FREE, PRIOR AND INFORMED CONSENT IN THE OIL AND GAS SECTOR IN KENYA: AN ANALYSIS IN LIGHT OF HABERMAS THEORY OF COMMUNICATIVE ACTION AND ETHICS

Abstract

This article examines the principle of Free, Prior and Informed Consent in the context of oil and gas sector in Kenya as an emerging principle of international law useful for sustainable utilization of natural resources within the marginalized and indigenous communities’ territories. This examination is timely given that Kenya is an emerging oil and gas producer and has no experience with the developments within the extractives industries. There are fears that oil development will lead to both physical and economic displacement as a result of restrictions on land access and/or land use. Pastoralist communities in particular are concerned about how significant change in land access would disrupt their traditional pastoralist way of life, and how it could result in increased conflict between communities left to compete for limited land.

A final significant concern relates to the fact of not understanding the current regulatory framework and legislative policies on tenure and acquisition of community land. It is further noted that, in the absence of effective information-sharing about community land rights, community members feel that oil companies did not properly obtain their rights to the land, and in combination with a general lack of trust in government’s capability to manage resources responsibly, there is the perception that oil exploration is land-grabbing without consultation or compensation.