Sustainable exploitation of natural resources in Kenya : a case for communities’ free, prior and informed consent in oil and gas projects

Sustainable exploitation of natural resources in Kenya : a case for communities’ free, prior and informed consent in oil and gas projects
Rodgers Otieno Odhiambo
Africa Nazarene University Law Journal, 2019; 7(1) pp 1 – 23
Abstract
This article attempts to analyse the development of free, prior and informed consent (FPIC) as an international law principle, its nature and its essence. Further, the article seeks to illustrate the advantages of the principle in natural resource development. Indeed, the principal aim of this article is to bring the development of an international law principle useful in the exploitation of natural resources to the attention of Kenyan legal scholars and policymakers. This is crucial in the context of Kenya which has no experience in the exploration and exploitation of oil and gas, and in view of the fact that the country has embarked on various legal and policy reforms within the extractive sector. Being a frontier market, Kenya needs to learn the nuances within the oil and gas sector. It would therefore be imperative to examine the jurisprudence of international bodies and the activities of other international actors with regard to communities’ participatory rights, while recognising that a new standard of international law has developed which recognises that there is a duty to obtain the FPIC of local and indigenous communities when undertaking extraction of natural resources activities within their locality. Thus, the paper seeks to explore the development of the duty to obtain FPIC in international instruments such as declarations, treaties and Acts by international bodies. The article concludes by making a strong case for the entrenchment of FPIC within the policy and legal framework governing the extractive sector in Kenya.

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