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Right to Free, Prior and Informed Consent: Meaning and Scope



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

There is currently no singular or universally accepted definition of Free, Prior, and Informed Consent (FPIC), no agreement on what a FPIC process must entail, and no functional clarity about what constitutes ‘consent’, with authors arguing that consent and associated processes should be determined locally. As such, there exist a number of definitions of FPIC. For instance, some authors suggest that an FPIC process should be grounded in the degree to which livelihood and culture are dependent on customary lands, rather than application being strictly tied to indigeneity.

Free, Prior, and Informed Consent (FPIC) has been defined by some as ‘the principle that indigenous peoples and local communities must be adequately informed about projects in a timely manner and given the opportunity to approve (or reject) a project before operations begin.’ This includes participation in setting the terms and conditions that address the economic, social, and environmental impacts of all phases of extraction and post-extraction operations.’ It is also contended that communities should have the right to continue to provide informed consent, or alternatively to withdraw consent, during the implementation of the project, in line with agreed procedures.

FPIC is a right for indigenous peoples and it is also viewed as a principle of best practice for sustainable development, used to reduce social conflict as well as to increase the legitimacy of a project in the eyes of all stakeholders and rights holders. It is also seen as a requirement, prerequisite and manifestation of the fundamental, inherent right of indigenous peoples to self-determination. From the foregoing definition, it is thus arguable that FPIC broadly falls within public participation but from an informed point of view and without any coercion either from the State or the investor or developer.

Article 10 of the United Nations Declaration on the Rights of Indigenous Peoples guarantees that indigenous people should not be forcibly removed from their lands or territories. No relocation shall take place without free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. Article 28 of the Declaration further provides that Indigenous peoples have the right to redress, by means that can include restitution or when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Some scholars regard FPIC as an aspect of environmental justice and a tool for poverty alleviation. In the context of environmental justice, FPIC is believed to empower indigenous communities by providing them access to environmental justice, which concept mandates that all people, regardless of their race, origin or income, have the ability to “enjoy equally high levels of environmental protection. FPIC also gives the most vulnerable members of society a platform from which they can express their rights. Within the context of the rights of indigenous peoples, FPIC requires that consent must be freely given and that the decision must be made after indigenous peoples have been educated about the project.

Principle 10 of the Rio Declaration provides that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. It further provides for access to information by the public. At the national level, each individual must have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States must facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, must also be provided.

Public participation is, therefore, an essential principle in natural resources management. However, public participation is hampered by factors such as financial cost of engaging the public, time constraints, fear that participants may not be truly representative and belief that citizens lack knowledge of complex technical issues. In determining who falls within the category of the people to be consulted seeking FPIC, the ‘public’ in public participation is used to refer to individuals acting both in their roles as citizens, as formal representatives of collective interest or affected parties that may experience benefit or harm or that otherwise choose to become informed or involved in the process.

The label ‘public’ is often used to refer to individual citizens or relatively unorganized groups of individuals but should be expanded to include the full range of interested and affected parties including corporations, civil society groups, technocrats and even the media. Four categories of the public must be considered when deciding whether or not the ‘public’ has been involved. These are: stakeholders who are organized groups that are or will be affected by or that have a strong interest in the outcome of the decision; the directly affected public who will experience positive or negative effects from the environmental decision; the observing public which includes the media and opinion leaders who may comment on the issue or influence public opinion; and the general public who are all individuals not directly affected by the environmental issue but may choose to be part of the decision making process.

Courts have rightly pointed out that public participation is an established right in Kenya; a justiciable one – indeed one of the corner stones of our new democracy. In addition, Kenya’s jurisprudence has firmly established that Courts will firmly strike down any laws or public acts or projects that do not meet the public participation threshold. This was the holding in Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR. In Hassan and 4 others v KWS [1996] 1KLR (E&L) 214 the court described the public as “those entitled to the fruits of the earth on which the animals live” when stating that there was no express consent from the community allowing KWS to translocate the rare hirola antelope from their land.

