments within seven days, Section 11.

Analysis
The question that arises therefore is, which media platform would then be used to divulge this information to reach the public most effectively and even then, would 7days suffice, as sufficient public consultation?

Section 12 provides for preliminary determination of the class that the transaction falls in, to be done within 14days.Upon determination, this will be submitted to the speaker of the relevant house. Where neither house passes resolution by a majority vote within 30 days, the agreement shall become effective in terms of section 6.

Where agreements are subject to ratification, the agreement will be tabled in the relevant house within 90days.The agreement will be deemed ratified unless within 120days the relevant house resolves it not ratified or requires modifications on the agreement, which then will go through the same procedure, section 14.If referred to mediation, the parliament will resolve to ratify or not ratify within a further 60days.

Where there is a different resolution in the houses, section 15 states that procedure to be followed is that in Article 112 and 113 of the Constitution.

Analysis
The timelines provide by the Bill are well reasoned, however, the risk of backlog of the numerous agreements being submitted to the parliament seem like an eminent danger to the successful and realistic running of the ratification process.

The relevant considerations the parliament should consider before ratifying agreements are listed in section 17.In making this considerations, parliament is required to be guided by relevant considerations and remain objective on the merits and demerits of the agreement.

Analysis
Additional consideration that have suggested:
a)Host community benefit
b)Environmental sustainability

Where the parliament is requested to ratify or require modifications on an agreement, it will avail opportunity to the parties to make oral presentation to the committee of relevant house, section 17.

Administrative procedures
A secretariat is established under section 19 to discharge functions of cabinet secretary. A register is to be maintained for the agreements, in an electronic format and members of public may inspect it at no charge or on payment of reasonable fee for a copy made. This is to be duly stamped.

Where a party pleads confidentiality, they will apply to the cabinet secretary who will communicate as soon as practicable. Where information is certified confidential, the agreement will not be availed to the parliament, only its summary Confidentiality of any agreement may be challenged in the High Court.

Analysis

This may also be an avenue that maybe exploited by some parties, hence the court platform to challenge the agreement. The question however, what qualifies an agreement’s confidentiality? Is an agreement still confidential when the information could cause public harm? Non-disclosure should not be to the extent of causing harm to the society.

Miscellaneous provisions
These provisions Section 23-26 provide for regulations, computation of time, prohibition of amendments following ratification and offences.

Analysis
The offences contrary to the Act are few compared to the various offences that can arise from the process of ratification. It was strongly suggested that the offences list should include offences such as falsifying of documents, public officer and individual who acts contrary to act.

Conclusion
The draft bill has well captured the main issues that are relevant. It is however noteworthy that a few vital elements that have been raised in various platforms and public consultations that have been overlooked and it is with this we hope the same shall be noted and included in the draft bill,for it to be more legally sound.

*Ruth Nzioka is a Legal Researcher at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.

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An increasing number of national and regional support programmes and new funding approaches and initiatives are emerging particularly in industrialized countries seeking to strengthen local climate action through financial and capacity building measures. Efforts to improve enabling conditions for local climate actions are being undertaken and important lessons are starting to emerge:  improving planning and implementing capacities in local level governance institutions and initiating and advancing learning exchanges among the institutions. Moreover, the results of such initiatives are increasingly being fed back into national and international climate policy processes in order to promote their replicability.

To contribute to the above global efforts, The Institute for Law and Environmental Governance (ILEG) and adelphi Germany GmbH are partnering in implementing an International Climate Change Initiative (IKI) on “Strengthening national and county capacities to promote climate resilient low carbon development at county level in Kenya: Learning through exchange and networking.” The project is funded by Germany’s Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMUB). Its overall goal is to contribute to the achievement of national climate-resilient low-carbon targets and priorities. County governments in Kenya are crucial in national climate policy, with decisive roles in the country’s climate-resilient low-carbon development and strong potential to promote efforts towards achieving national and global mitigation goals. The project will be implemented in Siaya and Kwale counties in Kenya.

