INDIGENOUS COMMUNITIES’ RIGHT TO FREE, PRIOR AND INFORMED CONSENT (FPIC) IN OIL AND GAS DEVELOPMENTS IN KENYA: A THEORETICAL FOUNDATION

Abstract

This article seeks to explore the theoretical foundation upon which the principle of Free, Prior and Informed Consent as an international law concept is premised. This exploration is undertaken in the context of indigenous human rights discourse as a theoretical framework underpinning indigenous right to FPIC. 

The exploration is significant in the sense that in order to appreciate the scope and content of FPIC processes, it is essential to consider their normative premises, especially rights to self-determination, lands, and resources. Indeed, FPIC obtains its legitimacy from these norms, and its application particularly in the context of oil and gas developments in Kenya is dependent upon the nature of the affected rights and impact the relevant decisions may have on those rights.

The exploration is necessary especially for Kenya in the context of the recent discoveries of oil and gas in the country and the exploration and exploitation activities being witnessed. These development activities are taking place in the areas occupied by the marginalized and indigenous communities in Turkana County, which is a poor and remote northern part of Kenya. The communities’ have expressed a feeling of dissatisfaction and despair especially with the manner in which oil and gas development activities are being conducted. They have indeed made claims that there has been lack of consultation in the framework of FPIC, lack of compensation, displacement, restrictions on access/use of their land, as well as lack of information sharing. 

The Principle of Free, Prior and Informed Consent (FPIC) arose as a result of concerns especially from the indigenous communities, with regard to the threats to their rights, territories and livelihoods posed by the extractive industries’ quest for natural resources. A widespread lack of respect of their cultures and rights has resulted in many communities being decimated, dispossessed of their lands and forcibly relocated. Thus, the fundamental aim of establishing the principle was to reverse the tendency and make the recognition of their rights and having the principle as a precondition for any activity that affects their ancestral lands, territories and natural resources, as well as equitable exploitation of resources. Indeed, development experts have recognized that FPIC is not only important for indigenous peoples but it is also good practice to undertake with local communities, as involving them in the decision making of any proposed development activity increases their sense of ownership and engagement and, moreover, helps guarantee their right to development as a basic human rights principle. It is against this background that this article seeks to explore the theoretical framework underpinning the concept of FPIC. This is done in the framework of indigenous human rights discourse, and especially closer examination is made in the context of right to self-determination.