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The Law and Recent Jurisprudence on Need for Communities’ Consent in Extractives Industry in Kenya

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By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*

Despite the continued development in the policy and legal framework on public participation and inclusive decision-making processes and the development of international law on the right to free, prior, and informed consent (FPIC), the level of openness of the government to citizen engagement in policy and development decision making is largely insufficient and sometimes completely missing even in cases where their livelihoods and rights to property and environment are at stake. There many cases where communities and groups of persons in Kenya have sought court intervention, both locally and regionally, to have their right to participation in decision-making processes affecting their lands. There are also instances where either consent is inappropriately obtained or the government invokes its powers on compulsory acquisition of land with or without adequate compensation. The extractives industry is the best example to in demonstrating the prevailing dynamics of communities’ consent in Kenya.

As a matter of fact, the extractive industry projects place intense pressure on land. At the same time, FPIC introduces heightened social performance requirements at a time where many mining companies are still grappling with the fundamentals of their corporate social responsibilities (CSR). Section 37 of the Mining Act 2016 stipulates that prospecting and mining rights should not be granted under the Act with respect to private land without the express consent of the registered owner, and such consent should not be unreasonably withheld. Consent is deemed to be given for the purposes of the Act where the owner of private land has entered into a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows for the conduct of prospecting or mining operations; or an agreement with the applicant for the prospecting and mining rights concerning the payment of adequate compensation.

The Mining Act also provides that prospecting and mining rights should not be granted under the Act or any other written law over community land without the consent of the authority obligated by the law relating to administration and management of community land to administer community land or the National Land Commission in relation to community land that is unregistered. For this purpose, consent should be deemed to be given for the purposes of the Act where the registered owners of community land have entered into a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows the conduct of prospecting or mining operations; or an agreement with the applicant for the prospecting and mining rights concerning the payment of adequate compensation. It is however worth pointing out that the Cabinet Secretary responsible for mining is entitled 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.

Courts in Kenya have demonstrated willingness to uphold the requirement for seeking community consent where the same was not sought. For instance, in the case of Mohamed Hussein Haji v Issa Kuno & 4 others [2018] eKLR36, the petitioner sought a declaration that the Petitioner was entitled to information from the Respondents to verify and confirm whether constitutional and statutory regulatory requirements were complied with before the 1st and 2nd Respondents began their mining activities in the Ali Jibril area, within Wabari Ward in Garissa County, amongst other reliefs. The Court, ruling in favour of the petitioner, observed that in the case of a community land which falls within the ambit of customary law ownership which is neither public nor private, before any interest is acquired by any individual, the persons who ordinarily use that particular land must be consulted. The Court added that development that threatens life is not suitable development and it must be halted.

In environmental law, intergenerational equity involves the application of equity within the present and future generation such that each member has an equal right to access the earth’s natural and cultural resources. The land in question had not been acquired by the government from the community concerned by way of compulsory acquisition. The land belonged to the community and was held by the County Government of Garissa in trust for the affected community. There was no indication that consent was sought and obtained from the said County Government of Garissa.  The land in question was an unregistered community land held in trust by the County Government of Garissa on behalf of the communities and as seen from the decision above, the consent of the county government must be obtained on behalf of the community. While the finding in this case is a step in the right direction by Kenyan courts to protect the interests of communities, there is still the risk of investors directly seeking the consent of county governments who then ignore communities and purport to grant consent on behalf of such communities. This may be done without the County government in question first engaging the communities to help them appreciate the whole project and the process in question and how the same might affect their livelihoods.

The question of consent has not only been arisen in the Kenyan context only. In South Africa’s case of Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another 2019 (2) SA 1 (CC), the Constitutional Court overruled an eviction order, issued by a lower court to a mining company, permitting it to evict 13 families from a farm in the Lesetlheng Community, North West Province, where the company had mining rights. Significantly, the court upheld a provision in the Interim Protection of Informal Land Rights Act, a law enacted to protect land rights after apartheid, which says that no person may be deprived of any informal right to land without his or her consent. The mining company had secured consent to the granting of the right from the minister who held the land in a trust and the traditional council but those living on the land were not consulted, as the Interim Protection of Informal Land Rights Act and the Mineral and Petroleum Resources Development Act required. The Constitutional Court ruled they could not be evicted because they had not been consulted and consented, nor were mechanisms for resolving disputes under the Mineral and Petroleum Resources Development Act exhausted.

