A Case Study Triggering the Voluntary Guidelines on the Responsible Governance of Tenure (VGGT) in the Context of Oil Extraction in Kenya's ...
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Triggering the Voluntary Guidelines on
the Responsible Governance of Tenure
(VGGT) in the Context of Oil Extraction in
Kenya’s Turkana County
A Case Study
April 2018
By Pastoralist Development Network
of Kenya - Turkana Chapter
1
Introduction and Backdrop
began its operations in Turkana in 2010
Tucked away in Kenya’s north-western tip, after signing farm-in agreement with
Turkana County is home to an estimated African Oil (of Canada) and Centric En-
1,122,2017 people in 2017, derived from ergy-USA. They now operate 5 off-shore
the 2009 population census, as well as a blocks, of which four, are located in pas-
large refugee population. The county is toral areas. Since 2012 Tullow has drilled
ǡ ϐ more than 21 wells in Lokichar basin,
Kenya’s agro-climatic zones as arid and with an estimated 600 million barrels of
semi-arid land (ASAL) with dismal and recoverable crude oil. Currently, oil and
erratically distributed rainfall of 200mm gas extraction is in the appraisal stage,
mean average annually. About 80% of the ϐ-
Turkana people identify as mobile pasto- opment. All these were undertaken in the
ralists, and keep camels, goats, sheep, cattle absence of community land law that would
and donkeys as a source of livelihood as regulate negotiations with communities
well as an ecological management strategy. for compensation mechanisms for lands
curved off their territories, securing of
Since the colonial era, Turkana County important seasonal grazing areas, migra-
has epitomized historical marginalization tory routes, ceremonial sites, important
due to perceived lack of agriculture and livestock resource sites (salt licks, water)
investment potential. Bordered by South and negotiated or participatory planning
Sudan, Uganda and Ethiopia, the county for operations of extractive activities such
has witnessed proliferation of small arms as oil exploration, drilling, storage, trans-
many decades of under-development, cat- portation and waste disposal. Due to these
tle rustling, insecurity and poverty, with an omissions the Turkana pastoralists feel
estimated 87.5% (Society for International that they have been left to play catch up
Development et al, 2013) of the population in seeking security of community tenure
living below the poverty line. This margin- rights in the whole scope of oil extraction
alization and perceptions of backwardness in Turkana County.
and violence has nurtured a sense of alien-
ation of the Turkana community by the rest
of Kenya. Since Kenya’s independence in
1963 land in Turkana has been designated
as trust land (communal land held in trust
by local authorities/County councils) which
transitioned to unregistered community
land in 2010 in accordance with article 60
of the Constitution of Kenya, 2010 and held
in trust by the county government.
In 2012, the Anglo-Irish company, Tullow
ǡ ϐ
crude oil in Turkana County. Tullow Oil Plc
2
Oil Extraction in Turkana
pasture and springs. It is an important dry
The history of oil exploration in Kenya dates season refuge for pastoralists.
back to 1950. In this year, oil exploration was
The second cause of concern is the issue of
“The discovery of oil in Turkana has brought a trucking trial - two trucks ferrying tanktain-
flurry of issues to a part of Kenya that has been ers’ with the carrying capacity of 300 barrels
forgotten from the first time the white man set foot each, from Turkana to the Port city of Mom-
in East Africa. Turkana people have from the
1900’s viewed people from southern Kenya with
basa on the Kenyan Coast. Trucking trial
suspicion because of the deliberate neglect they is the first step towards learning about the
have subjected Turkana region. Oil appears to integrity of the oil when transported under
have raised the profile of Turkana in Kenya and different temperatures and how it behaves
globally, but we (Turkana community) are fearful
that our rights are being trampled on because we while in storage in Mombasa. The communi-
are taken as second class citizens. For instance, ty and civil society were concerned about the
the carving out of land parcels for exploration and lands to be carved out to create the roads for
subsequent drilling of oil was done without our
trucking the oil from Turkana, what process-
knowledge, we were not prepared for the flurry of
activities that are happening now. We also do not es are in place to consult and map out ap-
know how we shall be compensated for the propriate areas with the least impacts on the
takeover of our lands, destruction of sensitive and general wellbeing of the community and the
important ecological areas and the benefits that
pastoralists will get from extraction of oil from our
environment.
land.”
