UNIVERSITY OF DAR ES SALAAM

The Human Rights of Indigenous Communities in their Engagements with Private Sector
Investors: A Study of Tullow Oil PLC and the Turkana people of North-Western Kenya

Emmanuel Ekai Nabenyo

Registration Number: 2017-06-00771

Master of Laws (Migration and Refugee Law)

International Human Rights Law

School of Law

University of Dar es Salaam

May 2018

Instructor: Dr. James Jesse

Table of Contents

1.0: Introduction..............................................................................................................................3
2.0: Protection of Minority Rights...................................................................................................6
3.0: The Legal Framework for Human Rights Protection in Kenya................................................7
3.1: International..............................................................................................................................7
a) Universal Declaration on Human Rights, 1948...........................................................................7
b) United Nations Basic Principles and Guidelines on Development Based Evictions and...........8
c) Declaration on the Rights of Persons belonging to National or Ethnic, Religious and...............8
d) United Nations Declaration on the Rights of Indigenous People, 2007......................................9
e) United Nations Protect, Respect and Remedy Framework, 2008.............................................10
f) ILO Convention No 169 Concerning Indigenous and Tribal Peoples in Independent..............10
g) International Covenant on Civil and Political Rights (ICCPR), 1966......................................11
h) International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966................12
3.2: Regional..................................................................................................................................13
African Charter on Human and People’s Rights, 1981.................................................................13
3.3: National..................................................................................................................................14
a) Constitution of Kenya, 2010......................................................................................................14
b) Petroleum (Exploration and Production) Act, 1986..................................................................15
c) Environmental Management and Coordination Act, 2000........................................................16
d) Community Land Act, 2016......................................................................................................17
e) Petroleum Development Fund Act, 1991..................................................................................19
4.0: Private Sector Investments vis-à-vis Human Rights: Experiences from Turkana County.....19
5.0: Conclusions and Recommendations.......................................................................................26
The Need for a Community Compensation Act............................................................................28
Disclosure of Payments Paid by the Oil Company: “Publish as You Pay.”..................................29
Environmental Impact Assessment................................................................................................29
Local Community Participation.....................................................................................................30
BIBLIOGRAPHY..........................................................................................................................31

2
1.0: Introduction

Indigenous communities across the world have severally been victims of human rights violations

by multinational corporations dealing in energy, oil and gas, geothermal, mining, fishing, large

scale plantations, cutting of forests for timber just to name but a few. In the infamous Niger

Delta scenario, Shell BP-a French oil and gas company, in blatant disregard of the human rights

of the communities in the regions it was carrying out oil and gas exploration failed to prevent oil

spills which later infiltrated the traditional community’s lakes and water systems, poisoning

them.1 Cases of local community members being murdered as a result of voicing dissent and

fighting for their community rights have been documented by human rights organizations.

In Mombasa, Kenya, the government is proceeding with the construction of the controversial

Owino Uhuru Coal Plant despite scientific evidence on record that the project will cause lead

poisoning that will put the lives of the local communities in jeopardy. In Ethiopia, the

government is proceeding with the construction of Gibe dams which, once completed, will be the

largest hydroelectric power plant in Africa despite human rights concerns of the project raised by

the local communities downstream across the border in Kenya.2 According to a study by African

Studies Centre at University of Oxford, the dam project which draws its waters from the River

Omo that accounts for 90% of the waters of Lake Turkana in Kenya will lead to the drying up of

the lake in the very near future.3 This is despite the fact that the lives of millions of humans as

well as flora and fauna solely depend on this lake for survival. A threat to the right to life?

1
Duruigbo, E. (2004). Managing oil revenues for socio-economic development in Nigeria: The case for community-
based trust funds. NCJ Int'l L. & Com. Reg., 30, 121.
2
Tefera, B., & Stroosnijder, L. (2007). Integrated watershed management: A planning methodology for construction
of new dams in Ethiopia. Lakes & Reservoirs: Research & Management, 12(4), 247-259.
3
Avery, S., & Eng, C. (2012). Lake Turkana & the Lower Omo: hydrological impacts of major dam and irrigation
developments. African Studies Centre, the University of Oxford.

3
The right to be informed and to participate in the making of decisions about projects that directly

affect them through a Free Prior Informed Consent model is rarely observed by multinational

corporations. Instead, they in fact, collude with government officials to blatantly disregard local

community rights. Some investors have argued before that local community rights to land should

not be observed because the community lands are bare “idle lands” that are not put into any

meaningful and profitable use by the communities. This assertion ignores the traditional way of

life of pastoralist Africans who practice nomadism that involves moving from place to place in

search of greener pastures and water for livestock. That does not mean that the pasturelands that

are unoccupied are idle lands because it is communal property that is used by all community

members. Any investment on such lands will obviously affect the land rights of the community

members.

Turkana County is located in North-Western Kenya and borders Ethiopia to the North, South

Sudan to the South and Uganda to the West. It covers a geographical area of about 77,000km 2.

The county is rated the poorest of all the 47 counties that make up the Republic of Kenya with a

high level of illiteracy (up to 95%). It is also an arid region with very high temperatures during

the day and very low ones during the night. 4 The inhabitants of this region, the Turkana, are a

pastoralist community numbering about one million and one of the current forty-five tribes of

Kenya. The Turkana keep cattle, donkeys, camels, goats and sheep. While agriculture is not

supported due to the climatic conditions, a few Turkana practice subsistence farming along the

two permanent rivers in Turkana namely: River Kerio and River Turkwel.

4
Hogg, R. (1982). Destitution and Development: The Turkana of North West Kenya. Disasters, 6(3), 164-168. See
also Hendrickson, D., Mearns, R., & Armon, J. (1996). Livestock raiding among the pastoral Turkana of Kenya:
redistribution, predation and the links to famine. IDS Bulletin, 27(3), 17-30.

