By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*
Conservation and development activities can potentially affect the lives of indigenous communities living in a targeted area, whether implemented in small scale or large scale. Yet, despite the international recognition of the rights of indigenous communities to be consulted and involved in decision-making processes that directly affect their livelihoods, countries around the world continue to disregard such rights with adverse effects on the ability of the affected communities to fight poverty and realize the right to self-determination.
The global call for application of Free, Prior, And Informed Consent (FPIC) in extractives is generally meant to address the abuse of the rights of indigenous peoples worldwide including: indigenous land rights, recognition of and respect for culture, the right to economic participation, to a livelihood and to a clean environment, among others. However, while FPIC is mostly associated with obtaining consent from indigenous communities, there is need to go beyond indigenous peoples and towards broad-based community consent, at least in the Kenyan context.
Interestingly, while the concept of FPIC has been universally recognized, it has not always come easy for some of the Kenyan communities, if at all. Despite the continued development in the policy and legal framework on public participation and inclusive decision-making processes, the level of openness of the government to citizen engagement in policy and development decision making broadly is largely insufficient and sometimes even completely missing. There have been cases where communities and groups of persons in Kenya have been forced to seek court intervention, both locally and regionally, to have their right to participation in decision-making processes affecting their lands.
For instance, in 2009, in Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, the African Commission on Human and Peoples’ Rights held that by forcibly removing the Endorois people from their ancestral lands around Lake Bogoria to create a game reserve, the government of Kenya violated the Endorois’ right to property (Article 14); natural resources (Article 21); development (Article 22); religion (Article 8); and culture (Article 17) as enshrined in the African Charter on Human Rights.
The Commission noted in particular that the Endorois are “an indigenous community” and a “people,” and that for “any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions.” There are instances where either consent is inappropriately obtained or the government invokes its powers on compulsory acquisition of land with or without adequate compensation.
The Constitution of Kenya also provides that: the State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five of the Constitution; or is for a public purpose or in the public interest and is carried out in accordance with the Constitution and any Act of Parliament that requires prompt payment in full, of just compensation to the person; and allows any person who has an interest in, or right over, that property a right of access to a court of law.”
The statutory framework for compulsory acquisition is comprehensively outlined in Part VIII of the Land Act, 2016. Courts have observed that with a view to ensuring that there was a real, rather than a fanciful or remote connection between the compulsory acquisition and the State’s developmental needs, Part VIII was drafted in detail. Indeed, history in the practice of compulsory acquisition prompted such detail. Not only was the State able to keep its right to compulsorily acquire but the citizen too is protected from wanton and unnecessary deprivation of his private property.
With respect to extractives industry, the Cabinet Secretary in charge of mining is entitled under section 40 of the Mining Act, where necessary, to take steps under compulsory acquisition of land or rights or interests in land, to vest the land or area in question, or rights or interests in such land or area, in the Government or on behalf of the Government, where the consent required under sections 36, 37or 38 of the Mining Act 2016 is—unreasonably withheld; or the Cabinet Secretary considers that withholding of consent is contrary to the national interest.
The Court, in the case of Patrick Musimba v National Land Commission & 4 others [2016] eKLR, observed that the power to expropriate private property as donated to the State by both the Constitution and statute law (the Land Act) leaves the private land owner with no alternative. The power involves the taking of a person’s land against his will. It is a serious invasion of his proprietary rights through the use of statutory authority. The private land owner has no alternative but wait for compensation. It is consequently necessary that the court must remain vigilant to see to it that the State or any organ of the state does not abuse the constitutional and statutory authority to expropriate private property.
It is on this basis that courts have consistently held that the use of statutory authority to destroy proprietary rights requires to be most carefully scrutinized. The courts are enjoined to ensure that the process is free from any rebuke and in this regard; the statutory provisions must be followed and be adhered to strictly. The question of compulsory acquisition of land and when the same should be considered as necessary due to ‘unreasonable withholding’ of consent is a potential hurdle when it comes to achieving FPIC in Kenya. As held by courts, there is a need for continued supervision of the way this power is exercised to avoid any abuse of the same to the disadvantage of communities.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD: Muigua, K., “Maximising the Right to Free, Prior, and Informed Consent for Enhanced Environmental Justice in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/ 2019/03/Maximising-the-Right-to-FPIC-in-Kenya-Kariuki-Muigua-29th-March-2019. pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.
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