53-year-old Susan Nadoma68-year old - Lomuria Thirdly, front end engineering design (FEED)
Ekeno, Turkana Elder from Lokichar is now being carried out to inform the speci-
fications of the pipeline as well as how much
it will cost the country to pipe the oil from
conducted in Tertiary Rift Valley (which in- Turkana County to other parts of Kenya. The
cluded Lokichar), but the wells drilled were community and civil society are concerned
dry. To accelerate the search for oil, Kenya about the level of information, participation
formed the National Oil Corporation of Ken- and inclusion that has been undertaken in
ya (NOCK) in 1981 and subsequently passed making these determinations. The full field
the Petroleum (Exploration and Production) development and commercial production is
Act of 1984, which was revised in 1986 and in expected to start in 2021. Other than Tullow
which Production Sharing Contract was intro- Oil Plc other companies that have joined the
duced to replace royalties. In 2012 the Petrole- oil extraction fray in Turkana include Ada-
um (Exploration and Production) Act of 1986 mantine Energy Limited (USA) in Turkana
was further revised. The technical environ- North and CEPSA (Spanish Petroleum Com-
mental social impact assessment (ESIA) was pany) in Turkana West.
conducted to guide the full field development
and construction design.
One of the major issues of concern to the
Turkana community and civil society or-
ganizations regarding the ESIA report was
the recommendation for establishment of a
hazardous waste dump site at Kang’ipetain.
This area is a strategic grazing zone with good
3The Challenges at a Glance
The major challenge confronting Turkana tions. The company will pay a 5% revenue
pastoralists in the context of extraction of oil share for local communities (despite de-
and gas in the county is loss of land and lack mands for 10%) and 20% for the county gov-
of information regarding the development of ernment besides other benefits through the
their area. Open and communally managed national revenue share and corporate social
land constitutes one of the main pillars of responsibility. Despite this, the local commu-
pastoralist livelihood and production and it nity still suffers from the negative impacts of
is feared that the takeover and subsequent the extractive industry. In a drought-prone
extensive modification of this landscape will and marginalized region such as Turkana,
have unprecedented impacts on the whole of the pastoralists face severe pressures from the
Turkana peoples existence. The current take- appropriation of resources by large industries
such as Tullow Oil.
“From the time we were created we have been Currently, a total of 700 square kilometers of
depending on our land to sustain us as pastoralists. land has been hived off from community land
When land is taken away from the equation that
forms pastoralism, then the death knell for
for extraction of oil and gas. These are areas
pastoralism is sounded. This is what is happening with good pastures and form the drought
here in Turkana, where people sat somewhere in reserves. Moreover, they also hold cultural
Nairobi, curved out our land and allocated it to
strangers without our knowledge. This is a total value as traditional ceremonial sites such as
violation of the rights of pastoralists as provided in for traditional prayers (ekimwomor), and
the constitution of Kenya, the rights of indigenous initiation ceremonies (asapan).
peoples and international best practices by
government and investors. If these issues are not
ironed out in a participatory manner, the global oil It is important to note that although
curse will likely befall Kenya”. the “footprint” of specific oil explora-
28 year old Edward Eregae tion and production facilities (including
well pads, camp sites) is generally small,
over of Turkana land for oil production activ-
ities forms one of the key factors contributing
to insecurity of pastoral tenure rights in the “By the time we learnt of the whole
scheme of hiving off of our land for oil
county. From the onset of the exploration and exploration and drilling, the government
subsequent extraction of oil and gas in Tur- had already deployed security forces to
kana, pastoralist communities have lost own- guard the operations of the company
and to ensure that we (Turkana) were
ership, access and control of the basis of their sealed off from the areas under
pastoral livelihood and economic production. operation. The questions that are yet to
Additionally, they haven’t been included in be adequately answered are; whose
land is this and what is the relationship
decision-making processes regarding further between government, Turkana people
development of the area. and investors and who gave consent
and who was compensated for the land?
Secondly, what are the direct and
An Oxfam briefing paper, released in Novem- indirect benefits to Turkana pastoralists
ber 2017, showed that Tullow Oil’s communi- and what are the negative impacts to
ty engagement had improved since 2015, but the Turkana people as a result of
extraction of gas and oil”.
they were still not achieving their full Free
68-year old - Lomuria Ekeno, Turkana Elder
Prior and Informed Consent (FPIC) obliga- from Lokichar
4there are associated facilities (residential, ϐ -
educational, market and recreational), as tion. For example, in 2013, the elders of
well as access roads for those working on the the community prevented oil exploration
oil exploration/production sites, which take at the Twiga 2 site in Lokichar basin be-
up much larger areas of land. Additionally cause of the damage done to pastureland.
the local communities must grapple with Later in the year, the community staged
lack of water, waste generation and disposal, demonstrations demanding jobs and other
pollution, migration and growing urbaniza- ϐȂ
tion.. Urban and peri-urban trading centres resumed only after peace talks concluded
have mushroomed, thus increasing further with local leaders. In June 2017, the com-
encroachment into pastoralists’ land and munity blocked Tullow’s employees from
thereby endangering pastoralism as a viable initiating the transport of oil barrels to
system of utilizing arid lands, ecologies and Mombasa. Eventually, the President Uhuru
resources. ϐϐ -
ry oil from Lokichar in June 2018.