4
Additionally, a number of the Turkana community members, especially those who occupy the

lake region, engage in fishing in Lake Turkana. 5 Due to droughts and famines in this region, the

two permanent rivers in Turkana have become seasonal rivers, only flowing during the rainy

seasons. Rainfall is very unpredictable and may sometimes fail to rain for close to one year. As a

result, livestock and humans succumb to the drought due to lack of food. Over the years, the

Turkana have relied on relief food from government and from international Non-Governmental

Organizations particularly Oxfam GB, World Vision and World Food Programme. It is important

to also note that Turkana County hosts Kakuma Refugee Camp, the second largest refugee camp

in Kenya that was established in the early 1990s as a result of the influx of refugees from the

Great Lakes Region.6

Turkana is also known for a fragile state of insecurity with the local community constantly

experiencing internal and cross-border attacks and counter-attacks from other pastoralist

communities in the region namely: The Pokot (Kenya), the Toposa (South Sudan), the Merille

(Ethiopia) and the Karamoja (Uganda).7 Since 1963 when Kenya gained independence, these

fights have been sustained in these communities and the Turkana have faced the brunt of the

insecurity. Thousands of the Turkana community members have been lost in the incessant

attacks. As a self-defense mechanism, it is not uncommon to find young men and boys openly

carrying guns and herding their livestock.8 The government has acknowledged some parts of

Turkana such as parts of Kapedo and Suguta Valley to be too dangerous and not even the

5
Wamuyu, I. S. A. B. E. L. (2014). The effects of livestock rustling on livelihoods of pastoral communities in the
Turkwel River belt along the Turkana/Pokot border. Unpublished Master Thesis. UoN.
6
Verdirame, G. (1999). Human Rights and Refugees: The Case of Kenya1. Journal of Refugee Studies, 12(1), 54-
77.
7
Mkutu, K. A. (2006). Small arms and light weapons among pastoral groups in the Kenya–Uganda border area.
African Affairs, 106(422), 47-70.
8
Eaton, D. (2008). The business of peace: raiding and peace work along the Kenya–Uganda border (Part I). African
Affairs, 107(426), 89-110.

5
government can dare access them. The situation is so pathetic that when a Turkana travels from

Turkana region to other parts of Kenya, it is common to hear them comment that “they are going

to Kenya.” This is an indication of the thinking of the residents of the region- that they are not

part of Kenya as far as development is concerned.

In 2011, Tullow Oil PLC, a British firm, signed a Production Sharing Agreement with Africa Oil

Corporation for oil and gas exploration in Turkana County. In 2011, the oil company announced

that it had discovered the presence of oil and gas deposits in Turkana. 9 This was received with

excitement in Kenya as Kenya would join the list of oil-producing countries in Africa. However,

seven years down the line, the local inhabitants of Turkana have faced the brunt of the oil and

gas exploration as their traditional way of life has been interrupted, their community land which

they have used as pasturelands for long is fenced off to house the operational bases for oil and

gas companies and the oil and gas processes shrouded in secrecy. In the eyes of the community,

the white men meet with the President in boardrooms to agree to use their land and come to the

community with “a letter from Nairobi” as the license. This paper seeks to examine the extent to

which international human rights instruments and the national energy and mining laws in Kenya

have been complied with by Tullow Oil PLC and the Government of Kenya in their engagements

in Turkana County, Kenya.

2.0: Protection of Minority Rights

Recognition of minority and group rights in private sector investments was not accorded

international attention and recognition until early 1954.10 This recognition was espoused through

9
Augé, B. (2015). Oil and Gas in Eastern Africa: Current Developments and Future Perspectives. See also Mkutu
Agade, K. (2014). ‘Ungoverned Space’and the Oil Find in Turkana, Kenya. The Round Table, 103(5), 497-515.
10
Kunz, J. L. (1954). The present status of the International Law for the Protection of Minorities. The American
Journal of International Law, 48(2), 282-287.

6
a Recommendation by the United Nations Sub Commission on Prevention of Discrimination and

Protection of Minority Rights. This recommendation addressed the human rights needs of states

which host ‘well defined ethnic, linguistic or religious groups which are clearly distinguished

from the rest of the population and which want to be accorded differential treatment.’11

To date, there exists no binding international instrument specific on the rights of local

communities in private sector investments. However, these rights may be inferred from the

general and specific human rights instruments of bodies such as United Nations and International

Labour Organization (ILO). There are also international human rights organizations such as

Human Rights Watch and Minority Rights Group International 12 that work towards promoting

the human rights of minority groups such as the Turkana of Kenya. Though the reports and briefs

of these organizations do not have any legally binding force, their observations are regarded as

highly persuasive and informative.

3.0: The Legal Framework for Human Rights Protection in Kenya

3.1: International

a) Universal Declaration on Human Rights, 1948

The Universal Declaration of Human Rights, 1948, (or simply the Universal Declaration) is an

international human rights instruments that has been ratified by nearly all States. 13 It was enacted

as a result of the horrors of the Second World War in order to enhance the dignity of the human

person. The general wording of the Declaration indicates a commitment by States (including

11
As cited in Hilpold, P. (2007). UN standard-setting in the field of minority rights. International Journal on
Minority and Group Rights, 14(2/3), 181.
12
Gaer, F. D. (1995). Reality check: human rights nongovernmental organisations confront governments at the
United Nations. Third World Quarterly, 16(3), 389-404.
13
Assembly, U. G. (1948). Universal declaration of human rights. UN General Assembly.