As one of the activities under the project, ILEG organized for an inception workshop on 24th June 2015 at Sarova Panafric Hotel in Nairobi, Kenya. The participants to the workshop were key stakeholders drawn from community representatives, civil society, government, private sector and development partners. The workshop aimed at presenting the project to the stakeholders to seek convergence with the ongoing initiative, while exploring the gaps, barriers, and challenges encountered in achieving low carbon development. It was envisaged that this would  help align the project’s priorities with national and county climate change adaptation and low-carbon development planning priorities in Kenya.

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This refers to a branch of law that prevents, mitigates, remedies or compensates for harm done to the environment. The necessity lies in the rapid degradation of environment and the need of efficient environmental management. The right to defend the environment is usually provided for by the laws of each country, either constitutionally or by an Act of parliament. These laws will usually include a provision allowing “any person” to bring suit in court against “any person” who violates the statute. These law suits have many unique characteristics that distinguish them from typical civil litigation.

Usually in the common law countries, for one for one to file a suit, one must have locus standi. This becomes difficult to prove in environmental cases. However, this problem was resolved with the enactment of the Environmental Management and Coordination Act, No.8 of 1999.It spells out that every citizen has a right to bring an action to protect the environment and does away with the requirement of sufficient personal interest. The Constitution of Kenya, 2010 provides in Article 42 that every citizen has a right to a clean and healthy environment. It further provides in Article 70, where an environmental right is violated or is likely to, the person may apply to court for redress. Article 22(c) sums it up by stating that every person has a right to institute court proceedings claiming that a fundamental right has been violated in the interest of the public. All this simply means that anyone of us can bring an action in court with the interest of protecting our environment. An action can be brought for public interest litigation under the following:

  1. Environmental degradation
  2. Violation of basic human rights of the poor
  3. Content or conduct of government policy
  4. Compel municipal authorities to perform a public duty
  5. Violation of religious rights or other basic fundamental rights

According to Bhagwati J. in Bandhua Mukti Morcha-Vs-Union of India, AIR 1984 S.C. “Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice, which is the signature tune of our Constitution”.

Public interest litigation has been used as an effective tool to control acts of environmental degradation. In Uganda for example, civil societies have been active in compelling government and private organizations to observe measures to protect the environment. In TEAN Vs Ag and NEMA [Misc. Application No. 39 of 2001], court forced a tobacco company to increase the size of the cigarette warning on cigarette packs and advertisements; the court also held that public smoking pollutes the environment and is a danger to the health of non smokers. In India smoking was held to be a violation of the right to life of non-smokers in Ramakrishnan and others Vs State of Kerala [AIR 1999 Kerala 385], while in Enviro-Legal Action Vs Union of India [1996] 2 LRC 226, the Indian supreme court held that uncontrolled pollution of water sources and air by industrial wastes was a threat to right to life.

Although a vital branch of law, people are yet to start using it as a tool to safeguard a clean and healthy environment. This can be attributed to the fact that though not a new concept, it is being made aware to the citizens, while for others it seems like an unrealistic venture and futile as gains one no personal benefits as seen in civil suits. Its uniqueness thus creates a number of challenges which i discuss briefly.