Further, in Mada Holdings Ltd t/a Fig Tree Camp v County Council of Narok [2012] eKLR, the court gave a much wider description of the public by stating that it is “the individual who has sufficient interest in the issue over which the public body is exercising discretion, or where the exercise of that discretion is likely to adversely affect the interests of the individual or even where it is shown that the individual has a legitimate expectation to be consulted before the discretionary power is exercised.” FPIC requires that during the negotiation process, indigenous groups are made aware of their rights over their ancestral lands, the risks associated with the project, and the relationship between their rights and their access to natural resources, which the community may be dependent upon for sustenance.

It has been observed FPIC is not just a result of a process to obtain consent to a particular project; it is also a process in itself, and one by which Indigenous Peoples are able to conduct their own independent and collective discussions and decision-making. This is to be achieved in an environment where they do not feel intimidated, and where they have sufficient time to discuss in their own language, and in a culturally appropriate way, on matters affecting their rights, lands, natural resources, territories, livelihoods, knowledge, social fabric, traditions, governance systems, and culture or heritage (tangible and intangible).

*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: 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. 


Dietz t. & Stern, P.C., (eds), Public Participation in Environmental Assessment and Decision Making, (National Academies Press, 2008)15.

FAO, Free Prior and Informed Consent: An indigenous People’s right and a good practice for local communities, Manual for Project Practitioners, 2016. Available at [Accessed on 19/11/2021].

Mckeehan, A. and Buppert, T., “Free, Prior and Informed Consent: Empowering Communities for PeopleFocused Conservation,” Harvard International Review, Vol. 35, no. 3 (2014): 48.

Muigua, K., Kariuki, F., Wamukoya, D., Natural Resources and Environmental Justice in Kenya, Glenwood Publishers, Nairobi – 2015;

Muigua, K. and Kariuki, F., ‘Towards Environmental Justice in Kenya,’ Journal of Conflict Management and Sustainable Development, Volume 1, No 1, (2017). 14.

Mullins, D. and Wambayi, J., , “Testing Community Consent: Tullow Oil project in Kenya,” Oxfam Briefing Paper, Oxfam International, November 2017, available at [Accessed on 19/11/2021].

Owen, J.R. and Kemp, D., “‘Free Prior and Informed Consent’, Social Complexity and the Mining Industry: Establishing A Knowledge Base,” Resources Policy, Vol.41 (2014): 91-100.

Oxfam International, “Securing Communities’ Right to ‘Free Prior and Informed’ Consent in Kenya’s Extractive Sector,” Wednesday, November 8, 2017. Available at [Accessed on 19/11/2021].

Report of the United Nations Conference on Environment and Development (Rio De Janeiro, 3-14 June 1992).

Senach, S.L., ‘The Trinity of Voice: The Role of Practical Theory in Planning and Evaluating the Effectiveness of Environmental Participatory Process,’ in Depoe, S.D. et al, (eds), Communication and Public Participation in Environmental Decision Making (SUNY Press Ltd., 2004) 13.

Sena, K., Operationalizing Free, Prior and Informed Consent within REDD+ Projects in Kenya,’ Case study, 2014. Available at [Accessed on 19/11/2021].

Zvobgo, T., “Free, Prior, and Informed Consent: Implications for Transnational Enterprises,” Sustainable Development Law & Policy 13, No. 1 (2013): 8.

News & Analysis

Why is THE LAWYER AFRICA Listing Top Law Firms and Top Lawyers?




The Litigation Hall of Fame | Kenya in 2023 (The Most Distinguished 50 Litigation Lawyers in Kenya).

We live in the age of information overload where too much information (TMI) is increasingly making it difficult to find actionable legal data about a good law firm or lawyer. At the same time, legal services are increasingly going digital and finding your next lawyer is a now a matter of a few clicks. Many existing, new and potential clients are interested to know more about the lawyer handling or likely to handle their next case or transaction as every HR Manager seeks to know how their In-house Lawyer or next hire compares to peers.

The biggest dilemma especially for commercial consumers of legal services  is where to begin the journey in finding the law firm or the lawyer to meet their immediate legal need created by their new venture,  business, transaction or dispute. In-house counsel are also called upon to justify opting for one lawyer or law firm or over the other.  Hence, the rise in the popularity of international law directories rankings as an attempt to fill the yawning gap by listing a few dozen lawyers and law firms in esoteric categories that often don’t align with the legal needs of the domestic legal market.