7
Kenya) to promote the human rights and freedoms of all persons without any discrimination as

regards race, colour, sex, language, religion, political or other opinion, national or social origin,

property, birth or other status.14

b) United Nations Basic Principles and Guidelines on Development Based Evictions and

Displacement, 1997

These guidelines, though not binding on States, have been adopted by the United Nations as far

as forced displacements of populations for development projects is concerned. The guidelines

provide for access to the courts for individuals who feel aggrieved. Additionally, Article 19 of

the guidelines provide as follows:15 “States must recognize that the prohibition of forced

evictions includes arbitrary displacement that results in altering the ethnic, religious or racial

composition of the affected population.”

c) Declaration on the Rights of Persons belonging to National or Ethnic, Religious and

Linguistic Minorities, 1992

The United Nations General Assembly adopted this declaration in 1992 to provide for the rights

of persons belonging to national or ethnic, religious or linguistic minorities. 16 The declaration has

been rated to be among the best international human rights instruments on the rights of

indigenous peoples. Unlike most human rights instruments, this declaration is particularly

progressive because it sets out the rights and entitlements of the indigenous communities on one

hand and sets out obligations for the States on the other. States for instance have a positive
14
Nickel, J. W. (1987). Making sense of human rights: Philosophical reflections on the universal declaration of
human rights. Univ of California Press.
15
De Schutter, O. (2009). Large-scale land acquisitions and leases: A set of core principles and measures to address
the human rights challenge. briefing note (Geneva: UN Office of the High Commissioner for Human Rights, 11 June
2009).
16
Assembly, U. G. (1992). Declaration on the rights of persons belonging to national or ethnic, religious and
linguistic minorities. Adopted by General Assembly resolution, 47, 135.

8
obligation to respect and ensure respect for the rights of national or ethnic, religious and

linguistic minorities.

It should be noted, however, that the provisions of the Declaration do not set out new rights but

they are a codification of the rights that have been espoused in other human rights instruments

such as the Universal Declaration of Human Rights, the International Covenant on Civil and

Political Rights and the International Covenant on Economic, Social and Cultural Rights. Under

the declaration for instance, ethnic minorities (such as the Turkana) have a right to meaningfully

participate in the process of decision making especially on matters that are of concern to the

ethnic or minority group or region and I may add, (their land). Kenya as well has an obligation to

ensure that these provisions are complied with and the rights of the communities respected.

d) United Nations Declaration on the Rights of Indigenous People, 2007

In its Preamble, the Declaration acknowledges the fact that indigenous communities have often

suffered as a result of human rights violations against them by development projects. It

advocates for a Free Prior Informed Consent which must be obtained from the indigenous

people. The declaration also calls on states to ensure that they respect the indigenous people’s

land ownership and land use rights. Additionally, they have a right of participation in the

decision-making process of development projects that may affect them. Arbitrary evictions and

forced displacements of communities has also been prohibited and the rights of the communities

to own and use land they have traditionally owned provided for.17

e) United Nations Protect, Respect and Remedy Framework, 2008

Nichols, T. (2014). United Nations Declaration on the Rights of Indigenous Peoples (2007). In Encyclopedia of
17

Global Archaeology (pp. 7475-7477). Springer New York.

9
Pursuant to this framework, which was unanimously adopted by United Nations Human Rights

Council in 2008, corporations have a responsibility to respect human rights in their operations

especially in local communities. They have an obligation to avoid any human rights violations. 18

Even where the national laws are not adequate to safeguard the community rights, corporations

must operate as per international standards. This is very important especially in a country like

Kenya which has a less sufficient legal framework to safeguard the interests of the local

community. However, experience indicates that these frameworks and guidelines, being non-

binding documents are never adhered to by the corporations. This was the case in the earlier

cited infamous Niger Delta case between the Ogoni people and Shell BP in its oil and gas

exploration and production activities. Human rights violations were committed against the local

community with the oil company allegedly adopting a divide and rule approach as well as

eliminating, through killings, local community members deemed to harbour dissenting voices.19

f) ILO Convention No 169 Concerning Indigenous and Tribal Peoples in Independent

Countries, 1989

ILO Convention 169 on the Rights of Indigenous and Tribal Peoples underlines the right of local

communities to own land that they have historically used as grazing areas, shrines and

pasturelands. The Convention provides that State parties ‘shall have the responsibility for

developing, with the participation of the indigenous and tribal peoples concerned, coordinated

18
Hill, C., & Lillywhite, S. (2015). The United Nations ‘Protect, Respect and Remedy’Framework: Six years on and
what impact has it had?. The Extractive Industries and Society, 2(1), 4-6.
19
Boele, R., Fabig, H., & Wheeler, D. (2001). Shell, Nigeria and the Ogoni. A study in unsustainable development:
II. Corporate social responsibility and ‘stakeholder management’versus a rights‐based approach to sustainable
development. Sustainable Development, 9(3), 121-135. See also Obi, C. I. (2010). Oil extraction, dispossession,
resistance, and conflict in Nigeria's oil-rich Niger Delta. Canadian Journal of Development Studies/Revue
canadienne d'études du développement, 30(1-2), 219-236.

10
and systematic action to respect the rights of these peoples and to guarantee respect for their

dignity.’20

There is also an obligation on states to put in place measures geared towards ‘promoting the full

realization of the social, economic and cultural rights of these peoples with respect for their

social and cultural identity, their customs and traditions and their institutions’.21

The Convention also places a positive obligation on the part of States to obtain the consent of

indigenous and tribal peoples through a Free Prior Informed Consent process when extracting

minerals and other natural resources in their lands. 22 The communities also have a right of

participation in the decision making of projects affecting them. Additionally, it is a mandatory

requirement that they be compensated for the expropriation and acquisition of their communally-

owned community lands. It should be noted that this Convention revised the ILO Convention

No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1989 which is no

longer applicable.23 In the case of Tullow Oil PLC and the Turkana people, this convention is

indeed directly relevant and informative as far as the oil and gas exploration and production

process is concerned.

g) International Covenant on Civil and Political Rights (ICCPR), 1966

The ICCPR provides for civil and political rights. This covenant was adopted in 1966 by the

United Nations General Assembly. The rights contained in this Covenant are accorded more

prominence in human rights law as they are considered fundamental and at the epicentre of the

20
Article 2 of the Convention
21
Ibid
22
Article 16 of the Convention
23
Yupsanis, A. (2010). ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries 1989–2009: An Overview. Nordic Journal of International Law, 79(3), 433-456.

