Getting Past the Resource Curse: Managing Natural Resources in Kenya

It is a generally accepted concept globally that for a country to effectively exploit its natural resources, both the legal and institutional frameworks need to be aligned towards attaining a common objective. Indeed, Kenya has been endowed with diverse natural resources ranging from minerals, land, water reserves and wildlife. Further, the recent discovery of oil and gas deposits most notably Ngamia-1 in Turkana County not only offers the Country the chance to progress economically, but also provides the communities around the areas where the resources are the opportunity to gain financially. This article offers a brief yet detailed examination of three of the most important natural resources in Kenya and explores the gaps in legislation creating potential conflict spots. The natural resources examined include land, oil and gas reserves and water. Chapter Five of the Constitution of Kenya deals with land and environment and provides that the natural resources belong to the government with the National Land Commission impliedly tasked with overseeing civic education with regard to the resources.

Accordingly, it is imperative for widespread civic education to be conducted in order to avoid the possibility of Kenya falling prey to the resource curse as has a host of other African countries. Fundamentally, education on the concerned institutions and legislative framework would go down a long way towards shepherding the country positively as concerns the natural resources. If the uncertainty surrounding the Northern Collector Tunnel Project in Murang’a County is anything to go by, then it is safe to conclude that the government, both at the National and County level, has done little to involve the community in matters natural resources. Unless urgent remedial steps are taken, your guess is as good as mine on the potential outcome. The early conflict illustrates how water as a natural resource requires civic education for the avoidance of chaos.

Land, particularly, has proven to be an emotive issue over the years. The enactment of the Land Laws (Amendment) Act, 2016 forms a list of legislations that have been passed in order to streamline dealings in land the others being the Land Act, the Land Registration Act and the National Land Commission Act all passed in 2012. For instance, the Act amends Section 28 of the Land Registration Act with the effect being that spousal rights over matrimonial property, periodic tenancies as well as intermediate tenancies and leases or agreements for leases with a term not exceeding two years shall no longer be deemed to be automatic overriding interests in the absence of their registration. This provision will now have a greater impact in the manner in which property is transferred with a ripple effect in the expanding real estate industry.

Additionally, it is important to appreciate the role of the National Land Commission on the one hand and the Ministry of Land, Housing and Urban Development on the other hand with regard to land as a natural resource. While the Supreme Court through advisory opinion Reference No. 2 of 2014 sought to provide a distinction of powers and mandates between the two bodies, there still seems to be uncertainty on the procedure of conducting affairs in cases where the two bodies are concerned. Still, this has not been adequately addressed.

The other natural resource that needs careful examination is oil and gas reserves. The standoff witnessed between Tullow Oil Plc and the local Turkana community is another illustration that underlines the importance of civic education when it comes to natural resources.Indeed, the case of Africa Oil Turkana Limited (previously known as Turkana Drilling Consortium Ltd) & 3 others v Permanent Secretary, Ministry of Energy & 17 others [2016] eKLRhad the issue of civic education as one of the issues for determination in the exploration process. The enactment of the Mining Act was, theoretically, meant to initiate a process of public participation through Section 46 and by extension give effect to Articles 60, 62(1)(f), 66(2) and 69 of the Constitution of Kenya. Nevertheless, no active steps have been undertaken in a bid to ensure that once the extraction process slated to begin in 2019 commences, it shall be seamless. A potential source of conflict is, moreover, presented in the ambiguous terminology and phrasing adopted. For instance, the “social responsibility investments for the local community” posited in the Act shall be provided where this is “deemed applicable and necessary”.

A critical review of countries, especially African, that have failed to adequately provide effective legal and institutional support for their natural resources have resulted in either of the following outcomes: First, anarchy. The Central African Republic is a clear illustration of a country still reeling from the effects of anarchy despite being rich in natural resources. Second, totalitarian administrations. The northern part of Nigeria has suffered perennial problems despite having some of the largest oil reserves in the world. The above results were birthed from ineffective systems that failed to incorporate concerned stakeholders within their legal and institutional structures. Wiwa v. Royal Dutch Petroleum, Wiwa v. Anderson, and Wiwa v. Shell Petroleum Development Company are lawsuits that illuminated the extent of conflict that can emanate from failed civic education mechanisms in natural resource management.

In order to ensure that Kenya does not follow the paradoxical path of failed states owing to natural resources, it is critical to address the basic yet important issues.  First, public participation with a view to local ownership of the natural resources should be given paramount consideration. The effect of this would be galvanizing community support across both the exploratory and extractive processes. Second, impact benefit agreements based on widespread consultations highlighting the potential effect and the legitimate expectations and interests of the local communities should be considered. Third, the legal and institutional frameworks should be clearly aligned to avoid duplication of roles and eliminate potential conflict of interest situations. Hopefully, as expected, the country will get its act right this time round.