With a burgeoning population, influx of mi-
grant communities and takeovers by state and Besides the pastoral resistance, the Tur-
corporate entities; the land in Turkana has kana Natural Resources Hub which brings
been on a steady shrinkage and, therefore, together all Non State Actors is attempt-
Turkana pastoralists are systematically being ing to address this problem. Land tenure
displaced from pastoralism, which has been ϐ
their traditional means of livelihood and carried out an assessment of community
production for centuries, and the only viable perceptions on the impact of oil and gas
means of livelihood that can be supported by extraction in Turkana East and South. The
the fragile ecosystem of Turkana County. problems highlighted before form some of
ϐǤ-
The problems of pastoralists’ land have so- ϐ
cial and political/administrative dimensions, related to oil and gas extractions have dis-
created both naturally and man-made. While possessed pastoralists of their land.
such natural factors such as climate change
have dispossessed Turkana pastoralists of These factors include land committed to
their land, human activities have exacerbated
ǦǦϐ ǡ
the problem. land grabbing by unscrupulous business-
men, degradation, environmental pollution
and lack of safeguards for drought refuges,
migratory routes, sacred and ceremonial
Current Initiatives to Overcome the sites. The Hub has conducted community
Challenges dialogues to sensitize them on land issues
and demand for their rights over their
There are limited efforts to address the land as enshrined in the Kenyan constitu-
problem of pastoralists land tenure rights tion, and further engagement with Tullow
in the context of extraction of oil and gas Oil Plc on hazardous waste management.
in Turkana. Since initiating their activi- However, the Hub faces the challenge of
ties, Tullow Oil has faced some backlash limited resources.
from the local pastoralist community for
interfering with pastureland and for in-
5Moving Forward: Introducing the sustainable development by improving se-
Food and Agriculture Organiza- cure access to land, fisheries, and forests, as
well as protecting the rights of millions of
tion’s Voluntary Guidelines on the
often very poor people like pastoralists.
Responsible Governance of Tenure
of Land (VGGT)
1. Human Dignity,
The Voluntary guidelines on the responsi- 2. Non Discrimination,
ble governance of tenure of land (VGGT) is 3. Equity and Justice,
an internationally negotiated soft law or a 4. Gender Equality,
set of guidelines on tenure of land that has 5. Holistic and sustainable,
managed to balance the global web of in- 6. Consultations and Participation,
terests on land and striking a rare consen- 7. Rule of Law,
sus among such international processes as 8. Transparency,
the G20, Rio+ 20 and institutions as 9. Accountability and;
10. Continuous improvement and analysis
of tenure governance.
the United Nations General Assembly, and
the Francophone Assembly of Parliamen-
tarians. Further the VGGT has received The VGGT resonate with 70 year old-Turkana
– elder - Ekutan Lokadio observation that:
endorsement by the Committee on World “The process of acquiring community land
Food Security (CFS), based at the Food must be guided by the principles of mutual
and Agriculture Organization of the United respect among all those involved, fair and
Nations (FAO) in Rome, Italy. transparent negotiations, participation of all
members of the community including youth,
women and the disable, compensation and
The VGGT aim to serve as a reference and provision of safeguards to prevent adverse
to provide guidance to improve the gov- impacts of the project on people, livestock,
ǡϐ wildlife, land and environment”.