  1. Non-justiability First and foremost the some environmental cases have been held by American and Canadian courts as non-justiciable. This is tortious actions in nuisance concerning greenhouse gas emissions. Defendants to such climate change litigation have argued that courts lack subject matter jurisdiction to adjudicate the plaintiff’s claims as they raise non-justiciable political questions. Common law tort claims do not present non-justiciable political questions. The only issues are those inherent in the adjudication of the plaintiff’s common law tort claims. There is no federal constitutional statutory provision committing any of these issues to a federal political branch.The issue of justiciability needs to be addressed by potential public interest litigants in the choice of the type and subject matter of the litigation. A wrong choice could doom the litigation from the start.
  2. Willing and able plaintiffsWhile there may be legal suits capable of being brought to prevent, harm to the environment, which are justiciable by the courts, citizens or citizen groups must be willing and able to bring them. Willingness is a product of not only enthusiasm and zeal for the environmental cause but also a cultural attitude. The cultural tradition of the country needs to support, and not impede citizen access to justice through legal suits. Public interest litigation is often a form of protest, challenging powerful interests in the government and the private sector.Where protests and challenges to power are met with sanctions, citizens and citizen groups will be inhibited from taking public interest litigation. Hence, promotion of public interest litigation involves promotion of democratic principles of free speech and assembly, and access to justice.Ability is a product of many factors, including knowledge and experience of the subject matter of the legal suit and of the substantive and procedural law governing the suit, the capacity to access sufficient and adequate human, financial and material resources to bring and maintain the suit, and personal attributes such as dedication, perseverance and resilience. Public interest litigation is not easy, only special plaintiffs prevail
  3. Knowledgeable, experienced and willing lawyersCitizens and citizen groups can represent themselves in courts; they are not required to be represented by lawyers. However, lawyers can improve the prospects of a citizen action succeeding if they are knowledgeable and experienced in litigation, especially in litigation of the type and subject matter of the particular action. Public interest litigation, by its nature, complexity and importance, justifies engaging the assistance, advice and advocacy of leading lawyers. There is a need, therefore, to facilitate access to such lawyers, including by addressing the issue of cost.
  4. Funding of litigationA critical issue for the public interest litigant is how to fund public interest litigation, including the cost of access to leading lawyers. There are numerous methods that have been used around the world. First, the public interest plaintiff can raise the funds themselves. For citizen groups, this tends to be difficult. Fundraising activities and events tend to raise only a small proportion of the funds needed.Philanthropic funding source, such as charitable foundations and donors, are usually disinclined to fund litigation because of its adversarial nature.Secondly, plaintiffs and the lawyers can agree to seek legal aid for the particular case.

    Legal aid is usually provided by the government. In Kenya however, legal aid public interest environmental matters is difficult to obtain as some of the environmental issues sought to be challenged are of interest to the government.

  5. lack of awareness

Generally, there is a high level of ignorance on environmental issues. This is because society feels there are bigger problems to solve other than planting a mere tree. This therefore means, citizens who are environmentally conscious will be the only ones to take cases to court. On the other hand lawyers and judges will only facilitate protection of the environment if they are aware of environmental law and their role in management of the environment.

  1. Intimidation/threats/corruption

It is obvious public interest environmental litigation challenges the powerful in the society. This therefore presents a difficult battle for the weaker person, as they will use all means necessary to frustrate the litigation, if not being frustrated they will receive threats that maybe to extreme seeing a litigant withdraw the lawsuit.

In light of these challenges, the importance of public interest litigation cannot be overstated. It may be one of the less attractive law branches but indeed the most important as it is one of the tools the world is using to safeguard sustainable development for the present and future generations. Public interest litigation is important because of several factors. These are:

  1. a) In most developing countries, the legal regime of environmental laws is weak and the laws are difficult to enforce and sometimes ambiguous. Public interest litigation has helped bridge this gap.
  2. b) Public interest litigation is important where the government is not willing to promote/protect the environment. The government may not be willing to prosecute those who violate environmental laws and at times the government is a violator of environmental laws. In some jurisdictions an injunction can be brought to compel or stop the government from degrading the environment.
  3. c) In most developing countries governments lack resources to prosecute and investigate all the criminal cases that take place within its jurisdiction. Public interest litigation enables individuals to bring action on behalf of the community, a role the government may not play.
  4. d) Where criminal remedies are not enough, e.g. a fine may be too small compared to the amount of environmental degradation. A civil suit is well suited for orders such as restitution and compensation which may not be provided for by criminal laws of a country.
  5. e) Where criminal remedies are not enforceable, e.g. where a crime is committed by a company and yet the punishment for the crime is imprisonment, it becomes hard to punish the company. Litigation on behalf of the public can be brought as a tort under negligence, nuisance and the rule of strict liability in Rylands Vs Fletcher.

The success of public interest environment litigation in Kenya in promoting sustainable development will depend on the level of environmental awareness and willingness. It further requires the existence of a supportive group of lawyers trained and experienced in environmental law and who are willing to take up environmental cases. Most importantly however, success in public interest litigation will depend on co-operation  and role of all stakeholders, given the complex political nature of the environmental question.

*Ruth Nzioka is a Legal Researcher at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.

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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

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