The Extractives Baraza (EB), a public engagement arm under Strathmore Extractives Industry Centre, concluded a one-year project on Advancing Capacity and Access to Justice in Kenya’s Extractives Sector. The threefold project, which commenced in April 2018 and was funded by the Ford Foundation, sought to build the capacity of judges and legal researchers as well as document grievances along the extractives value chain in Kenya especially in the petroleum sector. The project was informed by the discoveries of hydrocarbons and minerals in significant quantities in Kenya and its associated concerns, expectations and impacts that need to be continuously addressed.

Listening Project

The first part of the project involved field research (“Listening Project”) in the Lokichar Basin of Turkana East and Turkana South where major physical oil operations are taking place. This was an expansion of the Extractives Baraza’s Pilot Listening Project conducted in April 2017 in Mui Basin, a coal rich region in Kitui County. The research sought to establish local perceptions and understanding of oil-related grievances and preferred grievance-handling mechanisms (judicial and non-judicial). A total of 362 participants, largely comprising those closest to the oil resource and most impacted by the day-to-day activities of the oil operations, participated in the project.

Capacity building for the Judiciary

Based on the findings generated through the research, the EB in partnership with the Judiciary Training Institute (JTI) and International Development Law Organization (IDLO), implemented a two-part capacity building workshop for judges and legal researchers drawn from the following High Court divisions: Judicial Review Division; Environment and Land Court (ELC); and the Family Division. The main objective of the workshop was to build capacity of judges and legal researchers to deepen their knowledge on extractives (oil, gas and mining) and related grievances. The workshop also sought to explore the interface between ADR and judicial mechanisms currently in use towards establishing the value and effectiveness of the Alternative Dispute Resolution (ADR) mechanisms. The training for the judges also resulted in JTI requesting EB to facilitate a session on The Emerging Issues for the Environment and Land Court in the Extractives Sector in Kenya during the Environment and Land Court Conference on 5^th June 2019.

Developing Judiciary guide

A key outcome of the project was the development of the Judiciary Guide on Handling Extractives Related Grievances in Kenya. The Guide was launched on 25^th April 2019 by Hon. Justice Kathurima M’Inoti, Director JTI, on behalf of the Chief Justice. The guide is intended for judicial officers (magistrates, judges and legal researchers) to deepen their understanding on the extractives sector value chain, present and potential grievances at each phase of the value chain as well as the best models for handling those grievances, including the use of alternative dispute resolution (ADR) mechanisms as set out in Article 159(2) of the Constitution 2010. The development of the guide relied on feedback from the Judiciary Training and the Listening Project findings, as well as an in-depth review of relevant literature, laws and policies. Following the successful the Guide, EB developed a Community Fact Sheet on Handling Community Related Grievances in Kenya’s Mining Sector. The fact sheet urges communities to try and resolve their grievances through locally available mechanisms, most notably ADR, liaison committees, community-based structures or TDRMs, among others, before engaging state-based judicial mechanisms such as courts.

 

This article was written by Geoffrey Kerecha, Programme Manager, Extractives Baraza, Strathmore Law School.

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