From: Judy Miriga

Good People,

The delay and dragging of Reform process in the implementation of the New Constitution is worrying and many are losing patience. Kenya is signatory to the Rome Statute, and Local Tribunal for post-election violence related cases has purposefully been delayed and prolonged. “Annan welcomed the Government of Kenya’s renewed efforts to implement the recommendations of the Waki Commission and to establish a Special Tribunal”, but on condition, “any judicial mechanism adopted to bring the perpetrators of the post-election violence to justice must meet international legal standards and be broadly debated with all sectors of the Kenyan society in order to bring credibility to the process.”…..that the two Principals must shortly after, get Parliament to open the door for a local tribunal, or face the prospect of having some of their ministers sent to The Hague, just as did the late Yugoslav President Slobodan Milosevic. We now see that, Justice delayed is Justice denied. Many witnesses and victims are disappearing and some dead. As a result, the famous slogan fits in Kenya’s situation…….”Justice delayed is Justice denied”

Why was vision 2030 more important than fulfilling the Reform Agenda Accord for the implementation of the New Constitution? How much time and money in cost worthiness was put as an expense measured on vision 2030 focus and implementation? Was it done legally and constitutionally? Was the public educated and informed and was in agreement with the planned proposals of vision 2030? Was it according to public mandate and priority of interest?

Where is the public engagement and the disclosure of the deals made which conformed to vision 2030, public land sale with any other release of Public wealth and resources to the prospective investors? What was the procedure of procurements? Who were the players and lobbyist or middle-men and how did they get/access the awards to sell or mediate on public resource sales. Where is the Transparency and Accountability to the utilization of Public Finances, Wealth and Resources?

We DEMAND that all public officers and political leaders declare their sources of their wealth immediately.

It is our Rights that we must ascertain the balance and be sure the two Principals were on course. We therefore demand for an immediate public Audit to provide evidence that Public wealth and resources are safe within the prescribed policy guidelines according to Public Mandate.

What next if justice is becoming so hard to achieve?

Judy Miriga
Diaspora Spokesperson
Executive Director
Confederation Council Foundation for Africa Inc.,
USA
http://socioeconomicforum50.blogspot.com

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Judge warns rushing implementation of new Constitution
BY WAHOME THUKU

A Supreme Court judge has warned the country against rushing the implementation of the new constitution.

Lady Justice Njoki Ndung’u, one of the crafters of the constitution said rushing the implementation would lead to a false start and give rise to poor laws.

Ndung’u said contrary to wide perceptions, the constitution was not designed to be implemented at once nor by the current Parliament.

“It was not for this Parliament to legislate all the implementation. We will take 10 to 15 years to fully implement the constitution but if we rush it we will fail,” the judge said.

She was addressing members of the Institute of Certified Public Secretaries of Kenya (ICPSK) during their 19th annual dinner at the Panafric Hotel in Nairobi on Wednesday evening.

Ndung’u who is presently the second senior most female judge in Kenya was a member of the technical committee of experts who drafted the constitution. She was also a nominated MP at a time when debate on the constitution review was at the peak.

The judge who was the chief guest at the dinner urged professionals in Kenyan to focus attention and get more involved in the management of counties.

“The running of the counties will determine the economic growth of the country. But they will only succeed if they are run like businesses so you should be looking for good managers,” she told the ICPSK members.

The judge said devolution of services would not come at the same time for all counties but gradually according to their preparedness. And the next Parliament should be more involved in policy formulation, she added.

Ndung’u appealed to the country to shift debate from the political aspects of the next general elections to the technical issues.

“The elections we are about to have will be enormous yet this has not been understood. The IEBC is trying to raise this debate but not being heard. We should start focusing on our preparedness for the election,” she said.

African Charter Article #21: All peoples shall freely dispose of their wealth and natural resources for their exclusive interest, eliminating all forms of foreign economic exploitation.

African Charter Article #21

1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.

2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.

3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.

4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.

5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully

2.0 Issues, Fears and concerns.

i .Legitimacy and Legality

The meeting was convened to look at the extractive industry conflict between the local communities and the mining company (CNOOC- The China Nation Off-shore corporation).

Extractive industry needs to be monitored to safeguard community exploitation and interests. In the process, legitimacy versus legality issues arise based on what people know and what the law says. A conflict of traditional life patterns and written law is often encountered.

ii. Expectation and promises

Raised Expectations and promises often than not become higher than the immediate benefits based on the investors introduction. Promises of jobs, infrastructural development and lots of profits for the extracting company are usually made. It may be contrary that the whole exploitation can end up with miserable results.

iii. Conflicts over natural resources

The exploration could be going on but beneath the surface there could be full of conflicts over natural resources, traditional land users, powerful commercial investors interests. The exploration causes serious interferes with the communities and normal routine through pollution of their environment. In a way the people loses their rights to the commercial investor.