But ranking two dozen elite lawyers or big law firms in a big jurisdiction like Kenya there are over 20,000 lawyers is merely a drop in the ocean. The result is the same candidates are listed year after year and an In-house Legal Team looking to infuse new blood in their external counsel panel is left very little discretion. At best, International legal ranking only succeed to tilt the scales in favour of few big firms and their lawyers and to aid the choice of International Legal buyers who are constrained for time in picking their External Counsel in jurisdictions where they cannot find referrals.

The questions that beg are: What about the other top law firms and lawyers who are equally good if not better but don’t have the time to fill the technical paperwork that comes with International Legal Directories rankings? What about Domestic Legal Buyers who simply want to justify why they prefer a lawyer or law firm not listed in the International Directory? Can increasing the number of listed lawyers or law firms from less 0.1% of the profession (as captured by International Law Directories) to at least 1% of the profession or higher for those specializing in the practice area help in enhancing access to justice in Africa? Can ranking law firms by number of fee earners help in the quest for a more accurate bird’s eye view of a country’s legal landscape?

At THE LAWYER AFRICA, we have set out to list Top Law Firms and Top Lawyers in the various practice areas in a way that democratizes law rankings and listings and brings this essential value add within reach of most lawyers and every law firms doing top legal work. We don’t promise to list all the top lawyers or law firms, but we commit to make sure every lawyer or law firm we list is at the top of the game in the listed practice area. We aim to help both little known and already known law firms and lawyers doing top legal work in their area of specialization get discovered by discerning clients and possibly get more opportunities to do great work.

THE LAWYER AFRICA is looking to list up to Top 200 Law Firms in every African Jurisdiction based on their reputation and number of fee earners headcount with a goal of listing at least Africa’s Top 1,000 Law Firms which are leaders in their respective countries. We also seek to list up to Top 1,000 Lawyers in every country in Africa in at least five main practice areas, namely, Litigation, Commercial Law, Property law, In-house and Private Sector or more.

THE LAWYER AFRICA categorizes law firms in large jurisdictions as Top 5, Top 10, Top 20, Top 50 and Top 100 (and allow tying where number of counsel is equal). The Top Lawyers are listed in three categories, namely, Hall of Fame (the Distinguished Top 50 or 75 Practitioners in a Practice Area), Top 100 (the Leading Top 100 Practitioners in a Practice Area) and Up-and-Coming (the promising Top 50 or 75 Practitioners in a Practice Area).  The placing of a listings depends on a number of key factors including the number of key matters or transactions handled, years in practice and experience, size of team working under a counsel, reputation and opinion of peers (where available) as established by THE LAWYER AFRICA.

THE LAWYER AFRICA prefers to list a counsel in only one listing, as far as possible. The Team tries (as far as possible) not to contact listed law firms or lawyers before the listing is finalized in the first. However, a listed law firm or lawyer may be contacted at the pre-launch stage of a list for purposes of selling merchandise relating to the launch but such engagement will not affect the listing. In case of future listings, it is expected that interested lawyers or law firms who feel they were previously left out of the list may to provide information for consideration to determine if they qualify for the next listing but that will not guarantee any listing.

THE LAWYER AFRICA undertakes not to charge for listing any lawyer or law firm. However, upon publication of a listing, as part of recovering the sunk costs we incur in the research and publication of the listings, we shall charge a token for printing and shipping of Quality A3 Certificate for listed Law Firms and/or A4 Certificate for listed Lawyers who wish to have or display the branded souvenirs or to use our proprietary digital materials in their business  branding. We may also charge listed and unlisted law firms and lawyers an affordable fee for limited banner advertising or publishing of enhanced profiles next to the listings.

For any question or feedback on any list or listing, feel free to contact THE LAWYER AFRICA PUBLISHER at info[at]thelawyer[dot]africa.

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The Roles of the Three Parts of the Permanent Court of Arbitration




H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

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News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)




By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.


PCA Website: (accessed on 25th May 2023).

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