Public Participation Prior to Exploitation of Natural Resources: Reality or Merely Theoretical?

It is no secret that Africa is endowed with numerous natural resources.  This position finds solid backing in what is recorded in the books of history as the scramble and partition for Africa or the race for Africa.  Closer home, Kenya boasts of various finite and non-renewable resources which include; air, water, oil, natural gas, soda ash, gold, diatomite, coal, gemstones, limestone inter alia.  These resources are exploitedfor economic gain.

Recently, print and electronic media was awash with news pertaining to the Northern Water Collector Tunnel Projectthat is being undertaken by the government.  While keeping politics and arguments for and against the project at bay, a pertinent issue relating to the exploitation of natural resources arose.  Among the grounds being raised by opponents of the project is that no public participation was done.  The proponents of the project on the other hand insist that public participation was carried out as several public participation forums were held in Murang’a and Nairobi.

The above, certainly, is not peculiar to the Northern Water Collector Tunnel Project.  Time and time again, the exploitation of natural resources has been halted or paralyzed due to, among other reasons, lack of public participation prior to commencement of projects.  According to a case summary prepared by ActionAid, Both ENDS Netherlands, Centre for International Environmental Law (CIEL), Adivasi Resource Centre for Women and Children and Keystone Foundation pertaining to coal mining in Mui Basin, the locals there complained that the mining activities would result in the sanctioning of their land, a decision that was arrived at without their knowledge.  Further, according to anecdotal evidence,similar complaints relating to lack of public participation prior to the implementation of projects were raised by locals in Kinangop regarding a wind farm project being built in the area.  Residents from the area moved to court and filed a suit wherein they prayed that the project be stopped until their questions regarding the projectwere answered.  These are just but a few examples.

What then is the legal justification for public participation prior to exploitation of natural resources and what does it entail? Is this practically enforced?

Various statutes at the international and the national level require public participation in state policies and programmes touching on the environment and the governance of natural resources.  At the international level, these instruments include; Firstly, the Declaration on the Right to Development which provides that the right to development implies the full realization of the right of people to self-determination which allows people to exercise their inalienable right to full sovereignty over all their natural wealth and resources.

Secondly, Article 13 of the African Charter on Human and People’s Rights (Banjul Charter) provides that every citizen has the right to participate freely in the government of their country, either directly or by way of an elected representative.  Thirdly, the United Nations Conference on Environment and Development 1992, Agenda 21 provides that one of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision making.  It further provides as regards the environment and development, the need for new forms of participation has emerged.  These include the need for individuals, groups and organizations to participate in environment impact assessment procedures, the need for individuals, groups and organizations to know and participate in decisions particularly those that may affect their area of residence and or place of work and the accessibility of information relevant to the environment and development held by national authorities.

Fourthly, Principle 18 of the Draft Principles on Human Rights and the Environment 1994 proclaims that all persons have the right to active, free and meaningful participation in planning and decision making activities and processes that may have an impact on the environment and development.  This includes the right to a prior assessment of the environmental, developmental and human rights consequences of the proposed actions.

At the national level, the Constitution of Kenya2010 and the County Governments Act (No. 17 of 2012) provide for citizen participation in planning and development, effective resource mobilization and use for sustainable development amongst others.  The County Governments Act further requires that each county provides continual and systematic civic education to its residents.  This is so as to ensure that citizens are informed and as such can be able to make sound decisions.

Still at the domestic level, the Environmental Management and Co-ordination Act (No. 25 of 2015) provides that among the principles of sustainable development is the principle of public participation in the development of policies, plans and processes for the management of the environment.

Having firmly established the law, focus now turns to determining what public participation entails.  Following the promulgation of the Constitution of Kenya 2010 that put a lot of emphasis on public participation, numerous interpretative judicial pronouncements of the term have been made.  In Robert N. Gakuru & Others v Governor Kiambu County &3 others [2014] eKLR,the learned judge laid down various parameters that must be satisfied before it can be said that public participation was carried out.  Firstly, that a hearing is held prior to arriving at a decision and interested parties are afforded sufficient time to prepare for the hearing.  Secondly, that as many forums as possible are used to inform the public of the hearing.  Thirdly, that the platform used to inform the public of the hearing should be one that people from all walks of lifeare able to access and lastly, that it should be clearly communicated to the public that they are being invited for the hearing.

In Nairobi Metropolitan PSV Saccos Union Limited &25 others v County of Nairobi Government & 3 others [2013] eKLR (Petition 486 of 2013),the learned judge made reference to Minister for Health and Another v New Clicks South Africa (Pty) Ltd and Others (2006) (2) SA 311 in arriving at the conclusion that as regards public participation, what matters is whether a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say.

In addition to the above, Agenda 21 which Kenya endorsed at the 1992 Rio Earth Summit, provides that public participation includes the participation of individuals, groups and organizations in environment impact assessment and the accessibility of information relevant to the environment and development held by national authorities.

Having established the law and the components of public participation, what of enforcement?  At the beginning, it was brought to the fore that various projects relating to the exploitation of natural resources have been halted or paralyzed due failure to conduct public participation prior to their implementation.  It is thus clear that public participation prior to the exploitation of natural resources, if any, is inadequate.  Being that the onus of carrying out public participation lies on the national and county governments, it thus goes without saying that appropriate steps must be taken so as to ensure that theory and reality are at par.