11
enjoyment of all other rights. The ICCPR’s major focus is on individual rights. However, its

Article 27 expressly provides for the right to culture, religion and language. It states as follows:

‘In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such

minorities shall not be denied the right, in community with other members of their group, to

enjoy their own culture, to profess and practice their own religion, or to use their own language’.

Additionally, this Article provides for the recognition and establishment of what is commonly

referred to as “group rights” which apply to persons belonging to groups sharing a common

culture, religion or language. The Convention places a positive obligation on States to respect

and to ensure the promotion of these rights within their territories including by non-state actors.

Kenya ratified this Covenant on 23rd March 1976 and its provisions are therefore binding on it as

a State Party.24

The laws of Kenya provide for civil and political rights among them the right to picket, freedom

of association and assembly, voting rights and freedom of speech just to name but a few.

h) International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 25

The Covenant, ratified by Kenya on 1st May 1972 provides for socio-economic and cultural

rights.26 Some of these rights include the right to adequate food, the right to affordable

healthcare, security rights and the rights to own property in Kenya. The provisions of these

covenant have been adopted in the Constitution of Kenya, 2010 through Article 43. However,

24
Harland, C. (2000). The status of the International Covenant on Civil and Political Rights (ICCPR) in the domestic
law of state parties: An initial global survey through UN Human Rights Committee documents. Human Rights
Quarterly, 187-260.
25
Assembly, U. G. (1966). International covenant on economic, social and cultural rights. United Nations, Treaty
Series, 993(3).
26
Adar, K. G. (1999). Human rights and academic freedom in Kenya's public universities: the case of the
universities academic staff union. Human Rights Quarterly, 21(1), 179-206.

12
while these rights are provided for under the Covenant and in the Constitution, they are rarely

implemented by the state and they form part of rights whose implementation is said to be on a

progressive basis. Local community members in Turkana for instance do not enjoy most of these

rights, specifically the right to security, access to affordable healthcare, adequate food and clean

water supply as will be highlighted in the subsequent parts of this research paper.

3.2: Regional

African Charter on Human and People’s Rights, 1981

The African Charter on Human and People’s Charter, commonly referred to as, The Banjul

Charter, is an Africa-specific instrument that seeks to enhance the promotion of human rights in

the continent.27 Some scholars have referred to it as the Magna Carter of Human Rights in Africa

and it was adopted by the Organization of African Unity (OAU)- now African Union (AU) in

1981 in The Gambia.28 The Charter largely draws its inspiration from the Universal Declaration

of Human Rights of 1948. Some of its provisions therefore mirror the provisions in the

University Declaration. Apart from highlighting civil and political rights as well as social,

economic and cultural rights, the Charter also indirectly provided for groups rights for what are

commonly referred to as ‘indigenous groups” or ‘tribal minorities.’ Article 22 of the Charter

provided as follows: “All peoples shall have the right to their economic, social and cultural

development with regard to their freedom and identity and in the equal enjoyment of the

common heritage of mankind.”

27
Okere, B. O. (1984). The protection of human rights in Africa and the African Charter on Human and Peoples'
Rights: a comparative analysis with the European and American systems. Hum. Rts. Q., 6, 141.
28
Risse, T., & Sikkink, K. (1999). The socialization of international human rights norms into domestic practices:
introduction. Cambridge Studies in International Relations, 66, 1-38.

13
Jurisprudence on group rights has been developed from the African Commission and the African

Court on Human and Peoples Rights especially after the judgment in the Centre for Minority

Rights Development & Minority Rights Group International on behalf of Endorois Welfare

Council v Kenya case.29 It is my opinion that the Turkana are likely to succeed against the

Government of Kenya if they were to file a petition on human rights violations at the African

Court.

3.3: National

a) Constitution of Kenya, 2010

The Constitution of Kenya, 2010 has dedicated the entire Chapter Four to the Bill of Rights.

Under Article 19, the Constitution provides: “The purpose of recognizing and protecting human

rights and fundamental freedoms is to preserve the dignity of individuals and communities and to

promote social justice and the realization of the potential of all human beings.” Apart from the

“Chapter Four human rights”, the other sections of the Constitution also guarantee rights such as

the right of persons to own, individually or in association with others, property of any description

in any part of Kenya. This is relevant to local communities. 30 Under the law, all minerals and

mineral oils are classified as public land and vest in the national government. 31 The Constitution

also guarantees the right of individuals to own property, including land, in Kenya.

Article 40 prohibits arbitrary acquisition of property of any description (including land) by the

state unless the compulsory acquisition is in compliance with the law or is for a public purpose

(such as oil and gas exploration). However, even when a state is empowered to acquire the
29
Ashamu, E. (2011). Centre for Minority Rights Development (Kenya) and Minority Rights Group International on
Behalf of Endorois Welfare Council v Kenya: A Landmark Decision from the African Commission. Journal of
African law, 55(2), 300-313.
30
Article 40
31
As per Article 62 of the Constitution of Kenya, 2010

14
property, Article 40(3)(b) provides for “prompt payment in full or just compensation to the

person” and that individuals concerned must be granted access to a court of law. The

Constitution also establishes the Kenya National Human Rights and Equality Commission which

is mandated to promote the observance of human rights in the country.