The experiences is always confrontations between the land rights and traditions vesus the interests of the investor. This may be understood from the fact that when exploration is done, large section of land is hived and not plots.

iv. End Results , historical experiences and human rights violation

In the world over, it is observed that 1% of exploration concession end up to translating into active mining extraction activity.

The exploration company vetures into drilling as many holes as possible and not all the holes may contain the mineral /Oil. At the end of the drilling so many drilled holes are left open which may cause serious damages to the community.

In 1986, a French oil exploration company undertook oil exploration in the same place for a period of three years and then left. The exploration ended up destroying the environment through heavy vehicles of more than 10 tonnes carrying pipes. It led to destruction of roads. The holes that were drilled were not closed when the company left. The president was invited and presented with a bottle full of oil and then it was announced that the Oil had been discovered. The announcement sparked excitement and celebration to Isiolo town residents and business community with many abandoning their usual cores and declaring that they will now become rich. But up to date what was left was ; diseases outbreak(Cancer), crops colour changed, 600 livestock have so far died ( a lab test was contacted in University of Nairobi and was confirmed that some toxic wastes were left behind by the exploration company. At the moment, there is a huge dust pollution caused by the heavy vehicles transporting the containers to the site.

From then , Isiolo people have never believed that petrol can be discovered because they have never been informed of what became of the first Oil exploration Company.

The first exploration can be remembered by locals when it parked off hurriedly. At that time the company ensured that all workers from the community were given a three month lieu notice of leave and paid their three month salary in advance. The few workers who remained from outside were kept busy disconnecting pipes and other materials. This act avoided remaining workers to have no time with the local communities hence avoiding information leakages of the company activities. Equally the community is in darkness about the activities of the current venture. Foremost suspicion is the way the current exploring company began its work when parliament had been dissolved. Suspicion was raised as regards the timing of the project And now,for the last five month , the company has not employed a single resident of Isiolo. The venture reminds people of the secrets the first company concealed.

v. Fear of marginalization and displacement.

If petrol is discovered, the question the community should be asked is ; how will it affect the community? Possibly, displacement may occur. If displacements occur and bearing in mind that the isiolo community is a pastoralist community and they depend on livestock as their sole livelihood, then it means that they will loose their livestock grazing land. Already the community have been deprived of accessing the dam which was a source of water for their livestock . The dam happens to be found in the area that has been fenced off by the Kenya army to allow exploration to go on. The rivers which were flowing from fenced area have begun drying because the Oil exploration company have diverted the water to their own use.

vi. Lack of Initial community involvement and recognition

The lack of community and stakeholders involvement iwas outrightly clear. From the word go, the government has never attempted to recognize the community ,for instance, through awareness creation of the Oil venture. The stakeholders and Community are there anxious to know the report of the first venture. The community want to be brought to informed on community benefit sharing in the whole process.

The meeting revealed that the County Council of Isiolo were not consulted by the Oil exploration company and yet they are the custodian of Isiolo trust land. It was further revealed that there is no county council policy preventing exploitation of oil. The county council was only involved during the container inspection done 5th February 2008. The county council proposed the deployment of a geologist expert to always provide information to all the stakeholders.

vii. Violation of NEMA procedures on Environmental impact Assessment(EIA)

The Environmental Impact Assessment ( EIA) report written by Earth View Geoconsultants ltd was received on 10.12.2007 by NEMA failed to respresent the required Oil exploration procedures. First, the exploration is not allowed to commence until the report is approved at NEMA headquarters. Secondly the District Environment Committee have not met and approved the report. The meeting was informed that the District Environment Committee comprises of ten members with district Commission as the chairman and the district NEMA officer being the secretary. The other members to the committee are; 1 person from lead agency, 2 people from business community, 1 pastoralist, 1 youth, 1 Woman , 1 NGO representative and 1 CBO representative. The essence of this committee meeting is to peruse through the EIA report and approve or reject according to the EMCA act. If it is approved , 2weeks public notice is given by publishing the report in at least two daily papers circulating in the district. Again this procedure was not followed.

The participants felt the communities and stakeholders were sidelined in this process.

3.0 MINING EXPERIENCES: BEST PRACTISES AND LESSONS LEARNT.

A. Institute for Law and Environmental Governance(ILEG) through her staff Christabel Nyamwaya presented a paper on how a geologist finds oil. She elaborated the oil mining/extracting methodologies, seismic surveys and the socio-economic impacts.

She gave a case study of Nigeria mining practice which she regretted as rather a bad experience (see annex 4 for the full representation).

B. Kenya National Commission on Human Rights presented a case study of the Magadi soda extraction experience. Mr. Charles waguhu who represented KNCHR analyzed ; the case study and recognition of interdependency of stakeholders in the process of mining ( see annex 1 for full presentation).

