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: 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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