It should also be noted that regarding international conventions and treaties ratified by Kenya,

Article 2(6) of the Constitution provides that any international law instrument ratified by Kenya

automatically forms part of the laws of Kenya.

b) Petroleum (Exploration and Production) Act, 1986.

The Petroleum (Exploration and Production) Act and the accompanying Regulations published

by the Cabinet Secretary are the only oil and gas specific laws that govern the oil and gas

industry in Kenya.32 This law was drafted in 1986 at a time when Kenya was not and did not

foresee to be an oil and gas exporting country. Most of the provisions of this law are therefore

outdated and conflicting. Peculiarly, it has not adequately provided for the rights of the local

communities that are affected by the oil and gas projects. The Act provides for among others, the

process of grant of oil and gas exploration licenses to prospective investors as well as conclusion

of the relevant agreements between the government and the investor. In the negotiations, the

Minister (Cabinet Secretary) in whose docket petroleum matters fall is designated by the Act as

the official government representative. The investors who are licensed to carry out oil and gas

exploration are expressly prohibited from engaging in exploration of other minerals as this shall

be considered a breach of the agreement.33

32
Vasquez, P. I. (2013). Kenya at a crossroads: Hopes and Fears concerning the development of oil and gas
reserves. International Development Policy| Revue internationale de politique de développement, 4(4.3). See also
Johannes, E. M., Zulu, L. C., & Kalipeni, E. (2015). Oil discovery in Turkana County, Kenya: A source of conflict
or development? African Geographical Review, 34(2), 142-164.
33
Mkutu Agade, K. (2014). ‘Ungoverned Space’ and the Oil Find in Turkana, Kenya. The Round Table, 103(5),
497-515.

15
There is currently a Petroleum Exploration, Development and Production Bill that is being

debated in the National Assembly of Kenya to revolutionize the oil and gas legal framework in

Kenya. The proposed law was initially passed by the National Assembly but the President

declined to assent to the Bill due to arguments that the local community had been allocated a

large amount of the oil revenue. This contentious issue took a political angle in the General

Elections of 2017 and the opponents of President Kenyatta were overwhelmingly voted for in the

Turkana region.

c) Environmental Management and Coordination Act, 2000

The Environmental Management and Coordination Act, 2000 provides for environmental

management and governance in Kenya. The need for environmental conservation in a region

such as Turkana that is already facing the negative effects of climate change cannot be over-

emphasized. This particular is thus relevant to the oil and gas exploration and production in

Turkana. Under the Act, investors such as oil and gas companies are required to carry out

Environmental Impact Assessment and develop a report detailing how the project may negatively

affect the environment and what measures the investor is putting in place to mitigate such. In

Kenya, the assessment ought to be done at the preliminary stages of the project and a go-ahead

must be granted by the National Environmental Management Authority. It is a critical aspect as

far as the approval and grant of license to carry out oil and gas is concerned. However, in most

cases, this provision is not adhered to by investors as some of their projects have already secured

the political will and approval of the government of the day. Even where a study is conducted

and a report done, it is often inaccessible to the general public, which is a breach as the Act

requires the Environmental Impact Assessment Report to be a public document.

16
The Act also establishes a National Environmental Management Authority (NEMA) to be the

official government entity that coordinates environmental governance and management in

Kenya. The body also grants licenses and permits, carries out research on environmental law and

policies and advises the government on the international and regional conventions on

environment that Kenya should be party to, just to name but a few. As far as land and

environmental management is concerned in Turkana, this government entity is relevant to the

observance by the oil and gas companies of their obligations to respect the environment. Oil and

gas processes such as flaring that lead to the production of noxious fumes and gases to the

environment without any mitigation measures thereafter may be a contravention of the

Environmental Management and Coordination Act, 2000.

d) Community Land Act, 2016

The Community Land Act, 2016 provides for the management of community land in Kenya.

Community land, traditional ownership of land and customary land tenure system were not

recognized under the repealed 1969 Constitution. However, the Constitution of Kenya, 2010

recognized communal land ownership by pastoralist communities such as the Turkana and other

groups identified on the basis of culture or similar community of interests and ethnicity. Article

63(2)(d) of the Constitution defines community land to consist of among others, the following:

“(d) land that is (i) lawfully held, managed or used by specific communities as community

forests, grazing areas or shrines; (ii) ancestral lands and lands traditionally occupied by hunter-

gatherer communities; or (iii) lawfully held as trust land by the county governments.”

Under Article 63(4), the county and national governments shall not dispose the community land

without a specification of the nature and extent of the rights of members of each community

17
individually and collectively. This is indeed relevant to the expropriation of community land in

Turkana for oil and gas exploration. The Act has also provides for the rights of local

communities to be consulted and to participate in decision-making on projects affecting them.

There is also created a fund in which all monies paid as compensation to the local community by

the private investors are held for the benefit of the local communities. This is a progressive

provision that will ensure that persons affected by the project directly benefit.

The traditional land tenure system disadvantaged the Turkana because they did not have legal

title to the land they owned as clans and families. The system was amorphous and lacked

constitutional or legal recognition. The law until 2010 recognized private land (through the title

deed system) and public land as the only categories of land ownership in Kenya. As a result,

therefore, communal land ownership practiced by communities such as the Turkana was

unknown to law and was treated as secondary to the two categories above. One of the most

progressive aspects of this Act as far as community land management in Kenya is concerned is

the fact that local communities that have traditionally owned the land through families, clans and

communally can register them and obtain title. They can consequently access loans from the

banks and other credit institutions to develop their lands. This is likely to change the manner in

which the oil company has been operating in Turkana as far as land is concerned as registered

community lands will then acquire quasi-private property characteristics.

e) Petroleum Development Fund Act, 1991

18
It is not uncommon for oil producing and exporting countries (OPEC) to establish Petroleum

Development Funds to manage the oil revenue. In Kenya, the Petroleum Development Act, 1991

seeks to establish the Fund and also to provide for the imposition of a petroleum levy for

petroleum products and fuels consumed in the country to be collected by the Commissioner

General.34 The Petroleum Fund also consists of money appropriated by Parliament. The Minister

is also empowered under the Act to publish regulations to enhance the operations of the fund.