C. Kenya Human Rights Commission through Mr. Davis Malombe looked at the human rights and social justice concerns in the mining sector. He emphasized the consideration of qualities and objectives and rights and justice centered advocacy and action based organized process (See annex 2 for the full presentation).

D. Anastacia Otieno of RECONCILE advanced the mining Act proposals which she stated has not been revised since 1940. For any mining to take place the Act states that permission and licensing has to be sort from department of Geology.

It was understood that under the Trust Land Act, there is a provision for compulsory acquisition by the government. In this case where Oil exploration is taking place the government considers the acquisition of land as ´setting apart´ which requires that the displaced community(s) are compensated.

She said that, under EMCA act, EIA is a requirement before a project commences.

She informed the community that if the EIA procedures were not followed, they could complain to the National complains committee or complains tribunal. Upon appeal in writing by the party, the members can be heard.

She listed the following three issues that the community needs to know about the exploration company when petitioning:

Records of the explorer

Pollution and water table

Needs to have benefit sharing strategy.

4.0 Possible Interventions and Action Plan

Towards Just, Accountable and Rights-Centered Mining Operations and frameworks in Kenya: Issues and Advocacy Process

“Sustainable use and sharing of benefits from land based natural resources is a concept that has gained popularity in Kenya and globally. Communities and individuals are increasingly becoming aware of their rights to own and use natural resources within their environs, as well as participate in the conservation and management of such resources “.

1. Overview; the Human Rights and Social Justice Concerns in the Mining Sector.

Kenya(ns), despite having rich mineral reservoirs ranging from Coal, Iron, Titanium, Gold, Oil, Fluorspar, Gas and other metals and stones has hardly benefited from these natural resources. To date, the Kenyan mining sector is inadequately tapped and therefore contributing a paltry 1% to the country´s GDP and national employment. More over, the same sector and attendant resources contributes very decimally to the quality and quantity of lives of the small scale miners (controlling more than 80% of the mines); rights, dignity and stakes of the hosting/ neighbouring communities and workers in the mining sites.

These circumstances have been exacerbated by among other factors failure by the Government to put in place a comprehensive and progressive mining policy and legal regimes. In most cases, the exploration and exploitation of minerals is undertaken in terms and conditions favourable to the mining companies and detrimental to human rights, national and local communities´ interests.

The Kenya Human Rights Commission (KHRC) believes that these rights and interests can only be safeguarded if we had governance systems in the mining sector informed by the following values and principles of human rights and social justice : That:

The right to development is an inalienable human right by virtue of which every person and all people are entitled to participate in and contribute to and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realized;

All people have the rights of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development. This entitles citizens to exercise “their inalienable right to full sovereignty over all their natural wealth and resources.”

The Universal Declaration of Human Rights recognizes a form of equity inherent in human dignity with equal and inalienable rights as the foundation of freedom and justice;

For realization of the rights to development and self determination, the state among other duty bearers are obligated to inter-alia formulate appropriate national development policies, encourage popular participation in all spheres, and ensure a favourable and equitable economic environment at the all levels.

Based on the above, the KHRC in partnership with the Mines and Geology Department and CSOs involved in mining rights have been spearheading community response/s and reform initiatives with a view to enhancing just and people centered governance of the mining sector. It is imperative to ensure that the above mentioned concerns are safeguarded in the draft Mining Policy and Bill and the general governance of the mining sector and processes at levels in the society.

Below are the some human rights and social justice benchmarks.

2. Qualities and Objectives of a Rights and Justice Centered Mining Operations

These qualities, objects and objectives underscore both the content and process issues:

ENVISIONING a society whereby minerals among other land based and national resources are managed(explored and utilized) in a sustainable, optimum, equitable, accessible and responsible manner for posterity,

ACKNOWLEDGING that the citizenry(as individuals, communities and a nation) are the overall owners of minerals among other land based resources,

NOTING that the Government and Miners are just but mere stewards/ agents and tenants of these resources respectively, on behalf of the citizenry,

INTEGRATING sound human rights protection in mineral resources development. This includes compliance with the national and international practices and obligations related to human rights and governance of natural and national resources,

RECOGNIZING the universality, indivisibility, interdependence and equality/ non-discrimination in the enjoyment of rights and benefits accruing from development processes and mining operations in particular,

ENHANCING substantive participation and involvement of all the concerned state and non state actors in mining operations and reforms(legal, institutional and policy) processes,

FOSTERING effective consultations and consensus with the host communities and other stakeholders on how the local land based resources should be managed and or governed,

ENSURING gender and inter-generational equity, inclusivity and affirmative action in governance and management of land based resources(exploitation and utilization),

PROVIDING for fair and just approaches and structures in sharing the benefits accruing from mining operations,

UPHOLDING the values and practices of transparency, accountability and flexibility within the operational, administrative, legal and policy frameworks governing mining operations,

