INTRODUCTION

The issue in this question is whether the exploitation of oil in Turkana for the interests and
rights of various groups in society will affect the Constitutional Provisions on Land oil and
environment with regards to the rights of the local residents of Lokichar in Turkana who
happen to be the immediate residents in the area where the oil has been discovered.

OUTLINE OF LAW
Article 10 states that the national values and principles of governance bind everyone
whenever the law is applied, interpreted or implemented.1 Some of these values include rule
of law, participation of the people, social justice and sustainable development.2

Article 37 gives citizens the right to peacefully picket and demonstrate and forward petitions
to public authorities.3

Article 40(3) deals with the issue of compulsory acquisition of the land by the state. It states
that the state shall not deprive a person of property of any description, or of any interest in or
right over property of any description unless the deprivation4 is for a public purpose5 or in the
public interest6. Compulsory acquisition also has to have the following ingredients: prompt
payment in full of just compensation to the person7 and the person who has an interest in it or
right over that property, the right to access a court of law.8

Article 42 states that every person has the right to a clean and healthy environment, which
includes the right to have the environment protected for the benefit of present and future
generations through legislative and other measures, particularly those contemplated in Article
69 and to have obligations relating to the environment fulfilled under Article 70.

Article 48 gives every citizen the right to justice. It states that the State shall ensure access to
justice for all persons and, if any fee is required, it shall be reasonable and shall not impede
access to justice.

1
Article 10(1), Constitution of Kenya (2010).
2
Article 10(2), Constitution of Kenya (2010).
3
Article 37, Constitution of Kenya (2010).
4
Article 40(3), Constitution of Kenya (2010).
5
Article 40(3)(a), Constitution of Kenya (2010).
6
Article 40(3)(b), Constitution of Kenya (2010).
7
Article 40(3)(b)(i), Constitution of Kenya (2010).
8
Article 40(3)(b)(ii), Constitution of Kenya (2010).
Article 60(1) of the Constitution of Kenya states that land shall be held, used and managed in
a manner that is equitable, efficient, productive and sustainable9 and it goes further ahead to
state the principles in which these four cardinal points should be held in accordance with.

Article 63 recognizes community land. It states that land shall vest in and be held by
communities identified on the basis of ethnicity, culture or similar community of interest.10
The same article states that community land consists of land lawfully registered in the name
of a group, land lawfully transferred to a specific community.11 Article 64 recognises private
land under leasehold and freehold tenure.12

Article 66 gives the government power to regulate the use of land in order to ensure public
safety, health and order.13

Article 69 says that the State shall ensure sustainable exploitation, utilisation, management
and conservation of the environment and natural resources, and ensure the equitable sharing
of the accruing benefits.14 The State is also supposed to encourage public participation in the
management, protection and conservation of the environment.15 In addition, the State is
supposed to establish systems of environmental impact assessment, environmental audit and
monitoring of the environment,16 eliminate processes and activities that are likely to endanger
the environment17 and utilise the environment and natural resources for the benefit of the
people of Kenya.18

ANALYSIS

The Right to access to Justice

In the protection of the rights and security of the benefits of the people of Lokichar, the right
to justice for all is like an umbrella right under which other rights seek protection. The right
to justice refers to a fair and equitable legal framework that protects human rights and ensures

9
Article 60(1), Constitution of Kenya (2010).
10
Article 63(1), Constitution of Kenya (2010).
11
Article 63(2), Constitution of Kenya (2010).
12
Article 64, Constitution of Kenya (2010).
13
Article 66(1), Constitution of Kenya (2010).
14
Article 69(a), Constitution of Kenya (2010).
15
Article 69(d), Constitution of Kenya (2010).
16
Article 69(f), Constitution of Kenya (2010).
17
Article 69(g), Constitution of Kenya (2010).
18
Article 69(h), Constitution of Kenya (2010).