This issue was also canvassed before the Pretoria High Court, in Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP) where court ruled that companies must first seek permission from local communities if they plan to mine on their ancestral land (the famous Xolobeni judgment). There are, however, those who have challenged the High Court decision as one that would make it practically impossible to get mining rights on traditional land because of the numbers of people affected. The critics of the South African High Court’s decision did not however see any problem with the Constitutional Court’s decision which is seen as one with two sides of the requirement for consent of the occupiers: The first is the consent of the traditional authority as the lawful representative of the community; and the second is the consent of those directly affected, both of which do not require the consent of every single occupier and makes a provision for majority consent under common law. The problem with requiring consent of every person living within an area, even those not directly affected by any proposed development project is that one faction of the community in question may be in favour of the mine because of the potential economic benefits as a result of compensation and the other would be opposed because it would affect their traditional way of life.

Last year in September, the Pretoria High Court, again in Baleni and Others v Regional Manager Eastern Cape Department of Mineral Resources and Others [2020] 4 All SA 374 (GP), handed down yet another landmark judgment confirming that mining-affected communities have the right to access information about the projects that impact them. In a case filed by the Leaders of the Umgungundlovu community which had for the last five years been concerned about the impacts of titanium mining proposed in the Xolobeni area of the Eastern Cape and were refused access to the mining rights application. They approached the High Court under the Promotion of Access to Information Act (PAIA) of South Africa arguing that the usual process for requesting that kind of information places communities at a disadvantage and may prevent them from exercising their constitutional rights.  High Court ruled in favour of the Community ordering that interested and affected parties, the Community must be furnished with a copy of an application for a mining right to have meaningful consultation on an equal footing. What this means is mining community members will by default have access to the information to participate fully in discussions with mining companies and the state in their quest to realise other constitutional rights.

The Court, in the case of Patrick Musimba v National Land Commission & 4 others [2016] eKLR, opined that it had no doubt that the State under Article 69 of the Constitution is enjoined to ensure sustainable development and is also bound to ensure that every person has a right to a clean and healthy environment. However, physical development must also be allowed to foster to ensure that the other guaranteed rights and freedoms are also achieved. Such physical development must however be undertaken within a constitutional and statutory framework to ensure that the environment thrives and survives. It is for such reason that the Constitution provides for public participation in the management, protection and conservation of the environment. It is for the same reason too that the Environmental Management and Coordination Act (“the EMCA”) has laid out certain statutory safe guards to be observed when a person or the State initiates any physical development.

The Court went on to state that at the core is the Environmental Impact Assessment and Study which is undertaken under Section 58 of the EMCA and the regulations thereunder. Under Regulation 17, the Environmental Impact Assessment Study must involve the public. The inhabitants of any area affected by a physical development must be given an opportunity to air their views on the effects of any such development. After the Environmental Impact Assessment Study report is compiled, the same report must be circulated to the affected persons. The challenge is thus balancing the interests of both groups while ensuring that the ensuing court battles do not affect the country’s development agenda. This defines the burden on the states which, in addition to securing a balance between corporate and citizen rights, must grapple with the challenge of creating and fostering conditions for sustainable and diversified economic growth if they are to avoid the so-called ‘resource curse.’

*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. pdfDr. 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. 

 

References

Booysen, M., ‘Mining Rights and Communities – Does The Xolobeni Judgment Take South Africa Forwards Or Backwards?’ iAfrica, February, 4, 2019.

Bruce, L.A., “Game-changing judgment for Xolobeni community on mining rights applications,” available at: https://www.wits.ac.za/news/sources/cals-news/2020/game-changing-judgment-for-xolobeni-community-on-mining-rights-applications.html (accessed on 18/11/2021).

Mavhinga, D., “South Africa’s Constitutional Court Protects Land Rights: Landmark Rulings Protect Women and Communities Affected by Mining Companies,” Human Rights Watch, November 6, 2018. Available at https://www.hrw.org/news/2018/11/06/south-africas-constitutional-court-protects-land-rights [Accessed on 18/11/2021].

United Nations Environmental Programme, “South African indigenous community win environmental rights case over mining company,” December 7, 2018. Available at https://www.unenvironment.org/ news-andstories/story/south-african-indigenous-community-win-environmental-rights-case-over-mining [18/11/2021].

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Former KCB Company Secretary Sues Over Unlawful Dismissal

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Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for Unlawful Dismissal

Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.

Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.

In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.

He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.

“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.

Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.

Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.

He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.

“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.

Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.

He wants  further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.

Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.

He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.

He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.

He adds that at that point his roles were given to Okumu for reasons that were not related to work demands.  He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.

Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.

“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.

He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.

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Court of Appeal Upholds Eviction of Radcliffes from Karen Land

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Adrian Radcliffe, the Expatriate Squatter, Evicted from Karen Property by Innocent Purchaser for Value

The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.

Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:

“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”

On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.

The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.

The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.

At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.

The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.

As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.

Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1

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The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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