OBLIGING protection of the environment and national economy including compliance with the existing environmental laws, fiscal policies and national development objectives,

FACILITATING a logical congruence with the existing good practices and on-going reforms processes ostensibly to streamline gains in the governance of the land based resources,

CREATING competent, independent, impartial, accessible and judicious mechanisms for dispute resolution, full restitution and reparations in order to ameliorate legal, social and economic injustices,

MAXIMIZING the potential of and support to the disadvantaged and vulnerable groups and actors in the management of the land based resources. For instance, the unskilled, poor, women, physically challenged, small scale miners among others,

SUSTAINING unfettered access and flow of information in order to further the public interest generally, including in particular to promoting public participation, greater accountability of public and private authorities, better informed discussions and the free interchange of opinions within the development processes/ and management of national resources.

ESTABLISHING common frameworks for governance of all minerals-known and unknown, irrespective of their value and or treasure,

ENFORCING good corporate governance among the mining companies and individuals, including a corporate social responsibility policy not as a gesture of charity but an act of justice and protection of human rights,

CREATING open, predictable and comprehensive frameworks for monitoring, evaluating and regulating compliance to the above set principles and standards,

ENGAGING in action based organizing and advocacy around the above among other pertinent issues to the community using the strategies and processes (below).

3. Advocacy and Action Based Organizing Process

Advocacy and Action Based Organizing Process entails mobilizing the citizenry around specific/their pertinent issues with a view to influencing social, political processes/ decisions and positive change. For positive change/ action, advocacy processes must be:

People centred-driven and or supported by people and the issues affecting themselves;

Knowledge based-having facts and information right on the issues and processes in question;

Rights based-to respond to certain human rights violations and social injustices by empowering the affected groups with tools for self liberation.

The principle tool for advocacy is ´people´-bringing organizations and individuals together to combine their comparative advantage.

Evaluation report Isiolo Stakeholders meeting 27th February 2008

Stakeholders Dialoque Session on Oil Exploration venture by CNOOC in Isiolo.

Evaluation

1. Participation; 48 people tuned up for the meeting, 25 participated in evaluating the forum through a questionnaire

(a) 21 participants felt that the community issues/concerns had been discussed exhaustively which include:

Impact of the proposed oil exploration on pastoralism (loss of the communities´ livelihood)-cancer and poverty sine livestock will be wiped out

Environmental degradation, pollution leading to diseases

Lack of community involvement in the start of the oil exploration/peoples´ role ignored

Effects from past experience in 1986 oil exploration

Baseline information on mining and possible intervention concerning the oil exploration

Injunction/stoppage of the Chinese oil exploration/follow up of other legal issues as pertaining to the exploration

Public awareness and knowledge management

Council intervention

Lack security (land tenure)

Lack of compensation of the land that will be used

Land ownership & land rights

Benefit sharing

Jobs for the locals

Displacement –government empowering minority who are outsiders against the indigenous Isiolo people

(b) 4 participants enlisted the following issues as not discussed exhaustively

Issue not discussed Possible intervention to the issue Responsible stakeholders

1.legal Issues Research & advice ILEG/WASO/KLA

2.Licencing by NEMA NEMA to explain why the license was given NEMA

3.Community´d watering point Explorer to avoid the area allow access to the watering point Ministry of livestock

4.Knowing the administration stand on the issue/Government stand Invite administration in future discussions/Another meeting with administration Meeting convener/ WTLP & KLA

5.Exact activities Information from participants from Mertie WTLP

Visiting the site WTLP & KLA

6.Reaction from opposite side(Explorer China National offshore Oil Corporation company) Assess the reaction All stakeholders

2. Fears from the community

Wiping out the communities from the region/Displacements without proper compensation of community from traditional land

Contamination of water wells

Outbreak of diseases

Government interference with proposed community approaches to the exploration issues

Community not sure whether the company is exploring oil or dumping of toxic material/Nuclear waste

Excluding the community in the exploration /short changing the community if oil is found

Cut down on pastoralism activities and it is a way of life

Community may not sustain interest in the oil exploration as drought is setting in

The oil company just like the rest in the country might buy its way through/powerful commercial interests

National development overlapping community interest

Unaware of the effect of the exploration gains vs losses

Corruption matters/no transparency in activities carried out

Effects from the toxins based on the past Geo -source experience in 1986

Destruction of the fragile environment

Sustainability and unity among stakeholders

Limitations in implementation of way forward

Project may go on and Oil may not be found after all

The community should be empowered to fight this injustice

Convener of the meeting should organize for a follow up meeting on way forward drawn

Youth to be involved in future meetings

Plan for adequate time incase of another meeting and invite more stakeholders

Next meeting to be held in Merti Town

More information on Oil exploration in Merti /Isiolo is needed especially on positive and negative outcomes