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delivery of justice.19 As a justiciable right, it has two important dimensions: procedural
access (fair hearing before an impartial tribunal) and substantive access (fair and just remedy
for a violation of ones rights).20 It is enshrined in article 48 of the Constitution. It states that
The State shall ensure access to justice for all persons and, if any fee is required, it shall be
reasonable and shall not impede access to justice.21

This right is echoes in other constitutional provisions such as article 40(3) which states that if
the government compulsorily acquires land, one of the conditions is that one must have
access to a court.22 In addition, article 70 states that if a person alleges that a right to a clean
and healthy environment recognised has been, is being or is likely to be, denied, violated,
infringed or threatened, the person may apply to a court for redress in addition to any other
legal remedies that are available in respect to the same matter.23 This same article even
removes the need for locus standi in any matter related to the environment24 regardless of
lack of injury or location of residence since everyone has a stake in the environment. This
right to justice is also seen in section 3(4) of the Environmental Management and Co-
ordination Act. It say that if a person alleges that the right to a clean and healthy environment
has been, has been or is likely to be contravened in relation to him, that person may apply to
the High Court for redress and the High Court may make such orders, issue such writs or give
25
such directions as it may deem appropriate. This same section also removes the need for
locus standi in an environment related case.26

Right to Demonstrate, Picket and Petition

The residents of Lokichar also have rights to demonstrate, picket and bring a petition to the
public authorities in accordance with article 37 of the Constitution should they feel that their
rights have been violated as a result of the exploitation of oil in the Lokichar. This is also in
relation to the right to justice. In relation to this, article 70(2) directs that, if it has been
satisfied, the court make orders to prevent, stop or discontinue any act or omission that is
harmful to the environment, to compel any public officer to take measures to prevent or

19
Muigua K, Kariuki F, Towards Environmental Justice in Kenya, 2015, 5.
20
Muigua K, Kariuki F, Towards Environmental Justice in Kenya, 5.
21
Article 48, Constitution of Kenya (2010).
22
Article 40(3)(b)(ii), Constitution of Kenya (2010).
23
Article 70(1), Constitution of Kenya (2010).
24
Article 70(2)(c), Constitution of Kenya (2010).
25
Section 3(3), Environmental Management and Co-ordination (Amendment) Act (No. 5 of 2015).
26
Section 3(4), Environmental Management and Co-ordination (Amendment) Act (No. 5 of 2015).

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discontinue any act or omission that is harmful to the environment or to provide
compensation for any victim of a violation of the right to a clean and healthy environment.27

The Doctrine of Compulsory Acquisition

The constitution through article 40(3) deals with the doctrine of compulsory acquisition of
land. This is where the government can take over you land for purposes that benefit the
public at large. The residents of Lokichar are subject to this provision since the activity in
question is the exploitation of petroleum. This is a matter of public interest in that the
exploitation of oil is for the benefit of the whole countrys economy. This means that the
residents of Lokichar who own private land as per article 64 there and the rest who have
community land interests as per article 63(1) will have to forfeit their interest in this land to
the government for exploitation purposes. However, not only do they have the right to
compensation that is full, prompt and just, they also have the right to access a court of law if
they feel aggrieved by the acquisition of land by the government, the lack of compensation or
the inadequacy of compensation.

The Petroleum (Exploration and Production) Act also enshrines provisions relating to access
to private land. A notice to the occupier and if practicable to owner is required, within a
period of not less than forty-eight hours, where a contractor intends to enter upon any private
land for the purposes of conducting petroleum operations.28 Additionally, in the event that
any disturbance of the rights of the owner or occupier of private land, or damage to anything
therein or thereon is caused in the course of carrying out petroleum operations, the contractor
shall be liable on demand to compensate the owner or occupier.29 Failure of compensation or
in the case of inadequate compensation, the owner can bring suit within 6 months.30

Right to a Clean and Healthy Environment

The residents of Lokichar have a right to a clean and healthy environment, which is
guaranteed by article 42 of the Constitution. This article is also read with article 70(2) which
states that in case of infringement of this right, the court must give orders to prevent, stop or
discontinue any act or omission that is harmful to the environment, to compel any public
officer to take measures to prevent or discontinue any act or omission that is harmful to the
environment or to provide compensation for any victim of a violation of the right to a clean

27
Article 70(2), Constitution of Kenya (2010).
28
Section 10(1), Petroleum (Exploration and Production) Act (2012).
29
Section 10(2), Petroleum (Exploration and Production) Act (2012).
30
Section 10(3), Petroleum (Exploration and Production) Act (2012).

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and healthy environment. This is called the polluter-pays principle. It is also under section
3(5) of the Environment Management and Co-ordination (Amendment) Act. It says that the
High Court should take into consideration the polluter-pays principle when deciding on a
matter to do with infringement of the right to a clean and healthy environment.31

This right is also protected by article 3(1) of the Environmental Management and Co-
ordination Act. It says that every person in Kenya is entitled to a clean and healthy
environment and has the duty to safeguard and enhance the environment.32

Principles of Land Use

Once acquisition of the land has been done and oil exploration and extraction is to be
performed the companies extracting oil will be bound by the provisions of article 60(1) of
Kenya which states that the land has to be used in an equitable, efficient, productive and
sustainable manner. This is also in relation to article 10 which provides that the State is
bound by the national values and principles of governance whenever it applies, interprets and
implements the law. Among the values is sustainable development.33 The land has to be used
in a sustainable manner in the sense that the needs of the present generation do not
compromise the needs of the future generation. The 3 pillars of sustainability which are
economic sustainability, environmental sustainability and social sustainability must be visible
during the use of the Lokichar land.

