Wednesday, 19 February 2014

Oil & Gas Exploration: Interrogation the Oil Company's Adherence to Article 40 of Constitution of Kenya 2010.

Indigenous communities across the globe have been victims of unwarranted exploitation by private investors in the search for among others oil and gas. Whenever governments and oil companies intend to enrich themselves from the oil revenue, history has indicated that voiceless citizens are subjected to inhuman treatment and torture, deprivation of their indigenous community rights, disruption of their once peaceful way of life, destruction of forests and bushes, noise pollution and clearing of community shrines just to name a few. This is despite the undisputed fact that when all this is done, some “primitive individual”, who is supposed to enjoy the protection of the state, is directly or indirectly affected and mitigation measures are not put in place. After the experience of the Niger Delta and whatever happened there, communities have taken a vow to confront their enemies. The drafters of international oil and gas policies, municipal laws and regulations governing the oil and gas sector, in their wisdom and in acting ex abudanti cautella, introduced the concept of community compensation because they foresaw a conflict in the making. However, whether this requirement is often adhered to by oil companies and private investors is another long story. But the question is and always shall be, has the oil company ever tried to put itself in the shoes of these local communities and feel the pinch of eviction from one’s aboriginal land without an iota of compensation?  Are oil companies run by human beings who know or ought to know the laws governing oil exploration? I know the answer. The oil process, as my friend keeps on telling me every time I raise this issue with him, is an el classico clash between Mbuta and Omena and that I am the most insane person he knows in Kenya if I expect omena to win the match. But is that the law?

The communities occupying the piece of land that later came to be referred to as “Kenya” had a settled life during the pre-colonial period. As history shows us, land particularly was owned on the basis of clans and in adherence to customary land ownership system. There was no grabbing of land. Eviction of people, even when they had settled on land that traditionally did not belong to their clan, was unheard of. The boys could tell you when you meet them in the pastureland during grazing hours that the old men back at home met and recommended that the animals graze in a specified portion of land for a specific timeframe to avoid overgrazing. The old men would meet during the drought seasons in identified trees and forests to offer sacrifices to the ancestors as consideration in exchange of raindrops. Life was so simple. A newly wedded bride who intended to build her home using the building materials obtained from the bushes was not required to produce an Environmental Impact Assessment Report when she went from bush to bush looking for the proper building wood. If you happen to run into them in the forest, they will tell you the old men will be angry if they find out that a reckless firewood chopper in the name of a newly wedded bride was falling trees like wild fire. The animals and the people drank very clean water. There was no noise of a bulldozer vibrating in the next cattle shed. The people went about their lives peacefully and without threatening any single life from houseflies to the elephants. Then all of a sudden, BOOM!!!! BOOM!!!! BOOM!!! BOOM!!!!! There are oil companies coming with letters from Nairobi and evicting people from their lands. They are armed with among others, Kenya Police Reservists, International Oil and Gas Lawyers, odd-looking machines and middle-African Middle-mzungu short identical men that “speak in tongues”. The community later comes to know they are called “Chinese”. Then there is clearing of forests. The women who go to the forest are nowadays careful; they don’t rest their young ones under the shade as they go about chopping firewood. It is said nobody knows the hour or the day when the snake-eating Chinese will strike with his dong feng and bulldozer clearing the bushes and in the process the baby. Life has been incredibly affected and old men are seen meeting in cocoons in Loperot and Kodekode. The snake-eating Chinese are so fierce that even the once-respected community elders and chiefs fear them. It is said the Chinese don’t argue with people. When they come to your house, they can decide to sweep it away and you can’t ask them anything lest you are molested by the Kimaiyo mboys they have come with. The old men are planning to meet in the huge tree in the banks of the river to discuss the inversion. A herdsboy is sent to deliver the message to Lothiakou, Apa Angimomwa, Lokorikel Nyolo and many other prominent elders. The meeting is set to kick off after the last sheep and goat leave the watering trough. The most generous of the old men sends his youngest son to drive the ram to the venue of the meeting as the old men stroll down the river with herding-sticks lying horizontally on the back side of their respective necks. Those who eavesdropped their conversation told us the old men were furious over the manner in which the forests were being cleared. BOOM!!! BOOM!! BOOM!! BOOM! The huge tree that has always been the venue of the old men’s meetings is no more. The snake-eating Chinese is seen instructing the driver of the bulldozer to continue clearing the bushes. The old men are shocked. However, for the fear of the unknown, they nod their heads in disbelief and head towards the grazing fields where they left the young boys. It is the third week since oil exploration and bush clearing began and intelligence reports show that the neighboring communities are so happy. They say they will no longer have to drive the cattle after raiding via the long route of Kapedo; they will just drive through the super highway created by the machines of the snake-eating Chinese. Talk of double-jeopardy. The evening dance is no more. Information being circulated is that the white men do not want to hear of anybody “barking like a crazy dog in the wee hours of the night in the name of dancing”. The young men and the beautiful girls are worried. They say they will not defy any regulation put forward by the white men and the Chinese. Who will ever dare take the community back to the happenings of 1950s when “Itaos” (a corruption of the name George White House who was the first governor of Turkana District, as it then was) was breathing fire from Lodwar and fire which was felt across the district?

As indicated above, the way of life of the forgotten people of Turkana has irredeemably been affected by the oil exploration. However, they have to be told that they should instead ask for compensation from the oil company. They do not know their rights and that is why any individual from any corner of the planet can tell them A for B and vice versa. Let’s address the issue of community compensation as envisaged by Article 40 (3) (b) (i) which states as follows:

“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—

(b) Is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that

(i) requires prompt payment in full, of just compensation to the person;”

When the community land is taken by the oil company or any other investor for camp construction or oil exploration, the community is displaced, watering points are destroyed, community forests and shrines, which enjoy the full protection of the law, are cleared. The law requires that the oil company or its representatives obtain Free Prior Informed Consent from the people or their representatives as opposed to letters from Nairobi. Secondly, compensation must be promptly paid, neither as charity nor philanthropy but as of right. This has never been done and when it is done, it ends up in the hands of this principle: “that which belongs to the community belongs to none”. That is why after compensation is paid, the drafters of the Constitution forgot to include the Publish What You Pay aspect of the community compensation so that the community knows the money has been paid to the trustees. Information is power, they say.

But, is disruption of the culture and life of the pastoralist community without any compensation, especially because they do not understand their rights really proper? No.  They might forgive but they will never forget.

Ekai Nabenyo is a Youth Leader and Community Activist and a Law student at the University of Nairobi. He blogs at

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