In our February discussion, Hakijamii shared some of the challenges with monitoring the extractive industry in Kenya. Overall, lack of oversight of the industry, in particular lack of transparency about deals between government officials and multinational corporations (MNCs), has exposed Kenyans to massive economic exploitation and deprived communities of any benefit from the resources extracted from their lands.
First of all, monitoring ESCR in the context of natural resource extraction has been hindered by a fragmented and confusing the legal framework. The Petroleum Act of 1986 does not have any clause on royalties or benefit sharing with communities. The Community Land Bill of 2014 (currently before the Senate) does not determine an exact percentage to be given to the community. There is also a proposed Senate bill on benefit-sharing which proposes that the community receives 40% of the county government's share. The Mining Bill of 2014 gives the cabinet secretary the mandate to determine the amount to be paid as royalties. Lastly, Article 71 of the Constitution states that all agreements relating to natural resource exploitation requires government ratification.
Further, there is no social accountability framework that can monitor activities of MNCs. Community participation is a distant dream because the Kenyan government has done little to prepare affected communities for the projects. Inadequate information among affected communities is alarming. At the grassroots level, community representatives are easily compromised. This leaves the communities more vulnerable to exploitation.
In the discussion that followed, Working Group members shared comparative experiences of monitoring the extractive industry in a variety of countries. Many emphasized the importance of a strong legal framework in facilitating effective monitoring. In Colombia, for example, ILO Convention 169 requires the government consult with indigenous communities before approving a project, which means there is scope for assessing its likely impact.
That said, ILO Convention 169 does not protect rural subsistence farmers. In some Latin American countries, these communities have organized their own popular consultations; these consultations can be a successful bargaining tool and way to attract media attention, even if they are not legally required. In Kenya, however, community-initiated monitoring has tended to be informal and “word of mouth.” This undocumented form of monitoring provides very little support for advocacy.
The African Charter on People’s and Human Rights was also suggested as legal tool people can use to seek redress against extractives. In one case, a the African Court on People’s and Human Rights ruled in favor of an indigenous community against an extractive MNC, forcing the MNC to provide compensation to the indigenous group. A second case has yet to be ruled on, but has very similar features to the first.
There was also a lot of discussion about the potential of the Extractive Industries Transparency Initiative (EITI) to provide a framework for monitoring. EITI provides a foundation for civil society and the media to monitor the actions of extractives. However, it has a fairly narrow focus on openness and transparency of contracts, it was noted. In Mexico, the priority is on highlighting the social and environmental costs of extractive projects, which is a much broader undertaking.