BWIRE: Host communities still in the dark about minerals benefit-sharing deals

While the landscape in the extractive industry in Kenya has changed dramatically with the enactment of several laws to guide the development of the industry and for the good of the country and the communities at large, a lot of grey areas still abound. Accountability and transparency in the benefit-sharing arrangements is still faced with challenges.

With the anecdotal evidence from some African countries including Uganda, Nigeria and Ghana where mining has been characterized by corruption, exclusion of the host communities from benefits and lack of information on process in the industry, the national government and county governments need to put in place mechanisms that will enhance public participation, access to information and community access to related resources.

Both the national and county governments have obligations to support the development of local communities’ capacity to engage with the mining companies regardless of external investments especially in light of the social, economic and political marginalization of rural host communities. They must be actively involved in the process of consultations, agreements and monitoring of compliance.

Of immediate concern will be the issue of access to information by ensuring that laws in the sector allow inclusion of the most marginalized members of the host communities, including women and the youth who should be allowed not only to participate but also access benefits.

The Free Prior and Informed Consent

Both the right to information and public participation laws require prioritization of communities in the oil and gas sector or natural resources distribution processes. But now many communities are yet to benefit from hosting natural resources.

Due to lack of access to information and poor public participation practices by international investors, and the fact that Kenya is yet to join to the Extractive Industry Transparency Initiative,  knowledge among the host communities on what the benefit-sharing and land acquisition processes are still a mirage. Who knows what the current agreements provided for, how much was already pocketed from the extractive industries and what price will firms pay?

In a report recently released by Oxfam entitled The Free Prior and informed Consent, (FPIC), done in Turkana on Tullow and Africa Oil’s community engagement approaches, it was established that many community members are not aware of the existence or contents of the public participation and benefit-sharing documents and residents raised differing understanding of what was agreed with the mining companies.

Its apparent that most of community engagement strategies to increase public participation and understanding, information-sharing and especially in land use or content of production agreements by the international investors are still wanting and face resistance by the host communities.

There are still serious gaps in terms of who monitors implementation of commitments provided in the Corporate Social Responsibilities by the mining companies and who supervises the monitoring of emerging social, environmental effects on the communities in changing dynamics because most of the leaders appointed to represent the community are ill-prepared for the task – they have no full range of potential risks and impacts across the project life cycle – to make informed decisions.

The study also reports that women are excluded from the public participation and benefit-sharing meetings, the communities are dominated and represented during the meetings by relatively well-off influential men – which runs the risk of male biased elite capture and the marginalization of women voices, combined with personal conflict of interest. The communities are not up to the task of understating the industry, lack experience in negotiating long-term arrangements with international investors and are not clear on how to maintain active engagement.

The study, borrowing from international best practices recommends for oil, mining and gas companies to reveal the same basic information about the payments to a state and communities, benefits to citizens and openness and transparency.

It recommends that companies must maintain deep routine and regular monitoring of public engagement and information-sharing sessions and events so that promises made to the host communities are known.

It’s important that they enforce their contract disclosure requirements to help ensure that communities have adequate information regarding the fiscal terms of agreements reached between companies and governments.

Those working in the oil and gas sector must ensure they strategize so that they influence the country’s and county’s legal framework to be more explicit in mentioning the Free Prior and informed Consent (FPIC) and to build in consistent use of key FPIC concepts and language including in the proposed Petroleum Bill 2016 and in the regulations that guide the implementation of recently enacted laws including the Community Land Act 2016.

The FPIC principle safeguards the rights of indigenous communities which are affected by major investments including in the oil and gas industry. It is used to reduce social conflicts as well as increase the legitimacy  of a project in the eyes  of all stakeholders and the right holders Constitutional protection of Property & Compulsory acquisition rights and procedures

The writer is the Programmes Manager at the Media Council of Kenya and teaches Environmental Journalism. victor@mediacouncil.or.ke