The land should be used economically in that monetary value should come from it through
not only productive management of the land resources but also of the oil being extracted.
There should be environmental sustainability in the sense that there should be conservation
and protection of sensitive ecological resources. Environmental sustainability in this case is
of uttermost importance since oil spillages cause massive environmental and ecological
damage. It should also be socially sustainable in that the residents of Lokichar should be able
to benefit directly from the activity of oil exploitation in their area. Some of these benefits
include employment for the locals, schools and medical facilities. Social sustainability is also
supported by article 66(2) which states that Parliament shall enact legislation ensuring that
investments in property benefit local communities and their economies.34

31
Section 3(5)(e), Environmental Management and Co-ordination (Amendment) Act (No. 5 of 2015).
32
Section 3(1), Environmental Management and Co-ordination (Amendment) Act (No. 5 of 2015).
33
Article 10(2)(d), Constitution of Kenya (2010).
34
Article 66(2), Constitution of Kenya (2010).

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Social sustainability is also highlighted in section 24 of the Local Content Bill. It says that an
operator shall prepare and submit to the Committee an employment and skills development
plan with respect to the extractive activity to be carried out.35 An employment and skill
development plan shall include a time frame within which the operator, or other connected
entity shall provide employment opportunities for the local workforce for each phase of the
extractive activity to enable members of the local community prepare for such
opportunities.36 The residents of Lokichar have a right to benefit from the extraction activity.

Alternatively, since oil is a non-renewable resource the future generations might find that all
the oil has been exploited. In anticipation of this situation, the state can set aside a sovereign
fund. This sovereign fund will entail setting aside a specific amount of money from the
returns obtained from oil. This is key for sustainability as the future generations may come
and find all the oil exploited.

Right to Public Participation

According to article 10, another of the national values and principles of governance include
public participation and inclusiveness.37 The residents of Lokichar have a right to be included
in decision making in any matter regarding the environment in which they live, and in this
case the way the oil exploitation will take place.

However, before they can offer useful contribution, they must also be informed about the
environment. Access to environmental information refers to the availability of environmental
information (including that on hazardous materials and activities in communities) and
mechanisms by which public authorities provide environmental information. Communities
cannot be meaningfully engaged on matters relating to the environment and the exploitation
of natural resources without an understanding of what the ideals should be in a society where
there is environmental justice.38 Meaningful involvement has been defined to mean that:
potentially affected community residents have an appropriate opportunity to participate in
decisions about a proposed activity that will affect their environment and/or health.39

Therefore, the government should provide the necessary information to the residents of
Lokichar to enable them participate where they can as regards to the exploitation of oil in

35
Section 24(1), Local Content Bill (2016).
36
Section 24(2)(b), Local Content Bill (2016).
37
Article 10(2)(a) and (b), Constitution of Kenya (2010).
38
Muigua K, Kariuki F, Towards Environmental Justice in Kenya, 4.
39
Muigua K, Kariuki F, Towards Environmental Justice in Kenya, 13.

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Lokichar. This right is also protected by article 35 which provides that every citizen has the
right of access to information held by the State and any other person and required for the
exercise or protection of any right or fundamental freedom.40

The right to public participation is also protected by section 3(5) of the Environment
Management and Co-ordination (Amendment) Act which states that in exercising the
jurisdiction to ensure right to justice, the High Court shall be guided by the principle of
sustainable development the principle of public participation in the development of policies,
plans and processes for the management of the environment.41

CONCLUSION
In light of the aforementioned, I would advise the residents of Lokichar that they have a right
to:

1. Justice
2. A clean and healthy environment
3. Prompt, full and just compensation in case their land is acquired by the government.
4. Peacefully picket and demonstrate.
5. Participate in the decision making in relation to the extraction process.
6. Directly benefit from the extraction process.

40
Article 35(1), Constitution of Kenya (2010).
41
Section 3(5)(a), Environmental Management and Co-ordination (Amendment) Act (No. 5 of 2015).

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