In the last three years, there has been great interest and attention to the oil and gas sector in Kenya; this has been triggered by the oil discovery in Turkana in 2012. This discovery has led to a lot of interest in Turkana county specifically and other exploration areas in general. Though Turkana has majority of the exploration blocks, there is intensive exploration elsewhere in the country with some of it being offshore. Other counties where exploration is taking place include Isiolo, Marsabit, Kisumu, Wajir, Mandera , Lamu (mainly offshore) and Baringo .
In response to the oil activities, the government has gone ahead to cash in on the anticipated Oil boom by licensing more and more companies to explore the resource. However, it is important to note that since Kenya had no keen interest in the oil and gas industry due to past failures in the exploration field, there was minimal legislative and policy framework development, therefore the legal and policy guidelines are chasing after the exploration activities.
In the absence of the legal and policy framework, there has been little or no transparency and accountability on the part of the government and oil companies. This has led to mistrust by the communities and tensions have been witnessed since March 2012 when the first oil find was announced. In one of the incidences, there was stoppage of oil drilling activities in Turkana as the community demanded engagement and disclosure of what they stood to benefit from the exploration. Though the situation calmed down, it is still not clear what policy the government and the companies are using to ensure Community Engagement. It is important to note that the Constitution of Kenya requires that citizens must be involved and participate in decision making. As a result of intensive lobbying and advocacy, there is an improvement but the government needs to involve communities in decision making.
Though oil and gas has been given most of the attention due to its economic potential, the mining sector has not received such attention despite the fact that there is a lot of exploration and mining in the country. In Kwale County, the exports of Titanium began in 2014 and there is exploration of Niobium in the same county. Because of the secrecy in which the state operates, the local community mobilized against the exploration leading to cancellation of the mining licenses by the central government. The mining sector is older and more widespread but with an outdated legal framework.
The artisanal mining for example is not featured in the legal framework and even in the proposals of the new Mining Bill, it had been omitted but due to intervention of KNCHR and other stakeholders, it was included. It is hoped that parliament passed the bill with substantive inclusion of the issues raised by KNCHR and other stakeholders. On the same note, the level of unregulated mining in the country is widespread with malpractices such as acquisition of community lands without proper compensation and resettlement of affected communities.
The extractive sector therefore needs a lot of monitoring and advocacy for human rights inclusion in the legal and policy framework as well as practice by both the government and the private companies to forestall any human rights violations.
The UN Guiding Principles
In recognition of the potential for businesses to violate human rights, the UN Secretary General appointed a special representative to look into the human rights issues of transnational corporations and other business. It is from this process that the UN Guiding Principles on Business and Human Rights was born. The Human Rights Council endorsed the Guiding Principles in its resolution 17/4 on 16th June 2011. These guidelines are widely used in the world on matters of business and human rights. It is this framework that KNCHR bases its work on business and human rights, to build capacity and promote advocacy for good business practices.
The key pillars of the Guiding Principles are:
- Governments’ role in protection against human rights abuses by businesses
- The businesses’ duty to respect human rights
- The need for remedial measures when violations occur
The principles have a clear mandate for National Human Rights Institutions;
‘National human rights institutions that comply with the Paris Principles have an important role to play in helping States identify whether relevant laws are aligned with their human rights obligations and are being effectively enforced, and in providing guidance on human rights also to business enterprises and other non-State actors’
The Key Human Rights Concerns
The Kenya National Commission on Human Rights has been monitoring with keen interest the ongoing activities in the extractive sector. The Commission has consistently engaged both the state and the companies urging use of Human Rights Principles and standards in the sector. Though it can claim progress, there is a lot of ground to be covered in order to have a sector that complies with human rights standards. The Commission identifies the following issues as crucial in the extractives sector.
- Community Engagement- The commission believes that in order to have sustainable extractive activities, the government and the companies must engage communities actively in order to gain confidence and buy in from the communities.
- Disclosure of contracts- in order to promote transparency and accountability, the contracts must be made public as stipulated in international guidelines such as the Extractive Industry Transparency Initiative(EITI) and the UN Global Compact among others
- Benefit Sharing- there needs to be a formula between the state and the communities on how to share revenues. This will go a long way in creating ownership by the community and avoid confrontations.
- Security: this is one of the most important aspects to consider in the sector. The sector is capital intensive and hence very expensive to run. Therefore there is a high demand for security which is mostly provided by private companies. Since there is frequently conflicts between the companies and communities, there is tendency to use excessive force against the communities. At times the state security agencies assist the companies to enforce this security, sometimes with lethal consequences. This needs to be managed in a manner that respects human rights.
- Human Rights Violations: there are a lot of violations that occur in the extractive sector that need to be addressed and prevented, such as child labour (especially in mining), displacement. Loss of livelihoods, environmental pollution etc.
- Abuse of office and corruption with regard to issues such as land acquisition.
- To empower communities to participate in decision making within their localities
- To build the capacity of government and businesses to use the Guiding Principles on Business and Human Rights and other international principles and standards in business and human rights
- To entrench human rights principles and standards in laws and policies
- To conduct human rights due diligence- investigate and document the observance of human rights principles and standards in the cement belt in Ngaie in Kitui County
- To investigate and document incidences of abuse of office and corruption with a view to seeking redress for victims
- Empowered communities able to claim transparency and accountability from the state and business entities
- Governments and businesses capacity built to observe human rights principles and standards
- Laws and policies that are compliant with human rights principles and standards enacted
- A report on the status of human rights in Ngaie- Kitui County
Areas of Focus
The Cement extraction areas in Kitui- Ngaie area
The oil, geothermal and mining activities in Baringo
Mining activities in Taita Taveta and Kwale Counties; and the oil and lapsset projects in Lamu