4.0: Private Sector Investments vis-à-vis Human Rights: Experiences from Turkana

County

The discovery of oil and gas in Turkana and the subsequent exploration since 2011 has brought

with it benefits and disadvantages to the Turkana community. While employment and other

opportunities such as scholarships have been given to the local community, a number of human

rights violations have been committed by the oil company and its partners. The experiences have

brought into question the manner in which private investors carry out their engagements with the

communities that host these projects. Failure to obtain their consent and compensate local

communities, influx of foreign populations leading to erosion of culture and arbitrary land

expropriation and evictions have been noted in Turkana County.

Land grabbing of the community land by foreigners colluding with local politicians and elites in

Turkana has been rampant since 2011. The land grabbers buy oil-rich land and later sell to the

government later at exorbitant prices. The Constitution of Kenya, 2010 obliged to enact a

community land law within five years from 2010 when the Constitution was inaugurated and

adopted.35 However, the Act was only enacted ten days before the deadline in 2016. With the

34
Okech, B. A., & Nyoike, P. M. (1999). Energy sector liberalization in Kenya: critical policy issues in petroleum
retail market. Energy policy, 27(1), 45-56.
35
As per the 5th Schedule to the Constitution of Kenya, 2010.

19
delay in the enactment of a Community Land Act, 2016, there was no clear legal framework in

Kenya to guarantee the protection of the rights to land of a community like Turkana. Prof. Mbote

of the University of Nairobi Law School observed that: “there is so much grabbing of

community land in Turkana that by the time a Community Land Act is enacted, there will be no

community land to protect.”36 The Petroleum Production Act which was drafted in 1980s did not

provide for community rights in oil and gas processes in Kenya as Kenya was not an oil

producing country at the time of drafting. This provided a fertile ground for the violations of

human rights in Turkana.

The roads linking up Turkana to the rest of Kenya (the Kitale-Lodwar Highway) were built by

the British colonialists and they have been in a pathetic state since then. Residents have severally

voiced their concerns and held anti-marginalization protests to push the government to act.

Despite promises by successive governments since 1963, the road has never been repaired and

motorists sometimes spend more than three days connecting between two towns due to the poor

state of the road. Banditry and incessant attacks on motorists also became common and killings

reported. The national politicians would also politicize the road issue with each one of them

trying to woo voters during the elections with promises of “fixing the road.” However, once they

get into power, they do not implement their promises and the cycle continues.

After the oil discovery, building the road connecting the oil fields to the main highway was

prioritized by the government and funding was quickly mobilized for the same. Residents

demonstrated and paralyzed the operations of the oil company demanding that there shall be no

oil production if the entire road could not be repaired by the government. There were media

reports that the local community had held the oil company staff hostage for days and the British
36
Comments by Prof. Patricia Mbote, former Dean, to our undergraduate class on Property Law in 2014 during one
of the lectures

20
firm threatened to shut down its operations in Turkana. A meeting of Turkana leaders and

President Kenyatta in Nairobi resolved the outstanding community grievances and operations

resumed. As a result of the community protests, the entire road is currently undergoing major

reconstruction through a loan the government secured from the World Bank Group. This was

viewed by many as an incentive to the local community by the government as far as the oil

exploration and production is concerned.

The first major challenge that followed the oil and gas discovery in Turkana was a huge Influx of

foreigners to Turkana. Turkana which had been “forgotten” was all over sudden a destination for

many. Some men from the rest of Kenya reportedly “married” from the Turkana community so

as to be assured of a share of the oil revenue in the future. As a result of the very high illiteracy

levels in the local community, the foreign populations took advantage of this and bought huge

tracts of lands in towns such as Lodwar and Lokichar which are located near the oil fields. The

prices of land have consequently skyrocketed and an ordinary Turkana community member who

wishes to purchase such land may not afford the high prices because of poverty and historical

marginalization. The foreign tribes can afford to purchase such pieces of land since they are

comparatively richer and more exposed than a typical Turkana community member.

This imbalance has led to loss of land among the Turkana and erosion of culture as a huge chunk

of the population is made up of foreigners from within and outside Kenya. The foreigners are

either working for the oil company or purchasing land to put up private businesses to take

advantage of the opportunities presented by the emerging oil and gas industry in Turkana.

Persons who benefit from the business opportunities in the oil industry are not the Turkana

community members despite the fact that their way of life has been negatively impacted by the

oil project. This is in clear contravention of Article 66(2) of the Constitution of Kenya, 2010

21
which provides that local communities and their economies should benefit from investments in

their lands. This has resulted sometimes in militant resistance by the local communities

The practice of fencing off of the communally-owned pasturelands for the establishment of the

operations bases for the oil and gas companies has also been injurious to the local community.

Although they appear bare lands, these regions serve as grazing fields for the Turkana livestock

during both the dry and the rainy seasons. Fencing them keeps livestock at bay. The bright

security lights in the grazing fields in the night affect the grazing patterns of animals such as

camels, cattle and donkeys which prefer to graze in the day and night especially in unsecured

pasturelands. This becomes a challenge to the Turkana given the fact that these oil and gas

company’s operations camps/bases are scattered all over Turkana including in regions that do not

necessarily host oil wells.

The oil company has been engaged in confrontations with the local communities especially on

the occasional killing of livestock of the Turkana by the vehicles belonging to the oil company.

Some of these cases have been documented by the local community and in some, compensations

though inadequate, was paid to the affected community members. Some however allege that

despite occasioning environmental damage and livestock killings, the oil company has not taken

any steps to compensate them as required by national and international human rights instruments.

