By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
Natural Resources Benefit‑sharing mechanisms can be organized along two main axes: a vertical axis of benefit sharing across scales from national to local, and a horizontal axis of sharing within scales, including within and across communities, households and other local stakeholders. Free and prior informed consent of local communities and transparent and equitable benefit-sharing mechanisms can bring affected communities into the mainstream of a natural resource dominant development model. Understanding who the key stakeholders are, what their aspirations, concerns and expectations of a project are, and what drives these is important for judging the reasonableness of a benefit sharing settlement and its legitimacy and durability over time. The social and economic development is essential to enable a favourable living and working environment.
Natural Resource Management plays a key role in the conservation of the environment. Human rights remain the obligation of the state to protect and may be done through inclusive decision making processes. Therefore, while it is important for the state to promote the people’s right to benefit from their natural resources as envisaged in international and national legal and human rights instruments, this should be done within the framework of achieving sustainable development. However, it is also important for the Kenyan people to look beyond oil resources in the country and invest in innovation to boost production in other areas such as livestock and agriculture production as well as innovative business investment in creative technologies.
Foundations and Trusts
The approaches taken by Kenya towards resource management, for instance, have been through Foundations, Trusts and Funds (FTF) initiatives in the energy sector. FTF represent a wider range of financial and institutional framework that channel revenues to local communities. This mode of benefit sharing enable for the operation of government payment, compensation and community investment. The author suggests that they establish a systematic, professional formal approach to development. This has been successful in jurisdictions such as Senegal, Ghana, Australia and Canada.
Enhancing Local Accountability and Building Capacity
Communities with more control over access and better common property management regimes play stronger decision making roles. They acknowledge that land-use decision making is inherently a multilevel process since numerous actors are involved both directly and indirectly representing multiple sectors with different roles, interests and incentives. Arguably, resource funds (RF) may provide, even to a limited degree, a track record of windfalls. It has also been suggested that through CSR and social investment strategies, extractive firms can provide local socio-economic development where the government is unable or unwilling to do so, and thus may help mitigate against the potentially harmful impacts of resource-led growth. Notably, the ideal goal is for private sector development interventions to supplement government service provision, to avoid a situation of dependency on the private sector, and not to impact the willingness or ability of the state to develop its capacity. However, due to the uncertainties that come with CSR, there may be a need for a framework that is anchored in law to shield it from the uncertainties that come with CSR arrangements. This also increases accountability not only to the local communities but also the government.
Achieving Right to environmental information
Environmental information comprises of information held by authorities, factors that affect the environment, research on the environment, health and safety measures, and reports on the implementation of environmental legislation and so forth. Lack of environmental information regarding conservation and management becomes more technical in undertaking natural resource management. As far as indigenous communities are concerned, their right to information should be upheld by ensuring that any information needed is received as soon as possible. Enabling access to environmental information forms basis to access environmental justice. Communities are also likely to understand the implications of extractive industries on their day to day lives as far as the environment is concerned.
Access to Information Act 2016 was enacted to, inter alia, to give effect to Article 35 of the Constitution of Kenya on the right of access to information. The Act provides that subject to the Act and any other written law, every citizen has the right of access to information held by — (a) the State; and (b) another person and where that information is required for the exercise or protection of any right or fundamental freedom. The term ‘information’ is interpreted to include information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety.
Devolution and Benefit Sharing
The 2010 Constitution requires that services be devolved and both the national and county governments ensure reasonable access to its services so far as it is appropriate. Ideally, local communities should be allowed to access natural resources for them to be able to uphold their responsibilities for future generations.658 Natural resources are a source of livelihood as they from part of their economic activity. If natural resources are accessed and well managed, they provide for raw materials which are then processed to get products that are sold and thereby generating income. Allowing communities to access natural resources will undoubtedly promote sustainable development. It is important to make use of the devolved system to empower communities and build capacity through investing accrued benefits in sustainable development projects which will go beyond the lifespan of oil exploration and at the same time uplift the livelihoods of the local people. The County governments are in a better position to identify the most viable and sustainable projects.
Public participation
Public participation allows individuals to express their views on key governmental policies and laws concerning conditions in their communities. Fostering public participation will mean that authorities dispense their constitutional and legislative obligation, positive deviation in terms of contribution and motivation. In The Matter of the National Land Commission [2015] eKLR, one of the issues that the Supreme Court of Kenya had to deal with was the role and place of public participation in the administration and management of land in Kenya. Mutunga, CJ observed that public participation was a major pillar, and bedrock of democracy and good governance. The Supreme Court’s advisory opinion is an affirmation of the important role that the principle of public participation can play in enhancing people’s appreciation of the management of natural resources in the country. Apart from enhancing people’s role in management, public participation may promote co-existence among indigenous communities and allow investors to carry out their activities peacefully.
Addressing Resource Capture Phenomenon/Corruption
It has been argued that rent-seeking models assume that resource rents can be easily appropriated hence encouraging bribes, distorted public policies and diversion of public towards favour seeking and corruption. Corruption has been termed as a threat to protected human security. It calls for global effort to combat corruption. Resources have fostered corruption, undermined inclusive economic growth, incited armed conflict and damaged the environment. For the governments managing significant resource rents, rent appropriation may be preferable when compared to the promotion of wealth creation policies. The argument is based on the preposition that rent appropriation may dominate over wealth generation as it offers immediate economic and political gains. These gains appear quite appealing as they can, arguably, be highly personal, favouring the specific members of the ruling elite.
*This article is an extract from the Article: Securing Our Destiny through Effective Management, (2020) Journal of Conflict Management and Sustainable Development Volume 4(3), p. 1. by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. 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 among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Securing Our Destiny through Effective Management,” (2020) Journal of Conflict Management and Sustainable Development Volume 4(3), p. 1.