Securing Communities’ Right to ‘Free Prior and Informed’ Consent in Kenya’s Extractive Sector
Extractive resources, when well-managed, have the potential to trigger broad based socio-economic transformation as they often result in windfall revenues and other economic benefits such as jobs and support for industrialisation. When these resources are poorly managed, they often result in socio-economic and political skewedness that disproportionately affects the poor and marginalised, while a privileged minority reap the benefits. Kenya’s extractive sector, particularly the oil and gas sector is nascent and emerging, with potential to change the economic status of communities if handled properly. However, lessons from most African countries in Africa have been that there has not been prudent planning and management of most natural resources and especially oil, leading to massive exploitation of communities and little improvement of the poverty status in the resource rich-areas. It is important that Kenya averts this ‘resource curse’ by mitigating any loopholes and promoting adherence of good practices from the on-set of operations.
Oxfam in Kenya, in line with its country strategy which aims at influencing positive policy and practice changes supported by evidence, commissioned a research to assess Tullow Oil’s implementation of Free Prior Informed Consent (FPIC) in the Turkana oil fields. The research, titled- ‘Testing Community Consent: Tullow Oil Project in Kenya’- was premised on Tullow’s application of FPIC in Turkana given that one of the project partners exploring and developing the blocks in the South Lokichar Basin, Africa Oil, received funding from the International Finance Corporation (IFC). As the operator of fields and as a condition for IFC funding, Tullow Oil is obligated to comply with the IFC Performance Standards, including the requirement to obtain Free, Prior and Informed Consent (FPIC) of communities of indigenous peoples affected by their operations. The research was also informed by the need to assess Tullow’s performance against its own Human Rights Policy which requires the company to obtain ‘broad community support’ and ‘the informed agreement’ of communities affected by projects. While the primary focus of the research was on Tullow and its implementation of FPIC- the research findings and recommendations provide important lessons for other companies and other stakeholders in the extractive sector including local communities, civil society, government and project financiers.
Oxfam defines FPIC as ‘the principle that indigenous peoples and local communities must be adequately informed about projects in a timely manner and given the opportunity to approve (or reject) a project before operations begin’. This includes participation in setting the terms and conditions that address the economic, social, and environmental impacts of all phases of extraction and post-extraction operations.’
Further, communities should have the right to continue to provide informed consent, or alternatively to withdraw consent, during the implementation of the project, in line with agreed procedures. According to Sumananjali Mohanty, Oxfam’s Country Director in Kenya, the rights of communities must be upheld from the on-set of projects, as communities are one of the key decision-makers. An important element in any meaningful and transformational development process must be driven by communities making informed choices and holding all stakeholders to account.
A major finding of the FPIC research include that Tullow’s community engagement process has improved since 2015. However, there remain challenges related to the participation of women in consultation processes as traditional pastoralist practices make it harder for women to know about, participate in or influence consultations as currently structured. Consultations have largely also focused on the short-term implications in terms of land access for the exploration phase without assessing implications for the community with respect to the full range of potential risks and impacts throughout petroleum development process. The research also found that FPIC implementation also requires that county and national governments provide support and oversee the consultation process while not derogating from their responsibility to support the development of local communities.
There exists room for improvement and the research recommends the following key actions, for a truly FPIC compliant process:
- Facilitation of efforts by communities and county governments to document consultation processes and agreements in appropriate languages and to ensure that this is readily accessible by all community members including following through on all outstanding commitments related to negotiations over land access or are part of the company’s corporate social responsibility efforts.
- Strengthening of implementation of the IFC performance standards through use of third parties and independent specialists, such as legal advisors, to support communities in understanding issues and monitoring FPIC.
- Enforcement of contract disclosure by IFC to ensure that communities have adequate information regarding the fiscal terms of agreements reached between companies and governments.
- Diversity consideration by community leaders in participation and decision-making processes, especially for marginalised groups like women, the youth and pastoralist communities. National and local governments require to be more actively involved in consultation processes, in overseeing negotiations and in helping to shape agreements for the benefit of local community members.
Full report can be downloaded here https://oxf.am/2hKHZ8A