These cases were particularly rampant during the oil and gas terrestrial exploration surveys as the

oil company staff and machines were evidently engaged in the field.

The local community also feels short-changed by the oil company as far as Corporate Social

Responsibility (CSR) is concerned. While the oil company has employed a number of members

of the local community members as well as implemented corporate social responsibility projects

22
in Turkana, there is a general concern that the projects are not sufficient. The community prefers

community projects that have a considerable direct impact on the local community to piecemeal

projects such as classroom construction, a dispensary project or bursary offered to high school

kids. Lack of tangible projects that benefit a larger populace has been a major source of conflict

between the community and the oil company. In order to get the community priorities right, the

oil company employs Community Liaison Officers (CLOs) to help manage community interests

in its relation to the local community.

It is a mandatory requirement under the human rights instruments such as the United Nations

Declaration on the Rights of Indigenous People that corporations must obtain a Free, Prior,

Informed, Consent of the local communities before implementing projects. In Turkana, the was

no free prior informed consent obtained directly from the local community. Once the oil

company received a license from the government’s Ministry of Energy in Nairobi, they deemed

the process of obtaining the local community consent to be complete and proceeded to kick-start

operations.

In some cases, such as in Kerio Delta, the oil company representatives bought sugar, blankets,

tobacco and delivered cash to selected respected community seers and elders for “blessings.”

This process was not effective because the rest of the community who are also critical

stakeholders in the process felt excluded and a majority voiced their opposition to the whole

process. In some cases, some community elders who are also respected in the community and

were not consulted also raised concerns. This was a breach of the local community’s right to

Free Prior Informed Consent as provided for by the various human rights instruments. Investors

should endeavor to obtain the consent of the local community by directly engaging them through

consultative forums that take into consideration the opinions of a large sample of the member of

23
the community. Consent also involves respecting the local community’s right of acceptance or

rejection of the proposed project.

Oil and gas exploration activities have also had negative consequences on the customary

property rights regime in Turkana. Land is considered a great treasure among the Turkana and

there are established rules to govern land use. Traditionally among the Turkana, land is owned

on the basis of clans and communally. There is therefore land that is considered to belong

exclusively to a particular clan and only members of such a clan enjoy land ownership and land

use rights. It was also believed that land belonged to the ancestors and that individuals occupying

it held it in trust on their behalf. Conveyancing in land was therefore an unknown concept and

individuals could not transact on the clan land. Within the clan, senior and respected individuals

were allowed to “possess land” through ownership referred to as ekwar. An owner of an ekwar

was allocated quasi-private rights as far as the land they possess is concerned. Any invasion on

the ekwar by an outsider such as a private investor would be an intrusion into quasi-private land

and compensation may be paid to the individual clan member.

Additionally, there are communally-owned land such as community shrines, community forests,

pasturelands and grazing areas as well as livestock watering points. This category of land was

regarded to be community property for use by all members of the community to the exclusion of

outsiders. A member of the community had no individual rights to transact on the community

land. This however created what Prof Garret Hardin referred to as “The Tragedy of the

Commons” in his work published in the journal, Science. 37 The oil and gas activities led to a

change of this customary property rights regime due to land grabbing and expropriation. The

‘idle’ community land was considered a free for all since the “owners” had no legal title to the
37
Hardin, G. (1968). The tragedy of the commons. Science 162, 1243e1248. Traducción al español en Gaceta
Ecológica, 37, 48-57.

24
lands they occupied and used as pasturelands. The Turkana pastoralists were consequently

arbitrarily deprived of their community land rights. As a result, some pastoralists migrated out

of their aboriginal lands to other parts of Turkana where they would lead a pastoral life without

the disturbance that had been occasioned by the oil discovery. Some of the new places they

migrated to turned out to be not conducive for pastoralism due to aridity and famines. Eviction of

local communities from their aboriginal lands for such private sector investments without due

process, consultations and compensation is a breach of the protection accorded to indigenous

communities and tribal peoples.

A lack of transparency and accountability on the part of the oil company has also been a notable

aspect of the oil and gas exploration process in Turkana. Critical information such as the

quantum of compensation that is paid by the oil company to the county government is never

readily available to the local populace. It is my opinion that the local pastoralists ought to have

this information since they face the brunt of the project and that the land for which the

compensation is paid is their community land. Lack of information creates a room for corruption

since the community cannot be able to audit the compensation fund as they are not informed of

its existence in the first place.

It is also important to note that, to date, the County Assembly of Turkana, the law making body

in Turkana is yet to enact a law to ensure that the compensation fund is cascaded down to the

pastoralists affected. The Environmental Impact Assessment Report, whose publication, is a

requirement under the Environmental Management and Control Act, 1999 is not a readily

accessible document. The negative effects the project would have on the environment in Turkana

as well as how the oil company intends to mitigate the same is therefore not known to the local

25
community in a language they understand. The right of access to information is granted under

Article 35 of the Constitution of Kenya, 2010.

The Turkana who are employed to do menial jobs in the oil company are often discriminated

against. They are lowly paid compared to other staff from other parts of Kenya for the same

work done because they are considered to be less educated. This favoritism is a constant cause of

go-slows and strikes in the oil company in Turkana as the Turkana staff protest harassment and

low pay.

Turkana is a region that is grappling with the harsh realities of climate change. The levels of the

waters of Lake Turkana are decreasing as a result of increasing evaporation due to aridity.

Environmental degradation by the oil company has been a subject of concern for the local

community. In addition to the release of noxious chemicals into the atmosphere through a high

controversial oil and gas process called flaring, there has been clearance of community forests

and pasturelands to pave way for machines to carry out the oil and gas exploration. Felling of

mostly indigenous Turkana trees is rampant. This is worsened by the fact that the process takes

place over a large area and in all parts of Turkana.