forests. The overarching goal of the VGGT
is achieving food security for all and to
support the progressive realization of the
right to adequate food in the context of
national food security. The VGGT are rights
based in the sense that they operate with-
in the principles of:
Further, the VGGT are gradually emerging as
a true global norm of reference in the govern-
ance of (land) tenure and thereby pioneering
the outlining clear principles and practices
that governments can refer to when mak-
ing laws, decisions and administering land,
fisheries, and forests rights. Ultimately, the
VGGT aim to promote food security and
6Triggering the VGGT in Securing ments (LSLBI) and also resonate with the
Pastoralist Tenure Rights in Global Goals or Sustainable Development
Goals (SDGs) thereby providing multi-level
Turkana
legitimacy of utilizing the VGGT as a tool
Considering that the main thrust of the for securing pastoral land tenure in the con-
VGGT is to ensure responsible governance text of oil extraction in Turkana County for
of tenure, when juxtaposed against the the realization of:
takeovers of parcels of community land for 1. Recognition and respect for pastoral
extraction of oil in Turkana, it is irrefutable (community) land tenure right holders and
that the VGGT context provides a unique their rights;
and strategic paradigm for further advanc- 2. Protection of pastoral/Community
ing and advocating for implementation of land tenure right holders against the arbi-
the requisite safeguards for pastoral land trary loss of their tenure rights; and
tenure in the ongoing extraction of oil in 3. Guaranteeing equal pastoral women
pastoralist community lands. Using the and girls land tenure rights and access to
VGGT as a global soft law instrument for community land.
ensuring obligatory best practices for duty
bearers in securing tenure of land for such All these rights and entitlements are recog-
communities as the Turkana resonates with nized and guaranteed in Kenya’s Commu-
Kenya’s principles of National Values and nity Land Act of 2016 however, a VGGT
Governance that include; dimension in advocating for pastoral ten-
1. Human Rights and Fundamental ure rights especially in the perspective of
Freedoms. the ongoing extraction of oil in Turkana
2. Right to Property. County infuses new energy and vigor and
3. Sustainable Land Policy hinges the advocacy on an internationally
4. Trust in the Ownership of Commu- accepted set of principles of recognition and
nal Land. respect for land tenure rights of such groups
as pastoralists as part of the duty bearers
Further, the VGGT are in consonance with obligation of ensuring food security for a
the African Union guidelines on land gov- community that has continuously suffered
ernance and large-scale land-based invest- chronic food insecurity in Kenya.
Recommendations
As the government of Kenya and policy Improving governance of pastoral lands, as a
makers design mechanisms for the imple- tool to advocate secure collective land tenure
mentation of the Community Land Act 2016,
for Turkana pastoralists as part of advocating
infusing the VGGT will prove useful in the
furtherance of pastoralist rights to collective for safeguards for their production and liveli-
tenure. Therefore, National and County Gov- hood system
ernments and other agencies should consider 2. The Government of Kenya through the
supporting this initiative to enable:
national assembly, senate and county assem-
blies to adopt the VGGT technical guide for
1. Civil Society Organizations to utilise
investors to form part of Kenya’s best practise
the VGGT, especially its technical guide on
7guide for investors such as those exploring ernments and Assemblies to create a critical
and extracting oil in pastoralist areas. mass to take forward the usage of the VGGT
3. Institutions such as Kenya National in securing pastoral tenure in Kenya.
Commission on Human Rights, National 7. Further engagement by CSOs, CBOs
Gender and Equality Commission, the Law with National Government/Ministry of Pe-
troleum and Companies that are exploring
Centre for Legal Empowerment among oth- and extracting oil in Turkana County to
ers to utilize the VGGT technical guide for ensure that the activities adhere to VGGT’s
lawyers and other legal service providers as principles in their operations.
well as the guide for securing land tenure for 8. Use of the VGGT as an additional
men and women to ensure gender equality in yardstick for the National Environment Man-
tenure rights agement Authority (NEMA) , Senate and Par-
4. Land Actors such as the Kenya Land liamentary Committees on Land and Natural
Alliance, National Land Commission, Kenya Resources and the Pastoralist Parliamentary
Human Rights Commission and Pastoralist Group to seek responsive extraction of oil in
Parliamentary Group to trigger the VGGT Turkana County and other pastoralist areas.
to complement advocacy on the implemen- 9. To present the VGGT as an additional
tation of the Community Land Act 2016 to avenue for the Kenya National Commis-
- sion on Human Rights, National Gender
kana pastoralists realize security of one of the and Equality Commission and development
key pillars of their existence. actors within pastoralist Counties to advocate
5. - rights based approaches in extraction of oil
kana County Government and Assembly to with emphasis on adherence to the principles
plan and invest in securing the collective ten- of the VGGT.
ure of land for Turkana pastoralists in liaison 10. Ensure that VGGT, especially the
with the Ministry for Lands, County Land technical guide on improving governance of
Management Board and the National Land pastoral lands, are used by Non State Actors
Commission. and County Governments to inform pastoral
6. - tenure rights in the context of implemen-
ed among pastoralist communities as they tation of the Community Land Act 2016 as
provide an ideal platform for civil society, they have similar objectives and safeguards
community representatives, County Gov- for pastoralists’ rights to land tenure.
CA2238EN/1/11.18
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