5.0: Conclusions and Recommendations

In conclusion and as discussed in the preceding chapters of this paper, it is clearly evident that

indeed human rights violations have been meted against the local Turkana community in Kenya

by the company exploring for oil and gas in Turkana County. Ranging from irregular

expropriation of their community land and evictions to failure to adequately compensate them,

the situation in the local community post-oil discovery has worsened comparable to pre-oil

discovery.

26
As the international, regional and national human rights instruments have indicated, the right to a

Free Prior Informed Consent in private sector investments is absolute. Any processes that appear

to place local communities at the periphery of the oil and gas process cannot withstand any legal

scrutiny in a court of law. Some human rights law scholars have commented that obtaining the

consent of the local host community gives the investor a “social license” to carry out their

operations in the community in addition to the “legal license” that is granted by the government.

Corporations that have failed to obtain the social license have often faced constant disruptions of

operations through employee go-slows and strikes as well as militant interventions by the

community members.

The local community rights to land ownership and use as provided for under the human rights

instruments have been violated the most. The Turkana attach a lot of importance to land and

land-based resources. Land is considered a blessing from the ancestors and the current generation

holds it in trust for them and for future generations. As highlighted, any developments on land in

Turkana automatically negatives impacts their culture, way of life, source of livelihoods, animals

grazing patterns just to name but a few. The protection accorded to the local community land

rights by human rights laws ought to be adhered to by all in order for a smooth investor-

community relationship to exist.

The animosity that characterizes the operations of the oil company in Turkana is created due to

sustained attempts on their part to exclude community members from decision making, the

failure to compensate them and a lack of transparency as far as information is concerned. In

order to mitigate the negative effects and to right the wrongs- the human rights violations in

Turkana, the researcher makes recommendations which if taken into account by all stakeholders

in the oil and gas process, will undoubtedly, promote human rights and benefit the local

27
community as well as the oil company. However, I must point out that these recommendations

are not adequate and do not necessarily provide the missing link in the oil and gas sector in

Kenya. It is also my ardent hope that the Petroleum Exploration, Development and Production

Bill that is currently before the National Assembly and which has guaranteed local community

rights including an oil revenue sharing formula will be enacted into law. This together with the

recently enacted Community Land Act, 2016 will transform the oil and gas sector in Kenya. The

oil and gas process in the country is currently being governed by a piece of legislation enacted in

1986 way long before Kenya became a prospective oil producing countries. The jurisprudence in

the area of community land rights vis-à-vis oil and gas is also inadequate.

The Need for a Community Compensation Act

As highlighted above, there is no clear legal framework in Turkana County and in Kenya that

provides for the manner in which the money paid to the local community members as

compensation for land expropriation is cascaded down to the immediate host community

members. These community members ought to be the priority as far as compensation is

concerned since, as earlier pointed out, they face the direct negative effects of the projects

including but not limited to human rights violations. The Community Land Act, 2016 which was

expected to fill this lacuna that exists in the legal framework did not address this novel matter. It

merely stated that the money paid to the local community as compensation fund shall be in an

interest-earning account held and managed by the county government in trust for the local

community. This has been the case ever since oil and gas was discovered in Turkana and it has

been proven to be ineffective. The researcher therefore recommends for the enactment of a

Community Compensation law by the County Assembly of Turkana to detail the manner in

which the oil revenue can benefit the pastoralists in Turkana.

28
Disclosure of Payments Paid by the Oil Company: “Publish as You Pay.”

The concept of Publish as You Pay requires private investors to publish the quantum of

compensation that they pay to the government as a result of land expropriation. The local

community members would then be informed and can claim for their compensation fund from

the government. The oil company ought to make use of the national newspaper, Televisions and

the local radio stations in Turkana to disseminate such information to the local community. The

practice in Turkana has been that the compensation fund, if any, is secretly paid to the County

Government of Turkana by the oil and gas company. Publishing this will reduce the wide

information gap that exists between the oil company and the local pastoralists as well as the

uncertainty that often occurs as the oil company claims to have paid while the county

government claims to have not received the compensation money.

Environmental Impact Assessment

As earlier highlighted, the Environmental Impact Assessment study that has been done in

Turkana has not been adequate. It is not in compliance with the standards set by the National

Environmental Management Authority (NEMA) in Kenya as well as with international best

practices. The report is also not readily available for scrutiny and general information to the

public. The researcher recommends that a new Environmental Impact Assessment study should

be carried out in Turkana as far as the oil and gas process is concerned. Information on how the

immediate environment will be affected by the oil industry and mitigation measures if any will

undoubtedly help resolve the suspicions and conserve the environment. The report should then

29
be widely publicized as a readily available public document for public scrutiny and consumption.

This environmental study is particularly relevant due to the fact that the Turkana environment is

already fragile as a result of aridity and climate change. Any activity that will prove to be

injurious to the Turkana environment will be a new source of conflict between the two already

conflicting sides.

Local Community Participation

The right for the local communities to participate in decision making in development projects

implemented in their midst cannot be over-emphasized. Apart from granting the oil company the

social license to operate, participation of the local community also helps to solve any outstanding

community concerns at the preliminary stages of the project cycle. The communities will also

approve of the project as they feel that their concerns are being addressed and that their dignity

as the rightful owners of community lands hosting minerals is respected. Exclusion of the

community in the project cycle has characterized the operation of the oil company in Turkana

County and has been a source of a major conflict. Lack of community participation also creates a

fertile ground for misinformation and fabrications of non-factual information. Practice indicates

that corporations that adopt a local community centred approach in their engagements with the

local community often experience lesser conflicts with their hosts. As earlier discussed, it is also

important to consider the fact that the involvement of select local leaders or influential

personalities in some cases does necessarily mean community participation.

30
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